19850323 TZCA Dar es Salaam3

. ,,.. ~~~ / . \ I IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: NYALALI, CoJ_, MUSTAFA, JoAo, and KISANGA,JoAo) CRIJVilNAL APPEAL NO •. 12 OF 1983 BETWEEN RAJABU NKUNGU 000000000000000000000000000000000 APPELLANT a n d THE REPUBLIC ooooooooooooooaooooo~oooooooooooooRESPONDENT (Appeal from;the conviction of the High Court of Tanzania at SINGIDA) (Hon. KoSoKoLugak~ngira, J.) dated 9th day of Mar~h,'.1983~ .in Crir,inal Sessiontl Case No.,46 of 1982 JUDGMENT OF THE COURT MUSTAFA, J oAo, The app\~llant was c0nvicted :of r"urder on purely circumstantial evidenceo He is appealing against his conviction. One rorning, pvssibly at about 8000 aomo or 9a00 a .. m. the body of the deceased·was found lying on the ground, with a stab wound; the deceased was dead. Near the dead body was a cap, with a pointed end front and red lining at the opening in the back.. A nurber of co-villagers of the appellant,· Leo PoWo5 1 PoWo6 1 PoW.~8 and PoWo9 recognised the said cap, which they alleged was habitually ' worn by the appellanto Two witnesses PoW.,2 Salehe and PoW.,3 Magdalena testified that when they saw the deceased's body on the material morningt the body was still bleeding from the stao woundo The said cap was an item readily available for sale i• the shops, but in the viilage in question, it would seem ..)nly the appellant used L, wear it,. H0wever the appellant denied that he had ever owned such a capo He denied that the cap found near the dead body was his- The day previous to the finding of the dead body the appellant had been drinking in a few pombe houses in the villageo So were the deceased and a group of the deceased •·s companions.. According to the evidence of the appellant,_ at about 4a00 p .. rno or 5.,00 porn. at a porbe place, presu• ably Senge's, the gr..)up with the deceased, due to sorre altercation, had assaulted hirn, and the appellant's face was swollen and his eye inflamed~ The appellant stated that he could not properly identify those who had attacked him; but he f'ertainly did not allege that the deceased was one of his assailants. That is the only evidence as to such ~ straggle,_ and the prosecutio,· was 0 noblo to eCdur 0 any evidence ori this mo/• 2 Howeve~ at about 7.00 porno or 8000 Porn~ the same evening, • th~ appellant was seen by Po Wo 5 and P,.,Wo 7 entering Bakari' s · pombe place where th~ deceased and 4 or 5 of his cor.-.panions were seated.. Accprding to ~.Wo5 ~hari the appellant arrived, he was in a long coat with his arm ihside it. His face was swollen. As he'entered he told the group "I am· lookin.g for the man who has beaten me during the afternoon" o P ■ W. 5 then ordered all of them to leave 'the prerriises to avoid trouble. The deceased left· by the back door anq the appellant and the deceased• s companions left by the front door; and that was the end of the matter. P.W. 7 gave somewhat sir:-ilar evidence, but added that the appellant had a knife in a sheath in his hand. P. W. 7 stated that when the appellant asked the group who had beaten hh, P.Wo7 left immediatelyo P.W.7 ho11ever was also ·a suspect for the murde_rt as he was also arrested by ,, the police at_one stage for the death of the deceasedo P.Wo7 was later released. The appellant denied 'that he had carried a knife to any pombe place .. P.W.8 was fue landlord of the appellant; he testified that bhe 11 day before the deceased was found dead, during mchana" the appellant had a panga and a longish knife.in his possession. The appellant had apparently smashed some sufurias .. P.W.8 took away the panga and knife from the appellant who did not resis~ aryd put them into his own room. The appellant apologised for the darage done to the sufurias and promised to refund the loss. The appellant then left •. About 9.00 p.m. the appellant had returned and was having a heated argu~ent with his wife in the appelant•s room. P.W.8 complained of the disturbance which was disturbing P.W.B's sleep~- and the appellant and his wife then kept sileht~ . . I The following day, after the discovery of t:he dead body, the police visited PoWoS 1 s premises and took away the panga and knife., was At the tr_ial however, no kriife or p8.nga ;produced as anexhibit. According to the medical evidence, the cause of death of the deceased Wos ?lie to haernothorax following liver injuryo There was a P,en~trating wound on the left auxiliary area going deep into the chest. The heart was cut under the left ventricle., The deep cut was causad by a sharp and pointed instrument like a long knife or a spear. Thetappellant denied that he attacked the deceased or anybody, and clah·,ed that he had rernain~d at home on the material night .. That, in brief, is the evidence on which the trial judge convicted the appellant .. The trial judge realised that the evidence against the appellant was circumstantial.. He believed P. Wo 7 •that the appellant had gone -, ~ j \ ,,.~ ' '3 to Bakari' s po!T'be shop ar•11ed with a knife,, and that the appellant went there looking for his assailantso He believed that the appellant asked the deceased and his group who had assaulted himo He found that the cap found near the deceased belonged to the appellant o In his judgment the judge said interaliao "In mY judg,.ent, however, not even the defence is privileged to rely on specul~tion 00000 In this case there was no evidence'. of a qu~rrel involving or connected with the deceased except the fight in Senge's stereo· r·:r~ Kashumbugu also wondered why the accused should go for the deceased instead of the deceased's colleagues who·were st9.lid toc:be the real assailants and with whom the accused left J.Viwanaidi' s houseo That is of course interesting and no doubt the accused has the answer. But 000 ■ 0 ■ the deceased's colleagues cuuld not stand there to be attackedo They must haveiirun away. We also know the accuse.ct Is knife was then in its sheath. The effort to retrieve it, while chasing at the same time, have given the opportunity to escape. , It was different with the deceased who had taken his 6wn route through the back door. '· He might have taken things easily, the accu_sed not l;)eing in sight o It was easy for' such a person to be surprised and killed,, But pertinently the body was found a mere 2·00 paces from J.Viwanaidi's house .. It is difficult to think that another person was lurking in the vicinity and intent on co,.mitting the crime". With respect, there is consid~rable ~peculation in this passage, and speculation, as the trial judge has said, is not something for either the prosecution or the defence to rely ono P.W.S had stated that he / (} ordered the appellant and the others out~ and they obeyed o There was no evidence that the appellant chased after anybody. In any event according to the judge, he found that the appellant must have chased after the deceased who had exited by the back door 7 caught up with him and stabbed him to deatho It was at about 8000 p .. me that night. If that was so, how could thE deceased's body be found bleeding the following morning at about 8.00.aomo o:r 9.00 a .. m.? The deceased had suffered a deep wound, and the heart was cut., The fact th~t the body was still bleeding the following "orning n•ust indicate that the stabbing must have been done some considerable time after. rridnight. By 9.00 porno the appellant was back at his home, according to the evidence of P.W,,8. As regards the knife that the appellant was alleged to have carried into Bakari' s pombe pL,ce, it must not be. forgotten that P. W,, 8 alleged that he had disarmed the appellant and the appellant apparently had no \ ,; 4 '• arms when he left his pre~isea. Only ~.W.7 allegedly saw the appellant with a long knife, nobody else had. And P.W.7 was a suspect as well. We are prepared to agree that the cap found near the dead body belonged to the appellant. But that ci.tcumstance by itself cannot possibly ground a conviction. It was certainly a suspicious circumstance; but innocent reasons could be found as to how it came to be there. The judge corplained of the "awkward mentality of the prosecution witnesses, because/ no one came forward to testify on the afternoon fightll. That may well be so, but the inadequacy o& insufficiency of prosecution evidence cannot be to the disadvantage of the appellant. vJe have considered the reasons' the _trial judge has given for his conclusion that the circumstantial evidence in this case leads to the irresistible conclusion that it was the appellant and nobody else"who could have stabbed the deceased .. With respect we cannot agree, for the reasons we have briefly stated. We think there is insufficient circumstantial evidenc~ for the conviction. We allow t-hEt:app-e-al, quash the conviction, set aside the sentence of death, a:ryd,/ o~der ~hat.;i:'he appellant be released forthwith unless ,., day of March, 1985. ( F. Lo NYALALI) CHIEF JUST ICE. ( Ao MUSTAFA ) JU$TICE OF APPEAL ( Ro H. KISANGA ·JUSTICE OF APPEAL_ I certify that this is i:i,_ true copy of the original. - \ -~ . """' l /\/ l / i ( F. I\ ... s. MSHOTE ) I / / / / SENIOR DEPUTY REcfsTiA..f{ - _,,. . . __