19850321 TZCA Dar es Salaam

I . IN THE COURT OF APPEAL OF TANZANIA ~r'Y' l-'J'9 r~;t AT DOL>0MA. 0 (CORAM: NYAtALI 2 C.J •• MUSTAFA. JeA. ~nd KISANGA 2 J.A.) CRIMINAL APPSAL'NO. 3 OF 1983 .. _" ,lli'-E ,T\W .E .E. N • MUSTAFA IBMHilVI • 0 0 0 I' e O O O O O O O O • O O • O O O o ♦ 0 O e o O .C, • .A-PPELLANT- ' and ~ 1 THE REPUBLIC ••••••• ; ••••• • • • • • • • •••• •••••••• REfflPONDENT (Appeal from the Judgemsnt of the High Court of T~nzania at Singida) (EEbn. W. J. Maina ~ JT. ) dated the 18th day of December, 1982. ' in Criminal Session Cas:e No. 9 of 1982 JUDGEMENT OF THE COURT MUSTAFA 9 J .A. The appellant was convicted of murder in the High Court and the conviction was based on the sole evidence of P.W.l &ha Abdallah. P.W.l alleged that the appellant was her lover, and at the time of the killing, P.W.l was a,bout 16 years· old and unmarried• P.W.1 was living in a house with the deceased, her grand-uncle. or grand-father, an old man practically blind. The appellant used to visit P.W.l and used to have sexual intercourse with P.W.1 in the house, 9,nd it appeared that the deceased objected to those proceedings. P.W41 also stated that the deceased also objected to the appellant marrying P.Wsl. On the night in question,, by previous arrangement_, the appellant was to visit P.'"JJdl in her ho'J.se. When the appellant arrived; the deceased w8.s fast asleep. B'oth P.W.l and the - deceased used to sleep in the room on the floor, there being no bed. j]'he appellant then told P.W.1 that he wanted to kill the deceased as the latter was an obstacle to their continued union, but P.W.l told the appellant,not to do so, as P.W.l was prepared to elope with the appellant,llack of permission notwithstanding. P.W.l said she did not take he appells.nt's threat to kill seriously. However the appe lant meant what he said. The l appellant got hold of the sleeping ~an by the throat and throttlect. him and dragged him out of t~e house. ~en P.W.l heard a sound, as she said, like 11 Puu 11 , indicating that· the appellant had hit the· deceased·0 The appell3.nt then came back into the house alone nd a collected the dleceased 1 s clothes dn a container. ~ \ I V. r I I I I 'Fhe appellant dragged the deceased 1 sl body some distance fr.om the. I ),house, and he compelled P~W.l to accompany him to the place where I the appellant hid the deceased's c1dth2s. The appellant threatened to kill P.W.l if she divJlged I •. what she had seen to anyone and warned P.W.l not to raise a::iy alarm which could I result in the appellant being impri~oned. If that happened, the appellant stated that when he was ffeed he would then deal with her. . I After the appellant's departure from the scene P.W.l stated she was still in fear of the threat/made by the appellant and did nothing. At sunrise she howeve~ want to her father's house nearby and asked her father if he kAew the whereabouts of the . I d.eceased;. P. W.1 said she was even then under the influence of I the threat$ uttered by the appellan~e Then under intense questioning by her father and by th~ village Chairman:, among I others:, (at one stage the village Chairman threatned to beat. her . I with a stick), she disclosed what she had seen the previous night l. and told the questioners that it was the appellant who had killed the deceased. II I The deceased ts body was found iabout 70 paces from P.W.l's I house and according to the post mortem report death was due to severe shock and trauma from intradranial haemorrhage.· filere was I a wound on the face probably causeq by a blunt object, resulting in a depressed skull fracture. There I were bruises on the • elbow~, right hip and buttocks which w~uld llsuggest that the body had been dragged along .the ground. The village Chairman , P.W.3 Maulidi I testified confirming P.W. l's evidence about her initial reluctance to tell her story and to I • discovering the d.eceased's clothes/at the spot as shown by P.W.l. P.W.l's father P.W.4 also confirmed P.W.l's visit to hi~ one early J morning enquiring about the whereabouts of the deceased and of his I . discovery of the drag marks from the house of P.W.l to where the I deceased's body was found. / The appellant consistently de~ied P.W.l's account of the . I . incident. He admitted he used to risit the deceased. He said he was in his house asleep from 9.00 I p.m. and never left it on the material night. He admitted he lmew P.W.l and said that he had refused to marry P.W.l and he sugJested it was because of his ' refusal that P.W.l had: told lies against hirm. He suggested it was P.W.l who had killed the deceased} He denied he had been P.W.l's lover. He in effect raised a plea of alibe. He called no 3 " ~. witnesses, although he said he was marriE;d and had two children. 1.Ilhe trial judge appreciated that P.W.l was a young girl, and was the sole witness against the 3ppellant on a very serious charge. He carefully considered the evidence of P.W.l, taking into consideration the fact th1t she did not raise an alarm at the first opportunity nor did she inform her father of the incident early the following morning, until ti·e disclosure was forced from her. He however accepted the explana.tion P.W.l gav-e of her behaviour, and believed P.W.l when she stated that the threat uttered by the appellant was still operating on her mind the morning following the killing. ']he trial judge said that he: u·observed this witness very carefully when she testified, and I was impressed by her demeanouro S·he :is a simple peasant who impressed me as a witness of truth. She remained. unshaken by cross-examination". The trial judge believed P.W.l's. evidence, as indeed did the two assessors. The judge was satisfied that in the circumstances P.W.L could not possibly have been mistaken as to the identity of the appellant. Ire considered the alibi put forward by the appellant, and since he was satisfied that P.w.1•~ evidence was totally true, he rejected the alibi as false and a lie. He convicted the appellant on the ~vidence of P.W.l Asha alone. · Mr. Mbezi for the appellant before us has submitted that the trial judge had erred in relying on the evidence of P.W.l. He submitted that at the very least P.W.l was a witness who had an interest to serve as she was sleeping in the same house as the deceased when the deceased was killed~ P.W.l's evidence was therefore suspect. However the trial judge did subjGct P.W.l's evidence tci close scrutiny, and for good and valid reasons concluded that P. W.1 was enitirely truthful. He took into account all the circumstances. Despite the fact that there was no evidence from another source to confirm the testj_mony given by P.Wol, we ourselves are satisfied, from a careful review of the evidence that the conviction was sound. -. ... /4 . . day of March, 1985. (Fo Lo NYALALI) -CHIEF JUSTICE . (A .. MUSTAFA ) JUSTICE OF APPEAL