19850321 TZCA Dodoma1

. ..- £ IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM NYALALI, COJO, MUSTAFA, JoAo,nd KISANGA, J. A.) CRIMINAL APPEAL NO 0 2 OF 1983 B E T W E E N MAKALA KIULA APPELLANT a n d THE REPUBLIC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at SINGIDA) (HOn. W.J.Maina, J.) dated the 3rd day of December, 1982, in Criminal Session Cse No 0 70 of 1981 • JUDGMENT OF THE COURT NYALALI, C.J. The appellant, namely MAKALA KIULA, was charged and convicted in the High Court at Singida for the offence of murder C/s 196 of the Penal Càde and was sentenced to suffer death by • hanging 0 He was aggrieved by the convictioh and sentence - hence this appeal to this Court Mr 0 l±mwike, learned advocate, represented the appellaht Whereas hr 6 Lyin Senior State Attorney, appeared for the Republjc e A great deal of primary facts which nre relevant to this appeal are either not in dispute or co mon grouhd between the parties. ( . On the 7th June, 1978, one Kilie hsengi a resident of hgela village in Iramba district, died at Kiomboi government hospital where she had been taken by the police for treatment the day before. A postmortem examination conducted at the hospital eLowed that the deceased died of shock due to a stab wound in the abdominal cavity. She had been brought to the Police station at Kiomboi in a Critical condition by her relatives and fellow villagers, including the village Chairman, that is, the third prosecution witness (P.W.3). Earlier on or about the 5th June, 1978, she had been stabbed in the abdomen with a knife while she was at her home with her nephew, that i.s, the second prosecution witness (P.W.2). Her husband, that is the fifth prosecution witness (P.W 0 5) happened to be away at another house in the village where an alarm had been raised. The incident occurred at about 9.00 p.m. but the sky was cl';udless. - 2 -. The assailant of the deceased ran away but an alarm was raised and many villagers., including the husband of the deceased, gathered at the scene. Later that night, the appellant was apprehended at his home by members of the people's militia and was taken to the home of the deceased., Subsequently, the appellant was taken and handed over to the Police at Kiornboi. With regard to matters which are in dispute between the parties,, it is the prosecution case that the appellant is the person who stabbed the deceased. On the material day, the appellant visited the deceased at her house and successfully demanded to have sexual intercourse with the deceased. Thereafter he demanded to be given a hen but the deceased refused. In retaliation the appellant stabbed the deceased with a knife and ran away. On his part, the appellant denies the allegations made by the prosecution and puts forth an alibi to the effect that he was at his home with his wife at the material time. The first point for consideration and decision concerns the appellant's alibi. The learned trial judge considered the alibi and rejected it on the basis that the appellant's failure to call any witness, particularly his wife, who he could easily call to support him, rendeied the alibi worthless. The learned judge relied on the decision of the Court of Appeal for Eastern Africa in the case of LULAIA,.V, R.(194.1) EAçA 46 where it was stated, "If a person charged with a serious offence alleges that at the time when it was cbmidted, he was in some other place where he is well kn6wri and Yet makes no effOrt to prove that fact, which if true could easily be proved the court must necessarily attach little weight to his allegation particularly in the face of such definite evid.ence of identity as there was in this case". We agree with the views of the learned trial judge concerning the appellant's alibi in view of the strong evidence adduced by the prosecution as to the identity of the appellant as the assailant. The other important point for consideration and decision in I this case is whether the appellant is the person who stabbed the deceased. The learned trial judge relied on two pieces of evidence in considering and deciding the issue. Firstly, he took into account the evidence of the nephew of the deceased (PW.2) and stated: "I-ks regards the evidence of Ramadhani Lyanga there is no dispute that he knew the accused before. So although it was at night, the witness could recognize the accused because the night was starlit. The accused had passed only about two paces away from where - 3 - P.W.2 Ramadhani was sitting, near the door of the house where the deceased was. The witness saw the accused entering the deceased's house. The witness who was fa' iliar with the accused heard the conversation between the accused and the deceased0 This conversation took place inside the deceased room about five paces from the spot where P.W.2 Ramadhani was sitting. Under these circumstances, P,W 0 2 Ramadhani could not have made a mistake on the identity of the accused..00." Mr. 'limwike, for the appellant has attacked this approach of the learned trial judge. He has submitted in effect that this is a case of a single identifying witness undercircumstances which were not favourable to easy and correct identification of the intruder. We accept Mr. 'limwike's contention0 Although, P.W.2 Claims that the night was star-lit, it is not clear from the evidence how good the visibility was as a result of star-light. Moreover, P.W,3 who is the only other witness to talk about visibility, makes to mention of stars. He spoke only about a cloudless sky. We think it is unsafe to act on the uncorroborated evidence, of P.W.2. The learned trial judge relied secondly on the dying declaration made by the deceased to P.W 0 2, P.W.3, P.W,4 and PW.5 in which the deceased named the apoellait as the person who stabbed her with a knife, and stated "Furth e r to the evidence of P.J,2 Ramadhanj which I have accepted, there is the deceased's dying declaration. I warned the assessors to be very, careful in accepting that dying declaration. Under section 34(6) of the Evidence kct 1967 as amended by Evidence (A mend men t) Act No. 19 of 1980 a statement by a person who is dead, relating to circumstances which led to his death, is admissible. Now the deceased related in detail what led to her death and she named the accused as her assailant. There was a fire burning in the room and, as the gentlemen assessors said, the fire enabled the deceased to identify the accused. There was a conversation between the accused and the deceased and there was no confusion which could have made it difficult for the deceased to recognize the accused. The evidence is undisputed that the accused' used to visitti'e deceased's home. Theaccused himself admitted that ..... /4 0 - 4 - h v he even once had sexual intercourse with the deceased. His village was near the deceased's village. So here there is clear evidence that the deceased knew the accused before and because of the light provided by the fire in the room, the deceased was able to identify the accused without any difficulty" The learned trial judge however felt that there was need to look for evidence to corroborate the dying declaration and he found corroboration in the evidence of P.W.2. However, an uncorroborated dying / declaration can support a conviction if the Court is satisfied that it cannot but be true according to the circumstances under which it was made (see the case of R. V. Eljgu Odel (1943). 10 E.AOCOAO90)O The circumstances in the present case are that the appellant had been a lover of the deceased; there was a fire burning in the room where the appellant found the deceased; there was also some conversation between deceased and appellant, and lastly, the accused had sexual intercourse with the deceased prior to stabbing her. These factors establish that the deceased could not have mistaken the appellant for someone else. Foreover, the deceased's consistency in her statements to P.W,3 P.W,4 and POW,5 is a strong indication that she was truthfUJ.. But if corroboration is necessary the evidence of P-W.2 provides it. We support the conviction the appeal in its entirety. Dated at, 'ID(IYONA this 2i4\ay of fiarch, 1985. .. (F. L.. NyALALI) •j CHIEF JUSTICE . ( A. MUSTAFA JUSTICE OF APPEAL R. H. KISANGA) JUSTICE OF APPEAL (. I certify that tis is a true copy of 7 - igina1. N - -, • .. r- ( B% P • MOS HI /• SENIOR DEPUTY REGISTRAR