19850323 TZCA Dodoma

LLI - - - 0 . IN THE COURT QP APPEAL OF TANZANIA 101 AT DODQMA (CORAMI NYALAL± C0J, MUSTAFA, J.A., and kISANGA.A.) • CRIMINAL APPEAL NO. 12 OF 1983 B E T W E E N RAJABU - f' KUNGU 0000 000 000000O0000000 O00O APPELLANT arid T HE REPUBLIC 00 00 0 0 Oà' 0 000 00000 00000 00000 0RESPONDENT (A ~ peal frbm the conviction of the }1i,gh Court of Tahzani2i at SINGIDA) (11on .S.1<Lugakingira, .J.) dated th da' of'arcIi; 1983, in çr.irpai Sessions Ca5eNo.46 of 1982 jUDGMENT OF THE COURT MUSTAFA,JOA The appellant Was cinvjcted of cnurderoii purely circumstantial evjdence. He is appealing against his conviction. One morningi pssiby at about 8.00 a.m. or 9.00 a.m. the body of thedeceased was foUnd lying on the ground, with a stab wound; the deceased was dad. Near the dead body was a cap,.'with a pointed. end front and rd lining at the opening in the back. A nuber - of co—villagers of the appeliant i.e. P.W,5 1 .P.W.6,.P.W.8 and POW,9 recognised the said cap, which they'alleged was hbitual..ly worn by the appellnt Two witnesses P,W 0 2 Sälehe and P.W,3 Magdalena tetjfied that when they saw the deceased's body on the material morning, the -b6dy.was still bleeding from the stab wound, The said cap-was an item readily available for sale i*.the shops, but in the vIllage in question, it would seem n1y the appellant used to wer it4 Hwver the appellaht denied that he had ever owtiêd such a cap. He deriied that the cap found near I- the dead body was his The day previous to the finding of the dead body the appellant had been drinking in a few porrbe houses in the village. So were the deceased and a group of the deceased's corpanions.. According to the evidence of the appellant, at about 4.00 p.m. or 5.00 p.m* at a porbe place, presu' ably Señges, the group with the deceased, due to some and the appellant's face altercation, had assaulted hi,. was swollen and his eye inflaned. The appellant stated that he could not properly identify those who had attacked him; but he rertainly did not allege that the deceased was one of his assailants. That is the only evidence.as t0 such a straggle, and the prosecutioa was uble to adduce ay evidence on this nattor. • /2 .000/ -2- However at about 7.00 p.m. or 8.00 p.m. the same evening, the appellant was seen by P.W 0 5 and P.W.7 entering Bakari's pombe place where the deceased and 4 or 5 of his cor'.panions Were seated. According to POW.5 when the appellant arrived, he was ma long coat with his arm inside it. His face was swollen. As he entered he told the group "I am looking for the man who has beaten me during the afternoon"0 P.W,5 then ordered all of them to leave the premises to avoid troub1e The deceased left by the back door and 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 similar 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 hir, POW,7 left imrrdiately. P.W.7 however was aiso'a suspect for the murder, as he was also arrested by the police at one stage for the death of the deceased. P,W,7 was later released. The appellant denied that he had carried .a knife to any pombe place. P,W,8 was the landlord of the appellant;., he testified that the - 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 res1t and put them into, his own room. The appellant apologised for the damac,re dohe to the sufurias and proPised to refund the loss. The appellant then left. About 9.00 p.m. the appellant, had returned and was having a heated argument 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 silent. The following day, after the discovery of the dead body, the police visited P.14,8 1 s, premises and took away the panga and knife. was At the trial however, no knife or panga /produced as a exhibit. According to the medical evidence, the cause of death of the deceased was due to haemothorax following liver injury. There was a penetrating wound on the left auxiliary'.area going deep into the chest.. The heart was cut under the. left ventricle. The deep cut was causGd ;.. by a sharp and pointed instrument like, a long knife or a spear. Thftappellant denied that he attacked the deceased or anybody, and claimed that he had remained 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,W,7 that the appellant had gone • e 0/3 0 - .. 0 .. - 3 - to 8 akari's pombe shop armed with a knife, and that the appellant went there looking for his assailants0 He believed that the appellant asked the deceased and his group who had assaulted him0 He found that the cap found near the deceased belonged to the appellant. in his judgment the judge said interalia, "In ffiy judgrent, however.,, not even the defence is privileged to rely on speculation .,,..In this case there was no evidence of a quarrel involving or connected with the deceased except the fight in Senge's store0 i'r. Kashunbugu also wondered why the accused should go for thedeceased instead of the-deceased's colleagues who weke s.d tobe the real assailants and with-whom the accused left f'wanaidi's house. That is of course interesting and no doubt the accused has the answer. But ..,... the deceased's colleagues cuuld not stand there • to be attacked. They must have run away. We also know the accused's 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 own route • through the back door. He might have taken things easily, the accused not being in sight, it was easy for such-a person to be surprised and killed. But pertinently the body was found a mere 200 paces from Mwarjajdi's house. It is difficult to. think that another person was lurking in the vicinity and intent on cor-.mitting the crime". With respect, there is considerable speculation in this passage, and speculation, as the trial judge has said, is not something for either the prosecution or the defence to rely on. POW O S had stated that he ordered the appellant and the others out and they obeyed. .There was no evidence that the appellant chaed after anybody. In any event according to the.jiidgel he fouhd that the appellant must have chased after the deceased who had exited by the back door, caught up with him and stabbed him to death. It was at about 8.00 p.m. that night. If that was so, how could the deceased's body be found bleeding the following morning at about 8.00 a,m, or 900 a.m.? The deceased had suffered a deep wound., and the heart was cut. The fact that the-body was still bleedin g the following .orning must indicate that the stabbing must have been done some considerable time after rridnight. By 9.00 p.m. the appellant was back at his home, according to the evidence of P,W,8 O As regards the knife that the appellant was alleged to have carried into Bakari's pombe place, it must not be forgotten that POW,8 alleged that he had disarmed the appellant and the appellant apparently had no ... /4. w _4:_ 'arms when he left his preises. Only P.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 appellant0 But that circumst"ance by itself cannot possibly ground a conviction. It was certainly a suspicious circumstance; but innocent reasons could be found ai to how it came to be there 0 The judge corplained of the "awkward mentality of the prosecution witnesses, because / no one came forward to testify on the afternoon fight". That may well be so, but the inadequacy , insufficiency of prosecution evidence cannot be to the disadvantage of the appellant. We 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 insuffit4ent circumstantial evidence for the conviction, ' We allo appeal, quash th conviction, set aside the sentence 'of det, that the appellant be released forthwith unless othwj1fufl held 0 '' (I / DATED DObA this 23rd day of March, 1985. lei F. L. NYALAL,I CI JUST ICE A. MUSTAFA JUSICE OF APPEAlI R. H. KISANGA j JUSTICE OF APPEAL- /L '—T--. I certfythat"t'\is a true copy of the original. : ,. 7 'I - - 1 - ( F. S. .MSHOTE /SENIOR DEPUTt * 11