19850513 TZCA Dar es Salaam

JN THE COURT OF APPEAL OF TANZANIA (COtll!tv1: MUST.AF~, J.Ji.; f1iAKllME, J.ll • .And KIS.ANG.A, J,.1t• CRIHIN.AL .APP.EAL NO. 35 OF 1985 Between FR~NCIS OGOMBE • • • . . • • • • • • • APPELLANT Jlnd THE l1EP UBLIC. • • • • • . . . • • • RESPONiJEl..,l"r (Appeal from the conviction of the High Court of Tanzo,l,nzania at Mwanza) (Foil• Munyera, J.) dated the 1st day of November, 1984 in .9!i!!1inal Sessions Case No. 15j of 1983 JlJtOMENT OF THE COURT MUST.AF.A, J .A.: 11"'1• _ Elppellan t was charged with and convicted of murder. There was ev1:d.ance that the deceased, a woman, had some trouble with the appellant's wife over some money matter, so much so, that the matter was referred to the village authorities. One night in January, 1982 at the house of P~il.l, the son of the deceased, the appellant was alleged to have shot an arrow at the deceased which struck har killing her more at less instantly. p.·vJ.l was there with other members of the family. W-hen P• ~,.1 heard the deceasec.1 cry out on being struck by an arrow, he shone a torch which he was in the process of handing over to the 1.1.ecea sed and saw a man running. When the torch was shone on the running man, the man turned and threatened. to shoot P. ,;. 1 with an arrow. The man then turned back and ran off. Poii.l testified that he had full oppo.ctunity of seeing the man with his torch light when the man turned facing him. The man wa.s. only 2bout 30 paces away. The man was the appellant who was P.vJ. l's co-villager and whom P. ,'1.1 kn-aw very well. P.,1.3, p.·,v.l's brother, p.w.4, p.v;.1 1 s brother-in-law and p.w.5 the fc::ther all gave evidence on the line of P. iv. l. They .3ll stated they saw the appellant when he turned round to face th.em ~nd threatened them with an arrow,, They were a 11 in the same ar/4.ien the inc.idoxrt took place. ✓- ·,- h .... . ! ;: . ,.ll!lJ.; 2 Mr. Jjutambsla for the appellant has contended that all the prosecution witnesses were members of the same family and their testimony should therefore be suspect. However the trial JUu. 6 e uid consider this aspect of the matter 1 and concluded that the prosecution witnesses were truthful. Mr. Butambala also submitted th:it as it was at night the oppcrtunity for identification was not favourabla, anu. the prosecution win tnesses might have been mistaken. We do not t~1ink that the possibility of mistaken identity could arise in the circumstsnces in which the prosecution witnesses alleged they had seen the appellant. They knew the appellant very well, and the torch was shone on his faceo The appellcnt alleged that he was not the one who had :1 ttacked the deceased and that he, in fact, a ttenctecl. the alarm when it was sounded the material night. The prosecution witnesses all t.:Jstified that the appellant did not show up 1'1h.en the alarm was sounded, although / he was a·neighbour. The trial Jud._;e,:rightly in our view, disbelieved the appellant, In fact there was also evie1.ence, which the trial Judge, accepted, that footsteps from the deceased led to the house of the appellant. In all the circumstances we b·e1Lv8 that the conviction was justified. Before we conclude, we have with regr.a.i, to point out ·tnat the notes of the surruning up by the trial Judge to the assessors were very unsatisfactory. There was not even a reference to the burden of proof• It is an example of what a summing Up sho ulct. not be. We dismiss the appeal in its entirety. _.,.. - ---~ .,, ' /<:} ~ :.- 'nl~;a~,t~M;il,NZA this 13th day of I-Oay, 1985. . , . ._, I I ,·. . . ·\-,,_..:}, \o . . ~ / \.t, ...... • I •,-,;'.•"', \ ,'..' ; 'J.•, -1 A r•r.J U"TAF A ~ • \\ i fJ ' ,. J I u 11 '\ ,,, I '• . . , . ,-}{;:' (!:'"1.' J . , ·'J ·'t ... Il • JUSTICE OF .APPEAL ·,i. .. '., ...·. ..._.,L ,. >v j \ '\ ''(' ' , ··-~, ~ ,::._ -~---- \: ~-- .· ,; --,:,; ·'- __ ...:;.,."··· / ~ . I ~/ "'-1, , I' L. f;~. M.AK.AhE J US·rICE 01i1 APP .£~.\L ...•. ·,J/,.. 3 R • H. KISANGh JUSTICE OF APPEAL that this is a tru~ -6opy of. the original. " .::.: • ' - ~ ~ I ••• ... ...\.,.:I.:-(. •" (B·~·"p~- l\10SHI) .. <::;·· .. .~::_~.\ ·..~. SEN 10,l DEPUTY REG_Isr..i.A ,{. t