19850723 TZCA Dar es Salaam2 1

.I 11 1!· IN THE COURT OF 1.IIEAL l ;1 OF TANZANIA AT .AF..U SHA \ ;f I, ~,, :I ( CORAM: MUST1\FA, J. li..; 'Mi.RAIVIE,I' J. L. Jmd KI SAN GA, J. A.) CRIMINAL .i"PFELL(lNd. 5 OF 1985 ' 11 ' BETVvEEN '.i l I ' ii 11 . LOSHURUNYE NDEITI @ M.ARI DADI •..•••• l.PPELL.ANT 1 . n 11 .AND i · H· i 1 • . \ · ._ THE REPUBLIC •••••.••• ~ .• 1••••••••• RESPONDENT ( Appeal from the co*v~'.ction of the High Court of Tanzania at Arusha) ( Chua, J.) dated the ;25th day of .April, 1984 , I; : I 1I in i' .I I " Criminal Sessions Cade ~o. 43 of 1982 _;_ ____ _!L_ I I[ 11 JUDGEMENT OF THE COURT 1! 'I· MtJ ST.tiFi: 2 J •A,.: ·l 1 1 Th e a.~pe li ... 11 ai; t was . c h arge d;;. wi. th an d convic . t ed of I[ ll murder. The facts as found by the trial court are not JI 11 disputed by the counsel 'for the: appellant and briefly I 1r II they are as followi~ (" I 1 1 l P. W.l Jeremiah •· is a. tali 'driver. Jli • :I P. W.l testified that at about ,.oo a.m. on 28 .. -7/.7~, the appellant hired 1 his taxi. The appellant was ifac c~mpanied by another IX9rson 1 who does not concern us. The t axi was hired to go to Ngara Mtoni. ·. On the way the !lap:pellant and his friend il i· I stopped the taxi and the friend,i got off and went away. Two other people then joined !f,the appellant in the taxi. ' •I At that sta6 e the appellant ~at': in front with P. W.1 9 and the I I, other two paesengers occupied the rear seats. As the texi neared the Kwa Iddi area the ;lapbellant wanted P. vL 1 to .1 11 proceed to a place on the Dodoma Road. P.W.l only agreed to the extended journey :on aJ·1 ehhanced far_e. The original [ Ii fare was she. 30/-; by agreement it was raised to shs.60/-. . :r 'i , (, H , I P. W. l stopped at a place 'along the Dodoma Road and the l' ;i two rear pass e,gers got out. ,\ p', W.1 went. to open the door 11 ,: for the appellant to get out •. :As P.W.l was returning to 1 ' ii I' his driving seat, the appella;nt'i pulled out a pistol and . ~ ~ . . I[ ,1 II \I 1. · • ,I .I 2 ordered P. W.l to disappear if he did not wish to be kille.d. P.W.l m2naged to hold the hand of the appellant which held the the pistol and in the st:::'"1c;:;:-le !_ • appellant got to the back of P. W.1 and shot him through the back. At th2,t same moment one of the two pass~ngers who had got off the taxi returned and was about a yard in front of P.W.l. The shot which went through P.W.l hit that passenger. P. W.l lost, conecio~srL,:~o t~Ren he recovered his senses P.W.l found that he h8-d been :sbot, the bullet having passed through his body. P.W.l was bleeding. Eventually P.W.l obtained help and was taken to bospitala P.W.l later went to the_ mortuury wb~:::-·1 :··_; identified a dead body as the :: ·, '• passenger who was in front of P.~.l when P.W.l was shot oy the appellant. The deceased had died of a bullat wound resulting in shock due to internal haemorrhage which caused death, according to the post-mortem report~ The appellant denied that he bad killed the deceased or fired any shot. The appellant also alleged that P.W.l had been coached by the police to identify him as the killer and .in fact the Police had arranged to place P. W.• l in the prison where the appellant was inc..arcerated in order to identify the appellant~ The trial judge convicted the appellant as he was satisfied that the appellant had intended to lcil ...:·.W.l or cause him seri~us harm, but in the event had killed the deceasec. instead. H2 WE8 satisfied that P.W.l could and did identi)~',J the appelJ ar,;:;, P. W.1 had ample opportunities to identify the appellan-,, The appe].lant had engaged him in broad day light, had sc: -=: with him on the front" and had discussed the increa:,3e of taxi fare. P. W.1 had spent a good deal of .. .'.. : · ~ ~:;:- tlle appellant. Further both P.W.3 and P.W.4 1 ':r'€?-'il1'4.-w~,J.-'uf the deceased had testified ..• that on the material rno:rn-·.ng, the deceased had joined the appell,ant at the a})I)ellant' s request. We believe that in the circumstances tho ;~udge was ju,stified in finding that P. VY .1 did identify -:-1 e appellant. No identification parade strangely enough; vms mounted on this oo<~asion. OH ./3., L rI 3 . ·... '• But in the circumstances such failure to mount a parade did not affect the identification issue. Mr. Ngalo complained of the insufficie,{cy or inadequ~)tCY of identifi_cation in this case. We have considered bis submission on this score and we are not persua~ed by bis contention. The defence put up by the appellant is clearly bogus and must have been an afterthought. It was not put to P.W.l when P.W.l was testifying. We think the judge wss right to have found that the circumstancial evidence pointed to the appellant as the only person who could have killed the deceased. which is dismissed. day of July; 1985 '' i 1L MU STAFJ~ , "" .,r. .., JUSTICE OF APPEAL \~,~tj,, __ ~,, :l ;.;-n - "~.::---=-:~~ L • M. JV.:JJ(Al\llE JUSTICE OF APFJ1iL lL H. KISANGA JUSTICE OF APPEAL I certify of the original.