gordian pastory vs republic 1986 tzca 24 29 november 1986

117 TI-I3 CO'JRT OF APP.5/-.L CF tlA at CCA.J^ NYALALI. C.J,« Vu'J.ZLKJ,, and X13 R G n , J,A, czac::iT,x iic. 32. cf 19s > GORBIAH 17 .CTCRY. . . .................... ....... ........ A?PELL-.1JT and OT'Tjr'T' •*/ “TO T% O kT 'V'7V|T/T' (Appeal from the conviction of the High ' Court of Tanzania at Kwaiisa) (Bahati, J, ) dated the 3th day of March, 1986 in Criminal 8essions Case ilo. lQ^of 19^5 JUDG.CIC.SlTT CF T2I3 OCURT M/3E/JCB. J ,A « i The appellant GCRDIAiT PA3TRC.-Y was found to have murdered a per.:on called GOD’/XU CARISTOPZFR. He was santenced to death by the High Court sitting at 3ukoba and he is now appealing against that decision by 3.hati, J, Mr. Butamb ALa, learned Counsel, appeared for him before _-_o« For the res pendent Republic Mr, Tasndwa, learned Gtate Attorney, beg..n by supporting the High Court decision, but during the course pf his submissions he conceded thr.t the Republic's case t/ac wanting.. There was an over—night wedding party at the house of one S.,ar:3GT P AR.'AY, Gome tiue aft ;>r :.nid'.,5.vht P.r.2 A^OPC-LD PCPF left the place in the cospa. y of a -woman called R.3GIHA who had a c ild with her. According to P.R.2, while they were at a house said to bo son© eighty yards from the weddxng place, the appellant, who was with two othor persons later charged with him but who ware acquitted, arrived there and the appellant threatened to rape Regina, It is cordon ground that a fight ensued, during which the deceased, who had come to see what /- • •' - 2 - the commotion vr:.s about, was himself jsaulted. The doctor who ex3.miri.sd his body found him to have sustai. ad a fracture of the neck, x In convicting the appellant the learned trial judge relied mainly on the evidence of P . ¥ . 3 GR!j>GCR'.r C'k.iliGTIU JT , which he found w-\s corroborated by th..t of P.W, k 0 CHRaSTOPHBR and P.W.l KIIZA. The learned judge also felt himself fortified by the statements the appellant's co-acc _sed had made to the Police in the course of investigations, We h;.ve carefully re-visited the evide nce on record and c isidered I-'ir. Butambala's submissions u’licli ‘re find to have merit, P,W,1 who had told the court that the appellant returned to the scene after the original fracas and that he saw him, the appellant, hitting the deceased with a stick, agreed, on being cross-examined, that he did tell the police that he never really witnessed the assault as he had gone off to call P.W,4, We are of the view that P,¥.3'3 testimony should have been examined and analysed with greater care. He is the one who said that when he was walking away from the scene with the deceased, after a fight in which he intervened, ha heard t17G jQOXG© of 3. stick, "pu", when he w..s bending down to do a shoe-lace. He ran towards the deceased, whom he found prostrate and wriggling on the ground. The appellant w:.s th^re and ca rying a stick, and he ran away, but was apprehended by P, '.7.3 with the help of P.¥.4 who had just arrived at the scene*, In his sworn evidence, the appella. t did not deny being at the scene, and he said he first fought with P.W.2, A group of people then arrived and among them was the deceased. He fought with the deceased as well, and during thr.t fignt GR.SGORY, the star witness P.W.3, hit h i m , the appellant, with a stick. It is on record that both P.W, 3 sa-d P.W. 4 were trembling wnen they wore testifying in co‘ rt, which c m be significant. 3 Quite obviously L?».¥.4 --’id not witness the alleged fatal assault and, as observed, P.77.1 did not really see the appellant hitting the dace .sed with a stic : despite his earlier assurances. The learned trial judge W '- . g satisfied that 1there are clear indications of lying here and there’ and we are respectfully of the s.:.:;"e view. he do not think that the appellant's conviction can be sustained on the evidence of P.¥,1, P.¥.3 and ?.¥.4. and lir, Butaxnbalais ciuite ri.rnt that the statements * by the appellant1s co—accused cannot be taken agr....:.:.st the appellant, considering their exculpatory nature. ¥e note that all the three assessors who assisted at the trial advised that the appellant w.-.s not Guilty. We are unable to uphold the c r:.w:.ction, Consequently we allow the appeal, quash the convection and set aside the sentence* ¥e order that the appellant should be released iaaedi „tely, unless he is otherwise lawfully in custody, D T7DD at K h A this 29th day of November, 1936, P. L, ITYALALX C H IF F JU3T.CC ID L. M. M/dCihlF JUok OF . C9 I 'l . k _L i >h.“- J J : k . Ck c f a ,L I certify the.t this is a true copy of the original, J . H . 113 O F F -1 d :d:?'JT7 k.o kOTik.