peter mushi vs republic 1986 tzca 58 23 july 1986

IK THE COURT O P APPEAL O F T A N Z A N I A AT A R U S H A C O R A M : IvIUSTA F A . J.A«i. MAKAME, J.A. And OMAR, J . A . CRIMINAL APPEAL NO. 7 OP 1986 P E T E R MU S H I . . . . . . . . . . APPELLANT VERSUS T HE REPUBLIC. . . . . . . . . RESPONDENT ! (Appeal from the c o n v i c t i o n of the H i g h Court of T a n z a n i a at Arusha) (Munuo, PRMj dated the 1 7 t h day of December, 1985 . in Criminal Sessions Casas &o. 30 of 1982 J U D G M E N T OF ^ K B COURT M U ST APii, J .A . I > I The appellant was convicted o f m u r d e r on p u r e l y c i r c u m s t a n t i a l evidence. We will seft out below the c i r c u m s t a n c e s and factors relied on tiy the trial court in c o n v i c t i n g the appellant of murder',. The appel l a n t a c c o m p a n i e d the d e c e a s e d on 2.2.81 to go to Ma g u g u for the deceased to c o n s u l t an eye doctor. The deceased was not seen a l i v e after that date. On 3.2.81 the appellant retu r n e d al, one to the house • f the dece a s e d and met P . W . 4 and P . W .6 \vvho lived in the same building. The a p p e l l a n t told P . W . 4 \ t o 30 to the A r u s h a bus stop on the f o l l o w i n g m o r n i n g W i t h two empty crates of beer where he will meet the d e c e a s e d . P . W . 4 f o l lowed the a p p e l l a n t ' s instructions, bu*fc P . W . 4 did not fee the deceased, and r e t u r n e d home with -t£ie empty beer crates. A search w a s made for the d e c e a s e d but without success. In the mean t i m e the appellant hsad disappeared. Sometime in May, 1981, the appellant was seen at a P o l i c e Station as a complainant in an assault case. H o w e v e r there was a coun t e r - c o m p l a i n t against the a p p e l l a n t to the effect that the appel l a n t was trying t* sell a p i s t o l which r e s u l t e d in the assault charge. Three police offi c e r s P.W.ll, P.W.9 and P . “ W .10 carried o u t a search in the a p p e l l a n t ' s premises, hut no pistol w a s found. In the search several bunches of keys were found. P . W . l l had rece i v e d c o n f i dential i n f o r m a t i o n that the k e y s found in the a p p e l l a n t ' s house were connected w i th the d e c e a s e d ' s p r e m i s e s and with the deceased's disappearance. The police t h e r eupon arrested the a p pel l a n t and began investigations. Du r i n g such i n v e s t i g a t i o n s the appellant led the police, P.W.ll, P . W . 9 and P . W .10 to a spot where he said he had travelled w i t h the deceased. L a t e r one Raphael and one P a n t a l e o in a car b e l o n g i n g to Raphael took a w a y the deceased, l e a v i n g the appel l a n t behind. The appellant alleged that the d e c e a s e d and the others p r o c e e d e d further in the car. The a p p e l l a n t showed the police where the deceased and the • t h e r s h a d gone. The p a r t y went there- and discovered a n u m b e r of bones, l a t e r found to be h u m a n bones. At the spot were found a p a i r of red safari boots, a p a i r of trousers, a h a n d k e r s h i e f and other apparel p r o p e i Xj i d e n tified as those b e l o n g i n g to the deceased au'd as worn by him at the time of his departure from his ho u s e to go to Magugu. A f t e r the a p p e l l a n t ' s arrest, an i d e n t i f i c a t i o n p a r a d e was mounted by the P o l i c e and both P.i/V.4 and P . W .6 i d e n t i f i e d the appellant as the pe r s o n who had come t« the d e c e a s e d ' s house and went off with the deceased t* M a g u g u on 2.2.81. At the trial the appellant denied that he h a d gone to the d e c e a s e d ' s house or had accompanied the deceased to M a g u g u on 2.2.81 or any day. He also denied h a v i n g met or seen P . W . 4 and P.W.6. He also denied that he had led the P o l i c e p a r t y which ended in the d i s c o v e r y of the re m a i n s • f the deceased* The appellant stated that it w&s one D o u g l a s who had led the Pol i c e p a r t y to the spot where the d e c e a s e d ' s rem a i n s were found, but that Douglas had escaped from P o l i c e «ustody. It is p e r t i n e n t to note that when P.W.ll, P.W.9 and P . W . 1 0 t e s t i f i e d on the police p a r t y b e i n g led by the appellant, the appellant did not c r o s s -examine the p o l i c e w i t n e s s e s about the al l e g a t i o n that it was Doug l a s and not the appellant who was l e a d i n g the po l i c e search party. O b v i o u s l y the al l e g a t i o n c o n c erning Doug l a s was an afterthought. The a p p e l l a n t was last seen w i t h the deceased on 2.2.81. On 3 .2.81 the appellant told P . W . 4 that P . W . 4 would see the d e c e a s e d at the A r u s h a Bus Stop on the f o l l o w i n g day. The d e c e a s e d w a s nowhere to be seen. The a p p e l l a n t then disappeared. A search for the deceased yiel d e d no results. F o r t u i t o u s l y in M a y 1981 the appellant was seen in a p o l i c e station and it was the appellant who led the police to the place where the r e m a i n s of the deceased were discovered. The appellant cle a r l y told lies, d e n y i n g that he had met or k n o w n the deceased, P . W . 4 and P.W.6. He also denied that he had led the police p a r t y w h i c h discov e r e d the r e m a i n s of the deceased. The trial court believed the p r o s e c u t i o n w i t n e s s e s and reje c t e d the ver s i o n given by the appel l a n t as untrue. A We have duly considered the c i r c u m s t a n c e s and we agree . w ith the trial court that the c i r c u mstances poi n t e d i r r e s i s t i b l y to the appellant as b e i n g involved, either alone or w i t h others, in the k i l l i n g of the deceased. Mr. K i n a b o for the appellant submitted that the f i n d i n g tnat the appel l a n t either alone or in conduction with others, had killed the deceased indicated some doubt as to w h e t h e r the appellant was guilty as charged. With r e s p e c t we disagree. Mr. Kinab* p o i n t e d rut that no motive f o r t h e k i l l i n g had been established. But lack of p r i o f of motive does not affect the conviction. We think that the k i l l i n g amounted to murder. We agree w i t h the verdict of the trial court and dismiss the appeal. DiVTED at A R U S H A this 23rd day of July, 1986 A. M U S T A F A J U S T I C E OF APPEAL I. 1. M A K A M E J U S T I C E OF APPEAL A , M . ii. O M A R J U S T I C E OF APPEAIi I c e r t i f y that t h i s is a true copy of the original. ( j 1; h .v 'm s o f f e ) BSPUTY REGISTRAR