gordian pastory vs republic 1986 tzca 77 29 november 1986

HJ T K 3 COURT OF A P P E A L OF T A I'LA iT IA AT 1'^.IT S A CO^-K: WYALiXir^C, J; S'MAZiXS, -fr.A. and XI3 iTGA. J.A. c?.nc:iT/x APP-iX n c. 3?. o f 19 c 1 G O R D IA N lY.GTC: .1IT THIS R 3P U 3 L IC (Appeal from the conviction of the High ’ Court of Tanzania at Ifeaaza) (Bahati, J.) dated the oth day of March, 1906 in Criminal 8es3ions Case ilo. lc£)of 1985 JUDG^ST? OF THIS COURT MAKAKJ?. J.A. : The appellT_nt GCRDIA1T PA3TR0Y was found to have murdered < per-on called GODWIN CL-SIGTOPZSR, He was 3snte^ced to death by the High Court sitting at -Sukoba and ha is now appealing .agiinst that decision by 3^.hati, J. Mr. But stab-\1a , learned Counsel, appeared for him before ua. For the respondent c Republic Mr. Teandv/St^ learned State Attornsy, beg.\n by supporting- the High Court decision, but <&Lr:Ua>£ the c o u ?o b p£ his submissions^: he conceded thr.t the Republic’s case was v-^nting, \ Thera was an over-night wedding party at the house of one E..UF3DT P Some tine aft^r aid::.i£ht FylJ*2 L-SGPCLD PCP3 left the place in the compa_-y of a woman called R-JXJ-IITA who had a c ild with har. According to P.V.2, while they were at a house said to bo some eighty yards from the wedding placed the \ appellant, who was with two othyr persons later charged wzth him but who were acquitted, arrived there and the appellant , - threatened .to rape Regina, Xt i3 co?.'jno t h a t a fight ensued, during which the deceased, who ha * to see what the commotion w:.3 about, was himself assaulted* The doctor whc ex^ainad his body found him to have su3tai: .ed a fracture of th< neck. - In convicting the appellant the^learned triai judge relied — mainly* on the evidence of P.W.J) G:>J3GrORf CCL.'ilGTXAlI, which he found was corroborated by thi.t of P.W.4 FI33TO CHRISTOPHER and P.W.l KIIZA, The learned judg® also felt himself fortified by the statements' the appellantrs "co-acc-3ed had iiade to the Poli< in the course of investigations. We h:.ve cr.refully re-visited the evidence on record and considered Kr, 3utanbala’s submissions which we find to have merit. P.W.l -./ho had told the court that the appellant returni 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 neve: really witnessed the assault as he had gone off to call P.W.^i. We are of the view that P.W.3's testimony should have been - examined and analysed with greater care. He is the one who sa thit when he w~s walking away from the scene with the deceased after a fight in which ho intervened, he heard the noise of a sticky- "pu”,"felan he s bending down to do a sho6-lace. He ran towards the deceased, whom he found prostrate and wrigglin on the ground. The appellant w j . s to .o r e and carrying a stick, and he ran avay, but was apprehended by P.W.3 with the help of P.W.4 who had just arrived at the scene* -t In his sworn evidence, the appellant did not deny being at the scene, and he said he first fought wi ;h P.v/,2, A group of people then arrived and a_3Qng them was the deceased. He fough with the deceased as well, and during that fight GR.2G0RY, the star witness P.W.3, hit him, the appellant, with a stick. /It is on record that both P.T/.3 and wore trembling wiien they wore tectxfyiQg in coi;rt, which caa be significant. * -Quit© obviously 17,1imU ^.id not witness the alleged fatal assault ar*d, as observed, P.¥.l did not really see the appells hitting tie dace .sad with a stic ; despite his earlier assuranc The 1 earn sci trial judge was satisfiad thr.t ’there are clear indications of lying here and there' and we are respectfully I ■ • of the Sirne view. We do not think that the appellant's conviction can be sustainod on the evidence of P,W,1, P,V,3 and P,W,4, and I'll', Butambalais quite right that the statements by the appellant's co—accused cs^not be tslr.en agr.ilnst the appellant, considering their exculpatory nat-ire. We note that all the three assessors who assisted at the trial advised that the appellant w a s not Guilty, We are unable to uphold the c :nv..ction, Consequently "we allow the appoal, qua3h the convection/arid set aside the sentence* Va order that the appellant should be released L, Mi M/£2J'u^3 N JT J3T:cc3 o f a ? .: e ; x