19860428 TZCA Dar es Salaam2

!.:· -. . . . .:-. Jr... ·. ; . .I .. ', IN TH;E COURT OF APPEAL-OF TANZANIA AT MBE'fA ~: MAIW!E 1 J .A.; KISA.NGA 1 J ,A. And OMA.R 1 J .A. CRIMIUAL APPEAL . . 85 OF 1-985 ... . .. . .. JCSEPH MLEMBULE, VERSOS • APPELLANT ·i THE REPUli,IC. • • , • RESPONDENT (Appeal' from the conviction of the Hi8h Court of Tanzania a.t Iringa.) {Mwa.ikasu, J.) dated the 28th· dey-·of September, 198r-·· . in Criminal Sessions Case No. 65 of 1982 JUDGMENT OF THE COURT OMAR, J .A.: (( Appellant is cha.rged with the murder of one Tauai d/o Kwama contrary to section 196 of the Penal Code. He is now appeal!ng against the conviction. The prosecution ca.ae is tha.t on the_ ni8ht of 9th Octo~er, 1981 in the Villa5e of Changa.rawe in Iringa Region P.W.1 Simon Kinda was outside his house a.t ni:;M when he sa.w three people rushing to.wards him. He ran inside his house and locked the door and peeped through a hole. P.w.1 then saw three people standing a.this door and pushing ,. • it ·in order toga.in entrance. His wife who was wit~ hi~ helped to bolt-the door-and as she waa so do1iig gun shots were fil:ed at the door from outside. the cheat was perforated. The deceased got hit. Her finge~s WG~e broken and One bullet went through the bee.rt. The . . .' ,_j1 r deceased Ta.usi Kwama. died instantly. . , P.W.1 saw his dea.d wife, got frightened and wen.t and hid under the mattress. . The three bandits then managed to break. open the door t I and they ransacked the house and took several things 1:.1uch a.-, a. radio, 'a bicycle, and clothes. Then they went to that section ,,f the ho¥se where children of P.W.1 were living and took articles of clot\h:ing from there. But before they went the daughter of P.W.1 one Sofia. K~nda cla.imfl to have • V' . • , . IC 'L . ..• t I !1· .•j .·.f , 11 ., ·/J ,.. 1./ )"'·:~ .:~ ' ·1 I r I ' - 2 - / seen and recognised one of the bandits as Joseph m.embule, the appellant. I; I. i' I I It wa.s bright moon.I.it, night and she was• familiar with the appellant ~I I having schooled together and th~y wore also living in the same village. I (· P.W.2 Sofia Kinde. in her evidence sta.ted tha.t when appellant appeared tha.t night and confronted her outside her home, he, the appellant ordered her to go into the house and sleep •. P.W,2 did as she was told and waited until when she heard a reTJOrt of the gun from 1 .. ,'): ·'1 I' th& other side of tho house where her father-and mother were living, She la.tar hea.rd the appellant shout tha.t her mother was dead. Then the bandits went to her side of the house and asked · her for articles of clothing which she gave to the appellant by lifting the box·of clothes (_ ' high on top of the door which had a space above it and the appellant took ' ,,· I, the box and while pulling ha.rd the door ~ell down. After that P.W,2 went to the cell leader P,W,3 and reporttd w~t had happentd to her h?me. P,W.2 and 3 went together to the scene of crime and th,re sa:11 the mother of P.W,2 was al.ready dead. P.W.1 told P.W.3 that he susp11cted the appellant because he was a notorious thief in the village but he did not identify him nor any of the other two bandits. P.W.2 stated that she told P.W.3 a.bout her recognition of appellant a.a ?ne of the bandits and P,W,3 claims to have been told the ea.me by P .w ,2. He also cll,\ims that he .-1 C mentioned tha.t fact t? the police in his police sta.temen~. When P .w .3 was being cross-examined by the defence counsel as to whether he really told the police a.bout P.W,2 identifying the appellant a.a the person who had go!le to the house of P.W.1 tha.t night with two others and robbed and caused the death of one of the inmates, P.W.3 replied that he did tell too I police but he was surprised that fact was not written down by the police. No policeman in this ca.se ga:ve evidence, not even the arresting officer. I P.W,4 Emmanuel Ml.owe the son in law of the deceo.sed stated tlul,t he was info;rmed by the ten cell leader that same ni6h~ of the kil' uig that his .. I mother in +a:w had been killed but "l we.a not tol.Q, by whom the l'-8cea.sed. I 1· .......1,~ ' .. • . • .I . .-... "tlr ...... I / , I I -.3 - had been killed 11 • ·1. · appellant I s defence is that he was not in • Changarawe Village on 9/10/81, he wa.s in Nyaka.tuhi Village where he • had emigrated since 7th November, 1~80. He was arrested in July, 1981 for stealing but he escaped from polioe custody and was rearrested on 27/12/81 when he went to visit his father at Cha.ngarawe Village and was charged with this offence of murder. He denies to have been identified by P.W.2 Sofia. If Sofia's story were true, he stated, he would ha.ve killed her there and then bE:ca.wie he appe.).lant and Sofia knew ea.oh other well, they went to the same school together and.Sofia was in Standard II when he was in Std. I. The trial judge rejected the alibi of the 8 ~pellant as he was impressed by the identifioation of the appellant by P.W.2. ThEI tr:iai judge warned himself of the danger of convicting on the identification of a single witness and proceeded to c~nvict. We however a.re of the view that of the four witnesses who gave evidence P.W.1 said outright tha.t he .did not identify the appellant no~ did he tell the police about the appellant when they arrived the sa.I110 night of the murder. P.W.4 who was a member of the family and who ha.cl heard the same night of this . 11 tragedy admitted that no one told h.im who the ,mu.rdeper wa.e. 1 wa.e . not told by whom the: !eceased was killed II be seys i,Q his evidence• P,W.3 the cell lea.der who claims to have been told by P.W.2 Sofia about her identifica.tion of the appellant. se,id that he had mentioned this fact in his P?lice s:1'.,a~em~nt but the po:i.,:i.cr_~.O. not seem to have written it down as is.clear from the police st~tement. We do wonder whether P.W.2 really told any body about her iden iification of the appellant or she could pe merely suspecting him knowing him a.a her father, P.W.1 did, that he was a notorious thief. The house of the father of the appellant was seaxched but none of the articlelS stolen were found nor wa.a the gun found ever proved to be the one used that night in the killing of the deceased. The State Attorney Mr. Kai;linga declined to support the conviction • • . 'f I ,. .. / - 4 .. 0 We find in view or t.he la.ck t>f sv:;iport ; ~ identification by a aingle I {. witness ba.ls, the d . ~ ,0£ OOD'f'iotJ,ng on it is clea.tt We a.cco:<li:l&lY !ind it unsa.fe to uphold the oonviotion, 't. We quash the com"ioti.QD a.n4. allw the app•&l.t I. , ,, I ;r ' 'I h ' . I 1: C L. 11. MAKA.ME JUSTICE OF APPEP,b ,. r t I ~ . R • H. KIS.m:zA I I - JUSTICE or APPEN: ~ ·_ ' A. M, A. OMAR tI JUSTICE.OF APPEAL . ~ •\. -··-.---.I certify that th.i,s 1a a true copy o! the orie;inal• •I I I "• t _,. :,... '- _,. -~ I t.. ~·'. I• ':~\\ I I I • : t 1--. !- ~ . ' _I I !· • l ...,., DEPU'lYC REIHS'mAR. _. . .,!'·, ,.. . . . \, 1- • . ' I: . . t '... ·' l : ., ) ' ~ ~.: Ii