19860616 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA --~- AT MWANZA CRIMINAL APPEAL NOu 38 O? 1985 1. SIMON s/o ISHELUKALI O APPELLANTS a o o o 2. THOMhS s/o ISHELCt<:ALI ~- versus THE REPUBLIC~ o • o o ••••• " • RESPONDENT (Appeal :tkoin ttie cohviction c;;f the High Court of Tanzania at Mwanza) (Mushi. 9 J.) dated the 26th day of March, 1985 in Criminal Sessions Case No. 1 of 1984 REASONS FOR JUDGMENT ---=l• MUSTAFA, J.A.: We heard the appellants' appeals on 16th June, 1986. We a'ii9~ed the appeals, quashed the C!?nviction anq set aside the sentences o-F the High Court, and· set the appellants at liberty. We now give our reasons. The appellants were conv5.cted of murder solely on the dying declaration of the deceased. The dying declaration was not corroborated in any waye According to the dying declaration of the ieceased, told to P.W.1 and rep2ated to 3 other prosecution witnes_ses, the deceased alleged that, at about 8000 orclock :Ln the night, he was .. attacked by both the appellants, one of whom held and twisted his neck and the other one stabbed him. The deceased died the following day in hospital and death was, according to the Post mortem report, due to multiple fracture resulting in haemorrhage ar.d and •• shockLbrain laceration. There were 3everal cut wounds on the mandibular area and occipital bones and a compressive fracture of facio temporal bones. 00••······/20 2 • • The trial judge correctly 1irE:::cted ]:limself on the law of dylng declaration, and came to the,.. co,ncl-c1sion, that in an appropriate case, a convi:ction for _murder can .-be based solely on the dying . declaration itself stan1ing on-its own. Howeve~, the trial judge did not adequately•ctirP.ct his mind to the point whether, in view of the fact that the Killing took place at night, the deceased could • have been mistaken in his identification. It is true that the trial judge was fully aware that the attack q,n :the deceased tOok place at night, and took .. .-1 that factor into consi-:ier.at:i-on ·in coming to the conclusion that the deceased' s identification was nothing but the truth, and that the deceased had unmistakenly identified the appellantso PaW.1 had stated that the deceased t.Old P.W.1 that he could identify his attackers because there was moonlight, and that he identified the attackers by their faces, and not by voice. However PoWe 1 in his statement to the Police stated that +:h~ d~p-ea~ed -t-old him that he (dee.eased) had identified his a+--t-ac}(~rs l,y +heir voices. There is no other evidence of moonlight by the other witnessese There is nothing to suggest what sort of moonlight there was, ! . i . sufficient or insufficient for identification. The· possibility that ._ ·"- .f a·mistake could occur in identification in a sudden ·night attack is . ~ ~ ' ' aiways present ... And here there is nothing to suggest. that there was sufficient moonlight to render impossible or even improbable .... f ,f' t:hat a mistaken iientification could occur. - .... There was some evidence that the deceased ·had some fight with the appellant Thomas a few days before the fatal at+ack on the deceasedo That piece of evidence was used by ~he trial judge to indicate a possible motive ' for +he appellant Thomas, attack on the cl ece·ased.. Howe~er th.at sam·e· piece of evidence cotild be used fo show, .that becau~e ~f the earlier fight :between the d·~ce'asect and . 'I '',r' ,• : I _,_j j •'t' f • • ;, ; & .f ' . j ··• " .. r I, - • ._ I • .,. the appellant Thomas, it was possible for t:he deceased to have believec. ~ l· I r ' ·, '""- • , , ~ , '- f. • ) ·; ~- t, that his att:ackers that night. inust: have been +he appellants, even 1·f ·he could not have seen them clearly. ,.. ~ .......... /30 ) r' 3 • I Again ,accorjing to P.Wo 1, the appellant Thomas, according tc l ·, lJ the deceased, was wearing a white coat when Thomas was attacking the cteceasedo PoWo1 stated that when Thomas was arrested, Thomas was wearing a white coat which was stained with blood. No evidence at all was adduced at the trial about that white coat or its blood stains. If that pie~e of evidence was forthcoming, it could be Important supporting and corroborative evidence of the dying dec:·1aration o~. the deceased, at least in so far as Thomas was concerned., sfnce no such evidence was adduced f the inference .would be that there was no such white coat stained with blood. That would be indicai.ti ve that the deceased' s observation that night mig;ht be open to some doubt. The trial judge did not consider in what circumstances the de<:eased could hc::ve identified the appellants on the material nigh-:_;., The trial judge b9lieved that the deceased could _not have been mistaken, despite fhe fact .. that the attack took_ place at night, anci he was convinced ·that the deceased was truthful. As we have attempted to show, in view of the paucity of the eviden_ce concerning the circumstances for favot:.rable identification that: hight;· such as the amount of moonlight, if any, it is not possible to exclude the possibility that the deceased could have honestly but mis-takenly identified the appellants as his assailants. ~n our view, it would be unsafe to convict in the circurnstancesr en the dying declaration alone. The Republic does not suppo!'.t the conviction. It is for these reasons that we have allowed the appeals of the appellants~ DATED at MWl1NZA this 16th day of June, 19860 F. Lo NYALALI CHIEF JUSTICE A. MUSTAFA ..... ... ~ JUSTICE OF APPEAL