bakari salimu vs republic 1987 tzca 54 9 october 1987

IN THE COURT OP APPEAL OP TANZANIA AT TANGA (CORAMs OMAR, J . A . , MFALILA, Ag. J . A . , And MAPIGANO, Ag. J . A . ) CRIMINAL IPHSAL NO. 95 OP 1986 BAKARI SALIIIU APPELLANT versus THE REPUBLIC . . RESPONDENT (Appeal from the c o n v ic t io n o f the High Court o f Tanzania at Tonga) ( S is y a , J . ) dated the 21st day ox November, 1986 in Crim inal c'ession s Case Ho. 23 o f 1985 JUDGMENT OP THE COURT OMAR, J .A .J The a p p e lla n t was charged w ith murder o f Salehe Amashi and was c o n v ic t e d and sen ten ced to ie a th . He is now a p p ea lin g . P.W.1 R a sh id i ^nashi the b ro th e r o f the deceased s ta te d that on 2 o.2 ,3 1 he was on h is way to Lukozi V illa g e when he stopped at a p la ce called . M cotoni in Lushoto D i s t r i c t , th er ' /’ p.m. he saw P.W .2 Omari K iln s , Lukindo H ussein and the a.ppellant^/Salimu @ Mdoe Salim u, to g e th e r w ith the deceased, w alking towards deceased home where P.W.1 was a l s o l i v i n g . A ft e r a w h ile when P.W.1 we.s u p h ill he heard an alarm and responded to i t when he reached, the p la ce he found p eop le had ga th ered and Liia b r o th e r was ly in g on the grou td b le e d in g p r o fu s e ly from the .'c. ' a f t e r he d ie d . The a p p e lla n t was not among the crowd th at had gathered round the d ecea sed . P.W .2 Omari K ilua who wc. s w ith the deceased and. the oth er two people s ta te d th at as they were w alking to g e th e r they came to a road ju n c t io n when he and. Lukindo (who did not r iv e e v id e n ce ) took the road which went down h i l l to the house o f Lukindo whei<?as Salehe Anashi the deceased and the a p p ella n t to o k the rou te th a t went to bhe h i l l . The two rou tes le a d down to the v a l l e y , P.W .2 s ta te d th a t he went 1 ; sea rch o f h is t i n and a f t e r r e t r ie v in g i t in the house o f Lukindo he went on h is way and on reach in g the v a lle jr where the roads meet he saw th e d icea sed whom he had l e f t a moment ago w ith a p p e lla n t ly in g on the road and b le e d in g . He ta lk ed to him and deceased, t o ld him th at he had been stabbed by the appellant Mdoe Salim u. Both P.V/.l and P.W.2 p o in te d a t the accused in the dock when g iv in g e v id e n ce , in the High Court aa the person they r e fe r r e d t o as Salimu Mdoe. /2. _ 2 - P .W .3 .A b d a lla h . S b a fi. th e r d a t i r e o f th e a p p e lla n t s t a t e d th a t .appallan t i s h is nephew. He s a id the a p p e lla n t stayed in h is house f c r one week and on 2 6 /2 /8 1 he l e f t in the morning and s a id he was g oin g to squeeze j u i c e from the sugar cane at the sugar cane p la n ta tio n the a p p e lla n t was n ev er seen again by him t i l l the day P.V/.3 gave evid en ce in cou rt. P.W.3 stated, that on a l l p rev iou s o c c a s io n s when a p p e lla n t sta yed w ith him in h is house he used, to b id him fa r e w e ll when he l e f t h is house to h is (a p p e lla n t s ) home in another v i l l a g e . This tin e he did not do s o . On the same day in the evening he P.V/.3 in an answer to the alarm went and saw the deceased, ly in g on the ground, in a p o o l o f b lo o d , a lrea d y dead. A p p ella n t in h is d efen ce sa id th at the l a s t time he was in Kifunga V illa g e where d eceased met h is death was on 1 6 /2 /8 1 and he l e f t t h is v i l l a g e to go to h is home in Shume V illa g e on 1 7 /2 /8 1 . On 27/2/81 he heard from h is mother in t h e ir v i l l a g e that h is u n cle ^alehe Amashi had died,. He den ied b ein g in t h is v i l l a g e on 2 6 /2 /8 1 as a lle g e d by h is oth er u n cle P.V/.;> A bd allah SLiafi. He said a l l th ree w itn esses P.W, 1 , P,W.2 and P.W .3 ^ad Xxed- -rhen they sta ted th at he was in t h e ir v i l l a g e and in t h e ir company on 2 b /2 /8 1 . He was a r r e s te d on -9 /1 1 /8 3 not bee ause o f th is murder but because- he had d isob ey ed quarantine r e g u la t io n s . He denied being in the company o f the a p p e lla n t s h o r t ly b e fo r e h is d eath . Though deceased, was h is u n c le , he the a p p e lla n t and h is mother never attended the fu n e r a l because o f the quarantine th a t was imposed in the whole Mnadani V i lla g e . We cannot but agree w ith learned, t r i a l judge that P.W.2 who was the f i r s t to see th e deceased, ly in g on the ground was a. t r u t h fu l w itn ess and. i t was he who took ste p s to summon p eop le by ra .isin g alarm and when the f i r s t p e rso n , Singano, appeared, he went w ith him to the r e l a t i v e s und n eigh bou rs o f deceased a n d sur moned. them to the sce n e . This i s the man who is dubbed by the defencc cou n sel a s an a c co m p lice . We do not agree w ith t h is assessm ent o f t ie w itn e s s . On the con tra ry we agree w ith the le a rn e d judge th at P.W.2 wa:i a t r u t h fu l w itn e ss . Once the evid en ce o f t h is w itn ess is a cce p te d the g u i l t o f the a p p ella n t is put beyond corttrcnrersy. What is more the conduct o f the a p p e lla n t le a v in g his u n c l e 's house in the morning w ith out a word to any one stren gth en s P.W.2 a lle g a t io n s a g a in st hir,, We would c e r t a in ly agree w ith the le a rn e d t r i a l judge th a t a p p ella n t was in the s a id v i l l a g e on the f a t e f u l day and, was the l a s t person seen w alking w ith him a f t e r the oth er two companions took a d i f f e r e n t r o u t e . In th e r e s u lt we fin d the circu m stan ces d e ta ile d h erein ar6 in com p a tib le w ith the innocence o f the appellant and. p o in t to the g u ilt o f the a p p e lla n t and h im self a lo n e . #•••/ 3« 3 - We a cco rd iijg ljr -uphold the c o n v ic t io n o f the a p p e lla n t and d ism iss the appeal. DATED a t TANGA th is 9th day o f O ctob er, 1987. i A. 1-1. A. 0I1AR JUSTICE OP APPEAL L . M. MPALlLA Ag. JUSTICE OF APPEAL D. P. MAPIGAlto Ag. JUSTICE 0 ? APPEAL I c e r t i f y that t h is i s a tru e copy o f the o r ig in a l, ( J . II. M30PPE) DEPUTY REGISTRAR.