bakari salimu vs the republic 1987 tzca 34 9 october 1987

IN THE COURT OP APPEAL OP TANZANIA AT TANGA (CORAMs OMAR, J.A., MFALILA, Ag. J.A., And M A P IGANO, Ag. J . A . ) CRIMINAL IPHSAL NO. 95 OP 1986 BAKARI SALIIIU APPELLANT versus THE REPUBLIC . . RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tonga) (Sisya, J.) dated the 21st day ox November, 1986 in Criminal c'essions Case Ho. 23 of 1985 JUDGMENT OP THE COURT OMAR, J.A.J The appellant was charged with murder of Salehe Amashi and was convicted and sentenced to ieath. He is now appealing. P.W.1 Rashidi ^nashi the brother of the deceased stated that on 2o.2,31 he was on his way to Lukozi Village when he stopped at a place called. Mcotoni in Lushoto District, ther ' /’p.m. he saw P.W.2 Omari K i l n s , Lukindo Hussein and the a.ppellant^/Salimu @ Mdoe Salimu, together with the deceased, walking towards deceased home where P.W.1 was also living. After a while when P.W.1 we.s uphill he heard an alarm and responded to it when he reached, the place he found people had gathered and Liia brother was lying on the groutd bleeding profusely from the .'c. ' after he died. The appellant was not among the crowd that had gathered round the deceased. P.W.2 Omari Kilua who wc. s with the deceased and. the other two people stated that as they were walking together they came to a road junction when he and. Lukindo (who did not rive evidence) took the road which went down hill to the house of Lukindo whei<?as Salehe Anashi the deceased and the appellant took the route that went to bhe hill. The two routes lead down to the valley, P.W.2 stated that he went 1; search of his tin and after retrieving it in the house of Lukindo he went on his way and on reaching the vallejr where the roads meet he saw the diceased whom he had left a moment ago with appellant lying on the road and bleeding. He talked to him and deceased, told him that he had been stabbed by the appellant Mdoe Salimu. Both P.V/.l and P.W.2 pointed at the accused in the dock when giving evidence, in the High Court aa the person they referred to as Salimu Mdoe. /2. _ 2 - P . W . 3 . A b d a l l a h . Sbafi. the r d a t i r e o f the appellant stated that .appallant is his nephew. He said the appellant stayed in his house fcr one week and on 26/2/81 he left in the morning and said he was going to squeeze juice from the sugar cane at the sugar cane plantation the appellant was never seen again by him till the day P.V/.3 gave evidence in court. P.W.3 stated, that on all previous occasions when appellant stayed with him in his house he used, to bid him farewell when he left his house to his (appellants) home in another village. This tine he did not do so. On the same day in the evening he P.V/.3 in an answer to the alarm went and saw the deceased, lying on the ground, in a pool of blood, already dead. Appellant in his defence said that the last time he was in Kifunga Village where deceased met his death was on 16/2/81 and he left this village to go to his home in Shume Village on 17/2/81. On 27/2/81 he heard from his mother in their village that his uncle ^alehe Amashi had died,. He denied being in this village on 26/2/81 as alleged by his other uncle P.V/.;> Abdallah SLiafi. He said all three witnesses P.W, 1, P,W.2 and P.W.3 ^ad Xxed- -rhen they stated that he was in their village and in their company on 2b/2/81. He was arrested on -9/11/83 not bee ause of this murder but because- he had disobeyed quarantine regulations. He denied being in the company of the appellant shortly before his death. Though deceased, was his uncle, he the appellant and his mother never attended the funeral because of the quarantine that was imposed in the whole Mnadani Village. We cannot but agree with learned, trial judge that P.W.2 who was the first to see the deceased, lying on the ground was a. truthful witness and. it was he who took steps to summon people by ra.ising alarm and when the first person, Singano, appeared, he went with him to the relatives und neighbours of deceased a n d sur moned. them to the scene. This is the man who is dubbed by the defencc counsel as an accomplice. We do not agree with this assessment of tie witness. On the contrary we agree with the learned judge that P.W.2 wa:i a truthful witness. Once the evidence of this witness is accepted the guilt of the appellant is put beyond corttrcnrersy. What is more the conduct of the appellant leaving his uncle's house in the morning without a word to any one strengthens P.W.2 allegations against hir,, We would certainly agree with the learned trial judge that appellant was in the said village on the fateful day and, was the last person seen walking with him after the other two companions took a different route. In the result we find the circumstances detailed herein ar6 incompatible with the innocence of the appellant and. point to the guilt of the appellant and himself alone. #•••/ 3« 3 - We accordiijgljr -uphold the conviction of the appellant and dismiss the appeal, DATED at TANGA this 9th day of October, 1987. A. 1-1. A. 0I1AR JUSTICE OP APPEAL L. M. MPALlLA Ag. JUSTICE OF APPEAL D. P. MAPIGAlto Ag. JUSTICE 0? A PPEAL I certify that this is a true copy of the original, (J. II. M30PPE) DEPUTY R E G I S T R A R .