19870528 TZCA Dar es Salaam

i • IN THE COURT OF APEll,:'.:, 01!' !J.1.1d?ANIA CORAM: }!4;KAME 2 J .A.; KISANGA 1 J oA • And 01:'L/lJ.1 2 j .A. CRIMilJAL APPEAL ·..J. 49 OF 1983 ·JEL.A DOO & ANOTHER. e e O O C • • • APPELLAlfl'S VERSUS. TEE REPUBLIC. • • • • • • o • . • · • • RESPONDENT (Appeal from the conviction of the High Court of Tanzania c1,t Konc:oa.) .(Ma:ina, .J.) da.ted the 22nd. day of Oc;/;)ber., 1983 · in Criminal Sessions Case Nol' 74 of ,l981 JUDGMENT OY.' '.{iE ....QQ.~ -....:'" °-;I'--',, , . ~ .-. MA.KAME, J .A.; The two appellants JELA D00 gnd ABDU SHA.BANI were condemned \ to death following their convictfon for Murder, The High Court Sitting a,t Kondoa (Maina,, J .) found it established tha.t the two had jointly mu.rder?~l a man c . . ~~lad HUS~L:2.'IN SAIDI, the husband of .Before us in this appeal Miss Mjasiri, \ lea.med Counselt advocated for the appellants, while Mi-·, Si.mbakalia, lea.rned. 0·~a-~e ,.-~ .,orney, sought to support the ~eeision of the High Court. Aa the trial court .:;:ightly observed, the -Pros.ecution ca.se hinged on the testimony of P.\'l.2. · Miss Mja.siri submitted that it' wae unsafe to found a convic·~ion on the evidence of this witness who had a mental afflic· ion and whose identification of her husband 1 s assailants cou:-,.d. well have been mistaken. Mias Mjasiri further submitted. that a-1 though the learned trial judge expressed awareness of th<? danger of conv:i,cting-on the evidence of a, single witness a.s to id.entific.ation m ·.un,f831Qu.rable circumstances hE' ii .;_d not really apply his mind to that asi)ect in the present c ;.:se., On the other hand J',;:x.:; 1: =.-~~?._;: ;_~-f i"'.:"'"', f ,,., ';r~r>'_,,:! · •~1 . :§t>_~/.'~<.~\~;{.:1.: ;~ ;' . ...., -! f, t ; 1 ').. . 2 - Mtt Simbakalia was of the view that the conviction wa.s sound;, the learned trial judge having carefully e:Jla.mined. the evidence The court of trial _found death to be due to brain injury., According to P. W. 3 MARCO I1ACHALE 1 the 'docto..l: .who <lid the autopsy-, ..... the dec.easad su;C.fe.red. twe.e c.ut wounds. One of them, the one on the head, was so deep tha.t tt.e br.a-itl. ma.ttel'..' -...ea expoeed. We do not think tha.t Mr. Mshote was serious in his final add..ress to the tria.l cou.r.t. .when he suggested thai the deceased o.ould have been bit ten by a d.og, We have ca:befully subjected the evidence on record to fresh ana.J.~sis. While we appreciate that the appellants were P,v{,2's villag.e-mates, -persons she knew well,• we are unc.omforta.ble a.bout P.• W.. 2''s mental condition that night-• There ~ no controversy but that she was mentally afilicted and, · ,-ccording tb her own testimony, that .very eveningt prior to the unhappy incident, she ·was feeling .unwell. She was on her _wa:y to a- medicineman as late as 8 p.. m. when she met some people who persuaded her to go back home,. Then late that n'ight there was this traumatic experience afte.r ~hich when she got to her parent 1 s home she collapsed and. did not tell her pa.rents what had ha,ppenad. A med.icineman had to be summoned.. We note also that, according to P.• W.. 2 1 s evidence, her husband1 s killers ran with her up to near her parents• house,- whic.h sounds rather ee~ie and bizarre. In the circumstances of this c2se we a.re ' unable to feel sure that P .w .2 was re.ally compos men tis and .reliabJ..e enough to rela.te wha,t re~llY happened and whether she ........ /3 • .. ",f ' ~\\,.. , ~ ~ ~ r , \ i 1. .;~ r !' - 3 ha.d co.rrecily identified the appellants a:s the killers. · 'l?be.t is not all. Lven on the following day P.W.2 did not disclose the identity of her huobandls·killers until she had been ~ and assaulted by militiamen..-•· It. ia only after· that tha,t she named the two a,ppellanto ..... We do not feel certain that we can sa.f ely say that she could not have done this merely to save he~ ow skin, or even that'gi in h-er infirmi-cy- of mind.,.-·she · could not have been easily suggestible~ She knew that at least the deceased beli;e'ved that. the &econd appellant was enjoying her intimate favours •. ·· Granted that there was a fire burning in the house that night and that P.W.2 knew the appellants well; with respect, for :tea.sons we have given, we do not' share the learned trial judge I s certitude that there was no need for looking for other evidence to support P.W.2 fs. With respect, we think there was, and we could not find a:rry on record. 'fi2c trial court found the testimony of P.H.5 ·ZAINABU JA13ASU, the wife of the second --... _.,,,--..,_, appellant, enough c:i.rcumc:_ntia1 ~;-ridence in sup1;ort of P.W.2ts ~: evidence. P.tJ.5 1 s evidence was that her husband went out at about sunset tha.t evening, ca.rrying no weapon, and returned / 1tvery late at night after we ha,d slept 11 • The second appellant said he did go out that · evening.· He went to visit his grandfather and. went back home. at 9 p~m• • "and found nw wife ;:1.sleep 11 •. We do not see how P .w .5 1s evidence lend.s support to P.W,2ts·story in the circumstances • . ! .. .•.-' ., .. }- .. • t, - 4 ... ~ a.re of tb.e view that it would b~ unsafe to support the lligh Courtta decision. \-Je therefore allow the_ a.ppe,a.1., We quas-b the convic.tion of each appellant end set aside _the senten~e .. I.f the appellants a.re not othe.o..rioo .iawi'ul'.13 in custody they· ~hould forthwith be released. DATED a.t DAR ES SALAAM this 28th day of May 9 1987. . I L • M• I11AKAME JUSTICE OF .APPEAL _ R. H. JCTSANGA JUSTICE OF APPEAL · A. M. A, OM!I.R JUSTICE OF APPEAL l cer.tify that this is a true copy of the original. I 11// ;__ /'i , I .,, ( ,,., ' (J. H. MSOFFE) DEPUTY REL IS'l:RAR •