mwita so bugocha vs the republic 1987 tzca 39 11 august 1987

IN THE COURT OF APPEAL OF TANZANIA , ~:"" . .. t.T M\"[ANZA (CORAM: MUSTAF(I, J-. f•• ! OM.~R, J. A. And MAPIGANO, Ag. J••'1. ) CRnlIH.~L i.FPEAL NO. 100 OF 1986 MWITA S/O BUGOCI-L\. • 'APPELLANT VERSUS THE REPUBLIC, • • • • • • • RESPONDENT ;-. (Appeal from the conviction of the High Court of Tanzania at Musoma) (MulljIlera, J.) dated the 26th day of November, 1986 ., I in Criminal Sessions Case No. 36 of 1985 .. ," .1--- JUDGEMENT OF THE COURT !'lUST /.Ff., .l.:..!!:..: P. W.l Maswi ilQS two homeat ea ds and four wives. On the night of 16th ~pril, 1984 P. W.l was with one of his wivGS in one homee t e ed, and his two other wives were in another. The homesteads are noar each other. At about miclnight P. 'vi. 1 was awakened by one of his wivos (P. vi. 4) from the other homestead who shouted that burglars had broken in there. P.lo1.l picked up a spear and rushed to I the scene and outside one of the huts in his other homestead he said he saw the appellant Mwita, a co-villager whom he knew. The appellant vraa carrying a torch and a rungu , P. W.l raised an alarm and tho appellant ran off to a nearby hill. ,.' P. W.l was positive he had identified the appellant as the;re was bright moonlight that night. He Saw one of his wives, 1 j the deceased, lyin[~ tl1ere injured and found out later that she was / I dead. She had, according to the post mortem report, died of haemorrhage due to two penetrating wounds, caused by a bullet, crushing the left side of the lQng which reBulted in a lot of blood g'lthering in the chest cavity, and the heart waS also I, l/< .... damaged. / t /2. • • 1 I .~;c.g.-~~ . c : 2 The Chairman of the village and the balcu did n.ot answer the alarm raised by P. !ti.l that night. He said the appollant a;'so did not attend iri ans\>;or to the alarm. P. W.3, a son of P. vi. 1, was in the homestead of tho deoeaee~ on the material nieht. He suddenly heard gun fire and peeped out through tho holes in the unplastered wall of his hut. He alleged that ho Sail tho appellant whomhe knew as a co-villager standing near the door of. the house P. W.3 waS sleeping in. The appellant waS carr,yin5 a rungu and a torch. He said that there was bright moonlight and he could s.ee the appellant clearly. '. Then he Sa.-I his father P. W.l arriving at the scone and raising an alarm, and it waS then discovered ;ms't, hi.Ia. mother.. .•be deceased, had boon ollOt and was dead. He stated' that cash and clothing had cocn stolen. :from the house. P. W.4, a co-wife of the deceased, also testified. She and 1 i the deceased heard cries and shouts from the children in the other r huts and both She and the deceased ventured out of the hut they shared. P. :1.4 alleged she Saw two men, one the appella~t with a to~h and a "big nut", and the other man, one She called Sese Chacha with somothing in his hand She could not rocogniee, both eo-villaeors. P. W.4 then ran off to alert p. H.l. abod an attack by burglars. P. W.i ran to the burgled, homestead, followed by P. ii. 4. 1"lhenP. W.4 arrived back at her homestead She saw the deceased already dead on the ground and both the appellant and Sese Chacha had disappeared. P. W.4 al eo stated as She waS-. ·. on her way to aler"t P', Ii. 1, she heard a rattle of gun fire behind her and she surmised that the deceased must have been shot thea.' She stated that the appellant did not turn up when the alarm waB sounded, not eve~ on the following morning. The appellant testified. He stated th!t on the material night he was in the village and ~eard a rattle of gun shot. He went to his balozi D.i'l. 2 Chacha Spse, and informed him and asked him to go with him to the scene. He alleged the balozi D.W.2 .I advised him not to ~o that night. He stated that on that night ...... /3. I • .'t: / I. I I ,{ J'~ v . ;m~;";"'..Il;;';'w.." _ _ __ .______ , _~: --.-- - -_------.•... --.........- ~ i.----="':=- = .. .=-..•.-- -=-i-.' ~'':: . t'=::'~F~ ., ./' /. -: .;- '3 that it was a dal'k ,nig.bt. .~ I there Wil'Ni -91o~dSt and He wehii to the acene of the incident with his balor;i ," D. W. a.ll+~ ~. 'follpWin~ ~orns.ni. . He then saw the body of the deOQasedanli'll., ~ <U,dnot '. know who . had killed the deceased. , , n. Ii. 2 t '3stified.· He coi1f~rmed t:hat the )ppellant to him On. the material n~ght abollt an alarrn beirig raised. D.W.2 had heard gun fire thnt night. He stated the appellantthat waS anSwer '< among several people who asked hii!l to go with '\~~~ toLthe alarm that night. D.~~~~,refused to go, but advised thj3 appellant to go on own to answer the al arm, ". D.W.2 went to the scene the following morning and saw the appellant -I:.here. He said that while there he heard P.I'1.1 urging people who had gathered there that morning to arr_at the analla.wtr but nobody did so. It would Seem that. the .'appellant was arrested during the same week. Th~r~ was n~ evidence\given at the trial a~ to arrest, who arres·tad the appellant, where and when. It is elementary that evidence of arrest of an accused, with the necessary par-hculars, ahoul.d always be given. ;' '.' In his jud,DnO.t:lt" the, trial judge (Mut,yera, j.) ~;t8ned. briefly to the evidence of the witnesses called by the prosecution. He believed the evidonce of P. W.l arid P. W.3. As regardSP. vi. 4, he stated that an~.r scrutinising the police statement P. vi. 4 had given, he waa satisfied that P~w. 4 had not mentioned the appellan~ in her s t at omerrt to the police. totally dbcounted tho evidence of P~w~ 4. whether P. W.l and P. H.3 could have been mistaken about the identify of the man they alleged they had seen on the material night. He then said "They said there was bright moonlight that night but the defence argued it waS a dark night and raining". The judge than dealt with the failure of the appellant to answer the alarm that night. He said although the balozi D.W.2 had aclvised the appellant to go and answer the alarm, the appellant did' not do so. He also referred to the ...... /4. • 4 fa~t that the appellant had said he had gone to the scene the following morning, but "all the prosecution witnesses said. he did riot appear there". He said he_agreed with the prosecution that the appe1laht "never a+t ende d the al.arm, That being the case he had something to ~ foar, he would ha~e been immediately pointed . a8 the killer". It is not clear whether the judge meant answering the alarm when it was sounded after midnight or visiting the scene the following morning. He then stated that he believed that the appellant wae the man P. W.l and P. i'l.3 had seen on the material night and he convioted tho appellant of murder as charged. There are a number of unsatisfactor,y teatures in the uy . judgment. According to the evidence adducedLthe prosecutio~ the appellant waS armod with a rungu and a torch and he oould not possibly have killed the deceased by firing a bullet at her •. -There was acme evidenc(J--by P. w. 4, whose evidence apparently waS totally rejected by the judge, that she had seen another person &OSO Chacha, with the appellant, who had ~omethil1g s ho could not a derrt i.f'y or recognise. According to P. '1'1.5, a daughter of P. vi. 1, that night she sudde nl.y found two men in the house she was in, and she s,aw the tl'1O men flashing torches and beating her and the othere u p, and tal;:ing away clothes and a radio. It would therefore, seem that this Sese Chacha must have been the one armed with a gun. If anyone had shot and killed the deceased it would have been this other man i.e. Sese Chacha, not the appellant. Perhaps the appellant could have been convioted on the basis of seotion 23 of the Penal Oode as a person with a common intention wit-If the killer, but apparently the judge never considered that matter. Again the judGe had totally failed to consider the caSe put forward by tho appellant. It was in evidence that the village Chairman and the balozi did not answer the alarm on the material night. The trial judge did not direct his mind to the evidence of De W.2 that the appollant had gone to :n. W.2 and had asked Do W.2 to accompany him to anave r the alarm. The jUdge had relied heavily on the failure of the appollant to answer the alarm on the material night to convict the appellant of the off.ence charged. •.... /5. , . •• never or moonli,t . In .cur·~viO\i . ' • • : . It i..rould seem : .•. .r appe Ll ant , ,without aucces s •• . . .. _ • _" ••• • '" ?to We are rrot convinced -that the judge was:.righ,t in to a lY" rejec\\nl$ . .. ," 1 the. evidence given ;by P. W.4 for',the reason he 'gave •• However , .;'n vie~'t)f , • •••••• •• f'# , .• " '" " • "the ·'lnsatisfactory nature .pf. the jl;lc\gme,n~; which, ~as' a numban of mjlterJ.al . ., gaps, 'We ~o not thicl( we can safely uphold tPe.c~nvict'ion •.,' W~ ther~fo,re f. • I ••. .... allow • imposed the appeal. and ••order' quash 'the -Chat the ',app~ll.a.nt co nvi ct rorr.: set " be. ~et f'I'~e :fo~thwi.t?-tnless aside . the onten~e of d13a\l! ... otherwi ,e l! .. lawfully q.etaine,d. J)ATL~ AT:M~'L'j,NZA this ]J.th day~" Au~g;\t, . 1981('.,. .,.~ ,.. . "'1.,. ,•. , .• ... ". • I .-. . '. JUSTICE 'OF ' 10 A. MUSTAFA· t . •.. APPEAL, .. .. " - .. • 4 •• i ". e' ..•.. • , of '" e' • , " • A. M•• A. OMAR. •••• " " JUSTICE OF npPEAL , ..- ~ , . . D. 'P: MAPIGANO' " ~ . Ag. JUSTICE OF APFEAL; " • ••• " • is a true coPY of the origina~. • t ,J..,. '/ • .A,A; 11/ • 1..-' • . (J. ,R. DEPUTY REGISTRA~ . MSOFFE) :.,. . . ••