mwita so bugocha vs republic 1987 tzca 59 11 august 1987

IN THE' COURT OF APPEAL OF TANZANIA AT KWANZA ( CORAM: MUSTAFA, J. A. . OMAR. J. A. And MAPIGANO. Ag. J. A. ) CRIMINAL APPEAL NO. 100 OF 1986 MWITA S/0 BUGOCHA.............................APPELLANT VERSUS THE REPUBLIC......................................RESPONDENT (A p p e a l from the c o n v ic t id n o f the High Court o f Tanzania at Musoma) (Munjiera, J. ) dated the 26th day o f November, 1986 in C rim inal Sessions Case No. 36 o f 1985 JUDGEMENT OF THE COURT MUSTAFA. J. A. ; P. W. 1 Maswi has two homesteads and fo u r w iv e s . On th e n ig h t o f 16th A p r i l , 1984 P. W. 1 was w it h one o f his w iv e s i n one homestead, and his two o t h e r wives were i n a nother. The homesteads are noar cach o th e r . At about midnight P. W. 1 was awakened by one o f h is w ives (P . W. 4 ) from the o t h e r homestead who shouted th a t b u r g la r s had broken in t h e r e . P. W. 1 picked up a sp ea r and rushed t o t h e scene and o u ts id e one o f the huts in his o t h e r homestead he s a i d he saw the a p p e lla n t Mwita, a co—v i l l a g e r whom ho know. The a p p e lla n t was c a r r y i n g a t o r c h and a rungu. F. W. 1 r a i s e d an alarm and tho a p p e lla n t ran o f f t o a nearby h i l l , P. W. 1 was p o s i t i v e ho had i d e n t i f i e d the a p p e lla n t as t h e r e was b r i g h t m oonlight th a t n i g h t . He saw one o f his w ives , t h e deceased, l y i n g t h e r e i n j u r e d and found out l a t e r t h a t she was dead. She had, a c c o rd in g t o the post mortem r e p o r t , d ie d o f haemorrhage due t o two p e n e t r a t in g wounds, caused by a b u l l e t , c ru s h in g the l e f t s id e o f the lung which r e s u l t e d i n a l o t of b l o o d g a t h e r i n g in the chest c a v i t y , and the heart was a ls o damaged. - 2 - The Chairman o f the v i l l a g e and the b a l o s i d i d not answer t h e alarm r a i s e d by P. W. 1 th a t n ig h t . He s a i d the a p p e lla n t a l s o d i d not a t t e n d i n ansvjor t o the alarm. P. W. 3, a son o f P. W. 1 , was in the homestead o f tho decease^ on th e m a t e r i a l n ig h t . He suddenly heard gun f i r e and peeped out through the h ole s i n the u n p la s t e r e d w a ll o f h is hut. I He a l l e g e d t h a t ho sau the a p p e lla n t whom he knew as a c o - v i l l a g e r s t a n d in g n ear the door o f the house P. W. 3 was s l e e p i n g i n . The a p p e l l a n t was c a r r y i n g a rungu and a t o r c h . He s a i d t h a t t h e r e was b r i g h t m oonlight and he could see the a p p e lla n t c l e a r l y , \ Then he saw his f a t h e r P. W. 1 a r r i v i n g at the scone and r a i s i n g an alarm, and i t was then d is c o v e r e d -fchat hia mother^ *he deceased, had been oliot and was dead. He s t a t e d ' th a t oash and c l o t h i n g had boon s t o l e n from the house. P. W. 4* a co—w i f e o f the deceased, also t e s t i f i e d # She and the deceased heard c r i e s and shouts from the c h i l d r e n i n the oth e r huts and b o th she and the deceased ve n tu red out o f tho hut th e y shared. P . ’.I. 4 a l l e g e d she saw two men, one the a p p e lla n t w i t h a t o r s h and a " b i g n u t", and the o t h e r man, one she c a l l e d Sese Chacl^ w ith something i n his hand she co u ld not r e c o g n is e , b o t h co—'v i l l a g e r s . P. W. 4 then ran o f f t o a l e r t P. W. 1 about an a t t a c k by b u r g la r s . P. W. 1 ran t o the burgled- homestead, f o l l o w e d by P . ii.4 « Nhen P. W. 4 a r r i v e d back at her homestead she saw th e deceased a lre a d y dead on the ground and both the a p p e lla n t and Sese Chacha had disap peared . P. W. 4 a ls o s t a t e d as she was . on her way t o a l e r t P. Vf. 1, she heard a r a t t l e o f gun f i r e behind her and she surmised th a t the deceased must have been shot the&.- She s t a t e d th a t the a p p e lla n t d id not tu rn up when the alarm was sounded, not evew on the f o l l o w i n g morning. The a p p e lla n t t e s t i f i e d . He s t a t e d th a t on tho m a t e r ia l n ig h t he was i n the v i l l a g e and heard a r a t t l e o f gun sh ot. He went t o his b a l o z i D . 2 Chacha S^se, and inform ed him and asked him t o go w it h him t o the scene. He a l l e g e d the b a l o z i D«W.2 a d v is e d him not t o go th a t n ig h t . He s t a t e d th a t on th a t n ig h t ........... / * . T* 3 t h e r e were c lo u d s , and t }ia t i t was a dark n i g h t . He went t o the : Scene o f th e in c id e n t w ith his b a l o e i D.W.3 f o l l o w i n g morning. He then saw thie body o f the debeased and'}ie 4 i d not know who had_^. k i l l e d the deceased. iefe L. W. 2 t e s t i f i e d . He confirm ed t h a t ' t h e 'appellant r e p o r t e d t o him on the m a t e r ia l n ig h t abolit an alarm beirig r a i s e d . D.W.2 had heard gun f i r e th a t n i g h t . He s t a t e d t h a t the a p p e lla n t waa~& answer among s e v e r a l people who asked him t o go w ith to^th o alarm th a t n ig h t * D. W.2 r e f u s e d t o go, but a d v is e d the a p p e lla n t t o go on hia^ . own t o answer the alarm. ...... . " • . > «. ■**- ■ ■• ■ ■'<ix S.W.2 went t o the scene the f o l l o w i n g morning and saw the »: a p p e lla n t +here. Ho s a i d th a t w h ile t h e r e he heard P.W.1 u r g in g / p e o p le who had g a th e re d t h e r e th a t morning t o a r r e s t tha but nobody d i d so. I t would seem th a t the a p p e lla n t was a r r e s t e d d u r in g the same woelc. There was no ev id e n ce g iv e n at th e t r i a l as ■ to arrest, who a r r o s t o d the a p p e lla n t, where and when. It is ele m en ta ry t h a t eviden ce o f a r r e s t o f an accused, w ith the necessary p a rtic u la rs , should always be g iv e n . I n his judgment, the. t r i a l judge (Munyera, J .) referred b r i e f l y t o the evidon ce o f the w itn esses c a l l e d by the p r o s e c u t io n . He b e l i e v e d the evidon ce o f P. W. 1 and P. W. 3. As regards P. Vi. 4| he s ta te d that a f t e r s c r u t i n i s i n g the p o l i c e statement P. V/. 4 had given , he was s a t i s f i e d t h a t P. W.4 had not mentioned the a p p e l l a n t i n her statement t o the p o l i c e . He then a p p a r e n tly v to ta lly d iscou n ted the ev id e n ce o f P. Wi4. The judge than c o n s id e r e d w hether P. W. 1 and P. U. 3 co u ld have been mistaken about the i d e n t i f y o f the man they a l l e g e d they had seen on the m a t e r ia l n ig h t. He then sa id "They s a i d t h e r e was b r i g h t m oonlight th a t n ig h t but the defence argued i t was a dark n ig h t and r a i n i n g " . The judge then d e a lt w ith the f a i l u r e o f the a p p e l l a n t t o answer the alarm that n ig h t . He s a i d a lthough the b a l o z i D.W.2 had a d v is e d the a p p e lla n t t o go and answer the alarm, the a p p e lla n t did' not do so. He a ls o r e f e r r e d t o the ........... / 4* - 4 - f a c t that the appellant had said, he had gone to the scene the f o llo w in g morning, but " a l l the prosecution witnesses s a id he did. not appear th e re ". Ho s a id he.agreed with the prosecution that the appellaht "never attended the alarm* That being the case he had something to foar, he would ha*<e been immediately pointed as the k i l l e r " . I t is not c le a r whether the judge meant answering the alarm when i t was sounded a f t e r midnight or v i s i t i n g the scene, the f o llo w in g morning. He then stated that he b e lie v e d that the appellant was the man P. W. 1 and P. W. 3 had seen on the m aterial night and he convioteA the appellan t of murder as charged. There are a number of u n satisfactory fe a tu re s in the judgment. According to the evidence adduced/the prosecution^ the ap p ellan t was armed with a rungu and a torch and he oottld not p o ssib ly have k i l l e d the deceased by f i r i n g a b u lle t at her. 'There was some evidence by P. W. 4» whose evidence apparently was t o t a l l y reje c te d by the judge, that she had seen another person Sese Chacha, with the appellant, who had something she could not id e n tify or recognise. According to P, W»5f a daughter o f P. Vf. 1, that night she suddenly found two men in the house she was in, and she saw the two men f la s h in g torches and beating her and the others up, and taking away clothes and a radio. I t would th e re fo re , seem that th is Sese Chacha must have been the one armed with a gun. I f any one had shot and k i l l e d the deceased it would have been th is other man i . e . Sese Chacha, not the a p p ellan t. Perhaps the appellant could have been convioted on the b a s is of section 23 of the Penal Code as a person with a common intention with the k ille r, but apparently the judge never considered that matter. Again the judge had t o t a l l y f a i l e d to consider the case put forward by the ap p ellan t. I t was in evidence that the v illa g e Chairman and the b a lo z i did not answer the alarm on the m aterial n ig h t . The t r i a l judge did not direct his mind to the evidence o f D. W, 2 that the appellant had gone to 33. W. 2 and had asked D. W, 2 to accompany him to answer the alarm. The judge had r e l i e d heavily on the f a i l u r e of the appellant to answer the alarm on the m aterial night to convict the appellant of the offence charged. /5 .The a p p ellan t,• in* his, evidence in ch ief, had‘ si£ated thf^ * " •m' *« . ’ ’ %. * « ' * •, » «*» m aterial night* there were1''clouds and A h#* night ?t*as dark,, \ The*., , \ * *’ * v fc- - ■' * . *. v *■• * ' * a p p e lla n t was not cisoss-examined«on-that.! The judge i|i his* judgment« * « * * »■» *. -*f *■> , * - ’ *#../#>?#' *‘s » j *'^ ■ .h a d stated that the witness®*P/W. 1 and P. W. 3 -had, s tat ad i t was ♦ „ a moonlit * night and the appellant that; .i^ ;tfas„ a daa£|i4gh.t. ^ W^e^|jp* never resolWct the issu e; he did, not'maice a indfng^hether.^it* liijaa * o r moonlit ni'ght. He l e f t ’ the issue open.and unresolved**.’’ A-S # *k **. ' • Z. .. * • .* * ' 4 * - ' # a '* «.s * - *■* 5 *4 <4* *' * *„♦ ’»*.«£ • I n o u r'v ie w the" question whether i t was'unoonlit * * hftr *dark' 6jp»that* . . ' * »' v . 'V * ‘" *>■ .]•* * . '* *< " * % night w_as /crucial* * I f it*w a 6* dark then P.'W.l iand 'P. W. 3 couLdTiay§, beenL#- misi^ken .4 We are unable* to resolve .-that 'issue a'l ’this 'stage, *a#*d!|(i§ V i l l **4 - * ' *‘ •* #■'* have to give the ‘b enefit of .the doubt 4to ^.he* appellant. * ’ ;«* * *# ■ * *••'*« <**•’* - 4 * * ’ * ', * * ' . 4' 1 fe I t would seem th*at the jddge had found that1-the appellant, did »nqj± * f ♦ * T* * % . •#’ ** * * ^ * « » * lii ' •*.* %* attend #t the sceno even on the mdrning fo llo w in g th e ‘k i l l i n g . H e ^ i g n o r e 4 ? • * * ,• * .. ■ . *'•«* • • •• D.i| f .2 , s evidence to .the e f f e c t that D. W. 2 had seen^the appellant therjB«a»a •*that P. W. t had* a l l e g e d l y ‘urged'the people at the scene to a r r e s f t t e *J* J a p p e lla n t, but without success, , • * i• * * 9 . * ** ' * ■ m * - We are not convinced‘that the jtidge was .rig h t l n * t o t a l l y » _ r e j e c ^ n g * ■ i * , »s * *» *•' the,evidence given by P. W. 4 f o r ,the reason he gave. .However.- in view ©f s ' »• % the ‘ins at is factory nature of. the judgment', which, has'a number of m aterial gaps, ve do not thinli we can s a fe ly uphold tKe*c6nviction.*«*W|i J ,her^fore * * a llo w the appeal, quash the conviction, set aside the *Bonteiice of deaiUi * * imposed and^order that the appellant be set free'forth w i-th tinless otherwise l a w f u l l y detained. ' ■ • DATLD AT’ Mi’JANZA th is lj.th day o f’ Augiiij, 198?* * • * A. M U S T A F A JUSTICE 'OF APPEAL * * A. M. 4 A. OMAR JUSTICE OF APP E A L i / D. P.* M A P I G A N O ' Ag. JUSTICE OF APPEAL; o 6 . w V gfS n ‘ ' * I *c e rt ify .\ lh a t t h i s is a true copy o f the o r i g i n a l -! 'C - ^ ' s / „ . v v 'V.. * < «• ,N. V- •A v (J. H. MSOFFE) " • .y ' ■ *■ •‘ X.:-- -----' «• * * DEPUTY--------------------------- REGISTRAR. -----------------------------