richard rikando vs republic 1987 tzca 85 8 october 1987

IN TIE! COURT OP APPEAL OF TANZANIA AT TANGA (C O ilA M : O M A R , J.A.. MFALILA, Ag. J.A.t And MAPIGANO, Ag. J .A.) CRIMINAL APPEAL NO. 62 OP 1986 RICHARD RIKABDO.......... APPELLANT VERSUS THE REPUBLIC. . . . . . . .RESPOND ENT (Appeal from the conviction of the High Court of Tanzania at Tanga) (Sisya, J t) dated the 27 th day of September, 1986 in Criminal Sessions Case No. 7 of 1986 JUDGMENT OF THE COURT MPALILA. Ag. J.A.: The appellant was charged with and. convicted of the murder of his little niece Mwashamba d/o Paulo and was sentenced to death* He appealed to this Court against both conviction and sentence. No witness testified that he saw the appellant committing this .offence. Apart from the extra-judicial statement which the appellant made to a Justice of the Peace Mr. Chanjarika (P.W.4), the evidence against the appellant was only circumstantial supplied by the mother of the unfortunate little girl Mwanahawa Salehe (P.W.1) and an investigating Officer NO. C 5608 D/C YUSUF (P.vJ.3). According to Mwanahawa. the appellant who is her cousin i'.Ii)..>11 7" II maternal aunt» called at her house that night at about 8.00 p.m. He complained, that he was hungry. She off erred, to cook him some food if only he would supply some relish as she had none in the house. 'A^e appellant gave her Shs. lo/~- with which to buy some relish in the form of d.agaa from a nearby shop. She actually asked, him to go and do the buying himself as she had. her little daughter sleeping in the house and a4.so to give her time to put a pot on the fire. The appellant insisted that she should go and should not worry about the sleeping child because he her uncle was present. On this note Mwanahawa left and went to the shop. This unfortunately was the last time she saw her little girl alive* V/hen she returned sometime later, she found the house empty and in darkness. The appellant and her daughter were nowhere to be seen. She paniclcod and went to s.-IA'.i her relatives’ houses in the area looking foi’ the appellant and her daughter without success* A search was mounted, it was not unti" the following day that the dead body of her daughter - naked and defiled ....../2. was found. Nearby the body was found, a male underwear. The appellant hwaaahaia»%»'^ ^tarfceinent was arrested. appellant denied the allegation that he had killed his niece ox that he had visited- Mwanahswa that evening. According to him he had. met her at a drinking place where Kwanahawa had also called to buy pombe for her own customers who were at her home. From there he went ba-ck to his home and never went to Mwanahawa’s home where in any case he did not have the habit of visiting often. However when he was later arrested fo|r this offence, he was tortured in an effort to Eiake him confess to ^ kiting, but he refused to submit to their demands, he was willing jf said to die ffether than confess. Later when Police failed to make him confess, they wrote down a statement with which they took him to an official whom he later came to realise wa.s a Magistrate in whose presence he was made to sign it. This was the statement he said, which was produced in evidence as his extra.™ judicial statement. The learned trial judge in a well considered judgment rejected the appellant's protestations of innocence. He accepted as true Kwanahawa1s evidence of how the appellant had called at her home and diasappeared with her daughter during her absence from the house. lie accepted the extra-judicial statement as having been made voluntarily and freely and rejected allegations of torture by the appellant, v/o were not told anything at the hearing of this appeal which can pursuade us to draw a different conclusion from the evidence. Once it is accep­ ted. that Ilwanahawa. was a truthful witness and that her evidence is the t n the and that the appellant mde^extra. judicial statement implicating himself in the commision of this offence and that an underwear which tie A t1.— i frh o f! to be his was found beside the body of the deceased, girl, the guilt of the appellant can no longer be in doubt. liven without the extra,-jud.icial statement and the underwear, Kwanahawa's evidence alone once it is accepted as the learned judge did, is sufficient to link the appellant to the killing beyond any doubt. But we join the learned trial judge in rejecting the appellant's allega­ tion of torture for the reason which he gave. The learned, judge could, perhaps have adopted a more formal method of conducting the trial within a trial, but we do not think the method adopted by him oocassiojaed any,failure of justice. The justice of the peace who recorded the extra-judicial statement gave evidence and was questioned by the defence. B/C Yusuf -ha^H n y s^jeadv gjs^en -©videxice was offared. for cross— examlnat-ioH-y "the defiance declined the offer which is surprising in our view since it was D/C Yusuf who was alleged to have tortured the -EgpelXant* On the totality of the evidence we are satisfied that the guilt of the a^pel-lant was proved beyond reasonable doubt. We accordingly dismiss the appeal. D_1L_ZD at TANGA this 8th day of October, 1987. JUSTICE OF APPE/iL L. M. MFA1 ILA Ag. JUSTICE OF APPEAL