hamisi juma vs republic 1987 tzca 75 7 october 1987

AT TANGA lUQHAMg OMAR, J.A., MFALILA, Ag. J.A. And MAPIGANO, Ag. J.A.) CRIMINAL APPEAL NO. 43 OP 1986 KAMI SI JUMA...........................APPELLANT VERSUS THE REPUBLIC .............. ........ .RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tanga) (Sisya, J,) dated the 26th cay of February, 1986 in Criminal Missions Case No. 4 of 198? JUDC ilBNT OF THE COURT MFALILA. Ag. J .A.; The appellant was charred with and convicted of murder by the High Court Sitting at Tanga (Sisya, J.) and was sentenced, to death. He appealed against both coiviction and sentence* t The pillar for the prc 5-ecution case was the witness AH'ITA M/iHSNGE who gave evidence as (P.W.3). She deposed that on the day or rather night in question, she and the deceased who was her lover were walking back to her home from a beer drink when they met the appellant. The appellant for no apparent reason started abusing them for returning home so early. When the deceased returned, the compliment, the appellant became very angry, he went away threatening to come back and teach ./ . him a lesson. Indeed he returned with a knife with which he allegedly attacked the deceased on the stomach. The deceased died later this The appellant denied the allegation saying that when the tnei.dAUu happened at the tea estate where he and Anita were employed as tea pickers, he was at home in Luthoto where he had gone to tend to his sick mother and that he was only ar.vested when he went back to the eat&te sometime in November. The learned judge sized up Anita as a witness and decided to accept i^er evidence wholly in the following words»~ "On my part, I hav ■ had the opportunity of observing Anita (P.W.3) in the witness box. She is an ordinary village woman, the type one would perhaps describe as a raw citizen. She eve her evidence in a simple and straightforward manner. I entertain no doubt whatsoever in my mind, that what she told the court was nothing but the truth. In the final result I accept Anita as an honest and truthful witness and I am prepared, to act on her evidence without reservations". We cannot pretend to even gussa what the judge had in mind in de-s^ibing" Anita as a raw citizen but wo feel that the use of such derogatory remarks against citizens of this country is unfortunate and should be avoided. Anita's evidence is not free from controversy, and it was this which planted considerable doubts in the ninds of both the gentlemen assessors. According to her evidence, the only way in which she recognised the appellant when they met was through his voice. She said that although they met other people on the way, she did not identify them because it was dark and none of these people talked to them. But that she identified the appellant because of his voice when he talked to them. The principal method, of identification was therefore the voice. In the circumstances we think that the learned judge was in error when he said at page 39 (Lines 11-14) s- "Prepared. as I am to act on the evidence of Anita, I am satisfied beyond doubt that Anita had more than ample time and. opportunity than was necessary for her to see and recognise the accused. I am also satisfied, that the question of mistaken identity does not arise.’* Anita's evidence was that oho recognised the appellant through his voice when he talked to them. The implication is that if the appellant had not talked, to them lik? the other people whom they met on the way, she could not have recognised him. Recognition by voice in darkness is evidence of the weakest kind. There is also the question of Anita's own conduct at the roaterial tine. Again this gave the Gentlemen assessors the greatest difficulty. Despite the appellant's aggressive behaviour from the beginning and actually seeing him return holding a knife, she still thought he was in jest and decided to continue with her journey Lo^e oblivious of what happened or might happen behind her. The Gentlemen assessors found it very difficult to comprehend, this kind of behaviour. We find ourselves in the same difficulty. Was she biding something? If so what and for what purpose9 In his defence the appellant stated that he was not at the c'. at the time of the incident. Admittedly he was not a very irr:r:.:j.cr. c witness. He gave contradicting statements on how he had received news about his mother's illness, but he did say that after receiving this news on the 18th June, he left the camp the following day 19th June, for LU3hotQ to tend to his sick mother. He said he remained there until .«.0 .j ~*). HcrTrjsaabeT when he decided to go bax>k to his place of work only to be arrested by militiamen on arrival. If this is so, as indeed it uust be in the absence of contradictory evidence from the prosecution, his version would tend to point to his innocence. The prosecution failed, to lead evidence from the appellant's employers that he had absconded fro.ii the camp. In the absence of such evidence we think the learned Judge misdirected both himself and. the assessors when he stated at page 25 of the records- "Without wanting to seek permission from his bosses he simply left and he was away for a most half a year when he was arrested in connection with this matter:i. The prosecution did, not call the arresting and the investigating officers to come and say how, when and where the appellant was arrested. If the appellant had committed such a serious offence at the camp and absconded, could he have decided to go back as he claims? It could well be that if the case had. been more competently investigated and prosecuteds the result might well be different, but at the moment we are not able ta say like the two gentlemen assessors in the High Court that in the light of these shortcomings the case agrinst the appellant had been proved to our satisfaction. Accordingly we allow the appeal, quash the conviction for murder and set aside the sentence of death. We order his immediate release from detention unless he is otherwise lawfully detained. DATED at Ta NGA this 7th day of October, 1987. A;;. JUSTICE 0? APPEAL D. P. MPIGANO Ag. JUSTICE OE APPEAL fy that this it; a true copy of the original. (J. Ii.SfeOFFE) DEPUTY REGISTRAR.