19870704 TZCA Dar es Salaam

-:.....· .,. \ L~ IN ~.dE COURT OF APPEAL OF Tili:-TZANIA fltc_ ~ '-...s'''·...:.~ AT D.\R ES S:UiAAH · COR.AMi ....... NYALALh,_ C. J. L MAKA!'1)1_,I_.:~•. _/\._1:!st KJ;_Sil.lJ~~-2._. A. <: CRIMINAL APPEAL NO. 66 OF 1985 ,-1_ ·, EX.AUD SWAI •••oooeo eoe•oo ooeoo 0000 oo o o e o o o o o o • o APPELLANT 1u,m THE REPUBLIC e o • o o • e • o • • g oo ofloooc, aoooooo oo o•oeti RESPONDENT ( Appeal from the conviction and sentence of the High Court of Tanzania at· (Hon. Bahati,J.) dated 12th day of June, 1985 in Criminal Sessions case No. 30 of 1983) JUDGEMENT OF THE COURT ™_I .a C • J • ~ The appellant Exaud St-18.i was jointly charged with two policemen , n&me,ly Cpl. Florian and P.S. I. Pakilo Mwaitebele with the offence of mu,,der c/s 196 of the Penal Code in the High Court at Dar es- Salaam. At the end of t.he Prosecution C8.se~ the two policemen were .:i,cquitted sn the ground tba.t they" had no c,-,se to answer. The appell~t ·at the &nd of the trial was convicted but for the ·lesser offence of nranslaughter c/s 195 of the Pencil Code and was sentenced to twelve years imprisonment .. The appellant was ag~ieved by the conviction and sentence hence this appeal to this court. Nr. Raithatha, learned Advocate appeared for the appellant, whereas the respondent/Republic was represented by Mr. Shio, .,._J learned State Attorney .. From the proceedings at the trial and in this court, it is apparent that the following primary and secondary facts are not disputed between the parties. It is common ground that the appellant at the material . time was a taxi driver, and that on 17th December, 1981 he was hired by the two policemen, who were acquitted, to drive them around the city •f Dar es Salaam. In the cou:i;se of the,t driving, the appellant and th& two policemen arrived at Si.kudhani Bar near Chang'ombe Police Station ·--/2. lY / /' / / ,:-~· ' .... ,. ,.,_ ~•~Jo:;:+(-"; ·>jj)lll:c' : . lfjF}'lj•;:i, ,, ·," .;,~-~~'l-\~ .,6 ;r,,,._. \ ,. . - .,..,.. ·if:j-,t ..'., ...... ~:', .,t_ ._. ..,· ..~l>., 1.:t•~·- k.;,1\•,·."·.·. ""! '. .,. ~~',.-•' -· .. ,,..., •~• •~ -~• • ..~: ~( ~. "\ .; ;'• •~~.- ·:/ • i r ., ..,, ; . . . '·~ t·: ·, >•••i: • \' --l ,,.., _r°, •/I'••·< • ; ' ~ . if 1!·:,1 - .... .!w·· •t·~..:ry·J 2 I - ~-! . j •• '"t1 . . .. ·:, rc'. ..,. f. ; ; .. ;..· 'If" r '-(~_,: ~ .~:. ~- •;;n'"~': ' ., :~-~,,·~··•r··•~· -', ,' ;_~ ·-, ..,,. . ~- .. / ~--'' "/~~-~- : ;~ : ., ·/L . .,_ '. ,,.._ .. '· >I!£ ·. \J~-l · - ~tii1 :: ,):fr! : ~t.'· , "·- in Dar es Salaain.• The appellant and his two comp2mions went into the ',t,_. .... ;i·. Bas and ordered some drinks Hl1j_cl1 t;1ey drank togethc:;,r until about closing Ii< time around mid-night. It is undisputed thc1,t one policeman namely, ~~­ ,.. , f: Clll• Maohumu, who was off-duty, aloo visit~d Sikudhani Bar and was there l J. at elosing time. It is common ground that e.s the Bar closed the appellant's two companions went outside the Bar leaving the appellant to finish his d.2:i~, There is no dispute that one bannaid, namely Severina, also got outside the Bar and she was seized by the appellant's two companions. Ott~ Me.ohumu, who was around, intervened apparently on the side of t Severina. A scuffle occurred. At one point of the scuffle, the appellant got outside the Bar after he had finished his drink. !tis undisputed th.at i?'l the course of the scuffle involving Cpl. Machumu and the appellant's oiomllBJlions, the said Cpl. Machumu got seriously injured in the chest. A ,:epoJ:1; was me.de at the Police Station at Chang' ombe with the result that the police arrived at the scene and arrested the appellant and his two ~ompanions at different times. It is undisputed that when the * appellant was arrested he was in his talcen to. Police Station Chang'ombe whereas the said Cpl. Machumu, who car parked outside the bar. He was .,., he.4 been seriously injured, was rurih0d to Hospital where he was hospitalized l-· for some days but 1~ter dischrrrged., Subsequently, Cpl. Machumu's Ci .. :,j~~- f'... ~ondition deteriorated and was readmitted in hospital, but died on the ,, ~.., ~- 6th August, 1982. A post-mortem examination was conducted on the deeea.sed by Dr. Ndet iyo Pallangyo,. t ha't is P. W. 7, who made a post-mortem ;~;-✓ r~port which was produced and admitted at tr.ial as Exhibit A• Dr, ~langyo found tha.t the dece8.sed he.d died of Trauma.tic Diaphragmatic Hel:llia, that is, StomP..ch Herniation. He observed an old heeled external St,aJ'.' on the left side of the chest between the ninth and tenth rib. '·' On opening up the body, be f~und that the diaphram had been punctured, allowing t~ intestines to go U:P into the chest cavity and push the lungs. •••• /3. I,. .,> :. . ./,1, .. !ff ,.,.., \/• "& ' ,: . ":'. -'~~~ ;j~"i: ,~· ,,~ ';"t ,,,it \I - ... fl··:.,, \ - 3 - From the same proceedings in the High Court and in this Court it woul,t seem that ·the following primary and secondery facts are disputed between the parties. It is the prosecution case that.when the appellant get outside _the bar after finishing his drinks, he went to his car, fetched a. knife, then went to the scuffle and stabbed the deceased in the ohest. It is part of the prosecution case that· the. stabbing inflicted both an external wound and an internal wound which punctured the diaphram. vfh~ the deceased was taken to hospit-a.l, the internal wound was not noticed and the dooto:rs p:roca.eded to treat the external wound only. The internal wound ~emained th.us untreated and subsequently gave rise to the death of the deceased. Tbe defence {::.:::i.se on the other h-;nd, consists of a general denial of the :proseoution c~se, and an assertion to the effect that at material time the a.11:pellant was so drunk that he did not know what happe·ned except being taken by his companions to his taxi and la,ter waking up in custody at Police Station Chang 1 ombe. The ·first important issue in· this case is whether the appellant stabbed the deceased. The prosecution called an eye witness to this incident, that is• one Adolf Mtenga (P.H.4). He is a co.unter-barman employed at Slkud.hani Bar and had gone. outside the fur after closing hour. He claimed . - ,~ to have .seen everything. There is however, evidence adduced at the trial ' by Inspector Harun Amir (P.W.1) as well as by Kombo Mwinyibohari (P.W.5) to the effect that the visibility outside the bar was poor. Since it is common ~ound that the stabbing occurred in the course of the scuffle, it follows that the conditions prevailing at the scene were not favourable to eaey identification of the ·actual assaillant.. It has been repeatedly held by the courts, including this court, that it is dangerous to act on the evidence of a single identifying witness where the conditions are not favourable to easy indentification. See the ca.se of J.,US~A_..§1.l.AN~ ' vf R(1980) T.L.R •• Eae.2.1?..~~aj;jn~.error continue~ to ~@s 18-1.2,. ♦W , •• 0 ./4. • r 1_, I ' . 4 We have asked ourselves whether under the circumstances of the present case the identification by P.W.4 csnnot but be true and therefore safe to ground the conviction of the. a,ppfllant. Irt our considered opinion, the answer must be in the negative bece.use we cannot reconcile the guilt of 1;the appellant with his deeision to remain in his car p:::,.rked outside the bar i.mtil he was arrested by the police as testified by P.W.1. We have looked for independent evidence to cortobora.te (P~VJ.4) but we can find none. It 1;10uld seem ih?.t, this is a case where corrdborating evidence should have been forthcoming from the girl Severina who appears to h:3.ve been the cause of the scuffle. She wcJ,s however, not called a.s a witness and no reason was given by the prosecution for not calling-her. Mz-1 Raithatha, learned Advocate 112.s requested this court to draw an adverse infe~ence under the provisions of section 122 of tbe Evidence Act to the effect that the prosecution decided not to call Severina because they .v · knew that she will give evidence unfavourable to the pros~cution case. Section 122 of the Evidence Act at~ tes~ 1 11 The court may infer the existence of any fact which. it thinks likely to h~ve happened, regard 1:>eing h:;,,d to the common· course of nr--tural \3Vents, human conduct and public and private business, in their rela.tion to the facts of the particular oase 11 • We think under the circumstances of this case 0 an adverse inference can be drawn as suggested by Mr. Uaithatha. We are fortified in this position by the f~ct that the girl Severina W[l,S the root cause of tU.; the seufne and co:oaequential killil:ii• She would ha,ve been the star pi:osec!Jtion witness. All this me2.ris th:~t the evidence adduced by the prosecution does not PZ:ove beyond reasonable doubt that it was the appellant who stabbed the ···,.<' deceased. Some other person could he.ve ste.bbed the dece sed in tbe course: ~ 0 o! the scuffle, and since there is no evidence of common intention between· fj the appellant and th:'1.t other person, there is no basis upon which the appellant can be heldori.min9lly responsible for the stabbing. ••.. /5. , 11_.;. ~ ,.. J . 5 We a.re bound to interfere wit~ the conviction and the sentence. We therefore; allow the a.:ppeal, qua,sh the conviction and set aside the sentenoe. · We further di:i'ect th,c:i.t appellant be released from jail forthwith unless detained therein for other lawful cause. DATED at D.4R liE BALAAM this ,';\t_\:>,, , •d,zy of, .J\\.~, 1987. ___ F. L. NYALALI CHIEF JUSTICE , L. M. MAK.AME JUSTICE OF APPEAL ~A . ., _ __..•~-- R. H. KISANGA JUSTICE OF APPEAL Ilcerti'fy tha.t this ia -a true copy of the original. vf✓~/,j· ( .. J •. H. ·.MSOFFE ) DEPUTY REGIS~ \ "4'