19870703 TZCA Dar es Salaam

IN Trill t..:UU. .i.'l' u.:_, 1 lLL-'- '-" •..w ~- -- AT m n ES ,SALAJ➔N CRTIHNAL A:PP.C,\L. NO. 14 OF 1984 lt, MT1 l.~609 CPL. rUCH-.EL KlBOl\fGE - !'t P/INCR.M3 KAD_I\J,JGA o O o • , , o •••• , •••••••••••••• APPELL\NT Versus THE REPUBLIC••~ c, o • '? o o o o o o o o o c o ~o g " 1.1 o e o o o o ~oo Q o o o o o o o o o o O O o O o • 0 REST'()l\D)}:~JT (Appeal from the c.~nviction and sentence of the High Court of Tr,nzania 8.t Dar es Se,lEJ,am (r'.fapige.no·, J,) d:ci.ted 18th de,y of -FebriJ.:,:r.y, 1984 in JUDGE.:I'i:cNT OF THE COURT ,Tht two appelbnts n2mely, riic11 el Ki"'.Jon:·e :::,11,1 Pancras leadengc:i, were ,,. jointly th,.,rged ,,,ith tuo other pe,·fxms in U10 T/L;h Court of Tanzania at \ Morogoro with the offence of murder c Is 196 of Pen,,l Co:le. ,\t the trial in the High Court the s2,id Mich el Kib'Jn.··e 2, y;1e-=-red 8B tbe 1st accused and the 0 s1:1.id Pancr,::;s Kadane-a ,rs the 3rd accused, 'n10 other persons n;:imely Valentino Bataliho and Clinas Z-µlu were jointly clY :r'ged 1.1i th the appellci.nts and they 1 . appear~d as the 2nd and 4th 8.ccused respectively. At the conclusion of the tri_al 1 the 2nd and 4th accused were acr:iuitted, wherea,s the appelbnts were· ,~!. ;-'"nvict9d as ch- rge-d and nen-t;nced to su~:fer dee.th by hanging. Each was aggrieved by his conviction and sence-..1ce, hence this appeal to this Court,. In the ~, prooeedings . in -this, court M.r. J, s. Jacleja, le::i.rned advocde, ' {Jrr~sented the )st, appells.nt on a dock brief whereas Mr, Ballonzi, learned advocc1te 1 a:ppe~red,for the 2nd appelli"nt, apparently on a priv,te brief. "-- ... _ Aeeording to the i:,r.:oce8dings at the tri:?1 2nd in this court there is a ,· ,.. ' '·, ............ g:r.>e2.t deal ·of primary and second: ry fe,cts thet ,,re not disputed behreen the 0 lartie~, 1. It is undisputed ths,t on the 1st February, 1979 a group of armed baJl,dj.ts attempted to rob a shop at Kin(joh,ir:=1, in I'lorogoro District, and in the eoursa of that atte,,1pt the sho1)kee:per on✓ s/o Ibre.hlJII, popularl:y _, I . ·•• /2 , ,a.a.u .u.<..:r..JJJ.rne as 'Amini Mungui, w-- ri shot de:i,d by those robbers. Thi:9 •a.d inoident took place at nbout 7 ~ 30 p.m. while the shop was lighted•, by ele8trio tube light. Fu:rther,,1ore~ it is not in dispute tl'w.t the robbers re.n away after shooting the shopke'eper. It is E:,l,so w:1eli,c;1)uted that among those who witnessed the incident •,r r: the ' :i.fe of tbe dece.,,sed, rni.mely Renema Kaasim,. that is (P.w.4); John DoLJini.c? th_si,t is (P.W.8), · a customer who h8,d ju8t arrived i=•.t the shop; and tlrj one or tuo of the bendits was dressed in army uniform. After the di8c•,ppearsnce of the bandits, P. \I .4 who had also been injured, u- s rushed to hos{1it,·,,l 8Dd the police were informed. Aeting on this inform2tion, a e;roup of c1rmed policemen with police dogs was driven 'to the scene in t;ro ·mo.tor veilicles. They found four speiTG bullets ancl six empty C8.rtriges 2.t the scene of crime. Lf·br co 7.lecting these clues they took the decee.sed to the goverriT11en-l:. hospital. It ·i_s cormnon ground tlr,t ·.:hile one G=!'.'oup of these policemen w,,.3 driving f:r:om the scene t01.1ards Morogoro tovmr:;hip 1 they came r·cross the 2nd accused (at the trial). He ;r:01:1 walking tow-rds Tlorogoro tovmship and as it had r? ined hee..vily, he 1,ras thorouc;hly drenched with ro,in. The police picked him up and interroc;r-ited him. Furtheron on the road to'! r:-ds Morogoro to1;mship, the poliee came across the 2nd appell::nt (who s the 3rd accused '2t the tri2l). He 1.-1°s also ,r;,;lking tmrrds Moroeoro township and ,::::i,s also thoroughly drenched with re,in. He w:,.s similarly picked up and interro-:;::ded. Four days lder, thd is on tlle 5th Febrm,ry, '1979 one Aclinas Zulu, a taxi driver, of J:viorogoro tovmship vas ap1)rehended by some viJ.l"eers and he,nded over to the police, a,s 0.1'."'.other suspect in the hunt for the muiid~re:cs 'Of Amini Mungu. l 7 . } ive months lder, th· t _i'1 on ·he 9th July, 1979 the lBt appelL·nt was arrested at his sister's home in Kara[,ve district, also in connection ,1ith the hunt for the killern of Amini Munc;u. The lBt appellant . had been a soldier in the /\:rmy :md ,re;:: s-i-ti::med ,.t lCinonko, HgerenS'ere, in ' 1'19~g,aro District until be deserted from the Army on the 28th JanUE,ry, 1979 th,,t is,. four dc1,ys before Amini J:1u.ngu vr.s killed. Prior to his desertion from the .A:rmy 1st appelL111t h"'d been d.e-t"iled to go to D--:r es Salaam to 11rocure some provisions for use by the .'\rmy et bis ,station in Ngerengere • . . . /3 ammu:,~ition, 2,nd \l?,s expected to :rGtnrn t:w grm ::ml the ammunition to pror,er cu:Ttody at Ngerenc;ere before he left for ~!} T cs Sala::·m on the 25th J2,nu2ry, 1979. It is cornr,1on grot'lnd 8,lso tfr t aftc,T t~Ji} 2.,::;:c,::-1t o? the 2nd 8-Dd 4th accused (at the tri2.l) eo.ch ,.,. s t,:.iken bufo'J:'c a Ju::;tice of: the Peace that is Magdalen r'lke,ngilr:;. (:?. 11 .15) to 1 ./ 1 0:'1 e, ch r,nle E.11 exculp,,,.tory extra juclici?1 st:J,tement implic"'ting. the 1st anrl 2nd n1)~)e~U ~nts in tbis c--se. It is common ground that an ide,itificc,tion p r~,r}G .., ,; conclucted 2,t I'iorogoro in uhich the 2nd appell.::mt (the 3rd accu:,,,,d ,,.t t'crn trir.1) ,,ras picl,:ed.up by (P.H.3) thr,t is Haruna Abd::i.le... Pin'.:1J.y, it Ls \}nrlirT')uted tc1:•t in the course of ...j investi?;dion, the police oM· ined a SfiG No. 17066919 from the Army at CD,rtriges picked by the police at the scene oi: c:".'iue ue:ce sent to a From the proceedin~:s in ti1e :'hgh Court 2,rnJ in V•:iis· Court the following primery 2nd sec,nc:··,ry f1.cts 2.p,e"'r to be in dis)ute bet· ,een the pP,rties. It is the prosecution c,:se t~1- t t'.1e tvo r,,ppell·,.nts "8 e "•JOng the bandits issued to the 1st appellrnt wr n the r:;un u,,ecl iD 1:illing the deceased. On the other h2-,nd, the rle:fonce case of G'Ch of: t,10 2,p::;,ell-:-•nts cc1nsists of a general denial of the :p:tosecction cG;.r;e ,·nc.l •· 1.1 ao:Jertion of 2.n alibi. Aecorc1ing to the 1st R;J:)el1'°'nt the clecc-•;:;ed ,12.s killed Ft the time when the • 1st appellr.o,nt w2ts trnveJ.ling fron :Oar es '.3ak~n to hi;-:! hor:1e area in Km;2,,gue, after he k.d decided to decert from the 'xmy. As to the 2nd ap:)ell8,nt he was at the materfr,.J. ti·:ie tr. velling on lf)B,ve from :08.r es S2,l::i.am to Eorogo_ro 0 tovms:1ip ·where a.ccorcUnr; to him, he in-ter:,r'ed to explo .'e 1,1h· t Eoro:•;oro could 0 ··offer in terms of sex a;::,r) drinks, He hitch-bi':ed a 1.irt in 8- lorry 1:/,J.ich drol:l',)ed him sbort of Iiorocoro and he '.> s w::1 7<:inc; tow2c,:ds his dostin3;cion when •. J. he w:::s picked up by the police~ ... /4 4 The most importcint issue for consideTation ::,,nd decision in this ca,se concerns the identity of the h=rndits .1,rho killed the deceased. We begin with the 1st appell.cint.. Whd evir"!..ence is there to show that the 1st appellant was among the b,,ndits? The report of the balli,stics expert clearly shows that SMG No. 17066919, which hB.d previohsly been issued to 'the 1st appella.nt before he left for ])ar es Salaam on the 25th Janua.ry, 1979, w s · indeed' the gun 0 used in killing the deceased., According to the prosecution evidence the 1st appellant was expected to hand in the.gun in proper army custody before he left for Dar es Salacim on the 25th January, 1979. The sa.me evidence shows that there was an Army rer;is-cer kept and r.1aintained at Ngerengere Army Station in which the issuing 2.~'Jd returning of g1,ms and ammunition was recorded. The 1st appell,c:n"t claims to ~Veve returned this guh before he left for Dar es Sala8.rn. Unfortunr1.tely, the arm;{ :rec;ioter in question got destroyed in a fire that occurred at t''.le police st0.tion in Morogoro while this trial was proceeding. Unfortt:m:.tely still, the Army Officer who kept and maintained the register in qu0.stfon:;, that is Cpl. Eeatus Leo, died before he coul,~ give evide:1co in c,:;Jr·~,, T'.1.o::r1 two events disabled the prosecution from adducing co ;ent E:7~.de':1ce 1:bich could discredit the claim of 0 the 1st appell:<nt. We agree vri tb ·!:;br~ sulxnission m-::cle by Mr. Jadeja that the eircumsta.nces of tbis c . .se d,:., not oxc},ude the pr0bability that the gun could have been used by a, person other thc;n the 1st appelbnt after his desertion from the ci,rmy and ,..rc:,s returned 811d a1Jendoned· in the ltrmy Mess where according to the evidence it was l.c:i.ter found. The other piece of evidence ·t:;ainst t:·,e 1st appelb.nt consisted in the extra-judici0l exculpntory statements m·· de ,oy the 2nd and 4th accused. It is settl(l]d 12:w th~t such exculp.3.tory st8.ter,1ents are evidence only agevinst the m::i.ker and C8.nnot be used to implic-:-•te r;,,nother person. This Rule is stated in a number of C8.ses includ:i.ng the cose of £htff_tiNq-Q._ and_.Q_tJ1.e:r:_s__ y~ Rep~l_i,c~.(_1~6~..,'..~A p.1_4.2,. The }J:,_ inciple underlying such c::o,ses is that 0 r exculpatory statements are self-serving G.nd are :::iirned at shiftin~ blame to someone else arid are the:r-efore unre-li2,ble. ·· • ... 5 - The third piece of evidence agairnit the bst appellant consists in the te,stimony given by tho 2nd and 4th accused in their defence at the trial. This tYP17 of evidence however requires corroboration ~ccording to an Qstablished Rule of practice contained in many authorities including the case of GODFREY ~~§.-1-?.:l[~A.::~tJR. 921£:'?§__V:;.)l _(.J:_9,§g.)__'!'.•}-'.!!_-_J?.•-2·.21• . The principle of caution or prudence involved is basically thrJ "s"me as thd underlying the judicial approach to exculpatory stderi1ents, althouc;h in the case of ) accomplioB evidence it is provided under section 142 of the Evidence Act, 1967 th2.t "•••.000 .. 0.00•~"••••• a convic'tion is not illegal merely because it proQS4;~ upon the uncorroborated testimony of an accomplice. ir We have oon8irlered whether a convj_ction in the present case before us can 1·, ba- auPi)Ortoo. el.aly- by the u:ncorrobor-'::!ted .accomplice evidence of the 2nd and 4th accused. The answer is in the negCJtive. As correctly pointed out by Mr, Jadeja, learned advocate, the accomplice evidence given at the trial is incol'U)iate:ot inmaterial particulars with the exculpatory extra-judicial statement fil8,de by the 2nd accusGd to the Justice of the Peace in that the 2nd accused told the Justiceof the➔ peace thd he end his accomplices \ tra.-velled to Kingolwira by mini-bua, and that he and the 4th accused were -present at the scene of crime when the shootinc; started. In their evidence in oourt, the 2:-,d and 4th accused stated in effect that they travelled by hired taxi and that when the shooting started th~y h"'d left the scene. Thia inconsistenoy undermines the credence of the accomplice evidence. So we have to .search for corroborative evidence. ThGre; :is!.n. fofu?th'; piece of evidence, which if reliable, can be used to cor.tobora~ the accomplice evidence of 2nd a.n.d 4th accused. This is that of the ta.xi driver (1,.,:.3) who claius to h,1,ve unwittingly driven the appell8nts to e. :point two miles from the scene of crirno, P .v .3 made a dock identificstion of the 1st appellant at ·che trial. This dock ident ifict ion however is high:1.y unsatisfactory becw,so H is in evidence that this witness \ was in custody together with the 1st appellant. Under those circumstances \ it is quite l.ikely that -the witness got acg_uainted with the 1st appellant in the course of th=,t cuBtor.ly.., Unfor·cun:=,,ta1y, the evidence also shows that P.W.3 did not have pr:i.or 2,cquittaY1ce ,.rith the 1st, appellant when P.W.3 drove him in the taxi on the mater>.l day because the 1st appellant· was .ses.ted at the back of the t2aXio ~terc ir::i thus no cogent evidence I to corroborate the accomplice evidence~ given by the 2nd and 4th accused at the trial. It follows therefore thst there is no sufficient evidence to support the conviction of the 1st a;,pelb.nt. We. now turn to the 2nd appell8,nt. The evidence against the 2nd appellant is basically the same as that adduced against the 1st appellant, with the exception that the 2nd appellant was not a soldier and hP.,d never been issued with the gun used in killing the deceased. Moreover, unlike:the lat appellant, -he was identified by P. W.3 at an identific2-tion p9.rade conducted by the police after his arrest. ·nowever 9 the question arises whether this evidence of the i0entific~•tion pC,rade C8,n be used e,s evidence to corroborate the accomplice evidence given by. the 2nd and 4th accused at the trial. Unfortun.s.tely, t'1is eviclence of tte j_dentific..,tion po.:rnde has a sericrll.Ei. :weakness . P. W.3 confirmed in his evidence at the trial that the 2nd appellant w2,s one of the two ,sus1J0;ct;_; placed in be parade of 15 peoplet and he and the other suspect were the only persons sw?ddled in b,,ndages and v1ore tattered clothes. Th8.t being the position 1 the appell::rnt and the other suspect must have been an inviting and obviou~1 tari:.:;et of identification by P.W.3. It would be unsafe to rely on· such evirlence of identific.s,tion. We are therefore Left \Ji th the uncorroborated acc01n1Jlice evidence of tbe 2nd and 4th accused. Such accomplice evidence is insufficient to support a c ·nviction of the 2nd appellant as is the C8,se in Tespect of the 1st an1ellant,. It follows therefore thst we are bound to interfe:1'.'i;: witb tl1e conviction of ep,ch of the appeJ.bnts. \!e tberefox·e allow the appeal of e" ch of the appellants, quash the· conviction and set aside the neffte,1ce imposed thm~eon, and we direct th2..t each of tbe appell,,r:its be released from jai1. forthwith unless detained therein for other 1 vful cau;c;e~ ··••!~ . Dated at Dar es Salaam this 3rd rlay of July, 1987., F. L; NYALALI CHrnF JU~;TIGE L • J/1 lt'.L.~2{ ·J Jl~ 0 ~~~1.I~?l~ q~: :_~/-~_>:_-, :; ~\L R. H. KIY}Ji'._:·c JUSTlr:'.iB OT' _1\f'?_~i1.L I certify that_ this is a true o? the o:dc:inal. ~ 'I.lit J. H. I1SOFFB DEPUTY· REGISTRliR ........ --.-...............