19870505 TZHC Mbeya4

IN THE COURT OF APPEAL OF TANZANIA AT 1'.:BEYA CORAM: TIUSTAFA. AG . C1J.j iAKEJ.A.ANDORJ.A. CRI1I1NAL APPEAL NO. I OF 1987 YOHANES PAULO KILO 1 OIO ... . . .,.... APPELLANT And ThE REPUBLIC RESPONDENT (Appeal from the conviction and sentenQe of Th High Court of Tanzania at Irina)(M 1 D 1 Nchafla, PR1) dated 23rd. July, 1986 In Criminal Sescions Case No. 61 of 1981 JtJDGENT OF THE COURT MAKAME J. A - The appellant YOHAI'TES PAULO ICILOVOK0 Was convicted for the murder, of a woman called JENNETH PILl GIDION, his c"villaZer and a friend of the appellant's wife. The High Court at Iringa (Nchafla, PM, Eisctended Jurisdiction) duly condemned him to deaths Mr. Mwakingwe, learned advocate who represented the appellant al tJe trial, appeaxed before us to argue the appeal 2 which was resisted by Mr. Lundu, learned attorney for tho Republic. The deceased, a great friend of tie appellant's wife PW4 ADIJ4 MGAYA, was married and living at Dodoma with her }.sband A the matera1 time the deceased was visiting her mother, PWf y A SEMBEWE, at Kitasingwa Villáe where the apellant was also li.vi,ig 4 During the niht of 30th April 1980 the deceased was brutally speared. in the compound of the appellant's house, acqrding to the Post Mtem Examination Report she was wounded nine tinies t and she die.d the following day on arrival at Ma±'inga Hospital 9 The of death was given as Pneumothorax, Haeriopneumothorax 1 Inea and Extnal Haerncrrhage, Cardiac and Respiratory Arrest s The evidence the trial court relird on to convict the appei,an was mainly the teaimny of the appellants oi wife, PW4 and a Dying DeclaratioiT-tho deceased made to Village Chairman PW3 PAJTGI- LIGSI 1INGA irnpiiting the appellant. The appellant had put up an alibi that h speiit the material night travelling from Sao • I ri —2- Hill wliere he was working, to Iringa where he wanted to purch a radio nd he reached Irina -shortly after 7.30 in the morning 1st Tay.1980, The trial court reectcd this alibi as untrue, • Mr. Mwak-ingweeubmitted that P'.V4s identification of the assailant was unreliable becauae the night was dark and the assat4 swift. He arso submitted that the trial court was wrong not to hive directed the assessors and himself that the evidence of PW4 needed corroboration because PW4 is the appel1ants wife 0 With respeo to learned Counsel,: this complaint is ill—founded: The appellan 1 :1 wife gave evidence after being duly warned in terms of section of the Evidence Act 1967. There is no rule which says that evider1e against a spouse must be Oorroborated, Mr. Mwakingwe further jCanp lamed that th6,trial Principal Resident Magistrate erred in not directing the assessor and himself that there was need to look for independent evidence corroborating the Dying Declaration, Mr 1 MwaJ ingwe's last complaint was that the rialcourt erred in holding that the accused's alibi has not been established, thus the burden of proof onto the appellant on the defence of alibi. 0nhis part s Mr. Luidu supported the lower court's ö.eision, - arguing that PW4 properly identified the appellant as being the assailait and her evidence was correctly accepted by the trial ourt, We shall fIrst deal with the evidence of identification 4 I• Ce tz'ue that, according to the record, there was no moonlight. How&e according to PW4 she had already lit a koroboi when the appellant emerged from inside the house, clad in uriderwears the witness clearly recoized and dashed outside under her arm—pit. The - J appellant pushed the deceased when the deceased was within cnve sation range with PW4, and repeatedly thrust his spear thto the deceased's body0 - PW4 was so certain of the identity-'df the aa3- ant that she right away implicated the appellant in her repoit to the deceaseds mother as well as to the Village Chairman. With respect t6;iearned Counsel, it is not correct' that the learned Principal Resident iagistrate did not conSi-.ier the jaeed for co'robo'ation of the Dying Declaration0 He certainly ÔJ4, and •0 0ff/3 1' 7 -3 . - found such corroboration in the testimony of PW4. The trial cout put it this way (Page 2I) 'This dying declaration, should it require corroboration, such corroboration has been afforded by the testimony of an eye witness (PW4) 11 ... It is,. howeer,.• correct tbat the learned trial magistrate did not direct the assessors on this aspect and in thisr he was clearly in error 0 On our review of the evidence we are satisfied that the deea'sed's Dying Declaration was amply corroborated by, the clear evidende of PW4. iVir. Nwakingwe's last ground of complaint was in connection with the Appellants alibi, His complaint is justkfied, In a criminal case where an accused person advances the defence of aibi it is enough if such alibi raises a reasonable doubt 1 He does not have to establish that the alibi is true. This is the correct posi- tion and the learned trial magistrate clearly erred when he directed the assessorA t1us:'YCnsider whether in. he light of the eidence given by DW2 and DJI3 you believe that accused's alibi is established." 1 He further erred when he observed in his juient that 'Accused's alibi has not been established". However 9 we are of the consid.eed view that in the light of the evidence of PW3 and PW4, the appellaxt' a.jbi cannot have raised a reasonable doubt. The evidence of PW 1 the appellant's son-u-i-law, as well as that of the appeJ.Iant's co-worker, does not exclude the presence .f the appellant at the scene of crime. Besides, we note that the-appellant did not indi Qate at the beginning of the trial his intontion of relying on the f defence of alibi in accordance with Soction194(4) of the Crintha1 ProQedure Act, We are satisfied that the appellant was properly convicted and that his appeal has no merit. It is accordingly diiisd DATED at MBEYA tins 5th da., of May, 1987. I. . A. MUSTAFA AG. CHIEF JUSTICE 4 .4 L.M. MAKAME JUSTICE OF APPAL A.M.A. OMAR JUSTICE OF APPEAL I certify that this is a true copy of the original. (J.H. Mso f e~ DEPUTY REG thAR\J J • - , 1 -f • - - •-