19880311 TZCA Dar es Salaam

--sv. ,' {)- IN THE COURT OF APPEAL · OF TANZANIA° AT IXU>O_MA (~l: l'IAKAME. J .A. I KISANJA. J .A. • .And OMAR. J ·¾.) I CRIMINAL APPEAL NO. 37 OF 1987 MALESA HUSSEIN. .. . . .. • APP.ELL.ANT VERS1E THE REPUJ3LIC • • • ,. . . . . . . .. • RESPONDENT (Appeal from the.conviction of the High Court of Tanzania at Kondoa') ·(Bahati, J .) dated the 28th day of March, 1987 I in -~- --Criminal Sessions Case--No-;-18 of_ 12§2. JUIGMENT O.F THE COURT KISANGA 1 J ./1..: '· This appeal arises from the appellant I s convict.ion· for murder contrary to section 196 of the Pena1·eode .and the sentence o! death imposed on hi_m by the High Court (:Bat'Wti, J.) sitting at ·Kondos. / Tha -conviction was baaed primarily on the .evidence of Johe, R~s~~d (P-..w,.2). The witness testified that. on the day of•·tlte·., incident,.,.as. ,. she was returning from the rive.r at about .3 p.m., she found the deceased . on -the .way. She and the deceased exchanged greetings.· Then praaontly the appellant appeared and begat_l to rpugh up the dece"!~e.d. The witness asked the appellant what he wa~ doing but the appellant threatened to strangle, :ber_if st:ie made noise ....:~~-=e~pon the witness got fright.med and ran home. Sometime later-at about sunset the witness "heard-an ,, . : ,.·,•.: alarm and on answering it, she founf the deceased lying dead nea~ 'tbe- place. where ·:she had left him ·and,t~e appellant.. The qied~ai evidence,: .w1;1s that death was due to a raptur~a; sple!n• The l~arned trial j~dge, howeV'er, fo~ f.W •.2 to be. awitn~$8 ,with an ih~ereat of her own to serve, and as such her evidence ~equh'ed. · corroboration. . This finding and direction by the learned judge ,.:we.re - quite justified ••.•••.• ~ ••••••/2 -, --.. I = ----=-...=-:.-.-.- - - ·-,------ ·:~.> ........ -.- ... 2 ~uite, justified. · The.re was overwhelming -evidence to support the ,. ; .. ,, ~ ' finding that P.W.2 had an interest of her own to serve. ~he nev~r disclosed the incident·· ., to her . fellow villagers. '. , She,was arrested . fo~ thie offence. ·She was put in custody for six months and was ~eleaeed· . only- one day\a~ter making a pol.ice i;at-~m~n~ ~ which she disolos~. I • '· the incident·, and upon her release ,she was told that she would be a witness for·the prosecution • .- Then·the learned trial judge went on·to :(ind corroboration of P.w.2•s evidence· in the evidence of Mohamed Sakatari (P.w •.'.I) wbp · . testified that some five days prior to the date of the iru:ident the . -~ppellant had approached P.w.1, the grandfather of the deceased,·and· . . asked hµn_ to Jal?3.:_<;.a..r.i;. of 1ihe deceasedr-otherwia.e he wo~~ .b~~ . , . ..him (the deceased). 'I'ha appellant repeated th~ warning three • • • • I • \ timae that day. Relying on the evidence of these !two witnee~es, the learned tr_ial judge entered the convic:tion as he did, hav~ found'that the. ~p~llant•s defGnce consisting of a ~re denial of the _charg.e did not c·ast ~ doubt -on the prosecution case. We t]1ink tb.at. the evidence of such warning or threat as . . given by ~.w-.1 did not afford su,ffioient c'orrobor8 tion of P.W.2 1 sI •'• • evid.~_ce so as to justify the appellant •s conviction. Fo1•, despite such warning or threat, it was still possible for t~e d~oeased to have. bee:q _kill~d by someone other th~m the. ~ppellant. In saying ~o. ~ . . .- . I we beal'. in mind the trial judge's finding 'that P.W.2 in~- statement, , to the police "had stated that when she left the scene of crime. tbl!t . afternoon ther~wa:t-e--itiree persona _prea~nt; ·namely, the deceased, the appeilant and Matutu Hassan (P.w.4). in her evidende in court, however, she:contradioted her police statement a~d claimed that she ·~ left oniy the deceased· and the ap~llent at the scene~.: . .Matu~u Hassen (P.W.4.wae jointly charged.with the appellant, but the·ebarge '. against him. ••.•• •·• •• •·• .....:./-, •• ... ... 4-.<o ..,.....--- .. • - 3 - against him wa! withdrawn subsaqua~ after which he was made. a, prosecution wit~ess. In his evidence, of course, he denisd being ot· the sce~o or seoing the deceased at all on th~ material In these circwnatances we ·think that one cannot rule out ' complet~ly t'e po~sibility of P.W.4,.,or some other person for that ~tter, being corll19ctod with the de~th of the deceased. F6r the reasons aet out above; _we think that it would be unsafe to uphold the convi.otion. In the result the appeal is allowed. The conviction is quashed and the sentence set aside. 'The appellant is to be released forthwith unless he is otherwise lawfully he_ld 'in custody. DATED'at 1X)J)()MA this 11th day of March, 1988. L-~·lf:·MAKAME JU3TICE OF APPEAL R. H. ·KIMNGA JUSTICE OF APPEAL A~ M.A. OMAR JUSTICE OF APPEAL I certify that this is a true copy of tbe original. ~}# (J. H. M30FFE). . SENIOR DEPUTY RmISTllflR. ·•