19880623 TZCA Dar es Salaam

·- IN THE-COUR:T -OF APPEAL _,OF TANZANIA AT DAH ES SALAAM (CORAN~ JVIUSTAFA 2 J .A. 1 IV"J.AKA.ME 2 J .A., And OMAR, J .A.) CRIMINAL APPEAL NO. 53 OF 1988 BErWE}:;N SAIDI MWAIPOPO. . . • • • APPELLANT AND THE REPUBLIC. • • • • • • RESPOMDENT (Appeal from the. conviction of tpe High.Court of Tanzania at Morogoro) (Bahati, J.) dated the 19th day of June, 1987 in Criminal Sessions Case No. 36 of 1984 JU:W MENT OF THE COURT OMAR ,2, .J .A • ~ Appellant was charged with and convicted of the offence of muriier conti:ary to section 196 of the PGDal Codeo The pr.osecution evidence led by P.W.1 Apia George the wife of the dsceazed and the sole eye witness, is to the effect that on the afternoon of 9/4/83 at Kidoma Mikumi Village, P.W.1 w~s at the· pombe club selling soup~ Her husband Mohamed Isavi, the deceased, \ went there accompanied by -~~::2e J.V.iashambu and they started drinking local liquor. Appellant joined them and wanted. to drink their liquor but Mohamed refused and. stopped him from drinking it, not only that ·out he also got up and. farted at the mouth of the appellant. Appellan.t thereafter got up from his chair and left the group and went and ordered his drink and sat alone els,ewhere and drank it, P.We1 returned home at 7 Pom. At around 8.30 p.m. Appellant went to her house carrying a panga and asked for soup and she replied that there was none~ Then he asked her if she remembered what her husband had done to ,~,Jin that afternoonG She said. her husband• the dece~sed, •••o••••/2 I A. ,; 2 was~ better person to answer that~ then appellant left. At 9.00 p.m I P.W.l's husband returned home and they agr.eed that she should accompany him to his brother's house where he would spend the night and also hoped to get some money from his brother. While the couple were walking on the road :in an area which was called Chekereni P.W.1 sa:w ... the appellant cutt:ing the left part of deceased 1 s head with what appeared to be a.panga. Deceased fell down. Both appellant and deceased were near her. Appell8nt was bare chested. and a woman ·. ·;::! companion was also there together with another person whom she could. not recognize. The woman present at the· scene was Adija Abdalla. who was the co-accused. of the appellant but '\,!ho was aoquitted of the -chargo because of iack of evidence. P.W.1 was certain!ibe identified the a1)pellant and. Adija inspite of the dark night because of their nearness to her and their familiarity with her through long aqua:intance. They were fellow villagers. After the attack the two companions of the appellant chased her and she ran to her home. When she returned to tl1e scene she found her husband. absent. She later saw him at his father. 1 s house. · The learned Counsel for the defence Mrs. Mutabuzi assailed this identification of appellant in the dark a~d said emphatically that a witness who said. she recognised. the appellant :in the dark could not be a reliable one. But the trial judge co;1sid0red the d.et~iled . story of P.W .1 and the other su.rrm.mding circumstances. P.W.l had recognised the bottle of kerosene carried by Ad.ija. She saw tl1e pa:bga of, the appellant which was later found in P.W.4 1 s house. · These factors 'would lend credence to her testimony that appellant was seen by her that evening. P.W.l also saw Adija with the appell?nt and Adija corrobor 8 ted P.W.1 1s testimony to the extent that Adija was at the material time :in that vicinity. . ·- ...-............... Deceased died 19 days later in Muhimbili Hospital and the cause I of death was given by P.W.4 Dr. Pallangyo as a fracture of the skull Ii which caused. internal bleed.ing :into the bra :in • I ·1 I •. . . . . /3. 3 - Appellant's defence was one of alibi. He was not there at the scene t~t evening. We have no doubt that the testimony of P.W.l on the identity of the appellant is unassail~ble and the trial judge has given good_ rea~ons for accepting her t~imony as truthful. We are of the . same view• and we fin'd the conviction of the appellant is sound. The appeal is dismissed. ~ DATED at DAR ES SAL.A.AM this d'b day of June, 1988. \ A. MUSTAFA JIJSTJ CE PF APPEAL L. M. MAKAME JUSTICE OF APPEAL A. M.A. OMAR JUSTICE OF APPEAL. I certify that this is a true copy of the original • .JU~/ (J. "'H. ~OFFE) SENIOR DEPUTY RELsTRAR.