19880801 TZHC Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT_DODOMA (CORAM MtLKAI€, I.A. e , ' KISAA J.A.,. IXidQMRJAJ CRININJ\L APPEAL NO. 25 OF 1987 1, OTTO LEI3A JOSEPH . APPELLANTS 2. PILl AMAD . , , ', . VERSUS THE REPUBLIC. . . . . , . . RESPONDENT (Jippeal from the Decision of the High Court of Tanzania at Dodoma) (Bahati, J.) dated the 23rd day of February, 1987 in Criminal Sessions Case No, 40of 1984 JUDGMENT OF TUE COURT The two appellants were convicted by the High Court, Bahati, J,, sitting at Kondoa, of the murder of a woman called SOPHIA JGSEP1-I. They were duly condemned to suffer death and they have appealed to this Court against that High Court decision. They are. advocated for by Mr. Alimwike, leamied. counsel. Mr. Chaila, learned Senior State Attoxey, is appearing for the respondent Republic. The deceased was living at Kurio in the District of Kondoa and at the thne she was fatally attacked she was with her husband ISMAIL ABDALLAH and other members of her family at a place called TU1 IBELO where they were apparently cultivating. In the small hours of 20th March., 1983 some people burst into their house and scattered terror. In the process the deceased was assaulted and she died some three days later. A post mortem examination on her body established that she died because of a ruptured spleen and haemorrhage. Two witnesses gave evidence to say that the two appellants OTTO LEBA JOS1I and PILl AHMIADI were the marauders that night. These witnesses were P.W.1 RINA ZACHJiRIA, the deceased's dauhter; and P.W.2.. . . . , . . . . 72 -2- and P.,W.2 GRACE YtJSTINE, the granddaughter of the deceased woman. They said they saw and recognized the appellants, fellow villagers, who were even in the habit of visiting their bom In their sworn evidence the appellants denied complicity and put up an alibi. The learned trial judge agreed with the assessors who sat with him, all of whom found both appellants guilty of murder as charged. hr. Alimwike for the appellants had two complaints against the trial court's decision. He submitted before us that the two witnesses who claimed to have seen and. identified the appllants as the culprits were not credible. He took us through certain pieces of evidence to show why the two witnesses ought not to have been believed. He also urged that the High Court should have accepted the appellants' alibi, supported as it was by two Prosecution - witnesses, that that material night they were some distance away, sleeping at the house of P.W.3 MATEI STEPRANO TAMBA. For the :iepublic Mr. Challa supported the conviction of the appellants. He suimitted that P.W.1 and P.W 4 2 were worthy of belief and that what contradictions there were in their testimonies were inevitable owing to the long passage of time by the time the witnesses gave evidence, and that such differences were in any case minor and. immaterial. As for the alibi, Mr. Chaila said it could not have helped the appellants: P.W..3 at whose house the appellants allegedly sleut confessed himself to be unable to say with certitude that the appellants could not have left the houee unnoticed by him throughout the night and that, moreover, the distance the criminals had to cover, to and from the scene of crime was short. We propose...... ...... /3 - - We propose to start with the evidence regarding identification, It was quits detailed and it would appear from it that the gangsters took sometime in the house, cutting people, asking. and getting money etc. We were however quite bothered by certain aspects of that evidence as pointed. out by Mr. Alimwike. While we are prepared to agree that exactly who was carrying whet, how, and who did what may not be of much consequence, we are unable to gloss over the fact that whereas by all accounts the criminals first assaulted the deceased and the husband who, incidentally, was not called to testify, we cannot fathom wr the : uninvited guests should want to ask PW1, aiter the said attack, where her mother was, unless it was because, to put it at the lowest, there was not enough light to enable one to see inside the house despite the fire in the hearth, the glowing piece of firewood and the torch the crithals were supposed to be carrying. Things are made more difficult by statements like this one by p.W.1 ilThen they switched / off the torch and I could not recognize them then". We emerge with the view that it is unsafe in the circumstances to assert that the identification was reliable enough to sustains the conviction. The evidence fails to convince us, beyond reasonable doubt, that the appellants must have been the culprits. Then there was the alibi, supported. as we said, by two witnesses called by the Prosecution P.W.3 and P.4 ANGJA STEPHAO. According to P.W.3 both appellants were in his house and sleeping that night when at around 1 a.m. 'he was awakened from sleep by sons cries unconnected with the present appeal. ; The second appellant went out with him t0 see what was up, leaving the first appellant still sleeping, and went back into the. house with the second appellant. With respect, the learned trial judge misdirected himself when he - . s.... MlV L[O[DUSflf - iTNO 'V '14 'V riVairiciv LifO E[3llSflf VOMVgDI 'Ii U 11 iäaav ioioIsnr IWV)IVW 'W '9: e6t 'WaCR Jo R8p 4L4 STTj. vwoaoa le uoi StAO.XCI t4tld £Tdwoo ou seop os -cqTle ue eout oq, uo -qa.rostp GE?T TanOD qDTH S ou 9M .aOUpTrL ennj roj sçtq. 'B5O U014nO95O 3T.. JO @solo aqj 9.tOJ9q 'CT 9T4 e 'o aseo aqj jo Omaegq at. axo;q uooTpuT apew aeq p -Inotls icq1 0, .OV azmpaooal ICUTWTZ3 o V6L uotqoas jo suoepoJd ppuJ;o stqj 'seo uo -!4n asoxa jo asoo oqq. j9qje tun TqTt US UO ikTaa pflObt eqj qanoo O. 01001PUT q0u PTp faqj, -tqe 1 ue1adde D E-uTPac 29a 31aeluDJ a - i e ajeux o 'Jc -LeTpatuwT p9sealoa aq pnOts Kaqq ipOj.sno IflJt2TttTasTpaoq4o axe ue - iadde at ssa - ufl 'posothnT oouaqtxas au aptee as pus 2UOt.oTAUO9 3U4 qSeTb 'TSCIde aq'. fkO11S aJOJ99qq. 9f I suoseaa OtnoDazroj eq xoj uotstoap xnoo qiflJ eu uteqsns oq. alqcun axo ?19dcIe q.uosaxd et Ut op oq. papaaoons set iqqe 9q-u2Tjadde Stj jaqj e-t uo-tutdo xno qnop alqauoseaj e osTej i1UO pcau tqiTe ssuosxad pasnoos us jeqj aq. aaxnoo jo et 'qnop aqeuoseax puoAaq tqa xa aoxcI oq uia trçrnbax SS!k epnç Tsrj. pauxea - aqq. Or St 6 MWtA ano Ut £tJ 6 paut1duiOo seq attm -- iy 'xw '1uMop Ixc1. TqTle -3L4 usqj V3-Dqqo a. joj oO o paewoe aq. xoj aujTj 551k q-eqj q pUQJ St 9J OOUOII 6qj JUaUDRPnC STq JO DSJnOO ET4 PaA.Xasqo -j7- - —3- The apollant and. the deco-aced wore an old coulo having at least a grando.Liild who was living with them at the material time-0- Thorc has been no su'ootion on the evidence of any quarrel or mis- und.crstancling between them over the 'oars, and indeed in the evening of the day of the incident thcy had bCCfl out togctaer drinking and they wore then re ruing h0me0 Such circusistanoos, we think, increasingly tend. to negative any sugg'c st ion of malice aforethought WhEt is more, after the- deceased had sustained thc injuries the aprollantts repcatcd call, Get up drink watcr lot us go homc arc not suggostivc of the aurollant 's intention to eliminate or get rid of the do-ceased or to do her gricVOUS harm. The arpollant 's conduct of disappearing and trying to avoid arrest, following the ovcnt, can be o:uJ.aincd.0 It is consistent with fear of the consequences after roalising the sorousnesc of the injuries he had caused the deceaseal to sustain and their iraplications0 Considering all the circumstances, we are satisfied that this was a fit casc for rans1aughtcr, and the learned trial julgo should havr found so0 .iccordingly we allow the appeal in part, quash the appcllant s conviction. for murder and substitute the-ref or conviction for manslaurjht or 0 In assessing the sentence we take into account the following -mattc-rsz- D.l causing' the death of the d.oceasccl, thc appellant was not shoim to have used any weapon. The appellant who attended at the hearing' of this aproal is obviously an old man who, upon being asked, told us that althotgh he is not educated, ho thinks that he is 75 years old0 Ho has boon in cuStody since October, 1 982 Those are mitigating factors whic.:. would warrant the ieDositin of only a light sentence, 'We think that the ends of justice will 'be met if we sentence the appellant, to a term of imprisonment which will result . . o -3 - rule out the possibility of such tribunal acquitting the appellant, We are only concerned at this stage with pr6babilitiQ 4 That being the position, we are of the view that the interests of justice require that we order a new tria., In the final analysis therefore, we allow the appeal, quash the proceedings, and direct tht a new trial of the appellant be conducted before a different judicial officer with competent jurisdiction. DATED at Bar es Salaam this 11th day of Novernbr 1988. F. L. Nralali CHIEF JUSTICE • .L. M. Makame JUSTICE OF APPEAL A. M. A. Omar.. JUSTICE OF APPEAL I certify that this is a true copy of the original / ! i1 -. (J. H, Msoffe) SENIOR_DJTY REGISThLR - 4 - in his I cc1±aio relcase froe prison inlcss ho is ot.oniso lau11y ho1L It is 50 OTC1 CrO( D... at iJ'Z this 1st clay fjigt, 1988 A7 ------------- (R. H.. KISNG1) JUSTICI CF_IPPEL (.. iI ouR) JtJSTICE OF ht.PPFIIJ I certify that this is a true copy of the oriina1 0 I. (S0 DMUTY ?EGISTRj