19880728 TZHC Mwanza

IN Th. COU;IT OF APPEIIL OF TNZNIL. m !itLLji A.j. (CORi: JCJi 9 J,Ki3ANGAJoAo And OIL J.A0) CIiBLINL I"KILL NO 0 136 OF 198 7 MWEWLANDEGE ITOBA 0 0 0 0 0 0 0 0 PP1L.d'T Versus ThE PLLTBLIC 0 0 0 0 0 0 0 0 0 ePONDENT 0 0 0 0 (Appeal from the conviction of the high Court of Tanzania; at II anza)(Katiti, j) dated the 8th day of October, 1987 in Criiriinal Sessions Case No.70 2Lj J[JDG.ITT OF TEE COUET KIoI.iG4 4 J.A. The appellant was convicted of murder contrair to section 196 of the Penal Code, and. Was sentenced to death b:" the high Court (Katiti, J 0 ) sitting here in ThTanza. 110 is now appealing against both conviction and sentence, The facts of the case are vory short and simple 0 The appellant is the brotiein—law of the deceased woman in that the appellantt 3 sister married the deceased's brother. On the dear of the incident at about 6 p 0 n. the apcllant visited the home of the deceased0 lie found there the deceased and her dauhtor—in—law (P 0 N. 3), The appellant and the deceased engaged in a conversation for some time in the course of which the appellant suddenly attacked the deceased inflicting on her serious head injuries which caused brain damage leading to her death subsequently. The appellant flatly denied the charge, ho put up an alibi and claimed that on the day of the incident he was at his, home and never visited the village of the decoasod • 0 0 0 0/2. 1. -2- In convic -ting the ape1lant the trial court relied on the dying declaration of the deceased as corroborated by the evidence of P.. 3 who identified the ao -pcllant at the scene of crime. ir. S. R. Kianwa who appeared for the defence both hero nd in the high Court attacked the credibility of P. -T, 3 who, in his opinion, ought not to be believed. Te can sec no basis for the attack on the credibility of P 0 W, 3. The witness testified that she had. come to visit the deceased, her niothe-in—law, and she had stayed with hr for about two weeks prior to the day of the incidcnt- She did not know the ao.ollant before she saw him only for the first time on the dajr of the incident when she noticed that he had a. deformed toe on the ri'ht :foot and was walking slhtly in a limpmg maimer. oo that wnon subsequently silo was called to te police station to ldefltify the culprit at an identification parade, she reauired the suspects to remove their shoos and this enabled her to see the deformed too on the appellant's right root and thus confirm his identify as the person she had seen conversing with the deceased before the attack and ruarning away from the scene immediately after the attack. Thing the trial the court also noted 'slight limp observed on seeing him (the appellant) walk". We think that -the mc.mcr in which P.'T, 3 idcntificd the appellant at the identification parade was both proper and reliable. Mr • Kahangun submitted that either 3 knew the appellant before the incident, in which case she was well aware of the appellant's limping gait and the deformed too, or that s::.o W:2S ;ivcfl this description of the appellant by persons who knew the appellant and who wanted to implicate him falsely, so that her purported identification of the aupellant at the identifcat ion parade was both meaningless and worthless. Tc could find, no substance in that submission0 For, if the idon was simply to make P O 1, 3's story sound plausible, this would have been achieved mo:oe easily by P.W. 3 stating that she know the appellant before the incident. . 0 • ./ 3. - - - 4 —3- Jtr K hang-wa conceded that there was credible evidence of a dying declaration m br the deceased in which she mentioned the appollan-t as 40 assaillant. Thc deceased know t..o appellant well, the attack took place in day light cnd it was preceded by a conversation for some time between the deceased and the apiDolla1Tt While the learned judge found CorrobOration of the dying declaration in the evidence of P.U. 3, he found that the identification of the appellant by the deceased in the circumstances as outlined above was so cogent end reliable that he was prepared to base conviction on the dying declaration alono We could find no fault with that; the learned judge nroperly directed hisolf on the matter. In the final enalysis we are s.tisfiod that the appellant' s conviction was well founded both in law and fact, and there is no reason to interfere. The appeal has no merit end is accordingly dismissed in its ontiretye DATED at 1T.JZf this 28th day of July,. 1988 Q. M. iJ TrATT :T' JUSTICE OP (L H. KISLPGL) JUSTICE OF .PPL /. / (A. K. A. 011) JUSTICE OF 1iPP:i' I certiiy that this istruo copy of the original. DEPUTY REGISTiJL I I