19880617 TZHC Songea

32 - IF TR-:) HIGH COURT OF TANZANIA AT SONGFA ----- ... -- o.··i:GINAL JURISDICTION ( I,lT1'1ABJ\. REGISTRY) I CRP INAL 8~SION,:i CASE NO~ 20 OF 1987 TEE :r,:8P'"i.TBLIC MOIIAM8DI KASEMBE JUDGMENT KAZIMOTO 9 . J. The accused NohaJr.~d Ka.semb0 is charged with murder c/s 196 of the Penal Code.-- It'is alleged that on 26/5/82 at Likolomata Ka.lulu village wi~hin 'l\mduru District and Ruvuma Region did murder one Ad.am Joseph Mtyangao He pleaded not guilty. · The ba.ckgrour.d to this case can be stated briefly as follows. On 22/5/82 e. g;.~oup of game Wardens. were on patrol duty in the Selous game Reserve. On 26/5/82 the game patrol party came across foot ~teps a:~d suspected that poachers had entered the . ..," __,__ / reserve. Later they C'3.f.1e across a place where they saw smoke 9 took positions surrounded the area and arrested and tied six poachers with ropns whj_le others fled in disa.rra.yo They also saw game meat being dried over fire:, Then suddenly they heard gunshots being firodo The game wardens had only one rifle with them which was in the hands of their leader Joseph Ad.am Mtyangao A bullet hit Harid Issa on the buttoclco The game Wardens party ran into hiding and a rain of bullets continued to flow. Joseph Adam Mtyanga was hit by a bullet. The person who was 'shooting untied the six poachers and released them 0 He ordered them offo He took the rifle which Joseph Adam Mtyanga. had• Joseph Adam Mtyanga was found to have died(> A report was sent to -the police who went to the scone With a doctor~ The doctor found t..~e remains of human being. He found F''lru.11 complete with bones intact, skin and .' • V. 33 muscle eatmi away, E:mdible lying on the ground, spinal bones complete and attached to the skuil 9 complete sot of ribs 9 bot1:i. arms with fingers complete and other parts. The prosecutior. have cont,cnded in this case that Joseph Adam Mtyanga is dead., that he was killed by a bullet, that tho bullet was firod by the accused and tho.tho intentionaily killed the deceased.+ In his defence the accused has raised the defence of mistaken identity and by implication he has raised the defence of alibi~ It was also contended that the cause of death was not proved,, The burden is on the prosecution to prove the guilt of the accused beyond all reasonable doubt and not on the accused to prove his defence. I have first to decide whether Joseph Adam Mtyanga is dead, and if tho answer is in the affirmative whether the' prosecution have established the cause of death. Four witnesses Charles Jalamisa (PWl), Jamal Faraji PW2), Mohamed Majumu (PW3): and Mohamed Ngalondola (PW4) have testified that they were with Joseph Adam Mtyanga at Likoiomata village and that while at the sccric they saw Joseph Adam Mtyanga being hit by a bul~et and when they examined him they found that a, bullet hit him on the stomach. All witnesses have testified that Joseph Adam Mtyanga was partly oaten by Wild animals. Dr. Ae w. Hori who conducted the authopsy on the body of deceased and which was identified to him by Mohamed l\ff..ajumu (PW3) as that Joseph Adam Mtyanga found human remains consiting of skull, bones, mandible, spinal bones and etc. The doctor was unnblo to sa.y what caused tho death of the decoascdo In his submission the learned State Attorney has submitted that the fa.ct of death could be proved by the evidence of eye witnesses, medical evidence or circumstantial evidence by finding tho body of tho deceased at the scone of crime. He relied in the caso of R v. Kimweri (1968) HCD 50. The learned dcfonco couriscl b.as contondod tl1.'3.t tl:..o nc,J.ioal report oentioned the name of the deceased and that no cause of death has been proved. He argued that medical evidence should have stated 34 what caused the cloath of tho clecG:::i,sod., Ho clid. not challenge in cross-ecamim,tion the testimony of F\H, PW2; PWJ a,nd PW4 who said that they saw the cloce3,sed strucko with a bullet on tho stomach and ho died iristantlyb Tho issue is wl10ther the evidenco of' eyo witnesses who saw tho d.ocoased die of a bullet wound and tho rom'lin of human bones is sufficient to establish tho facts of c.loi:1th a11d the cause of deatl1., In R v. Kimwori (1868) ITCD 50 the body of the deceased was not found 0 She was seen with the accused shortly before she disappeared. It was helcl that the fact of death can be proved by circumstantial evidence even if the body of the deceased, was never recovered and by implication tLe cause of death was not determined. In the case of R Vo Mwandamere s/o Sefula (1931) LRK 58 tho accused was also convicted of murder although the body of the deceased was not recovered for medical oxaraination,. It was hold that the rule that nobody should be convicted of murder unless the body of tho deceased has been found must be taken with some qualificationss the circumstances may bo sufficiently strong to show tho fact of murder althoueh the body of the deceased was never found. Applying tbe principles in these two cases th~e can be no doubt that Joseph Adam Mtya.nga is dead. Four eye witnesses have testified as to the f~ct of deatho They were with· the deceased. Tho doctor who went to the scene was shown remains of human being and he has mentioned. them in his reporto He could not determine the cause of death because tho body of the deceased had been partly eaten by wild animals. But PWlj PW2 3 PW3 and PW4 who were with tho deceased testified that the deceased. was hit by a bullet on the stomach and died instantly. Thero was no evidence to the contrary. I accept their evidence also as to the caus~ of death, notwithstanding the absence of medical evidence in this case, that the deceased died of bullet wound. I disagree with the proposition · put forward by the defence that the prosecution have failed to establish the cause of dea;tb. 0 35 The next point for consideration and decision is whether the accused has been identified as the person who killed the deceased• As reg~rds this issue we have the evidence of identification at the scene of crime and at the identification parade offer~d. by the prosecution and that of the defence offored by the a~cused~ Charles Jalamisa (PWi), Jamal Faraji (PW2), Moharaed Majumu (PW3) and. Mohamed Ngalondola ,(PW4) are game Warden or scouts. Tl10ir collocti ve evidence is that when they saw smoke in tho Solous Gane Reserve they surrounded the area and saw a group of people who were drying grune rneat and surrounded and arrested six of them and tied them with a rope. PW3 stated in cross-examination that he asked one of tho people arrested who their 11 fundi 11 moaning the o.no with the gun was and that ho was told that the man is called Mohamed Ka.zembo• He said that ho had never known or seen Mohamed Kazembe. Then all witnesses stated that from up a hill they heard tho sound of gu..'lshots and all took cover. They described the place as haVing grass one and a half metres tall dotted with shrubs. They informed the Court that they saw a man with a shaven head, black in colour wearing a bukta and a blue shirt. They also testified that they saw the man having a S.A.R. and that the shooting took about two hours. PWl wont on to state that after about two hours they emerged from their hiding place and as they went near the scene t~o person who was firing saw·and chased him and that he had to hide himself under water and he saw him-close. All of thorn stated that the person whom they saw at the scene of crime was the accused. The same four witnesses testified that on 3/6/82 they were required at an identification parade. All have told the Court I that they were kopt at a place where they could not sec whore the parade was conducted. All have stated that they were able to identify and identified tho accused as tho person whom they saw at the scene and who ca.used tho '•death of tho deceased. PWl stated in cross-examination that he was told to go and identify the person he saw at the scene. PW2 stated that police who took 36 - hir.1 told him to go and identify the person who killed the decoasodo PW3 said in cross-examination that police told thera "go to identify tho person if he wan in the parade"• PW4 said that they were· told to identify the poachers. 7024 Sgt. Alfred (PW5) testified that on 3/6/82 he took part in an identification parade and that his duty was to take identifying Witnesses to·the paradco He said the witnesses were kept at tho game office where they could not see where the parade was. He said that ho did not tell tho witnesses anything. The testir.1ony of B 5852 D/Cpl. Saidi (PW6) is to the effect that he was assigned to take the identifying Witnesses from tho parade after identification to the police yard so that they should not communicate With witnesses who had not gone to the identification parade.. _Inspector Koraba (P"W7) testified that on 26/5/82 tho deceased was killed at Mba.langandu in Selous game reaervc and three suspects including the accused wero arrested• He said that some witnesses said that they wore able to identify the suspect. He arranged an identification parade.and assigned PW5 tho duty to bring the identifying witnesses one by one to the parade and assigned PW6 to take the identifying witnesses from tho para.de to another place so that they could not communicate With those who ha9- not come to the parade• He said the para.de involved a total of 13 people including three suspects who were of similar appearance, and height. He said 'there were six identifying witnesses and all of them identified the accused as very person who killed the deceased. He said the witnesses could not identify other suspectse-Ile said that there ' . was no complaint· from the accUPed after the parade. He said he prepared the register of identification showing the participants a.t the p-3.ra.dc, the officers concerned and the identifying witnesses. That register of identification parade was tendered as Exhibit A. ; He said in cross--exa.mination that the witnesses were asked if they could identify the suspects and th~t he told the suspects tb.n.t they were free to stand where they liked. He said that he did not show it in the report but stated that he told them. He insisted that there was no complaint . ' 37 fro□ the accusedo He also told the court that participants in the par.:1de were Civilians and that thero wore ten participants and three ::mspects. He denied that he was negligent in calling \ ten pD,rticip::mts only. Ee alao stated that he did not rer.1e□ber if ho -tolu. the accuned to have a friend or advocat.e at the parade. Tb.c accUGed in his evidence on oath statec: that he resides at Tunduru nnd th:!.t ho is a pcasanto IIe stated also th3.t he ha.cl never had a gun in his life, and he does not know how to use a gun, that he had never bought a bu.k:ta or a blue shirt. Ile told tho court that in May 1982 he was at his shamba harvesting paddy and groundnuts and that on 1/6/82 he was arrested while coming back from his shamba. Ile told the Court that on 3/6/82 there was an identification parade and that he was not told anything before the. parade and that police; did not tell hiL1 his rightso· lie said the pafticipants were-raixed lot, tall, short, fat and thin. He said that he was not told to change positions ~f.ter each identification by a witnesses. Ile said there were four suspects in the paradeo Ile said that he did not hear the police tell the witnesses anything and that the witnesses touched him. He said he was not asked to say anything after the parade• Ile said he was not satisfied with the conduct of the parade because he was not infomed of his rights and be did not know them., Ile agreed that he does not know the identifying witnesses and he docs not know why they picked him in the paradeo The lee:irned State Attorney submitted that PWlj PW2, PW3 and PW4 had clearly identified the accused at the acene and requested the Court to accept their evidence. Ile referred to a nunber of facts which he contended made the witnesses able to identify the accused. Ile cited the case of. R Vo Ally ,(1971) rrqn 306 in support of his subr.iission. Regarding identification parade he contended that from the evidence of PW5f PW6 and PW7 the parade has been properly conducted according to the procedure laid down in Archbold, 39th edition paragraphs 1352 and 1353 and cited the case of 38 R v Mwango s/o Manaa (1936) 3 EACA 29a Ile argued. thri.t if the Court should find that tho procedure W'.1S not followed then tho court should consider the weight to be attached. to it. Ile ref'errod to tho case of R v. Marzuk S::i.liri1 Msut1.bwa (1951) 18 EA.CA 257., He urged tllat there was sufficient evidence to posi ti voly identify tho ,'.1ccused .J.s the porson who killed the deceasod• Tho defence have contended. that this was a cc1Se of mistclrnn identi tyo The learned advoc.;1.to for the accused argued that it is up to the prosecution to disprove the defence put forward by the accused referring the Court to the. Caso of Saleh Kassim V Ro (1968) IICD 366. He argued further that the only evidence against the accused is that of tho identification p~rade and contended -that that parade was illegal because the procedure was not , followed. Ile severely attacked PW7 because ho argued PW7 did not tell the accused his rights, that PW7 clid not follow the regulations concerning the nunber of participants in the parade. He also relied on paragraphs 1'352 and 1353 in Archbold 39th editions and R v. Mwango s/o Manaa (1936) 3 EACA 29 and the case of Ehmanuel Tt.u:ibotele V R (1968) HCD 144• As regards the evidence at the scene the learned Counsel for the accused has contended that PW1 1 PW2, PW3 and fW4 had no tirJe to enable them see the accused .1.s they were bus~ trying to save their own lives. He contended that no gun which accused was alleged to have used 9 the bullets and spent out cartridges ife;re tendered in Court. He submitted strongly that this -was a case of mistaken identity. In·rJY sumning-up to assessors I told then that this case depends entirely on the evidence of' identification of accused and that such evidence is dangerous as it tends to implicate people who nay not be at the scelilee I therefore directed the□ to consider if the conditions favour~ng proper identification were favourable, whether there was sufficient time to enable the witnesses observe the c1ccused and if' tl:ey considered that 39 the witnesses fS,J..ve description of the accused ancl the description of the scene. All the three gentlemen assessors found that there wore-su:fficiont factors which enabled the witnesses to positively identify the accusoclo As regards the identification pnrade they disagreed with the defence Counsel that tho parade was inpropcrly conducted., I have first to consider :i.f PWl, PW2, PWJ and PW4 were able positively to identify the accused at the scene of crime., Whether a witness has been able to identify an accused person or not must necessarily depend on tho facts of each particular Case. Courts are very cautious~ and indeed they must:, be_, where the visual identification takes place at night. Thus in R Vo All,v (1971) HCD 306 cited by the learned State Attorney tb.e evidence against the accused clepended 1 among others, on the identification of the accused. In that case the deceased was shot by a poisoned arrow at about 9.00 pm. One witness who went to the rescue of the deceased when the cleceased cried out stated that he flashed his torch but could not see the direction from which the arrow came froQ and could not describe the accused as he saw him on that night. The Court followed the principle laid down in Mohamed Allui V R (1942) 9 EA.CA 72 where it was held that in every Case in whicl1 there is a question as to the identity of an accused person the fact of there having been given a_ description and tho terns of that description are natters of the highest importance of which evidence ought always to be given fir.st of all by the person or persons who gave the description and purport to identify the accused -md secondly by the person or persons to whon tho description was given~ It was held, in Ally's Case th~t tho failure to give the description of what clothes accused in tha.t case wore.was a very serious or.1ission for the prosecution., I have also taken the caution · stated in the Case o:f Waziri Aman V R (1980) 1rLR 250 at page 251 when the Court said: "The f1rst point we itish to make is an elementary one and this is that evidence of visual identification, as Courts in To.st Af'rica and England have warned in a number of Cases, is of t:w weakest kind and . · 40 □ ost u.11reli2,bloo It follows thercforo 9 th,,t no Court should :J.Ct on evidence of visual identification unless an possibilities of 1;1istaken idcnti ty arc eliminated and tl:o Court is fully satisfied. that the evidence before it is .:1bsolutely w;::i.tertight 11 ., 'iii th that cautj_(,n in r.:ind .'.lnc!. the principles laid Cl.bove in these Cases+ now revert to the present Case. There :i..s no dispute thnt PW1 9 PW2 9 PW3 and PW4 came upon the poachers during broad daylight.. All the witnesses gave a dcscriptiort of tho scene., It has short grass up to tho waist high _with scattered shrubs., They demonstrated how they were taking cover and at the sar:ic ti.Do chocking where the.hail of bullets car.ie from., According to thera they came from the top of a hill and they saw a skin headed man, wearing a blue shirt and a bukta. According to them the man was black and short holding a s.A.,Ro The shooting continued for while and they saw the accused untie the six poachers and later he supervised the□ collect the mc,?.t they were drying over the fire· and went away talcing with hi□ the rifle which the deceased had. Rightly - ' as contended the learned defence Counsel and conceded by the witnesses that they were trying to save their lives but they said ,md I agree 9 that they are tr.1.ined game Wardens r!ho know ,, how to take cover and at the same time look out as to .who was attacking thema Talcing into accoun·t; the f'act that all the witnesses were able to gi vc the de~4cription 6'f the accused, what the accused was wearing, his cqlour of tJ1e skin, height, the nature of his head, the type of':weapon the accused was caITying and the fact that it was dui·ine broad day light• I am satisfied, as did all the three gentlemen assessors that . 1 ' . there wus no possibility of nistaken'identity of the accused in this -case at the scene, These wit110sses were coherent in their testimony and there was not even the slightest contradiction in the descriptio;i of ·the accusel1. one would have expected in a case ltke tW:.s where there has been a long shoot out. - 41 - I 1-iavG considered the evidence of the accused as to whether · his explanation could have qast any doubt in tho prosqcution. case. I nu.st confess that the evidence of l?Wl, PW2, PW.3 and PU4 at the scene casts no doubt at all in the prosecution casco In so doing I am placing no burden on tho accused to prove his defence. 1 find that his defence disproved by the evidence of PvTl, PW2 1 PW3 and PW4 at the scene, I find that on 26/5/82 the accused was at Ml,alangandu and that he has been identified positively as the per.son who killed the deceased_. I answer the issue posed at the beginning in the positive• Pvn, PW2 9 PW3 and PW4 have also been able to identify the accused at an identification paradeo The accused had conceded that he was identified by all the witnesses at the parade. The accused contention is that he was not told his rights, and that the procedure was not followed. In his evidence in Court PW7 told the Court that there were 10 participants in the parade and three suspects. The learned defence counsel submits that this was irregular. I ag.r-ee. This was irregular, Rule 8 in Paragraph 1352 in Achbold; 39th Edition makes it clear that where there are more than two suspects separate parades should be held using different persons on each parade. In this case there were three suspects in the parade and. there were 10 participants. There was only one parade 0 There is no doubt that the parade was irregular. It would appear from the manner PW7 replied to the· questiono· That it ie doubtful if PW7 informed the accused any of his rights as, for instance, to have a friend or advocate present at the parade or, change position after each identying witness had identified the accused. It is not sufficient to say that the suspects were told to choose where t~ey wish to stand in the parade. Exhibit A does not even show the position of tho suspects in the para.de. According to the identific.:i.tion parade register Eliliibit A the position of thd suspects in the parade should have been shown. This was not donee All tpose are irregularities which affected the weight of the idcntificatio~ as was stated in the Cases RV Lulatikwa s/o Kabaile alias Rutahab-3. s/o Kasese (1941) 8 EA.CA 46, and .Marz:'1~ Salim Mswnbwa V R (1951) 18 EA.Ca 257• • ., 42 In both of these cases the procedura as lc1,icl. cl.own in Achbold and the Mwango Manaa Cases cited above was not followedo In tho Case of' Lulatikwa the identifying withess saw the suspect under arrest before the icl.ehtification parade~ The officer who conducted the paracle told the witness as he brought hin to the parade the following words" "You know a man called Lulatikwc,, whom you say killed your tmcleo Corne on to -c'..1e verendah and see i£ you can find him it• Besides this witness there was another witness who also identified the appeilant in the parade. It was held that in spite of the unsatisfactory nature of the identification parade there was positive evidence that the appellant was identified as the person who killed the deceased. In the case of Marzuk Salim Msumbwa (supra) the witness who identified the appellant at an identification parade had previously been shown by the Police some photographs and picked out the appellant as being the man he had seen talking to the victi□ of robberye The photographs were also shown to two other wi t:hesses wl-io also picked out the appellant at an identification parade subscruently. It was held that the objection goes to the Weight and not the admissibility of the evidence of identification and that very little value should be attached to subsquent identification evidence. But in that case there were two police constables who were not shown tho photographs before and who identified the appellant in the paradoe In both cases tho convictions were upheldo The principle to be drown from those two Cases is that where the procedure in the conduct of an identification parade offends the principles laid down in Achbold para 1352 and 1353 39th edition and Mwango Manaa Case the evidence at such identification parade is valueless but can be acted upon despite the i~regularity if there is other evidence to positively identify the accused. In tho present Case had the alleged offence been coCJII1itted ~t night under unf'avourable conditions, that the witnesses had failed to give a description of the accused and wore shown to have been contradicted or their evidence contradicted with each other during cross-examination as to the identity of the accused 43 I would have no ·doubt as to the result of tho evidence of identification parade., The evidence at thq identification parade was not therefore the only evidence against the accusedo Indeed the wi tn0sscs saw tl10 accused at the scene and had him' 1 under observation for about two hours and positively iclontifiecl the accused at tho sceneo Even if tlle court were to discard the identification parade evidence, which I do, there could neve:r be any 9 and there is no, possibility of nistake as to the identity of the accused by the visual eye witness identification by PW1 7 PW2, PWJ and PW4 at the scenco Therefore the irregularity in the conduct of the parade did not occassion a failure of justice as there was other congent and positive evidence against himo The use of a lethal and deadly weapon like a gun, against the deceased is a clear manifestation of an intent to cause death or grievous harm to the deceased. The three goi-itlemen assessors have advised that the accused had killed the decen.sed unlaw:fully. I agree. By shooting at the deceased the accused had clearly intended to kill the deceased and malice aforethought has been established. I respectfully agree with the gentlemen assessors that the guilt of the accused has been proved beyond all sane doubt. I find him guilty_ of murder o,s indieted and- convict him accordingly. -~--~·a:-_7_·r,1 ... <..... -~._ ---~"'--~-- E0 E. Ifuzimoto, ~<~. Judge,. 17/6/88 ~ Coramg As before Aced: Present Assessors g Present.- Court: Judgment delivered this 17th day o:f June, 1988 ..~:-··l. '°\,_ ' _.-{ . . E_-E. :K.:\.zimoto, Judge. 44 Mr. TI;yerag My Lord the accused has no anteccdent6 Mr. Bunclalag I have nothing to say. Allocuius g I have nothingo Sentence Accused is convicted for murder. For that offence there is only one sentence and that is deatho The accused is therefore sentenced to suffer death by hanging until he be deade · • - p ~... ~•·... : , _.,.~.... : ___ _,. ., ... _;·. Lr,..,. EoE• Kazimoto 9 Judge. Right of Appeal explainedo -~ .. ·-::· . .•·-:-.:t~· !_ --~ ., .......... •......... ~ ,.····/ E~E. Ka.zimotoj Judge. Assessors thanked and discharged• I .,...-~.-----~.... -. . ~· _ ... ,. ✓--f~-. ~ E,-E. Kazin~to 9 _., Judge,. 17/6/88