19880530 TZHC Mbeya2

: f• . IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MAKAME ,Q. GA • jd OMAR.) CRIMINAL kPPEAL NO,' 109 OF 1987 NELSON ENOCK KINGALALYE. •. . . . AP':LANT versus THE REPUBLIC. . . '. . . Tl3PONDT (Appeal from the conviction of the High C6urt f Tanzania at Iringa) (Mroso, J.) dated the 28th day of August, 1987 in Criminal SeBsiOfls 0888 No. 3 8 of 1986 JUDGMT OF THE. COURT Q.M4R, The appellant Nelson Enock Kingalalye,' youn m.n of be±ween 16 and 17 Yearsj was charged with and convicted of iurder contrary to section 196 of the Penal Code. The material prosecution evidence 'was gin j 'hree t eop1e who had heard the confession of the appellant to the efIL'out that it was he who took the deceased, a boy of about 14 yea': to the river far away from the village, hit him thrice nd threw him into the river. He then took shs. 45/= from the deceased':. pock+. •i'4 ,rrn± away leaving him behind floating in the river. Accucd told the villagers how he had spent this money. Deceased was a banana seller and. it is in evidence that P,W.2 Zakaria Mbalinga, a companion of his who was with him on the road, came to know from him that he had shs..601= in his pocket, the proceeds of the sale of b4nanas. Zakaria parted with the deceased after appellant appeared and complained of the loss of his shs, 15/= and .Janted Deceased to help him look for . . . . . . . /2. .1 — 2 - - iA Ukaria never saw Deceased alive again b The following day when Desed. v0sga4 taoted Zakaria and he went with them to appellant's father and there saw appellant wbo after some persuasion by a ten cell leader and another person agreed that he had kjlled the decesed and ztollen money from him. The following day he took the villagers to the river and showed them the dead body of the deceased which on post mortem examin.tion was found to have three bruises on the chest and ribs, The cause of death could not be asoe'rtine4 by the Doctor because, of d.composition which had set in. Appellant in his defenc.e agreed that he confessed to the viUgers and l9ter to the police that he had killed the -deceased, but he hiade thQ ionfession under co.erton, He was beaten up by P..w.l and one Jackson end out of fear he road-s the fals confession. But what aetually happened was that he uas with the deceased on the material dy and they went together to thesaid river Tamalonga to look for his lost shs. 15/=. Vhcy could not find the money and they decided to take a bath in the rivcr. Deceased unfortunately went to a place where there, was a whirlpool and went under. He asked a certain man of the Masai tribe to help in saving the deceased and this man put his stick in the water so- that deceased could hold it and thei be pulled out but deceased failed to grab the stick. • So Appellant went back home and told •his father about the death of the deceased, and his father contacted neiIibours. Among the neighbours w ho were contacted appellant wanted one Jackson and another man Twangalumbe to be called to support his story. Both these witnesses were called and they were only cross- examined by the defence counsel as if they had given evidence before in the trial. One would. have thought that cross-examination would be preceded by examination in chief. The two witnesses were - 3 - • referred toas P.W.5 and p.w.6, another Very unfamiliar procedu 0 They should have been called either as Defence witnesses or as Court Withesses because the Defence had already. opened. ,Be that as it may these two witnesses denied to have seen appellant being beaten or forced in any way to make his confession s They agreed that appellant did make a voluntary confession and. led the party of villagers to where the naked body of the deceased was fotid with bruises on his body 4 The learned counsel for the appellant Mr. Bateyunga submitted that prosecution witnesses save dif€erent versIons as to how the appellant confeed to them of the killfng of the deeased and at any rate, this confession of the appellant Was made t:icler duress With due respect to Mr. Bateyunga we cn confIdently say that no witnes wavered In his teLtirnony oft the voluntariness of the confesicrj by the appellant which was made in the presence of his on fsther and it wac the appellant himself who took the party of villagers to the river where the body was. .found Appellant may have repudiated his confession during the trial but the circumstances surroimdthg the finding of the naked body with abrasions on the chest and the clothes in the basket on the bank of the river afford sufficient corroborative vidnce which is needed for a repudiated confession, to be acted. upon. In the circumstances we would agree with the t'rial judge that it was the appellant and no other who had perpertrated this heinous crime against a young school boy four years, 'itS junior. We uphold the conviction of, murder and dismiss the appeal. . .. - - / DATED at NBEI'A THIS 30th day of May, 1988 L. N. MAKANE JTJTICE OF A2PEAL II R. H. 1ISANGA JUSTICE OAIEAL A. M. A. OPLAR JU8TICE OFAPEAL • I certify that this is a trus copy of the originaJ. (TJ. H. W30FF1) I !RD?UT R.