19880530 TZHC Mbeya7

IN THE COURT OF APPEAL OF TANZiNIA - AT -v (CORMI MAKANE J ,ii, KISAN( J,A, AOiLiR J .A. CRIMINAL APPEAL NO. 110 OF 1987 1 • FRANCIS DAVID NWAIPAJA @ YAHAYII HUSSEIN NGWALE , ,APPELLANTS 2 • JORN SIKUIYINGI NATATA versus THE REPUI3LIC. . . . a REP0i')IhlT (Appeal from the conviction of the High Court of Tanzania at Iringa) (Mroso, j.) dated the 2nd day of September 9 1987 in Crimina.l Sessions Case No, 124 of 1986 JUNENT OF ThE COURT MAKAl 2 Jdi.: These two appellants were found to have been in a gang of • bandits who staged a daring highway robbey on a 2onzania Railways Corporation bus travelling from Tringa to Dodomo on 14th February 1985. In the callous escapade a soldier called. St. LBURT KIBA, a passenger on •the ill—starred bus 9 wrs fatally cougit by a bullet from a gun fired by one of the gangsters. The certified. cause of death was hrdin damage due to severe head injury inflicted by a. bullet. Passengers were also roughed up and, robbed of a large assortment of items, including money, radio cassettes, and eleven watches. Within four days thereafter the appellants nd two other persons who were later charged with the appellants but got acquitted, were arrested by the Police in conoection with the robbery. At thefr trial the High Court was satisfied that the two appellants had participated in the banditry and that the first appellant was the one who actually fired the gun The two appellants were found guilty of murder and were duly sentenced to suffer death, Before us the appellants were represented by ir. i'tangole, leaned advocate; and Mr, Lundu, learned State Attorney, appeared for the respondent Republip. -2-. Mr. Mwangole comp1aired thLt tfio trial court hou1d not 43-d his ralients responsible for the c±ime. He urged th24th learned trial judge should not have accepted the evidence of the star witness, P.W.1 HiiADI AJADHI SIIP3A, as to his jdenti.fjcatjorj of the two appellants at the scene of crime. Nr, 11wrngo1c pointed out that the learned trial judge was not prepared to rely on the scene jdotifjctjon alone and he submitted that there was no rsliebls evidenoe to, czrroboratcthat weak e -vidence of idtificatjon. At the trial each appealarit..advaiaoGd an alibi. The fippeUant said that on the material day he was travelling byis from Da s Salaam, hevig ge tho aoe four days praviosl. The second appellant said that on the ruatrial day he was travelling by bus from M000ro where he had stayed for three days, visiting a brother callad. Aidan, who had died by the time the appellant was testifying in court. P.W.1 told the trial court that on 12th february, 1985 he met the first appellant, MWJJPUA, at the Iringa Central Bus Stand. He aiew Mweipaja well as he is a native of . Tu1cu Town like P.W.1, and also the appellant had fathered, a child of P.W.1e niece. Mwaipaja told P O W.1 that he was travelling to IIbey. After they had had a chat they parted company and had to wait in Iringa until 14th February to get a bus connection to Dodoma. While on the bus to Dodoma they found a log of wood across the road at Nyang'oro hillsso the bus had to stop. Then pandemonium reigned supremeg A gun was fired, windows of the bus were shattered, passengers were. beaten up and robbed of their property. The passengers were ordered out of the bus and as p.W,l was getting out he discovered that one oi the gangsters was none other than Hue ipaja who was 6a rryinE a gun and whose familiar voice was ordering peopie to lie down and not to make any fuss. P.W.1 made sure Nwaipaja did not see his face, lest he shot him dc-ad for fear that P!.1 would have recognized him. ?,.1 was sure that the man was the first ap:llant and he was - . ::' -3.- so terrified of him that when later the bus would not start and the passengers were ordered out again, so as to give it a push, P.W.1 dared not alight again, for fear that the first appellant would eliminate him if he noticed his presence. t:cinst the first appellant was also some other evidence accepted by the trial court. There were the two tell—tale note books indicating among other places, "Mtera for best money" and the learned trial judge thought it significant that the robbery took place on the road to Ntera. The note books also contained, various names of people. One of them was 'MATATP' which turned out to be one of the names of the second appellant. Among the things recovered from the first appellantts rOom at Mwanjelwo when it was searched were a number of watches. These were four according to P.W.3 JUILI. iJTGI, the C..I.D. Officer in Charge, Iringa District, and five according to P.W.10Dt, Cpl, Eliud. The learned, trial judge tc.Lkcd of six watches but we find no support for this in the evtancJ. The first appellant said he was found with only three watches and explained their possession by him. There was no effective evidence to challenge this No body came forwerd to say any c those three watches was his, Going by the testimony of P.113, thrc-fore, the first appellant gave no explanation for his ossësaicm of one atch and watches were amon the items stolen at-Mtera. Subjecting the evidence O-'resh scrutiny on tltis fist appeal, we, on our part, find, that p,\j,lts evidence of identification of the first appellant at the scene was so sufficiently clear, cogent, and convincing that we wou'd be prepared to rely on it even witic'tt •9O As it is, there are the other oLccs of evidence - which the learned judrc in our view, perfectly entitled to take into pccount. The first appellantts alibi was completely charred by the evidence of p.w,,l and we are stisficc that the first appellant was properly convicte&, 4e accordtn'y dismiss. ' his appeal. 1K 1 proocod to look at the position of th cond appellant, who was the third accused at the trial. Mr 4 14wanqolc complained that the second appellant MATJITA was new to P.W.1. The name of the second appellant was allegedly iven to P.W.1 by a il who was not called as a witness; We take Mr. Mwangclets point that the rirl was not called and we ax q of the view that it would have been neater workmanship on the part of the Prosecution if the girl was called. It should not have been too difficult to locete her. She was supposed to be a school girl at Malato Girls' Secondary School so her address was known. Having said that however, it is obvious that the omission to call her does not detract from the orobctive value of P.W41's testimony. PW.l's identificaion of Natata did not depend on the name said to have been furnished to PW,1 imuecliately after the event. It depended, rather, on his assertion that he saw the robber and marked him sulficiently to be able to reconize him later. The man searched p,J.1 's pockets and. PWi -stealthly further looked at the pocket—searcher when the la+ier was subjcting to the same treatment the passene-r nc-xt to F,W.1, albeit when they were lying prostrate on the ground. !: e believe p.W.1 told the truth on this, and, feel buttressed in this view, as was the learned trial judge, by the other clearly incriminating ieccs o evidences' There is first the ri' - watch properly identified by P.W.9 PETIN TEMU, the bile conductor - as being his watch which, along with his shs, 200/=, he was forced to place on a piece of sack spread out on the ground for the victims to place their properties on. In his evidence in court the appellant denied kibwlcge of the watch but the learned trial judge disbelieved. him The appellant was found with this watch and two radio cassettes, among other things, when a KAMATA bus he was travelling on was stopped and searched at Mafinga on the Iringa—Mieya highway early in the morning of 15th February, 1985. The second aopellant told the trial court that the ba containing the-se items and found if:2c t of him • in the bus was not his, but the learned trial judge was not positively impressed. We are not, either. Incidantally, the significance of the fact that the two appellants were found on the same bus travelling from Irina the nir'ht following the murder has not escaped us In our view the second appellonts cniriction was sound and cannot be assailed. The appeal is similarly dismissed. DkT..at IVU3EYA this 30th day of May, 1988, L. N. MAKA ME JUSTICE OF APPEAL .R,H, KISANGA JUSTICE OF APPEAL • A. M. A. OMAR JUSTICE OF APPEAJ I certify that this is a true copy of the original. (. H MOPfE) SENIOR DEPUTY RIISfl?JR,