19880311 TZHC Dodoma3

IN THE COURT OP A1lAL OF TANZANIA • ATDDOMA (coAIi MAKAM J.A,, KISANGAJ.A. 9 Afld0I1AR, J.A.) CRIMINAL AtPEAL NO. 70 OF 1987 SHAANI ABDALLAHAMANI & ANOTHER. . . APPELLANTS VERSUS IrHEREPUBLICO.O...,.,..., ORESP0NDEINT (Appeal from the conviction of the I-ugh Court of Tanzania at Kondos) (Bahati, .) dated the 3rd day of April, 1987 in Crimtha) Sessions Case No. 24of 1985 JUDGEFUT OF THE COURT The appellants Shabani Abdallahamanl and Ramadhani Kapuzu were jointly charged with and. convicted of murder contrary to section 196 of the Penal Code, and were each sentenced to death by the High Court (Bahati, J,) sitting at Kondoa. They have now appealed against both conviction and. sentence. Very briefly, the case for the prosecution was that both appellants went to the home of the deceased and stole cattle \ at night, and in the process theyattacked and killed the deceased and injured, other members of the deceased's family, some seriously. The conviction was based wholly on the evidence of Mwasiti Naam (P,w.1)•, an old woman of about 80 years of age. She testified that the deceased was *.her b'rother. Both of them lived in one home but in differer.t houses 1 On the night of the incident she heard the deceased making noises and when she peeped through the unpiastered wall of her house she saw both appellants coming to her house. She recognized them through the moonlight outside at a distance of about 20. paces away. She remained on the bed all the time as she peeped. out and saw the appellats. Then the appellants.........'./2 - -2- the appellants entered the house, caught hold of her and threw her on the ground after which they made away with her cattle. In the course of the attack they also injured one child who was sleeping in the same house with her.,. She made noise and people, including.one of the appellants, came in answer to it. Then she lost consciousness which she re-gainCd sometendays later at the hospital. She was informed of her brother's death after thus re-gaining consciousness at the hospital The body of the deceased was fourd with injuries on the ear, bruises on the chest and fractured ribs. According to the medical evidence death was due to severe chest injury. Both appellants denied the charge, and one of them put up an alibi 1 The trial judge was assisted by three assessors. Two of them found the appellants not guilty but one of them found them guilty.. The learned judge accepted the evidence of p,W.1 and., rejecting the appellants' defences, found the charge proved and accordingly convicted the appellants. I'r. G. C. Alimwike, the, learned counsel who reiresented both appellants, submitted that the identification of the appellants by P.11.1 was unreliable such that it required corroboration before it could be relied on to sustain the appellants' conviction. In this connection counsel pointed to a number of wea1esses in the evidence of P.14.1. There was no evidence of how bright the moonlight was, and how wide and clear the onings in the wall were which enabled P.14.1 an old lady of about 80 years, to identify the appellants at a distance of about 20 paces. But what is even more is this: P.14.1 testified that she d.isiosed the identity of the appellants only after she re-gained, consciousieis at the hospital ten days after the incident. The 4uestion is, if after the attck she was able to make noisê ........ /3 - 7 - make noise or raise alarm in response' to which people came to the scene be-for*e she lost consciousness, why did she not disclose to those people the identity of her assaillants? P.W.2 claims that P.W.1 did, in fact, mention the appellants in the presence of the villagers that night, and the tril judge agreed to this adding that p.W.1 might, have forgotten that. she did so But again the question is, if p.w. 1 did, in fact, mention the appellants in the presence of the villagers, why did the villagers not arrest the appellant Ramadhani ICapuzu (Songo) who had come there in answer to the alarm? \.Je think that the conditions under which P.W,1, a single witnc-ss, identified the appellants were not ideal or favourable for dorrect identification. We agree with 'counsel for the appellants that in the light of this and the other unsatisfactory features in the evidence such as we have referred to above, the evidence of P,11.1 could not properly be riedupon to convict the appellants unless it was $upported by some other evidence. However, no such other evidence is available, and therefore the conviction LB blearly untenable. Ur. Chaila, the learned Senior State Attorney appearing for the resiondent Republic, at first was minded to support the conviction, but on second thought he stated tt he did not wish to do so Per the reasons which we have giv, we think that he rightly decided not to seek to support the conviction. In the result the appeal of both appellants succeeds. The conviction of each appellant is quashed and. the sentence set . aside with an order, that both appellants are to be released forthwith unless they are otherwise lawfully held in custody. DATED at DODOHA this 11th day of March, 1938. S•••SS•S0 /4 L. N. MAKAiE JUSTICE OF APPEAL R. H. ISANGA JUSTICE OF APAL A. N. A. OMAR JUSTICE OF APPEAL I certify that this is a true copy of the original. I . (J.H.r WE) SENIOR DEPUTY RBXISTRIR