19891122 TZCA Dar es Salaam 1

IN 1l11Ii"i: COURT OF APPEAL OF :T~•i.:i.NIA ~~~I!l ( CORAM: . And . f.'.INZ.W.AS, CRDHIVU, JlPP).:;.:11 NO. .50 OF 1988 VEHSUS THE J/EPU.DLIC ,. iiESPONDENT (Appeal from the conviction of the High Court of Tanzania at Hjombe dated the 9th da;y of Earch 1 1988 in Crim~nal Sessions Case Ifo. 75 of 198~ JUDGEfiENT OF 'fiIB CCURT --~. .- --.-..Q gv)AR 1 J .A~ . The appellant was charged. witn Hurd.Gr contrary to section .196 of the Penal Code~ He was foUhd ,:::;uil tf, and sentenced to death. He is now appe ali:1g 1 The prosecutioa adduced evidence to the effect that on the night of 2/n/84 the appellant along with three other people went to the house of the deceased in the village of ri.iul1m1.gble 7 broke open the front cloor· and attacked the deceased with ai.1 axe and killed the deceased instantly. The c.leceac;ed 1 s wife P.:'i.3 1 who was in another room was prevented 'b3r a group of people from raising an alarm and .she stated in evidence that while she 1-1as told " not t •· shout and threatened with dire consequences if she did 7 she heard the hitting sound in the other room where her hu.sb~ was sleepingo She could not recognize any of the intruclers although ... 0 0 • t:t • /2 2 she heard their voices as they gave orders to her~ After the departure of the culprits P.W.3 then went into the room of hel' husband only to find him already dead, soaked in blood and having a big cul; wound on his head,. The following day, P.W.3 1 stated the appellant was arrested btri; she still could not say that she was the person who attacked her husba.11d. P.W.2 Detective Sergeant Mussa ,ras the person who arrested the appellant and on the information he received from ·che crowd that had gathered outside the cle.ceased 1 c hoUse, he P.H.2 stated that on his arrest tl:te appellant confes;Jed to him to the killing of the deceased because he believed the cleceased was c:'v wi-!ichdoctor. P.W.2 then took. the ~:_Jpellant to a Prir,1a!J' Court ifagistrate, P.W.l, Joseph Mwandembo. P. W. 1 interro.ga;bed-the appellant to find out how willing he was to make a statement a:.1.d he was satisfied ~1e was a voluntary agent a..r1d so he accepted his s·~atement 1vhicb. uo.s a clear confession of the crime committed the ;ir,3vious night. 11he s·~atemenot was read back to the appellant and he si :r.ecl H as beil1.(; correct. This statement JExb.i bit P.l which uas nade i;.1 Kis:1al1ili is reproduced. below in ID:iglish for reasons that will ;JG a. )arent la;ter, "I, George Ndandala am 32 Years old, !'Tl;T tribe is Mbena, and I am a peasant and I ar;i a re side11t of M~ongole village. It was on the night of 1/11/84 when r, Bernard 1'/ipa."lgo and two others from Ir:i.nga whom I do not know very much. All of us toGether attacked the deceased Kingesile i:ialrneta by cui;ting him with an axe which Has ~1andled by my colleague Bernard l\'1pai1gO who was the one who actually cut -the deceased,. The plan to kill the deceased was conceived ·o;.1 31/10/84, we were the four of us named above. The reason for hatching this plan was because we felt the deceased was a witch and had bewitched t]:le children of ller.aa.rd Mpango who is a member of my family., 3 In the process of trying to kiH the deceased we all foID' went to the deceased house at 11 aom. We found him. asleep, we pushed the front door of his house and entered inside. Our two col1eagues who had come from Iringa stood at the ( door to prevent the wife and children of the deceased f!IOm raising alarm. Bernarcl struc1: at the head of the deceas~d twice with an axe. I did not retun: home, after witnessing the two colleagues from Iringa, 'one a driver and the othe,:, a turn boy being paid their nthank you" of shs. 2 1 500, - and driving away in a blue lorry with a .trailer, I t~uld I not read the number of the car as it was night time. I I can't rnco6 nize the faces of our colleagues from lringa but Bernard may remember them.;,. When the appellant made his defence on oath he stated th~:- 11lt :i..s true that when P.W.2 interrogated me I ¥med. to have· killed the deceased. and I admitted so because I was beaten.". He also said:- !'I did ten P.W.l h1 my stato1:1ent Exhibit P.l. that I with L+--?;nard conspired to ldll the deceased but lzy then I was a confused raan. 11 • So the appellant denied having made any truthful confession to the police officer P. i'J.2, he merely made a statement to him to avoid any further harm to himself after the first beating. This is a retracted confession. .l\nd in the confession to the Justice of the Peace he retracted it as bein,g not entirely true because at the ·time he made it, he was a confused i,12..11 and a portion of it he also repudiai;ed. These tw6 confessions Mr. Bate;;runga, the learned defence cotmsel urged nonnally aJ a matter of practice ru.1d prudence, they would require corroboration, Mr. Bateyunga_went further and said that Appellant was arrel:fted when he was among a group of people. No one from that group came forward to say that appellant made a confession to F.W.2. P.W.3 ·tile wife of the deceased did not 1u10w who was the killer of her husband, She srov t~ arrest of the appella,."1.t but if she heard the confession she would know. I that he killed her husband. Mr. Bateyunga added that ApJ?ellant ........ /4 said he was ooaten by the· police and told to' say what he did to P.w.1. Whatever he told P.W,l was the result of what he was told by the police officer to say. Mr. Nd1.mguru, learned State Attorney, s~pported the conviction and stated that Appellant I s defei1ce that he was confused when he made a confession to the Justice ·of the Pec,ce a,;.1d was fearful of his life when he made ·a co;:ifession to the police officer - all these were mere afterthoughts afJGer fi:1ding himself so dangerously cornered. I We are of the view that both co:·1fessions by their nature and contents bespeak of volu.;_1.tariness in their rendering.. 110 have also noted that P~W.Ys evidence lent consistency to the extra judicial statement, 1vhen she snid that.there were people standil:)€ at her door who prevented her w1d her children from maki11g noise. We are satisfiocl that Appellant aar:rated ·i'1hat · actually happened and we therefore, can witl1 confidence dispense 1vit:~ this requireme1Yt of corroboration.. The inescapable conclusion is therefore th2:'c Appellant cori1mitted this -~JUSTIC~ OF·---·--- . APPEAL ~--.,...-- --......-----...- JUSTIC:8 bF 1U:'PEAL ... JUSTIC~~ ,._... OF •11.PPEAL __....__,____,~- - - ·.. ·-•-s ........ /5 ' ' I I i I i J j I I t C I J } t : 11 l .,.J