19890601 TZCA Dar es Salaam

IN THE COtr.11.'11 OF APPEAL OF TANZA1-IT.A .' \ s ' AT M.BEYA -- - ( CORAM: . CRIMINAL APP:.J;-i.L no. 102 OF 1987 BURTON MW!J{SASU • . . . . • •• • APPELLANT VERSUS THE PJ!.""'PUBLI C. • • • • • • • • • • lIBSPONDENT (Appeal from the conviction of the High Court of Tanzania, at Mbeya dated the 24th day of June, 19G7 in ________OF THE: COURT JUDGI\filNT ....._.. -·- ......-......~...,__, ......... The appellant BUH.TOW r1i:'i!JJSJ1SU was charged wi t~1 and convicted of murder by the High Court sittinD at Ifoeya (Haina, J.) and was sentenced to de.~th. He lodeed this appeal egainst both his conviction and sentence of de'ath., He was convicted solely on his own conf'es:::iion which he made to various people on different occasions~ There was no other evidence. The deceased Osiah Swebe met his violent and cruel death late in the evening on 27/12/82 at about 8. 30 p.m .. n uas dark and when people arrived at the scene in res:9onse to an alarm, they only saw the deceased lying dead with cut 1-.rounds on the head 211d neck. The assailant was· nowhere to be seen. /1mo:og the people who respond.~4 1J'O the alarm and arrived at the scene 111"9 the appellant's brother Godwell Hwa11sc.su (P.W.2), Godwell's wife lijdia (P.w.4) and their guest Da:J.iel Swila (P.~'i.1). The following dey t.8/12/82 the appellant arrived at Godwell' s home and asked him along with his wife Lydia and guest Daniel to come outside n.s he had something to tell them in private. He told ·them that he wanted tl1eir assistance in looking fer a mediciner.1a,.'1 1vho would c;:1,st c1,·,8J' spells from him and save him from the evil effcds of killinc a mo.:.1 because it ·.-ras he who killed the deceased Osiah SWebe. He 0xplained th2,t he had decided to kill the deceased becatWe ••..•.• /2 2 I, he had bewitched him ai'1d after consul ting various witchdoctors, he had· '. .f become apprehensive that he might become epileptic or insane. reacted differently from extreme fear in the case of the womc;U1 4Ydia, to The three I utter contempt and indifference by the two men. 1'::is was the :first I, II confession by the appella.t"'lt. ') \ The second confession was that which he made to the arresti~ •I I ., ! officer Sgt. A:BEL P.W.5. On being in.formed -thcct; he 1·ras bei~ arrested (-/!. I for the murder of Osia.11-·swebe,--..t_ge· appellant a.d.r.1i'lited the killing ai1d .II that he had used a billhook to do that. He cllso gave reaso.QS fr,r the t\the ~ 1 'i 'killing al~ led police to his father's house where he show<><\ I billhook he had used. "i/' \ . ll. } .I The tl1ird confession was made by the appellant to Senior I . ·,1 Inspector Ifa,nford Esalu. This was in the form of a cautioned ' j1 statemei'1t uhich was produced and admitted in evide11ce at the trial. In this statement, the appellant not onl;T ad.mi-ttod. -the killing, but i . l .J described }10'\"l he had killed -the deceased by wc10rlayi11g him as he returned home from a session of pombe drin.king, ! In his defence the appellant doniod thv.:t he had. admitted to a110rone killing the deceased. With ro,;r:.rd to t:1e cautioned statement, he stated that he was tricked bto sic;,1i:1i:; H '.:Ty bei11g told that it was a st ateme;.1t showing thd he lrn,d do;,::.ied tl1c ch2.r.:;o, ·aowever afte.r , reviewhig -lihe evidence t!ic learned trial ju.dee 1!2.s satisfied that. all tb.a confessions wore made by thG Q.11J)clln.at to t~:..ose different people on the different occasions and th2,;i; tho;y- 1·1Gre true. Eo found and held that the evidence of P.~lol and LW.2 c:,s :9rimo GUSl)ects, rer,:uired corroboration before it could be r.'.Ctocl upo;,1, but he found such coJ.·roboration in the evidence of the woman 4Y"dia (P.J.4). He rojedec;_ t:1e appellant 1 s deuials of having r.iad.e these co!lfossions and convicted him. At th.e hearing of this 2..:)pcal, I:Ir, 1,l·rc::kilasa filed and argued two main grou.:.1c~s of appeal on beLalf of the appclla;.1t. First h0 said that the learned -trial judge miad.iroctcd himself by ~1ot holding that 41,rdia (P.,W.4) ,·,as ulso a suspect. The only roaso:1 Ur. I'h·;cldl0,sa gu.Ve for . labeling Lydi2. thus ;·Jas tb.::rt s~,.o ha.d :Jeen arrested and according to him I by necessary implication detair:.od. ~fo do not 2;;ree,. 'rhe bulk of the \ \\ evidence points to the f2.ct t:1c.,t almost all t:.10 witnesses went to the 0 Police Station not under arrest but follow'inc i;.1otructions from Police ........ /3. Kyeia that everyone should report at the Police sta:liion; It would app~af this was a go;.1eral request or order.On arrival at tho Police Statio}l · 1 she was not detained, she returned home t!10 same day. There was thus no reason to treat hi=r as a suspect in need of absolvirig_ herself~ Altl_lovgh the trial judge treated Godwell and Swila as suspects, and thus requil'ed theit- evicl.ei.1ce to be corroborated, we think these two would appear to have been involved re,z,&2u' as part of a general police operation.· The second e-·.round argued by Mr. Mwakilasa is that the learned trt.al - judge misdirected himself by believing the uncon~oborated evidence o'i' ' Daniel (P.H.1) Godwell (P.W.2) and Lydia P.W.4, He elaborated this by ' pointing ,out that these witnesses gave contradictory accoul1ts of what the appella.rit told them in co1111ec-tion witl: tho killing of the· deceasGd. He said t!1at while the woman Lydia said tho o,;.)11ollnnt dcscri bed the weapon he had used -to kill the deceased, tho other 1vitncsses did 11ot a.no. added. that i11 clYzy" case tl1ere t·10rc grudg·cs bet1-1oc11 t:.~c i..'-l)pcllant and the wit11.0sses ,{ 1 These points ,are true, but we do not th~11k: they o.ffGded. the main subs·tanceJ(.,. .I of the case. With regard to the woapon, Lydia ,,c,s :riosi tive about the appellant mentioning the HCapon il() used, Godwell said tho appellant did not, mention any weapon 1 and Da;1iel s'b.id nothii'l{?; at all about it. These twc, Witnesses therefore mc\)r not gcnuincl;r have }100,rd tl1e appell.ant mention the weapon. In aJ.1,Y case thoy Nore dl agr,)ed. Oil ·c::.o r.1o,in point that. the appellar1t told them of his havi~; kiil.lcd tho deceased, the reasons thereof, a.rid wliy he was telling them tl11~. l.s rn;:;c,rds t1.:.e allcccd crud.gos between the appell-anl; u,;7-cl these wiJcilosses, firstly this d.id ;,10t cover all the witne.sses as the alleged rofusal to work only r0ferrcd to GoclvJoll 's sh2J11ba, Dn.nicl being a com~)lcto stro.:'l:_;oro Seco~1dly wo ·Jo :.10t -t:~:,l;: this kind of grud5e- would. be e;.1ough motiv;-i;Gion fr:r ·b~1csc witnesses to uo;:'cdlo their rclo:tive with a murder ,cli.arce. 1::.:. t~:0:::;o cil'cl.:ffistc,;.1cus ·;;:,.o lec,I'nod trial judge correctly treated Lydi2. 's ovid.ouco 2.s corroboro;tive of the evidence of Dunicl (P.W.1) and that ·of l1er :-rnsbc.:1d God.well I-1110 were initially treated as prim0 suspects by rcc1,soio of ttoir having been drinking together with the d.ocooscd. shortly before 1-:.is cleo;bh. In any case the appellant 1 s confessions to thoso •:itnossos aru nlso confirmed by what h~ stateci.'in his ca.utionod stn.toment iJ.ilCl his st::ctoment rcga..rdi.~ how and with wlmt we:xpon ho 3.ttc.cked. tho doooa...c;od. j.s: co.u.-f:i.wnGd by the doctor in his post-mortem report. ii 4 Like the trial judge t18 arc s.::i.tisfiGd th,::rc the appellant mad~ all the three confessions freely o..nd that they arc true and that there Has no dc::.iigor in acting u:pou them., The a1)pe.aJ_ the.rdf'o:t~ f'ails and it is <lismissed. F. L. IJY.t".LALI .CHIEF. JU3TI c:g L. M. Ml:J<Al'.1E JUSTic;::: OF APPEAL ........ L - l'I. T{F'.f.iLILA AG • JUST! Cl!: OF JU?P:CAI: • I certify that this· i1? a tru~ cop3r of tho or:i.gina.J. .. \ ~'114 "'~·- ( J. £1. MSOFFi~ ) n SE1';'10ii ....._n;;pUTY _.,_... . -. il1~GISTi-U1R. \ \