19890728 TZCA Mwanza1

Di TIIB COUilT OF APPEAL OF TMTZl:JTIA AT MWANZA \ CRIMJJIL"i.L APPEAL NO• 17 OF 1989 • • ~ APP}JLLA.NT VERSUS THE RGPUBLICo 0 C, 0 e • • • Pc.ESPOJ.\TD.:Llfr (Appeal from the conviction of the Ilieh Court of T,mz£:.nia. at J3ukoba (3ekule 2 J.,) dated the 1Gth day of December, 1988 in Criminal Sessions Case N~ o ~. 104 of 198;2 JUDGMENT OF 'I'BE COURT KISi.lIGA 9 J. Ao g This appeal arises from the appellant 1 s conviction for murder and the sentence of death passed on him by the High Court (Sekule, J.) sitting at Bukobae The appellant and two others who are still at large, namely, Josephat and Silvester, invaded the house of one Tito :Mzee at night and, in the most savace manner, slashed to death a total of five persons wh-:> were ·sleeping therein. The appellant r,dmi tted being present at the scene but claimed that he was ft)rced by the sa,id Joseph.at and Silvester to go there, a.nd that while at the scene Josephat and ' Silvester foroed him to take part in 'the killings, but he resisted and remained there, under compulsion, merely watching Josephat and Silvester perpetrating the killings but without himself participating. The trial judge rejected the appellant's ~ef~nce of compulsion and found .... that the appellant uent to the scene of crime as a free a.gent and participated as such fn the killings. 2 Mr. s. L. Kc,tabo.lwa, the lea.i..'""!led counsel conducting- the defence l)oth heI'& a.."ld in the High Court, filed four r.;rounds 0f appeal all of which centre on the issue of the nppe1J.a.nt 1 s con:pulsion. It was contended that the trial judge wrongly rejected the appellant's claim that he w~s ferced by Josephat and Silvester to co to the scene of crime, and that during the killings the appellant was under .(p.•ua.rd. by Josephat and Silveste:;:,, w1'.!.ich ma:de it impos8ii}le for him to escapee In :;:,ejecting the appellant's defence the trial judge reli~d on the evidence of ¥.ianganda Ti to ( P. Wo 1 ) • She was one of the onl;y two inmates •f that house who survived the killings that nic;ht; the other survivor ' beinc; a. young 1:;aby 2{:;cd about 2 yea--rs whose :oother i'ras slashed to death. According to P.W .. l the appellant was not acting under any compulsion or threat by Josephat and Silvester 9 he was acting on his own volitiono She says that upon ent8ring the house the appellant demanded money from·. her. 1'1b.en a,fter giving him the money y she tried to run away he chased he:;:, up to a distance of about f0 rietr.:.re from the house at which 1><,int he inflicted on her serious cut wounds ca.using her to fall down ana., thinking that she had died he returned to the house to join J 0 sephat and Silvester to continue the att:r<i'.:c}ities there. Such evidence which the trial ju<4,de accepted, clearly negutives any suggestion of compi.1-ls!-;mi. No one fo1~ced the appellant to demand money fr9m Po ~r.1. The appellant w2.s /J.ll alone 1-ihen chasing P. W.1 for about 60 meters und also vtl1en he inflicted serious cuts on her at that pointo If it is true that he h8.d 0een forced by J6sephnt and Silvester to participate in the killingsj why did he not seize the opportunity tt escape when he was thus away from Josephat mid Silvester? Counsel for the appellant submitted that P.W.1 was not all that reliable as a witness, and thr:,t her evidence :required close scrutiny bef.,re it co:uJ..d be uccepted and acted upon. He pointed out that there wee a contradiction between her ~vidence in court and her statement t• - 3 the police e,s to who inflicted the f'~tal injuries on Yustina, one of the· deceased persorlii• According to her pol:i,ce statei;;ent the injuries were inflicted 1Y-J Silvestel', but in her evidence in court she st1:!.ted and L18.intnined thc.t they werG inflicted by .the appellant~ Ad.mi tted.ly, the learned trial judge did not address himself to this contradiction. But we think that hod he done so he would not h2:ve come to a different conclusion. For, a.part from that single cont-.rad.iction, the evid,ence of P.W.1 is consistent with her police statement in other respects. Indeed·P.W.1's evidence also was consistent with the appella.nt 1 s own evidence in some matei~iul respects. For instance, Po W.1 and the ap:pella.nt are agreed on the number and identity of the persons who broke into the house that night and who included the appellanto They are both agreed th~t inside the house the appellant stabbed P.W.,1 arid th,&,t when the witness ra.n out of the house she was chased to a point where she was further ,,, , attacked and wounded so seriously that she'' was believed to have died. It.is again common ground between the two that after P.W.1 was so irounded and rendered in subh a critical condition the chikl.ren were hea.-rd crying in the house, and that only one of those ch:i.ld.ren survived tlie killingso 11.!ld la.stly P. W.1 repo:rted the matter to a neighbew. as soon as she was able to do QO after r~covering some strer1t,o-th, a.nd Lvi that report she mentioned the appellant, Josephat and Silvester ·ns the murderers. In those circumstances there could be no justification ftr discrediting Po~v.. 1 as a witnesse ;'le think thr.t despite the single cont~aiiiction between her evidence in court and her police stlttement as has been shmm, P.W.1 is a witness of truth in the essential matters, and that the trial judge was perfectly entitled to accept and act upon her evidence as he did. It is pertinent to ~bserve here that we a.re equally satisfied that the admitted contradiction involving P .. W.1 1 s evidence was not m~teria.1 Sf as to affect the ease for the prosecution. For, as will be· shown ;, • 0 O o O/ -,- j 4 later in this judonent, the trial judge found common intention between the appellant o.ncl his compnnions Josephat and Silvester. The.t being so, it was clearly immaterial uhether the fatal injuries were inflicted on Justina by the appellant or by Silvester. Yet Po We 1 's evidence was not the only basis for rejecting the a?pellant's defence of compulsion. According to the appellant.himself, after the killines hM. ended that night, J0sephat and Silvester allowed him to go home but for two days he did not· repert the matter to anyone until the police 3.:r:;_•ested him upon informatien :received from ~t.ber-----.. · · sources. The appellant's defence was essentially that he could not :re:po1:t because of fear tha.t Josephat and Silvester would harm him if he did, and n.ls~ because the len.d.ers to whom he could have reported lived far. This contention, however, is without substc..nce. First, Pew .4 testified that the appellant I s own ten cell leader, village chaL.-man and Ward Secr·ctary came to the scene when the ap:pello.nt wa.s there, s,..1 that to ' the appellant did not h~veLtravel anywhere in erder to make a repert. Secondly the appellant stated that so soon-·~ter the incident happened :the villagers got to know that Jose:phc.t and Silvester were the murderers. I If the villagers already knew that Jtsephat and Silvester were the murderers, then it was pointless fo:i.' the appellant t" say that he fearod to disclose their names because they were already known. The lea.med trial judge took the view that the fact of the appellant not re~rting the incident to the lecal authorities was inc~nsistent with the appellE.nt 1 s claim of forced pa.rt~ci~tion in the killings, run we can find no good i~eason for saying tho.t he er-.ced. Mr. !CD.tabalwa also c:ri ticised the trial judge for finding th£.t there was common intention between the appellant -,n the nne hand and Joseph.at cmd Silvester on the other.:. to commit the t.fi?ences that ni 0ht. That criticism, however, is wi t...'l.out justification. P. W.1 testified that after the appellant had wounded o.nd left her in o. critical conditi~n I - 5 - ho, together with Joso:pb.a.t--b.nd. SilvoQ.t.0.r~od tp tho plo.oa only to find tlmt sho was not thora, o.s sho lmd □2.p.ngad to OQ"VO· f~~-aw~• .1s they soc..rchod for hor tho r-.ppollnnt o:icpr0as9c;l concern that if P,W .1 wo.s alive they wGre going to be inprisonod. Tha.t wr.s a olo~ oxp:ression \ of foc.r of possible conecquoncos rQeV¼~· fron o. eommon venture bG-vwoon · . ~ binsclf nnd his companions. Upon c. caroful .poruscl of tho reoerc\, we o.:ro snt:i,sfied tho.t thoro is nothing in this o.ppon.J. which would wa.r~o.nt interforonoe with tbQ. ful~J16fl o.nd. conclusions of the trio.l ji.ld.go. ThQ ~:poo.l.. ~ ..AAQ, i9 ~ccord.ingly dismissed in its ontirotvr, DLTI.ID at MWf..NZ14 this 28th do.y of July, 1989• Lo M,. llL.KLME JUSTICE OF f..PP:mt:.L ,, 4C 04$2QSO 0 R.- H, K;IS:JiG/~ {UJJ;Pr, 207,ifWils A, M, .,\J OM.AR JUSTICE OF .ilFPZ'.'~ 90 ,t J!• 'Wffr JtfU f2i a, '. I oortify tb.o.t this is. a. 'U'µO copy of tJie O l ' ~ /d]/a~ ( s. §~ ~lJ:JllGE) D:3l>UTY RL'GISTRAR ., 0 p ♦\ ij • I C T