19890907 TZCA Arusha

IN THE COURT OF APPEAL OF T/,NZANIA AT ARUSHA CRIMINAL APPEAL NO. 79 OF 198, ASJ:.NG¼ILI MAMBUNI. a • • • • APPELLANT VERSUS THE EEPUBLIC • • • ....... • • • RESPONDENT (Appeal from the convicti~n nf the nigh court •f Tanzania at Arush~ (Munuo, J.) dated the 7th day •f April, 1988 in Crirrinal Ses-sions Case No.· 8 •f 1986 JUDGMENT OF 'THE COURT This is an appeal from the decision of Munuc, J. who fouad the appellant gt;.il ty of murder contrary to ~ection 196 •f the Penal Code, Cap.16. Feur other persons we~e accu~~~ of.being ass:ssories to the fact of murder contrary to section 213. Three of them were acquitted and only one, Andrea Mputa, "'· the :\cc used No., 2, was convicted but has . not appeal:e~ .. The deceased, Amir s/o Athuman, was living with his 11rotller-in-:._law, Juma Shekkago (P. W. 2). In the evening of the ] .• <It 25.2094 the deceased left home saying •. that he was goind on a trip with hisf.riirld\, Accused No.2. The deceased never returned home ·;j ., ,, .. that ni<;'.1-~o The foll•wing day and after making enquiries P.W.2 knew that th€ d£ceased 1 s body was found some 3 'kil•ineters away • •••••• /2. 2 P.v1.2 went there and told the Police ti·1at he suspected the appellaht to be the killero The reason was that earlier o.:, the appellant h/:\d complained to PoWa2 that the deceased was having an affair with his wifeo The apr:ellant was arrested the same day i.eo the 26.2.84.,. The who~e case of t.'-le prosecution hinges on the evidence bf Gisa Yatoo (PoWol). There. are two pieces of evidence of P.W.l on recordo First, there is her sworn evidence in cour~ and then h~r Police statement (ExhoP.2),, Before evaluating her evidence we have first to see how Exho Po2 was admitted, Exho Po2 could be admitted to inpeach the credibility of Poi'lol either by the defence o.:::-, with the permission of the court, by thE: prosecution, It is so prov5.ded by Section ·164 (1)(c) as follows:-. 164.-(1) The credit of a witness may be impe~ed 11 in the following ways by the adverse party, or, with the consent of the court, by the party who calls him - (c) by ::f/t:oof of former statements inconsistent witi1 any pa.'::--t of :1is evidence which is liar>le to be contradicted;" Iff the presei:it case the r:olice statement of P.W.l was pr'.)duced by the prosecution. The reo')rd goes: 11 Re-Exarrdnation bv State Attorney~ I know to read. I nm Gisn Yatoo and this is my police statement which I recorded on the 27 .. ~.1984. Musei· (Counsel for def~rce) I have no objection to the statement of P.W~l be::.ng tendered provided I be al.lowed to cross-examine t;2:.-;_ w~ tness on the said statement. Court: Statement of PoW.l admitted as Exh. ·P.2 seoo•/3.o , -· 3 The Court of Appe~ 1 for Eastern Africa in Matati bin Ruadibe v.R. (1938) 5 EoAoCoj.,o 52, when dealing with Section 155 of the Indian Evidence Act, 1872, which is in pari materia with the cur.rent Sec •. 164, said that . th~ proper procedure is to apply for leave to treat the witness as hostile and then to cross-examine him on his statement. "If seriou~ and substantial inconsistenciE,s are proved the effectt is to render the witness unworthy 6f belief end not to make what he said in his former statement available as evidence at the· trial." Cat p.53). In the court below that procedure was not fOlloWed. Then even after it W3s admitted the prosecution did not go on to cross-examine P.W.1 on tha statement. Mro Mughwai, State Attorney, who appenred for· the respondent, the Republic, submitted that Exh. Po2 was produced to corroborate the evid-:.?nce of P oVk o1 in court. Admittedly Section 16• of the Evidence Act, 1967 permits thE p~oduction of f~rmer statement to corroborate the testi~ony of a ~itne~5. That section provides: "166 - In order to corroborate the testimony of a witnEss, any former statement, written or oral, madE': by such witness re 1 a ting to the _same. :~. fact madE"· either at or. about the same time whelt the fact took place or •efore any authority legallYt· competent to inve~ti!ate the fact, _,...; Jitay?} •e proved." However, it is our well considered opinion that the provisions of this section h~ve been qualified by the provisions of Section 10(6) of th<:: Criminal Procedure Act, 1985 which say: 11 (6) A statement by any person to a ,police officer in the course of any inv~stig·ation may fue used in acccrctance with the provisions of the law for the• time being in force relating ,t:o the ,rocedure for thE- adduction and reception of. evidence, but not for the purpose of corroborating the te~timony of that person in .£9~0 (emphasis provided) .,' .•.. /4. 4 we say so because the Evidence Act deals with evidence generally whereas the provision of the CoP .A. deals specifically with evidence pertaininJ to criminal prcceeding~. In addition as the C.P .A., 1985 was enac'bad' ·, aft-~r the EvidEnce Act, 1967 the legislature had in mind the provision of 3~ct 0 166 when enacting Section 10 and intended to limit the application of the former section to the extent pre£cribed in sub- section (6) of. the latter section. We are therefore of the opinion that Exh·. P. 2 was improperly admittedo However, we concede that it could properly be admitted at the instance of the defence under Section 164(1) Cc) of the Evidence Act to <liscrcdi t the cn-dibili ty· of P .w. 1 and we intend to use it as such. P 0 W0 l is a labourer of and stays at Shangilile farm at Karatu, Mbulu Districto On the material night ~he was in the house of Accused NO. 2 drinking "moshi" together with Accuseds Nos. 3, 4 and s,·one Jackson, and the deceased for about two hours. Then the deceased ask'3d Jackson fer his change. This led to a quarrel. The deceased heat Accused No. 4 with fists. Then the appellant, went with a club to inquire as to the cause of trouble. Jackson told him that it was the dec~ased.. ThE, oppellant then told the deceased "Nirnekuambia siku nyingi · acha hii Jcambi" D After that the appellant hit the deceased with the club on the head and ne-ck until "he completely died on the spot." Al though there was no lamp at the scene of crime. there was moonlight and P.W.l did not hav~ difficulty to identify the appGllant becaus~-· ·it ,mo knew him as hE: l\t.s their foreman. Also when the appellant was clubbing the deceased he was saying that the deceased was the par~mour of his wife. P.W.1 left the body of the deceased at the scena of crime with Accused No.5 and Jackson. She did not know who went to throw thE body at Ngila farm. P.W.l did not report tht:i incident to the Police until she was questioned by them. 5 The learned counsel for the a,pellant, Mr. Musei, submitted th~t the learned ttial.j:udge failed· to address her mind on the dangers of c~nvicting 'en the eviden~e- Of a single witness • . The .learned cuunsel c0ntended that the circumstances_in which P.W.l identified the appellant wer~ unfavourable. First, P4W;l had been drinking for about two hours 0 ~ Than it was night time and there was no lamp but only moonlight. Lastly, eveh ~he.ugh she said that i,he had· no problem to identify him because he "-'as their foreman that could be a genuine mistake. It was argued that some doubt is ~ast by the··,failure of P.W.1 to • report the incident to the Pulice until questioned. Finally the I I le:~rn-:!d counsel submitted that there was no reason why Jackson was not called tc testify. Mr. Mughw?i responded that in addition to P.W.1 having known t t~e appellant, the assault lastedXfor about half an hour and that is 1on;1 enough fer e proper identification. P.W.l did not report the incident to thti Pclice 0ut of fear of the aztpellant. But Mr. ~ughwai concE;ded th,a.t the appellant was arrested on •he ·2i/2/84, the dcy fellowing that of the incident, and ~o could not •~ :)f ariy dan9e:r to P.W.l. However, hP. argµ~d that the ten cell lea13r {P.W.3) ·knew of the ineident and he t:)o did not make a report to the Polic€. Mr. Mughwai admitted th~t :~ere was no reason why Jc1ckson was net called to testify.. He said the omission is ,,ritical. How:;ver, he maintained that, P.W.l was corroborated by the evidence of the medical repcrt_(Exh.P.1) that the deceased had a fractured he'i:l and ne.ck. He· nevertheless admitted that the corroboration is as to the c~use of death and not the identity of the murderer • ••••••• /6 • There were two other witnesses: P.W.3 and P.W.4, the ten cell le3dar and the. watchman respectively. They only said' that on the matarial night they heard voices of many people ~aying "ua, ua" • But they never knew what '.Jas • h appeni·~.9• · ; s o •th € llase stands or falls i' ti on the credibility cf P.vJ.l. Admittedly P~W~l knew th~ appellaht as their foreman and so couid identify easily. .In addition the appellant spoke when he went to the group that w2s drinking and .he was speaking when he was beating the dec,nsed and sc his voice could. be identifi.ed even though there was no l.P but mer€ mc,cnshine. However, the party had been: dr.inkin~ "m)shi 11 for twc hcurs and. that was their pa·y day according to P.,v.1 and Accused No. 2, who was the paymaster. P.W.l said that Accused Nos. 2 end 5 were drunk and she was her~elf "tipsy". This casts some doubt as to her certainty in id~ntification~ Then he::r t~stimony is not free from contradictions. She had dapos~d th~~ she found the deceased and Accuseds . . Nos. 2, 3, -4. 'lftd S drinking. Then she·· Mid that during the fighting Accuseds Nos. 3 and 4 ware absent. Yet she had narrated that the ·appellaitt was attracted to th3 scene by the ~1arrel following the deaeased's beating up of Accus3d No. 4 with £.i,~8'+~ Agai't in her examination in chief she •• ..,:w • • explained that the police asked her about the incident on the 5th . ~ of.March. When cross-'examined she gave the date as thP, 1st of narch. There are elsO a number.of discrepancies between what is contained in ixh. P.2 and what P.W.l deposed in court,. ,For example, there is a •~onflict as tc the disposal of th~ dead budy. In her testimony in court ,.. she said she did net know who threw away the body. But in Exh,.P"2 she ;-1as very pcsit{ve tl1at it was the fiye '·a•cused persons in concert - .... ../7 ,,, 7 and ·she even said what was given in consideration of that assistance. C ~. Then in her testimc-ny she said she heard the appellant say, as he was beating the deceased~ that the deceased was the paramoUr .of his wife~ But in Exh.,P.2 sh,· stated that she had personal knowledge of the illicit relati(~ship. In the third instance, in her testimony she I described a qua.rrE::1 at the dr':i. nks :;;arty which attracted the appellant. I But in E:x:h.,P. 2 she did not m•mtion any quarrel but that the appellant .-4.~;Jti::ty<- Qppeared and s~~d . ,· .. ·, .,, beating-up the deceased • : .···,..·.· T.-iere is olso the questi0n why she had not gone to report to the l pvlice on her own. The reason she had given (the fear of the appellant) is farfctched. The ap?ellant was arrested the next_day after the iilling ioe• en the 2Gth February and she knew it. Admittedly the ten cell leader F .w. 2 al so di.d not make a report. nut he knew nothing apart frcn, the voice he had \:ieard of "ua, ua". • The total effect of the foregoing is to make the evidence of the sole witnf'Ss far fr0rn· being ·watertight which is the degree required tc secure a canviction. -However, the situation ;1Ould have been improved by providing corr::>bora-tion fr<.:_m anothrer ey-=-wi '.:1:-i.ess ;_ Jackson. This man was at the centre cf what happen<::-·d and was in fact involved. The first qu~'frel was precipi tatod when the decea~ed asked for his ch'inge fi;om this Ivjr. Jack3Or1. When the appellant -was summoned 'bo the scene by what was going -.on it was the same Jaax.son who told him -that it was the deo2asc<..1 who was the trouble maker. -As if that is n;)t sufficient, P.W.1 co;. . _firmed that she left 'tl?.R dead body in the company of Jackson and· .Accused No.5. Jackson and the appellant were n::>t strang€•rs. · The ap~ellant stated th0t "Jackson was a co-tenant of bccused No. 2 1: . This Accused No. 2 is a son-in-law of the appellant and their hounes were 15 paces al?art. Thus Jackson would have either ccnfirmed or contr3dicted the identity of the 8 app~llant as the murderer. Mro 11ughwai conceded that the omission to lllall Jacksoh to testify wo.s cri tioal. The learned cpunsel did not know Why he was not summonedo It was-said by the Court of Appeal for Eastern Afri~a in ~-?.£1._g__y~__R,...!'_ (1938) 5 E.AoC.A. 58 at 59 that the court is entitled to pr3sume that "evidence which co\lld be and is not produced would, if pr~1~ced, bo unfcvcurable to the person who withholds it and it is inde~d difficult to understand why this vital witne~s was not called". This is the cese ip this appeal. Accus~d No. 5 in cr6ss-examination said that he had seen Jackson at the Police Station at Kara tu. It is not known he was.there on what account. P.W.l in Exh. P.2 stated th:1t J,3.ckson w2s her boy friend. This fact mak1.'!s. the omission even mor9 ramarkable:. Owing to the fact that the testimc;ny of P.W.l is not watertight -~ •·.·. A. RAMADHANI JUSTICE OF APPEAL. t copy of the original • ,, .,.~)f ( J. H. MS0FFE) SENIOR DEPUTY REGISTRAR •.