19890323 TZCA Dar es Salaam6

IN THE COURT OF APPEAL or TA~ZANIA AT DAR ES SALAAM MAKAViE, KI SANG A, J •Ao , And OJVJAR, J • 1!,:) ' CRIMINAL APPEAL NO. 115 OF 1988 l"10HAViED KASEMBEo 0 • • • • ., APPELLANT VERSUS - •rHE REPUBLIC., ., 0 • f,l •• • ., • • • RESPONDENT (Appeal from the conviction of the High Cnurt of Tanzania at Songea) (Kazimoto, J.) dated the 17th day of June, 1988 in ________ _ .... 20 of 1987 Criminal Sessions Case No. JUDGMENT OF THE COURT .. - The appell·a~t was charged' wi'th - arid convicted- Of murder contrary to secti9n 196 of the Penal C~de. Game scouts patrolled a certain area called Mbalangandu in Tunduru District for five days. On thr~ fifth day, that is, the 26th Nay, 1982 they· had a confrontation with poachers, some of whom, about six, they managed to arrest and tie them up. After a while shots were fired· from a h.ill into the valley where They looked up and saw a man whom they all de·scrilt~d as short, black in colour, and had a .shaven head. He- w•re shorts and a black coat. One of his bullets hit the deceased in the st:irre.ch and he died. This man was iater identified at the p•lice identification parade by the same game scouts P.w.1, P .. w.2, P.Wo3 and P W.. 4o 0 'I'he witnesses· averred •.in their - evidence that they saw the appellant at close range-about 15 paces away, when ._ ,:· . - ·l· ' appP.l~,nt was un~)ip! the ropes which were around tae pOachers, they als••., saw him taking a rifle •Which the deceased had dropped after being shoto P.W.1 went further in his testimony and said that appellant chased him and he had to run and lOOk for a place •••ooo/2. / I . ,.h f., - 2 ...... ··T~ ;✓.": to hide. The evid~r,ice discloses that all four witnesses were able to 1dentify him bec~use it was day tim~ and the grass was ~hort and dry ·. ~~ and the appellan~who was on top of the hill came ctown t~ where they were, apparently to_ :free his colleagues and to see whateveri·~loot he could get. The identification parade ~hough criticised by the learned defenc~ counsel as lacking in certain essential rP.quirements-was found by th· ~rial judge to be not the Only P.videnc_e against the appellant • . . if Even ,:- the identification parade was disre9arded, there was still th:? evidenci of thP. eye witnesses P.w.1, P.w~2, P.w.3 and P.W.4. The learned trial judge said in his judgment "'Indeed the witnesses saw -thC; accused at the scene and had him under observati•n f•r. about tw• J-\Purs and positively identified the accused at the scene". ' . ~-,• We agree with the finding of the learned trial judge as to the proper identification of the. appellant. I~; ~as not just a . ca.r .j of any baldheaded man being picked up and *toaj·~!dentified; t~eret<tJP~fe det9i·l·~·""in the identifica-t:1on of· appellant which could n~t but r.e tru3., ~--~ ./. I ••••t .- ; ~ ... - .<-> t , · ~ · rn the circumstances . we find· _that the appellant was ~ '. properly I I. -. . . ·, . . ' ' .. ,:<:::Onvicted anq we •chsmiss the appeal. ., ,,,. ~ • . 't ••. ~- ·, • ~' :) DAT~D at DAR ES SALAAM ~is 23rd day •fiMarch, 1989. ',,\.l ·, ' , ~ 'l 1_ i·.', ' • . ' ,,:,'\.;, ~-. , •' ,{ ~ L. Mo MAKAl1E . J-USTICEOF APPEAL Ro H. KISANGA JUSTICE OF APPEAL . 1'J A■ M•. A. OMAR JUSTICE OF APPEAL ( J. H. MS0FFE SEl-iIOit DEPUTY REGISTRAR.