19890323 TZCA Dar es Salaam5

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MJ.i.KAME, JoAo, KISANGA, J.A., And 0MAH.t J A.) 0 CRIMINAL APPEAL NO. Si.OF 1988 C. 7626 P .C. NOEL. O • O 0 • APPELLANT versus THE REPUBLIC. 0 0 0 0 ., • RESPONDENT 0 e • ... • 0 • (Appeal from the convicti•n of the High Court t;f Tanzania at Ntwara) (Kazimoto, J.,) dated the 4th day of March, 1988 in Criminal Sessions Case No. 18 •f 1986' JUDGMENT OF THE COURT The appeljant, a police constable at the material time, was sentenced t• death by the High Court sitting at Lindi (Kazimoto{ J.). He was found te have unlawfully shot to deat}:l a villager called 0MARI KHALFAN on 9th February, 1985 at Mkupuma, Ngapa, in Lindi District. The appellant and sOme militia men had been dispatched to the area in connection with seme cultivation the Government was trying tt, stop in the area •f a ranch. The app~·11ant had practi,cally ·.•:~ finished doing what he had been ·sent to cl'- when he went tit a pombe club and really made a nuisance of himself$ He arrested even the militia men who was with him and when villagers wanted to know why he had apprehended a young villager he.sh•t one •f the villagers in the leg and sh'5>t dead the 9-eceased. Mro Komeye learned attorney on behalf •.f the Rep 11blic resisted the effort by Mr. Rutabingwa for the appellant who submitted· before us that the conviction was no~ sound. He addressed us at some length and tried to show why his client should have been a~quitted completely, but in the end he conceded that there w.as at least enough material on which to corivict for .Manslaughter. 2 We do not propose to go at great . leng~ ,. , into the evidence, ably analysed by the trial court. We wish .to pick out only one point which to us is enough to tilt matters in favour of the appellant, and that is Mro Rutabingwa's complaint that the twe Prosecution witnesses treated as hostile should not have been so regarded. These witness~s were P.Wo2 JOSEPH IBRAHIM and PoW.10 RASHIDI HA!''lISI the militia men .. A witness may say so~thing not favou~able to the Prosecution, or even rather different from what he had said earlier, but that does not automatically make him hostile. In the present case P.Wo2 said th3t the people (the villagers) were armed with pangas and f~r.this he was .. treated as hostile. Yet in his statement to the Police :,he had clearly said "Hapo ndip~ zogo lilianza watu wrte wakaku~anyika ' wengine wakiwa na silaha ndipo mimi na Kaunje\tukatoroka"~ The point is silaha could easily include pangas, so how was PoW.2 necessarily hostile? PoWo10's statement was r~corded by a Segto ARISTIDES. The story is sort of left hanging in midair and the sergeant does n•t seem to have asked enough questi(ns about the incidento The statement does not at all tou~ on the sh•oting. If the witness in ~ourt says, obviously in response t, some question, that the people c,ame armed, we cannot from that, without rn•,...re, safely conclude that the witness was being hostile. ·The effect ~-f treating a witness as hostile is of c_ourse to throw away his testimony compl~tely, to forget ito We cannot say that if th~ learneq trial judge in this case had not treated the witnesses as hostile he would nece~sarily have reachP.d the conclusion he arrived at. The evidence expunged was in favour of the appellantu In 8ur view it supports the contention that the appellant was or·might have been provoked by the frightening reaction of the armed villagers, in a situation he was albeit the author f'lf, s•. that he might have overreac.ted. WI?. feel the appellant should have been given the benefit .,f doubt and beeQ convicted for the lesser •ffence of Manslaughter only. Accordingly we quash the conviction f~p Murder and set ,.aside the sentence of death imposed. In their place we· convict th:> ~: appellant for ·Manslaughter and sentence him t~ iT!Q>risonment for six years. The appeal succeeds to that extent. DATED at DAR ES SALAAM this 23rd day of March, 1989. J;;~]'.2:':r''.-: •,r ·-····----· :=":::J., ,1;:· 3 ..... Ro Ho KISANGA JUSTICE OF APPEA):., I