19891218 TZCA Mwanza5

!& THE' COORI1 OF !PFlUAL OF Till~,4?UA 4T ~ili'iJJTZA MIDJ.~ J • .A.,_OK.(,i.R'- J,,ui• !.XJ.d. l\Tfl:.LIIJ,.1 .r,1.,) CRD.~IlTf.L l~P~ .NO. 134 OF 1989 . SIUSI NYIRI .l'.PPELIJ.lTI' TEE P.EPUl3LI C • • o " o o • • • • • • • • • • • • • • • • • • • • o , RESPONDENT (.t.ppeal from the conviction of the High Cou:rt of Tanzania at Tabora)(eh.ipeta1 J.) dated 2nd · day . of June, . 1989 . in Cricinal Session Cqse·No. 2 of 1986 ¥ 4 I U -- -- ..... JUDG"':J:t:TINT OF TEE COURT Ce appel1an1 SILLS NYIRI wss condemned to deeth following his conviction fo~ the murder of a pe;rson celled GIDIO:NI K1J3YEM.tJ:ltJ at Bulyank.ulu Village in :Knb.awa :Pistrtct on 12th 4lr:l.l 1983. : The deceased was shot dl.o decth by a bandit ·anong a 8l'0Up of pe.rsol'lE! who invaded the homestead of PW~3 m::NRY ICTSDW.LI while people there were teking their supper ot about 7.30 p.m. The evidence accepted by the loarnod trilll judge wos- that;tho appellant was one of tho br:mdits. Mri ~iloro, learned State L.ttorney supported the trial court's decision before us om resisted the efforts by Mr. llagongo, learned counsel for the appcllcnt, to f~ult iilt The learned trial judge consido.red the evidence of identification. Ho oxnmincd the tostimoey of PW.3 1 s son, PW.l DLUDI BJJNRY, that when he wcs coi:ling from o neighbour's house that evening ho found four people standing nenr his fnthor's cattle shod. He recoenizod all of them end ono of th~m wns the appellant. Shortly afterwards tho witness her.rd tho loud report of c gun end. he had to hide hitlself in a shallow pit from where l:.e was able to see the bend.its enter the h~e. 'l'he learned triel judge was sdisfied that PW.l WBS o witness of truth but ho went on to pose the nocossa.ry question ns to whether PW.1 1 s opportunity in the cireu.zratance was such that one could positively say th8t his identification of tho l 2 oppollen~ loft no ~cop £or doubt. Ho concluded thct he would not have been )?roporod to found tho cppollnnt's conviction on the ev-idoncc of PW.1 if it stood clone. He wns sctisfiod, however, that there wore fcvourcblc cirCUli1Stnnc0s for PW .. 2 to identify tho eppollent and thr.t there wcs no possibility of r.iistakc in tho idontificction. PW.2 l{JJ,ItJLI SEISHI, PW.:; 's wife and PW.2 1 s □other, is rclctcd to tho appellant by ocrringo and was fornel:lY tho oppellcnt 1 s villefer:iatc. She 1t know him well before the incident. .Accoxd.Ing to PW.-2 it wns the appcllorrt, m-oed with a sun, who dx-aggcd her into tho bodrooo whore there wos c light on, and who sovorolY' assmiltod hor. It was_ the oppcllent. arrl. two others who dewendod □oncy and mode off with Shs.1000/=, radio sets ond suitccscs. The witness reckons thct tho th~s wore nround for sono thirty ninutes. Tho lem-nod judge reachod the concl-asion that tho oppellont wns correctly identified at tho scene. Mr, Mnsoneo coLJp~ninod thnt if the lcnrnod tricl judge hnd. csrcfully considorod tho discrepancies mrl controditions in the evidence of PW.l nm PW.2 ho would not hovo convicted the nppollant. The. alleged contrcdictions end discreponoies were over such issues as how nc:ny bend.its thc~~c wore, -what else npnrt froc tho gun tho oppollnnt wns currying, and how long rec,lly tho c.ppollont end his · . . coopenions remained inside the house. With· respect, we cgroc with r.rr. Bilnro t~1ct the difforonces, such as they were, wore of no consequence in the circunstances of !, tho oaso. Whet the c.ppollnnt was cc.rrying while cntcril.1£ the house did not hr-:vo to bo procisoly tho sr:oo as when ho was seen by PW.1 and not noccssnrily nll the ban.iits soen by PI·T.l would hnvc entered the house to be seen by PW.2. How long the bnn:1.its wore in tho house was nt bost n .'guoss-stir.1nto• by o sccrod rurnl lc.dy not shown to be wecring o wctch. Wo t=:ro sr.tifi0d thr::t tho oppoll2.nt 's conviction Wt:\S justified on tho evidence ond that it is supportable ovon witbout tho controversicl EK:h.P.1 wb.ict wo now turn to. A oon eollod FR/NCIS ICTYU1''13I was scid to hcvc oedo n stctoi;icnt to PW.4 :M:IKID.IJ)I NDJ..IJl'.tl.., a police officer. Acoo:rdin~ to tho recoi--d.1 d one ti□c hw w~s o~-u-god along with tho· appellant but it is not quite clc.:r whet happonod to him thereafter. Tho nppcllnnt s~id thct tl:.cy wero both rclccsod in !fovc::bcr 198~ end thnt he, the appoll2nt, w2s r0nrr0stcd e Donth lr.tcr. Be it ~sit nny1 it w~s •••• /3 . ..a 3 cert.einl:, incorrect on tho '1'~.rt of :m-. Bilcro to scy during t.ho tricl tb.rrt tho ollegcd stetor:ent was ndpissiblo under sections 27 nnd 33 of tl:o Evidonco .t..ct. . . Tho sit1plo rccson is thet tho seid FR~NCIS IaTu~:r3I was not en nccusod person or n co-cccused for tho purpose of tl::o trial £iving :rise ·to this present appeal. Secondly, wo wish to observe that we csnnot with certitude sny thd the nllofcd .. · nokor of tho stntonent, Frcncis Kiyupbi, is necessarily tho s,.nc os Frr.ncis I<t.BJJ.IBO, one,of the non PW.l snid ho sew in the conpaey of the appellnnt that fntcful night. It is to thet oxtont not doberoincto onough-t;to relde tho nclcor of the stctonont with the ~ostiooey of FW.l • .Lt best it _suggests th~t ttorc wcs c ccnspirccy botwoon tho oppellont, the nakcr, end $ODO pooplo:tc perpetrate C cri.Do but ,in . tho absonco of o eloar explnnetion by tho .Prosecution why the r:ekor of the . 0 stetemont w~s note c0:0cousod or n witness during tho trial we would fool u,nooc.fortablo to plaoo reliance on tho alleged stctonont. ' Tho . day is scvod howovor 'by tho f' cot thc.t, in our assossoont of tho ovido:noe, the1"e was enough zioltablo mctoriel justifying tho oppollent 1 s conviotiqn oven witl:out recourse to . Wo aro sr.tiefiod thr.t tho r,ppcal is devoid pf ncrit. Ho accordingly cl.istiiss it. L • M. Ut.xtJ.tm JUSTICB OF .e.PPJUu, .t.. ~~ D ....... OKLB JUSTICE OF .LPrE:.L L. N. ?:Ji'.r:'.LILl · JU3TICE OF 1.Fr;ltL I coi-tify that this is a true copy of tho originnl P?,~· (s. S. KL.IJ.WE) · . Dfil"ll'I1Y R:"'J}ISTIUJ1 . , .