19900411 TZCA Dar es Salaam13

;,: lC~ dated the 9th day of March, 1989 in Criminal Sessions Case No. ~ of 1988 I MFALILA, J .A.: l JUDGMENT OF THE COURT The· appella)l.t Hassan Seif is .app aling against his conviction ~oi' ~c;ler and the sentence of deat~ pL;Ged on him by Prin~ipal . . I . Resident Magistrate _Mrema exercising ~tended Jurisdiction. At his trial, the appellant denJd the charge that 01~ 3rd September, 1986, he murdered.his nepheJ Seif Omari. There'was no witness ~ho claimed at the trial that 11.e saw· the appellan'.; :actually stabbing the deceL?.oed._- Both witnesses w.ho testified _on th~ ·incident, namely Zuhura Kila.nza (P.W.3), the woman 11.ho was selling pqmbe at the . . . I material time and place, .a11d Sheba Sei:f (P.W.4), the deceased 1 s aunt and· appellant's sister, only saw .the dlceased after being stabbed.:· Zuhura 'told the trial court · that on thj day in question, she was . selling pornbe clandestinely in the HkoJdoa Valley at lfa.gu.1~ vi~lago in Kilosa District. In attendance wcrJ th~ appellant and h.is two ~ ••·••••/?-- 11t• .•·. ~ , , . ' . :••.. ..:.,. .. ·... ~·:- ~,. :' :.',,.,...., _; ....... - ~· '..•·,;._~.a.;/.. ~£j ., '.• .. j . ·-J/:":\:·:-.::t \:: ·.:, . • rI \1 - 2 -- nephews, Faraji Dl'ld Sikuzani Oma.ri. '.Ibo I deceased .joined then later. . , t . ::- l'i . _; . .At cine point. there was a. quarrel betweon tJfo appellant and tho R•• .•; ••' . I . deceased' s two brother~ but this was ·soon s\ettled and all of thcra wore seem to leave the place. But _presently tho appellant returned . \1 '.itt: and soon thereafter.,. she hoard tho deceased( teli his aunt Shoba; "Shangazi mimi nimeuLiia. . lhmochocwa kisu nl I Mp~mba 11 • Slle added. j Freely ;ondorod in 1 that ''.11fpemba" is tho appellant•~· nick 11clr.le. 1 , English it means, "Aunt, I have been injured.· I have been stabbed wi.th a knife QY l;lpemba". . I She then saw the a~pellant ru11ning aw~.· . Sb.a Sheba Seif did not have a vo.ry different story to tell. l . . said tha·t sho arrived at mcondoa Valley in M~u village after visiting her sick brother the doceased's fat1er. She joined in tho \. ! -ti.landestino ,. . drinking of local liquor -which hda. boen prohibi"l;ed due to . I ! . I . 1 the outbreak .of . cholera in the area. Before lshe I sottled down to dl;~ng, sho was called upon to intervene in\ , a quarrel J:otwoon her I • ,. brother tho appellant and_ her nephews tho two 1_brothers Fa.raji and 1I I I, Sikuza.ni Omari. This she did and tho two brothers wore soon to I . leave the place •. Presently the deceuscd ai'riied and reported to ~- ,· her that.the appellant was sharpening his knif\° seying that he ·- ~ :)j :wanted to injure someone •. Sheba roplicid that fhoro was nobody to \ I injure because c:w.l those with whom tho appoll~t had been quarrel~ 1 had already left. But soon a:f~or saying this, 1and as sl10 was talking to one Selom?,ni H,yiwa, tho deceased suddcal1J·· liwent to hel' a.nd lme{t ., '•••, telling her: "Sh.a.ngazi "nir.lckwisha kufa, Hassan omenipiga ldsu.11 - I meaning, "a.un,~, I am already dead, Hassan h~e s~abbed me with a . ·k:11ifo"• . According . to hor, she wo.s positive ~a~ th0 doc~Mod did j . \, not use the niqlc narae "Mpcmba". Thon she sc.w t~e docoased running -away• .,... J/3.\ . ' \1 I 3 The Principal Resident Ma.gi'str.,:~e in cgroomcnt with the throe assessors who sat with him, accepted tho evidence of these two wi. t1.1essos t~t -~I1ey correctly hca.:m t!10 deco.::.sed ;nm1tion tb.c appellant as !iis assc>.ilcU1t and tbat this declar1'.tion was t:ruo. Tho ·i:;rial oourt founcl tho chc>..rgo of r:rurdor _prov.ad. In this al)peul, the 'ltmznnia Legal Corporation filcc: two grounds of appeal but ct -~110 hea.l'ing 1 Mrs, Rweb2.!;gira abcU1d.oncd tho second ground a.ml chooo to argue only the firs·!; grO\md, n2JJ1ely that the trial court erred in law a.1d in fa.ct in no·~ giving tho 1:1ppcllant tho bcnr.:ifit of doubt. Sh-3 subr:1itted witll r:mch force n.nd to 11er credit with ouch ingenuity thn. t this Court sl:ould discrodi t the doco.asecl I s dying decla.ro.tion 16ich fonned the Llc.in pl2.11k on which the a.ppel1Mt 1 ~ conviction w,w based.. She argued. tll.::.t the two wi tncsses to this declc'.1'c.tion n.:>L1cly P.W .3 n.ncl P.W .4 g,wc two diffcrc:1t versions of it. According to P.w.3, tho .deceased is n.ll0gcd to have tole tis aunt P.W.4: 11 Shn..7.g;ci,zi oimi ni:;ietmia. HiL1ocho::iwa ld.su na Upcnba11 • But according to P.w.4, tho decen.sed told her: "Shnngazi ni;:iokwisha ku.fa 1 !L"'.soan ru:1.011ipig['. Kisu". Mrs. Rwcbangira co17-cocled that the tl-ro n.:-,nos . Ha.ssM antl Npcmbc. refer to the sar;ie peroon, nc1Dcly the appelltU1t, but she on.id thc"'.t the deceased could not ll.1ve nentioned both natioo at the sn.c,10 tine £>..nd that therefore the alleged dcclarr.tioi-1 was nn.d.o up or at lee,ot -~his discrepancy put "cb.c crcc.ibility of these witnesses in doubt. She 8.d.clod tl1at p.w~3•s creclibility is suspect in another~ . reopect, th2,t she wn.s r.,ore likely to lie end il1dced liecl on tho question of 0.XU..1l~o;.1eso bocc-,use she W<'.G selling liquor ill0gnlly and therefore dicl no·~ wioh to "te. ::ec;.1 in thc1t light., As to t!J.o allcgod confession· to P.W.5, Hrs. RwcbMgirn. s;:,.id th~t thio was sunpcct .I bccnuse P,W.5 clid. not put it clown in l1i0 police state:.1cnt. I.1 her view, thoro w2.s possibly a bigger con:flic-i; involving. o·chcr pooplo and that there could b0 sooc connoc•tion be'~-wecn the dcce;:,.i:;cc', Md the earlier con:i."'lict bc';;ween tb.c b,rothers nncl their uncle the 1?.ppella,1:1t. Thesa are strong a.rguncnts, but we <'..ro s2.tisf'iecl ;~bt when all tho cireuosk.ncc □ arc t<1.kcn together, t!1cy irresistc.bly point to tho guilt of t.'1c apl)cllroit. It is true ·l;J.mt the clccc::--sed coulc".. :ao,.; k>.ve tlcntioncd both tlic appellant's actual 1?.ml niclc 11c1.0cs, but this ca.n ee.sily be c:i:pl2.i.;1cd on tao ground tlle:t Zuhura -:ncy not b..:wc boon quoting verbatim wery word spokan by tho doceaoec;., she coul.cl !1..-i.vo been simply paro.ph.r.:i.sing what the deccnsed said and to whou he W1:'.S .refer.ring. Indeed it would no,c be 1..v;ual for a nephew ,.;o rcfor· to his uncle by his nick nawe, so most likely tho dece2,sed rofcrrccl to tho appellard; ns ile.ssc..n, but to ?ttl1ura sl:e found it easier to refer to hi..;1 by his nick name -which ;,1,.1,y 11.c-...ve boon in ::iore frequent use. Ms view that Zulrura raey jurrt have been par2.phrasing the dccc2.scd r<1.tb.or the.11 reporting voz-bgtiLl, is strcngtb.cnod. by tho f<1ct that the two wi tncsscs clif"Zcr in their versions 2.s to w..1.a;l; tho d.ecc~scc1. actually s'lid. But tllis dying dcclaro.tion is su:n:,ortcd bsJ throo otho:: f'2.0tors. -First, th• appcllc.nt was seen ru..·m:L-'lg c.wey fron tho eocmo which is unusual for soncone who is i1mocent to .run a.wey fror.i the scene who.re a close rolntivc has just been sariously u1ju.rca.. Like his sister Sheba, ho shoulcl have rCEainod to assis·l; !1is nephew. He s:1ou.1d not h..-...vo run awi:i.y like the Wacogo who coply <lid not wish to be w.iZod up in the af'fair., · Secondly, there is tl~o co1u'ossion to the Vill.'.':€0 Chairnan Uriaho Kiln.njn. P. W. 5., Tb.is :wi·i;ncrm so.id tl1..-...t c.f·l;or tho appclln.nt w,:,..s '1I'rootod l:,y the villagers CJ1d brought before hin, ho asked hira wba t l~o l1ad don~, tho v..ppcllan t tolLl hin that ho hw otabbcd Seif Oonri with a lmifo. T'.1is confoosion was not challengec: a.t the tricl., Tbirill.y, P.W.4 could not hive mentionocl illo nppcll2.l1t who is 5 olosoly relc.:tod to her 011 such a. gra.vo _.natter without any basis. · If' thorotora thoro h.."\Cl boon a wider oonf'lict involving outoitlcrs as Sll€iS"Ostod by Mrs. Rwoba.11gira, P.w.4 would have boon the first to In tho li€ht of this ovidcnoo, wo a.re satisfied that 'tho ' appellant's donin.J.s in !lis dofenoo, his allegation tha.t !10 b..:1.cl boon lmookcd unconscious by cno of his nephews and that ho .rro.1 away froo t!lo scone a.ftor .rocovori21g, as well as tl!e .:-..llogations againot his sister P.w.4 aro all figments of his ow.1 i!Jagination. Tb.ore had boon no previous quarrel bo-twco11 !iio and tho: dcooasod 1 his vicious attack was cooploJlioly unprovok:od 1 ,.;hose with tho at,.;o.ck indicates a..-i in.tc;.1 tion to ldll or .d; the lowest to cause griovous bodily ha.rra. Ile wa::: therefore properly conviotocl of ::JUI'der. and sentenced. ,lio death. Aoco l:'di11gl.y his appeal lai:u:s oori t a."ld wo dismiss it. DATED at D.t.R IS Si.LA.AM ·his 11th d..-iy of April, 1990, ···- ~ •• ... .., ·1 --~.' ,,: . ' ~.:i:, ;_:' >/·'.!:'! fy I. L- M. H.i"JaJ,lE ~. ' JUSTICE OF LPPE,l.L }' ~-· J... Rl.!1':Jil.'Jf.I JUSTICE OF !J'PEfl, L. 11, I11F/.LIU JUSTICE OF 1.PPEM.,. I oortif-.r ·~t · this is a true copy of ,.;ho original. ~t;f' ( J. In HSOFFE ) :.I mnoR DEPOT[ IillGI§TRJJ!. ' ' ·j ' ., I lu