19900305 TZCA Dodoma2

~-:~~~~~:,;, : ~ , . : : -~:.~-~-.:: -...;:~~ =lf.. r~~~ ·t ;, = ·:. · ,...~--:-; .►·~ . '"'1"~~.~lll!I_..,...IMlllll~'J. .llllio'' 1...:,1> II_"' 1..- :. -. -.· .. i .; '~ ' IN TH!] COURT OF 1..PP!"'Ji.L OF T1~'Zl~1\TI.li ... I AT DODOMA c:anIIN/J., 1..PPTI:t,I, NO. 184 OF 1989 R1TWEEN ~ 1 ., ZLIJ..S G:!1.E 2. GEMLD GUJ..E 3. rTILLIJJt Gf-TllE ~Oooooooonooo~onAPPELIJJT.I'S 4 .. _1J3DULL1..IT.l'Jit..N HJJ:rsr ~ TR~ BEPUBLICoooo~~ooor.ooo~aoooooo~oooBESPOND~NT (1.i.ppeal from the conviction of the High Court of Tanzania at Singida) (1:Iasanche, J.) date tho 4th day of December, 1989 in Criminal Sessions Cr.se Jfo. · 6 of 1988 JUD~'.ENT OF Till] COURT Iii'FALILA, J .A. The deceased Lcba Humwe was brutally killed at bis home vill~ Sanjaranda in IVIanyoni District, as he anc:1. other villagers were drinki~ at the house of one Nyerere a fellow villa.go:!;'. The incident took place between 5 and 7 p.,m. The four appellants, the first three of whom aro brothers, were arrested following this killing and were char~d with th? murder of the deceased. They were found guilty and sEmtenced to death. They all appealed aB'8,inst their convictions and the sentences of death passed on them .. At their trial in tho High Court, the appallant Elias J, o oo/2 - ··•, j r ' Gwae was the first accused, Gerald Gwae the socond accused,· William Gwac the third accused and Abdullahaman Hamisi the fourth accused~ In this judgment we shall keep these designations o Three wi tmss0s gave evidence for the prosecution at the trial. These wore the deceased 1 s mother Junina Or:lari (R-To1), the deceased's sister 1..nna Stephano (PWo2) and om w~o would appear to be the decoased•s uncle Bombo Abdallah ( PlrT o 3) o 1.s I1r. Aliawilre i-,ho appeared for all the appellants was quick to point out, there arc variatior...s in the evidence of these witmsses, but on the whole their evidence scened to agree on tho essentials a F:r.o:t:1 the evidence of tb.eso three wi tnosses, the following I . events preceded the killing of tho ueceasedo On tho day in question, 25th April, 1986 there was pombo at tho howe of om_ Nyo:rore in the village., PW 1 and her daughter HT o2 wore there as woll as the deceased. Cl PW 03 a.r:r.•iv-od 1n:tc-:r 1.:mt ::,.non[; the othe'.r v.i.J.laeo:rs we::ro the four appcllantso PW o 1 was in tho house drinldng when at one time she wanted to go out. J,.t the door, the _first accused held her by·the hand and couplaineci that her son the doceasec't c1id not want to give him a cigarretteo PWo1 replied tl1.at that was hardly her concorno She then 1-ient ,out of the house; whore she saw the second and third accused persons, the four!)2; accused had not c:,:rrivedo She later returned into the !1ouse. While in tho house she heard someone saying "Lcba (deceased) is being beaten.," She went out a1il saw tho deceased J'.'U.mling away apparently pursuocl oy tho first, second and third accused p0rso11So About two hundred matres away, the deceased stop]?:)d, she saw the third accused kick the doceasecl who fell down. When ho attempted to rise, th0 tb.irc1 ·accusocl hit him with a stick on tho face. The second accused joined in and started assaulting tho deceased. The throe accused tt.en started beating the deceased in turns. When she a ttemptocl to intervene to saw ~::io cleceasod, sho was badly assaulted, the first accused coD.mand.ing that she .should also be killed~ ~Jl'l'i;7,.,.,,.,"",.,.,.,... ,. """ . . -,, . ., . ,. . ,,. ., ., -·, . ,.,.'" ·.·•r-. ~ F- . 'I -~ .. ·1 C ·• '!-. 3 He hit her very hard on tho head, sho bled vecy profusely from the injury, he then pushed h0r towards where the c10ceasod was lying, so that according to her, she sees how he was dying. But she managed -to run a1ra.y to her home and entered tho deceased ts hut and hid herself• ]3ofo:re she ran away the fourth accused arriwd at the scene and joined in the beating, using a stick. She did not stay long in the house, 'she came out and. -wont back to the sco110. Sho them hoard tho first accused to 11 his younger brother tho JOcond accused to go anct -fetch him a knife, so that "they know that I kill." When the knife was brought and handcc1 to him by the second. accused, the first accu.;3ocl li torally slaughtered t~10 decoased 1 ·The doceasod 1 s sistor PWo2 hac1 also tried to intervene to save her brother_, but she was rudely beaten off and threatened with death. When PU o3 arrived at tho scone Gnc1 failed to stop the accused from further assaulting the deceased, he adnscct Pt-f o2 to loave as she would be killed her pre@'lancy not-withstandine. In his defence, the first accused ~dBittod that l:.e was a-. Nyorcre 1 s place drinking where ho met the deceased. The deceased aslred hi~ for a cigarretto, when ho told b.in that b.o had no cigarrette to give him, --ihe deceased held him by his shirt fron behind a.nd challe!JB-ed hira --to go -0~1t and fi~t. Tho first accused added that the deceased appeared drunk and lucldly his ooth~r appeared. He coi:1plained to her ·about tb.e deceased's behaviour, he wanted her to warn off her son, ho was holding hor hand as he did so. As tho cfocoascd was still holding-hi-n, he, deceased, took out a stick_hidclen behi¢ his shirt and hit hin on the hand with which he was holding his cothGr~ · Ho released her hand and decided to leave matters at that. ffoamvhile tho third accused brought ponbe and they started c:rinldng. As they wore drinldng, the docoasoc1 approached and demanded to bo ei ven sono.. Wl1on he was refused, the deceased started to assault hir.1., The first accused then got up and they . J '. .... 4 . g-.capplod, they foll down; tho do ceased hit hin on tho face with the stick he was carrJringo He started to bleed a11d fcarirtc; the mob which 1-m.s approaching, he ran away homeo Behind. hir.1 tho mob pounc0d on tho deceased ' . and he did not know wbat happened, until. the following day whoh ho heard that someone had died. He was arrested tho following day., Ho denied sending anyone to briJ.Ys a lmife and he said that ho did not know why the Qob attacked the deceased, perhaps he thoueht it could bo because of the decoasod 7 s reputation as a thief in tho villagee The second accused cl011i0d boj_ng at Nyere•rets place at the tine of tho· incident., ~o said that ho had bp(m at tho church choir until 5.,30 P•Do when he loft 2.ncl returnee'.. l:or:ie via his uncle IIussoin' s horac where he romainoc1 till aftGr sunset, pla;yi.ng with his cousino 1-:rb.on ho arrived hor:10, ho found his brother tho first accusQd with an injury on tho hoado Ho denied being s0nt for a k11ifo as il)cloec1 ho was not at Nyerere 1 s., Th0 third accused narrated his movoncnts on the day in question. He said that he had started drinla.ng at m_,,.sscint s where_ ho had met tho .fi_rst accused., They re1:iainod there c7.rinld:ng until 4.-00 p.,no when they left for Nyerere's., On arrival at Hyorore 1 s, ho saw a quarrel or an o:v:cbe.nge of words botuoon th0 doc0n.sed and tho first accused, it scei:lod to him they wer0 talldng about cigarrettes, ho did• not tako nuch notice, anc', in anJr ·cc,se the docoased • s mother' 2.ppoa1~od to be settling tho affair. Later the c7.eceasec1 earn to their gTOup ant picked. a quarrel u}1on llo was refused ponboo Ho ld.clmc: thoir Calalxi.sl: of poDbo spilling tho contonts11 Tho first accused GOt up and they started fiGhtinco Lt this stag~, being a non-violent raan, h'.'.l c7.ocid.od to ioe,vo ancl wont hone o · Tho ,f.2,urth accusecl do11ied being any1r}1ore near tho scene of t.!10 incident at l'Jyero:r;-c~s tl1at dayo On that day he said, lJ.e mver loft homo after 6., ~5 Pono f'ollow:;.ng a ·tout of clrinldng at fo1..,rr- difforont places .. 5 starti:ns wiih Hussoin'c place at 1.00 p.n., then at Juma Kitant,ure 1 s which he left at 3.45 p.r.1. ancl procoec.1od to Huna 1 s from where h0 uont to the last place at Mwata Ki tili 6ani wb.o:ro ho rcoaincd until 5 p.w. J:Ie arrived home at 5.30 p~n. l ..t 6 p.,ri1. ho left home with Williaa Jur:'8. to so and collect the cattle froo the grazinc area, arriving ho2e at 6.15 p,.m. He 0.xplainecl that people who said he was at Nyerere's oust -- haw assuaed so after socinc the third accusod with wl1oo he habitually drank,; He came to know about the e.enth of the_ deceased on the follouing day, 24/4/1986, anc1 he was arrested sevennonths iater on 22/11/86, he denied that he had run away from tho village ancl. that in fact after this incident ho had drunk with PW 02 twice or thrice within the villagB. Tho trial Judge in agreooont uith tha assessors who sat with him, accepted tho ovidenco of PWo 1, PI-T o2 and RT o3 as true anc1 ro jected tho appellants' vorsions. Ro held tha;i all the appella,nts wore at the seem and participated in the fatal assault on t~e deceased. Re could find no justification £or such assault, ho founc1 tho deceasod 1 s subsequent death amou...viting to murder.,. In this appeal, Nr. ll-limwilro challe11u<::"0d those fi:ndi1~'""B ancl -filed eight g.rounds of appeal, but we -\hi:rilc thoy can cpnvenicmUy bo sunmarised into two main grounds~ Firstly, r.:re J..licwilro attaclrod the Juc\'.;u 1 s acceptance of tho ovidonco of tho three prosocutio_n wi tnosses, sayil'\g that it was not safe to act on tho ovidonce of these wi~nesses in view of their close fanily relationship to tho d.eceasec1. Secondly, he saic, that having accepted that the decoasecl liacl a ncitorious reputation and therefore was a hated r:m.. n in the village, the trial Court should not have rejcct~d tho appellents' defence that the deceased raight have been killed by an anc-rJ nob. -· 6 Wo agree that tho appGllants I conviction for the r.m:rdor of the dooeasad was based wholly on the evidence of wi tncsses 1rho_ are not only closely related by blooc': to th0 dcrnce,sed, but who 'had serious grud@s against three of the appellants in view of rrl1.at their uncle Hussein is alleged to haw dono to tho deceased. It was not disputed that e,t an earlier incidont, Bussoin,spear?d . .. ~he d~coas0d who survived aftor receivins medical troatnorit at Kilina.tinde Hospi ta.l; :nut there are several factors which haw influance,d us to accept tho trial juclgu I s evaluation of the evidence of these witnesses. Firstly, the version of these witnesses is not total_ly dissimilar to those given by two of the appellants, namely tho fir~ anc', third accused persons, They both ac'cmi ttod bei~ at the scene, t!1cy both adni ttec1 a quarrel o_r fight between the · • 11 , • deceased and the first ancused and even such □inute details ,G;t tho first accused holding· the hand of the do ceased ts mother anc'c the deceased knocking it away as well as an al tereatiort ovor a cigarrette, arc in bC?t.h versions. We are therefore of tho view that if these wi tncsses wro . truthful in respect of these natters, we soc no reason why they should have oade up the· rost of the story rega.rc1ing th<:l nature and extant of and participation in the deceasedts assault~ 1-Thore the version of these wi tnosses c1iffor from the appellants 1 , it nust bo explained on the basis of the appellants' expectccl wish to save thGnseivos·. Secondly if these witnesses had gTUd~~s against the t!iree brothers, they had none against the fourth accused. We think it totally u11reasonabl0 that these witnesses could have dccicoc to franc the fourth accused in such a grave ratter r.ie:roly because he was a friend of tb.cir emniest- We also agree that the record clearly incHcatas t21at the deceased was not exactly a darlirlG in the villa£,-e, he had a.11 tho bad naoes of notoriety attributed to hm; thief, barrli t, ra:pis-\ etc, and this wa.s Jmovn ewn to the Polioe authorities.. Tho oVidenoe of Pt-r .4 in this rega:rd is rolevant. 7 We t:.:iinlc this cxtrono hatred anc1 contor.1pt in which the deceased was held in the vilJage, explains why nobody at t:.:io por:1bc shop wi t!1 t!:o exception of his close blood relatives went to.his aid as he was being fatally battered., Some in tho crowd: ni@ht even havo whisporocl to thonselvos 11 eood. riddanqc ~ 11 Tho crowc1 was therefore passi vo but they c1id not actively take part in ridding tl-::.Emsel'V8S of tho deceased froJJ their □ ic1st. There is no reason to reject the ovic1onco of these witnesses on the point,, Lastly, we wish to consider tho cause of tl:0 c1eceasoc1 ~ s c1ea.tho The postmorten examinD,tion report on the decoe.sed, whicl1 was adni ttod wi tlwut objection at tho trial, shows that the cause of death was l:aQnorrhagic shock and vontilatory failure o On the basis of this, lfro .llinwilro subr.1i ttec1 that as those could only be caused by the slaughtor, it would app0a1· tho, t ~:10 i,1.•ial J"udgc re jectGc1 this finding because of his rei:mrk in the judgr:ient thatg "I :::;;,-c3:i_f, like the G(Jntlor.1on assossors, have bocmo satisfied thc. t all tbc four accused j_o_:i_i::!_tly beat _s:,_~ge deceased to doatl1 and that they finally_ sla§htored b.i.r.1., II This remark rnro Alir.1wik0 argued tends to incUcate t~at as f2.. r as tho trial Judge is concornod, tho c1occasod died of t~.1e wounds inflicted by the beatings anc1 that ho uas dead by· tho tine te was slau5htoroc1c This he said has several i1:iplicc1,tionso first t~:a.t e,S tho evidence points to tho fact· tl1at the fi_}.'Et 2.nc1. seco:r.d accusecl die~. not tc.ko part in the beating, they cc:.nnot be responsible for t~:o deceasoc.'s cloatl10 Soconc.ly, tha~ on tho aut!1ori ty of t:10 clocision of tl:is Court in zt. .v3RI Kt.JITTict. . & 2 Others VSo Ronul)lic Cri□ inal Appeal Noo 49 of 1979 9 death rosultinc frofil a series of boatings by r.1a11y people cannot provide evidence of oalice aforot:.:iought and ttoroforo that oven those of tho ap:;_JOllants who took part in tho assault of tho c'.eceas0cl arc·. at tl:e :i.ichest guilty of Dc111Slauglltor only o • 8 On our part we c1o not road the abow passage as indicr:ting tl:at tho trial Judge had re joctec1 the caus0 of c1.eath founc1 by the doctor. In our view ho had merol;r beon so affected by tho brutal and prolo?\.,".:'0d nature of the assault that his r.iind was wholly fixocl on the boatings tenporarily for,s,3tting the doctor's report 1-rhicb.·was aclnitt0c1 without opposition.. Indoccl ho could not have re jectocl the cfoctor 1 s report wi tb.out assi 6-ning any reasons, But own if c1oath was founr.1. to bo c1ue to tho injurj_os caused by tho bcatil'.l(s, none of tho appellants would b0 free fron rcsponsi bili ty. The evic1onc0 is loud and clonr that they all including tho second accuseC: took part in assaul tine tho deceased in turns as ho lay helpless on tl-:o GTouncl. PW~ 1 saicl she saw tho second accused take I his 'turn in boati).'16 tho c10cOc.\S0d althouch Ft'T.,2 said the second accused uas standing byj but this could b0 explained on tl10 basis that she nicht haw missed to notic0 tho seconc1 accused in tho confusion. 1.nc1 since unlike in :the Ka~ik:a Case tho 002..tin[;'S in this case wore accor.1panioc1 by words wb.ich ~ndicatG an intention to lcill, and in the absence of evidence that any of them dissociated hir.1solf _froo this express intention, all who participatoc1.. in tho prolol'li.:,"'0c1 beati!l{s tn,1.st be talmn to haw . I shared that intention td lcill. But we are satisfied that tho cause of cleath is that recorded by the doctor, anc1 that on the evidence as recorded and accepted by the trial Court, all tho appellants inclu.cling the second accusocl. who wont to fetch tho slaughter knife a:ro gu..i.l ty of nurc1or., For those reasons, tho appeals have no □ori t ancl we disniss then., 0. 0 0 ,./9 . ,. ,. 9' J .JD·ODOI"" a""" . ,~... 19900 J' L.N~ E.:"JC:..ME JUSTIC!J OF f:27£1-.L JU3TIC:J OF AI:?:iJAL ,,_ i.