19911217 TZCA Mwanza

AT ff;WAfJ:t.A o 1 (COHANs BA.MAD.ilANI, J .Au MNZAVAS, J .A.. And MAPIGAJrn; k:t J •A,} ... CRIMD'J.AL APPEAL NO• 97 OF 1991 IJYAif[J".dE JONES •.•• ., ,. • • ., 4 • -.. • • • ., • , • • • • • • 0 • ., • o • • • • • ,. • • • • • • • • • • • • A.PPELLA.UT A.ND T.JE B:EP1JBLIC • ♦ ,_ O O & 6 ,., • • t> -c, o • o,. 0 • O o ~ o • O. -0 • • ,6 0 Cid 6 • 6 _. ' • . ♦ • • • "6_0 (, .. RESPOi.~ErfT (A.ppeal from t.b.e conviction of the IIig1 Court of - Tanza11ia at Wn.:woma)(B.P • Moshi, J ~) dated the 31st day of May 1991 - in Crimina,l Sessions. Case Eo. 3 o1 1989 J1,'J)GEFeJT Of' 'IDE coun.T MNZA..VAS, J .A.: ;j I On 31st May 1991 -ii'.1e ilig;.1. Court, (Moshi, J .. ), sitting .in Musoma convicted the appellant, Z.:fyaJ.mre Jones, of the o:i:::?ence of murder and sentenced _l1.im to· dea·cll... DiGsa·cisfied with tlle fi;:1ciing of the lower court the appellant has come to this court,. It was not in cli:::pute faat one, Mrimi s/o Ma.nwa, on 10th September 196§ (at Macb.ochwe 11illa.ce wi.-~h:i.11 fue clistrict of SerengeH, Mara region) was shot with a gun and succumbed to his. injuries. Inves-~igations oulminated fo the arrest and. arraignment of t:he appellant. ri1ic}.1 led t·o his conviction for t:ie murder of foe deceased Mrimi s/1) Marwa. Tie case -for -i;lle procecution was based on -t11e evfrlence o'.? deceased' s two '':Widows,. PWl and PW2. PWl, Wankuu :Mrimi, related fo the trial court how. their };nma~ead. was ·· invaded by bandits w;_1.o set ?ire to their huts and \tow her husband, the deceasedi was shot in the :i:1.anks as he was retm--.,_1.ing i10me. According to· her evi,~.ence two of fae bai.1t:~i fa, M2,kuri John,, and Nyab.ure Jones, tlle appellant, we:re armed wit}1 guns and t~ui_::~ it was Malcuri Jo!lll wh.o shot the deceased. It was her evid.e:i.1ce that _she :I'.ecog:,1:Lsed four of tl1e 1Jandits from where she was taking cover be:1ind a· sisal tr~e about _50 metres away• killing of their lujsbc.1.nc::.. Like PWl she a1so told the court that she recognised, the appell,mt and one Mal:uri J olm as. among the :i.ntraders. According to her testimony she was hiding be:.1ind a tree about 20 metres a.way when he saw the_ appellant and Makuri John wJ.10 were armed wi fa guns., ·The other ba;.1di ts were, according to her evite;.1.ce armed with spears, 1)0-WS and arrows and sticks'.~ Th.e appel1211.t advanced defei"lce of alibi-. Re fold the trial oou:rt that he WltS at Mugumu on the day the deceased was k..i.lled aJc Machochwe village,. -~~i-~acrutinising the evi.d.ence the 1 earned judge a,--i.d the two asse~wors who sat with him were unanimous that tb.e two widows, (PWl and p-W2), could not have mistaken appellant I s identity• Tl1e trial jv_d.ge then proceeded and eonvicted th.e appellant o:~ murder under the doctrine of common intention. Mr.. Mago"rigo, -learned defence counsel, ii1i ti ally raised a· prelimil1a.ry argument that as the record dicl no~ show that a.;1. interpreter was used alfiough there was in :;:'act an interpreter; n.do.ed fo ·t;;.1e allegBtion by 'cb.e appellant. ·ti, 'Ma that -the interpreter exa.gge:ra·'Ged in his interpretation ·b• his detriment, t\d;a court Silould, for ends of jus-'.;ice_, order a retrial~ We reserved our :ru.J.L1.g on the preliminm-y argiu:nent which we now gives The record shows that on 24th August 1990 t,'J.e case was adjourned to , enable the pros.ecut5,-on -to find a,.--i interpreter ~ho was to interpret Kur.ra ' ' language into Kiswac.ili. and vice versa.as. the two witnesses were not conversant i.11. Kiswa.1.ili.- Apparently hearing did i.1ot resume till 24-tb. May 1991; and 1-1hen it did the learned'~hl: judge. did no-(; record tlle name o::-: fae person who interpreteo, Swaiili into Kur-,1a ond vice versa. T:.1.e appellant fold his counsel -Ghat there was in fact an interpreter rut th2t he exaggera·i;ed in_ his interpretation t-. his (appellant's) detrimcn1;, .1ie are not told. ;-~t-':/exaggerations were made by -t;he interpreter to tlle detrirr.Mt of the appellant. l;\ But if there were { any exaggerations by -'~b.c i,.--i.terpreter one would }.w:ve e:z:pected the appellant to complain to the cour'li th.rough his counsel_; -C:1in ·i;b.e appellant did not do.• doubt have I!:nde it one o2 the grounds m~ twppeal:~ Appa.rently the appellant :raised -'~1is oornpla:int 0::1:r a few b.ours before ·:;:1(; a.::-,peal came before us for hearh1g.: T3l::ing all <:,.er:e ?::-·o-l;o:rs into account we are Rati::::fied :in our own minds t:.1at fais bela·;;ed complaint is a...'1 aftert~ough:i~ and a oiumsy attempt by tile appellant to save himsel~ from drowning. Indeed to.ere was ·i{:i.e irreg-,;.1.lari ty of. not r0cord..i;1g the name of tlle interpreter and we db not know w:'.J.et1:1er he was .swor-.a/a::::'.::'irrned as he sb.ould have beenj but on the evillenoo we are far fl:'Om 'l.>eing peri:m.ad.ed by the learned defence counsel's argiJ.men-'i; ·:;hat t.b.e irregulari-'cy- prejudiced appellant• s de:Zence i11 -!:he lower c-01.U"t. ,. Com:ing to the evidence in su.pport of ti.'l.e charge of muxder tho crux of tb.e rna·~ter was w;teth.er or not the two witnesses properly identHied .,.;ha appellmt as one o:E: ·i;I1e 11iJ.1d.i .,~s who terrorised -;;:1e homestead ancl t:illed the deceased,. Mr" Magongo 1 lcarnerl defence counsel, argi'.ed before us bat in ·assessing the credibility o::: t::~e two. Hitnesses,• (PWl _and Pff2), ·i;;1e learned judge lailed to direct himself to t!:;_s ::?v..ot that tlle wi tnesscs oonlc: have embellished their eviclenoe fo rrc"ke su.re: -~l12·~ what they believed. ·to be t;.1e killer Oj~ tb.eix husbei1d was pU1iif.:ll1ed. 1'7i u respect to t.le ler;srned de:;':cnce counsel we agTee tl1at PWl and P'W2 were. ame11able to exaggeration wh.e:,1 testi:fJing to the events faat happened· ju.st before ·i;;ie killing o)': their hv.s1ia.nd but on the rp.edion of ide;,1tHic:,rtion a witness ei~.;~1er iddptifies a particnlar person as t;:i.e culprit or _does not identi:r:'y ].1:i.m • . There is :ao su.oh -'ch:L..g c:i.s exaggerati.i,.g or embellis:1ing one's evidence. on a question of id..enti:c'ioation,. In the prenent cnDe l)ot11 1-1i tnes;:;es t0ld tho court t::.iat t:he:i appclLmt was their fellow villager and a neighbour and t:.lcJ,t they ln1ew ]1irn be:::o:re the ii1oidc11-i;. T'.a.ey descri~,ed :1::.s attire and said ~1e was clad· :in a green trouser and black co2t., - - --~ ----- ....... ..... _. ....... ~ -. This being the evidence it is no woi1der -'Gh2,t the learned, juclge and. the -h78 assessors foWld. the Jlil-10 witnesses to be credible and rejected appe::IL.,,ntt s defence If the. t1ffl witnel:lBes Yere bent to tell lies against tlle appelL:11t so as to cause l-1im his undoing there was nothing to prevent them from telling the court fo.at it was the .appellant w:10 shot and. killed the d~oeased• They did not scy S8• They mentioned V,akuri Job.u as the one who shot:and killed the deceased alfu~ugh the appell.:mt was also armed 1-n. th a gun., Inde-e.d when cross---e};;amined by ·foe trial judge the appellant replieds "There is no standing grudge betw<.'len myself and the two . witnesses 11 • Looking at fae fotali ty of the eviclcmce we are satified t:1at the question of mistaken iclrntific2tio11 o:C the appellant aG 0~1e o::> tile ban.di ts who terrorised ·deceased I s homestea0. on ·C:10 f2.teful clcy was properly e.-r.:o.luded. As the evidence amply s}1oiveC:. t~1e appellai."'lt and t~12 oti1cr ba;:1C::.i ts who managed . . to escape J and for all 1·1e know, are still at large, :1ad formed a commor-{;;· intention . to prosecute an unlaw:f:'ul purpose namely arson; and it was during the prosecutii,n of the arson th.at -che clecoased got killed. The appel12..nt, like Mc.--tlQl.ri John, who actually shot the deceased and ·foe others who are still on the run, is, under the d-tot:rine ef con:mon intention, guil-'i;y of -foe murder ol Jd1e deceased, Mrimi s/('J Ma.rwa. 1 v1e agree w:rth I'lir. Izy-imo, learned principal st8te attorney, i;;.1a-l; -faere was amply evidence entitling the learned judge to find the appellant gu.il ty of murder ~s charged. The se,~tenoe of death is mandator~. In the event we dismiss the appeal in its entirety. DATED at MWMTZA -this 17th day of Decembex-,-1991. A. S • L o .RA.h.A.D.:UiJi!I JUSTICE OP !PF.:;J,.L N. Se IviNZAVAS J1.TSTI CE Oii' .APP:S;J;.L D. P. l~lAPIGi',.NO !g 1 JUSTICJI: 0::::-1 APPEAL . --· I cert:i.fy that this is a true oopy of the orig~.- .-------~ ·--