19931025 TZCA Dodoma2

(CORAM, Alill T::J:i RZPU-.%IC. • • • • ·----cxppeal from t;.1e conviction ·and sentence- of t}i.e lli.gh. Court of 'l,.,·,1zania. a.t Singida.) Q1NJ1.~.• ~ dated the 17ti:l. da~r ?f 1-IL>.rch, 1993 in ~ n a l des~i_0.}2~_.9.~~•...§.,3-~f......l;ljl MNZAVAS, J .A.: The two appellants, 1'1agendo Paul and Sha."b.1.?li Benjamin• were • 1 !;,,1 jointly charged with and convicted of murder c/s ·; 96 of the Penal ; .\4 ;1 Ced,e by the 3igh Court, (N'.a.uia., J. :, , and sentence i to des.th. · .. h .. ,., ..,:_fJ Dissa.ti1:Jfied with the finding and the sentence imr,)sed they ha.ve ;~_ii. ., appealed to this Court. ~, I The ...!Q.:!.lowing facts werEu_i.~r~ted to the tri1.l C.urt: • The ap~ellants were villagers a.t Salli.le Villa~, in Ma.tzy-eni Ustriot and wera milit'iauien 1n the ar$a• On 1/7/90 ihti» village eeoreta.ry, Pvr.2, ordered them to arrest tileir fellow •ril~e:i:, tne, :Baka.ri s/e Leona.rd, who was alleged to have raped a. woman in the villa.ge. They obediently oem~lled and duly arrested t~e said • il•~~~~ , ! l3aka.ri s/e Leonard and ~rought him to t:i.e village seoretacy (W.2), . ~ who le•ked him in the village loclc,..up. According to the evidence 'l .T.. : '_1 ~ l ef the village secretary. a.fter :Gal.a.ri. uas locked up he told the appellants and one, Charles Hjelwa., who uas also a. militiani.an (and ·., .' wa.s ene ~f the accused. but met his death in remand prison) to send Baka.ri to the 1.-:a.ra. ,:;ecreta.ry en the folloving day - 2/7/90. The village secretary then left for his ht,u.ae leaving t:.W appellants and Cba.:rl..es guarding the deoea.aed• • ••••• /2 .. 2 Later while he was in his ht:'u.se the £irst a.,pella.nt, ~ and one, R'lbert Noha, oame and asked him· to go to the look-up and see what had happened. He accompanied them to the lock-up and. on arrival asked the first appellant \Tho was in poseessi,n of the key to unlock the look-up. He did so and on entering the oell he · found l3a.k:a.ri hanging by the neck from .-1, piece of cloth tied t~ a ,, ~; !., beam of the ceiling, He was already d.oad. Apparently tbs cloth used 1n hanging the deceased was his um jacket. ,·;-,- ;1. .' i~; ?. ' '' ,.1 ~ tf-\"t/' '; . ' r; ., "I. ,Vi';. j The matter was reported to the pclice and wheels of investigation culminated in the arre3t end arraignment ~f the. tw• t' hi\ J. - ' t ~. · appellants and •~•;.10, Charles Mjelwa, who, as aJ.ready mentioned ·c above died-wliile-Toremand, In their defeno~ befove. the I!i.gh.Oourt bath appellant• denied killing the deceased and argued. tlla.t the deoea.sed. must haw ; oommitted suicid& ~Y hanging himself, :Before us Hr. Mbezi, learned defence Counse:., s111:mitted that "the learned t:=ial judge erred in disbelieving that the deceased had e.otually hanged hil:lself"• When tl1e ~urt posec1. the .questitn ) . as to who could have perforated deceased eyes if tte deoea.sed had <' ~· /· '.l. . t... actually hanged himself. Mr. Mbezi argued that a.ft or the deceased ' ~·t, j'· .. ;.1.· '.t,-s •;.I•~. . had hanged himself the dead body fell on the ground and that the .t J-., -~--.•. . perf~rati~n of ooth eyes may have been caused by sha.:,-p objects t ~f- ·fr ill,... I ,, I~ ••• on the ground• It was further argued that relatives vf the wi,man ' 'l- f• Jt''• . t·•.-~ -t·: ·. r. . V t. ,. ~}· ~· ~:.,, ·r~,: ~ _. 1 ~ the deceased ,,,a,2 alleged t-., have ral)ed may have been so angered. .. ,-j i ~ f, .••·11 as to resort +, ·: perf::-rating deceased' s eyes after he had banged .,' ~ •"i J ' \ I -. t .,., . himself. 4 J, --r. ? f ~;. ., :f ;{'-,. In the second ground of appeaJ. t:1e learned defence 0:4\lllaal : '.'1 ·. :J .~- ~ suaaitwd that the trial judge Wa.lB w.t'OnG in ht• finding that it t I,,'. ~-f wart the appal) ante who 1dlled thi d.ooea.sed. e.s, 1t was a1·gUtd, it /~~ . : 1' was not clear from the evidence which one of th& a;>pellants hel.a' Ir ....., . ,. the key h· the lock••UP~ ,;""' fl - It was the lea.:med Counsel's aul:miasion that any of the ~t~ ...:.· ..... ' militiamen "'11<: zua,rded the deoea.sed could have committed the .... ·- . , - t'"t ·-~- offence but t:1at it was not clear whi,, between them, committed ;""" 't· ,¾; .~....:. ••••• /3 . t!,... t•.''. ~-·.. ',...~_. . • • ,z• .~~I., '\,l ~; '; ; _,:- • _,t., ,.• .,.,1 :··.···, .:y.i!'f1· ~:~ ' ..,. J..:,. I ,11' • 3 the o.t:tenoe, It Wl'S ar~ued that th.Li 0eing the position tho C&urt eho\ll.d allow the-appeal and acquit t.,e_a.::iprlllMh. In rebuttal Mr. Mwambe, le~rned .Jtate Attorney, supported .,:j . the conviot'ion and ar~ued tha.t the pro,,eou·~ion relied dn the avidtMe ...:~~ 1,.:.:,-'-j,J ef the dootor, P1.'I, 1 1 as to t:1e cc.use o:t ,deceased I a death. It was . . , ~- .' ::,.J!1 su1:mi tted that ,the contents of· the post-mortem :report as to the eause of death was not disputed by the defence. In support of bis :~' :~,·•... '- a.:rgument we were referred to page si:: of tl1e proceedings, '.• , j~... ~j- ,,~y.~ As for the argument that the ar,;;>ell?.nts were wrongly. . /1 'convicted of murder because ti1ere was no evidence as to who e,mtng ,.-'11 thelll held the key to the lock-up the learned State Atto:mey subnitted that the appellants were convicted of □urder on circumstantial evidence which was that from 3.30 p•m• to 4 p.m. or thereabout, when the deceased met his death he, was locked 1n the villa:glil_ ~o_c~-::UJU¥1d guarded by t~..~-~pp_ellants and tl?-eir eeceased. co-aocused, Chs.rles1 That t'.1ere was evici.once that they were Q.\l&todiane of the k1y to the 1f>cl:-up~ ThA.t 1·1: wa.l!I no-. 4i~tocl that at the time t,he doo,a.aed Wtl.tl ,vU.t :f.n lt1ol~up hi ,9 tYH Witt no:bnal. And last but not lea.st that the deceased w.,.s alone in the . lock-up • ' f,,, ~ On the argument by the defence that :relatives of the woman ,, ; ·•, alleged to have been raped by the deceased may have p(,rf&rat-1 ·/·c.-i.J ,.' l ...,~ __. ' ' de•eaeed' a eyes, Mr, Mwambe countered that this could not have been possible and referred t:1e Cow.'1; to tl1e defence of the 1st ' . ' ,.:., appellant in the nigh Court on page 17 of the proceedings in f; which he said inter alia: F-- - - - ar lmew the woman who alleged that ·t:;: .. ..... : ' she wa.s raped. I saw her relatives a.t the w\,l scene. I also saw relatives of the deceased, Those people were eaying that we who had • :i arrested the deceased had killed him 11 • t· Thfo- being-the ,evidence of the -!Irsi appellant th'.e-argument. -- 01 the learned defenoo Counsel tha.11 relatiVH of the women t~ 4tot'4o4 was alleged to have ft1,lt4· may-have p1rtora:ted A9CltHeAte eyes in.anger and thereby causing his death had no leg to stand tn, '. i! t I I,,·... 'i'•'< ~'L,. !. • •••• /4 • i ~.,- }/"! ,', ,/ The contents ~f the post-mort9lll report - exhibit P.1 regarding /, I / I the oa.use of death 11:1ici1 were not a~ s:.mted b:r the defence in 11tbe m~ra.ndum of matters not in dispuh :: were t:.at cause of deceased' s death was due to "peripheral circula·: ory failure ca.used by blee,ding a.nd severe .Pain after perforation of the eyes by a sharp wea.po1;1"• Elaborating on the post-moriem :. eport the doctor, (PW.1), eaJ,4 in his evi-d:onoe inter .elJ..<11 11 - - In my opinion there Hl,S no evidence that the deceased lu .d ,1.ied from hanging - - - what I found arou".ld deoea.sed 1 s neck was a piece cf his s:~rt. That piece ·:f cloth was .just placed around the neck to fake hanging. There was no . .·.. . ,r· ,, ~t bruise around the neck, IJ: the deceased had hanged himself, there ,ould have been a. mark a.round his neck. - - - The lungs were nonnal. There was no congestion of the lungs to indi.,ate death by hanging 11 • Taking into account the evidence of the vi~lag& seoreta.ey, (PW.2), that he had ordered the appellants to gu.a.r.d the deceased WM had been locked in the cell; his evidence that he had left the keys to the lock-up to the appellants anc":. that they gua::'Cled tha deceased from the_time__he__.was put in lock-up....up to the time he met his , I death; and the doctor's evidence that the cause eof lea.th wa.s d.ue to-~:r:foration of deoea.sed 1 e i,yd11 Whioh ltd. to ptrirher&l oi:r:oul.atory failure a.a a. result r-£ neuroisgia ahoulc We are f'a.r .t.~"111 being persuaded by the lea.med defence Counsel's argument taat s~m~ne other than t:~e a;_:ipellants may have perforated decea.sea. 1 s eyes and thereby caused his deatho We agree with ~tr. Mbezi' a submiesion that anything is I l possible but on the facts of this case the argument that the . ' appellant I s both eyes may have been perforated by sharp '.nstruments ~m the floor after the body had fallen to the ground is, to sa;y the lea.st farfutched and untenable. As it was held by 1'1rd Denning in i.:ILLEIB vs Mill'I.3':'Kt OF PENSION~, (1947) 2 All E.R 372; "The law would fail to protect the community if it a.dmi tted fanci.fu1. :.r' ssibilities to deflect the course of ••••• /5 • . I 5 I 3ustice• If the evidence is so strong against a man as to leave I enl.y a r.emot~ possibility in his favo·,)= which can be cliam.iased / with the sentence aof course it is possible but not in the lea.at p:.."ltbablea, the case is proved beyond rt·asonable doubta. In the present case the oircur,wt~1tial evidence irresista.bly pointed to the, appellants as the peoplE ,1ho perforated deceased eyes. In doing so-they clearly. intended-, at "f:1-e· very lea.st, to cause n1m . grievous ham. Their def'enoe that the deoee.secl, had ha.nged. lu,nlee11' was a. olwnsy attempt ·t:o -extrioe.te t:1elllse;i.ve,e from their orLIUittal. aots. We are satisfied in our own minds that on the evidence the lea.med trial judge. wa.s right in convicting the appellants •t tho effence of murder as charged. We agree with the leamed State Attorney that. the appeal ha.a no merit and we a.ocordingly order tha.t it be dismissed in its entirety. -r.-- llA'fED at lX)j)()!1A this 25th day of October, 1993. AJ11.A. 01-t~ :[{!.~TICE OF APJ:.~ H, ;-; , MlvZAVAJ JU ·,;l'IOl!l OF AP.PEA! .:. L,!1. I'lF.ALIL.A . JU3TICE OF APP~ I eerti!y that this is a. true tJOpy of the original. j ·J - .• ) , .... -:1..;'o-'. ' ( P.R.K. RUGAll1'01CAMU ) DEPUTY ::IlimS'TR.AR ...