anthony chambanege vs the republic 1995 tzca 38 12 june 1995

I IN THE COURT OP APPEAL OP .TANZANIA;--, At MBEYA - ' ' ■ ( CORAM: RAKADHANI. J .A .. MPA-LILA. J .A .. And LtlBUVA. J .A .) ' - , i CRIMINAL APPEAL NO. 30 OP 1994 B&TWEEN ANTHON CHAMBANEGE* . . 4 . . . . . - APPELLANT Aito ■ TEE REPUBLICi . ...RESPONDENT (Appeal from the con viction and sentence o f the High Cou^lj'of Tanzania at Mbeya) (Mwipop'oV J . ) dated the 2 6 th day o f October, 1993 in Criminal Sessions Case No. 125 o f lft91 JUDGEMENT OP THE COURT * MFALILA. J .A .; The appellant Anthon Chambanege was convicted o f the murder'-crf?the deceased Adam Lan^si Funcameza s p le ly on the dying d ecla ra tio n o f the said deceased. There was no other evidence lin k in g the appellant to the k i l l i n g . The,, deceased was shot at his farm, there was nobody in the v i c i n i t y hence the deceased was h is own only w itness. Acoording to his statement, he was during the afternoon in question at his cotton farm when he saw the appellant squ atting and aiming the* gun at him. Before he knew what was happening, he was shot twice In- the stomach and shQiil^Ler, The appellant vanished from the scene le a vin g him behind w ith h is in ju r ie s . He however managed t o drag him.seI f towards the v illa g e while c a llin g f o r h elp. He was c a llin g f o r h is neighbour Gibson Kamwala (PW#lJ* PW.l, said tha,t when it*: ,*v" • he heard his pame being c a lle d , Ijgy.rushed out and when he eve n tu a lly approached the man who was o a llin g h i% ha recognised Jtixrp to be the deceased. He savi tha$ the dedeased had been shot,* He asked the deceased who had shot him* ( the deceased r e p lie d th a t he would name h is assailan t i*i ' the presence o f his fa th e r in law* Howevjer, PW.l and Otijpr t v illa ^ e r a helped to carry the deceased t o th© hope o f hig ■J ' ? - ' 'i'' •' , fa th e r in law Modestus B ilia wjiere a Medical A ssistan t gave him f i r s t aid before he was taken to LIbuyuni H ospital ^hejre he died the fo llo w in g day. Tha cause o f de^th was c e r t i f ie d —— ..... t o be hc.emorrhagic shock. According to PW .l, the deceased t o ld h is fa th e r in law Modestus .B ilia that the appellant ; i s the person who had shot him w ith a muzzle lo a d er. .The n ext occasion the deceased named the appellan t as the^opa who shot him was when the Ward Secretary Charles Panzo (PW*4) . *• oajight up ‘jst^th the group o f v illa g e r s as they j/yere taking him to Mbuyuni H ospital. The Ward S ecretary asked the deceased ' - ■'r rmni as to whom hadshot him. The deceased named the appellant;*'' The Ward Secretary promptly ordered the a rrest o f the •I •appellant who was in the crowd and before he .could say anything meaningful in answer to the deceased’ s accusations. At the t r i a l , the appellant denied a l l the a lle g a tio n s again st him. He denied shooting the deceased and gave a d e ta ile d account o f h is movement a that day up to the -time o f h is a rre s t. He said that upon hearing the accusations l e v e lle d at him by the deceased, ha sim ply exclaimed in wonder and shock. The learned t r i a l judge was -however not impressed by the a p p e lla n t's d en ia ls.. He found t h a t ’ the deceased’ s dying d ec la ra tio n was nothing, b u t'tru e and i f coiWol)pf6ati’^'M wag neces'sary, he found such corroboration in ,fche* cqpduct o f the appellan t. F i r s t , .that; he behaved abnormally whan in stead o f rushing t o the scene as expected o f hija, hp kept , - •' -I- ; on making unnecessary in q u irie s as to what had /happened. < - ** • j - Secondly, that he f a ile d td deny on the spot the accusation , ' r* ■ £ by the deceased that i t was he who had shot him* But t « * r learned judge was quite c le a r in . his own mind that the deceased’ s dying d ecla ra tio n was tru e . As.--the shoatlng' ‘ ... was d e lib e ra te , he found the appellant g u ilt y o f murder as charged and sentenced him to death* • i • 'r ' - . # - ..V . In th is appeal, Mr. Mwangole learned* advocate yho * • n‘ ■< , appeared fo r the ap p ella n t, f i l e d two grounds, ba-frwe\thialc the. f i r s t ground i s the one which c a rr ie s w eight.. In $fcttS *■ +% > ’■*-' ground, Hr. Mv/an^ole complained that the learned ti&srX judge g r o s s ly erred in law and fa c ts in con victin g the appellant , , .< /> ■ an the strength o f a dying declara tion without any co rrob o ra tive evid ence. : • In hia address on beh alf o f the Republic, Mr- Mblse the learned Senior State Attorn®;/,, submitted tha-t i a th is case the dying d ecla ra tio n i s nothing but t r w •‘m&^that " . ;.* w - • •'** th e re fo re i t does not need to be corroborated. V Y»v;* “ The f i r s t question th e refo re to be determ^ne-d-is whether the tru th o f the deceased's dying d ecla ra tio n i s beyond •question. We agree with. t!r. Mbise th a t the conditions at the time o f the shooting were very conducive t*> easy • --v r -• - • - id e n t ific a t io n . The question however i s whether tiie^ deceased saw h is a ssa ila n t* Vile take i t that the deceased must have been busy w o o in g a t the tim e, so that the spectacle o f his , ~ — ,— '*' --------- *K __________________________________________________________________________________________________________________________________________________________________________________________________ !--------------- * •v ” having seen h is assaULant from the „time he squatted t o aid# > ■■ ♦ tt» the t i W o f p u llin g the t r ig g e r , seems to be -out o f the - 4 - ordin ary. Ordinary s u rv iv a l in s tin c ts would hot alJtpw such, a scen ario. This i s doubt number one. Secondly, PW. 1’ g evidence in d ica tes that the deceased refused, to name his a s s a ila n t in the absence o f h is fa th e r in law. In t h is we share U r. Mwangole's doubts as to 'the r e a l motives behind t h is a ttitu d e by the deceased. Why did he want to protect- the id e n t it y o f h is a ssa ila n t unless h is fa th e r .in law appeared? D idn 't he fe a r that h is fa th e r in law might not be a t home and -that th erefo re he might die from h is in ju r ie s before naming his assa ila n t? We have not beep, able to .appreciate., the sig n ific a n c e o f the presence o f the fa th e r ip, law. T h ird ly, in h is defence the appellant denied owni ng a gun or even knowing how to shoot. This evidence ■was not contradicted. PW.l on being s p e c ific a lly asked "b y tJhe Court on th is point sa id j - - " I did not know i f the accused had any gun. X a lso out o f the r e la t iv e s — whom-1 know tiae-re- was none who w ith in my knowledge had a gun” . And when the witness was re-examined by Miss M waiteleke , the learned State Attorney who was prosecuting, PW.X sa id : MThe accused has gcown up in the v illa g e , u n t il he got -married. I never p e rs o n a lly saw him owning a gun although. I cafc't 4 know i f he had any gun at his house” . Indeed according to the Ward Executive O ffic e r PW.4, no,,gun was found at the a p p ella n t’ s house when p o lic e searched it # . I f the appellant was the a ssa ila n t, where then %id he g e t * the gun whidh he used to shoot the deceased and hoy^ did^lie > . . m/5 - - 5 - dispose o f I t ? A l l these .questions need answers and u n t il the answers are supplied, the’ tru thfu ln ess o f the deceas6d's dying d ecla ra tio n remains yncQrtain. . Hence the jaeed f o r corroboration . r lp * * The n ext'q u estio n i s whether there w^s sjuoh corrdbprative evidence to support the dying d ec la ra tio n in m aterial^ p a rtic u la rs so as to guarantee i t s accuracy and tru th* The learn ed t r i a l judge found such corroboration in the conduct ... o f the appellant as in d ica ted above. But as Mr. Mbise r i g h t l y conceded, the conduct o f the appellant so much r e l i e d upon by the t r i a l judge, did not amount to corroborative •evidence. The a p p ella n t’ s in q u is itiv e n e s s as to what had happened^ was not unusual and his re a c tio n when named 1rhe a ss a ila n t, -was in our view consistent m th g u ilt as much as innocence. Thera i s nothing to d is c r e d it the a p p e lla n t’ s view that he was dumbfounded and surprised hence his exclamation "L a a l” . The learned judge^s fin d in g th a t the appellant f a ile d to deny the accusation a g a in s t ' him, overlooked the evidence by the prosecution witnesses that on being named, the appellant was promptly arrested and PW.4 to ld him that any explanation he might have* he would giv e i t before the .P o lic e . We are th erefo re s a t is fie d th at there was no corroborative evidence. In the circumstances r' V. , i t would not be safe t o uphold the a p p ella n t’ g co n viction . which was based s o le ly on the uncorroborated d y i n g c l a r a t i o n J- -f ' „ '*>- J- o f the deceased whose tru thfu ln ess cannot be r e lie d Upon#' . « • « 1 /6 For these reasons, we f e e l compelled to resolve these doubts in favour o f the a p p ellan t. A ccordingly we a llow \ the appeal, quash his co n viction f o r murder and set aside -i the sentence o f death. I f he i s not otherwise la w fu lly held, he should be released from custody fo rth w ith . DATED AT MBBYA THIS 12TH DAY OF JUDE, 1995, A.S.L. RAMADHAHI OP APPEAL ' V *' ..-‘ t j i p . MPAIII LA OF APPEAL LUBOVA JUSTICE OF APPEAL '' I c e r t i f y that th is i s a true copy o f the o r ig in # !^ v * •; ) DEPUTY REGISTRAR