19950612 TZCA Mbeya

J IN THC COURT OF AP2EAL OF Till'l"ZAlITA __ AT iVJBEYA .............. ( £QE/~1 g ~h1iAWt1~I,L_.r...A.•,;~JfF A1r ~-.:1:_._,t~. .s.. _A_n.2-_.JiU:§Uir.:1 j J •.A. ) CRil.\'.iir-:jL ..'.,F;?EiiL HO. 152 OF 1994 BET~iEEN KULONG!:7A CI-ITT/~CHANGF/A. • • • .APPELLANT THE REPUBLIC. • • . . • • • • • H.. 3?0I'IDENT ~ (Appeal fror11 tlle conviction 2.nd sentence of the Hich Court of Ta11z::·.ni2, 3t Mbeya) (t\Y:VJJ.?.~~) dated the 17th day of 1;uc;i.rnt, 1993 in .........---...... ..• Se ........................ Criminal ,,,._~., ~.,._ ssi Oi1S,............ -,_,_ Case _" No. __ ......._..._..,..,, .....-12 .... -·••_,of ......... "'""""'1992 .........-_...._ The appellantr ICulonc,::wa Chitach,:.:.ni;wa, was convicted of 23/ll/19SO. He now a:Jpe.:.ls against tl:.s:t co:nviction. The Higl1 Court of Tanzania at Ebe ys (rTHPOPO 9 J.) ·w,rn satisfiecl that on the ni~ht of 23/11/90 the deceased was sleepins v,ith his younc4er vvife PW.2. Tl:e11. PWo2 wu.s awokened by the dGcee.sed and w.::rn told to go J.i1d c,;.11 PW.,3 because he, the deceased, had been stabbed and -chat J.1e vv2.s dying.. P\✓ .2 woke up to find their door wide open. .As she wF.ss getting out, -t;;1e 3:-CJpellant was ~;etting into the house. PW .. 2 said th2.t :possibly the ap..,:1e llant was re-entering the house for a second i:£0 at the deceased. PW.2 wr.:.s emphatic that she did not see the appellc..mt stabbing the deceased • • . . . /2 t 2, another son of the de ceZ::sed. ~::i.1d a younser brother of the :c'.p:;;iellcint? was ·(,'ioken up by PW.2. i\s PW.3 was rushing to the de; ceased O s house 9 he found the cle ce C:-'. se d fallen outside it with two stab vJounds. . The decec:sed told JT'v'o3 that the ap1'.lellant was the assailant.· I The apJe llant denied stabbing his f2ther. He claimed I I that he had gone to see his younger wife (PW o 5) who had been taken 2.w2:.y by her f2.thcr in his absence., Be further said that he rett1.rned on the d2.y of the ner2.l of the de ceased, f1).. 25/11/90,~ Ori the way he vvas informed of the death and was ' also told that the n:ilitia were lookint; for him. becausia he was suspected to be the murdere·r. the appellant hid hintself until his sister (PW~4) went for him and assured biEJ. that he wc:\s going to be scfe. )it the hearin&; of tl'.J.s appe2l, t.i.1e. c.'.ri~)ellant was '· represeEted by nr. liilnnYibe, learned advoc:,:tc, while the respondent/Republic wz::s represented bZ;T I.Ir~ Hbise, learned Senior State Attorney. lrr. ],'.ikumbe said. that there were only two issues: ident.ifica-tion of the c·,;_):c:-iellant and alibi'. ·As f Or all. bi' ? 1:•~r .,l • 1':..Ll\. 7 rw•11be qa,1· ~ d t ~~1r.·'1..,- ~ I.,--'--' re -1-1y., \"'as v 110 di· s~"nte k' that tl1e 2.ppe llant had 3:one to Mpimbrve., He said that the point at issue is when the appellant returned. I.1r. l]kwnbe said th,.rt the appellant should be believed wlien he so.id that he hc-.d· returned on the day of the funeral. The lc~arned advocc,te pointed out that PW. 5 was a li2:r be cause what she stated in Court was different from her ::?clice stateruent (Exh. :02). 3 Aclli.li ttedly 9 in Cou:ct PW. 5 ,,,.,as· Gi::1p~/ci C that the appell;;.nt hE:d not gone to IIpimbwe to lo8k for her. On the other h::nd, Exho D2 contains tvvo statc"ne:nts. First 9 PW. 5 . said g 11 Baada ya kufiirn huku nyu.H1l.x:mi mume wangu huyo 3linifuata na 11i11abisi ilikuvw. mwe zi November 19]0 na ' baku.fika ha.pa riytL'Tibani • • • baacla J'a siku L1bili nilipata tc2.rifa kuwa amGsharudi 11 • PW.5 recorded an additional statement in which she said: ;1 ••• huyo mwne wa.ngu llc:lrn.wal'li kufika nyu.mbani _lcwctu k:wense r-.mc zi vvd Novemba ko.ma anavyodai. i':Iini nilip,:_:i.ta habari- tu kuw2. alikuwa anakuja kw2.ngu lakini h2t1.1l-cuwahi kuonana naye hadi nilipo)2.ta habari kuwa baba yake ·ameuawai•. In the first re coi""ded statement JT7. 5 ad.mi tted that the .h a:ppcllc:nt went for her but that they did ~10t meet and that the a~JJellant went awa-;y· after two days.' In the second, howevcr 9 PW. 5 said that she 1.r..arel~ got some information th.2.t the 8.lJj)G llant was goinc; to her but tl1s y never met. So 9 even in the second statement t.here was a possibility that the appell.:u1t went there but it is clefi.nite thE>.t they did not meet. Be it as it may, both statements do not give any dates. So 9 it is not possible to ~ct tho _2nswer to the I point in issue- here; when did the ap})G :t.le11t return. Since PW., 5 said. in Court ~omethinc; different from her previous recorded statc:r1ont, she is not vwrthy of belief. V 4 disc2.rdcd. That 11102.ns that the dcnie.l of ?W. 5 that a 1Jpel1:,,nt had not gone to Iiipimh-Ne is re) jcct8d. So, there now re:;11c:,;ins the word. :::if the ap:;_:ie 112.nt on the sli bi. Whether thot stands or fells depends. on the ·second issue of this ,-=o-,1_JiJ8al: idcntific;:,:i:;ion of the appellant. Itir. r.i.Lkumbe submittec that PW.2 c0n-cr2.dicted herself 2.nd so she should not be believed that she icl-::::ntified the .appellco;nt. ;.Ve have failed to see 2ny con-cradiction in the evidence of ?W.2o ShG vv2s awakened by the deceased who told her that he hsd been stabbed and thc.t she should go to c2.ll ?Ho3• 11.s P'.V,,2 w2s going .ov} tlu~ough the doorway, the ::;;.:;)lJC, ll~nt was getting in. PW. 2. v:c·:s c:".tcgori c that she did not see the a.ppe 112.nt carrying a k.r:ife. She opined th2,t the 2,j:::;>olls.nt was going to finish th-=:J ckco::>.s8d. now, there is no contradiction in tlmt. All that ?'7.2 said w,;.s that the c:.p::~2llant was at tho scene of the crime at the m2.teri&l time. Not only t.he,t, but that the appellant entered the room of the deceased ·at r,, t.i.r::1e when no alarm hc:1.d been raised. So, it Wc,s for .tho 3])}Cllant to say what it w,:.s tll;:;t he went to do inside the.t J.1ouse. On the contr,:.ry the 2,J?l)cllant flatly d.enicd being present. Th8 only issue is :vhether PW.2 .i.s credible. We agree with rnr. lfoise that conch tions for identification were perfect. There w,-1s a fire which heel bec::n lit by P\1o2 herself_ There was mo0nlight outside, ~;.nd the encoW1ter, it must be remembered? W2.S at tho d.oorr-iay • Lastly? tho . .. - .............. . • 5 r1Ir. 11.lfkumbe, however, had an :adcli tio11c::\l attack on .. PW. 2 o Ho said that ?'if. 3 in his poli.ce s-c;::.tcmont said. that ?Wo2 told him that they were attacked by 2n unknovm person. So, L7.r. Lku:mbe submitted.? l'W .. 2 had not id.c:ntified the I ap_"t")e llr.~1t. But at no r:1orncnt did t:V. 2 e:::.y thc1t she told PW. 3 211ything as to the assailE!nt'o 1-'it tho trial she was not examined on that oi thor., So, whatever ?"'.V.3 said does not impe2.ch tho credibility of PW.2.: i:Ir .. Mkumbe .:;;lso subnu.ttud tha.t I'':✓ .3 is a liar. In th9 police st.:.:.tement (Exh. D2)? ~[r. WllcLµnbc pointed out, PW.3 said tb.2,t he was told by PW. 2 t.h~t . tr~e a.ttacker we,s unknown, but in Cou.rt 9 during cross-ex:.u-uinaiion, ho disowned that ar..d ' I . said tl1s1t pi;:1. 2 mcntione d tho app ~·l;t.ant 2:s the assa.i la.nt. 1 That is so, but PW.3 wec~s consistent both in the police statement and his evidence in Court thrc:t the deceased told I ' him th::::.t .bis assailant Wern the ap1)e ll2,1.-:..t. So, it cannot be alleged that P'.V.3 was hiding somethi.:.1{~. It raight have been differe11t if PW .. 2 had s.:1id that, she h,::;;cl told I'W .. 3 the identity of the attacker while 1w detlies being so told. Butg as sa,id above, that is not the c:.sc. So, we have PN.2 wl10 idE.:ntified the :,ppellant and tho dying d.ecl..:u~ation given by PW .. 3,. : In L·.ct PW.,2 1 also, said th3.t the deceased told the peo:ple who h,7.cl g.::~thered in response to the alann that t 1:ie: api.)e 112,nt \'tas his ass13i lant. \)e again agrc e v·,i t l1 Er., l'~bi se t h2 t the rle ceased could not hsve fail0d to id.entify .hi,s om1 son. There was the light fror;.1 the fire anc: also, .in order to stab the deceased, the r::pr;:::;.llant had to f,;ct closer 'to the cJ.c..coa.sed. rrhero is !/,·-·" ~. 'i f' I j . "· 6 also evicJ.cnce of some struggle as tho :;;iostm0rtcrn report (Exh. ?2) shows that the palms of the dccc2sed h~d some cuts., Sor the decea,sul had a good 01D.:ic8 2-.t his assailant. Ap.,::rt from what we have said '.3. bovc, the conduct of the :;:.:=,Jollant bears witness. to his guilt. He did not ;'- respond to the e.larrn. v1Jlu.lG the_ person 2,tt2,ckcd was his own I, ·' fat.her. Then he did not (;o to bury- hine ?Wo3 ge.ve evidence that the a1.Jricll2,nt was seen thG d.?.y after the incident going eastwards towards the f::1.r;·:.1.s. He was then found. ;;;t the place of one Iviwansile end· tl1at the 2Pi_Je llant ran ;.J.i'!l.},y. On the third clay he was seen in the fore st 2nd the militia decided to send ?\fl.4? a sister of the ap:.)ollant, to pcrsu2iq.e him to corn.0 out of hiding :?.:1d. 1J2rti cipatc in tho fn.iJ.,;)rsl. ?W. 4 did that.. It v1as only then that the .~'...: ' appe ll::u1.t came out ancl v-fr.', s arrested. J',{r. r•.~:km!1be also used. the evidence of PW. 4 to show that the 21ppellant hu.d not been identi.ficd. 2Wo 4 said that when he went to pcrsuo,de the ap;,ell2.11t to coL1c out of his "J hiding, she had not hc~2rd. that he w2s the assailant .. rlro I.:w:1,u12be argued that if that we.s so, tJ.1cn the a:-Jpellant had not been identified be cause PW. 4. w:::.s 2. member of the family ;::.nd at that time she wJ.s stayinc~ with it o.nd that she s:10uld have knovm th0.t. Ne are clcc,ling with :>1/i. 4 at this jtmcture boc~use wo }1~vo no doubt tl18t P'vV.4 is an unab2.s.!.1Gd liar. '.Vhy would she have ass·,~.rod the appellant that the r;iilitia would not arrast hiit, vi:1en she. w,-;;s not aware th,,.t he was a we.ntcd 1;1an? Anyvray, her evidence does b. ./7 0 7 not cfotr:·.ct s.nythin 6 frm:.l v-1hat v1c huvc s:~id above • .7o, the:refore, disr11iss the :.o.ppo,:-,1 in its entirety • .A. S. L. R!if!ljDII.ANI D. Z. LUBU-v.!\ I c0rtify thc.t this is r:1 -t;rue copy of th9 ori 0 in.e.l.,