marwa wangiti mwita and another vs the republic 2000 tzca 4 12 june 2000

IN m COURT OF APPEAL OF TANZANIA AT MV.AHM. vCOKAK 'i rlAKiiii-J, J oA«j KIoAriGA, j j «A », And. LUGAji'.lNGTR/l 5 J »A ■■) CRIMINAL APPEAL NO. 6 OF 1995 Bi;T¥ii;JN 1) MARWA ViiU'-iGlTI i'VsVlTA ij , . ,T T « V rrr> _ , „ ^ U » o » « . o x l r i : j i i L - L A r > i JL’o 2. BONlFA'JJii MAkxKjU huiuIDI | AND T f i i ’j i C A L 'U B L I - / O C O C. O O V O O C Q O l u '- l o l 'G i i D .^ b i. (Appeal from the c o n victio n o f the Eigh Court o f Tanzania at Kusoraa) (Mas anc h e, J .) dated the 5th day o f December, 199^ in Crimin a l Sessions pas_e _ N o 181 o f .299J, JUDGMENT OF THj . COURT LUGAK1NGIRA, J . A . ; The a p p ella n ts, Karwa V.angiti Mwita and Boniface Masiku Mgendi, were con victed o f murder at a t r i a l holden by the High Court at Musorna. They were then f i r s t and fourth accused r e s p e c tiv e ly , the second and th ird accused were a c q u itte d . The inform ation had a lle g e d that on 18.9.88, at Kewanja v illa g e in Tarm e d i s t r i c t , the four murdered one hasha Jeremiah, The murder took place a t the home o f PW1 who was c e le b ra tin g a m arriage, and the deceased, a resid en t o f G eita , was an in v ite d guest a t the c e le b r a tio n s . Around 7.30 p.m. on the s a id day, a gang o f armed robbers descended upon the premises and made away with various a r t ic le s a ft e r f i r i n g a sh ot. The shot found the deceased who died from severe in te rn a l b le e d in g . At the t r i a l , PW1 and his broth er PV/2, claimed to have id e n t if ie d the appel]_ants among the gang and s a id they were the ones who had guns. PW1 s a id that he knew the f i r s t a p p ellan t by face and name and that the .../ 2 second a p p ella n t, whose name he did not know, used to move about with the f i r s t a p p e lla n t. Fvv2 said that he did not know the a p p e lla n ts ' names but he id e n t ifie d them by th e ir faces as they used to frequent his kiosk. There was a lamp in the house, a humble o u t f it o f a bedroom and a s i t t i n g room o n ly . The two witnesses sa id that they were in the bedroom and th e ir guests in the s i t t i n g room when dogs barked o u tsid e. PV/2 went out to in qu ire only to come face to face with a gang o f four or more, one o f whom ordered him back in to the house at gunpoint. This was s a id to have been the second a p p e lla n t, Another gunman stood in the doorway and ordered everyone to l i e down. he was s a id to have been the f i r s t a p p ella n t. Then fo llo w ed the plunder and the gunshot. I t seems the in cid en t was rep orted to the p o lic e with prom ptitude. The prosecution evidence regardin g the a p p e lla n ts ’ a r r e s t was e ith e r inc ons is te n t, con trad ictory or n on -existen t and the t r i a l judge con ven ien tly avoided going in to d e t a ils . \ve propose to do the same, se e in g , as we do, that i t w i l l occasion no harm, and mention only some r e la te d a sp ects. F ir s t , the f i r s t appellant attempted to run away when he saw the p o lic e ; ^ecend, going by PV.!5 , the second a ^ e i l a u t was : ot at hc:„. en a.e p o lic e a r r iv e d th e r e • Third, when the f i r s t a p p e lla n t's house was searched, a p iece o f khanga (p er PVrl) or ta b le clo th s (p er PV.5) were found. N eith er o f th is was tendered in evid en ce. The search at the second a p p e lla n t’ s house "unearthed a camera (xJxh. i - j ) . In th e ir defences the f i r s t appellan t s ta te d that he was at home throughout on the m aterial day, and c a lle d his fa th e r to support him, while the second appellant s ta te d that he l e f t fo r Shinyanga on 1^.9.$5 and returned on 1 . 1 0 , 08, and produced documents to that e f f e c t . lie found his two wives a rrested and was in turn a rreste d when he wentto the p o lic e s ta tio n to inquire in to t h is . The t r i a l judge con victed the f i r s t appellan t on the evidence o f id e n t ific a t io n as w e ll as the act o f attem pting to run away; he con victed the second a p p ellan t on the ••• / evidence o f id e n t ific a t io n only. He r e je c te d the a lib is fo r non-compliance w ith s e c tio n 19^ (^ ) o f the Crim inal Procedure A ct, 1985* B efore us, h r . G a la ti Mwantembe appeared fo r the ap p ellan ts and attacked the evidence o f id e n t ific a t io n . He observed in the main that the appellants were never at arty time named by PVvl or PVJ2. He submitted a ls o that the a p p e lla n ts ' a lib is were im properly r e je c te d in view o f the p rovision s o f subsection ( 6 ) o f sectio n 19^» K r. Mwantembe a ls o le v e lle d c r itic is m on the evidence o f possession o f a r t ic le s considered re le v a n t to the case but we think that was unnecessary wince the t r i a l judge did not base his d ecision on that evid en ce. Mr. Kabonde fo r the Republic r e s is te d the appeal on a l l the grounds. Vj'e think the most important question in th is appeal is whether the a p p ellan ts were id e n t ifie d a t the scene o f crim e. A ft e r anxious con sid era tion o f the evidence, we think there is m erit in i-ir. Kwantembe *s c r i t i c ism. I t was not in dispute that n eith er appellan t was ment ioned by iVH or PVv2 b efore th e ir a r r e s t, even though PW1 knew the f i r s t ap p ella n t w e ll. The a p p e lla n ts ’ a rre s t apparently carco in the wake o f some suspicious a r t ic le s being found a t t h e ir homes; in fa c t we note that a t one stage as many as 22 persons were charged w ith the murder b e fo re the D is t r ic t Court. The evidence o i Fw5 A ssista n t In sp ector Heuben a ls c leaves no doubt that the search was a gen eral ra th e r than a s p e c ific operation and the h in t on suspicious homes came from v illa g e r s ra th er than PW1, d espite the la t t e r * s presence. PV/5 r e la te d the operation thus. On 26.9.00, I remember I was in Tarime. I was to ld to £o to b eren go ti where i t was s a id that some a r t ic le s s to le n in the course o f murder were seen . . . 1 went to o e re n g e ti and reported to the O.C .L>. the la t e Ktabirw a. . . ,/k On 29.9*88, we went with him to Gesarya v illa g e . L a ter we a r r iv e d in the v ill a g e , we got the Chairman. Then we were tipped about the houses that had the s to le n a r t ic le s , V»e were tipped by the v illa g e r s . . . . At the house o f Kasiku Kgendi we got a camera and a t the house o f Marwa V/angiti we got ta b le cloth es ( s i c ) . A l l th is time we were with the complainant • The witness r e ite r a te d fiv e times in cross-exam ination th at the ex ercise ■‘was an operation,-- so much so that he could not r e c a ll the number o f houses searched and many p o lic e o f f ic e r s were in v o lv e d . We think the fa ilu r e o f PW1 in p a rtic u la r to name at le a s t the f i r s t ap p ella n t b efore or during; the operation was not co n sisten t with id e n t ific a t io n o f any o f the b a n d its. I t is indeed doubtful to what exten t he allow ed h im self to observe the invaders con siderin g that when PW2 was driven back in to the bedroom, l'W1 had. disappeared: ho had apparently dived f l a t onto the s i t t i n g room f l o o r . The a b i l i t y o f a witness to name a suspect at the e a r lie s t opportunity is an a ll-im p o rta n t assurance o f h is r e l i a b i l i t y , in the same way as unexplained delay cr complete fa ilu r e to do so should put a prudent court to in q u iry . The fa c to rs s e t out in \vazdri ^jnani v,jk'. / 198c/ T .L .S . 250, to which the learned judge referred ., are not intended to be exhaustive in determ ining cre d ib le id e n t ific a t io n . V;e are unable, on our p a rt, to hold that id e n t ific a t io n was in th is case proved beyond reasonable doubt in the absence o f any rep o rt again st the a p p e lla n ts . The remaining matters may be disposed o f b r i e f l y . There was the aspect o f the f i r s t a p p e lla n t's running away when he saw the p o lic e . The t r i a l judge f i r s t observed, and c o r r e c tly so, that not a l l f l i g h t was n e c e s s a rily 3. m an ifestation o f g u ilt y but some people run away from policemen ju st to avoid both er. lie h eld, however, that i t was such a m an ifestation in th is case as the- f i r s t appellan t was the only person to run away. It is apparent that th is observation was in c o rre c t e ith e r as regards the occasion o f the f i r s t a p p e lla n t's a rre s t or in the context o f the operation g e n e ra lly . The impression one gets is th at o f f l i g h t a l l around in the course o f the op era tion , J ia rlie r in his judgment the learned judge h im self observed; *-Apparently when these sc-archc-s were made by the p o lic e , the accused had fle d . Their homes, that is to say, were searched in th e ir a b s e n c e . A n d as regards the f i r s t a p p e lla n t’ s a r r e s t, PW'5 sa id ; -We then went to Marwa W an giti. The men ran away. They had fle d . We then arrested, t h e ir w ives.'' This is indeed r e fle c t e d in the fa c t that o f the th irte e n suspects in the i n i t i a l inform ation f i l e d b efo re the High Court, s ix were women. And to underscore the p ercep tion o f the p o lic e as a b o th e r, these innocent women were kept in- custody fo r more than s ix years b efo re they were discharged, u n tried, without so much as a word o f apology. I t is th erefo re c le a r to us that the conduct o f the f i r s t ap p ella n t was n eith er p e c u lia r nor, apparently, was i t without ju s t if ic a t io n . F in a lly , we agree with Mr. Mwantembe that i t was improper fo r the t r i a l judge to t e l l the assessors to r e je c t the a l i b i s , and fo r h im self subsequently to r e je c t them, merely fo r non-compliance with subsection (k) o f s e c tio n 19^ o f the C rim inal Procedure A c t, The absence o f n o tice req u ired by the p ro visio n does not mandate or authorise the o u trig h t r e je c t io n o f an a l i b i but in assistan ce with subsection ( 6 ) , but, the omission may a f f e c t the weight to be placed on i t . V.e cannot be c e rta in that had the learned judge approached the su bject on that understanding he would, fo r in stan ce, have n e c e s s a rily found unimpressive the second a p p e lla n t!s medical c e r t i f i c a t e and r e c e ip ts evidencing his presence at ohinyanga a t the m a teria l tim e, A ft e r a l l , he was only req u ired to ra is e a reasonable doubt. B esides, the act o f taking h im self to the o O* p o lic e s ta tio n was not, to our minds, con sisten t with g u i l t . For these reasons, we think the g u ilt o f the ap p ellan ts was not proved beyond reasonable doubt, he a llow the ap p ea l, quash the con viction s and sentence o f death and d irec th e ir relea se from custody. DATLiD a t BAS hh /^iLAAM th is 12th. day o f June, 2000. L .M. MAiUME JU,;.TIC.S OF AFE'iSAL f .H. KloAIIGA JUSTUS OF AFPhAL JU^TICJJ of a p p e a l I c e r t i f y that th is is a. true copy o f the o r ig in a l. (. A 0G0 J-1V A x - i ld A ) DBIPUTY KiiGIoTRAR