20000612 TZCA Mwanza

Qi - .)CH· -·· _.........,..._. ....... ....v,..,.- ....... . ...-4- IN TIG COURT OF APPEAL OF TANZANIA _AT M'vlANZA (~M: ~~§_, J.Ao.,_~ISANGA, J.A., ~'! LUGAKINGIRA,_J~~) CRIMINAL APPEAL NO. 50 OF 1993 NT.AKO AIVAN NTIBASUBILE NZIRUHUSA KINUUNA @ MPITABAVUNA ALEX BINIGIRA BETW£'EN i . . • .. oe .APPELLANTS I l: 1: f PIUS LAZARO@ FITIYEKANDI Al.'ll"D THE REFiJBLIC •• ·••• ~ ................ o • .; • • • • -. :HE.SPONDENT (Appeal from the conviction of the High Court of Tanzania at Tabnra) (Kyjeri,_J:B!:1-E~j_ed 2l1,_ri§dict~222) dated the 27th day of February, 1993 in Criminal Sessions Case No. 114 of 1990 --i---·•·-·- -------.. .--.. ------------,..,.._......,.----.......,. - J U D G E ME N T ·I'his is an appeal against the conviction of murder and the sentence of death passed on the appellants by the High Court (Kajeri PHM in Extended -Jurisdiction) sitting at Tabora, The facts of the case may be stated very briefly as follows:- The deceased and two others went to the house of P~J.1, Sikujua Juma, where there was pombe for sale. The four appellants also went there. While the drinking session was in progress, a quarrel started because the deceased had brancied the first appellant and his group as-bandits .. The quarrel was put down, however, and in the course of time t~e party dispersed, the first appellant and his cempanions going away first at- .. about 7o30 p.m. followed by the deceased and his party. ··On1:,y a short distance away and at about 8 porn. gun shots were heard and on the following day the dead b0dy of the deceased was seen lying on the ground with bullet wounds. . .. /2 i 2 In the meantime, following the gun shots in the night of the incident, the third and fourth appellants were allegedly seen in the area each armed with a guno They had wanted to shoot PW2 Majaliwa Ali but after some argument the first appellant who turned up juot in time intervened and saved the day stating that PW2 was not involved 1.n the incident at the pombe shop .. The first and ·third appellants conceded being at the pombe shop together and being involved in the quarrel but denied shooting the deceased or having an encounter with P-112. The second and fourth appellants also each conceded being at the pombe shop but denied being in the company of or knowing the oth~r appellants. On this they are supported by the first and third appellants who stated that they came to know the second and fourth appellants only while in remand prison. ~rhe trial Principal Resident Magistrate accepted the prosecution evidence and, rejecting the defences of the appellants . convicted and sentenced the appellants as earlier stated .. In this appeal the appellants were represented by Mr. Kahangwa, advocate, while Mro Mlipano, State Attorney, was for·the respondent Republic. At the commencement of the hearing the Court was informed that the third appellant, Alex Binigira, had died in prison whereupon it was ordered that the appeal in respect of him, abates but continues in relation to the remaining appellants. Mro Kahangwa filed four grounds of appeal raising in the main the issues of identification of the appellants as the culprits and inadequate consideration of the appellants' defences of alibi. Mr. Mlipano declined to s~port the convictions. He stated that in addition to the grounds·raised by Mr. Kaha:ngwa, there were defects in the preliminary inquiry such as that the sum total of all the defects, ..• /3 ...__ - - - - -.........:. ••11911-'"""---· "'.-J 3 - irregularities and non-directions was sufficient to-render the trial a nullity. The approach has always been that ·a first appeal is by way of re-hearingo The first appellate court has the duty to re~appraise the ev.idence, form its own impression ~fit and come to its own conclusion. The appellantst convictions were based mainly on the evidence of PW1 and PW2. Pd1 saw the. appellants who had gone to his house for pombe drinking and witness~d a quarrel between thedeceased on the one hand and the first appellant and.his group on the other. Pv12 says he identified the· third and fourth appellants who were armed with guns so soon.after the drinking party had dispersed and gun shots were heard. in the area~. However, Pw2 says that he did not see the second appellant that night. Thus the only evidence tending to implicate the second appellant is that of H·/1 which was confirmed by the second appellant himself that he was at the house of PW1 drinking pombe that day. That evidence, however, is not sufficient from which to conclude that the second_ appellant was in the company of the armed bandits who were seen in the area so soon after the gun shots were heard. In his d~fence the second appellant conceded being at the house of PW1 drinking pombe but went on to say that he went away at about 5.30 porn. returning to the house of his u.ncle,·one Michael Ntabiho, where he was staying in a different village, and that for the rest of that day he never left his uncle's villageo We think that having regard to the evidence as a whole that.explanation could possibly be true and that it wns wrongly rejected by the trial court. We are therefore satisfied that the· conviction of the second appellant NziruhusR Kinuuna was ill founded and cannot be sustained; we accordingly set it aside. • •• /4 5 shoot PW2; the appellant appeared at the scene presently end stopped the shooting of Pt/2.. PW2 knew the appellant very well before this incident. Indeed according to the appellant himself Pw2 was a cousin of his (the appellant's) wife and they knew each other very well. According to PW2 although during the encounter it was a dark night, there was some light as there were no clouds in the sky. We think that PW2 properly identified the appellant that night. He had lmown the appellant very well before that night; indeed he was related to his (appella.~t•s) wife. During the encounter and discussions that night which lasted for about five minutes the appellant wa;s mentione_d by name, shortly after which he appear~d and duly gave direction on the matter in respect of which his name had been mentioned ioee he directed against the shooting of PW2 and :assigned his rea;son thereto. We are satisfied that in these circumstan.ces there was no possibility of a mistaken identity. From the encounter and. the discussions between PW2 and the bandits that night, it is clear that the bandits, including the first appellant, had set out to attack the deceased and his group who had been present during the quarrel at the pombe party at the house _of PW1. Since gun shots were heard only shortly afte:c the drinking party had dispersed, and since following the gun shots the bandits were seen executing their intended attack on the deQeased'-a.nd his group who had been present during the quar:rel, and since the body of the deceased was found in the acea with bullet wounds, then the only reasonable inference to be drawn i's that the bandits must have shot the deceased to death. The first appellant shared a common 'intention with the rest of the bandits. This is clearly demonstrated by the evidence that his decision was awaited on whether or·not to shot PW2 and he directed against such shooting because PW2 was not one of the persons tar~etted for the- attack. • •• /6 ;. 6 In his defence the appellant had stated that he drank pombe at the house of Pi'/1 until 6.30 p.m. when he went away to another place where he drank more pombe for quite some time and then he left for home. The tritl Principal Resident Magistrate rejocted that . defence and, like himt we think th~t it could not cast any reasonable doubt as to the appellantis guilt. In the result we allow the appeals of Nziruhusa Kinuuna and Pius Lazaro. ·Their convictidns are quashed and sentences set aside and they are to be released immediately from prion unless they are otherwise lawfuily· heldo The appeal of N_tak.o s/o id van is dismissed in its entirety. DATED at DAR ES SALAM•i this 12th day of Ju.ne 1 · 2000. L. Mc Niu{AME .01.ST.!9~ _.9X•• ~~~~ R.H. KLSANGA __ ·JU.STICE, OF APPEAL ---.......-.,..,, .......,_ JU.STICE OF APPEAL I certify that this is a true copy of the original. ,.,,,,· j ···f ,iM ( A.G.· 1WARIJA ) DEPUTY REGIST~