20000612 TZCA Dar es Salaam2

- .... _ lli T:E-D.;; COURT OF APP.il:AL OF TAN'.2.ANIA . CRIMINAL APPEAL NO. 6 OF 1995 B,l!;'l'WEEN 1 •. MAIMA \rif.J·JGITI IV:WI'l'A 2. BONIFAGI:; l'1JI.SII<.D MGJ!;NDI ; • • • • • APPELLANTS AND 'l'fff:; · :REPUBLI::: • • • • • 0 • • • • • • Ri?.SFONDZNT (Appeal from 'the conviction of the High Court of Tanzania at Nusoma) dated the 5th_ day of December 1 1994 in. C_£irllin9-]-_ .Sess i'?E_S= S3,1?~.. No o~,....J§..'.1.....9.f..2291 JUDGM.E.i'T'J.' -OF Till~ COURT G._,,_,.,-.,__,.__, __.,_..,.,_,~~,•~.&·.------=J The appellants 1 Marwa \'iangiti Mwita and Boniface Masiku Mgendi 1 were convicted of murder at a trial holden by the High Court at t'lusoma. 'l'hey were then first and fourth accused respectively 1 the second and third accused were acquitted. 'rhe information had alleged that on 1809.88, at Kewan.ja village in Tari.me district, the four murdered one Masha Jeremiaho The murder took place at· the home of Hi1 who was celebrating a marriage, a:.'ld the deceased, a resident ·of Geita, was an invited guest at the ·celebrations. Around 7.30 pom. on the said day 1 a gang of armed robbers descended upon the premises and made away with variou..s articles after firing a shot o The shot found the deceased who died from severe internal bleeding. At the trial,· PW'! and his brother l'W2 1 claimed to have identifiet .. the appellants among the gang and said they were the ones who had guns. PW1 said that he knew the first appellant by face and name and that the • • o/2 2 secc:>nd appe llan-t, -whose name he did not know, used t·o move about with the first appellanto F\iJ2 said that he p.id not know the appellants 1 names but he identified them by their faces as they used to frequent his kiosk~ There was a l~p in the house, a humbie outfit of a bed:oom and a sitting· room only. The two witnesses said that they ,.,,ere in the bedroom and their guests in the sitting rooin ·when dogs barked outside. PW2 went out to inquire only .to come face to face with a gang of four or more; -one of whom ordered him back into the house at gunpoint~ This was said ·co have been the second appellant. Another gunman stood in the doorway.and ordered everyone to lie down. i:l.e was said to have been the first appellant. Then follo\ved the pluncier and the gu11shot. It seems the incident was reported to the police with promptitude. '.l'he prosecution evi'dence regarc.J.ing the appellants 1 ·arrest was eithGr inconsistent, . contradictory or non-existent and the trial judge. conveniently ayoided going into details. We propose to do the same 1 seeing, as we do; that it will occasion no harm, and· mention only some related. aspectso First, the· first appellant attempted to ru..."'1. away when he saw the police; :=:econc., going by P\-15, the second ai--'pell.,mt ,·1as "~at· &t 1:u.,12 \hen the police arrived thei·e o Third, ,v1hen the f_irs~ appellant :s hou.s~· wa.,s .searched, a . . piece of l:rJ1anga (per Pl·i1) or table cloths (per. Pl:i5) were found. Neither of this was tendered in evidence. 'l'he search at the second appellant's hous_e unearthed a camera. (.8:x..."J.. P3). In their defences the first appellant stated that he was at home ·throughout on the material day, and.. called.his father to support hi.'!1 1 while the second appellant stated that he left for Shinyanga on 14.9088 and retu_rned on 1 o 10.88, a.'1d produced docu..11ents to that effect. He found his two wives arrested and was in turn arrested when· he went to _the police station to -inquire into tl:!is. The trial judge,·· , . ~~ convicted the first appellant on the evidence of identification as well as the act of a.ttempt':i:ng fo run away~ he convicted the sec on~ a.ppeliaht on the ... s. ...., - 3 .... evidence of identification only., He rejected the alibis for non-compliance with section 194 (4) of the Criminal Procedure Act, 1985. ' . Before us, Viro Galati M\.1antembe appeared for the appellants and attacked the evidence of identification. He observed in the main that the appellants were never at any time named_ by PW1 or PW2. He submitted also that the appellants I alibis \,ere irr1properly rejected in view of t.he provisions of subsection (6) of section 194. flir. Mwantembe also levelled ·criticism on the evidence of possession of articles considered relevant to the case but we think that was unnecessary wince the trial judge did not base his decision on that evidence. Mr. Kabonde for the Republic resisted the appeal on all the grounds. 1.:ie thfak the most important question fa this appeal is whether· the appellants were identified at the scene of crime. After anxious consideration of the evidence i we think there is merit in .Mr. l"lwantembe 1 s criticisrii., It was not jn dispute that neither appellant was mentioned by P\:}1 or PW2 before their arrest, even though HJ1 knew the first ar,pellant well 0 'l'he appellants I arrest apparently carr:8 in the wake of some suspicious· articles being found at their homes; in fact we note that at one stage as many as 22 person.s were charged with the murder before the Distrj_ct"Court. 'I'he evidence oi PW5 Assistant Inspector P.euben alsc leaves no doubt that the cearch was a general rather than . a specific op0ration a_rid tl10 hint on suspicious homes came from villagers rather than PW1, despite the latter 1 s presence o PW5 related the operation thus~ On 28o]o83, I remember I was in Ta.rime. I was told to go to .Serengeti where it was said that some articles stolen in the course of murder were Seen O.. I went to 8erengeti , and reported to the O.C .D. the late Mtabirwa. · ..... /4 4 On 29.9.82, we went with him to Gesarya villae;e. Later WE3 arrived in the village, vie got the Chai:rman. 'rhen we viere tipped about the houses that had the stolen articles. We· were tipped by the villagers. ~,. At the house of Masiku !1,gendi we got a camera a:-1d at the house of Harwa Wangiti we got table .clothes (sic)·. All this t:in1e we ,. were with the complainant o The witness reiterated five times in cross-examination that the exercise (;·was .an operation,:· so much e;;o that he could not recall the number of houses search~d and many police officers were i."l.volved. We think the failure of P\r/1 in p.:.,rticular to name at least the first appellant before or durine~ the operation was not consistent with identification of any of the banditso It is indeed doubtful .to what extent he allo\;red hirnself . to observe the invaders considering that when P\IJ2 we.s driven back into the bedroom I F\'!1 had disappeared: he ha.d apparently dived flat onto the sitting room floor. The ability of a witness. to name a suspect at the earliest opporttmity :i.G an all-important assurance of his reliability, in the same way as unex_pla.ined delay_ or coh1plete failure to· do. so should put a prudent court to i..,quiry. The factors set out in •::-Waziri P.mani .... --"""..... ·"-•,.,.... ~.--..,... .-::.:. v_.R. L198.Q/ T.L.R. 250, to whici1 the learned judge referred, are not• intemled to be eY..haustive in determinil1g credible identification •. vie are unable, on our pa.rt, to hold that identification was in this case proved beyond reasone.ble doubt in the absence of any report against the app,:llants 6 Tlw reina1;11ine; matt0rs may be disposed of briGfly., 'l'here was the aspect of the first appe1J.nnt 1 s running away when he saw the police. 'l'he trial judge first observed, and. correctly so I tha.t not all flight was necessarily ·a ma.nifostation of guilty but sor.1e · people run away from oo•/5 . -·· • • · · - . , , ·-ec- 5 policemen just to avoid bothero He held, however, that it 1r1as such a manifestation in this case as· the first appellant was ·the only person to run away. It is apparent that thi,s observation was incorrect eith8r as regards t}ie occasion of the fir.st appellant 1 s arrest or· in the context of the' operation e;eneraJ.ly 9 '.!.'he impression one gets is that of flight all around in the com'se of the operation. .!.';arlic"r in his judgment the lean1ed judge himself observed: ·•·Appar,ently when these searches were ir,ade by the police,. the accused had fled. '.l'heir homes, that is to .say, \'Je1·e. .sear-::hed in their t:.bsence •• , And as regards the first appellant 1 s ar:r·est, PW5 said~ '.i\-Je then went to Marwa irJangiti: The men ran away. They had fled. We then arrested th0ir wives.,; This is indeed reflected in the fact th.2\t of the thirteen suspects in the initial information filed before the High Court, six were women. And to underscore the perception of the police as a bother, these innocent women were kept in custody for more than six years before they were discharged, untried, ' without so much ns a word of apology. It is therefore clear to us that the conduct of the first appeJ.lant Has neither peculiar n_or 1 apparently, was it without justification. Finally, we agree with Mr. Hwanter,ibe thc.t it was improper for the trial judge to tell the assessors to :r:e ject the alibis 1 and for himself subsequently to reject them, merely for non-compliance with 6ubsection ( 4) of section 194 of the C.rimine.1 Procedure Act. 'l'he absence of notice required by the provision doos not ;nandate or authorise. the outright rejection of an alibi but in assistance with subsection (6), but, the omission may affect the weight to be placed on it.; We cannot be certain that had the learned judge approached the subject on that understanding he ·dotild 1 for instapce, have necessarily _found unimpressive the second appellant 1 s medical certificate and receipts evidencing his presence at ,3hinyanga at the material time. After all, he was only required to raise a reasonable doubt. Besides 1 the act of taking himself to the . 6 police station was not, to our minds, consistent with guilt~ , :For these reasons, we think the guilt of the appell,,fats was not proved beyond reasonc:tble doubt. 1;Jc allow the appeal, quash the convictions 'I I and sentence of den.th and dir8c their release from custody. 12th day of 2000. JUL: 'fIC:G O:F' APPEAL l~ .H. KISAJ'iGA JU;=.:'l'ICE· GF APPEAL JU;_:;TICJ~ OF' l1PPI;AL I certify that this is a true copy of the origil1alo DLPU~:Y RLGL:lTRAR