20000612 TZCA Dar es Salaam 1

•:• 111£1! Ill(]! J.LQJJ !II.Ji U:tOJ)\Ll )2 µor•. h2.p,a .a.s :sus ~•wacu Si AZl#l. 4 7?1¥.41 J?.l 3J)O #W ". ~ . ·• ' . .' V; ~ ~ ;; .,,__f I ~ ~· . ,' IN TH8 COURT OF AP1?EAL OF TANZANIA AT MWANZ,A ' CRIMINAL icPPEAL NO. 70 OF 1995 VI DOLE BAKOGWA 8'. ANOTJIER. AND ••• , •• RESPONDENT .. TffE REPUBLIC • • • • • (Appeal from the conviction of the High Court of ,Tanzania at Geita) dated the 7th day of August, 1995 in JUDGMENr2 01<' THE COURT On the ni~ht of 4.9.90 1- Msabila Gwalagala, a resident o.f Ikulwa village in Ge ita district, met his death at the homestead of l11agwamunda Ma1n.a, his father-in-;law. The postmortem report gave cause of death as asphyxin caus·ed by throttling and E-.t'oke e,f ma.rk.s o: p.:.0,3.::;·.;;::e by the thumb _and fingers on the sides of the throat. Magwemunda, along with the appellants, Vidole. Bakogwa 1 his neighbour, and Mlekwa Magwainunda, his son, were arrested and charged with the murder. ·Magwamurtda died before his trial while the appellants were subsequently convicted and sentenced I to suffer death. In reaching the verdict he did, the learned trial judge relied on the evidence of P\'J2, Magwamunda's nephew who was aged 10 years at the time of the inc.ident, and elements of corroboration from l'W1 and PW3, Magwamunda's widow and daughter respectivelya. PW3 was at the time staying with her pa.rents following estrangement with the deceased, and on \ the day the latter met his death, h_e h2td gone for her. P1'l2' s evidence in chief was brief and went thus: ••• /2 _____.............. _________,_.. ....------ -·-- .......,..,....."""' 2 Deceased had. come to collect his wife Ndakwela. It was,at 8 p.m. Ndakwela is also called Sophia. Magwamunda refused saying that deceased would not take Sophia because he was torturing her. Then Magwamunda, Vidole and Mlekwa started assaulting the deceased. I could see them with my own eyes. /\.s I was small I could do nothing. 'rhey killed him. Then they tied him with a rope in the neck and carried him to a hut where goats usea' to be kept. They hanged him to a tree. In cross-examination P':12 added that Magwarnunda, the appellants and himself were seated at a 11 Kikome·;·; (outd~or fire) v1hen the deceased arrived; that he joined them at the.fire.and was present during dinner but did not partake of it; that he asked for his wife after food; -.and that he (PW2) could clearly see the ensuing fight because of the nkikome':, al though, 11 as he put it, There 1r1as some darknesso' 1 ' :S.th appellants deri'ied to have been at the scene when the deceased was killed •r when his body was hoisted. The first appellant claimed that throughout that night he was at his employer's home, one Sylvester Anthr;::y, ·the second said that he came home drunk around 6 p.mo and straight went t~ l sleep. They both learnt of the death the following morning. There were contradictions .between Pl;J2 1 s evidence and his_ police statement, Exh. D1, · 1 on the one hand, and between his evidence and that of PW1 and PW3, -.n the other, but the trial judge looked only at some aspects of the former which · he adjudged minor. The substance of this appeal is that the learned judge did not adequately address the contradictions and that if he had done so, • he would not have f-::mnd PW2 a credible wi tnessc The appellants were represented by Mr. Matata after Mr. Mwantembe who had originally filed the grounds of a.ppeal withdrew stating the evidence of FW2 was water-tight. .... , ... r . ..-. 3 ., •.. ' The respondent Repuolic was represented by Hr. Mlipan11 who concurred with Mr. Matata on the contradictions and d·eclined to support the convictions. We have carefully considered the evicl.ence and we think, with respett, the trial judge's approach to the _contradictions left much to be desired •. In our view, the evidence of P\-/2 represented a significant s]lift -from the position depicted in Exh. D1, and. 'it seems the shift was not· without a purpose. In Exh. D1, the witness was recorded thus: ••• tarehe 4/9/90 kruna muda wa saa mbili za usiku hivi marehemu alikuje. hapa nyumbani kumtafuta mke wake ndipo nilisikia baba Magwamunda ald.rnwc1mbia marehemu kuwa un0tafuta nini hapa ••• toka hapa na lea siku ,zako zimekwisha na min1i wakati huo nilikuwa ndani niki talrn kulala, ndipo \vakati huo ·nilisikia vishindo kama watu wanapigana nilitoka nje nikaona baba na mtoto wake Mlekwa Magwamunda na Vidolc waki'.-Ia watu watatu wa:;1.amsh<;3.111bulia huyo marehemu ••• niliweza kuona vizuri _kutokana na mbalamwezi ••• Exh. D1 makes no mention of a' sitting at a fire, or the existence of any fire, but moonlight; on the contrary, the witness is inside and about to go to bed when the deceased arrives a.nd he comGs out when the fight breaks out. It is clear to us that the shift !1'.).d wide implications but the learned ,judge did not. appreciate this except to mention only the /. aspect of the 11k:ikome 11 and moonlighto In claiming the existence of a 11 ki..l<omen and the sitting thereat in which the deceased joined, and the " passage of time before the latter asked for his wife, P;12 ·was trying to show not only his·rresence at the scene, but also his adequate and favourable opportunity to observe the events, matters which Exh. D1 tended to leave in doubt. It seems ♦ indeed, that the ;1kikome 11 taie was contrived and false when viewed c:.gainst the evidence of PW1 and PW3. According to PW1, ••• /4 4 Deceased arrived at home at 4.00 a.m. We were asleep. He wakened Sophfa.. Then my husband went outside ... I did not go out. Then I heard noise. They were fighting - that is my husband and dece·a.sed. So Magwarnunda was not sitting at any fire when the deceased arrived but went out following the latter'. s arrivaL Moreover, the family ha.d already gone to sleep and there wns no question of dinner being consumed in the deceased' s presence. Similarly, according to PW3, When he came I was asleep I· heard deceased say: ' 11 have come to take my wife. :i It was soon after he arrived • • • 11,y_ father refused . 0. (fthe later added_] We hcJ.d finished eating. It is also doubtful in the circumstances whether PW2 ever got out and witnessed the fight or he m_ade assumptions from the voices. We say so because he was an infant at the time of the event and because neither PW1 with whom he stayed hinted at such a thing. What is more, the evidence of PW1 suggested thFJ.t the f:i.3ht was between Magwamunda a'1d the deceased but the appellants may only have assisted in hoisting the body. She said that when the. fight.was in progress, the appellants came to the scene and she heard them say: :1Fatherl You are killing hi."ll.;ri She also heard Magwamunda tell them to bring a ropeo When it was all over, Magwamunda returned to bed and told her that he had kiiled the deceased and the appellants had assisted him to hang up the bodyo The learned judge playe~ down her evidence and said: •• 0 this was a reluctant witness who, I think, did not tell the court the ;-;hole trutho It is no surprise that at one time she tried to .'ibsolve ~ • the·accused personB. ,._:~ ________________...________..,.....________ __ _ -:, ........,. _.. .. ;..... ___.._..,~-. _______... 5 lfo ,-u·e unable to see the justification for this assessment of PW1 since a truthful witness is not necessarily one who promotes the prosecution • case. Moreover, the prosecution did not seek to treat her as a hostile witness, which implies that her evidence was not inconsistent with anything she may have previously stated. The prosecution were also perfectly entitled and obliged ti'\ put all the material evidence before the court in order to assist it in reaching a just decision4 Finally, even P~/3 could not bA relied upon to find. that· the appellants •took · part in the fight for she, too, never went out and she was blind. Sh~ could only say th?.t the appellants and her fa.ther beat up th8 deceased becc:rnse she heard their voices, but she did -not mention what they said •. He are satisfied that the stories of PW2 were not only c·ontradictory in themselves but they were aiso materially contradicted 'by.Pbl1 and PW3. The tri.al judge's treatment of the contradictions was limited in scope and depth for ht'.! only made reference to the :;kikomea and moonlight, but not to the other aspects to which we have referred. It is doubtful that· he would have .found PW2 a. credible witness had he not falled into this e:..ro1·~ In our view the state of. the evidence was not such as to lend· assurance to the roles played by the appellants and they-are entitled to the benefit of the doubt. We note that even the three assessors who sat with the learned judge expressed unhappine:ss with the prosec'ution- case and advised the appellants' acquittal, and we think the advice was well given. It was impressed on us in the altern13-tive that the second appellant appears a..s a person. of mental instability and may have been so at t.he material time as to be unc.ble to apprecfate his actions;_ but while we think he is certainly as eccentric chare.cter from wh;:i.t we saw of him~ we do not consider it necessary to go into that matter • • 0 ./6 6 The appeal is allowed, the convictio~1s nnd sentence are set aside, the ap:pellants should be sat free forthwith. DATED at DAR I~S SALAAM this 12th day of 2000. L.M. H/\.KAJlrlE JUSTICE OF APFl<~AL R.H. KISANGA jUSTICE OF AI-PEAL K.S.K.LUGAKINGIR/1. ..... -- ·- .... JUSTIC:1~ 01<'-APPEAL .....___.,_.,...-.,____ ~ - I certify that this· is a true copy of the originalo q~{·i ;({ ( 11..GJ'MW!~RitTA ) DEPUTY P.EGIST'1-<AR