20020327 TZCA Mwanza 2

IN iri-I~Sii~T . OF l\.PFEAL -. OF TANZANIA ti,: ,. rn M\7,A1\f Z ,, .. ·- ~~ -~~ ~~l. -1._ ,---._:.~--~:·~~~<· .. ' j; (CORAM: .. -~~Kl~~i. ~-~t.~l::1/BUJJ_:1;_,_i[ol:,_.:A- AnsL_l'!filQSQ_,_d_~~) CRIIv1II{i'i.t ..\PI>E{1:L -NOo 47 OF 1999 KULWA MACHIBYAo o o _o -. o o O 0 0 .. 0 oAPPELLc-'\.NT . , AND.. . THE REPUBLIC" " 0 0 ·o oRESPQNDENT (Appeal from the c~nviction of the High Court of Tanzania at Tabora) dated the 21st aay of April, ~9~9 in .QE~m?.-:g_aJ_ Ses..§i.<2._ns Ca~e_JJo .. 97 of 199Z JU D_G ii..!,N '£ This appeal arises from the decision of the High Court (Masanche, Jo) in Criminal Case No. 97 of 19970 The prosecution ca.se was that on 8/1'1/1995, the appellant killed the- deceased, Tegisi s/o Ndamo o The incident tool;;: place at Mwambusalu Village, Meatu. District within Shinyanga Region.. The appellant was related and well known to the fam:qy of the deceased. In the morning of the day of the incident, the appellant bad been to the house of the deceased to borrow money. Later in the evening, again the appellant came to the house of the deceased where he found the deceased and other members of the family (FvJ2, PW3 9 PW4)e The appellant stayed for considerable time and bad dinner with the family of the deceased o He le.ft for bis home o.t about 8 .. 00 p .m. escorted o .. ·._/2 .,. 2 ' ' by the deceased for a~distanceo At about 10000 porn., ·(': when the deceased and l:iis family were sleeping 1 their house was raid.ea by a group of banditsc1 The bandits broke intd the house in the course.b£ which, the ,,.·;?. deceased was killed.o The app.~l·i'~·nt was··charged,_with : : .:: and convicted of murdero Hence, this appe?,-1 to the courto Mro Kabonde, learned counsel for the appellant, argued two grounds togetbero He made the following submissions·: First, that the trial judge erred in #•._.:~:../,. been convicting the appellant whose identity had notLproved sufficientlyo The incident took place at night when the evidence does not show whether there was moonlight so as to satisfy the conditions laid down in Waziri Aman~ Vo Re12ubltc_U2_?,Ql_te_]i0Ro 2'.;?Qo The evidence of Kwandu Tegisi (PW2), the daughter of the deceased, Salim Tegisi (PW3) the son, and Liku Samwel (PW4), the wife, was the basis of convictiono This evidence was unreliable because it was characterized by conflict and discrepancies which went to the root of the appellant's identification. For instance, according to PW4, she met the appellant face to · face when the appellant had a lit torch tied on to his foreheado With the torch light on, it is inconceivable that PW4 was able to see the appellant8 Second, these discrepanc-ies were not addressed to the assessors in the summing up by the judgeo As a result, the assessors gave their opinion without the benefit of proper direction on the law regarding the question of identificatioµ. eoo/3 ._ ... · ., ., . 3 . We_ agree with Mr;tKabonde that the· evidence on the identification of. thJ appe ll~nt was central to the determination of the case ·ag·ainst the appellanto As .. Mro Mwampoma, learn·ed State Attorney, submitted, the evidence of PW2, PW3 and PW4, • shoul-d'~ •,. be looked at .. ,.. ~ ,. ; . : . :. . ,....~ .~,.i!'', _..,... • .. , bearing in mind that these·. wi t_nesseE\are i1ot only ·familiar to the appellant, they were also related .. Furthermore; it was not disput:ea· that at that time," there was some light from a tin lamp, which at some stage later, went offe From the evidence of these witnesses, the appellant had been to the·deceased's house twice earlier during ~_t-:;_\ the day befo:f'er the incidente In addition, PW2 was emphatic in his evidence that he identified the appellant by the light of the tin lamp before it went off~ He (PW2) also identified the appellant from the clothing he was wearing which was described as 11 wbitish trousers and a shirt•i ~ the same clothing he· (appellant) was wearing when he had earlier been to the deceased's house. It is also common knowledge that for ord.inary people 9 the distinction between white and cream colour, is not easily drawno It is not surprising therefore that in \ this case, the appellant's clothing was variously described as white, cream or whitish .. This is evident from the fact that PW2 touched a person sitting in court wearing clothes with similar colour. Being a familiar person to the deceased's family, PW2 also identified the appellant by his voice., As PW2 is fully supported by PW3 and PW4 in material particulars, we agree with Mro Mwampoma that PW2, PW3 and PW4 were truthfuls We ooo/4 . 4 find no ·reason why these,witnesses should tell lies agai.nst the appellant who·."~as related to them.. This was a que.stion of credibility of witnesses which the trial jud·ge who sawi;,and heard thE{.. .,. witnesses, . '' was ...in a . . .. . . ·.• .,, better position to assess .. As an. appellate court, we find no reason t_o interfere with this finding .. °'}-.: ""' With regard to the discrepancies, we are unable to go along with Mr .. Kabonde that the discrepancies were so grave thati..tpey went. to the root of the evidence.. They ':;·\,'// were minor:'{ Such variations in our view, are a normal phenomenon eJcpected of witnesses testifying after a long lapse of time since the incident took place in 1995. The witnesses were testifying in a trial in 4999. Consequently, from the totality of the evidence of PW2, PW3 and PW4, and having regard to the fact that the trial judge who saw the witnesses testify in court and believed them as credible, we see no grounds fo~ faulting the trial judge on his finding .. As the decision of the trial judge was based on credible and reliable witnesses, · we agree that the conditions laid down in Waziri Amani -- (sµ:p:r;a) __ f_o_I,: the identification of the appellant were satisfied.. Connected ~ith ·this-··gruune., ~bonde had -------~----- also complained that the assessors were not properly directed on the serious discrepancies in the evidence of PW2, PW3 and PW4 .. We need not be delayed in this complainte This is because as just shown, we have taken the view that the discrepancies were minor. They did not go ·to ~he root of the mattero At any rate, from record, .there·is no indication of a misdirection by the trial .... ~ <' judge in his summing up notes to the assessors~ What is more, this issue was not one of those raised in the rnemp.randum of appeal .. in ground one, it is dismissed., In ground two, Mr., Kabonde complained that the trial judge erre~ in rejecting the appellant's defence. He contended that the appellant's story that after he ~,.-~. ~~~r had beet1· escorted by the deceased on the way home,, he .....:J~,-~ ... met a group of thugs who kidnapped him .. That the appeliant was forced to accompany the group to the house of the deceased where he remained outside under guard. The appellant further maintained that under the circumstances,. he remained outside throughout the time the bandits were inside the deceased's houseo He also claimed that after the incident, he was forced to go with the group up to a place from where be was ordered to go away. From there, he went to his house. The appellant had also -t.ol-d _a_ similar story to Mrso Mrema (PW5), a ---·- ·-··----~.--. Justice of Peace. This story, M;-:-··Kal5onc3:e-·-±nsisted.,__ vf?:!3 ____ _ credible, it should have been believed and. accepted by the trial judge~ With respect, -we find no merit in this ground. As Mr .. Mwampoma correctly submitted, there are several reasons which show that the appellant's story was not credible .. First, it beats our imagination that the appellant met a grou~ of strange people who foreed him ....../6 6 ·-·- to acco~pany them to the house of the deceasedo It is a matter of conjecture why he was taken to the deceased's house ... It is even more strange that he was taken to the house of the deceased only to witness the robbery .. We - ·.; . . ' . .:;:: .·"" ~ .. ~ :. must admit that. i "t is most urfo.sua1\ for peopJ:e'[who had .. :/: L · ~-l~ set upon a serious criminal activity tnvolving robbery and kil1;.ing/?to involve another· unknown person for no purpose~ It is our view that the appellant was party to the criminal venture and not an innocent onlooker. For one thing, the appellant knew the deceased who had money ;~t::.1:,.. •. '(~( i_-(, from t't.ie•;;~sale ·_;~ of cattle earlier in the day.. For this reason he had earlier been at the deceased's house to borrow money .. Furthermore, the appellant's conduct during the incident also raises doubts on the credibility of his story .. There is no evidence to show that force of any kind was used to restrain him from running away from the sceneo The deceased, his relative, with his family was brutally attacked inside the housee Unless he was tied up on guarded with some dangerous w_eap.9_n, it is strange . ---- ·- . --- - --- ~ -· ---- ··-- that he did not run away to enlist assistance or raise alarm .. Instead, he stood by throughout .. It is also unusual for a group of bandits having robbed and killed a person,_would release the appellant who had seen them comm:i. t the crime. On the other hand, granted that the appellant was forced to be present at the deceased's house as he claimed, his subsequent conduct on arrival at his house was also strange,,.. He did not report to anybody including his father ...... /7 .., .. 7 . . or wife about·what he had seen.happening at. the house of the deceased., we~ think this strange conduct supports . the evidence that be wz,s present at the scene. of the incident not iil°',the . circumstanees he claimed?in .- : ·:~ the .,.·.·:_.t, defence., .~ - . .. . .. -·• Rather, he was.a participant in the robbery . that led t6.'~the death of the deceased,. ~1 .• ,, .•.·. ~' On the evidence .... as a whole~ _we are satisfied that the learned trial judge was justified in rejecting the appellant's defenee that he was kidnapped., ~_, ·1ltt. th the event, and for the foregoing reasons, the appeal is dismissed in its· entirety. DATED at M\~\NZA this 27th day of March, 2002. L M., MAK.AME Cl JUSTICE OF APPE.l\.L D .. Z .. LUBUVA i ) \ _ JUSTICE _,. OF . APPEAL ~ . \ ', J .. A .. MROSO ,,, --==~~ JUSTICE OF APPEAL ill ...... I certify that this is a true copy of the original• r ............... ~