20030702 TZCA Mwanza

CRIMINAL APPEAL N0.51 OF 1999 Tff~ :-?.EPUBLIS RE'3?0ND~NT (Appeal from the: conviction of the High Court of Tanzania at Tabora) (Mwitai. J.) (. dated the 25th day ·of May, 1999 in Criminal Sessions_ Case No •. 47. of 1993 J1JDGM· ~NT OF THE COURT -----··---·---- 1 MUNUO O J. \.:.. This appeal is agi:'.inst tbe conviction and sentence in Criminal Sessions Case No.47 of 1993 in the High Court of Tanzania at Tabora, before Mwita, J. In the said ca.se? the ap-pell.::J.nt, Elisha Ndatamye, anC: his late co--accused, Ramadhani Kashindye, were jointly charged with the offence of murder c/s 196 of the Penal Code. It was alleged that on the 24th September; 1992" at Kilando Village in Kigoma Dis;trict within Kigoma Region, the appellant a.nj his late co-accused murdered one Yakobo Ruseko. Ramadhani Kashindye, ~ccused No.2, died before trial so the Re-public entered Nolle Prosequi agRinst him under Section 91(1) of the Criminal Procedure Act, 1985. The charge of murder then rroceeded against the present appellant. The latter was convicted 2 and sentenced to de,:;.th by hanging. Aggrieved, the appell~nt lodged this appeal. A son of the deceased, F.W.1 Nicodemus Yakobo, deposed that at about noon on the 24.• 9.1992? he •,-.;3.s on h:i..s way home when, at a distance of about 50 paces -ahead of him, he saw the appellant and the late Ramadhani Kashindye 1 bending. When the app<:l~-:i.nt and his c~•••suspect saw P.'•i.1 approaching, they ran away. :P.W.1 walked on, 2nd upon reaching the spot the appellant fled away .from, was shocked to find the body o.f his fa.ther, Yakobo Rusemo, lying face dawnwards. P.1;1.1 stated that he identified the appellRnt a.nd the late co-accused~ Ramadhani Kashindye, because they were his neighbours. He then reported the m:'l.tter to the Vill "'ge Secretary, P. W.2 Athumani Chuma. P.W.2 stated that upon r,:etting the r2port from P.W.1, he went to the scene of crime where he saw the body of Yakobo Rusemo, with a cut wound at the back of his head. A bottle of kerosene lay besije tbe body. As P.W.1 identified the appellant and his co-suspect, the '!illage Secret=1ry , .. ordered the militia to trace and arrest them. Subsequently the appellant was charged with the present offence. In bis sworn defence, the appellant categorically denied killing the deceased. He called his wife to support his defence of alibi to _the effect that he was busy on his farm when the deceased was killed so he was not involved in the murder. • ---·-··-· _,. ·' 3 The·µ·ostmortem examination report, Exhi 1Jit A, states that the -cause of the death of Yakobo Rusemo was acute traumatic hae~or~b~g~. The body had a large, 20 cm long cut wouna·, _from the base of the· neck right across the right side of the neck. ·nuring crosnHexarnina.tionby one of the assessors, P.W.1 said, " ••• They killed.my father because they suspected him to be a wiz,~::r-~;" that is, the deceased was killed ·on_suspicion that he was a witch. In this appeal, Mr. Nasimire, learned a.dvocate•, represented the appel 13.nt. He filed one ground of appeal: That the Appellant's conviction was against the weight of the evidence on record. Learned counsel for the appellant submitted that there ' . are discrepancies in the ste.tement of P'~ W.;'1,. Exhibit D1, and in the testimony of the said witness· at the trial for whereas P.W.1 recorded in Exhibit D1 that he saw the suspects bending, in his testimony in court he said that the two s_u.?pec::t_~ we_re standing. __.Q_oimsel further submitted that al;though P.W~1 stated in his evidence th8t the appellant -:had a matchet,.the same·wa.s not recorded in his statement · to. the police, _Exhibit D'i~ Mr. Nasimire· also faulted the trial Judge for not attaching ·weight to the defence of alibi raised by· the appe~lant, · which alibi was corroborated by • ...... ' 4- DoWo2 Merina 11guta, the wife of the -3:ppellanto It is the opinion of the ap-pei lant is advoca.te that the learned trial Judge should have given re.qsons for rejecting the defence of alibi raised by the appellant given that a notice of the said defence was -presented way ba.ck in October 11th, 1994- under the provisions of Section 194- (4-) of the 0riminal Procedure Let, 1985a i•lro Nasimire contended that the discrepancies raise doubts in the case for the prosecution w1_1ich should have been resolved in favour of the appell.s.nt so as to result in his acquittala Mrso Mutaki, le-:,.rned State Attorney 'I represented the respondent Republica She supported the conviction and sentence- and --urg-ed the Court to-·-upho ld the same o On the discrepancies raised by the advocate for the appel l ·,➔nt, the State Counsel contended that the s-::i.id discrep0.ncies were minor and tt1erefore immaterial a She observed that PaWa1 1 s statement, Exhibit D1, reflected th2 questions she was asked by the Foliceo The defence of alibi raised by the ap-pellant, Mrso Mutaki submitted~ was considered and rejected by the trial Juc'ige in view of PoH.1 1 s identification of the appell:mt in broad- daylight. Counsel for the respondent urg(:'.'d the Court to di·smis, 0 . th-2 appee.l for wn.nt of merita The issue is wbeth2r the conviction of murder is supported by tbe evidence adduced at the trialo • . "' ( 5 'vie agree with the learned State Attorney that the minor discrepancies submitted upon by the learned advocate for the appell~nt are immaterial and non-consequentialo Tha.t is because the police statement only reflected Po1.rlo1 1 s answers to (1uestion raised by the r·2coroing o.f:ficero If no question p-2:i:-taining to the? weapon the appel 1:.1.nt wa.s al legr::d to have ha.a 7 ·ch2 statement Exhibit D1 7 would indeed be silent on the matchet the s:ppel 13.nt h-"ld ,•!hen he ran away from the scene of crirneo We are of the view th0t th2 deceased's son 7 Po Wo 1 Nicodemus Y:alrnbo 7 could not hcwe rr.istdcen the identity ~, of his neighbour 7 the appell':l.nt 7 in bro2-d-day light? m'ound noono With r2gard the:, defence of alibi 7 the le~rrned tri3l judge stated in his judgem2nt; 1 • o o o I have given considere.tion to the accused's defence of alibio It is trite law that when an accused person puts forward the defence of alibi h2 does not thereby assume any burd0.n of proving th~t defenceo ;;e are of thi? view th;::it the lo ·crneil trial Judge properly directed himself on the law gove:rning alibi 1 which is 7 that tbe alibi rais2d by the accused has only to raise doubt in the prosecution case for the accused does not have to prove his alibio We are 3lso satisfied th·::it the defence of alibi ra.ised by the: appel L.mt was considered and rejected • . _JJ 6 by the tri2,l Judge because the s,Jid alibi did not raise any doubt in view of the testimony of :P.W.1 which the trial Judge fpund credible. We think tbc conviction of the appellant w:=i.s in the circumstances of the case well founded. The act of the appell3.Ilt running away when P.W.1 s:pproached the scene of crime? is not consistent with innocence. We are of the settl2d view tba.t the circumst;:mces of this c:3,se II ru1d evidence adduced at the tri."1.l? irresistibly and conclusively point to the guilt of the appe1 Lmt. On circumstantial evidence, the applicable principle of law was settled in the case of Simon ~1usoke v,~rsus R 1958 E.A. 715 at ?3.ge 718 wh0rein the C:ourt of .:,ppeal for Eastern Africa stated; in a case depending conclusively upon circurnstantie.l 0via,.:nce, the court .-must, bofore d.e.c.iding upon a conviction 11 find that the inculpatory facts are incompatible with the innocence of the accusGd a.nd inco.peble of explanation upon any other reasonable hy-pothesis tban that In SharmEal ~ingh_verwsR 1960 E.A 762 at Page 776 in which the Court of :',:ppe.:::,.l of Ea.stern Africa. also unde:-scored thG principle by st ,,tihg; 0 • 7 It is the bounden duty of a judge in dealing with circumstantial evidence to consider every possible set of circumst3Dces, as be must, whether the evidence is incapable df c:~·:::?le.-- nation upon any other reasonable hypothesis than the guilt of the .. :pris.on.e.ro He rn.ust ex-:1.mine every other reasonable .hypothesis than the guilt of the prisonero He must exe.mine every other reasonable possibility and test it against the evidence only if it is incompatible with the evidence may disc.,..rd it o In the inst11nt case we demonstr•:Jted that the single witness, PaWo1 Nicodemus Yakobo, could not have mistaken the identity of the appellant because they were neighbours and familiar with each othero Furthermore, conditions of identific::;tion were fqvour8.ble for it was around noon \vben Po Wa 1 bad no difficulty recognizing the appel la.nt as he ran away from the scene of crinie, about fifty paces aw3.yo For tt1ose re3.sons we do not have the slightest doubt in our minds tlnt the appel la.nt' s identific,-=-..tion w:s.s conclusively provedo The question of mistaken identity do2s not aTiseo As PaWo1 deposed, the appellant had a matchet, the lethal weapon be used to fatally cut the n2ck of the deceas2do In view of the above we are 1lso satisfied tt,').t the ci:::-cumstanc2s • T 8 and evidence adduced at the trial, irresistibly and conclusively point to nothing else but the guilt of the appellant a We accordingly dismiss the: appeaL At \\iWi.NZi-1. this 2nd day of July, 20030 D ~.?,-~ _ LUBUV!:. JU!JTIG:;::; OF- !:.PPEii.L -,~.N. MUNlJ0 JUSTICE OF M::PE :~L HoRo N8"8KI.i:L!. JU8'11 ICE OF ,u::ip-ii;/'..L I certify that this is a true copy of tbe original. ,· ~----+-··· -(' .~ . ., \ .' ~ \ .,_.) . .,- .. ...-;/',_,-._,.J--....... (:B'.L.K. W\HB-:'tLI) DEP-LJ..TY REG I ST2. ~ •