20060302 TZCA Mwanza

·. .' /" IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MUNUO, J.A., MSOFFE. J.A.. And KAJI, J.A. CRIMINAL APPEAL NO. 71 of 2004 LUKUBI SHIGI •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Mchome. J) dated the 10th day of March, 2004 in Criminal Sessions Case No. 1 of 2002 JUDGMENT OF THE COURT MSOFFE, J.A.: In Criminal Sessions Case No. 1/2002 of the High Court of Tanzania at Mwanza the appellant was char~ed with the murder of one Stephano Gapi. It was alleged that on 11/8/1998 at about 23.00 hours at Nyandago Village in Kwimba District he murdered the above person. He was convicted and sentenced to suffer death by hanging. He is aggrieved hence this appeal . against the conviction and sentence. The deceased, Stephano Gapi, was a brother of the appellant's father, one Shigi Gapi. Apparently there was a quarrel over the 2 distribution of cattle left by the deceased's father, Gapi Limbe. A clan meeting was arranged to take place on 12/8/98 with a view to discussing the matter and if possible distribute the cattle accordingly. However, on the eve of the meeting i.e. on 11/8/98 bandits broke into the deceased's house and cut him to death. In the post mortem ' examination report the cause of death is shown as "severe haemorrhage". Four prosecution witnesses testified and stated that on the fateful night they saw the appellant being among the bandits who entered the deceased's house and cut him to death. The witnesses were PW1 Jidima Gapi, PW2 Limbe Malunguja, PW3 Michoronga Limbe and PW4 Rebecca· Kasanga. These witnesses were sleeping in the same house with the deceased. In his sworn statement the appellant put up a defence of alibi contending that on the night in question he was asleep at his home with his wife. The wife was not called as a witness allegedly because the appellant did not know her whereabouts since he had been in remand prison for six years before trial. In convicting the appellant the High Court, Mchome J, was satisfied that the appellant was identified on the fateful night because he was known to the witnesses, there was a wick lamp, he wore 3 black clothes, there was torch light, the night was moonlit, and the witnesses were familiar to the appellant's voke. The learned judge also addressed himself to a number of contradictions in the testimonies of witnesses but finally he was of the view that they were minor and did not go to the root of the case ~gainst the appellant. In the light of the above background this appeal has been preferred. Mr. Kabonde learned advocate for the appellant canvassed one ground of appeal which reads:.- "1. That the Honourable trial judge erred in law for convicting the appellant of murder as the prosecution evidence was marred by unresolved and irreconcillable 'Contradictions as:- (a) there was no sufficient light for proper identification of the appellant (b) there was a high possibility for the appellant to have been mistakenly identified." In arguing point (a) of the above ground Mr. Kabonde contended that no evidence was forthcoming from the witnesses to show how bright the torch, the wick lamp and the moon were. He went on to 4 say that identification, if any, was marred by irreconcillable contradictions. For example, the witnesses were not consistent on how many people entered the room. While PW1 talked of 7-8 people the other witnesses differed, with others ~aying two people, one person etc. On (b) Mr. Kabonde was of the general view that it was possible the witnesses mistook the appellant as the killer as evidenced by the fact that some of the witnesses said they saw the appellant cut the deceased while others did not say so. On his part Mr. Mwampoma, learned Senior State Attorney, maintained that the evidence of identification ·was watertight and that the prevailing circumstances were conducive to proper and correct identification. He urged that the appellant was identified in view of the existence of three types of light from t~e wick lamp, the torch and the moon. Also, that it was easy for the appellant to be identified because he was well known to the witnesses who were actually related to him. On contradictions, he urged that contradictions, if any, were minor. At any rate, he went on to say, the judge properly directed himself and opined that the said contradictions did not go to the root of the case. 5 It is common ground that this was a case whose decision depended mainly on identification. In our considered opinion the appellant was properly identified on the night in question. He was well known to the witnesses who, as earlier stated, were actually his relatives. The night was moonlit. There was a wick lamp. Also, looking at the evidence as a whole it is apparent that the appellant spent quite some time with the witnesses. , Surely, in view of the above factors the witnesses could not have possibly mistaken the appellant for some other person. Regarding the disparity by witnesses on the actual number of persons who entered the room, we think, this was of no consequence. We say so because what was important was whether the appellant was among those persons, notwithstanding their number. All witnesses were positive that the appellant was actually one of them. Again, regarding the alleged inconsistencies on who actually cut the deceased to death we are of the view that .this was not a material point. Whether or not the appellant cut the deceased or whether or not the deceased was cut by the others was not important. What was important was whether the appellant was among the persons , 6 who entered the room and cut the deceased to death. Under the doctrine of common intention the appellant could not escape criminal responsibility in the circumstances, notwithstqnding that he might not have actually cut the deceased. All in all, we are satisfied that the judge addressed himself properly to the contradictions and found that they were inconsequential. We see no strong reason for differing with him on his findings of fact on the point. We find no merit in the appeal. We accordingly dismiss it in its entirety and uphold the conviction and sentence imposed on the appellant by the High Court. DATED at MWANZA this 2nd day of March, 2006. E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original.