20061004 TZCA Arusha10

- _Dji'n~ lJecla.rn-ncC\.. S.:._3<-t(c.) - . \~A· - C:.:,<"'t',\.oo-rc;>.h,'.::.I"\. C"\~=,.sa.r --ii&~,,·H.~'<:.o.."-"" 1M DO, - \:::.'10.n PMl:..Q ="' C:.<><'<''o~bD IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LUBUVA, J.A., RUTAKANGWA, J.A., And KIMARO, J.A.) CRIMINAL APPEAL NO. 154 OF 2003 ELISANTE SIMON @ KILINGANYA ...................... APPELLANT .... VERSUS THE REPU'"BLIC ................................................ RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Moshi) · (Munuo, J.) J dated the 20 th day of August, 2001 in Criminal Sessions Case No. 27 of 1997 JUDGMENT OF THE COURT 20 September & 4 October 2006 KIMARO, J.A.: Elisante Simon alias Kilinganya, the appellant, together with Charles Saidi MrLJtu were jointly charged as the 1st and. 2nd accused respectively, with the offence of; murder contrary to section 196. of ,,_, . \,.,. the Penal Code. They were alleged to have intentionally killed \ Jumanne .Maganga at Maore Village, on 26.05.1996 at 8.00 p.m. The High Court, .Munuo, J. (as she then wa,~) sitting at Same convicted \ the appellant as charged and sentenced h!m to death. Charles Saidi . ·.. Mrutu was acquitted. ,•' 2 At the trial it was not in dispute that the deceased, Jumanne I I I Maganga was seriously assaulted on 26.05.1996 and it was the injuries suffered from the assault that caused the death of the deceased. The post mortem examination report (Exhibit.P2) showed " I I that the deceas~d died from haemorrhage and shock. The body had a closed fracture on the right mandible and haematoma dislocation of the right shoulder, fractured 1st, 2nd and 3rd ribs and haematoma in ;·•,, ,/ the right lung. The issue before the trial court was who killed the deceased and whether the killing was done with malice aforethought. The case for the prosecution was that on the fateful day, Janet Gadi (PW2) and one Makusanya who was not traced to testify were walking from Maqre to Gwaya. On the way she met the appellant holding a large piece of ·wood (gongo). The appellant is the uncle of PW2. He is a brother of her father. PW2 asked the appellant the purpose for having that piece of wood who replied, "let's go on". Then PW2, the appellant and Makusanya walked together until they reached a place called Mnazi. The deceased was standing at that \ 3 · · · ·place. The appellant stopped at the same place and told PW2 and Makusanya to walk ahead. PW2 walked to their house at Gwaya. As PW2 was narrating her encounter with the appellant to her ' mother, their.- neighbour, Godson Stephano, (PW1), knocked at their. 0 door. He informed the mother of PW2 that the deceased was seriously injured and assistance was needed to take the deceased to hospital. The father of pW2 was not at home. PW2 and her mother e, went to the residence of PWl where PW2 saw the deceased lying on a bed with injuries on his right neck and the right shoulder and was bleeding from the mouth. The testimony of PW1 was that the deceased dragged himself to his residence at around midnight. He knocked the door. When he i opened it, he noticed that the deceased was seriously assaulted. The deceased informed Pwr·that it was the appellant and Charles Mrutu who assaulted the deceased at Mnazi and that he had seriously been injured on the right shoulder, neck and the jaw. The areas mentioned by the deceased were swollen. PWl also said that he saw the deceased bleeding from the mouth. His next move was to awaken his neighbours for assistance so that ttie deceased could be 4 , 1 n(,. taken to Bomba Hospital. Although there was positive response from ~-Ji iW ..n,,... )f' his neighbours the deceased's life ended before arriving at the hospital. His body was returned to the residence of PWl. After an autopsy was conducted the deceased was buried . • • ~ ~ • •• <. · · • · : - .... ' - ,. • • • • ·•t,:, -•: ... Kalaghe Ally (PW3) is one of the neighbours who offered assistance to PWl. He too, saw the deceased at PWl 's residence~ The deceased repeated·~ to PW3 that he was assaulted by the 9) appellant and Charles Mrutu. He also saw the deceased with a 'I swollen jaw, neck and shoulder on the right side. PW3 confirmed that the death of the deceased occurred on the way to Bomba Hospital and had to be returned back to the residence of PWl. On his part, the appellant gave the defence of alibi. He said on the date the offence is alleged to have been committed, he went to Ganja Maore for the burial of his mother. The appellant was convicted on the basis of the words spoken by the deceased to PWl and PW3. The court was satisfied that the words amounted to a dying declaration in terms of section 34 (a) of the Evidence Act (Cap 6 R.E. 2002)~ The court was also satisfied that 5 the evidence of PWl, PW2 and PW3 corroborated the dying declaration. The trial Judge said there was water tight evidence pointing conclusively to the guilt of the appellant in line with the decision of the CQUrt in Ally Bakari and Pili Bakari v. R [1992] TLR 10. o The appellant was aggrieved with the conviction and sentence, hence this appeal before,~us. Mr. Ralph Njau, learned Counsel, as he had done at the trial in the High Court represented the appellant in this appeal. The respondent Republic was represented by Mr. J. R. Kaishozi, learned State Attorney. Two grounds of appeal have been filed. The first one faults the credibility of the witnesses and the second ·one doubts whether the ·· .,·-· words spoken by the deceased amounted to a dying declaration. In supporting the appeal, Mr. Njau opted to argue the two grounds together. Although his submission was long and somewhat repetitive in parts, in essence he seemed to focus on the credibility of . ' /1 6 the witnesses, the identification of the appellant and the dying declaration. In his argument Mr. Njau submitted that the witnesses, namely PW1, PW2 -and -PW3 were not credible witnesses because of C - inconsistencies and doubts in their evidence. ,Starting with PWl, he said the evidence of this witness was suspicious because he failed to disclose the dying declaration of the deceased to the neighbours from whom he asked for assistance. Counsel also contended that the alleged dying declaration was suspicious because of the critical condition of the deceased and the answer by PWl in cross- examination that the deceased had a faint voice when he mentioned his assailants. Furthermore Mr. Njau said the evidence of PW2 was weak and unreliable because she only explained how she met the appellant. It was contended that nothing in her evidence linked the appellant with the death of the deceased. With regard to the evidence of PW3, although Mr. Njau challenged this evidence as suspicious and unreliable he was not in a position to give reasons. He only insisted that PWl did not tell PW3 of the dying declaration of the deceased. 7 Another reason why the alleged words spoken by the deceased . ~J , J{ were not a dying declaration is that the words were not reduced to _/ i' writing. He strongly argued that if they were a dying declaration the same should have ,applied for the conviction of Charles Saidi Mrutu who was acquit~d. He faulted the trial judge f6r convicting the appellant on.the basis of previous grudges between the appellant and the deceased. According to him, those were extraneous matters t,; because the appellant and the deceased were reconciled, and they shook hands marking the end of their grudges. He summed up his argument by saying that it was improper for the appellant to be convicted on the basis of the dying declaration of the deceased because it was unreliable. Corroboration was lacking. The evidence of PW2 did not corroborate the dying declaration. The learned State· Attorney also supported the appeal but for different reasons. However, unlike Mr. Njau, he admitted that the · words were a dying declaration which lacked the necessary legal · elements in order for it to form the basis of a conviction. \ I, . ) / {, 8 He contended that all the circumstances of the case had to be considered. The fact that the deceased woke up PWl at midnight, the identification of the appellant by PW2 was suspicious and doubtful. The trial Judge should not have convicted the appellant on c· that evidence. The learned State Attorney also sought to fault the judge for a·dmitting the evidence of PW2 after discrediting the evidence of PW4 on the sketch plan of the scene of crime, which PW4 said was prepared with the assistance of PW2. At this juncture we wish to remark that this argument is unwarranted because the trial judge said categorically that the conviction of the appellant was based on the dying declaration and the evidence of PW2. In any event if PW4 was not a trustworthy witness that did not necessarily make PW2 an unreliable witness. While Mr. Kaishozi conceded that the dying declaration needed corroboration as a matter of practice however, he maintained that in this case corroboration was lacking. He cited the cases of Africa Mwambogo v. R 1984 TLR 240 and Raymond Francis v. R 1994 TLR 100 to show that the appellant was not properly identified. The learned State Attorney supported Mr. Njau in his prayer to have the . \ • 9 appeal allowed and the conviction and sentence quashed and set aside. It is common ground that the appellant's conviction is grounded . . on a dying declaration. This makes it convenient for us to start with ~ I the second ground of appeal relating to the dying declaration. Mr. Njau doubts the status of the words spoken by the deceased to PW1 I I I, and PW3. PWl said tha•i: after the arrival of the deceased at his house, he saw him with serious injuries. The deceased told him that the appellant was one of his assailants. The words were repeated to PW3 . . Section 34 (a) of the Evidence Act, [Cap 6 R.E. 2002] provides: 34. Statements, written or oral of relevant facts made by a person who is dead ... are in themselves admissible in the following cases:- ( a) when the statement is made by a person as to the cause of death or as to any of the circumstances of the transaction which resulted into his death, i('l cases which the cause of that · ·person's death comes into question, whether the person who made them was or was not, at the ti me when they were made under expectation of death, and whatever may be the " nature of the proceeding in which the cause of death comes into question. Before the trial court v~ the issue was who caused the death of the deceased. PWl and PW3 adduced evidence that they saw the deceased seriously injured and the injuries led to his death. The post I: mortem examination report (Exhibit P3) supported the evidence of PWl on the parts of the body which the deceased said were injured. They also testified that the deceased had told them that the appellant was one of his assailants. The words spoken by the deceased to PWl and PW3 in our view amounted to a dying declaration. They explained how the deceased met his death. He was assaulted. The law says that a dying declaration can either be written or oral. The decisions of the Court in Hamisi Said Mchana v. R 1984 TLR 319 and Ally Bakari and Pili Bakari v. R 1992 TLR 10 are relevant ·on this point. The : \ 11 argument by Mr. Njau that the words were not a dying declaration because they were not written is baseless and misconceived. The rule of practice is that by its own nature, evidence of a ' into the category of evidence in which material dying declaration falls . . 0 corroboration is necessary before it can be accepted and acted upon. See the case of R v. Joseph Ngaikwamo 1977 LRT No. 6. ~o The question is whether the dying declaration .was I . 'I : corroborated. The evidence of PWl, PW2 and PW3 was under attack for being weak and suspicious, hence not credible evidence. The suspicion is based on the condition of the deceased, that he was in a critical condition. It was doubted whether he was in a position of uttering the words. The distance from where the offence was committed to the residence of PWl was, according to Mr. Njau and :1':.,j .·. Mr. Kaishozi relevant in· assessing the reliability of the dying .. lJ,;; J , i'I : I!j . declaration. With respect, to both Mr. Njau and the State Attorney, there is no dispute that the deceased walked to the house of PWl after being assaulted. The distance in this respect is therefor€:, immaterial. If he 12 • ~ . t . was able to walk, he had the strength to talk. The alleged weakness J. In relation to the evidence of PWl because of his failure to tell PW2 and PW3 of the dying declaration of the deceased, is also untenable. This is so because, we are not told how that affected the dying declaration. From) what can be gathered from the evidence of PWl,. his concentration at that time was on the health of the deceased. His concern was to save the deceased's life. He wanted to have him "o rushed to hospital. That is why he insisted on getting assistance. It is only unfortunate that his expectation was not met. The evidence uof PWl has been doubted because the deceased . was suspected to be in a critical condition. The evidence of PWl that the deceased's voice was faint is taken to have confirmed that position. This possibility is ruled out because the deceased managed to walk to the residence of PWl. Incidentally, PWl did not even tell the court that he failed to hear the words uttered by the deceased. He heard the words. The problem which PWl noted was that his voice was faint. This is a situation which can be understood. He was injured and walked in pain for a distance of about 700 paces to reach the residence of PWl. At the time PW3 went to the house of PWl, the deceased was still able to talk. He told PW3 the same words. ·The post mortem 13 examination report (Exhibit P2) supports the dying declaration of the deceased on the parts of the body which were injured - the right shoulder, the neck and the jaw. The in~onsistency pointed out in the evidence. of PW1, PW2 ·and ~' ·· · o· PW3 is the failure by PW3 to notice that the qeceased was bleeding in the mouth. Our view is that it all depends on what PW3 concentrated on when he saw the deceased. In any event his failure to notice the bleeding mouth does not go to the root of what the deceased told PW1 or PW3 for that matter. The inconsistency between the evidence of PWl, PW2 and PW3, we think, was minor and did not affect the credibility of PW3 - See Herman Henjewele v. R CAT Criminal Appeal No. 164 of 2005 (Mbeya) (unreported). Lastly is the ._evidence of PW2. Her evidence was attacked for possible mistaken identity of the appellant. The State Attorney's argument was that PW2 could have mistaken the identity of the appellant because the offence is alleged to have been committed during the night when the circumstances for the identification of the appellant were difficult. With respect, there was no mistaken identity ., of the appellant. Janet (PW2) was very firm in her evidence. The appellant was her uncle, the brother of her father, a person who was known to her before, and for a very long period. The appellant: walked with her from Maore towards Gwaya. They only parted company when th~ appellant stopped at Mnazi and told her to walk ~. . ,. ,·_· ·. ~ :~\~ -:~~'~;.·· ·,_,. ~~~-·~{~i .· .:. ~. on. In such drcumstances, it is our view that all possibilities of mistaken identity are eliminated. The· case' Waziri Aman·i v. R [1980] TLR 250 serves as good illustration. ! 9, At this stage we shall examine closely the evidence of PW2 in !" () ' / order to ascertain whether· it corroborated the dying declaration. ,)) PW2 said in her examination in chief:- When we reached Mnazi where the deceased was Accused No. 1 stopped there and told us to go ahead. Makusanya and I walked on. When I arrived at Gwaya I told my mother how we encquntered Accused No. 1 carrying a piece of wood and that the accused retorted - "kimbieni". So Makusanya and I ran fast and when I reached home I narrated the incident to my mother ... As I was telling my mother how we met Accused No. 1 carrying a piece of wood, the brother of the deceased, PWl knocked on our door and told my mother that 15 the deceased had been critically injured by bandits. PWl is a neighbour, within calling distance. When she was cross-examined by Mr. Njau, learned counsel for the ~ . . .. appellant, shE.)said:- .:, ·.·• f'A •·.'-\L> .. On that night Makusanya and I had come ~ from Maore_ where I went to buy kerosene. tf) ~e Accused No. 1 walked along with us from Maore to Mnazi where we found the deceased. These (sic) Accused No. 1 chased us away saying "run". So we ran and when I reached home I told my mother so. From the extracts of her evidence, PW2 saw the appellant with a big piece of wood (gongo). The appellant stopped at Mnazi where the deceased was also standing. He ordered PW2 and Makusanya . to. run. Later the deceased walked in pain to the residence of PWl. He was seen by PWl and PW3 with the injuries. He told the witnesses that the appellant was one of his assailants and he died sometime later. · The post mortem report confirmed that it was the same injuries that led to the death of the deceased. The evidence of PW2 ---,-.--- ----···----·· ........... " 16 under the circumstances sufficiently corroborated the dying J declaration. In Damian Ferdinand Kiula @ Charles v. R. {supra), the trial judge reje~ed the dying declaration of the deceas-ec(as 0 providing the motive of the appellant's attack on the deceased. He said it was Weak and unreliable on account of contradictions between the evidence of PW3 andi PW4. The contradictions were that one of the witnesses said the deceased gave reasons for the attack while the other did not. This Court said there were no good reasons for regarding the dying declaration as weak and unreliable. The Court said:- I'. It was recorded by the police officer who had no reason to lie against the appellant. The fact that PW4. did not hear the deceased give reasons cannot be explained solely on the basis that the reasons recorded by PW3 were invented. Indeed the dying declaration appears very authentic as it contains a painful . I' lament of a dying mother - "who will look after my children". These moving words could not have been invented by PW3. We . ' 'I 17 . ' I are firmly of the view that the dying declaration provides the motive for the killing of the deceased . .Similarly, in. this case the evaluation of the evidence of the three prosecuGon witnesses namely PWl, PW2 and PW3 on whose evidence • the trial court relied to - ground the conviction of the appellant leaves us with no doubt at all on their credibility. The "o 9 evidence of PW2 that he saw the appellant with a gongo and he remained at Mnazi with the deceased provides an undoubtful link with the appellant on the commission of the offence. The facts of the cases of Africa Mwambogo v. - R [1984] TLR 240 and Raymond Francis v. R [1994] TLR 100 and R v. Joseph Ngaikwamo (supra) cited by the learned State Attorney are distinguishable fr9m the facts of this case. In these cases there was no corroboration and the circumstances were difficult for reliable identification. In the instant case, we are satisfied, as the trial judge was, that the· evidence of PW2 amply corroborated the dying declaration. The appellant was, on the evidence q:mclusively linked with the killing of . I 18 I the deceased. The· conviction was therefore justified. For these f reasons, we find the appeal has no merit. It is dismissed in entirety. DATED at ARUSHA this 4th day of October, 2006. D.Z. LUBUVA JUSTICE OF APPEAL· E.M.K, RUTAKANGWA • JUSTfCE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL I certify that this is a true copy of the original. IKA) TRAR