20060705 TZCA Tanga3

:='.) ~ , ' L A _ ~.~ >J. ~'\::~ ,~~ e,__~_,1\-: ~ yv\--!l,,,\-~~ ~ \ ; ~ - ' ~ "cP,~~t~~ t}t-C IN THE COURT OF APPEAL OF TANZANIA ATTANGA MAKAME, J.A.; MUNUO, J.A,, .And l<AJI, .J.A.} CRIMINAL APPEAL NO~ 116 OF 2004 VERSUS Tf-:11; R.EPUaL{C :·~~--····;·••'.••············,· 'RES:PONDENT (Appeal fror11 the cnnvictio,,: and sentenc·e of the High Court of Tanzania at Tanga) (Mkwawa, J.) th dated the 7 day of November, 2003 Ill Criminal Session No. 22 of 2002 JUDGMENT OF THE COURT 20 June}', 5 Juiy 2006 KAJI, J.A.: In this appeal, the appellant, l\bdallah f"<.ajabu Waziri, is appealing against t:r1e decision of ~Ile High Court at Tan'.:)a (Mkwawa, J.) in Criminal Session Case No. 22 of 2002 in \Nhich he v,1as convictc·i of murder contra1y to section 196 of the Penal Cede, Cap 16, and was sentenced to death. He is advocated for by Mr. 2 learned counsel, and Mrs. Mary Lyimo, learned Principal State Attorney, is appearing for tl1e respondent Republic. The facts of the case are rather _pclthetiC. The deceased Ally Mohamed was the .son of the appellant'.s eld~r brother. The dec::~c1sed wl10 at the n,ater.ial tinie was aged around nir,e (9} was res·iding with his . grandmother PWl ·saadaia Hassari'i, the mother of the deceased's father as well as the _appellarit. Tlie app~llant's son Fundi, then aged about 51 was also residing thete.. There was also a little girl wl10 was the grand daughter of PWl who was residing there too. All these grand children were sleeping with their grandmother PW1 on a mattress spread on the fioor. On the fateful d3y of 3.6.2000, at about 9.00 p.m., PW1 visited her neighbour who was nursing a sick child. She went there witl1 the little girl, her grand daughter. Sl1e left tile deceoscd and the appellant's son at home. But for some unexplained r2ason she loc:ked the door front bL1Lside. Later the appellant's brot\1er-in-law PW4 Hamisi Hassan vvho was residing nearby heard somebody screaming in agony from PVVl's house. He rushed there ;;nd found the door locked from within. He struggled and managed to force it 3 The house was one morned. He found the room dark. He struck a match box and saw the appellant slaughtering the deceased while pinning down .the deceased. PW4 rushed out to get a la nip and some assistance from the Village chairman PW2 Amiri Ally. But when he returned to the scene accompanied by PW2, the appellant was nowhere to be seen. He was suspected to have escaped through the roof top. The deceased was taken to hospital where he died shott!y therea!ler. The appellant was arrested in the same night. On the following day PWJ No. C8U31 Cpl Bakari recorclecl the appellant's caution statement in which the appellant admitted the killing (Exhibit P2). On 9.6.2000 a Justice of Peace one M. Katurnbi recorded the appeliant's Extrc:1 Judicial Statemerit in which the appellant admitted to t12ve slaughtered the deceased but he sai1j his intention was notto kill him (Exhibit P3). In his cidencF: the appellant denied any involvement ln the death of the deceased. He cleniecl to l1ave confessed voluntarily. He saicJ t12 v.;as tortured by the rnilitiamen who anestecl hin1 and also by police. The trial court evaluated the evidence and found him guilty as charged .and sentenc_ed. l:iin1 as above. Mr. Sangc3we, learned counsel fqr the apQellant preferred three -. grounds 9f appeaL Arguing· the first ground of appeal in 1'espect of identification, Mr. Sangawe contended that, the conditions prevailing at the material time were not favourable for PW4 to have identified properly the appellant. He pointed out that, the room was dark and that a match box stick do12s not last long, and tl1at its iigt1t is not powerful enough to enable a proper idenuncation, free from any possible mistake. The learned counsel further contendc.:;d that, PW,4 die! not say l1ovv far he was from the appellant: when l1e alleged he savv the appellant slaughtering tl1c dececiscd. Fu1thf:rrnore, the !earnecJ counsel contended that, PW4 did not say how long he observed the appellant before he w.ent out. The learned counsel observecl that:, in cases of this nature where the event occurred at night tl1e evidence on identity must be watertight v.,;;ich is not the case in Uie instant case, and that this can only be so if there is sufficien.: iight and tl1e 5 identifying Witness ,s close to the suspect and obs[';!rves the event for a reasonable time. He referred the Court to the decisions. in _the cases of Waziri Amani v. R (1980) TLR 250; and R v. Eria Sebwato_ {196b) EA '174. "the learned cdDri'sel .also .doq_bted the credibility of PW4 .in view o'f some contradicting aliegation_s ·in' his statement to the police, Exhibit D1 as against ·what he. testifiel'.:f in . court. He said, whereas in his statement t0 the police Exhibit Dl PW4 had not said he locked in the appellant when he rushed out for help, in his testimony in court he said he locked him in before he rushed out. Subrilitting on the second ground of appeal in r·espect of the caution statement Exhibit P2 and t;,e. extra· judicial. statement Exhibit P3, the lear-ned counsel contended that, t11ose statements were not made voluntarily and that they 'v\'2re made through torture by the police as stated by the appellant and supported by tile PF3 Exhibit D2, and the observation by the justice of Peace. The learned counsel pointed out that, in the circumst:atices, the .learned trial juclge erred in relying on them withou~ being corroborated. The learned counsel l1owever conceded tl1at, they were tendered during 6 preliminary hearing witho.ut any objection by the defence. But it was · his view that the learned trial judge should have exercised his discretion under Section 192 (4} of the Criminal Procedure .Act to direct tl)at th.ey be ptoved formally.. In his view; the learned Judge ' ' ' should nave cohd'C.icted a trial withi'n-cHrial. On the need of cmroboration of retracted sfatements, the learned .counsel referred .us to. the. decision of this Court in the case of Ally Salehe. Msutu v. R (1980) TLR 1. In elaborating the third ground of appeal which is in respect ol' the bu,-den of proof, the. learned counsel contended that, the learned judge said nothing on Exhibit 01 and Exhibit D2, and that llacl tie considered them he would have found tllut the,-e ar·e · '.;ornc reasonable doubts about the guilt of the appellanl and slx1uld have resolved tliem in favour of the appellant. Responding to tl1ese submissions, Mrs. Maiy Lyimo, learned Principal State attorney, contended t11at, the 2ppellant was properly identified by PW·4. The learned Principal State ;~ttorney pointed oul that, PW4 knew tile appellant prior to the event c➔ s lie was his 7 brother-in-law, and that there was sufficient light from the match box stick, and further that, he .obser:ved the ·appellant .for a reasbna.ble •>;; :;.,,1 ·• ..? , time. The learned Principql State Attomey contended further that, . . the deceased whom h~ had PW4 saw: the appellant sla'ughtering· . .t pinned down on ttle. flqor. She further pointed out that:, since there was sufficient light from the burning match box stick, ar1d under the circumstances stated above, there was no possibility of a mistaken identity, and that, the appellant was proper-ly identified by PW4. She cited the decisions of the Court in t!1e cases of Rajabu Khalifa Kitumbo and Three Others v. R (1994) TLR 129; and Eva Salingo, MT 62241 PTE Peter Magoti and MT (;52218 Pascal Mgawe v. R (1995) TLR 220 on the issue of identification .through sufficient light. On the alleged contradictions, the learned Principal State Attorney contended thcit, they are inirior which cannot vitiate tile t()tality of the evidence availal)le. Respondin9 on the cat.:t:ion and extra-judicial statements the iearn<.::d Principai State Attorney contended .that, since they were admitted as undisputed facts in the preliminary llearing, it ~-vas too late for tile r 8 to attempt to retract them· in his defence after the prosecution had already c:losed their case. Oh the !Jurden of pr0of, the learned Principal State Attorney subniitt:ed that the .evidence of PW4 .and the caution arid extra- judicial statements proved the guilt of the appellant IJeyond all rea,sonable do.Ubt. We l1ave carefully considered the evidence on recor·d and the submissic1ns by the learned counsel for the appellant and the learned Principal State Attorney. There is no doubt that the deceased Ally Mohamed is dead and that he died a violent deatl1 as prescribed in the Post Mortem Examination Report E;d1ibit Pl. The only crucial issue is whet! ,er it: was the appellant who caused the death of U1e cieceased and if so vvhether witt1 malice aforethought. The learned t:rial judge addressee.I this issue at length and was satisfied beyond all reason:::lble doubt that it wr.·~s the appellant who caused the death of the c!ece~sed wil'h malice aforethou9ht. '.. , ;ff//. There is no doubt that the key prosecution witness in this case 9 : '.:;,,:... ~; ,." is PW4. and the appellant himself Hi h.Js caution and extra'"judic:ial statements Exhibits P2 and P3 respgctively. Th~ evidence of PW4 depends heavily on his credibility and wheth¢t he proper.ly ideritiAed the appellan_t at the scene of crime. The learned .trial judge who savv PW4 testifying in court rated him as a credible witness. On our part we have nothing to fault him on this. He was in a belter position to assess PW4's demeanour and come to that conclusion. We have noted the alleged contradiction betvveen PW4's statement to the police and his testimony in cou1t. Indeed in his statement Exl1ibit Dl, PW4 did not say he locked in th~ c.1pp21lant v~hen he went to look for assistance. But he die! not cilso say that he die! not lock hlm in when he left to iook for assistance. It could !Je he·. was not asked about it, unlike in his testimony in court whP.re t:11e clefence counsel asked llirn so during cross-examination. It was at this stage when he saic! he closed ::he door when he lelt to look for assistance. In our view, this is not a contradiction. Even if it were one, we 2rc satisfied that it woulcl not vitiate the credibility 0f PW/.J and tile merit of the case. \, tri .. 10 After holding that PW4 is a credible witness as found by the learned trial_ judge, tl1e next issue is wl1ether he properly identified the appellant. It is common ground that PW4 knew the appellant prior to the event. It is also c;o111mqn ground that the scene of crime was in a single roomed Village house. According to PW4 he said he struck a 1r1atch box stick and saw the appellant slaughtering the deceased, and that the burning match box stick gave sufficient light which enabled him to prnperly identify the appellant. This was strongly contested. by the appellant's learned counsel who contended that a light from a match b_ox stick cannot be sufficient for a proper ------------------- identification because it does not last long. We have carefully considered this submission. In our view, under the circumstances of the case, where PWl knew the appellant prior to the event and in c1 .,.-A single roomed village house, light from a match box stick 1.,vas sufficient for a proper identification, and that PW4 properly identified the appel!aht. His evidence on identifrcation is ~vate1tigl1t free from any possibility of a mistaken idenl:iry. We agree vvitl1 the learned trial judge that the appellan:· 1,,-vas properly identified by PW4. I I 11 • . -'• / / We are mindful of the rule of practice th.at corroboration is ,/ required of the evidence of a single V'(itrre?s of id,entificat\on of the I I I / accused made under unfavourable. tdhditions - See H.assan Juma f Kanenyera and Others v~ R {1992) tLR 100. But ,as we have already observed in the instant case, the conditions were made favourable by the light from the matcl1 box stick and other factors as we have stated above. We may add here that, even if PW4's evidence required corroboration, it was fully corroborated by the appellant's caution ancl extra-judicial statement Exhibits P2 and P3. We are aware that, generally, it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars, or unless ~he court after full consideration of the circumstances is satisfied of its truth - See Bomba Tomala v; P.. (1980) TLR 254. But in tl,e instant case Exhibits P2 and P3 were not retracted by the appellant. · They were only purportedly retractecl. We say so !Jecause when t11ey were tendered as exhibit during preliminary hearing, they were not objected to by the def1-0 , 1ce. They were consequently rccordecl as undisputed facts. Tllerefore, when the appel:ant attempted to retTact 12 thein in his defence after the prosecution had closed this case, ~ - · That was not an appropriate stage for retracting them. The appropriate stage would have IJeen during preliminary I --~------- hearing. The defencE! should have objected their production whereby a trial withiwa-tdal would have been conducted to determine their . . ------· -·· admissibility. Purporting to retract them in tl1e defence after the prosecution had closed their case is nothing but an afte,thought. They were properly admitted by the trial court and did not require corroboration to be acted upon_ Having held that there was ample evidence by the prosecution that it was the appellant who caused the death of the cleceasecl as demonstrated supra, we are left witl, one crucial issue, that is, vvhether U1ere is sufficient evidence to prove malice aforethought. This issue has taxed our mind a great cleal. According to the evidence on record tlie appeiiant groped in the dark and picked a machete and slaughtered tl1e deceased regardless of !Jie cl2nger of slaughtering his own son Fundi in U1e process who was also there sleeping with the deceased. •. • This appears to us to ee unusual with otdinar-y persons. There was an allegation of mental problems in the past and a cerebral Mialaria bout at the material time, but was not pursued by the defence. The circumstarices of the case as they are, cast a lot of doubt on whether the appellant caused the death of the deceased with the requisite malice aforethought as provided under Section 200 of t/1.e Penal Code. These reasonable cl0ubts must be resolved in fa\/01.:11:' of the appellant. · 1t is therefore our holdi11g -~hat, the appellant caused the death of tile deceased Unlawfully but without malice aforethought. In view of this, we qua.sh U1e conviction of murder and substitute thereat a conviction of rnanslaughter contrary to section 195 of the Pena! Code Cap 16. We note from the recor·d tilat tl1e appellant has been in custody since June 2000. It is our considered view that, that period meets t:he justice of the case. We therefore set aside the death sentence and substitute thereat a sent:eric2 wl1icl1 · will result in the appellant's immec!iate release. The appell,111t is to be released from custody forthwith L1n!ess lawfully held. We allow the appeal to that extent. i4 DATED at TANGA this 5u1 day of July, 2006. L, M. MAKAME JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL S. N. i<AJI JUSTICE OF APP,EAL I certify that tl1is is a true copy of the original,