20080714 TZCA mBEYA

I! IN THE COURT OF APPEAL OF TANZANIA ATMBU'A <CORAM: LUBUVA, J.A.. MBAROUK, l.A,; And OTHMAN; l,A.l CRIMINAL APPEAL Nq. 298 OF 2007 I, HASSAN s/o MGALAMA UHEMBA ........ ;l.,,. .......................... APPELLANT VERSUS THE REPUBLIC ..............{""""'"""'"""'', ......................... RESPONDENT - \ I _ _ . - . - .,_,. i1 (Appeal·from the decislon,ofthe High court · of Tanzania at lringa) i (Werema, J,l ' dai°'ed the 4 111 day of ~pril, 2007 In ' Criminal Sessions No,:101 of 200G I- ·--·-------···' JUDGMENT OF TH.E COURT \: 11 & 14 July 2008 r, LUBUYA, J.A,; This is an appeal from the High ¢ourt (Werema, J.) sitting at Iringa. The appellant was convicted, of the offence of murder r contrary to section 196 of the Penal Code. He was sentenced to the I !i, mandatory sentence of death. \I 11 The facts as presented and establi~hed at the trial are that on 22.7.1997, the appellant, Hassan Mgalama Uhemba, murdered the :, . deceased, his mother. The Incident todk place at Klhesa, Mtwivila [I t l \ [I I ', I 2 area, within the outskirts of the Municipality of Iringa. It was the prosecution case that on 22.7.1997,1 at about 4 p.m., the deceased together with her neighbour, Felicia Kalinga (PWl), were at Slha local pombe shop near the house of the d~eased. The appellant was also I seen at the pombe shop drinking ,the local brew. He did not I however, join the deceased and her friend Felicia, (PWl). I Apparently, the appellant left the pombe shop leaving behind the deceased and PWl, Felicita Kalinga. On arrival at home, he found Hezron Kalenga, (PW3) the son of the deceased together with his friend Jairos Mkonda (PW2). The appellant was looking for a knife while threatening to kill the deceased. Both PW2 and PW3 went to the pombe shop and informed the deceased about the ' appellant's threat to kill the deceased. They advised the deceased not to go home. The deceased insisted on going home saying that the appellant being her son could not ki\l her. Consequently, she left for home in the <:9mpany of PW2 and' PW3. Felicia Kalinga, the deceased's friend and neighbour had already arrived at her house which is nearer to the pombe shop. 3 When PW2, PW3 and the deceased approached their house, the appellant emerged. He stabbed the deceased with a knife in the chest and at the back. The appellant fled and the deceased was taken to Iringa Hospital where she died. On 9.9.1997, the appellant was arrested and later charged with the offence of murder. At the trial, the case for the prosecution was mainly based on the evidence of PWl, PW2, PW3 and the cautioned statement Exh. P2. It is relevant at this stage to point out that Exh. P2 was tendered at the trial under the provisions of section 34B (1) (2) (a) (d) and (5) of the Evidence Act, cap. 6 R.E. 2002 because C. 2051 D/Cpl. Julius who recorded the statement had died. In his defence, at first, the appellant denied killing his mother, the deceased. However, following rigorous cross examination by the learned State Attorney, he reverted to his cautioned statement (Exh. P2). He admitted killing the deceased because he was Intoxicated and provoked by the conduct of the deceased dancing with one Mhehe @ Maneno, his friend at the pombe shop. 4 In agreement with the assessors, the learned trial judge did not accept the defence raised by the appellant. consequently, the appellant was convicted of murder and sentenced to death. As indicated earlier, following the conviction, the appellant has appealed to this court. Mr. Kingwe, learned Counsel, appeared before us in this appeal for the appellant while Mr. Ntwina, learned Senior State Attorney, represented the respondent Republic. Initially, Mr. Kingwe had filed a four point memorandum of appeal. However, at the commencement of hearing the appeal, he indicated that he was withdrawing grounds 2, 3 and 4. He said the main ground of complaint in this appeal relates to the identification of the appellant. So, he opted to argue only ground 1 which reads that: 1. The learned trial Judge erred In law and fact in admitting the evidence of PW2 and PW3 on the identity of the accused depending on the electricity light. 5 In his submission on this ground, Mr. Kingwe assailed the learned trial judge In relying on the evidence of PW2 and PW3, the only witnesses who are alleged to have seen the appellant stabbing the deceased. He maintained that as the incident took place at night, the trial court should have been very cautious in acting on the evidence of these witnesses regarding the Identification of the appellant. First, he said the Intensity of the tube light was not shown. In that situation, Mr. Kingwe wondered how PW2 and PW3 could identify the appellant at a distance of about five (5) paces away from the source of light at a neighbouring house to the scene where the deceased was stabbed. It being night time, the illumination of a tube light outside the house in a street is less intensive than one inside the house, counsel insisted. Dealing with street light generally, Mr. Kingwe said in his personal knowledge, street light in most of the urban centres comprise of tube lights and not flood light. So, he submitted that the reference by the learned trial judge to flood light 6 in the judgment was inadvertent. Very likely the light in question referred to was tube light, Mr. Kingwe observed. Had the learned trial judge considered that the tube light at the scene of crime was such that PW2 and PW3 could not properly Identify the appellant, he would have come to the conclusion that the appellant could possibly have been mistaken In his identification. This, he urged, was sufficient basis for acquitting the appellant. He urged for the appeal to be allowed. Mr. Ntwina, learned Senior State Attorney, strongly resisted the appeal. He said that there is abundance of evidence to show that the conditions were favourable for the proper Identification of the appellant by PW2 and PW3. First, the deceased together with PW2 and PW3 walked together from the pombe shop towards their house. They were not far from each other. Second, he said the scene of the incident where the appellant appeared and stabbed the deceased was 5 paces from the source of the tube Ught. Toe appellant being a member of their family, he urged that the conditions were favourable 7 for the proper identification of the appellant. PW2 and PW3 could not have mistaken the appellant for another person, the Attorney insisted. Alternatively, Mr. Ntwlna submitted, even if it is taken that the light was not sufficient to enable PW2 and PW3 to Identify the appellant properly, the cautioned statement, Exh. P2, was sufficient evidence upon which the conviction against the appellant could be upheld. In the statement, the appellant admitted kllllng the deceased because he was provoked when he saw his mother, the deceased, dancing with his friend, one Hehe @ Maneno. The determination of this appeal revolves around the question whether the appellant was properly identified by PW2 and P3. On the evidence, we think this issue can briefly be disposed. It is also on record that PW2 and PW3 clearly testified that on the day of the Incident, the appellant came to their house looking for a knife. Furthermore, it is also in evidence that these witnesses PW2 and PW3 heard the appellant threatening to kill the deceased. It is also 8 on record that PW2 and PW3 were walking in company with the deceased from the pombe shop to their house. PW2 and PW3 also testified that upon reaching some point close to their house, they saw the appellant emerging, and that he stabbed the deceased. It is also In evidence that PW2 and PW3 were able to Identify the appellant by aid of electricity tube light from a house about 5 paces away. These witnesses were found credible by the learned trial judge. After all, they were of the same family in which case we find no reason why they should implicate the appellant if indeed they had not seen him stabbing the deceased, his mother. On this, the learned trlal judge properly addressed his mind when he stated: Both PW2 and PW3 testified that they were in the company of the deceased from SIHA pombe club and that they saw the accused emerging from a pagale grabbed the 9 deceased and stabbed her. It was the same night in which the accused was looking for a knife and In which he told PW2 of his intention to kill the deceased. PW2 and PW3 were aided in the identification of the accused by electricity light coming from tubes (sic) light affixed to the house which was about five paces from the scene of the crime. There are no doubts that the witnesses recognized and Identified the accused as a person who attacked the deceased on that night. PW3 who Is a young brother of the accused Impressed me as a witness of truth and I have no doubt that his evidence is truthful and so was PW2. They all testified that there was sufficient flood light as the source of electricity was close enough to be beneficial in their aid. From this extract, we are firmly of the view that the learned trial judge was justified in his finding that one of the tests laid down in Waziri Amani V Republic [1980] TLR 250 for proper Identification were satisfied in this case. That is that the visual identification by PW2 and PW3 left no doubt as to the correct identity of the appellant 10 as the one who killed the deceased. That the conditions at the time of the incident were favourable for PW2 and PW3 to identify the appellant properly. We do not accept Mr. Klngwe's submission that possibilities for mistaken identity of the appellant were not eliminated. They were eliminated. On the other hand, even if the evidence of PW2 and PW3 on the identification of the appellant is taken to be insufficient, which we think it was, the evidence based on the cautioned statement {Exh. P2) Is overwhelming. In the statement, which was properly admitted, the appellant confessed to have killed the deceased, his mother. The reason he gave was that he was annoyed seeing his mother, the deceased, dancing with his friend, Mhehe @ Maneno. This, we think cannot constitute the Cilefence of provocation as provided under the law. We can hardly; see anything provoking in the deceased dancing with another person, least of all a friend of the appellant. The deceased being the mother of the appellant. Needless to say much on this, suffice it to say that the trial judge properly rejected the defence of provocation. In Elias Seif V II Republic (1984) TLR 244, in similar clrcumst.ances, this Court rejected the defence of provocation. In the upshot, we are satisfied that the appellant was properly Identified by PW2 and PW3 as the one who, with malice aforethought caused the death of the deceased. He was properly convicted of the offence of murder. The appeal is without merit. It is accordingly dismissed in its entirety. DATED at MBEYA this 14th day of July, 2008. D.Z. LUBUVA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL M.C. OTHMAN JUmCE OF APPEAL