republic vs abdallah hamisi salum simba 2008 tzhc 149 25 february 2008

IN TH£: H lC n -Jr i A i i i - . ; - i l A y j'A. • i i *4V-»J~- CRIMINAL SESSIONS rtO. 21. OF 2006 th e r e p u b lic VERSUS A8DALLAH riAM lSI Sa l UM @ SIMBA 21/2/2008 8c 25/2/2008 jiUL>G£»w iEf'i I SHAYO, J. The Accused, ABDALLAH HAMISI SALUM @ SIMBA, stands charged with MURDER contrary to section 196 and 197 of the Penal Code (Cap. 16 R.E. 2002). It is alleged that on the 7th day of December, 2002, at about 04.30 hrs at Lacasa chica club along Independence Avenue within the Municipality District and Region of Tanga, the accused, with malice aforethought, did murder one YUSUFU FAIZI. On the material date, that is, 7th December, 2002, the deceased was with his friends at Club Lacasachica Discooiequu. When the disco was over, the deceased with his fellows and otner people went out of the disco hall. The accused person followed one MOHAMED SAID the deceased friend and tried to rob his gold chain. The accuseas foul act erupted a fracas as he wrestled Mohamed Issa to the ground. The crowd intervened and on seeing that he was l being over powered by the deceased, trie accused drew a pistol and fired one bullet to scare the crowd. Thereafter the accused discharged a second bullet . which went straight and pierced into the'head of the deceased. He then fired a third bullet that wounded the thigh of another deceased's friend one Amjeed. Quickly the accused took his bicycle rode away and vanished into the darkness. The wounded deceased was taken to Chumbageni Police Station and lateron to Bombo Hospital where it was noticed that he had already died. The prosecution claims that the accused person killed the deceased. In their deliberate efforts to establish and or prove their case,'the prosecution produced a total of five (5) witnesses to testify on their behalf. Among the five prosecution witnesses, two of them came forward and gave direct evidence to the effect that they saw the accused firing a bullet at the deceased's head that caused his ultimate death. P W .l (MOHAMED SAID) testified that he had gone to a discotheque at Lacasachica club on 6th December, 2002 with his wife. He stayed there until past midnight when the disco music came to an end. He walked off the club with his wife and meanwhile he removed his gold chain he was putting on and kept it in his trousers pocket for safety. He met the accused whom he knew very well. P W .l went on to testify i .further that the accused wrestled him to the ground as he wanted to rob his gold chain. That the accused was non a stranger to him since they used to meet frequently in entertainment places. He was familiar to him but not a friend of fr%_- it is his testimony that he even knew his name and his appearance as he > te d a scar on his face. Tnat he was able to identify the accused at the scene of crime as there was electricity/security lights at the ground fioor. He went further to testify that when the accused wrestle him to the ground, the deceased YUSUFU FAIZI and his other companions intervened to rescue him. That the accused Abdallah Simba whipped off a pistol and fired to scare out the crowd but the irate crowd responded saying that was just gun powder. That the accused then fired a second bullet shot aiming at the deceased and the bullet pierced into the head of the deceased. PW .l went on to testify that the accused fired a third bullet that hit PW.2 Amjaat Mohamed on his left thigh. That the accused then quickly rode away on his bicycle and disappeared. He further testified that he assisted the deceased by taking a taxi and rushed him to Bornbo Hospital via Chumbageni Police Station. That deceased died a few minutes after his admission. PW.2 (AMJAAT MOHAMED) testified that on-the fateful date he was among the crowd of people who intervened the fracas when the accused roughened P W .l as he wanted to rob him his gold chain. That in the course of that the accused shot the deceased on his head and that he was also hit by a bullet on his left thigh. He went on to say that he knew the person who attacked them as one by the name of Simba. That prior to the incident he had known Simba as they used to meet in music halls. He is familiar with the accused and 3 that the incident happened at a spot which was hit with electricity lights, and further that there were security and electricity lights from the neighbouring shops. PW.3 (PC JERRY) testified that he was assigned to assist an officer in an identification parade that was to be mounted in respect of a suspect in a murder case. That at first the parade could not be mounted on the fixed date as the suspect was indisposed. He went further to say that on another date the parade was not mounted because the suspect declined to be paraded as he claimed tha he had appeared in court several times before he was to be paraded/ PW.4 (DR. MASHAKA) testified that on 7/12/2002 he examined the body of the deceased. That the results of his medical examination revealed that the cause of death of the deceased was brain injury following a bullet wound on the head. There is no doubt that PW.4's testimony corroborates the evidence of PW .l and PW.2 that the deceased was hit by a fired bullet at the scene of crime, PW.5 (D/SGT. JOSAPHAT) testified that on 7/12/02 while on patrol at around 4.00 hrs, he received a radio call to the effect that an incident had occurred at Lacasachica club. He rushed to the scene where he met a crowd of youths coming out of the disco hall and blood was scattered on the road. He went on to testify that upon inquiry he was toid by the crowd that one person by the name of Simba had fired a pistol and wounded two people. ♦ PW.5 went on saying that they made a follow up of the culprit as far as Makarora in the house of his sister one Tabu Issa to no avail. That Tabu Issa 4 told them that th^ accused was hot staying at her house and that she did not know where the accused was keeping. He further testified that information was circulated to all police stations country wise after efforts to locate the accused had failed. It is his testimony that on 2/9/03 he was sent to Magomeni Police Station in Dar es Salaam to fetch the accused who had been arrested. He went with PG. Jerome who knew the accused very well, and together they brought the accused under escort to Tanga where he was then charged with this offence. In his defence the accused denied to have committed the offence and he in fact raised a defence of "alibi7'. He contended that on the fateful day he was in Dar es Salaam. That he had gone to Dar es Salaam in June, 2002and he never came back to Tanga. He went to testify that he once lived herein Tanga in the year 2001 - 2002 at his sister's (DW.2 Tabu Issa) house Makarora area. That in Dar es Salaam he was staying at Manzese Tandale and that while there, in August, 2003 they were rounded up by police when found drinking illicit brew (gongo). The accused further testified that he was put in custody with his colleagues at Magomeni Police Station. That he was later told that he was a suspect for committing a crime at Pangani in Tanga in that he had stolen from-a European. He was to await police escort from Tanga to answer the charge. He went on to contend that police escort came from Tanga and he was taken to 5 Tcf.Cc, put in custody, made his statement and finally taken to court charged with murder of one FAIZI s/o.... He was surprised. Responding to the prosecution evidence.he charged that it is not true that he was seen at Lacasachica club where he wanted to rob a golden chain from PW .l. He further said that he did not know P W .l nor PW.2 and all that they •testified was purely cooked up story engineered by the police. It is his further testimony that he was mistaken by his nick name of Simba and that although he •has a long time scar on his face, there are others going by the same nick name. ' He also testified that he is not a music lover nor does he frequent to disco hall. His favourite is drinking alcohol only. That he declined to participate in the identification parade because he was not in good terms with the police herein Tanga and that he had already stayed in remand for one year by then. DW.2 (TABU ISSA HEMED) testified that on the material date the accused was not herein Tanga, he had gone to Dar es Salaam long time ago. That she was arrested together with her husband on -the morning of 7/12/2002 after the police had failed to find her brother - the accused at her house. That the accused was being sought for attacking someone during the night plucking up his teeth. She went on to testify that before the accused moved to Dar es Salaam he lived in her house and that during that period he used not to drink nor smoke. That the accused has a scar he had sustained.while in Dar es Salaam and not that he had it since his childhood. DW.2 further testified that when the accused 6 was keeping with them he had no habit of going to entertainment places nor does he drink gongo. She claimed thac the accused was arrested because of the scar on his face. After the closure of the defence case, the learned State Attorney, MR. TIBABYEKOMYA, and the defence counsel, MR. AKARO, made their final submissions. In brief, MR. TIBABYEKOMYA submitted that the accused committed the offence whereof he caused the death of YUSUFU FAIZI, and that he murdered the deceased with malice aforethought as amply testified by PW .l, PW.2, PW.3, PW.4 and PW.5. He further submitted that all these witnesses were not in bad terms with the accused so they had no reason to tell lies against the accused. He argued that the witnesses are credible and trustworthy so their evidence ought to be relied upon and accepted as the truth. Mr. Tibabyekomya further submitted that the prosecution has to prove the following elements:- • that the death of the deceased was caused by the accused. • that the accused in causing that death had no legal justification to do so. • that the accused did so with malice aforethought. He argued that the evidence of PW .l and PW.2 clearly establishes the above elements or ingredients, in that, they were able to identify the accused at the scene of crime; the accused caused the death of the deceased by a bullet shot; and that the accused did so while in his ill motive to rob P W .l's golden chain. 7 Mr. Tibabyekomya went on. to contend tnat although the accused has > raised a defence of "alibi'7and producea one witness to corroborate his testim ony that he was in Dar es Salaam and not at the scene, which was however contradictory, such defence of alibi has not sufficiently raised any/easonable doubt on the prosecution case. First, the accused was properly identified at the scene of crime; secondly, all the prosecution witnesses P W .l and PW.2 knew the accused before the murder incident; and thirdly, there was favourable conditions for correct identification - sufficient electricity/security lights at the scene. In the circumstances, he argued, PW .l and PW.2 could not have a mistaken identity of the accused person, and further, for that reason, even identification parade was unnecessary. The learned State Attorney further contended that malice aforethought has been established as provided under section 200 of the Penal Code the intention to cause death or grievous bodily harm to any person, whether that person is the person actually killed or not; and intention to commit a crime the result of which death occurs. He referred us to the case of SAID ALI MATOLA @ CHUMLA VS. REP. CRIM. APP#NO. 1 2 6 / 0 5 CA. TANGA REGISTRY (unreported) for the proposition that malice aforethought can be ascertained in the following factors:- • the type and size of the weapon, if any use in the attack; « the amount of force applied in the assault; • the part or parts of the body the blow were directed at or inflicted • the number of blows, although one-blow may, depending upon the facts of a particular case, can be sufficient for this purpose; • the kind of injury inflicted; • the attackers utterances, if any, made before, during or after the killing; • the conduct of the attacker before and after the killing. Mr. Tibabyekomya contended further that in this case the prosecution evidence has sufficiently established and proved that the accused .caused the death of the deceased in the course of committing a crime, in that, he wanted to rob PW .l his golden chain as per section 200 of the Penal Code. That is a clear indication that the accused had evil intention/malice aforethought in causing the death of the deceased. He went on to argue that there is other evidence leading to the conduct of the accused when he committed the offence:- * • the accused drew up his pistol and fired the first bullet to scare the crowd; • he then fired a second bullet aiming the deceased on his head; • the weapon used was a lethal one, a pistol; • he aimed at a dangerous part of the deceased's body, that is, the head. It is on the basis of the foregoing that Mr. Tibabyekomya has prayed the court to . find the accused guilty of the offence charged with and convict him accordingly. . 9 Responding tQ Mr. Tibabyekomya's submissions, t'h'e learned counsel for the defence, Mr. Akaro, argued that the prosecution evidence has not sufficiently proved the case beyond reasonable doubt, in that:- • the accused has raised defence of "alibi" that he was not at the scene of crime; „ . • there was no watertight identification evidence by the prosecution witnesses- P W .l and PW.2 (see: RASHID ALLY VS. REP. (1987) TLR. 97); • the evidence of identification was that of visual identification which in law is of the weakest type and most unreliable, such evidence t must be absolutely watertight (see: WA2IRI AMANI VS. REP. (1980) TLR 250); • although P W .l and PW.2 claimed that they knew the accused, they however said that they were not very close to him; • the incident took place at 04.00 hrs and the crowd was retiring from the discotheque and there was a lot of fracas; • it was not easy for someone to concentrates without any mistake even though there was electricity lights; • the conditions for correct identification were not favourable that is why the police wanted to mount an identification parade; • if P W .l and PW.2 knew the accused thoroughly well then there was no need for conducting identification parade; • the accused refused to take part in the parade because it was a year after the incident and he had been seen in court several times; • that prosecution witness might have been consistent and honest in implicating the accused but they must have been mistaken in • identifying him at the scene of crime (see: AFRICA MWAMBOGO VS. REP. (1984) T.L.R. 240; 10 • DW.2 (TABU ISSA) fuily corroborated the defence of "alibi" though they might have contradicted in some areas but the main issue is that the accused was not at the scene of crime; • There is nothing to suggest that the accused's defence of alibi cannot be believed, since it is a general rule of law that the burden on the prosecution of proving the guilt of a prisoner beyond reasonable doubt never shifts whether the defence set up is an alibi or something else (see: SEKITOLEKO VS. UGANDA (1967) E.A. 531; • Since there is no evidence by PW .l and PW.2 that the accused was in Tanga, the accused's alibi has raised some doubt on the prosecution case. Otherwise, Mr. Akaro argued that from the foregoing, the prosecution case leaves a reasonable doubt that it was the accused who killed the deceased. He therefore prayed this court to afford the accused the benefit of doubt and acquit him. In his brief rejoinder, Mr. Tibabyekomya insisted that identification evidence was watertight leaving no doubt as to the accused's identification at the scene of crime; it was not a sudden incident, it took some time from the wrestling, the crowd intervening, the firing of the first - third bullets and the accused paddling away quickly on his bicycle; all this was sufficient for the two witnesses PW .l and PW.2 to correctly identify the accused coupled with the presence of enough electricity light. He went on tQ>contend that PW .l and PW.2 knew the accused well and theirevitience is credit worthy such that the prosecution intention to mount 11 identification parade was not necessary and could not in any way affect the ' credibility of two witnesses. Finally, that the defence of alibi was contradictory such that it could not raise any reasonable doubt on the prosecution case. As the law binds me, I was, in this case, assisted by three Assessors, two lady Assessors, MRS. ZAHIRA K A K E R E , MRS. PIANA MUTALI, and one gentleman Assessor, MR. SAHERA M A G G N G O . After summing up to them the facts and the whole of the evidence adduced in this case, I invited them to give their opinion on the guilty or otherwise of the accused. I am happy that all the three Assessors were of a unanimous opinion that the accused was in deed identified at the scene o f crime. That he wanted to rob the gold chain of PW .l Mohamed Said. All of them were satisfied that the accused fired a bullet on the head of the deceased and caused his death with malice aforethought. They rejected.the accused's claim that he was not at the scene of crime due to the contradictory nature of the defence evidence. The three Assessors therefore found the accused guilty of murder of the deceased as he stands charged. From the totality of the evidence on record, I am in deed satisfied that the following facts have been established beyond peradventure; firstly the deceased person is dead, and the cause of death is brain injury following bullet wound on the head, as per Autopsy Report (Exh. P .l) by DR. MASHAKA (PW.4). I am also satisfied, like my ladies pnd gentleman Assessors were that the accused was identified at the scene of crime by PW .l and PW.2. The two prosecution 12 witnesses knew the ^ccused by name ana appearance even before the tragic incident. They used to know him by his nick name of Simba and he had a scar on his face. They used to meet frequently in disco or entertainment places. They were familiar to the accused but not close friends. Not only that, there was full electricity lights at the scene that definitely enabled the two prosecution witnesses to correctly identify the accused person. Furthermore, they saw the accused as he attacked PW .l wrestled him to ground as he wanted to rob him his gold chain. The fracas that ensued made the deceased, PW.2 and the crowd to intercept'to rescue PW .l. On seeing that he was being over powered, PW .l and PW.2 saw the accused drew up a pistol and fired a bullet to scare the crowd but to no avail. The accused then fired a second bullet that hit the deceased on his head. He then fired a third bullet that caught PW.2 on his left thigh. The accused was then seen dashing away on his bicycle. Obviously the incident was not sudden as it took a duration of time that enable P W .l and PW.2 to have the accused under their observation before he disappeared. We are therefore satisfied that the identification evidence against the accused in the circumstance of this case was absolutely watertight and thus within the ambit of the cited cases of R A S H ID I and WAZIRI (supra) by the defence counsel. In deed we are also satisfied that the witnesses - P W .l and PW.2 were no doubt consistent and honest and there is nothing to^suggest that in implicating the accused with the offence, they were mistaken in identifying 13 him at the scene of crime. Mr. Akaro's cited case of MWAMBOGO (supra), with respect, doesn't hold water in this case. It is inconceivable that PW .l and PW.2 could, for no apparent reason, collude with the police to frame up the evidence against the accused as the accused seemed to suggest. There is no evidence that the two witnesses were in bad terms or had quarreled with the accused before this incident. I am also satisfied, and there is ample evidence that the accused wanted to rob PW .l his golden chain and in so doing he roughened him down to no avail. As the crowd of youths retiring from the disco hall, including the deceased and PW.2 advanced towards the accused to rescue P W .l, the accused drew up a pistol and fired a bullet on the ground to scare them. The irate crowd was not scared, so the accused aimed a bullet on the head of the deceased and caused his subsequent death. There is no doubt whatsoever that it was the bullet wound on the head of the deceased that caused him brain injury resulting into his death. PW.4 Dr. Mashaka amply testified to that effect. The big question now is whether the accused caused the death of the deceased with malice aforethought. Section 200 of the Penal Code (Cap. 16 R.E. 2002), as rightly stated by the learned State Attorney, provides that malice . .. aforethought shall be deemed to be established by evidence proving any one or more of the four circumstances (a - d) there under enumerated. In as far as the present facts are concerned only (a) -*(c) are relevant and I quote in extenso:- 14 " (a) an intention to cause the-death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to same person, whether hat person is the person actually killed or not although that knowledge is accompanied by indifference whether death or grievous harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years;' The Court of Appeal has also stated factors that guide the court in deciding on the existence or otherwise of malice aforethought. In ENOCK KIPELA V. REP. CRIM. APP. NO. 150 OF 1994 (unreported) it was stated; ".... Usually an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention must be ascertained from various factors, including the following:- (1) the type and size of the weapon, if any used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attackers utterances, if any, made before, during or after the killing; 15 and (7) the conduct of the attacker before and after the killing." As amply demonstrated above, we are satisfied that the prosecution evidence has sufficiently established that the accused caused the death of the deceased in the course of committing a crime/offence, in that he wanted to rob P W .l his golden chain; the accused drew up his pistol and fired the first bullet to scare the crowd; he then fired a second bullet aiming the deceased on his head (a vulnerable part of the body); the weapon used was a lethal one, a pistol; and the accused quickly dashed away on his bicycle and disappeared, only to be arrested after almost a year later in Dar es Salaam; after his arrest the accused declined to take part in identification parade that was to be mounted, not because he had allegedly stayed in remand'for one year and that he had been seen several times in court, he did so mainly due to his guilty conscience; he definitely knew that P W .l and PW.2 would have successfully touched him in the parade. I am satisfied that the accused's defence of alibi purportedly corroborated by his witness DW.2, was nothing but a figment of a story purely calculated or conceived to exculpate himself from the crime committed, and of course to mislead this court. They, that is, the accused and DW.2 contradicted one another in some crucial aspects. While the accused testified that he left for Dar es Salaam in June, 2002, and that he loves-taking alcohol and that he was infact arrested in Dar es Salaam as he was found drinking illicit brew - gongo, DW.2 16 testified to the contrary that the accused left for Dar es Salaam a long time c(go before June, 2002 and that he doesn't drink alcohol not even gongo. Nevertheless, I am aware that however much the defence evidence wfe3S contradictory, in law the accused has no duty to prove his alibi. It will suffice: if it can raise a reasonable doubt on the prosecution case. With respect, the defence of alibi set up by the accused in this has not raised any reasonable doubt on the cogent and sufficient prosecution evidence. There is unshakable evidence of PW .l and PW.2 that the accused caused the death of the deceased as he wa ited f to rob P W .l's golden chain; they had a correct identification of the accused a the scene of crime as there was full electricity lights; and they knew the accu sed even before the incident by his nickname of Simba, appearance and his scar pn his face. In the upshot, therefore, I am more than satisfied that the accused committed the offence with malice aforethought. I therefore find him guilty df the offence of murder with malice aforethought, and he is accordingly convict*ed. It is so found. , ,. f ! i l ! Sgd: A. a Sm / s HAYO v JU D G E 25/2/2008 Delivered in open court this 25th day of February, 2008 in the presence of both accuseds and the accused. Sgd: A .A W S H A Y O f JU D G E. 25/2/2008 17 Ms. M ako n d o : The accused is a first offender. He has no previous conviction. The offence committed by the accused, its sentence is under section 197 of the Penal Code. That is all my lord. Sgd: A .A .M . S H A Y O JU D G E 2 5 /2 /2 0 0 8 Mr. Akaro: I have nothing to add as there is only one sentence. Sgd: A .A .M . S H A Y O JU D G E 2 5 /2 /2 0 0 8 S EN T E N C E: The accused is a first offender. He had no justification at all to cause the death of the innocent deceased. This was purely a cruel and murderous act, and infact he might have caused even more deaths in the circumstances. There is only one sentence under section 197 of the Penal Code. The accused is sentenced to Death. He shall suffer death by hanging. It is so ordered. A.A. JU D G E 2 5 /2 /2 0 0 8 18 Right of Appeal explained. a .a .m M h a YO JU D G E 25/2/2008 19