20090529 TZCA Arusha3

!1 THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM:RAMADHANI. C. J.; BWANA. l. A. And LUANDA. J. A.) CRIMINAL APPEAL NO. 10 OF 2007 BETWEEN AE SHAURI@ MARTIN ... APPELLANT AND 1 THE REPUBLIC ... : RESPONDENT (Appeal from the decision of t~e High Court of Tanzania at Babati) (Mihayo, l.) dated the 31 st day o,f October, 2006 Criminal Sessions No. 47 of 2002 I •••••• JUDGMENT OF THE COURT 20 & 29 May 2009 RAMADHANI. C. J. ~ it The appellant, Ae Shauri @ Martin, ¥'/as convicted of the murder of . 11 ,, one Charles Qubay Emmanuel, the deceased, on 13/08/2001, at aarjomat Village, Hanang District, 9y the High Court of Tanzania . ' (MIHAYO, J.) and was sentenced to:ihang. He has appeal to us and ii was represented by Mr. Loomu Ojare, learned counsel. The I, ' -- .-.;J ......... I :: ·1 <~_ .( \ respondent/Republic had the servic~s of Ms. Neema Ringo, learned Senior State Attorney. 1 We have to say from the start that the I case was badly handled both - I at the investigation and th~ hearing $tages. A couple of examples will suffice to illustrate the point: The ,post mortem report (Exh. P 1) i shows that the deceased had three tut ,, wounds on the head but the 2 evidence of the so called eye witnesses is that the deceased was hit by a club. Now, would a wooden club, a blunt object, cause cut wounds? Then, a very crucial witness, the mother of the house, was not called to testify but her children, who were of tender age at the time of the incident, were made the eye witnesses. That defeats all logic. We shall have to say more about this in our judgment. There were three pieces of evidence: the evidence of the eye witnesses, the police caution statement of the accused person, and the defence of the accused person in court. Let us start with the evidence of the eye witnesses. The appellant for five years was sharing accommodation with one Pascalina Slaa and her seven children including Yustina Joseph (PW 1), aged eleven, and Neema Joseph (PW 2), aged ten. Pascalina was married but her husband was living elsewhere with another wife. On that fateful day, however, the deceased joined them. The deceased was only known to Pascalina but neither to the two witnesses nor to the appellant. Pascalina, the deceased and the appellant had a drinking session since morning to late evening when they returned home, ate and retired for the night. That house had two bedrooms and a sitting room between them. In one bedroom were Pascalina, PW 1, PW 2 and her other five siblings while the appellant hosted the deceased in the other room. 3 At about the dead of the night, according to PW 1, the appellant entered their room, lit a fire and woke up Pascalina telling her that there was something at the door. Pascalina went out but could see nothing and the door was as intact as she had locked it. Upon being told so, the appellant became annoyed and took a stick to beat Pascalina. She snatched it away, over powered him, opened the door and ran out. PW 1 wanted to raise an alarm but the appellant threatened to kill her and so she kept quiet. The appellant chased Pascalina but in vain and, so, he reentered the house with a club in his hand and went to the bed where the deceased was sleeping and hit him on the head several times until the deceased fell down. The appellant asked the deceased, while beating him, what he had gone to do there. PW 1 went out to bring in the chicken which had gone out of the house. Then PW 1 went out to look for her mother. PW 2 at one point said that she woke up after the whole drama had ended. At another point she said that the appellant hit the deceased on the head with the club while saying: "Napiga mahindi yangu, I natwanga makonde yangu". When PW 2 asked where Pascalina and PW 1 were, the appellant warned her not to ask him or he would injure her. PW 2 was told by the appellant to bring a lamp so that he 4 could see the deceased. PW 2 compli~d and then she left with the 1' other five siblings. That evidence of PWs 1 and 2 was imb;ibed by the learned trial judge ! (MIHAYO, J.) hook, line and sinker. He !said, for instance: I I looked at these two witnesses as they testified. They I were witnesses of truth. The kiilling took place over ! five years ago. The eye witnesse:s may have forgotten ! a few details, but they were v,ery clear it was the I accused who severely hit the ~eceased with a club repeatedly until he died. Before us Mr. Ojare had a different /POint of view. He asked us to ! revisit the evidence having in mi,nd some pointers: One, he i submitted, the event took place in the middle of the night. He '. 1 I wondered whether there was sufficie~t light for the two witnesses to I have seen what they claim they sa"i. PW 1 said that the appellant I went into their room and lit a fire but/we do not know how bright the I .:.1 fire was. There is a sketch map of ~he house but it does not show i distances and so we cannot know tt)e sizes of the rooms were. But i apart from that, PW 2 was asked by ~he appellant to fetch a lamp so r that he could see the deceased. If the visibility was good, we ask, i why did the appellant need a lamp? i" 5 Then Mr. Ojare pointed out the contradiction in PW 2's testimony: she woke up when the beating was over and yet she described how the appellant hit the deceased! The learned advocate further exposed the discrepancy between the details of the beatings administered by the appellant on the deceased as narrated by PWs 1 and 2 and the injury documented by the post mortem. We pointed out this at the beginning. It is most unfortunate that the doctor who examined the deceased was not produced for cross-examination. 11 Mr. Ojare also asked us to examine the behaviour of the two sisters. At the time of the incident they were both of tender ages, eleven and ten. They were both warned by the appellant that he would harm them if PW 1 raised an alarm and if PW 2 continued to ask for the whereabouts of Pascalia and PW 1. Yet, Mr. Ojare pointed out, the two did not take the first available opportunity to run away from this hostile person: PW 1 went out to bring in the chicken nstead of running away and also PW 2 went to fetch a lamp instead of taking to her heels. We are a shade unsure whether these two, so called, eye witnesses were all that reliable as the learned trial judge took them to be. But if we discard the narratives of PWs 1 and 2 and give the appellant the benefit of doubt as to the credibility of these witnesses then the only prosecution evidence remaining is that of the caution statement, Exh. P 4 in which the appellant stated that he had taken local brew with 6 I - the deceased from morning to evening. After they had eaten the deceased started to insult the appellant. As that was not enough, the deceased hit the appellant with a small stick. The appellant disarmed the deceased, picked up a nearby club and hit the appellant once on the head. The deceased fell down. He and Pascalina raised an alarm and neighbours gathered and arrested him. Mr. Ojare submitted that that account supports self-defence. It could also be provocation. If viewed as self-defence there was I undoubtedly, excessive force used by the appellant since the deceased was disarmed and also from the extent of injuries sustained there were more than one beating. That would certainly be manslaughter. The same would be the case if taken as provocation. The third piece of evidence is that of the defence of the appellant in court. He repeated the story of drinking, coming back home, having taken supper and retiring to bed. Then, he said, the deceased started to shout and after that he dropped dead. That is surely a cock- and- bull story when there is evidence of head injuries sustained by the deceased. No court worthy that name can buy it. So, we discard it. There is also the evidence of Sgt. Anthony (PW 3) who went to the scene of the crime after the report was received at the police station. On re-examination he said "The other reason I heard was jealousy. He [the appellant] wanted to know why the deceased was in that 7 house." Pascalina, we are convinced, o~ght to have been a PW to clear the aire. We are satisfied that the deceased met his death at the hands of the appellant. However, the evidence :does not support malice aforethought for reasons given above. We, therefore, quash the conviction of murder and substitute it with one of manslaughter. We set aside the sentence of death and impose one of imprisonment. Taking into consideration that the appellant has been in custody I since 14th August, 2001, that is, a total of eight years and some ten months now, we are of the opinion that a term of imprisonment of five years from to-day will suffice. We so order. DATED at ARUSHA this 29th day of May, 2009. A. S. L. RAMADHANI CHIEF JUSTICE S. J. BWANA JUSTICE OFAPPEAL B. M. LUANDA JUSTICE OF APPEAL I certify that this is_ a. true copy of the original.