20100513 TZCA Mwanza3

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE, J.A, MBAROUK, J.A, And BWANA, J.A.} .CRIMINAL APPEAL NO. 99 OF 2006 MARTIN SHI RARE @ MAGIGE ........................................... APPELLANT VERSUS THE REPUBLIC .............................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Masanche, J.} dated the 7 th day of March, 2006 in HC Criminal Sessions Case No. 235 of 2001 ........•........ JUDGMENT OF THE COURT 10th & 14th May, 2010 BWANA, J.A.: Martin Shirare @ Magige, the appellant, was charged with and convicted of murder contrary to Section 196 of the Penal code. He was sentenced to suffer death by hanging. It was the prosecution case that on or about the 30th day of September 1997 at Bitaranguru Village within Bunda District of Mara Region, the appellant did murder one Maranda Magere. The appellant pleaded not guilty to the offence. Four witnesses testified for the 1 prosecution, including two wives of the deceased. On his part, the appellant called his wife, Rhobi Sabai, as a defence witness (DW2) particularly in respect of the defence of "alibi"that was raised. The facts of the case may be stated briefly as follows. The deceased was Chairman of the village government and Chairman of Chama cha Mapinduzi (CCM) as well. Around 1:00am on the 30th September, 1997 the deceased's house was invaded by bandits. He was killed. On that particular night the deceased had slept with Bhoke Maranda, PW2, one of his wives. She testified on what transpired - how the bandits were flashing ·torches around thus illuminating the room. His other wife, Nyakulima Maranda, PWl, was in a different room. In the course of that banditry act, PWl escaped through the window. While outside and with the help of moonlight, she alleged to have seen the appellant guarding the door to the house while other bandits were inside the house. However, the intensity of the moonlight was not even suggested. 2 Likewise, PW2 alleged to have identified the appellant by his voice at the scene of crime. It was alleged that the appellant uttered some words which made PW2 recognize his voice. Both the appellant and these two PWs lived in the same village. It is alleged that the deceased and the appellant were not in good terms. According to the defence case, on the material night and time, an alarm was raised. The appellant was at home with his wife, DW2. He responded by going to the scene, in the company of DW2. At the scene of the banditry he met other villagers. The victim of the banditry, Maranda Magere, died the following day. The appellant contributed sh. 5000/=for the funeral. Aggrieved by the decision of the High Court, the appellant preferred this appeal. Before this Court he was represented by Mr. Silveri Byabusha, learned Counsel. The respondent Republic was represented by Mr. Edgar Luoga, learned Senior State Attorney. 3 The respondent Republic did not support· conviction and sentence. Mr. Luoga did agree with Mr. Byabusha on various aspects of the farmer's submission before us. In his memorandum of appeal the appellant raised seven grounds of appeal. However in the course of his submission, Mr. Byabusha abandoned ground seven. The remaining grounds of appeal touch on the issues of visual and voice recognition, dying declaration and the defence of "alibi'~ Both learned counsel were of the view that there was no adequate identification, both visual and voice, to implicate the appellant. It is not in dispute that the incident took place at night. Both PWl and PW2 alleged that there were about five flash lights (torches) and moonlight so as to enable the two witnesses adequately identify the appellant to the exclusion of all possibility of mistaken identity. If their identification was helped by torch light, then one wonders how they could identify the assailants. As was stated by this Court in Said Chaly Scania vs Republic - Criminal 4 ,., Appeal No. 69 of 2005 (unreported), torch light is usually directed towards the victim, not the holder. Therefore the two wives of the deceased could not, in our considered opinion, identify the appellant as one of the bandits. It is equally important to note the following. Both PWl and PW2 testified that they knew the appellant as one of their neighbours. We wonder then why they did not mention his name at the earliest convenient time possible. After raising the alarm, neighbours gathered around. It is even on record that in his dying declaration the deceased mentioned the appellant as his killer. Why was this important information not relayed immediately to the people around and as well as to the police?. The appellant is said to have been arrested some days later. In the case of Athumani @ Buyongera v Republic - Criminal Appeal No. 222 of 1994 (unreported), this Court dealt with the issue of delay in naming a suspect. It observed:- "........ while unexplained delay to name a suspect may Justify fears on the veracity of a 5 ,.., witness, it need not be so where there is a plausible explanation. .. " (See: Juma Shabani @ Juma v Republic - Criminal Appeal No. 168 of 2004 (unreported.) Therefore guided by the decision of this Court in Waziri Amani v ·Republic (1980) TLR 250, the trial judge should have held that there was no adequate visual identification of the appellant. Voice identification is inherently unreliable. pw2 alleges to have identified the appellant's voice when he uttered the words" hatuna shida na ng' ombe, Tunataka Roho". She claimed to have known him because, as stated earlier, they lived in the same village. However, for many times we are reminded of the unreliability of voice identification. In Hendrick Onesmos Ndunguru@ Mahehs Ndangu v Republic - Criminal Appeal No. 46 of 2004 (unreported) this Court did observe:- •:.. it is not uncommon for people to imitate voices, more so when commission of a crime is involved in 6 order to avoid detection by law enforcement agencies.... ", (See: Jones Chilonji v Republic - Criminal Appeal No. 101 of 2003, (unreported); Jackson Zepherine v Republic - Criminal Appeal N. 186 of 2005 (unreported.)) In the instant case, PW2 uttered that she knew the voice of the appellant because she lived in the same village and grew up seeing him. This was not, in our respectful opinion, sufficient identification. If we may go by the evidence on record, the appellant was an army man. He just moved to that village after his retirement from the army in 1984. Of cource, it depended how old PW2 was at the time of testifying in court. Dying declaration was as well considered by the trial judge. The evidence of Kadenge Mwita @ Joseph Mwita, PW3, is relevant. According to him, before Maranda died he was asked if he knew who his killers were. It is on record that Maranda mentioned some names and that he heard the voice of the appellant among his 7 ,. assailants. However, Nchangwa Maranda, PW4, a son of the deceased also responded to the alarm. He responded to a question put in cross examination thus: •: .. when water was poured on my father, I was present. My father asked "wake zangu wamesalimika'~ He did not speak anything more. Kadenge was there. Mwita Wambura was there ... " It is settled law that a dying declaration needs corroboration. It is therefore unsafe to convict on uncorroborated evidence. In the instant case, it cannot safely be said that the evidence of PW3 corroborated the dying declaration. The said evidence was in direct contradiction with that of PW4 on this issue. Therefore it is unsafe to rely on PW3's evidence in support of a dying declaration. Lastly is the defence of ''alibi'~ The appellant raised an ''alibi" and called Dw2 to support his averment. The trial judge seemed to have entangled himself with local cum traditional customs - whether women do respond to an alarm raised at night! He then proceeded to use his own way of looking at the customs to dismiss the defence of 8 • ''a/ibi"without due consideration being accorded to the law governing such defence. That approach was wanting in legal objectivity. Therefore we do agree with both learned counsel herein that such approach might have occasioned failure of justice. All the foregoing considered, it is our settled view that this appeal should be allowed. We therefore allow the appeal, quash the conviction and set aside the sentence imposed by the trial court. We do order that the appellant be set free forthwith, unless he is lawfully held. We so order. DATED at MWANZA, this 13th day of May, 2010. J. H. MSOFFE JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~Q (J. S. MGETTA) I EPUTY REGISTRA ;'f. 1 N 9