20111128 TZCA Mwanza

tN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUNUO, J.A., MASSATI, J.A And MANDIA, J.~.) . ., CRIMINAL APPEAL NO. i30 OF 2010 JIOHN LAZARO ......·........... : ............ ~ ............ : ...........................•.... _APPEL~~T VERSUS THE REPUBLIC ................................................... ~ ...................... RESPONDENT. (Appeal from the Conviction_ of the High Court of Tanzania, at Bukoba) (Mjemmas, J.) dated the 6th day of August, 2010. in Criminal Session Case No. 88 of 2004 - ·----------- JUDGMENT OF THE COURT 2st" & 28th Nov~mber, 2011 MUNUO, J.A.: The appellant, John Lazaro, was in Criminal Session Case No. 88 of I ·2004 in the High· Court of Tanzania at Bukob_a, jointly and together charged st 1 with his younger broth~r for murdering Clemence Mbasa on the 31 Au~u~t, 2003 at Bisheshe Village in Karagwe District within Kagera Region. The learned trial judge, Mjemmas, J. acquitted Evarista s/o Lazaro on the 6th August, 2010. However; John s/o Lazaro was found guilty of murder ··· ........ .,f 1 ; / ....... . ·t _:.~l.l"-"r ' . lt I . and . ,G:o:.b:Yiqted ·:···-•·•·.,1-·- . . accordingly. He was sentenced to death by hanging, the .. ~~t].lt~ry sentence for murder. The key witness· in this case was PWl Eresi w/o Clemence Mbasa. She deposed that on. the fateful 31 st August, 2003 at about 7.30 p.m. in the evening, the deceased and herself were having a chat at their home in the sitting room. They had not yet locked the doors then. ·suddenly, a group of five bandits invaded the sitting room through the rear door. q:)f the five bandits, PW1 had no difficulty, recognizing the appellant, her neighbour. The kerosene lamp was burning, it was on· the table in tbe J sitting room. PWl observed that . the appellant was wearing . a pair of shorts and that his chest was bare for he did not have a shirt on. The appellant, PWl also noted, had a machete. When the bandits stormed in the sitting room, the appellant and two. others caught the deceased while the remaining two caught PWl. The · . . .. bandits demanded money from their captives. Upon PW1 raising an alarm, · . -the appellant tied her. mouth with a kitenge to gag her so that she woul.d not cry out for help. The ·deceased surrendered the money he had kept in I / i / I 2 / / I I . I . i· .... his bedroom _to the appellant. After taking the money, the appellant strangled the dec~ased who pleaded in vain, f ' "John Lazaro intoto wangu kwa nini unaniua ?" ·Meaning: "John Lazaro, my child why are you ki(ling me?" John ·Lazaro responded that he had to kill the deceased because the deceased rec,:ognized him. The appellant took ct ~word and s~abbed the deceased in the mouth. He then dragged him ,with .a. bed sheet he tied round the- nec_k and left the body in the bedroom. J The bandits then abandoned the deceased and turned to PW1 demanding money which PWl said she did not have. The appellant cut· PWl;s arm with a machete on the shoulder and leg to extort money. PW1 surrendered sh 280,000/= she had in the kitchen. · The bandits grabbed the money and proceeded to ransack· the house .. · The appellant then cut PW, l with a machete around the stomach and then took a rope he untied from one of the goats in the kraal and. tied it round PWl's neck. To pre~ empt being killed, PWl lay still as if she were dead.· The appellant cut her • I 3 .,f ,}:, .... -· ~. ~:-..~':·:~-:~::·'"' :":);':·.~·.::'' .: ·H_~:·,::-·:ft:~::.:'":-:':~:.'h~:~·t:~:~-~~-:~···:::\ .~:·~ :··:·;~. ~,.,J:t· ':\ . . . . . .. : ·. . . . . . . . . . i otl~t~;~iifu'g~~ !and kicked her legs, went to cheek whether the deceased had ' • • I• • • e':~tpn-~~Parnd upon realizing that the victims were'. dE!~'GW left. . ·. . . ' . . PW1. stated· . bandits because there was no door between the sitting ro~rn and the bedroom. After the bandits had left,. PWl loosened the rope round her neck and went to a nearby . . hill where she raised a death alarm. When the \ appellant ·saw her, he abused her and wondered how she reached the hill. Neigl;lbours converged at the scene of crime. PWl mentioned the appellant and the other three bandits she had identified too because they were her .neighbours . and people ·she knew before. . The appellant was arrested on the same night and accordingly charged with murder. . . ·There is no dispute that Clement Mbasa was killed by bandits on the night of the 31 st August, .2003 at his home around 7.30 p.m. in the ., presehce of his wife. Per his postmortem report, Exhibit Pl, he died due to . . . . head injury and a fracture of the base of hi~ skull. He suffered a fracture . . . . . . . . of the rig~t ·parietal bone and a fracture of the temporal bone, bleeding· 4 -. t I ' /· ,. ! . f, f . from the ears, bruises on the right neck and engorged jugular veins. The i I late Clemence Mbasa therefore died violently and unnaturally after being killed by bandits at his home at Bisheshe Viiiage in Karagwe District within .-• Kagera Region on the 31 st August, 2003. Upon being convicted of murder, the appellant lo~ged this appeal against the said conviction. In this appeal, Mr. Deocles Rutahindurwa represented the appellant. · · The respondent Republic was represented· by Mr. Edgar Luoga, learned ! . . Senior State Attorney. Mr. Rutahindurwa filed two grounds of appeal: namely:- 1. That the prosecution evidence did not establish the guilt of the appellant beyond reasonable doubt; and 2; That there were possibilities of mistaken identity · so the learned trial Judge shpuld have given_ the appellant the benefit of doubt and acquited him. .. ,,. 5 ,:: 1 .. i Contending that the appellant was not properly- ,identified by the sole eye · witness, P~1 Eresi · Clemence, counsel for the-·,ap~'.el-lamt,.argued that the wic_k kerosene lamp did not sufficiently illuminate th'e sGene·,-,mf crime. In that regard, the conditiO!')S of identification were difficult and wnfavourable . . Under such circumstances, there were possibilities of mistaken identity, Mr. · Rutahindurwa further contended. On the evidence deposed by the single eye witness, Eresi Clemence, counsel for· the appellant faulted the -learned trial judge for failfng .to ' consid)er the discrepancies in the evidence of Eresi _ Clemence which . . . contradicted the police statement, Exhibit D1, she had recorded. She recorded in her police statement that the bandits wore caps, that they were armed with · machetes, that she was blind folded by_ a · kitenge to prevent her from identifyin~ the bandits. She did not state those facts in ·her testimony and the learned judge should have held that· the said discrepancies dented her credibility, counsel for the appellant contended. Counsel . for appellant cited the case of Kibw_ana Salehe versus ttepublic (.1968) HCD No. 151 wherein Georges C. J. held:- • •11· 6 "L Whenever a witness is_prov_ed.to,i:,ave made a _ statement on oath inconsistent :.,Witr'/!nt--,a ;t~tq,t~f]Jent. previously made by him/ the credibility ipt· t./!Ja,t ; ·- . :, witness is completely destroyed unless he can #;-1iii -_ -_ · an acceptable explanation for the inconsistency.-. The witness gave no such explanation/ and neither his testimony nor previous statement should have been relied upon. 2. The other evidence was sufficient to support the · conviction. Appeal dismissed. " Mr. Rutahindurwa further refered us to the case of. Mohamed Said 'Matula versus Republic (1995) TL,R 3 (CA) in which the.Court held:-· "where the testimonies by witnesses contain inconsistencies and contradictions/ the court has a . . . duty to address the inconsistencies ·and try to · resolve them where possible/ else the court has to 7 ' i .,::. ·, -~~:'.2~; ~::~: \ whether the inconsistencies . and '"". \Jt@ontradictions· are only minor, or whether they go to the root of the matter. " . With regard .to the identification of the· app~'rfa\,t,. . . rtfr.w\~~~?JhlA:8afw~ · . . submitted· that the wick lamp light was not sufficient· to· Idkhti/{ffiHt~ ~ ' appellant beyond reasonaole doubt. He cited the case of Gerald Luc~i versus R .Criminal Appeal No. 22 of 2005 (CA at· Mwanza) ' (unreported) at pages 8 to 9 in which the Court listed the factors for a water tight identification as:- First - how fang the witness had the appellant under observation 'j I Second - the estimated distance between the appellant and the 1dentifyi_ng 1! : l .; : i witness~ Third - the kind of light available for visibility . ..., Fourth·:._ Whether the witness was familiar with the appellant. · Fifth - whether there were material ·impediments or discrepancies for identification. 8 ! ··1'._: ::... . . . ·-::,· (f -_ /Sixth ""'" Wh~ther there were obstructions which ·could have prevented the witness from identifying the appellant. Counsel for the appellant conceded that PWl and· tln~' t~'l~H~,t41~w~re t · neighbours, so they were familiar -with each other. HoWev§frft~~~JtJi . . argued that the conditions of identification by a wick lamp were difficuft · and unfavourable so possibilities of· mistaken identity could not be ruled out. It is the prayer of .counsel for the appellant that the appeal be allowed. Mr. Edgar·. Luoga, learned Senior State Attorney supported the . conviction. He submitted that the · learned judge considered - the discrepancies and was satisfied that the said discrepancies were minor and of no materiality. He further submitted that the wick lamp sufficiently lit the sitting room which PW1 estimated was small, measuring 4 paces x 3 paces. - Hence peing neighbours and familiar with each other, PWl had no difficulty identifying the appellant who came at a dose range with. her when he bli'nded folded her with a kitenge, then took her to the kitchen to collect sh 280,000/= which she surrendered to the appellant and ·she also saw the 9 The learned Senior State Attorney underscored the fact that prior to the murder, PW1 and the appellant were good neighbours as asserted by PW1. On the material day the appellant had helped the decea~<=d to go to f . sell coffee only to betray the victims by the armed robbery which led to the killing of the deceased on the fateful evening. Discrepancies between the . police statement, Exhibit D1, and the testimony of PWl are of no materiality, the learned Senior State Attorney submitted. Mr. Luoga referred us to the case of Jeremiah Madebele V R Crifni~al Appeal No. 64 of 2004 (CA) at Mwanza in which identification by candle Hght was accepted by the Court because the witnesses ~new the .,:- 10 /1f•·.··•·.· :\ J'.:ijppellatit:~~fttitt The Court observed; and -we :ij.l:i~~~ fr0m pages 6 to 7 of )'- the.Jyped judgment: .: : ,. · . : ' :1!'. "There is evidence by PWl and PW3 that when ltl~ appellant arrived at the fish market, it was already dark, but that they saw the appellant well through the light of a candle which was there. Under the circumstances. there is no doubt with identification, especially that PWl and PW3 knew the appellant prior to the event .... " There is nothing on record to fault the findings of credibility by the learned _ . . trial judge, the_ learned Senior State Attorney submitted. ~here being no merit in the appeal, Mr. Luoga urge_d us to dismiss the appeal .. i: ,,, The issue is whether-the appellant murdered the deceased Clemence . '· . Mbasa. · 11 ..,.,;... ":,11i,. :~, '.111r~~~ft~[f~1ifl~~~J?.£~;:i;?ft:tt~:l;: ::,•'/. It appears to us· that . the learned judge properly considered :;:f: JThconsistencies found in the police statement, Exhibit Dl,. vis a vi the :·:.· evidence of PW1 at pages 147 - 148 of the record of appeal by stating:- ': ... I have considered those inconsistencies and I find them not to be fundamental. They . do not L take us away from the main story whether it was : . . . . . . the accused persons who attacked and killed the deceased. I observed the witness when she was testifying and I am satisfied that she is a ·credible and reliable witness. The witness appeared composed and unshakable.· She explained what took place in . detail without any doubts. For instance she was showing scars in places where she was cut by the first accused John Lazaro and Ezra re,1x... · C ,- ,, · The learned judge .found support in his finding on credibility by quoting the assessors opinion on the-same:-· .,r ''Hon. Judge, the witness appeare(/ to be calm and she did not hesitate to answer the questions put to her. She was able to give her evidence in detail on • j how they were invaded until when her husband was killed and also how she was subjected to torture i. i ,_ : · ·::'ri~f~.;j; }}ft:ii1.ti1.~i{i ¥'c*1h thr· };Mter •, . . We have no ground for faulting the le?rned judge's findings on credibility. He saw PWl and listened to, her testimony. PWl was cross - examined to test her credibility. · Even the assessors did ·not dent her credibility. The discrepancies in the police statement were minor and not of any substance. We are of the settled mind that the decease's wife, PW1 had ample opportunity to identity the appellant, a neighbour· when he stormed into the sitting room through t~e back door at 7 ;30 p.m. The wick lamp lit the ·small sitting room 4 paces x· 3 paces well. The appellant, being a neighbour was wen known to PWl. He had, during the day, helped the deceased to sell coffee but returned that evening to demand money. He came into close contact ·with PW1 when he blinded folded · her· with a 13 lI. D -:· ,• ·. . ·:· .. :_\:).': :_. . tf;~;?~rnJed =~(:_··:•-·, her mouth· so that. she would not raise an alarm. J\~ij in her poli~e statement :.tfilal · the kitenge which blinded , .~,;,B>eyes fell off and as the wick laitfwi.iW:asibtrnnittg ishe identified the .,:::.'•·, · -1funt well~ . ;,"..[:•·•-- _-;:· Moreover, while killing the deceased because he "ha~f'ti~~m'~ifi~Ef'; the appellant, John Lazaro, the deceased pleaded with the killer: ·"John· Lazaro mtoto wangu kwa nini unaniua?" John Lazaro, the appellant, t_old the deceased that he had to kill him because the deceased identified him! After killing the deceased,. the appellant turned to PW1 who stated in her testimony:- '1After that John Lazaro told. Ezra Felix .we have finished the man let us. go to finish the wife. The wick larrJp was still on ... " 14 .::.; . \ ! . I I ~~~1~~~~~~.~-i_ij,~~;,f~~':¼'t.fui~~~~~~"-'i\:t!c,;,,.1:~'.'0li~fff.is'~ . ''·' !! '..j :-.·~- :··_·::°::1_~·i_-:~::r;<>/;'.;-)-_.. ___,\• - .__ · · - - · ·. A,e··~tp;p~Oant EI~torted sh 280,000,/ . gwi ·099 ~~~'~\ in kitchen which on demand for. more money, . she surrendered . to thff ~·~:p~.U:~.n.t. : ;,:,\.: - ~ :. . .~- The kitchen · ' '· was outside and separate from the main house in whi<t~ilfu'.~: c;!l;).pellant and . . . . . . :·. :- _.·.. j . . . . . co-culprits butchered the deceased. What saved PWl .· from being eliminated was PW1 's ability to feign death by lying still like a corp$e. The appellant kicked her and believed she too had died so. the appellant and his co - bandits left the scene of crime. Thereafter, the deceased's wife loos~ned the ropes she had been tied with and went to the hill to raise a death alarm. The appellant was the first neighbour to respond to the alarm but he abused her wondering how she found herself alive. On our part, we are satisfied that there is no speck - of doubt . in the identification of the appellant. The appeal is devoid of merit. We ac.corcHngly dismiss the appeal. 15 t~. day of November, 2011 E. N. MUNUO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL . ,. ,..~....... .,...! ,,,:::,. W..,·..'D. ~' '' 11..1)11:"~''~'I/Ni, J.:'"t.Jl::'\J~ Cl.: ~' .. > - '-..:·--~~..:...,--.:;,::,,-·•' •~ : . :' :,_~'t·'ii)':'\!,•,.•..:;.I' ~-}~t,t\t{.it\i\~,i_,,,(;,~;:~~~---,~>l~. JtJSTFlGE,r,0F.:~1?;8EtU,. ....... ···':.., ,•:·.~::',•\/.?~\~:/·:'· . : : ·.·:··:·~-i"";,_':' '": I certify that this is aJr~w,::«-~~y<~f tfae· @ri'§}ih~t. r~A SE,NIOR DEPUTY REGISTRAR COURT OF' APPEAL \ -~ {\ l ! "' ,; .! ll i .,/! --- . --··------·---- ·-· ___ ______ _____________________ ,, ..