20120911 TZHC Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA. {CORAM: BWANA. J.A.• MJASIRI. J.A .• And MANDIA. J.A.) CRIMINAL APPEAL NO.193 OF 2010 EDWARD MAGELANI .................................................................. APPEL~NT l VERSUS THE REPUBLIC ............... ;~.·.................................................. ~ .. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Nyanqarika. J.} dated 25 th day of March, 2009 in Criminal Session Case No. 19 of 2000 JUDGMENT OF THE COURT ih & 13th September, 2012 MJASIRI, J.A.: In the High Court of Tanzania at Mwanza, the appellant Edward Magelani was charged and convicted of murder contrary to section 196 of the Penal Code, Cap 16, R.E. 2002. He was sentenced to death. Being aggrieved by the decision of the High Court, he appealed to this Court against both conviction and sentence. 1 The background to this case is that the appellant was allegedly hired as an assassin by one Kayandabile who is a relative (in law) of the deceased following a belief that the deceased had bewitched him. It was the prosecution's case that the appellant together with one Bukulu s/o Nyangwa (now deceased) murdered the deceased. They went to the deceased's house and asked him to show them the house of one Mzee Haji. On the way to Mzee Haji's house the deceased was killed. He raised an alarm before he died, and his wife ran to the scene. The trial court relied on the evidence of PW1 Melenciana Sililo who was the daughter of the deceased. In this appeal the appellant was represented by Mr. Anthony Nasimire, learned advocate. The Republic respondent was represented by Mr. Kennedy Edmund, learned State Attorney. 2 Mr. Nasimire presented one ground of appeal namely:- " That there is no sufficient evidence on record on the basis of which the appellant's conviction could be safely sustained. " At the hearing of the appeal · Mr. Nasimire strongly argued that the evidence on record was not sufficient to ground a conviction against the appellant. He submitted that the trial court was wrong in relying on the evidence of PW1. According to him PWl was not a credible witness. Whereas in reporting the incident to her uncle, the ten cell leader Joseph Kapalata (PW2) 1 she mentioned the name of Bukulu and led the village party to Bukulu s house. However in her testimony in court she only gave a description of her father 1s assailants. She even stated that she did not remember the name of the appellant1s village. She also stated in court that when the deceased raise~ an alarm, it was her mother, who went to the scene. Her mother did not testify in court. 3 Mr. Nasimire submitted further that the circumstances surrounding identification were not favourable. There was no explanation given as to how bright the moon light was, and how long PWl was with the appellants to have enabled her to make a positive identification. Mr. Nasimire also argued that the trial court had no basis in relying on Exhibits P3 and 4. These were the bicycle and machete found at the appellant's house which were said to be smeared with blood. He stated that the prosecution failed to establish whether or not it was the blood of a human being therefore there was no link with the death of the deceased. The learned State Attorney did not support the conviction and sentence meted out on the appellant for the following reasons. PWl's evidence was not reliable given the contradictions in her testimony in court and what she had narrated to PW2. PWl did not name Bukulu nor did she give a description of the appellants to anybody. She gave the description of the appellants during cross examination. Mr. Edmund also submitted that the trial court wrongly relied on Exhibits P3 and P4. He also stated that the trial court wrongly shifted the burden on the defence when the court stated that the appellant was 4 supposed to say something on the blood found on Exhibit P3 and P4 so as raise doubt. The main issue for consideration is whether or not there is sufficient evidence to justify the appellant's conviction for murder. The conviction of the appellant was based solely on the evidence of PWl. It is clear from the evidence on record that there were serious short comings and gaps in the evidence of PW1 which diminished her credibility as a witness. There are a lot of questions which have remained unanswered. The trial court made a finding that she was a credible witness without taking into account all these shortcomings. We are of the considered view that the conditions were not favourable for adequate and correct identification. See Waziri Amani v Republic (1980) TLR 250 and Abdallah bin Wendo and Another v Republic (1953) EACA 116. In Anthony Kigodi v Republic, Criminal Appeal No. 94 of 2005 CAT (unreported) this Court stated thus:- 5 ''In a case involving evidence of visual identification, no court should act on such evidence unless all the possibilities of mistaken identity are eliminated and that the evidence before it is absolutely watertight .. " The law is clear that there is no particular number of witnesses required for proof of any fact (Section 143 of the Evidence Act, Cap 6 R.E. 2002). However the caution in the Abdullah Wendo's case (supra) is that such evidence must be tested with greater care. See also Mburu and another v Republic (2008) 1 KLR 1229. In Anil Phukan v State of Assam (1993) AIR 1462 it was held as under:- '!-4 conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which say to the contrary provided the sole 6 eyewitness passed the test of reliability in basing a conviction on his testimony alone. " In a criminal case the burden of proof is always on the prosecution to prove the case against the appellant beyond reasonable doubt. The burden never shifts (Section 3 (2) (a) of the Evidence Act, Cap R.E. 2002). While we have no problem in reaching a conclusion that the evidence on record supports the allegation of murder, we are not satisfied that the prosecution has established on the standards required under the law that it was the appellant who killed the deceased. We are therefore hesitant to · uphold the conviction of the appellant based on her testimony. No evidence has been established that the blood found on Exhibits P3 and P4 was that of the deceased. For the foregoing reasons we hold that the appellant's conviction was not proper. we. accordingly allow this appeal, quash the conviction and set aside the mandatory death sentence. The appellant is to be released forthwith from prison unless he is otherwise lawfully held. 7 th DATED at M~ANZA this 11 day of September, 2012. S. J. BWANA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is the true copy of the original. Z.A.JIL DEPUTY REGISTRAR COURT OF APPEAL 8