19831129 TZHC Dar es Salaam

Ja.1 - 1 THE COtRT OF 4PP!Ar ? • AT DAR ES SALAAM (CORAM: NYALALI, C0 J. MAKAME, J. A. AND .KISANGA, J.A,) CRIMINAL APPEAL N0 0 87 OF 1980

B E T W E E N COMWELs/oHKOr4A..0 000.o.c, aooaaoaa cOy•ao.a,00.oS. APPELLANT AND THEREPUBLIC • a a a a o a a a a a a a a a a a a a a a a a a a a oannao a a a a a a a a RESPONDENT (Appeai from the conviction of the High Court of Tanzania at Mheya) (Kimicha, J.) dated the 19th day of November, 1980

JUDGMENT OF THE COURT NYALA_0J 0 ; The appellant Comwel s/p Mkoma was charged and convicted in the High C our t at .Mbeya for the offence of murder contrary to section 196 of the Penl Code, and was sentenced to the only renalty prescribed by law 2 that is, death by hanging. He was aggrieved by the conviction and sentence and hence. this apueci to this Court. Mr. Raithatha, learned advocate, appeared for the ape11ant wheras Mr. Mwanyika, learned Senior State Attorney, appeared for the Resnondent. From the proceedings both in this C ourt and the trial Court the following primary facts are either common ground or undisputed between the parties: that is, the apnellant was at all material timea resident of Nonde Juu in Mbeya township; that he was arrested on the 3rd July, 1977, at the home of one Mpangala In connection ith the death of one Godwin Kahawa; that the said Godwin Kahawa was the reputed husband of P.W. 1 . (Khanifa Tweve); that the said Godwin Kahawa who, had another home, Used to Visit P.W.1 at her home at Nondé Chini in Mbeya township; that during the night of the 2nd July, 1977, the said Godwin Kahawa paid P0W01 his. usual vIsit at her home;: that during this visit, he was stabbed in the chest with a sharp object; that he ran to the home of P0W.l's mother, that iS, P0W,3 who lived nearby. where .he collapsed.; that an alarm was 1 -2-. S raised and he was taken to a

police station and eventually to a hospital ihere he (lied; that the following day of 3rd July, 1977, a post mortem - examination was performed by P.W.2. From the same proceedings both .n this Court and the trial Court the following primary and secondary facts are in dispute between the parties: the r'rosecutiot alleges that the appellant was the person who stabbed Godwiri Kahawa at the home of P.W.l; that the appellant had been a lover of P.W. 1 for about a month before the fateful night of 2nd July 2 171, when he went to make love secretely to P.W.1; that the deceased had interrupted the appellant's love making; and that the appellant stabbed the deceased with a knife In the course of escaping from P.W.l's home. Finally, it is the prosecution case that the deceased died as a result of the stab wound inflicted by the appellant. On the other hand, the appeilant denies knowing POW.1 and denies ever visiting her on the material dayo Furthernore, the appellant puts forth an alibi to the effect that at the time alleged, he was at home with his wife. / The first pbint for consideration and decision In this case is whether the apoeflant was the person w 1'o stabbed the deceased. The learned trial judge c.nsicléred this point and correctly directed himself that the only evidence of identification was that (Tivep by P.W.I. He analysed her civdence and concluded by sying: "1 have no

re.son to doubt the truth of khanifals evidence as given above. I would also have believed her Identification of the &cused even if there was no light in the room. How *ould he mistake a lover. who had just made love with her and were then conversing when the deceased anpeared at the door?"0 Mr. Raithatha, learned advocate for the appllant, has viriorously attached this findihg of the learned trial judge. He submits in effect that P.W.1 was an unreliable witness, in that she never mentioned the name of the assailant to any body until after he was arrested. Moreover, the evidence of PW.l's mother (PW.3) regarding the dying declaration allegedly made by the deased to her, does not implicate the -3- 'appellant. Furthermore,.Mr Raithátha submits that P.W.1a evidence to the effect that the deceased was' stabbed, by the. appellant outside her house is not cons1su1IL wiLh the presence..,of blood on. the floor inside her house.,and on the door of her. room. Her explanation that she had put the blood-stained clothes of the deceased on that floor after they had been given back to her at the hospital that very night and that the blood on the 'door was a result of her handling the door with her blood-stained hands is unconvincing in view of the fact that this was already .a police case and it was highly unlikely that the blood-stained clothes of the deceased would be given back to P'.W. -1

to' take home that same night. We respectfully agree with the submissions of learned advocate for the appellant and for that reason we find P.W.l unreliable. '. Since the prosecution case depends on the evidence of P.W.1 1 .it follows thatwe cannot support the conviction of the, appellánt We allow the appeat, quash the conviction and set aside the sent7c.ect that the appellant be released from jail foh1ithunlêsained therein for some other lawful cause. Aru atDAR\ SALAAM this 29th day of November, 1983. ') -:" \) \ . F L • NYALALI 41. " CHIEF JUSTICE L. H. MAKAME

JUSTICE OF APPEAL R. H. KISANGA ')ICE OF APPEAL H certify 'that this is a true copy of the original. 'J .:•,-' ' /,.;. ! ,! • A.A./KYAWDO) ' 'SENIOR DEPUTY REGISTRAR.