19881006 TZCA Dar es Salaam3

IN THE COURT OF APPEAL OF TJ\NZANIA .;:.:.- Al'. MWANZA •·· 0 CORAM: MAKAME JoAo, KISi1NGA J •. \_~..1..,.-AND OWdZ1..-J - CRIMINAL ,\PPE,'.,L No. 91 OF 1987 _·:::.. ;,..,., -. EGIBARD o D.,?744 P. C • Mu '"·A•S,·' O O O O C Q ~ APPELLANT 1 Vrs. THE REPUBLIC 000000••00000•00000°• R2SP0NDENT (Appeal from the conviction of the High !Court of Tanzania at Tabora) (Korosso, J.) Dated the 11th day of August, 1987. Criminal Sessions Case No.49 OF 1981 JUDGMENT OF TH~ COURT OMAR J.A. The appellant was charged with and convic h~d of murder > contrary to section 196 of the Penal O~de. It is the prose~ution evidence that on 1/7/1983 in the buffet car of the train which was travelling from i'1wanz2,. Tabora to Dar es Salaam there was a passenger who wanted some tea• but could not be served because i t was closing time and the buffet car had to be cleaned. OthP.r customers 12ft on being asked to do so by P0W0 l except this one, who turned out , later to be the deceas~d in this case. Littl2 dij he realise that his recalcitrance and pigheadedness would in a short time cost him his life. P.W.l, the attendant in the buffet car,·st~tcd that after he/had failed to persuade the deceased to leave th2 buffet car (~ went to seek the assistance of the Policemen who were trc·velling \in the train. One policeman responded and went to the buffet car and talked to the deceased who woulrl still not agree

to leave. This ~_oliceman is now the appellant. He went ,md sought assistance r _f- of two more policemen and they met the rleceased in the staff compartment. They told him to follow them, which h2 resisted _again and a scuffle ensued. _P.W.2 Sgt. Asumwisye testified to se8ing the scuffle and the deceased throwing punch0s at thG policemen but which did not land on their bodL~s 3.S the pOlicErren dodged them. The deceased eventually was surroun·:L~d by Gbout six policemen and he fought them all in an effort to free him8Elf from them. 2 The deceased was heard by P.W.2 to ask his would be arresters what offence he had commited to d~serve all that and the ~olicemen were heard to reply that he, the dece~sed, would know that at the police station (which was in the tr3in)~ Eventually the deceased managed to free himself from them and stepped down at Malongwe Railway Station where th2 train had come to a stop. It was at this juncture that th~ appellant also got down from the train and went to a break van 3nd took out a ·sub-automatic machine gun, fOllOwP.d the deceased and accordingl to the testimony of P.W.4 aimed at him and shot him on the right ihoulder. P.W.4 was on the,railway pl3tform ~- at the material time and_he saw the appellant carrying a gun aQd running in the direction of the deceased. This W3s,after he, P.W.4, had passed the deceased and they had talkad-briefly as he was

in a hurry. to get into the train. It W3s after seeing the appell"lnt running with a gun that he paused to s23 where the appellant was going and that was when h-2 s.=-i.w him shoot the deceased. Thr: learned counsel for th,~ appellant Mr. Rug:.ro.bc1mu pointed out the discrepancy b~twc2n this t0stimony of P.W.4 and his statement to the police which is Ex. D.l. In his police stih"ment P.W.4 sc:iid, "I s;,w th2 d2ce2.sed coming towards me. ' I told the deceased if he _h2d 3ny problem with me he must hurry. Behind the dece~sed I saw the polic~mo.n I crossed with heading to the break VRn, coming holding~ gun in his hJnds and it was about 15 paces. I hPard th1t pOlicemun knocking the said gun, and then I he3rd a gun fire twice, 2nd their bullets had shot the deceased who fell down on th3 spot 0 At th~ time of firing a gun, that policeman ~~s down outside the train, ;ind not in a w0.gon.. I was surpris,1d and thought that I was probably a source of the dec~ased being shot, 1s I neither saw i:lny quarrel bl:tween the deceased and a pOlicem1n nor s2.-w the deceased holding any weapon in his hands.'' This is th2 police statement which is S''licl to be~ at Vi'lri.c.ince with the t-~stimony cf P.W.4 in court. We do, ~o doubt', find an o~vious discrepancy ,, in the two ~ersions, but -~onsi<i.ering the pros,.-:cution evidence , . . . ~- as a whole, the discrepency is not so materi_al as to

discredit this witne$se's testimony on the delibAratcness of th 2 shOOtinge 000300 3 p ftw. 3 Police Constable Shem Lohonda stated that he was in the train talking to the· deceased wh0 was on the platform walking leisurely. He P.W.3 was telling him that he was free t~ go home then as he had successfully escaped their arrest, when he heard a gun shot. He saw the deceased hold both hands dn his waist and then cried 11 why have you killr~d me a young mah like you~" P.W.3 gbt dOWh the train and wen-t and confronted I the appellant and asked him why did he do ft. Th8 appellant I did not say anything but as P.W.3 was taking the ap~ellant to the inside of the train to hide him in a compartmant occupied by women so as t"" avoid any possible, revenge from th,~ relatives of the injured person who hacl assembled, the appellant was seen shaking his head as if exrressing s~rrow at what took place. There was no postmortem report tendered. The appellant chose in his defence to keep quiet. The learned trial judge! found the charge of murder to have been proved and so c~nvicted the appellant. Reverting to P.Wo4 1 s statements to the police ani to the Court; in the police version PoWo4 heard the ccC•king cf th~ gun and the shooting., In his testimony in Court PaW.4 stat:=d that hE saw the coZ:.Jdng, the aim and the shooting of the dec.:ased by the appellant who remained strangely qui(·~t after

the inciGento It is strange that on the face of this evidence and that of other witnesses the defence counsel as the record shows, should advise the appellant and the appellant should agree to keep qui2t and not to explain on how ht::! came to be running with th,~ gun on the platform; what was the hurry ano what was his destination and to why he found it necessary /·,·fetch a gun at that hour? What was the necessity? These are matters which only Appellant would know and he was expected to give proper explanation. In th~ absence ~f this explanation which was deliberately withheld we are in iaw permitted to draw an adverse inference against th2 appellant which we hereby do, and find that all the appellant's actions were aimE>d at eliminatj_ng the deceased recause of what ·transpired earlier between them in the train., The other two grounds of appeal urged by Mr. Rugarabumu were that the trial judge misdirected himself by usinq the document (Psychiatric report) which was not tendered in court ~nd that there was no pest mortem report to point out the cause of death which occurred_ seven days after th~ shooting. ;.. :: .· ·-. ''• • • ••, I I~ • 4 '·Apart from what the prosecution witness had said that he saw a wound on the b~ck of the right shoulder 3nd that soon after the shooting~ the victim became unconscious, there is.no other reference to the cause ~f death. It is true,

w~ct;that this is what happened, but the Psychi2trist report/!:y the trial'judge was prompted by Mr. Rugar3bamu himself when he made his application, before the trial commenced, for the examination of the appellant so that the report could be used by the Court, and the Court immediately grant~j his application, and when the report was compl2ted and r2c3ived by the Court the trial judge commented on it in his judgment. It is surprising that Mr. Rugarabamu should be the p-:2rson to complain·b~cause his application was granted and the rdport so obtained, ~ad~ use of by the trial judge, as he had so requested earlier. But this tine of argument is characterastic of a Counsel , defending a hopel0ss case and we tak(~ it with due_ conies= ?nsion., We find the deceas2d's cause of death was the bullet wound inflicted with malice, afore-thought that material day at the .,, Railway Sb3tion. We cannot also agre2 to any sugg~stion of piovoc3.tion that might have been found in the scuffl~. It is tru~ daceased I resisted arrest 2nd threw some punches end dared any policcmun to follow him on the platforIJ1. These are day to i,1y m3.ttcrs that any policeman has to contend wit~. It cannot b8 s3id that every time he is kick~d by· a suspect he is expact~j to be suddenly and gravely provoked. The provucation must be unexpected and su~den and the ro~iceman 1 s reaction to th2 activities of the

culprit must be proportion~l to th3 offence committed. The offence here was of refusing to leav~ the buffLt car where deceased stRyed longer in the hope of getting a cup of tea served on him.· This tonduct called for the policeman to interven~n Later when he, the deceased, saw that more policemen would go to remove him he left of his own free will. 000500 • ,.·, 5 That qid not satisfy the policemen who by then ha~ increased their number and they insisted on arresting him. Ultimatety when he managed to slip away from them, th~· Appellant must have considered this act to be infra jig; -.> • and th,':lt no self respecting :,oliceman, he must have thought, would countenance a suspect of· any description slip through his fingers, and so we beliey~~ he shot him to avengs his honour. We find that there can be no~ defence to accommodate Appellant and his exeggerated notions of his own s0lf-importanc£. R. H. KISANGA

JUSTICE OF APPEAL A. M. N. OMAR

JUSTICE OF APPEAL I certify that this is a true copy of the Lriginal. ~c# . (J. H. MSOFFE) SENIOR_ DEPUTY REGISTRAR