19850722 TZCA Dar es Salaam

t11>rH:if cbunT mi ·APPEAL oF ··TANZAIITA . .. .. . '•• -~. ., '• ,.. ~-,-·• .. · ·AT ARUSHA (Cc°RAivr/·tr,ro:iTAFl\a · J._P•• ; fo.AKAiJE, . J'.A. And KIS;ANGAa J-•.A~f · CR!r.IIEAL APPEAL NO. "20 " OF,· ...1984 . ~ .. :.,

BETWEEN . . . .. . • .. • • • APPEI,LA1'1T • • •f AND .THE· REPUBLIC • - • • • • • • • • • RESPOI"iDENT . (App·eal fro.01 \;he conviction o·f the Eigh Co:urt- o.f. Tanza.J.'li.a .at Mesb.i )· '•.·.. -. · · ~ ·· · ·(J •. c. D' Souza, J,} ·dated the 30th · day of April,· 1984' · · · · · ·· in . ·. . . .. ~ ,' . Criminal Sess'ions Case No. 18 of ;t_984 -JUDGEMENT OF.THE COURT ' r,mSTA"E'A, J .A~ : Six persons 1'rnre charged in the High Court for the .murder of the dee eased Mw1.dandumi Hamisi. Five of the accused. persons we r~ acquitted ·'.of fthe~;charge.,· aiid -~the appellant 1 Saaiwel Haciisi' wa.s con~srt~·g_JiiJ.·;1:charged a.ad he is appealing from his - conviction.- of .arurder.,. , . ., . . .. . \ ':.~: : •:·:...~~- ~· '• .,: ·.~ ,.,;.\,.;:.-:~: •.::~-"- ."..,.: .. ~ ◄- ..... ~,:-.;.~.:;.;~:.-••.~~,;.-:~~~-~,.-~~<7'~.:· .._"_~-.. :·~-~:~,..., ... ..: ..... _ :-",;,__,: ,,.~:~.!'-J... i-... : ·•• '.:· ----~- ..· -·--.-~_;:,- :-- · ..... .. . • "It-·- .,.:• ,_..,;.-,..,,, '-- There was one eye-wt<G:11:~s~-"to . . .. _.... the ·6ff e.nce. P .. W.2 Paulo " ~ alleged t.nati on. t~1e I11aterj_al night he he~,rd an alarm. emanating .A"• •• "'- •_,. 1, • · -. ,_ .... ~ f ,,'t ;,. ... 'J- I. 4 ,. .::!I-~. .. -. , • - • .. •• ·- from the house of tl1e dee.eased~ ,:.,,._. _-,,. He went to't12,:r-ds it and stayed2,+n . ;~,,_b;~P:: i3-b9"u~ ,35, f,ee~ ;frpill, tl}e: .hcu:s.e ._.. He

savr a small p-;il . ~" - . ;;:;. li:ilJa 1i9'.li_,,:, :-lit_. _bY:-:on~•,_.9f _the co-accused, .la~:i._p, ~. ,. and by i -u;a:: ·li:~ht _he s~,vf aJ1:, ·q;tti/ si1(__accµ_~(::d persons attacking •: ,: •_, ~ ,,.._ .•:; ~- • ~· .-,.• ' "'>: (I : l -'. " .. · : • ·o :._._ •~ •• • ,,', • the decea-p-ed, .. . · He ....... -saw .. thEf rmpellant . -. cut off the right ar.m. ·- of the dece~sed and saw ano,,iter person hit ·clle .mouth of the deceas.~d. .with,·.. a,~.. ~1amm-e;r~~ ,,. _.:_ •'·-'· .. .. ·, ::.:--.,. '."'.,,...•atta"C:kers .. ... _· . ..:.~....::.... 1,•,;Th-e ~., ·yrere' demanding . ,,. . ·•. ~ ,. .money from. the deC8ased·, ----·T.J!:i~t--d'~ceased v,as a brother of·. the appellant, P/1~i::wah:_:there;~·fox:.~:iii-o~eti.we am when re left.he saw .the deceased :_-:-,,.' ::-:.,._·;;_·..,.~;;.::::t._• ./ . . ~~--· . . .},~,t had been killed. ~ { .._, ,1.>i~~~--:~'.;~=~- ~:~ · .. > . . . ." •· -~· ·.- .•' ·, ... --:-; ::<' .. .• ;.-. ,,.. . --~ -~ ·.J >-,~PAV.2: :r-~po,~~fecl .·:the ·pia ~J~~~ JJ1e,_ fo:;I.l_qv:vln,g day .to·: :~Ae::. V~~lag~ C,~a{rf!J.an :Elias•:.(: ~f~2r{ ;.f;)-riltated ~1tto~fif advi~e9- t<r ·~:j. .. ref)o~t_:~o t~e }?oJ..,Lce., __ Ha. went, to thefPolice Station and was ~~ht tb·-~a, Juli· :PoTic~·- St"at'ic;ii_,:~:.Sa11ya.,~Po1fce· ·~itatio.n promis_e9,~'V-_dia,. 11o·ii turn :u,p_ apd th-en P ,We2 we.µt ::t9. }er.A;:-.l?ollce .P~~~c~.:n_,J?:W_._6._:

~ulu __ ~to~s-~iga~~!:• :.. : . .... , ~• !) ,. , • .. ' • -.,' ,f I ( •, "' i •.· •.. • •/ .•• _.•_/2 •, 2 The deceased body was eventually discovered in a trench about 11 feet fro£.1 the deceased' s house. The body was decomoosed, one ar1.11 i,,vas rnissi.ng · and two front teeth 1':nocked ~ o~~ off. The doctor carried , (..a post-morten1 exa.cecination and stated tba,t the cause of death was due to an assault. The ekull, prcsumc:.tl-y' .-,~{~;,~t'~~ the head,was severed from. the body. P.W.2 was positive he identified'all the six accused persons, as they ·were a 11 fellow villagers. However ii; appeared that P.W.2 made his police statemen~ on 11.).81, ... whereas the deceased body was discovered on 14.2.80. The Village Chair.man Elias was not called to corroborate P.W.2 1 s allegation that he reported the .matter to.Elias the day following the incident, nor was one Si.mbo, with whom P.W.2 alleged he went to report to Moshi Police Station called to corroborate ?.W.2 on that point. Mr. Mu.sei contended that· theA; one good reason to disbelieve ? .W .2 would be the delay which occured before F.W.2 reported the incident to the authorities. Mr. Mu.sei contended that P.W.2 ' must have lied when he said that he had rerJorted to Chairman Elias and. that he then, as directed, reported to the Moshi Police Station, as neither Elias nor Sifilbo had come forward to confirm those

allegations. It is quite true that the Republic ought to have called these t 1No witnesses, or offered them for cross-exaw.ination to the defence. However, after a consideration of all the circu.mstances, we do not think '\ that the failure to call Elias and Simbo in any · seri,)US - way impairs the evidence of l'.W.2 as·to wh2,:b he did after having wi tnes.sed the incident. Vie believe I' .Vi .2 did hear the alarm and went to enquire and saw what ha11pened that material night. P. \} .3, another neighbour of i'. Yi .2, also heard alarms ema,nati11g from the a.cc eased' s house that same night• The trial judge was fully aware of the danger of convicting on thG evidence of a sole witness, although ho was satisfied that P.W.2 was truthful and not mistaken • . . . . . · . ·• ... /3. - 3 - The judge was prcparod to convict only if I' .W.2 was corroborated. There was no corroboration of' P.W •.2 as against the other 5 co-accused, and the,y were acquitted. In the case of the appellant, the judge found co~roboration in the ap_pellant 1 $ own statement. The a:1~1eJ.lant, in an unsworn statement~ adopted an extra judicial statement •e had t._fga: justice of the peace. In that statetnent the appellant said that the deceased was killed in his presence by certain people whom he namedg on the material night~ He further stated that he was threatened by one of those who had killed to remain

sileht and was advised to leave which he did and he stayed away for 6 months. The judge fou.ne_ that was corroboration of P.Wo2 1 s evidence as far as the appellant was con.c0rned and convicted the a_pJG11ant accordi11.gly. We have duly considered the ai~gu.01ents put forward by trr. nu.sei bn behalf of the api)el1ant. v7e arc satisfied the..t the judge was justifi0d. in convicting the appellant on the evidence of the charge of .nrurder .• I / /,_: -~Ii'. {"t ' A. M1JSTJi.FA JUSTICE OF Ar.;::·EAL L • M • WUJ{,bJ!IE JUS'JIICE OF A:V:i?EAL R.H. KISANGA JUS,TICE OF APPEAL --- - 4 I certify the:!; this is a true copy of the original It tu/(lw Mo, ( L • 1~ • A • KYANDO) REGIS.THAR