IN THE COURT OF APPEAL OF
AT ARUSHA
(CORAM: LUBUVA, J.A., RUTAKANGWA, J.A., And
KIMARO, J.A.)
CRIMINAL
APPEAL NO. 154 OF 2003
ELISANTE SIMON @ KILINGANYA ..………………….
APPELLANT
VERSUS
THE REPUBLIC
…….…………………………………… RESPONDENT
(Appeal from
the conviction of the High
Court of
Tanzania at Moshi)
(Munuo,
J.)
dated the 20th
day of August, 2001
in
Criminal
Sessions Case No. 27 of 1997
--------------
JUDGMENT
OF THE COURT
20 September & 4
October 2006
KIMARO, J.A.:
Elisante
Simon alias Kilinganya, the appellant, together with Charles Saidi Mrutu were
jointly charged as the 1st and 2nd accused respectively,
with the offence of murder contrary to section 196 of the Penal Code. They were alleged to have intentionally
killed Jumanne Maganga at Maore
Village
At the
trial it was not in dispute that the deceased, Jumanne Maganga was seriously
assaulted on 26.05.1996 and it was the injuries suffered from the assault that
caused the death of the deceased. The
post mortem examination report (Exhibit P2) showed that the deceased died from
haemorrhage and shock. The body had a
closed fracture on the right mandible and haemotoma dislocation of the right
shoulder, fractured 1st, 2nd and 3rd ribs and
haematoma in the right lung.
The issue
before the trial court was who killed the deceased and whether the killing was
done with malice aforethought.
The case
for the prosecution was that on the fateful day, Janet Gadi (PW2) and one
Makusanya who was not traced to testify were walking from Maore to Gwaya. On the way she met the appellant holding a
large piece of wood (gongo). The appellant is the uncle of PW2. He is a brother of her father. PW2 asked the appellant the purpose for
having that piece of wood who replied, “let’s go on”. Then PW2, the appellant and Makusanya walked
together until they reached a place called Mnazi. The deceased was standing at that place. The appellant stopped at the same place and
told PW2 and Makusanya to walk ahead. PW2
walked to their house at Gwaya.
As PW2 was
narrating her encounter with the appellant to her mother, their neighbour,
Godson Stephano, (PW1) knocked at their door.
He informed the mother of PW2 that the deceased was seriously injured
and assistance was needed to take the deceased to hospital. The father of PW2 was not at home. PW2 and her mother went to the residence of
PW1 where PW2 saw the deceased lying on a bed with injuries on his right neck
and the right shoulder and was bleeding from the mouth.
The
testimony of PW1 was that the deceased dragged himself to his residence at
around midnight. He knocked the door. When he opened it, he noticed that the
deceased was seriously assaulted. The
deceased informed PW1 that it was the appellant and Charles Mrutu who assaulted
the deceased at Mnazi and that he had seriously been injured on the right
shoulder, neck and the jaw. The areas
mentioned by the deceased were swollen.
PW1 also said that he saw the deceased bleeding from the mouth. His next move was to awaken his neighbours
for assistance so that the deceased could be taken to Bombo Hospital
Kalaghe
Ally (PW3) is one of the neighbours who offered assistance to PW1. He too, saw the deceased at PW1’s
residence. The deceased repeated to PW3
that he was assaulted by the appellant and Charles Mrutu. He also saw the deceased with a swollen jaw,
neck and shoulder on the right side. PW3
confirmed that the death of the deceased occurred on the way to Bombo Hospital
On his
part, the appellant gave the defence of alibi.
He said on the date the offence is alleged to have been committed, he
went to Gonja Maore for the burial of his mother.
The
appellant was convicted on the basis of the words spoken by the deceased to PW1
and PW3. The court was satisfied that
the words amounted to a dying declaration in terms of section 34 (a) of the
Evidence Act (Cap 6 R.E. 2002). The
court was also satisfied that the
evidence of PW1, PW2 and PW3 corroborated the dying declaration. The trial Judge said there was water tight
evidence pointing conclusively to the guilt of the appellant in line with the
decision of the Court in Ally Bakari and
Pili Bakari v. R [1992] TLR 10.
The
appellant was aggrieved with the conviction and sentence, hence this appeal
before us.
Mr. Ralph
Njau, learned Counsel, as he had done at the trial in the High Court
represented the appellant in this appeal. The respondent Republic was represented by Mr.
J. R. Kaishozi, learned State Attorney.
Two grounds
of appeal have been filed. The first one
faults the credibility of the witnesses and the second one doubts whether the
words spoken by the deceased amounted to a dying declaration.
In
supporting the appeal, Mr. Njau opted to argue the two grounds together. Although his submission was long and somewhat
repetitive in parts, in essence he seemed to focus on the credibility of the witnesses, the identification of the
appellant and the dying declaration.
In his
argument Mr. Njau submitted that the witnesses, namely PW1, PW2 and PW3 were
not credible witnesses because of inconsistencies and doubts in their
evidence. Starting with PW1, he said the
evidence of this witness was suspicious because he failed to disclose the dying
declaration of the deceased to the neighbours from whom he asked for
assistance. Counsel also contended that
the alleged dying declaration was suspicious because of the critical condition
of the deceased and the answer by PW1 in cross-examination that the deceased
had a faint voice when he mentioned his assailants. Furthermore Mr. Njau said the evidence of PW2
was weak and unreliable because she only explained how she met the
appellant. It was contended that nothing
in her evidence linked the appellant with the death of the deceased. With regard to the evidence of PW3, although
Mr. Njau challenged this evidence as suspicious and unreliable he was not in a
position to give reasons. He only
insisted that PW1 did not tell PW3 of the dying declaration of the deceased.
Another
reason why the alleged words spoken by the deceased were not a dying
declaration is that the words were not reduced to writing. He strongly argued that if they were a dying
declaration the same should have applied for the conviction of Charles Saidi
Mrutu who was acquitted. He faulted the
trial judge for convicting the appellant on the basis of previous grudges
between the appellant and the deceased.
According to him, those were extraneous matters because the appellant
and the deceased were reconciled, and they shook hands marking the end of their
grudges.
He summed
up his argument by saying that it was improper for the appellant to be
convicted on the basis of the dying declaration of the deceased because it was
unreliable. Corroboration was
lacking. The evidence of PW2 did not
corroborate the dying declaration.
The learned
State Attorney also supported the appeal but for different reasons. However, unlike Mr. Njau, he admitted that
the words were a dying declaration which lacked the necessary legal elements in
order for it to form the basis of a conviction.
He
contended that all the circumstances of the case had to be considered. The fact that the deceased woke up PW1 at
midnight, the identification of the appellant by PW2 was suspicious and
doubtful. The trial judge should not
have convicted the appellant on that evidence.
The learned State Attorney also sought to fault the judge for admitting
the evidence of PW2 after discrediting the evidence of PW4 on the sketch plan
of the scene of crime, which PW4 said was prepared with the assistance of
PW2. At this juncture we wish to remark
that this argument is unwarranted because the trial judge said categorically
that the conviction of the appellant was based on the dying declaration and the
evidence of PW2. In any event if PW4 was
not a trustworthy witness that did not necessarily make PW2 an unreliable
witness.
While Mr.
Kaishozi conceded that the dying declaration needed corroboration as a matter
of practice however, he maintained that in this case corroboration was
lacking. He cited the cases of Africa Mwambogo v. R 1984 TLR 240 and Raymond Francis v. R 1994 TLR 100 to
show that the appellant was not properly identified. The learned State Attorney supported Mr. Njau
in his prayer to have the appeal allowed and the conviction and sentence
quashed and set aside.
It is
common ground that the appellant’s conviction is grounded on a dying declaration. This makes it convenient for us to start with
the second ground of appeal relating to the dying declaration. Mr. Njau doubts the status of the words
spoken by the deceased to PW1 and PW3.
PW1 said that after the arrival of the deceased at his house, he saw him
with serious injuries. The deceased told
him that the appellant was one of his assailants. The words were repeated to PW3.
Section 34
(a) of the Evidence Act, [Cap 6 R.E. 2002] provides:
34. Statements, written or oral of
relevant facts made by a person who is dead … are in themselves admissible in
the following cases:-
(a) when the statement is made by a person as to
the cause of death or as to any of the circumstances of the transaction which
resulted into his death, in cases which the cause of that person’s death comes
into question, whether the person who made them was or was not, at the time
when they were made under expectation of death, and whatever may be the nature
of the proceeding in which the cause of death comes into question.
Before the
trial court the issue was who caused the death of the deceased. PW1 and PW3 adduced evidence that they saw
the deceased seriously injured and the injuries led to his death. The post mortem examination report (Exhibit
P3) supported the evidence of PW1 on the parts of the body which the deceased
said were injured. They also testified
that the deceased had told them that the appellant was one of his assailants.
The words
spoken by the deceased to PW1 and PW3 in our view amounted to a dying declaration. They explained how the deceased met his
death. He was assaulted. The law says that a dying declaration can
either be written or oral. The decisions
of the Court in Hamisi Said Mchana v. R 1984
TLR 319 and Ally Bakari and Pili Bakari
v. R 1992 TLR 10 are relevant on this point. The
argument by Mr. Njau that the words were not a dying declaration because
they were not written is baseless and misconceived.
The rule of
practice is that by its own nature, evidence of a dying declaration falls into
the category of evidence in which material corroboration is necessary before it
can be accepted and acted upon. See the
case of R v. Joseph Ngaikwamo 1977
LRT No. 6.
The
question is whether the dying declaration was corroborated. The evidence of PW1, PW2 and PW3 was under
attack for being weak and suspicious, hence not credible evidence. The suspicion is based on the condition of
the deceased, that he was in a critical condition. It was doubted whether he was in a position
of uttering the words. The distance from
where the offence was committed to the residence of PW1 was, according to Mr.
Njau and Mr. Kaishozi relevant in assessing the reliability of the dying
declaration.
With
respect, to both Mr. Njau and the State Attorney, there is no dispute that the
deceased walked to the house of PW1 after being assaulted. The distance in this respect is therefore,
immaterial. If he was able to walk, he
had the strength to talk. The alleged
weakness in relation to the evidence of PW1 because of his failure to tell PW2
and PW3 of the dying declaration of the deceased, is also untenable. This is so because we are not told how that
affected the dying declaration. From
what can be gathered from the evidence of PW1, his concentration at that time
was on the health of the deceased. His
concern was to save the deceased’s life.
He wanted to have him rushed to hospital. That is why he insisted on getting
assistance. It is only unfortunate that
his expectation was not met. The
evidence of PW1 has been doubted because the deceased was suspected to be in a
critical condition. The evidence of PW1
that the deceased’s voice was faint is taken to have confirmed that
position. This possibility is ruled out
because the deceased managed to walk to the residence of PW1. Incidentally, PW1 did not even tell the court
that he failed to hear the words uttered by the deceased. He heard the words. The problem which PW1 noted was that his
voice was faint. This is a situation which can be understood. He was injured and walked in pain for a
distance of about 700 paces to reach the residence of PW1. At the time PW3 went to the house of PW1, the
deceased was still able to talk. He told
PW3 the same words. The post mortem
examination report (Exhibit P2) supports the dying declaration of the deceased
on the parts of the body which were injured – the right shoulder, the neck and
the jaw
The
inconsistency pointed out in the evidence of PW1, PW2 and PW3 is the failure by
PW3 to notice that the deceased was bleeding in the mouth. Our view is that it all depends on what PW3
concentrated on when he saw the deceased.
In any event his failure to notice the bleeding mouth does not go to the
root of what the deceased told PW1 or PW3 for that matter. The inconsistency between the evidence of
PW1, PW2 and PW3, we think, was minor and did not affect the credibility of PW3
– See Herman Henjewele v. R CAT
Criminal Appeal No. 164 of 2005 (Mbeya) (unreported).
Lastly is
the evidence of PW2. Her evidence was
attacked for possible mistaken identity of the appellant. The State Attorney’s argument was that PW2
could have mistaken the identity of the appellant because the offence is
alleged to have been committed during the night when the circumstances for the
identification of the appellant were difficult.
With respect, there was no mistaken identity of the appellant. Janet (PW2) was very firm in her
evidence. The appellant was her uncle, the brother of her
father, a person who was known to her before, and for a very long period. The appellant walked with her from Maore
towards Gwaya. They only parted company
when the appellant stopped at Mnazi and told her to walk on. In such circumstances, it is our view that
all possibilities of mistaken identity are eliminated. The case Waziri
Amani v. R [1980] TLR 250 serves as good illustration.
At this
stage we shall examine closely the evidence of PW2 in order to ascertain
whether it corroborated the dying declaration.
PW2 said in her examination in chief:-
When
we reached Mnazi where the deceased was Accused No. 1 stopped there and told us
to go ahead. Makusanya and I walked
on. When I arrived at Gwaya I told my
mother how we encountered Accused No. 1 carrying a piece of wood and that the
accused retorted – “kimbieni”. So Makusanya and I ran fast and when I
reached home I narrated the incident to my mother … As I
was telling my mother how we met Accused No. 1 carrying a piece of wood, the
brother of the deceased, PW1 knocked on our door and told my mother that the
deceased had been critically injured by bandits. PW1 is a neighbour, within calling distance.
When she was cross-examined by Mr. Njau, learned counsel
for the appellant, she said:-
On
that night Makusanya and I had come from Maore where I went to buy
kerosene. Accused No. 1 walked along
with us from Maore to Mnazi where we found the deceased. These (sic) Accused No. 1 chased us away
saying “run”. So we ran and when I
reached home I told my mother so.
From the
extracts of her evidence, PW2 saw the appellant with a big piece of wood (gongo).
The appellant stopped at Mnazi where the deceased was also
standing. He ordered PW2 and Makusanya
to run. Later the deceased walked in pain
to the residence of PW1. He was seen by
PW1 and PW3 with the injuries. He told
the witnesses that the appellant was one of his assailants and he died sometime
later. The post mortem report confirmed
that it was the same injuries that led to the death of the deceased. The evidence of PW2 under the circumstances
sufficiently corroborated the dying declaration.
In Damian Ferdinand Kiula @ Charles v. R
(supra), the trial judge rejected the dying declaration of the deceased as
providing the motive of the appellant’s attack on the deceased. He said it was weak and unreliable on account
of contradictions between the evidence of PW3 and PW4. The contradictions were that one of the
witnesses said the deceased gave reasons for the attack while the other did
not. This Court said there were no good
reasons for regarding the dying declaration as weak and unreliable. The Court said:-
It
was recorded by the police officer who had no reason to lie against the
appellant. The fact that PW4 did not
hear the deceased give reasons cannot be explained solely on the basis that the
reasons recorded by PW3 were invented.
Indeed the dying declaration appears very authentic as it contains a
painful lament of a dying mother – “who will look after my children”. These moving words could not have been
invented by PW3. We are firmly of the view that the dying
declaration provides the motive for the killing of the deceased.
Similarly,
in this case the evaluation of the evidence of the three prosecution witnesses
namely PW1, PW2 and PW3 on whose evidence the trial court relied to ground the
conviction of the appellant leaves us with no doubt at all on their
credibility. The evidence of PW2 that he
saw the appellant with a gongo and he
remained at Mnazi with the deceased provides an undoubtful link with the
appellant on the commission of the offence.
The facts of the cases of Africa
Mwamabogo v. R [1984] TLR 240 and Raymond
Francis v. R [1994] TLR 100 and R v.
Joseph Ngaikwamo (supra) cited by the learned State Attorney are
distinguishable from the facts of this case.
In these cases there was no corroboration and the circumstances were
difficult for reliable identification.
In the
instant case, we are satisfied, as the trial judge was, that the evidence of
PW2 amply corroborated the dying declaration.
The appellant was, on the evidence conclusively linked with the killing
of the deceased. The conviction was
therefore justified. For these reasons,
we find the appeal has no merit. It is
dismissed in entirety.
DATED at ARUSHA this 4th day
of October, 2006.
D. Z. LUBUVA
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
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