SIJALI JUMA KOCHO v REPUBLIC 1994 TLR 206 (CA)

 

SIJALI JUMA KOCHO v REPUBLIC 1994 TLR 206 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga Ag CJ, Omar JJA and Lubuva JJA

CRIMINAL APPEAL NO. 22 OF 1994 B

7 October, 1994

(From the decision of the High Court of Tanzania at Morogoro, Bahati, J)

Flynote

C Criminal Law - Defence of alibi - Whether prior notice is required.

Criminal Practice and Procedure - Identification of accused - Identification where

offence was committed at night.

-Headnote

D The appellant appealed against the conviction for murder by the High Court on

the ground that the conviction was largely based on the uncorroborated dying

declaration of the deceased. The appellant further contended that the conditions

obtaining at the time of the incident did not favour correct identification of the

appellant as being one of the bandits who invaded the house of the deceased in the

night. E

Held:

(i) The conditions in the house did favour correct identification of the

appellant as the tube light under which a person could read was sufficiently bright to

enable the deceased to identify the appellant who was well known to him before the

incident; F

(ii) Prior notice of the defence of alibi is required under the law;

(iii) The appellant was under no legal obligation to prove the alibi but in

the fact of the allegations made against him one would reasonably expect him to call

the person he claims he was with at the time of the event.

Case Information

G Appeal dismissed.

No case referred.

Mselem, for the appellant.

Korosso, State Attorney for the respondent.

[zJDz]Judgment

H Kisanga, Ag CJ, delivered the following considered judgment of the Court:

The appellant was convicted of murder contrary to s 196 of the Penal Code and

sentenced to death by the High Court (Bahati, J) sitting at Morogoro. He has now

appealed against both conviction and sentence. I

1994 TLR p207

KISANGA Ag CJ

The facts of the case were that a group of ten bandits broke into a shop at about 1 A

am and seriously attacked the deceased and PW3 who were sleeping there after

which they made away with money and shop goods. The two victims were taken to

hospital where the deceased died about a week later. PW3 survived to tell the story of

what happened. B

The conviction is based largely if not wholly, on a dying declaration of the deceased,

consisting of what he is reported by PW3 to have said at the time of the invasion that

night, and by PW1 while he (the deceased) was at the hospital. PW3, the owner of

the shop which was broken into, testified that after the bandits had entered they

demanded money. He obliged and gave them Shs 67,000/= which C was in two lots.

However, they were not satisfied and so they started to attack him and the deceased.

They were in two groups: One group consisting of five dealt with the deceased while

the other group was on PW3. In the course of the attack D the deceased remarked

`Even you Kocho my relative of Manzese are killing me?' PW1 who was attending

the deceased at the hospital testified that deceased told him that it was his friend

Kocho who had injured him. The appellant in his defence denied the charge and put

up the alibi that on the material night he was far away at the home of his uncle. E

The trial judge rejected the defence of alibi. He relied on the dying declaration and

convicted the appellant. He was satisfied that the dying declaration was sufficiently

cogent to warrant the conviction even without its being corroborated. F

At the hearing of this appeal the appellant was represented by Mr Mselem, learned

advocate, while the Republic was represented by Miss Korosso, learned State

Attorney. Mr Mselem filed and argued only one ground essentially attacking the trial

judge for basing the appellant's conviction on the uncorroborated dying declaration of

the deceased. He contended that the conditions obtaining at the time of the G

incident did not favour correct identification of the appellant as being one of the

bandits. Miss Korosso strongly resisted the appeal.

The Trial Judge accepted the evidence that there was a tube light on in the room H

where the bandits carried out their nefarious activities that night. The tube light was

coloured but was sufficiently bright for a person to read under it. There was abundant

evidence that the appellant and the deceased were long time friends. Indeed the

appellant conceded that he went to school with the deceased in Morogoro and he

visited the home of the I

1994 TLR p208

KISANGA Ag CJ

A deceased in Moshi. The bandits did not start attacking the inmates immediately

after entering the room. They demanded money first and PW3 dished out Shs

67,000/= in two lots. It is only after they were dissatisfied with this amount that they

started to attack PW3 and the deceased.

B We are of the view that these conditions did favour correct identification of the

appellant. The tube light under which a person could read was sufficiently bright to

enable the deceased to identify the appellant who was well known to him before the

incident.

There was evidence that the bandits flashed torch light in the eyes of the inmates C

in order to dazzle them, and Mr Mselem contended that this must have prevented the

deceased from identifying his assailant or assailants. We cannot agree. Flashing torch

light did not go on all the time. For instance, there was the period between the time

the bandits demanded money and the time PW3 handed to them Shs 67,000/=in two

lots. The bandits cannot have been flashing torch D lights in the eyes of PW3 all this

time. They must have paused for some time to enable him to pick up the money from

wherever he had kept it and hand it over to them. During such interval the deceased

could have identified the appellant as one of the intruders. There is other evidence

which shows that flashing of the torch light did not dazzle the inmates to the extent

of making it impossible for them to see and appreciate what was going on. PW3 said

that the group of bandits who E entered the room that night numbered ten. If under

the conditions obtaining in the room he could see and count the number of invaders,

the same conditions should enable the deceased to identify the appellant whom he

knew so well before. Of F course, unlike the deceased, PW3 could not identify the

bandits because, he said, they were strangers to him; he did not know them prior to

the incident.

G Mr Mselem emphasized the view that the conditions were not favourable for

correct identification considering that the inmates must have been suddenly

awakened from deep sleep at 1 am, the events were taking place in rapid succession

and that the inmates were very frightened. Once again we are not H persuaded by

this argument. As pointed out earlier, the attack did not start immediately after the

bandits had demanded money and were given what they considered was not enough.

During such demand for and handing over of money the deceased, with the aid of the

tube light, would be able to identify the appellant whom he knew so well as a long

time friend. I

1994 TLR p209

KISANGA Ag CJ

As submitted by Miss Korosso, the appellant's conduct points to his guilt of the A

offence charged. The appellant and the deceased were long time friends and, indeed

according to the appellant, that friendship continued until the death of the deceased.

There was ample evidence that after the deceased was injured the appellant enquired,

though sarcastically, and got to know that the deceased was B hospitalized but he

never went to see him there even though he told lies that he visited him twice at the

hospital. It is hard to see how in ordinary circumstances the appellant would have

forsaken his long time friend at such a critical time. This point is brought out even

more clearly when the appellant told lies that he visited the deceased twice at the

hospital for this is what he should indeed have done but he did not. C

There was credible evidence that after the deceased died and during investigation into

the case, the police were searching for the appellant but as they approached him he

ran away and disappeared, only to be arrested two days later. It is only D reasonable

to conclude that he ran away because he knew that the police wanted him in

connection with this offence which he had committed. Not only that. There was

evidence also that the appellant was known by the name of Kocho by which the

deceased is reported to have identified him on the fateful night. Indeed it is the E

name under which the appellant was charged and which appeared throughout the

proceedings respecting him right up to this court. Prosecution witnesses consistently

referred to him as Kocho and they were not cross-examined. Strangely enough,

however, the appellant in the course of his defence disowned F that name. One

wonders why. In normal circumstances one does not disown one's name. The only

reasonable inference to be drawn is that the appellant did so as an afterthought in an

attempt to avoid any association of his identity with the death of the deceased. G

We are satisfied that considering all the circumstances of the case the charge against

the appellant was proved sufficiently and that the appellant's denial cannot cast any

reasonable doubt on his guilt. In his defence of alibi the appellant had claimed that on

the material night he slept at the home of his uncle. He had given H no prior notice

of this alibi as required under the law. Admittedly he was under no legal obligation to

prove the alibi but in the face of the allegations made against him, one would

reasonably expect him to call the said uncle to bear him out. However, the appellant

declined to do so despite suggestions to him in cross-examination. In these

circumstances, therefore no weight can be attached to his alibi, and the I

1994 TLR p210

A learned Trial Judge rightly discounted it. In the result the conviction was justified

and we can find no ground to interfere. Accordingly the appeal is dismissed in its

entirety.

1994 TLR p210

C