NUHU SELEMANI v REPUBLIC 1984 TLR 93 (CA)

NUHU SELEMANI v REPUBLIC 1984 TLR 93 (CA)

Court Court of Appeal of Tanzania - Tanga

Judge Mustafa JJA, Makame JJA and Kisanga JJA

October 17, 1984

B CRIMINAL APPEAL 5 OF 1984

Flynote

Evidence - Circumstantial evidence - Voice identification by itself in a murder case -

Whether C sufficient/reliable.

Evidence - Circumstantial evidence - Exhibit seized in appellant's absence - Neither

shown to appellant nor asked of it - Whether sufficient evidence to link it to

appellant.

-Headnote

The appellant had been convicted of murder based on purely circumstantial evidence.

The first, identification of the voice of the appellant on what he had said to the

deceased; and the second D identification of blood stained shirt seized in the

appellant's house. On appeal it was considered whether the circumstantial evidence

in the case did irresistibly lead to the inevitable inference that it was the appellant

who killed the deceased.

E Held: (i) It is notorious that voice identification by itself is not very reliable;

(ii) the evidence by the prosecution to link the shirt to the appellant was

insufficient.

F Appeal allowed.

No case referred to.

S. Mwale for the Republic

[zJDz]Judgment

G Mustafa, J.A. read the following considered judgment of the court: The appellant

was convicted of murder on purely circumstantial evidence. On the material day the

appellant and the deceased had H a little quarrel in a pombe shop, but the quarrel

was settled more or less amicably, and each went his separate way. This was

according to the evidence of P.W. 3 Maliki Bakari who was a crucial witness for the

prosecution. According to P.W. 3, later that evening, he was in his shop serving

customers, and at about 8.30 p.m. just before he was to close, the deceased appeared

and wanted to I purchase some cigarettes. There was a light in the shop. As he was

taking out some cigarettes to sell to the deceased, he

1984 TLR p94

KATITI J

heard a voice saying "Aisay, umenitoroka. Ulifikiri sintakuona." P.W. 3 stated that he

could A recognize the voice as that of the appellant whom he knew well.

Immediately on hearing that statement, the deceased ran off, without his cigarettes.

P.W. 3 thereupon assumed that the appellant had run off after the deceased.

Later on the same night, an alarm was raised, and P.W. 3 discovered that the dead

body of the B deceased was lying on the road some distance from his shop.

P.W. 3 told the assembled villagers of what he had seen and heard and suggested that

the killer must have been the appellant, and a search was made for the appellant. C

P.W. 1 and P.W. 2, both police officers, arrived at the scene. P.W.1 went to the house

of the appellant. The appellant was absent, and PW.1 searched the house. He found a

shirt which appeared to have blood stains. He seized it. He asked the appellant's wife

who was present to whom did the shirt belong. She said it was the appellant's. Later

blood samples of the appellant and the deceased D were taken, and they, together

with the shirt, were sent to a Government Chemist for analysis. It was discovered that

the blood of the deceased and the appellant and the blood stains on the shirt all

belonged to the same group. E

On their way back to the police station from the village, the police vehicle in which

were P.W. 1 and other police officers and village officials was stopped by the

appellant who gave himself up stating that he had heard that the villagers had

implicated him in the killing, but that he had not done so, and he was therefore

surrendering himself to the Police for proper investigation, presumably. F

The prosecution case depends on two important circumstances. The first would be the

voice identification of what the appellant was alleged to have said, as a result of

which the deceased suddenly ran away. In view of the fact that the earlier dispute

between the appellant and the G deceased was settled amicably, it is difficult to

understand why the appellant should have said "you ran away from me", or "that I

could not trace you". Also it is notorious that voice identification by itself is not very

reliable.

As regards the shirt with blood stains, it is difficult to conclude that it must have been

the H appellant's. The shirt was seized in the appellant's absence, and the wife said it

was the appellant's shirt, also in his absence. Thereafter it was never shown to the

appellant, nor was he asked if the shirt was his. There was insufficient evidence to

link the shirt to the appellant on the evidence adduced by the I

1984 TLR p95

A prosecution. It was also not established whether the blood stains on the shirt were

extensive or otherwise.

In our view the circumstantial evidence in this case does not irresistibly lead to the

inevitable inference that it was the appellant and nobody else who had killed the

deceased, in view of the B lacunae in the evidence adduced by the prosecution.

Mr. Mwale for the Republic eventually conceded that he is unable to support the

conviction.

In the result we allow the appeal, quash the conviction, set aside the sentence of

death imposed on C the appellant, and order that he be released forthwith unless

otherwise lawfully detained.

Appeal allowed.

1984 TLR p95

D