NYIGOSO MASOLWA v REPUBLIC 1994 TLR 186 (CA)

 

NYIGOSO MASOLWA v REPUBLIC 1994 TLR 186 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

CRIMINAL APPEAL NO. 798 OF 1993 F

1 August, 1994

(Appeal from the conviction and sentence of the High Court of Tanzania at Tabora,

Korosso, J)

Flynote

G Criminal Practice and Procedure - Identification of an accused - Identification in

conditions not favourable - Whether reliable.

-Headnote

The appellant appealed against conviction for murder. The conviction was based on

the evidence of the wife of the deceased who was the sole identifying witness that she

identified the accused when their house was broken into by two bandits at night. The

appellant denied ever being at the house of the deceased or slashing H him with a

panga.

Held:

(i) Circumstances prevailing in the room at the time of the attack were not

favourable for proper identification of attackers and the witness never reported

having identified the attacker to the ten cell leader nor to the people who gathered at

the scene. I

1994 TLR p187

Case Information

Appeal allowed. A

No cases referred.

Magongo, for the appellant.

Kaduri, for the respondent.

[zJDz]Judgment

Omar, JA, delivered the following considered judgment of the Court: B

The appellant Nyigoso s/o Masolwa was convicted on a charge of murder contrary to s

196 of the Penal Code and was sentenced to death. He is now appealing. C

PW1 Modosta Luchoga stated that she was at home with her husband the deceased in

old Shinyanga Village on the night of 5 August 1987 when two bandits broke down

their front door and entered, and straight away started attacking her by cutting her

on the head and on the left hand. She fell down and became D unconscious but

before that she said she was able to identify the appellant by the torches each one of

them carried. They flashed their torches straight at her face and the light dazzled her

but the appellant was illuminated on the face by the torch of his colleague and she

was able to identify him as Nyigoso Masolwa the brother of the former wife of her

husband Amos Matiga, the deceased. At that time when E she ran to the front door

her husband dived under the bed and she heard the bandits say `here he is'.

Apparently he was pulled out from under the bed and cut to pieces. When she

regained consciousness after the attackers had gone she F went and reported the

matter to the ten cell leader, one Ngolo Shumbi. She further said that the cell leader

did not ask her who had attacked her. She was feeling severe pains that night that is

why she did not tell the cell leader or any of the persons who had gathered at her

home, who her attackers were. She could not recognise the other attacker. The

appellant whom she identified had put on a red shirt, the other bandit whom she

could not see was wearing a black shirt. G

The rest of the witnesses PW2 and PW3 talked of the dispute between the father of

the appellant and deceased over the bride price of seventeen head of cattle which the

deceased demanded to be given back after he had divorced the sister of H the

appellant. PW2 Leonard s/o Kankutebe who was the acting Divisional Secretary in

Shinyanga was handed a letter by the District Commissioner directing him to collect

seventeen head of cattle from the father of the appellant and hand them to the

deceased as per court order. The handing over was to be done on 6 August 1987. The

deceased died on 5 August 1987 one day earlier. I

1994 TLR p188

OMAR JA

A The appellant in his defence denied over being at the house of the deceased or

slashing him with a panga. He said he was a home on the night of 4 August 1987. He

said he knew about the dispute over bride price and preparations were under way to

pay back deceased's cattle. Mr Magongo learned counsel for the appellant B

submitted that the identification of the appellant by PW1 left much to be desired.

PW1 never mentioned the appellant immediately after the attack. She never reported

having identified the appellant to the ten cell leader or to the people who had

gathered at the scene.

He submitted that PW1 never identified the appellant at all and he quoted the C

following lines in the judgment of the trial court and concluded that they were mere

assumptions. The quoted lines are:

`Believing as I do that each of the two attackers had his own torch and since

they were looking at random to locate the position of the victims it is reasonable to

see the urgency of their part to keep their torch alight all the time. The fact that they

slashed PW1 on the head as well with a D panga they had (were) criminally

disposed to kill PW1 as well so that when she dropped to the ground they had

mistaken her for a dead person. Even if they had not intended to kill PW1 time to

them was very important soon after the accused and the other attacker had got into

the house of the deceased. The possibility of the accused and the other attacker

carelessly E flashing torch light would appear the most reasonable assumption. It is

most likely that in their carelessly flashing the light the accused became exposed to

the blazing torch light held by the other person.'

F These arguments by the Trial Judge Mr Magongo covered in his second ground of

appeal which is `that the finding and the conclusion arrived at by the honourable

Trial Judge in his decision are indefensible both in fact and law.'

G Mr Kaduri learned State Attorney in reply stated that there were two torches, one

was flashed on to the appellant who had already cut her and it was then that she

identified him. Besides, PW1 knew the appellant for quite a long time.

We have gone through the evidence of PW1 the sole identifying witness and are of

the view that circumstances prevailing in that room at the time of the attack were H

not favourable for proper identification of the attackers and therefore the testimony

of PW1 is unreliable in this respect.

We therefore allow the appeal, quash the conviction and sentence, and order that the

appellant be set free unless he is otherwise lawfully held. I

1994 TLR p189

A