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
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
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
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
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.