B Kisanga, J.A., delivered the following considered judgment of the court:
This is an appeal against conviction for murder contrary to s 196 of the Penal Code, and the sentence of death imposed by the High Court (Mroso J) sitting here in Arusha. The appellant is C represented by Mr Sabaya, Advocate and the respondent Republic is represented by Mr J D Mono, Senior State Attorney.
The facts of the case may be summarised briefly as follows: The appellant is a brother of the D deceased woman, and their houses were in the neighbourhood of each other. Both of them were disputing over the ownership of a piece of land, and this dispute was pending in Court when this incident happened.
E On the material night the deceased was sleeping in her house when she suddenly noticed that her house was on fire and she tried to escape. The prosecution charged that as she got out, the appellant attacked her with a knife inflicting a number of stab wounds on her. She died in hospital only shortly afterwards as a result of the stab wounds.
F The appellant's defence was a mere denial coupled with a claim that on the material night he was sleeping in his house and did not go to the home of the deceased. The High Court rejected that defence and accordingly convicted the appellant as charged.
G Mr Sabaya filed and argued three grounds of appeal alleging inadequate identification of the appellant at the scene of crime, basing the appellant's conviction on uncorroborated evidence and shifting the burden of proof onto the appellant. None of these grounds, however, has any merit. On the issue of identification there was the evidence of Godfrey Lembris (PW1) and Solomon Nicolaus H Ukeled (PW2) who testified that they saw and identified the appellant at the home of the deceased. PW2 added that he saw the appellant actually stabbing the deceased and when the appellant saw him approaching the scene he (the appellant) ran away. Both witnesses who knew the appellant well before the incident, stated that they identified the appellant through moonlight and also through the I fire from the burning house of the deceased and that
of PW1 which had also gone on fire. Indeed PW1 said that as he went out of his house he saw and A identified the appellant who was only three paces away.
Mr Sabaya submitted that there was conflict between the evidence of PW1 and PW2 on the one hand and that of PW3 (Christopher Laizer) on the other. PW3 had stated in his examination-in-chief B that there was no moonlight on the material night, contrary to PW1 and PW2 who said that there was moonlight. Counsel, therefore, contended that such conflict seriously weakened or rendered unreliable the prosecution evidence respecting the means of identifying the appellant at the scene of crime that night. The Trial Judge considered this issue. His views was that even if there was no C moonlight that night, there was light from the burning houses by which the appellant was adequately identified by the witnesses. While endorsing that view, we are prepared to go further. It is noted that PW3 in his cross-examination by the prosecution is recorded as saying that he could not quite D remember if there was moonlight that night. We think that this fact could provide no good reason for discounting or reasonably doubting PW1 and PW2 who positively stated that there was moonlight on the material night. Had PW3 been consistent and maintained his earlier position that there was no moonlight that night, the view might have been different. E
Nor did the appellant's conviction rest on the evidence of visual identification alone. He was based also on a number of pieces of circumstantial evidence. There was the dying declaration of the deceased who told PW1, PW2 and PW3 at the scene that it was the appellant who had injured her. F Later on at the hospital PW6, a police officer, also recorded her statement to the same effect.
There was evidence that during the fracas that night the deceased and her sons, PW1 and one Julius, raised the alarm as they called for help and neighbours, including PW3, went to the scene in answer to such an alarm. However, the appellant who was also a neighbour did not show up. One G wonders why he did not? When the police called on him that same night and asked him to come out of his house after they had duly identified themselves, he refused to open the door until the police threatened to break it. The inference to be drawn is that the appellant declined to answer the alarm or to open the door because he knew that he had done wrong and he was now afraid of the H consequences.
What is even more suspicious is that upon coming out of his house, his right palm was stained with blood which appeared to be recent but on being asked how he got it he kept quiet. Mr Sabaya I submitted that
A the Court was not entitled to view the appellant's silence as something that went against him. He contended that to require the appellant to explain how he got his palm stained with blood amounted to shifting the burden of proof to the defence. With due respect to the learned Counsel, we think that such criticism is unjustified. Once it was shown that the appellant's palm was stained with blood at a B time when murder involving stab wounds had just been committed in the neighbourhood, and no doubt suspicion was mounting high all over the place, one would expect the appellant to explain how he got his palm stained with blood; certainly it was in his best interest to do so. It was odd, however, C that in the face of such circumstances he kept quiet when asked about it. We think that the Trial Judge was perfectly entitled to draw the inference that the appellant's silence could not be consistent with his innocence.
And lastly, there was the evidence of bad blood between the appellant and the deceased on account D of a dispute over a piece of land and that the dispute was pending in Court when the killing occurred. That would provide motive for the appellant to eliminate his rival.
We are satisfied that all this evidence amply demonstrated that appellant's guilt beyond any E reasonable doubt. There is no merit in the appeal which is accordingly dismissed in its entirety.
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