C Kisanga, J.A., 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 (Kannonvale PRM Extended Jurisdiction) sitting at same. He has now appealed against both conviction and sentence. In this Court he is represented by Mr Mchami, learned D advocate while the respondent Republic is represented by Mrs M Lyimo, learned Senior State Attorney.
The facts of the case are short although not simple. On the day of the incident the deceased, an old E lady and her husband (PW1) were at their home talking to their visitor (PW2) who had just arrived. Both the husband (PW1) and the visitor (PW2 were inside the house while the deceased was outside. The time was about 4 pm.
F While the conversation between the three was going on, the deceased was suddenly attacked. She sustained a cut wound on her left loin causing haemorrhagic shock ultimately leading to her death only shortly afterwards. The Prosecution's case was that it is the appellant who inflicted the cut wound which caused the death of the deceased.
G The appellant denied the charge and put up an alibi.
The appellant's conviction was based on a dying declaration of the deceased which the Trial Court found to be sufficiently corroborated. However Mr Mchami for the appellant has submitted that the said dying declaration was uncorroborated and that the appellant's defence of alibi was wrongly H rejected.
PW1 and PW2 testified that during the conversation while the two of them were seated inside and the deceased outside the house the deceased was suddenly attacked following which she cried out loudly and mentioned the appellant, her nephew, as her assailant. Both witnesses say they went out I immediately and saw the deceased at a distance running away. PW1 added that he saw the appellant
about fifteen paces away entering his house and holding a panga. PW3, the deceased's sister and A mother of the appellant testified that on hearing the alarm coming from the deceased's house which was about twenty paces away she went out and found the deceased who had sustained a cut wound and who told her that the appellant had cut her with a panga. The deceased repeated this to the B policeman (PW4) who visited her at the hospital and recorded her statement.
That is essentially what constituted the prosecution case against the appellant. However it seems that there is substance in Mr Mohami's submission that the conviction is unsupportable. We think that there are gaps or unsatisfactory features in the evidence which tend to render the deceased's C dying declaration unreliable.
According to the policeman (PW4) and the post mortem examination report, it would appear that the deceased was attacked from the back while facing in the direction of and talking to PW1 and PW2 who were seated inside the house. PW4 said that the deceased told him that upon her attack she D turned and saw the appellant disappearing. That is to say, she only saw the assailant from the back. The question is whether in the circumstances of this case the deceased correctly identified her assailant. It is conceded that the appellant was well known to the deceased prior to the day of the E incident and that the incident itself took place during day-light at about 4 pm. But the attack on the deceased which was sudden and from the back must have caused her great shock, fear and confusion. In such a state of great shock, fear and confusion we think that the deceased's identification of her assailant who was running away and whom she could only see from the back F cannot be all that reliable.
There was evidence that the deceased was aware of some rumours in the village that the appellant had alleged that the deceased practiced witchcraft on him. That may well have influenced the G deceased in coming to a wrong conclusion that she saw and identified the appellant as her assailant who had come to settle scores with her.
The evidence of PW1 which according to the Trial Court corroborated the dying declaration, leaves much to be desired. The witness stated that following the loud cry by the deceased that the appellant H had cut her with a panga he and his visitor (PW2) immediately went out of the house. He saw the deceased at a distance running away and also the appellant entering his house carrying a panga. However PW2 who confirms that he came out immediately following the deceased's cry, did not see the appellant around. Like PW1 he saw the deceased at some distance running away but to use his I own words:
A `I had not seen the attacker that day nor did I see any other person outside there other than the attacked woman.'
Now if PW1 claims to have seen the appellant entering his house while carrying a panga, why was the appellant not also seen by PW2 who observed the incident from the same vantage point? B According to PW2, PW1 did not tell him that he saw the deceased's attacker. The question is: since both witnesses were together, why did PW1 not point out to PW2 that he had spotted the culprit?
According to PW1 he followed the direction taken by the deceased until he reached the police station C and on his return home the children told him that they saw the appellant going away from his house. None of these children was called to testify on this point which was of crucial importance in assessing the veracity and accuracy of PW1 as a witness. The question is: why were these children D not called? And if they were called can one say that they would necessarily support the claim that the appellant went out of his house so soon after the attack on the deceased?
There is no evidence as to whether or not the appellant's house was searched for the panga (the E murder weapon) which PW1 allegedly saw the appellant taking into the house. The panga was obviously relevant because it might have had blood stains which would provide a strong link between the appellant and the attack on the deceased. Then the question is: if the appellant's house was not searched for the panga why was this? And if a search was conducted but no panga was found in the F house, what value can one put on PW1's evidence that he saw the appellant entering his house with a panga?
Then there was evidence that after a while the appellant returned to his house and that PW1 on G seeing him, sent for the police who came to arrest him. The question is: if the appellant had gone out in the first instance what should make him return to the place so soon afterwards? Since the deceased cried out loudly mentioning the appellant as the assailant, the appellant clearly knew that he was then a wanted man. Now if he had managed to escape arrest in the first instance why should H he bring himself back to the obvious danger?
These are some of the matters which in our view increasingly render the evidence of PW1 unreliable. In holding this view we take into account that PW1 is an old man of about seventy years who admitted having poor eye-sight. Although he claimed that this weakness is limited only to his I ability to read, we think that he
was merely trying to play down the problem, having regard to the evidence of PW2 to the effect that A he saw no one else around except the appellant who was running away. We also bear in mind that PW2, being the husband of the deceased, may have exaggerated his evidence. Upon hearing the deceased mentioning the appellant as her assailant, he might have been tempted to embellish his B story by claiming that he actually saw the appellant in order to make it more easily acceptable and hence to ensure that the culprit has been found.
At the commencement of the trial the appellant in terms of 194(4) of the Criminal Procedure Act gave notice of an intended alibi. Consistent with such notice he stated in his defence that on the day of the Cincident he and his brother had left their village in the morning for another village, some distance away, called Vujo where they carried on the business of burning charcoal and they did not return home until around 7 pm. The alibi was only supported by his own brother and witness (DW2) and D also by his mother who had given evidence for the prosecution (PW3). Her evidence was to the effect that on the material day the appellant and his brother (DW2) had left home in the morning for charcoal burning business and that she did not see them again for the rest of that day. In the light of E the weaknesses in the prosecution case as pointed out above we think that the appellant's alibi supported as it was by his own witness and that of the prosecution was wrongly rejected.
In upholding Mr Mchami's submission, we find that the dying declaration of the deceased and the F evidence of PW1 involve weaknesses and unsatisfactory features which sufficiently render such declaration unreliable and make PW1's evidence incapable of supplying the necessary corroboration to it. In the result the appeal is allowed. The conviction is quashed and sentence set aside. The appellant is to be set free forthwith unless he is otherwise lawfully held in custody. G
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