THE COURT OF APPEAL
OF TANZANIA AT
ARUSHA
(CORAM: RAMAPHANI,
J. A.: NSEKELA, J. A.; And KAJI, J.A.)
CRIMINAL APPEAL NO.
120 OF 2002
BETWEEN
HUNAY
LANGWEN & 3 Others APPELANTS
AND
THE
REPUBLIC RESPONDENT
(Appeal from the
Conviction by the High Court of Tanzania at Arusha)
(Munuo, J.)
dated the 6th
day of October, 1992
in
Criminal Session
Case No. 45 of 1990
JUDGMENT
OF THE COURT
RAMAPHANI, J.A.:
The
four appellants, together with another person, were charged with the
murder of a boy, Gwandu Sige. The four appellants were convicted and
sentenced to suffer death hence this appeal.
The learned trial judge
was satisfied with the evidence of the only eyewitness, Hadandi Sige,
PW 2, that on the night of 1st
June, 1988, one Sige Barie, now deceased, was sleeping in his boma
with his
two sons, PW 2 and Gwandu. Suddenly a group of cattle rustlers
pounced on them taking away 79 head of cattle. The rustlers also
kidnapped the deceased Sige, Gwandu and PW 2 across the Warret NAFCO
wheat farms into the Mreru forest where they abandoned them.
PW 2 said that from
their house they were blindfolded so that they could not recognize
their captors and they were tied with a rope. After sometime through
the jungle and as PW 2 and his father kept on stumbling, the blinds
were taken off. However, early on 2nd
June, 1988, they were blindfolded again and then PW 2 was tied to a
tree and abandoned while his father was taken farther along. PW 2
managed to free himself and returned to the village to report. As it
was already night time they waited for the morning to go searching
for his father and Gwandu.
They found his father
tied to a tree head downwards but they never saw Gwandu. However,
they found a T-shirt which PW 2 recognized to have been his but which
he gave to Gwandu as it had become too small for him. Then they also
saw two sandals made from tyres which he identified to be those of
Gwandu. PW 2 was positive that he identified the first appellant and
the third appellant as the their kidnappers having had a thorough
view of the two during the time the blinds were taken off and when
they were just about to tie him to a tree and before they blindfolded
him again.
As for the fate of
Gwandu the learned judge had this to say:
While still combing
Mreru forest in search for Gwandu the search party traced the rope
with which the little boy had been tied to a tree; near the rope was
one of the boy's sandals. His other tyre sandal was recovered a few
paces away where there were drag marks leading to what appeared to be
a cave for wild animals. The T-shirt the boy last wore was also found
at the scene but no traces of his other remains or bones were
recovered. Since the clothing and tyre sandals were recovered in the
midst of the Mreru forest and owing to the fact that the late Gwandu
like his father and his elder brother, P W 2 had been tied to a tree
with a rope, and in view of the drag marks found between the tyre
sandals and the T-shirt the boy last wore, the police concluded that
the victim must have been mauled by wild beasts leaving no trace of
his remains behind ...
With due respect to the
learned judge, she did not make her own findings of the fate of
Gwandu. After she had carefully catalogued what was found and
identified to belong to Gwandu, she stated the conclusion of the
police that "the victim must have been mauled by wild beasts
leaving no trace of his remains behind". She did not
categorically say whether or not she agreed with that conclusion by
the police. However, she used that conclusion in convicting the
appellants:
There is no way Accused
No. 1, 2, 3, and 4 can avoid their responsibility in the cattle raid
and kidnapping of Sige Barie, his elder son P.W. 2 Handandi and the
late Gwandu Sige whose remains must have been feasted upon by wild
animals in the Mreru forest...
Under the circumstances
Accused No. 1, 2, 3, and 4 are guilty and convicted of murdering
Gwandu Sige on the 1.6.1988 as charged.
The crucial finding in
any charge of murder or manslaughter is whether there is a person who
has been killed. The trial judge has to make a categorical finding
that someone is really dead and should not leave that to be by way of
an inference. So, the issue in this appeal then, is Gwandu Sige dead?
Mr. S. N. Merinyo,
learned advocate, appeared for all four appellants and had six
grounds of appeal. His ground three was that:
The Honourable trial
Judge erred further in assuming the death of the alleged deceased
without proof of such death without sufficient evidence to that
effect.
The learned advocate
referred us to the passage in the judgment which we have already
quoted above cataloguing pieces of proofs that Gwandu is dead and
then proceeded to point out errors. Mr. Merinyo pointed out that it
was not said that the T-shirt was found to be blood stained or
ripped as should have been if Gwandu was devoured by a wild beast.
The learned advocate submitted the same with respect to the sandals
and the rope.
Mr. Merinyo pointed out
two contradicting pieces of evidence by PW 2: First his testimony in
court in which he said that Gwandu was also taken to the Mreru
forest. Second, his Police Statement, Exh. D. 1, in which he said
that Gwandu was left behind at home. For the respondent/Republic was
Ms. Neema Ringo, learned State Attorney, who stated that there are
many deficiencies in the case and that the Republic does not support
conviction.
In court PW 2 said:
My father and I were
tied together with a rope, both of our left hands were tied to a
rope and because we were also blindfolded we were simply driven out
of our house jointly. Gwandu Sige was driven behind us, we could
hear him walk behind us.
However, in Exh. D. 1
PW 2 said:
Walitufunga kamba mimi
na baba na wakatutoa nje ya boma na tukaanza kubugozwa (sic)
kupelekwa sehemu tusiyoifahamu huku mdogo wangu tukiwa tumemwacha
pale nyumbani.
That can be translated:
They tied my father and
me with a rope and took us out of the premises and started to lead
us to an unknown destination while we had left behind my younger
brother at our house.
We agree with Mr.
Merinyo that the statement, Exh. D 1, should be more accurate as it
was given soon after the event, in June 1988, while the testimony in
court was in September, 1992.
But even his testimony
in court raises some doubts. For instance, "Gwandu Sige was
driven behind us, we could hear him walk behind us". There are
two queries: One, PW 2 could only have spoken for himself that he
heard Gwandu walking behind them. How could he say on behalf of his
father and hence use the plural form "we could hear"? Two,
PW 2 also said: "We could hear the footsteps of our herd of
cattle following behind us at a distance of about 500 paces".
We ask: could they honestly hear the footsteps of a boy of 11 years
amidst the hoofs of 79 head of cattle, even if 500 paces away? We
think not. He only imagined hearing the footsteps of Gwandu.
Of course, there is the
question how did the T-shirt and the sandals get to the Mreru
forest? We do not know. There are two ways of looking at it: One, it
is only a problem if PW 2 is believed that the T-shirt was Gwandu's.
Two, the paradox underscores the magnitude of the problem and
amplifies the doubts surrounding the whole case. Trite law requires
us to resolve the doubt in favour of the appellants.
If there is no proof
beyond reasonable doubt that Gwandu Sige is really dead, then that
is the end of the matter. So, we do not need to go to the other
grounds except, may be, one. Mr. Merinyo pointed out that the record
is loud and clear that the learned judge proceeded with the trial
while accused persons 1, 3, and 5 had no legal representation. That
was wrong. This Court has clearly said so in Laurent
Joseph v. R.
[1981] TLR 351 and again in Lekasai
Mesawarieki v. R,
Criminal Appeal No. 31 of 1993. In those two decisions this Court
ordered retrials. In this case both Mr. Merinyo and Ms. Ringo are at
one that ordering a retrial for murder is useless as there is no
conclusive proof that Gwandu is dead. We agree. Moreover, the
incident was on 1st,
June, 1988, while MUNUO, J's judgment was on 6th
October, 1992, and we heard the appeal on7th October, 2004, that is,
12 years later.
So, we quash the
conviction of murder, set aside the sentences of death and order the
immediate release of the appellants from custody unless their
continued retention is lawful.
DATED
at ARUSHA this 27th
day of October, 2004.
A. S. L. RAMADHANI
JUSTICE OF APPEAL
H. R. NSEKELA
JUSTICE OF APPEAL
S.
N. KAJI
JUSTICE OF APPEAL