NA TZCA Dar es Salaam3 1

; AT D,\R ES SALAAM / CORAM: MUSTAFA, J.Aa; MA.i<M1E, J.A. AND Or-'.iAR, J.A. CRIMINAL APPEAL NO. 99 OF 1985 ISMAIL NAPO.SE o o o o u a o u o o a 0'1·0 o 0 o o o APPELLANT Versus THE REPUBLIC o • • • o o . . . . . . . • · • . . . . . RESPONDENT (Appeal from the conviction of The High court of Tanzania at Mtwara) (Msumi, J) dated 14th Ja~uary. 198~ in Crimincil Session~--~'; No. 34 of 1982 J1JDGE:·<E1-.:T OF' THE COURT MUSTAFA, J.A .. This is a clear caso of r:1urder. Thri ::appellant litP.rnlly cut the , throat· of the deceased his wife?, and she died of loss of blood and asphyxia resulting from cut carotid artaries. ~~A app~llant cut thA deceassd with an axe. 'l'he appellant ahd thE~ deceas<=d had gon,9, out ·':O attend some cs~r::nony ,, in the village. Th•: appel la:··t ca:ne home, but the deceased remain-~d behind .and •e1urned the foi.1.Jwing morning. She went out again and returned in the evening. The deceased prepared food ~nd both sh~ and the upp1?llant _.- ai;e 11:. ~ After eating they rntired to bed. Th ! appellant wanb~<l to copulate 1 wU1h the deceased, but th,~ deceas,::>d declined saying she was not at that momen'f in a mood for sex. TrHJ app1?1lant desisted and the df'!ceas'·:!d want •o sleep. some three hours later 7 the app~llant: got up from his bed where he~ appaJrently had been brooding, picked ur, ah a.:x:e from under his bed, and cut the deceased' s throat whilt:~ sb? was and killed her. M9o./Rw~{emamu for the appellant befor_:~e /us submitted that the ~ppellant I / I V ..... /2 I r J 2 had killed under provocationo There was no provocationo The appellant certainly did not act in th,~ heat cf the mom~nt, he waited 3 hours before he killedo The refusal by the wife fJr sex in the circumstances was justified and could not possibly, by it~elf, araount to provocation. The killing was delib~·~rute and calc 1J1f,ted. The appeal is dismissedo ,I A. M. JSTAFA JUSTICE OF:i\PPEAL ii 1: '! L.Mo MAKAMJS JUSTICE OF APPEAL ,1 ·,1 JI AoM.Ao OMAR JUSTICE OF :I APPEAL hat this is a true copy~of! thn original. ij : i' I !I ·:r , :i .,j I 'I ( , (J.H. MS0FFE) " DEPUTY REGISTR1\R •