NA TZCA Dar es Salaam 1

,,, IN THE COURT OJ APPEAL OF T.ANZANIA AT .ARUSHA (CORAM: MUSTAFA, J.A.; MAKAME, J.A, And KIS.ANGA, J.A,) CRIMINAL .APPEAL NO. 11 OF 198 5 BETWEEN I SMAIL KAAJ A • • !f!'.,"-~~ . . . .. . . . ••. = •· • • APPELLANT .AND THE REPUBLIC • • . • • • . • • • • • RESP@NDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) (M. J. Mwakibete, J.) dated the 23rd day of August, 1983 in Criminal Sessions Case No. 66 of 1,80 JUDGMENT OF THE COURT KISANGA, J:A.: The appellant was initially charged with the murder of his wife, but was subsequently convi-cted of manslaughter, because the learned trial judt:;e fo_:und the defence of intaxication to be available to the appellant. The sentence of ten years' imprisonment was imposed, and the appellant now appeals against both conviction and sentence. The conviction was based primarily on the evidence of P.W.l and P,W,2 who testified in effect that on the material day they heard cries :em1;1nating from the appellant's home, and on going there they _found· the appellant assaulting his Wife the deceased. On being as~ed the appellant stated that he was beating her because she· had lost his watch. Both witnesses intervetJ,ed and .manag~d to stop the assault. After some time both witnesses went _away leaving the appellant and the deceased behind btlt shortly afterwards the deceased aleo set out to go away. However the appellant ran after her aud, on catc:-hing up with her, kicked her ~a~s1ng he~ to fall down and further hit ber on the face- u~1,ng hi~ hand. as she la;y- on the ground • . . . . . . . /!. .. , I I. (( aJ.kt+'- ~ .llulllJlt;;...... .,,."; ~.,~, ~,· "'-I ~ --t - - j / \. J 1 ,, 2 P.W.2 ran to the scene to intervene again. He blamed the appellant for having renewed tbe assault after he had pro'mised not to do so but the appellant retorted that she was his wife. Once again the appellant promised not to renew the assault 9 whereupon he returned the deceased to their house and P.W.2 went away. On the following day the witnesses learnt that the deceased had died. I P.W.5, the doctor who performed the post mortem examination on the body of the deceased, noted among other things bruises on the forehead 9 a contusion on the right side of.the face and a closed depressed fracture on the right paraetal bone with a big.clot of blood depressing _ the brain. In bis opinion death was due to shock following cerebral haemorrhage. The doctor was further of the opinion that the fatal injury was caused by a blunt object applied with great force to the head; ~ club or a stone was consistent with such injury. A fall on a hard blunt object after a big push could &lso have occasioned such injury. In his defence the appeliant vigorously denied the charge. He claimed in effect that the deceased sustained the fatal injury as a result of a fall when she was separating a .i. fight between I.W.3 and one Lebanga on the day· in :' . question. The appellant himself did not witness.the said fight and the; involvement of the deceased in •separating it; the incident was narrated to him by one Nd iki Jla!"A. who duly gave evidence for the defence. ' In his testimony Ndiki Mara (D.:1~.2) stated that the deceased wes pushed to the ground by P. W. 3 _and Lebanga when she was trying to separat~ th~ fight between the two, and that the heed injury on h~r was caused by a stick which these two people were tryin~ ta. snatch from each other. ' The learned trial judge ,after due considerati::rn of the evidence for both sides 9 accept~d the prosecution version and rejected tbe defence /story. Mr. J. J. Mwale, the learned advocate tor the ·appellant argued that there were contradictions ~n the evj.dence of P.W.l and P.W.2 on whicb 3 the conviction was based 9 which rendered that evidence unreliable. We ha}e ,'scrutinized the evidence of those two witnesses and we are satisfied that the contradictions '-tch counsel has referred to were not m2.terial such as to r e ~ the evidence of the two. witnesses worthless. Th'" lea.rn~(;.d_ co~unsel- furiher argued that P. W,l nursed a g:nidge aF'Wst the appellant which arose from a dispute over a door of~ house which ~he witness bought from the appellant's brotbe~~-and that such a , grudge may have motivated P.W.l tote~_ deliberate ~ies against the tppellant. However, as N.r. Mtingele, the learned Senior aate Attorney pointed out 9 1? .v1 •.1 was the winner in that d\spute and so he would have uo rl'!P-.-ROtl ·t;n. harbour any gr1dge agqinst the appellant. I'1.1 a.1ay,_ . oase Mr._ Mwale po,1a not SU.f.gest any reason . 9 end we eould find_,none, ., . why P. vV. 2 whose. evidence was ev·-~.m mora incriminating, .•· should have deliberately given false testimony against the ap~ella.nt • And lastly Mr. Mwale bitterly complained that the trial judle ~;red in failing to uphold' the appellant's defence that the deceased may have sustained the fatal injury when ~he was separatin{ the fig6t between P.#.3 and Lebanga.. With clue res:t_Ject to the lea.r:ned consel 9 we could find no merit in this submission. Iu the first place, the allegation that the deceased was involved at all in separating the fight between P.W.J and Lebanga was made for the first time by the· defence only after the close , of the. pro.s-e-cvt:l.on case. Since this allegation clearly formed the core of the appellant's deferi~e, -one would have expected it -to have been put to the; proisecution wi tne- sses, especiall~ P.W.3. who was actually in"t,olved in the fight. This, however, was not done, whi•ti' s:&rongly goes I .- to sug6 est that the allegation was an afterthought. This view would appear to be supported by th~ fe,ct that when the appellant maoe the report to the poJLice, be stated that the deceased had died of diarrhea. For, if it is true I that the deceased -0ied trom injuries sJ1stained when she was . I ' •• 0 ••• • /4 t , ..