kamulo matege vs republic 1981 tzca 10 22 may 1981

IN THE C O U R T OF APPEAL OP TANZANIA A T DAR ES SALAAM <CORAMi Mustafat J . A . . Mwakasendo, J.A. and Makame, J.A. ) C R I M I N A L APPEAL NO. 6 OP 1981 BE T W E E N K A M U L O MATEGE . . . . . . . ....................... . APPELLANT A N D THE REPUBLIC ........................................ RESPONDENT (Appeal from 1fche conviction and sentence of the Highc C o u r t of Tanzania at Bukoba) (Rubama, J») dated the 17th day of December, J980, in Criminal Sessions C ase N o . 24 of 1980 J U D G M E N T OF THE COURT MUSTAFA, J . A . : P.W.l was an e y e w i t n e s s to the killing of the deceased by the appellant. P.W.l was the wife of the deceased. The appellant is the half-brother of the deceased. P.W.l stated that on the material night she was sleeping with her deceased husband on the same bed when she was awakened b y the sound of a blow. She heard a second sound of a blow and awake and then saw a person attacking h e r husband with a panga. There w a s a log fire burning in the ro om about three paces away. She said she recognised the attacker as the appellant whom she knew very well. P-W.l rushed towards a wall to escape, but the appellant caught hold of h e r and threw h e r down. P.W.l somehow managed to e s c a p e out of the room and r a i s e d an alarm and some co-villagers came in response. P.W.2 and P.W.4 co— villagers off the deceased came in r esponse to P.W.l's alarm. P.W.l tolcf them that h er husband w as cut by the appellant. P.W.4 went to the a p p e l l a n t ’ s house w h i c h was nearby but the appellant was not . there. The appellant d id not attend the funeral of the deceased an d was discovered h i d i n g in a bush about 11 days after the incident and was arrested. There is evidence that the deceased had expelled the appdlant from the deceased's house some time ago and that the p a r t i e s were not on good terms. The deceased died as a result of the panga wounds which d a maged his brain tissues. There were six cut wounds on the ^kull, according to the post mortem report. The appellant raised the defence of alibi. He said • he w a s not at the village on the material night. He said he r e t urned to the village a n u mber of days later, learnt that he was suspected of killing the deceased and went into hiding. H o wever P.W.3, the appellant's wife gave evidence, after due warning. She stated that the appellant had come home on a day and w a s given lunch by her. The appellant left at about 4 p.m. w i t h o u t informing her w h e r e 1 he was going, and that same night she heard a n alarm and :discovered that the deceased had been cut. We are satisfied that P.W.l could not have been mistaken in her identification of the attacker of her husband. We also, like the trial judge, accept P.W.l as a witness of truth. She had had ample good opportunity of identifying the attacker. The fact that immediately thereafter the appellant was found absent in his house, the fact that he did not attend the deceased's funeral and the fact that about eleven days later he was discovered hiding in the bush wore all factors which tended to corroborate P.W.l's i dentification. P.W.3's evidence which the trial judge rightly a ccepted further supported P.W.l's identification and contradicted the appellant's allegation that he was not in the village at all on the material day. W e are satisfied that the appellant w a s correctly identified as the attacker of the deceased, and that his alibi could not raise any doubt. The judge convicted the appellant of murder. . . . . . */3 3 W e find no merit in the appeal which is dismissed. DATED at DAR ES SALAAM this 22nd day of May, 1981. A. MUSTAFA JUSTICE OF APPEAL Y.M.M. MWAKASENDO JUSTICE OF a PPEAL L. M. MAKAME „.. .JUSTICE OF APPEAL V V A / / I c e rtify that tliis^is a true copy of the original. // O, '■ ■I '■</ i' 3o' |N I v\° /il ( H. A.TTSUMI ) SENIOR DEPUTY REGISTRAR