19810806 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: Mustafa, JoAo 1 Makame, J.A. and Kisanga, J A 0 0 ) CRIMINAL APPEAL NO. 25 OF .1981 BETWEEN SIMON BABU ., o • • • • • o • ■ • • • • • o ■ • ■ ■ • o APPELLANT A ND THE REPUBLIC • • • • • • • • • • • • • o • • ■ o • • RESPONDENT {Appeal from the conviction and sentence of the High Court 9f_Tanzania at Moshi) (Maganga, J.) dated the 24th day of March, 1981, in Criminal Sessions Case No. 11 of 1980 JUDGMENT OF THE COURT MUSTAFA, J.A.: In the late afternoon, when Alotto had returned home from grazing his cattle, and was sitting with his wife P ■ W ■ 1 Bertha and some of his children including P.W.2 Aishi just outside his house, the appellant, acccunpanied by ~everal persons, came upon Alotto, and without uttering a_word, attacked him with a ::pick- axe which the appellant was carrying, as a result of which Alotto ' died. The deceased was struck on the head with the pickaxe which resulted in~ skull fracture causing vital damage and trumature of the brain, and that was the cause of death. ~-W~1 saw the attack, so did P.W.2., P.W.5 Lelo, a neighbour of the deceased, in response to a report brought to him on the material 9ay by a chilu of the deceased of the attack on the deceased, went towards the deceased's house with a hoe in his hand. He met the appellant on the way, coming from the direction of the deceased's houseo and The appellant's clotpes had marks/-,·,; stains of blood on them-. When PoWoS asked the appellant about th~ blood stains, the appellant turned on PoWo5 and threatened to kill PoWo5 ■. oooe/2 2 There was a brief struggle between PoWoS and the appellant, and then the appellant ran off to one direction, after. verbally threatening to burn PoWo5 1 s thatched houseo .It was in ev:ii.dence that a few days before this incident the appellant had,been brought before a court on a complaint from the deceasedo The deceased had complained that the appellant had attacked the deceased's children while they were grazingo _The appellant was convicted, and ordered to pay a fine of shso 468/- or in default three months' imprisonmento The court order was made on 26th March, 1979, and the fatal attack on the deceased took place on 30th March, 19790 The appellant made an unsworn statement and called no witnesseso He said dn the material day as he was approaching his house on his bicycle he met the deceased who was carrying a simeo The deceased refused to give way to his bicy::::leo A quarrel ensued and the deceased cut him with a simeo The deceased's wifP. PoWo1 then joined the fray with a pickaxeo The appellant managed to snatch the pickaxe and struck the deceased with ito The appellant produced. a hospital treatment sheeto However, the said sheet mentioned some old wounds and did not at allx support the appellant's allegation that he was cut by the deceasedo P.w.s in his testimony had also stated that on the material day h~ had seen the appellant passing by PoWoS's shamba with a pickaxe, shortly before the deceased's child came to report to him of the attack on the deceasedo So the pickaxe was in the possession of the appellant before the incident; he did not snatch it from PoWo1o There is also the evidence of PoWo4 Bruno, a police officer. He visited the scene of the crime on the day following the fatal attack, and with the help of the appellant, drew a sketch plan of the sceneo From the deceased's house to the appellant's house eoeoe/3 was a distance of 190 yardso He noticed blood on the ground, about three paces.from the deceased's houseo That clearly_showed that the deceased was attacked just outside his own house, not near the house of the appellant about 190 yards awayo The trial judge accepted the evidence given by the prosecution witnesses and rejected the account given by the appellanto We also think that the prosecution witnesses were truthful and reliableo we are satisfied that the attack on the deceased was unprovoked and deliberateo We find no merit in the appeal w~ich is dismissedc DATED at DAR ES SALAAM this 6th day of August, 1981o ..., .......... , A. MUSTAFA JUSTICE OF APPEAL Lo Mo MAKAME JUSTICE OF hPPEAL Ro, Ho KISANGA JUSTICE OF APPEAL I certify ,r. -that this SENIOR DEPUTY REGISTRAR