19810720 TZHC Dar es Salaam2

* I" • : . IN THE COURT 0' APPEAL OP TA1ZANIA, • AT DAR ES SALAAM (O0RJM: Mustafa, Mwakasendo 9 J.A. &Makame,. J.A. ) CRIMINAL APPEAL NO. 1 OP 1980 BETWBBN IVJTITtJ GRGE . . . . . . . . . . . . . . APPJIJANT A N D THE REPUBLIC . . . . . . . . . , - . . . . . . . RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at IV!beya ) (Mapigano, j) dated the 13th day of December 9 1979, in • Criminal Sessions Case No. 30. of 1977 JUDGIVUT OP THE COURT MUSTATA J.A.: • The appellant, a grandso of the deceased, burst into the hous of the deceased late in the evening, attacked the deceased while the( I deceased was sitting on a chair and hit him with an iron bar on the head and the ribs. He left the deceased groaning, without saying a word, and the deceased died of the wounds. Death was due to inter-cranial haemorrhage as a result of the wounds on the head. P.W.1 9 the wife of the deceased, was in the house during the attack, saw what happened, and testified in court. She was positive that the appellant just stormed into the house, and without saying nything, attacked and killed the deceased. • Oh the material night P.W.3, the C.C.M. Chaimmun of the village, -\ was visited by the appellant. He said the appellant was holding an iron bar and told him that he, the appellant, had just killed his grandfather, the deceased. The appellant disclosed that he had been to Malawi to see a witchdoctor, who assured the appellant that the sons and relatives of the appellant who had died was due to witchcraft practised on them by the deceased. • -2- The appellant made an unsworn statement in cOurt and called no evidence. He said that the deceased had sent for him that matêria. night, and he duly went to the house Of the deceased. When he arrived 9 he alleged that the deceased upbraided him for visiting a witchdOtor in Malawi and threatened that he would bewitch and kill the appellant as he had done to the other members of the appellant's family. The appellant said that he was stunned and enraged and as a result attacked the appellant and hit him with an iron bar. The assessors and the trial judge believed the evidence of P.W.1 and rejected the sta1ement of the appellant. The evidence of P.W,1 was in a way corroborated by the evidence of POW.3, as the appellant did not mention any threat made to him by the deceased. If any such threat was r in fact given, it would have been disclosed to P.W.3 by the appellant. f According to P.\7.2, P.W.1 saw P.W2 isediately after the attack, and/1 told P.W.2 that the appellant had suddenly .stormed into her hOus?f and hit the deceased. We think, on the evidence, that the trial judo was right to have, accepted the evidence of P.W.i as to. the circumstces of the attrck, and a conviction for murder was justified. c When sentencing the appellant after conviction the trial jndge id tIt appears that the law of this country provides only y6nu sentence for the crime you have comaitted and it is mandatory one. It is death by hanging. You have a right of appeal to the Court of Appeal.". It will be noted that the traljudge did not say "I sentence ' you to death" or words to that effect. When sentencing a trial judge should be jcific. H0wever, we are satIsfied that the trial judge did men o sentence the appellant to death and this minor irregularity has not csed any injustice or doubt. J - 3- We dismiss the appeal. DATED at DAR ES SALAAM this 20th day of July, 1981. A. MtJS TPLFA JUSTICE OP APPEAL Y.M.M. MWAKASENDO JUSTICE OF APPEAL L.M. MAIWEi * --..- qe- JUSTICE OF APPEAL ik, 17, ( k o\ L) ce4thatis is a true copy of the original ( • • J. L. 1'IWALUSI11YA) SENIOR DEPUTY REGISTRAR