19820604 TZCA Dar es Salaam

... ([YM IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: Mustafa, J.Ao 2 Mwakasendo, J.A. and Makame, J.A 0 } CRIMINAL APPEAL NO• 24 OF 1981 BETWEEN MAHELO MGUMBE . . . . ., • 0 0 O 0 • 0 0 0 0 e • 0 O APPELLANT A N D THE REPUBLIC o •• 0 c, 0 Cl o D o o a "' • 0 •. I, • RESPONDENT (Appeal from the. conviction of' the High. Court of Tanzania at Mwanza) (Munyera, J.) dated the 14th day of March, 1981, in Criminal Sessions Case No. 26 of 1981 JUDGMENT OF THE COURT MUSTAFA, JoA.: The appellant was charged with and ,convicted of murder. He was alleged to have staboed the deceased on a Christmas night in 1978. There was evidence that ~t about midnight he was trying to enter the hut of P.W.,S in order to sleep. The appellant had before that night been·sleeping in the hut of P.W.S for whom he had worked as an employeeo When P.W.5 heard the knock: and understood that the appellant had wanted to come in to sleep, P.,WoS told the appellant that there was no place for him that night as P.Wo5 had another guest. The appellant then pushed and broke down the door which fell on ~ the guest of P.WaS, and he was the deceased who was sleeping on the floor. The deceased got up and pushed the appellaht out. The appellant re-entered the hut and the deceased again pushed him out. Immediately thereafter the deceased exclaimed that the appellant had stc1bbed''him with a kn~fe. The deceased fell down and died almost instantaneously • ••• I 2 - • 2 The cause of death was a stab wound on the left neck, causing severe haemorrhageo The appellant ran off and was arrested the following morning. Both PoWaS and his wife PoWo7 stated that they recognised the appellant as the man who attacked the ,deceased. They had known him a long time and according to P aW'o 7, after the first entry by the appellant into the hut, she lit a koroboi, and after that the appellant made his second entryo P .. WoS and PoW.7 also recognised the voice of the appellant and PoWo7 certainly saw him clearly when the appellant entered the hut that nighto Mro Lakha for the appellant has submitted that the circumstances for identification were not tavour~le, and there could be doubt who the attacker of the· deceased that night waso He submitted ;that the prosecution witnesses and the appellant himself had rartaken of intoxicating liquor that day and night and they could not see or hear and identify properlyo We have given due consideration to this aspect, and we agree·with the trial judge that t~e appellant was properly identified by both P.W.5 and P .. W.. 7 to whom the appellant was well-knowno However, we are also satisfied that the appellant stabbed the deceased in the course of a struggleo The appellant, quite obviously not very sober, was ejected by force by the deceased and in the course of such ejectment pulled out a knife which he obviously was carrying and made a stab at the deceased in the dark outside the hut. We are aware that the weapon usnd was a knife, but we also take into consideration that the stabbing took place in the midst of some sort of a struggle, and that both the parties were certainly under the influence of drink., The appellant could have struck as he was provoked by being forcibly ejected • •••• /3 3 We think that the offence for which he should have been convicted was manslaughter, as there was insufficient evidence of malice aforethought .. We allow the appeal, quash the conviction for murder, set aside the sentence of death passed on the appellant, and substitute therefor a conviction for manslaughter. We sentence the appellant to fi\re years' imprisonment. Before we corlclude we must point out that in the record, there was no medical evidence as to the cause of death .. No doctor testified, nor was the post mortem report, which is on the Preliminary Inquiry proceedings/exhibited or produced at the trial hearingo In some cases such an omission can have serious consequences. In this case, however, the deceased died almost __immediately from the stab wound, and the evidence . ,,.,··~·. ~ of the ca~se of death was sufficient in the ·circumstances .. A. ·MUSTAFA JUSTICE OF APPEAL YoMoM. MWAKASENDO JUSTICE OF APPEAL L. M. MA.KAME JUSTICE OF APPEAL is a true copy of the original .. DEPUTY REGISTRAR.