19831212 TZCA Mwanza 1

4 - - - IN THE COURT OF APPEAL OF TANZANfA AT MWJNZA (cOR4 NYALLIC.J., MUSTAFA, J.A. AND KISANGA, J.A. ) CRINfNAL APPEAL NO. 15 OF 1983 B E T W E E N MATIKU S/O CHACHA . . APPELLANT AND THE REPUBLIC . . RESPONDENT (Appeal from the conviction of the High Court • pf Tanzania at Musoma) (Chua, J. dated the 21st day of October, 1982 JUDGMENT OF THE COURT MUSTAFA, J.A.: The appellant was convicted.of the murder of Masiani Sabayo on circumstantial evidence. The deceased on the morning of 8th September, 1979, — took out a number of cattle for grazing0 A number of cattle were branded with a shape like a 'Y' mark. He was not seen again until his dead body was discovered on the 9th or 10th September with his neck cut. However, at about 11.00 o'clock at night on 8th September • P.W.3 Chacha Wambura while guarding his millet shamba heard the sound of a bell and saw a herd of cattle under the charge of a person passing nearby. He found that unusual and went near the person asking him if the cattle belonged to him and why was he moving cattle at night, instead of in daytime 0 The person replied that the cattle were his and in further reply to P.W.3 a said he was Marwa Chacha. POW. 3 recognised the appellant then as he had seen him before and knew that the appellant had recently moved into his village Garkatoflga. He saw the appellant clearly as there was moonlight0 P.W.3 told the appellant that 0 he was suspicious and that he was going to raise an alarm. - .. ./2 AP -2- When P.W,3 began to raise an alarm the aooellarjt ran off leavihg the cattl bhid. At that time P.W.3 was a'med with a sword and the apelleOt was also carrying a sword and a spear. When P.h.3 raised the alarm people gathered The cattle. left behind by the appellant oumbered forty-four. P.W.3 told the Village Chairman who was a"anq those who answered the alarm that it was the anoellant who was in possession of the cattle The following morning the villacrers looked for the appellant and he was shortly thereafter arrested, The Villa g e Chairman 1 W.2 substantially confirmed the evidence of P.W,3. The cattle with 'Y' mark belonged to the father of the deceased and were properly identified. There was some discrepancy between two witnasses as to how many cattle were branded with the 'Y' mark, but the judge concluded that thirty-nine cattlewere so branded. When the appellant was arrested he was found With a sword which the father of the deceased identified as a sword belonging to the deceased or the family. It bore some unusual features and the judge was satisfied it was properly identified. Two witnesses P.W,1 and. P.V4.2 testified as to how the father of the deceased ideetified the sword However, the father of the deceased had died before trial, and his statement to the police was admitted in terms of secon 34(B) 2(a) of the Evidence Act, That statement, together with the evidence of the two witnesses P.Wal and P.W.2, satisfied the judge that the sword was properly identified as the property of the deceased. The oppellant, in an.unsorn statement, denied killing the deceased, denied any knowledge of the cattle, denied being found with them, and alleged that the villagers brought the sword to him and planted it on him, 0 .... -3- Mr. Kanabar for the appellant has submitted three main grounds of appci. He contended that the sword or sime was not properly identified, that the cattle were also not proper1 identified, nor was the appellant properly identified by P.W.3. He statd that P.W.3 was the only witness linking the appellant with the cattle, 1a have carefully coisidered the evidence adduced at thetrial, and are satisfied that the trial judge was right in accepting P.W3 as a witness of truth. POW.3 had plenty o: opportunity of idéntif'ing the appellant. Similarly the cattle were properly identified by the brand marks. As regards the sword, we do not believe that it was planted on the appellant; we are satisfied he was found with it when he was arrested. The fibding of the sword in appellant's possession corroborates the account of P.W.3 and furter links the appellant with the deceased. The trial judge considered all the cirumstances and concluded that they point irressistibly to the appllant as the person who had murdered the deceased We agree with that finding. Th \d ismi ss ed /'ATED t MAki this 12th day of December, 1983. I -- 1: / F. L. NYALALI CHIEF JUSTICE -- -. .- A. MUSTAFA JUSTICE OF APPEAL (_. r R. H. KISANGA JUSTICE OF APPEAL •.,I certify that this is a true copy of the original0 .1 •? ' iL 1'TjTrp -It .:KYANDO ) aT'DIITV PFC,TSTRAR