19831212 TZCA Dar es Salaam

!I IN THE COURT OF APJiJ OF TANZANI'A I . I: ~ AT M\JANZA 1·: 1.i I :1 .!'.'f2(._lg,,~AL_~~L C 0J. 7 MUSTAFA, 1 JoAoi[ f.;~JD KISANGA 1 J.Ao ) . . . :1 I CRIMINAL APPEAL I. NOj° 15 OF 1983 I :1 B E 'r W E E'i N ,.·1! I' MATIKU S/0 CHACHA o • • • • • • • • • Ii. APPELLANT ti A N D II II ! i THE REPUBLIC •• o o ••• o •••• I• ,} •• ., RESPONDENT I :I I I ( Appeal from the convic ti,on ,i of the High Court of Tanzania at Musoma) ·1i<chua, Jo ) dated the 21st day ., 1982 oj~: Orober, I JUDGMENT OF T ,.E COURT • I. l .1 . MUSTAFA, J. A. : - I I The o.ppellc1nt was convicted d>f i;the murder of Masiani i1 1:1 Sabayo on circumstantial evidenceo I:: f11 i !1 !'I i The d2c0as2d on the morning tf ~th September, 1979, i I took out a number of cattle for grazingo:l A number of cattle were I . :I branded with a shnpe like a IY ' mark.;,. Hie was not seen again t· . I. i i unti 1 his dead body was discovered onll tli'e 9th or 10th September I: 11 with his neck cut. 1 1 l !I 'I However,· at about 11.00 o'cllcJ at night on 8th September· i! .11 ., I P.Wo 3 Chacha l:Jambura while guarding pis millet shamba heard the I : 1. sound of a bell und saw a herd of catt1J 1 under the charge of a • :1 1 person passing nco.rby. He found thatl ur;iusual and went near the person asking· him if the cattle belori~ed to him and why was he I, :t moving cattle c1t night, instead of {1n 4aytime., 1 The person . I replied th2:t -the cnttle were his andi irl further reply to P.W. 3 ! Ii . said he was Hanw Chacha. Po\rJ. 3 reco;gnised the appellant then as , I' i' 1: he had sccn him before and knew thatjlth~ appellant had recently moved into his village Garkatongao ,e law the appellant clearly :I :1 :1 I as there was moorlight. P.W.3 told tihe,appellant that he w~s ii I suspicious 2nd th2t he was going to tlai~e an alarm .. ./ .;_ ._:, • 2 When P.W .3 bcc;2X! to raise an alarm the a·,pellant ran off leaving . the cattl~ b~hi~d. At that tim~ P.W.3 was ' armed with a sword and the c1rJpellr-,nt ,·Jns also car:~ying a sword and a spear-. Wh0n P.'d.3 raised the .11arm peopl2 gathered6 The cattle · left behind 1Jy the, appellant numbere<i forty-four. P.W 3 told O the Village Ch2irman who was 2rr1ong thos,::o who answered the alarm that it '·Jc1s the i:l)p2llant who wr1s in possession of the cattler The following morning the vil}.aqers looked for the appellant and he was shortly thereafter arrested. The Villo.c;e Chairman :.:-.w.2 suhstantially confirmed the evidence of P.W.3. The ccd:tle with 'Y' mark belonged to the fa·ther of the deceased and were properly identified. There was some discrepancy between two witllc::'SS(!S as to hew many cattle were branded with the I Y' m::i.rk 1 but the judge cor,cluded that thirty-nine cattle were so branded., 1;vhcn th,.: app,':1lant was arrested he was ·found with a sword which the fc.1thcr of the deceased identified as a sword belonging to the deceased or the fa~ily. It bore·some unusual features and the juctg2 w,c.s satisfied it: was properly; identified. Two witnesses Po\Vo1 u:ld Po\ri.2 testified as to how the father of the deceased icl.,~:,tifL:,d the swordc However, trie father of the deceased had died before ~rial, and his statement to the police was admitted in terms of sect'on 34(8) 2(a) "lf the Evidence A.cto That statement, together with the evidence of the two witnesses P.hl 1 and PoWo2, 0 satisfied ·the juclc,;;e that the sword was p·roperly identifierl as the property of th(::; c1.eceasedo The 2')pcJ.lc1nt, in an unsworn ste.1tement 1 denied killing the deceased, dc,·1icd any knowJ edge of th,~ cpttle, denied being found with them, u.i:lcl c1llc9cd that the villagers brought the sword to him and planted i t on himo O~Qo0/3 , . -. 3 Mro Kc:;~1;_:ll::ic1r for the appellant has submitted three main grounds of a'.,p;:c.:.l. He cont~nded th3t the r,word or sime was not prop2rly idcntifi2d, that the cattle were nlso not properly identified, nor H,1s the a•)pellaiYl: properly identified by Polvo3 0 He stat~d that P.V.3 w~s the only witness li~:ing the appellant with th2 cattle., ':fr, hove curefully consic! 3red the ,~vidence arlduced at the trial, and are satis fL::c1. that the trial _-1udge was right in accepting Po IIJ~ 3 as a wi tnes.s of truth. PcW o 3 h,"!d plenty o::= opportunity of identifying the appello.nto Similarly the ~attle were prop~rly identified by ·• the brand rnc1rks. As regards the svs1ord, was planted on. the appellant; we iJre satisfied he was found with i t when he wus arr-2stcdo WG do not believe that it The finding of the :;word in appellant's possession corroborates the account of P.W.3 and further links the appellant with the deceased., The t;::-iul judge consicJc:,red all the circumstances and concluded th;·;t th-:.:y point irressistibly to the appellant as the person/9-;'.:~~~~-;-~ed the deceased.. We 3gree with that finding. I~'/- ,") Th~-.. 2pReui~io~\ disrnissedo / /" .. ,, \ /-4 .:JATED ·c1-t\ MkANZA this 12th day of December, 1983. .. . ' •• ~ '.• . '. , .) :>. . ~~ f F. Lo NYALALI CHIEF JUSTICE A. MUSTi~A JUJTICE OF APPEAL R. I-{. KISANGA JUSTICE OF APPEAL I'-.'(''._ '··f-y th a t this ·" cef-Cl 1· s "1 true co.-::i"" y of the original. I;' !( ' 1,-, _,(A ( ' ..._ ( L A~·-;;..:KYJ,N~~~-) 3ENIOR DEPUTY REGISTRAR