19830531 TZCA Mwanza

w - -- 44. IN THE COURT OF APPEAL OF TANZANIA AT N WAN ZA (CORAM NYAL\LI, c, MUSTAFAJOA O AND i<L3ANGA 2 J A.) CRIMINAL APPEAL NO0 5 OF 1983 BE TN 8 EN KAHITIRA MUREFU • S 0 0 0 0 0 0 0 0 0 0 0 0 0 APPELLANT A N D THEREPUBLICO OO• 000000000*000 RESPONDENT (Appeal from the conviction of the High-Court of Tanzania at Musoma) (Chua,J.) deted.the.1.S-th day f November, 1982 J(JDGMNT OFTE COU RT MU S TAFA A. The appellaflt was cOnvtedpf turder at a High Court trial -Fé had goie to the oiisé of the deesed -and it was alieêd that h had suèk t64 - dédased on hd with a stick which produced depressed fracture on the heed as a result of which the deceased died0 The tedicai ev1dth 'showed that the depressed fracture was three centimeters long and Wo centimenters wide, a comparatively small one 0 The appellant admitted that he had visited the deceased on the material day. He went to collect a debt of shs. 2001- owed to him by the appellant. The deceased was very drunk at that time and the appellant and the deceased greeted each other and thea both sat on chairs and di csed the deb€ payment. I'i the course of the discussion an argument ensued and the p1ant said he then pushed the deceased who fell from his chair. The apllant then ran away0 0 0 0 ./2 • -- - -,, -S - ' - '-- - vs - 2 - ' c.• - 'J1,ere wars evidence that the deceased. wasvery. drunk4 at.t.Ae material time. An eye witness to the meeting between the appellant and the deceased tstified that he had seen $ the appellant running away from the deceased's house with a sack in hi !shafld, although the appellant had arrived at the said house, empty handed6 The trial judge inferred from that piece of evidence that the appellant must have struck the deceasJ on the.. head with the stick ceuing the depressed fracture. - However, no medical evidence was adduced as to how the fracture was caused 0 From the nature of the fracture 't could have been cused by a fall from a cIair 'as by a 4 blow on the head with a stick. Indeed, the version given. by 'the appellant was as good if not a better explanat,pn for the fracture than that advanced by the prosecution0 Learned State Attorney conceded that in the circumstanäes the aopellant could not have any malice afore-thought when he pushed the deceaed and ceuséd him to fall fr"m the chair. We think that a conviction for murder in this case was not justified. The trial judge failed to give proper consideration to the account of the incident given by the appellant. We allow the appeal, quash the conviction for murder. and se -b aside the sentence of death passed on him and substitute therefor a conviction for manslaughter. We sentence him to four years' impr1sonm-ri. DATED at MWNZA this 31st day of May, 1983. F. L. NYALALI . CHIEF J1JSTICE -' - A. MUSTAFA - -. STICE OFPPEAL R. H. KISANGA a?ICE OF APPEAL / I certif' that this'4sa tEue copy 1 ofthe.figiflal. L. A. A. KYANDO :, SENIOR DEPUTY REGITRAR