19841124 TZCA Mwanza7

.41W IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: Nta]j C 0 J0, Nstfa,'JAo and Kisahäa, J.A. CRIMINAL APPEAL NO0 20 OF 1983 B E T W E E N WAHABIs/oIKUNJI0 0000000000000000 APPELLANT A N D THEREPUBLIC 0000000000000000000 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Mfaiila, J. dated the .13th day of April, 1983 C' JUDGMENT OF THE COURT MUSTAFA, J0A0: The appellant was charged with and convicted of murder and sentenced to death and he has appealed against such conviction and sentence0 . .. .. . .......:..... .... The appellant at the .., material time was working for the deceased and on the night when the deceased was killed, was taying in the deceased's house0 According to P0W.3, the wife of the deceased, P0W03 and the deceased were sleeping in the room when late at night she was awakened when she saw the bed room door being opened0 She saw the appellant enter0 She saw him go to the cabinet and dressing table looking for something0 P0W03 could see the appellant by -the light filtering into the room from a street light0 P0W0.3 asked the appcllant what he wanted0 The deceased was still fast asleep0 P0W03 woke the deceased up, and the deceased woke up . and asked the -appellant what he antcd. The appellant approached: the bed of, the deceased'.0 , The :deCeaS-ed got out of bed, and P.W.3 did the Lame and put onthe light0 As P.W.3 turned after having put on the light she saw the appellant stabbing the deceased0 POWO3 was shocked and raised an alarm and the appellant turned on P..3 and stabbed P.W.3 just below the chest0 The appellant then went back to the deceased and P0W.3 ran out of the room into a corridor and ended up in the room of a flat mate P.W.1 - Hussein0 The trial judge and the assessors believed P.W.3 to be a truthful witness and were satisfied that she had had ample opportunities of recognising the appellant as the attacker and could not have been mistaken0 P.W.3 had known the appellant well0. Even the appellart admitted that there never had been a quarrel between him and P.W.3. The deceased died of shock resulting from severe bleeding due to a ruptured heart as a res'ilt of stab wounds0 Apart from this very cogent evidence from P.W.3 there was also other evidence. P.W.1., another tenant in the building occupied by the deceased, testified that he heard a woman's cry for help late one night and went into the common sitting room in the building. There he found P.W.3 with her son POWO2 1 and P.W.3 was bleeding from a wound. PW.1took P.W.3 into his own flat and checked and discovered that no bandits could have broken into the house as the door leading into the building was securely bolted0 He instructed his wife to ring up the Police, and while waiting for the Police to arrive he sat by a window facing the sitting room. He alleged that he saw the appellant o . 0 -3- emerging from the deceased's set of rooms, .dressed only in pants and carrying a knife. The pants were blood—stained0 He saw the appellant nter the kitchen, and also saw the appellani coming out. On coming out the appellant raised an alarm and shouted that bandits had broken into the building and attacked them with knives. P.,W.,1 alleged thdt he told the appellant that bandit. could not have broken in, as the entrance door was bolted., P0W02, the son of the deceased, testified that on the • material night, the appellant was sleeping in his room., •. He heard his mother's cry of alarm and got"up, went out' and met his mother, P.,W03, in the sitting room clutching her abdomen. Then P0W01, a fellow tenant, came there., When P.,W02 woke up, he found that the appellant was no longer in the room0 He also alleged, like P.,W.,1, that he saw the appellant. that.night dressed in blood stained pants carrying a knife. He was standing with P.W.,'l by the window facing the sitting rOom whem he saw the appellan€ Mr. Kahangwa, appearing for the appellant, submItted that POWO1 and P.,W.,2 could not be believed, as he contended that there was no window in the sitting room through' which they allegedly saw the appellant that night 0 He relied on a sketch map prepared by P.,W04, a. police officer, who visited the building'and who stated that he did not see a window over 'looking or facing the corridor or verandah. However, the trial judge did not appear to accept PW04 as an accurate witness., 'Mr. Kahangwa also complained that, although the judge stated that the existence of the window was a vita l piece of evidence, the trial judge failed to direct the assessors on it., - . ., fi. ( -J —4 - Be that as it may, we are satisfied that the evidence of P0W03 is so cogent and reliable th-it there was not the slightest doubt that it was the appellant who had attocked the deceased and caused his death 0 We fir •nq t.-i'\the appeal and we dismiss it 0 DATDDt NYA'NZJ€hisO24th day of November, 1984 0. c•- - •j io f ;J \ -• ;•;\4••: / F. L. NYALALI • CHIEF JUSTICE i MUSTPFA JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify thatthiS is a true copy of the original0 7. .............. 7 . .. ( B. P. MOSHI ) SENIOR DEPUTY REGISTRAR /