19841016 TZCA Dar es Salaam

.• IN ·THE COURI' OF .APPEAL. OF TANZANIA CRIMINAL APPEAL NO! 41 OF 1983 B ET WE ·EN 1. YUSUFU ATHUMANI KILU1~) APPELLANTS 2. HP.MAD HAMZA FUNDO ) • • • • • • • • • • • • AND THE REPUBLIC • • • • • • • • • • • • • • • • • • • RESPONDENT ( Appeal f.rolh the conviction of the High Court Qf .Tanzania at Tanga) (Sisya, J.) dated ·!;he 19th day ot August, 1983 in Crimi~?l Sessions Case No. 58 of 1979 !IPDGMENT OF THE COURT MUST .AFA, J. A. : The appellants Here convicted of murder. The evidence for the prosecution rested primarily the evidence of P.W.4 Leah. . J P.W.4 knew both the apr,ellants well. On the night in question she saw the deoeased, who was one of the co-tenants in the house P.w.4 was residing, enter the house, bleeding profusely, closely followed by the two appellants. The two appellants, one of whom was· armed with a butcher's knif'e, forcibly dragged the deceased out of the· house, at the same time ordering P. W. 4 to remain silent, on Pain of death. P.w.4 remained in her house out of fear to her life. Early the following morning the dead body of the deceased was found at ·a place not far from P.W.4's house. There was a blood trail leading from P.W.4's house to where the deceased's body was ··•· found. P.W.4 immediately informed the villagers who had gathered of what she had seen, and also the police officer who shortly a,;-rived at the soene. , She clearly and properly identified the two ' ~ppellants who were her · co-villagers and the appellants were~ ,... .Jil ·- .. \, - .2 - The appellants den_t~d that the incident occurred as narrated by P.w.4~ They alleged that they ~ere drinking in P.W.4's · house on the material ;night and that during su.ch drinking, t~:. deceqsed apparantly attaLked the appellants. However, in their. extra-judicial statements to the Justice of Peace, the appeliants '" talked of various matters, but did not mention such drinking in ' P.W~4's house, nor of th~ alleged attack on them by the decease~• P.w.4 had categorically stated that there was no drinking at ~11 in her house that night,.: The trial judge anaiysed the evidence of the prosecution and the defence and was t11lly 'satisfied that P. w. 4 was an honest and truthful witness. He daalt with the evidence adduced in great ' detail and with care. He rejected the account given by the appellants about drinking in P. w. 4' s holise as to_tally untrue. Indeed a witness callee'. by the appellants in order to support their contention gave dVidence which would indicate that the appellants were not telling the truth. We can find no misdirection by the triai judge on the facts. Mr. Mramba for the appellants eon,ceded that, if the evidence of P. w. 4. is believed, as it was by the trial j~dge, then it would be extremely diffiClll t to find fau.l t with the trial judge's conclusion. . .. . /3 ,, .i• t: ' . l, :~ , l t t> 3 ... 't read the r~cord, and we are of opi,nion · We_ a ocordingly dismiss ;~~~t solnd. L. M. MAKAME JUSTICE OF APPEAL •.,-'< R.H. KISANGA JUSTICE OF APPEAL .