19840711 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: Mustafa, JoAo; Makame, JoAo and Kisanga, J A 0 0 ) CRIMINAL APPEAL NO. 26 OF 1982 B •.E .T W E E N GABRIEL CHORI o • o o o o 0 O O O ~ .00 0 0 0 • APPELLANT AND THE REP UBL IC o o o o ~o e o o o o o o o o o o o o RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Dodoma) {Lugakingira, J.) dated the 29th day of March, 1982 JUDGMENT OF THE COURT !1USTAFA; J.Ao: 1 The appellant, with three.other persons, was charged with murdero Onlythe appellant was convicted as chargedo The deceased was last seen _alive with the appellanto About: 20 days after the deceased's disappearance, the deceased's remains were foundo When the appellant was arrested on suspicion, the appellant told the police that he had killed the deceased, ahd he took the police and the villagers to a spot where he said he had done the killingo Then another person, who was one of ~t~ the co-accused, led the party to another spot, some 2 ·or 3 miles away, where the dead body was dumped, and ther.e the remains \ of the deceased were. discoveredo Only bones and a skull were found, but there were also the deceased's shoes, id0ntified properly py witnesses·who had given the shoes or who knew the shoesp f. 2 1' :···:· ··· ------Ther-e-was·-aJ..so ..discovered a pole . ..which · was· used --~to-:carry-the· · . ...... '·, '"-.....dead body to ·the -spot where· ·the body ·was.dumped. ,, .. - '· . . .. ··- .. - _,...,_.r- c .......... ~~• •• - ............... ..... , ___ - ... -.. -··•·--.-.. '(-...-., .,.._..,,,.·-_fhe·· skul.l. was· examined .in·· court and ..a fractmre--- ...was· -- - ....... . -·· ,. - .....--- ,,..-- ...: ~ - ·- --- --------·· ··· '·:- .,. - . ···Tl\.e. appellant made an extra-judicial. statement, .. w};iich W,~i ..... .. . '• . l -----~•-.... · -a:drni tted in eourt with-out objection,...-· •·He.. had allegea·1·· th-at ·. . -.. ·•: . ·- .,...,-."="-1' ·--~:tne--oeceased had,stolen his::beehive.,. ·and- that-he had: ~_..,...,..,.,,,-... ·. st~ithlJ.y· ........-~- . '"'.~--~·-ct-ept-1 up. f-rorn · behind the . deceased· and .. struck him ... one b.low :·. ,-·----J- ~- . ! ·· -~·::; __ . on,,-the· back ..of his head wi-th .a- -stick.,• The dec~a-sed ·~eupod .. _· ! - ··--:fell -down,·· imd .. did not· ris·e· up again., and -died,. --- ......... .. .. --::· ·····- ' In -court .. he testif·led.. . ..He ls.aid ·that he· had I lost a beehlve·•. -.· . ·' . _..• __ ~--·· He-· was.. f allowing_footp,rintB~ and./ found ···the ~en""Sed c"a.rrying· ·his· .:: ••••• # • ··- .. , ' - ·-_:beehive. ·· The deceased- c.laimed the:,,__beehive wa~ his. ,;They. started· .. · .:. -- _,.__, .. · --·---~-tne-1-appell<int-.had·- a·--stick~ - He' ~aid' during.1:t}le .. · al terc·a:tion · the :deceased :. .: ' .. ···· -~· .... - 1lim"--at, the-- beck: ·of hi-s. neck., Tne deeeased fell..,down, ·-and· · di.d. .n&t··.d:se· up .. again... Th'e: appellant was,;;:t,rs'torti~-'hed :;ar:td· lei-t:3' · . 1 ··: . .. - . . .:.:-· · +; Th·e "trial judge found' th.3t· the· ·appe'];lant·•·,nad :i-n' r~et· ·· · · . •. '·j ,crept·''tip from:.behind.. .the' deeeased, by~- ste~ithc;.· anuYstruek' ·· ,... __:~'e dee-e-a.sed· ·a blow, on the· back·:of .the·:'h'ead.- killing· the·· - ·· 1 · -----:. --- -~~ecea·sed::.instantly., The killing wae.-p~.emedi.ta·ted 'an-ct. dorte~ .,:;·{,,;,~ ·· ··· ....... iin-cold' l>loodi.,:._. The. dee-eased ·was· atruck' on··a--,vulneraJfl.e'pai:-t:~-"" ··,_ , .... >··-. ·--· . ·.·•--:---_ . -~- - ._____ ,"Of·:th,~r·l)ody,: and· the bJ:ow must hav~ 9een a ~~;~re,;·:one,.and·wi:th:-·~----··->·- r------ . gre·a,t-,f.orce;.0- . He ae?,Cepted -the· version· of .ev.'ent.s .given::by-~:./ · · · · ·- ,_. ____ ~ ·· ---~ ·--·-... ..... . .. ~-· . 3 .,'3 rejected the appellant's account given in court that when he struck the fatal blow, the partiP.s were face to face, and in altercationo The judge also found that the position of the blow, on the back of the head, could not have been inflicted when the parties were facing each other~ Mr. Ru't:.abingwa submitted that the trial judge had erred in not believing the account as given by the appelli=mt· in court .. He al so alleged that there was no or no sufficient evidence tha.t the skull was fractured at the backo He al so submitted that only one blow was struck,· and the stick was not produt:ed, ·• so it was unknown if it was a heavy one. These circumstances ~ould indicate that there was no malice aforethoughto We are satisfied that the 'trial judge was right in accepting the version of events as stated in the appellant's ext~a-judicial statement. The blow was clearly struck from the rear, in stealth, and in cold bloodo The judge was entitled to look•-3t the ,skull exhibited in court :=.ind take notice of the fract'l.lr~o He gave good . ' reasons for rejecting t h e ' ~ e encounter, and. accepting ' ,, 't"· . (:-"'i'' the events as narrate~ :'fn t h e~tr~-Jfuct\~ial ,, state_rnento l,',· \:~lf. ~· 0 are satisfit/ the !~9~., ·_t"i~n fs., soun.d, and we· dismiss t ·,(~i_ j' We 1 the appeal. DATED at DAR ES \(\LAAM thi~ 1,,1t~~, ay of July, 19840 . '- • -: tf -' ~~4- . ~~- A. MUSTAFA JUS'rICE QF APPEAL L. M. MA.KAME ----------·----- JUSTICE OF APPEAL R.H. KISANGA ., JUSTICE OF APPEAL I rP.rtify that this is ~ of the original. . , -~~j;½.i;A~ REGIS TEAR