19840709 TZCA Dar es Salaam

... I - IN THE COURT OF APPEAL OF TANZANIA . .. i AT DAR ES SALAAM (CORAM: Mustafa, J.A •• Makame, JoA• and Kisanga 1 JoAo ) CRIMINAL APPEAL NO. 17 OF 1981 BETWEEN ¥~IKO s/o CHANDE o o • o o 0 0 O 0 " • 0 • 0 0 0 0 0 0 APPELLANT AND THE REPUBLIC --o O O O O O 0 0 0 0 0 O 0 0 0 0 0 0 o o RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Iringa) ( Samatta, J. ) dated the 23rd of Feb~uary, 1981 JUDGMENT OF THE COURT The appellant was convicted of mu.i:~e~·.. It is common ground that he had speared the deceased as a result of which the deceaseci died almost immediatelyo The appellant, w~en arrested, informed the village chairman Po W. 3 Kasim t;1at he had speared the deceased because the deceased had stolen his guitar~ PoWo3 Kasim also said that on the same day he had me-:: a woman by the name of Ha j al a who told him that she had seen the stabbi~g. Hajala hRd not been cal~ed to give evidenceo The appellant admitte,d t):le kiflin,g, tp__ other villagers as wello At that stage he never mentioned th~t the deceased had verhally insulted him and slapped him~ It appe~r~ he also made a statement to a primary court magistrate when he admi'tted spearing the deceasedo Again no mention was made of the alleged insult and assaulto o o o/2 In court the appellant made an unsworn statement and for the first time said that when h'3 w-=-.s dem.anding the guitar from the deceased, the latter abused and slapped himo The appellant then sp.e ared himo .He. was, according to \'1ro Raitha'tha who appeared for him before us, pleading provocation, The trial judge and his assessors reje~ted the provocation story, first because they thought it was an afterthought and secondly because the deceased was speared on his backo In any event, the judge found that_even if the deceased hnd abused and slapped the appellant, the latter was not (c!ntitl(~d to spear the deceased in the circumstances~ Mro Rai thatha submitted. tha·c if the provocation account of the appellant is rejected, then it is not known in what circumstances the spearing took pJ ,)Ce.o i··2 al so submitted that the non-calling of Hajala GE· a ·, .1 ·1ess could create an adverse inference against the Republic. We are of the view, after a consideration of the evidence, that the trial judge was right in convicting the appellant of murder a$ chargedo It is clear that he had killec. t:te deceased when he was recovering a guitar which he alleged the deceased had stoleno He speared the deceased from the back und that dis-• couated his story cf ~ fronta:. c:mfrontatio~ w:..th the deceasedo He had used a dangerous weapon, 0 spearo The use of a 15pear, the nature of the wound 1 the pluce whe.:-e it was inf:'..:i.c-ced, establish ,--- malice aforethoughto . • . 3 -- We ·dismiss thB appealo DAI'ED at DAR ES SALAAM this 9th day of July, 1984. . A.o MUSTAFA JUSTICE OF APPEAL Lo M,, MAKAME JUSTICE OF APPEAL l .. lo KISANGA JUSTICE OF APPEAL I certify .that this is c1 -::r.1e copy df the origiriaL , . . ( Jo ,Le MWA!,USANYA ) , ,. ,,. t · • ~ '. , t REGISTRAR ' .\