19841201 TZCA Mwanza2

IN THE COURT OF jPPEAL OF TANZANIA AT MWANZA (CORAI'i: aCoJ, Mustafa. J.A. and Kisanga, CRIMINAL APPEAL 1,100 56 OF 1983 BETWEEN KABATEGA s/o LWAKUEA APPELLANT A N D THEREPUBLIC (Appeal from the conviction of the High Court of Tanzania at Mwanza) ( Bahati, J. dated the 24th day of October, 1983 JUDGMENT OF THE COURT NYALALI, C.J.: The appellant Kabatega Lwakweba was charged and convicted in the High Court at Bukoba for the offence of murder c/s 196 of the Penal Code and was sentenced to suffer death by hanging0 He was aggrieved by the conviction and sentence hence this appeal to this Court. Mr 0 Rutakolezibwa, learned advocate, appeard for him in this appeal, whereas Mr0 Ndolezi, learned State Attorney, appeared for the Republic0 From the proceedings both in this Court and the High Court the followinq primary facts are either common ground or not disputed between the parties: On the 12th day of September, 1981 1 one John Kajabaga was shot with an arrow in the neck by the appellant. Prior to the attack, there had been some conversation between the appellant and one Hadija Ibrahim (P.W.1) who was the wife of the said John Kajabaga. At the time. of the incident the said John Kajabaga was carrying a panga or (bush knife) and the appellant ran away thereafter and went to surrender to the police. H1 -2- The said Johnà Kajabaga died at the scene soon after the arrow had been removed from his body by his wife (P.Wi) Subsequently the police came and collected the body of the deceased and a post- mortem examination was performed by a doctor. However, from the proceedings both in this Court and the High Court, the following matters are in dispute between the parties: It is the prosecution case that during the conversation between the appellant and the wife of the deceased, the appellant was abusive and derogatory to the deceased who became annoyed and as a result he went after the appellant armed with a panga but the appellant ran away and went to fetch a bow and arrows. Thereafter the appellant returned and shot the deceased with an arrow in the neck. On the other hand, the apoellant states that he was drunk at the time and as he was joking with the wife of the deceased, the latter appeared armed with a panga and chased the appellant who ran away. Later the appellant inexplicably got hold of a bow and arrow and shot the deceased with it. The first point for consideration and decision in this case is whether the aaellant acted in self-defence, The learned trial judge considered this defence and rejected it after noting that the appellant was no longer in danger at the time he shot the deceased. We agree with that conclusion of the learned trial judge. The appellant cannot be considered to have been still in danger after successfully running away from the deceased. The next point for consideration and decision in this case is whether the appellant was under the infJuence of drink when he acted as he did. The learned trial judge considered this defence but he appears to have adopted two conflicting approachas on the issue. In the first half of his judgment he concluded:- . -3- "It is clear from the defence that accused does not claim to have been drunk or that he did what he did in self defence0". Obiously, this statement of the learned trial ji..ge is a misdirection on the evidence since the appellant clearly stated in his defence that he was drunk at the material time. In the second part of his judgment the learned trial judge considered the conduct of the appellant from the time when he ran away from the deceased to the time when he surrendered to the police and concluded that such conduct was not consiatw with drunken behaviour. We are unable to reconcile this conclusion with the learned judge's previous finding that the appellant raied no defence of drunkeness 0 It is likely that this latter conclusion was influenced by his mis- direction concerning the evidence adduced by the appellant. We are of the view that had the trial judge not misdirected himself on the evidence adduced by the appellant, he would have come to a different conclusion, especially in the view of the fact further evidence was adduced by the prosecution through P.W.2 to the effect that both the deceased and the appellant appeared drunk and that they were unable to walk properly. Moreover, it is important to note that the appellant stated that after running away from the appellant, he found himself picking the bow and arrow and, "perhaps it was the devil then I shot him0t 1 . This statement of the appellant suggests that the appellant claims not to have been fully aware of what he was doing, in otherwords, that he was so drunk that he was incapable of forming the specific intent, obviously on the evidence adduced by the prosecution and the statement of the appellant, it cannot be said that the prosecution proved beyond reasonable doubt that the appellant wa.s capable of forming the requisite intention. It follows therefore that che finding of the learned trial judge corlcerrlinq malice a•fore€houqht = 4 = on the part of the appellant cannot be supported 0 But as, on the evidence, the killing by the appellant was unlawful, the appellant could have have been convicted of the lesser offence of rnanslauqhter - contrary to section 195 of the Penal Code. We allow the appeal, quash the conviction for murder, set aside the sentence of death imposed and substitute a conviction for the offence of m l%hand sentence the appellant to imprisonment for ten (1®). years'. V / I.'-. TED b thi klst day of December, 1984. / % ,- F. L. NYALALI CHIEF JUSTICE A. MUSTFA JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certtfy that this is a tn.ie copy of the original. ( A. A. KYANDO REGI STRi-R