19841201 TZCA Mwanza1

IN THE COURT OF APPEAL OF TNZJNI ATMVJANZA (CORAM: NValali. C0J0, Mustaf, J.A. and Kjsana, J0A. CRIMINAL APPEAL N0. 57 OF 1983 B E T W E E N ALOYS s/0BONIFACE 0 APPELLANT A N 0 THEREPUBLIC 000 0 0 000000000 • O RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Bukoba) Bahati, J. dated the 3rd day of October, 1983 JUDGMENT OF THE COURT NYALALIO C0J0: The appellant, Aloys s/o Boniface, was charged with and convicted for the offence of murder - contrary to section 196 of the Penal Code in the High Court at Bukoba and was sentenced to suffer death by hanging0 He was aggrieved by the conviction and sentence hence this appeal to this Court0 His appeal was argued before us by Mr 0 Rutakolezibwa, learned advocate, Mr0 Tendwa, learned State Attorney, appeared for the Republic/Respondent. From the proceedings in this Court and the High Court, the following primary facts are either common ground or undisputed between the parties: On the 12th day of November, 1980, one Eugene Boniface, the elder brother of the appellant, was seated in an outer kitchen at his father's home, namely, Boniface, when he was struck on his head by the appellant with a. panga (bush knife). Present in the kitchen when the incident occured were one Edward Petro (P.W05) and one Mtabagaza0 After attacking his elder brother, 0 0 0 0 ./2 - ,--. ...-.-- .- __-._:.._. - • _0 -, - -2- the appellant rushed out of the outer :kitchen, encountered his father at the door and managed to escape0 Subsequently, the appellant turned up at the home of P.4.1 in the same village and spent the night there until the following day when he was arrested by members of the local militia0 The said Eugene Boniface, who had been injured by the appellant, was taken to hospital where he however died on the same day 0 The same proceedings, in this Court and the High Court, show that the followino matters areiin dispute between the parties: It is the prosecution case that the appellant, who was armed with a pnga, found the deceased in the kitchen and suddenly attacked him without apparent reason. It is part of the prosecution case that the deceased died from the injuries inflicted by the appellant who acted with malice aforethought. On the other hand, the appellant denies the allegations made by the prosecutionand asserts that prior to the incident there was an exchange of unpleasant words between the deceased and the appellant, as a result of which the deceased seized the appellant's clothes and threw them on the .f Lre in the kitchen. As the appellant was retrieving his clothes from the fire, the deceassd attempted to pick up a panga lying nearby but the appellant successfully deprived the deceased of it and in the heat of anger the appellant struck the deceased with it0 The main point for consideration and decision in this case is whether the appellant acted under provocation. The learned trial judge considered this defence and rejected it. Mr. Rutakolezibwa, learned advocate for the appellant, has complained before us against the finding of the learned trial judge but he was unable to fault the finding of the learned trial judge which was based on the evidence of P,W.5 who, admittedly, was an - 3- eye witness0 This witness testified to the effect that there was no exchange of words whatsoever between the appellant and the deceased, and that the appellant entered the kitchen and struck the deceased without prior activity on the part of the deceased0 Moreover, in the statement which the appellant voluntarily made to P.W.1, no mention is made by the appellant about any conduct or act of provocation on the part of the deceased. Since the appellant's statament to P.W.1 almost amounted to a confession, it is most unlikely that the appellant would have forgotten to refer to the deceased's provocative behaviour if actually it had taken place. Like the learned trial judge, we are satisfied that there was no provocation offered by the deceased to the appellant0 The other point for consideration and decision in this case is whether the deceased died as a result of the injuries inflicted by the appellant. According to the post—mortem report, the deceased susairied cut wounds producing fractures on the occipital bones which led to intracranial haemorrhage, pressure and death 0 On the basis of this medical evidence, there can be no doubt that the deceased died as a result of the injuries inflicted by the appellant 0 In other words, the appellant killed the deceased0 As to malice aforethought on the part of the appellant, this can be inferred from the nature of the weapon used and the injuries inflicted upon the deceased0 In using a vicious weapon like a panga in attacking the deceased on the head, with the force which inflicted the injuries found by the doctor, the appellant cannot be said to have had anything but malice aforethought, that is, he either intended to kill the deceased or to inflict qrievous bodily harm upon him. He was therefore properly convicted. 00 - -4- te therefo 1ist slS 4*tbe appeal in its. entirety. 70. f . . I A of December, 1984. DATED (at iJZthis.k1 stI: ' F. L. NYALALI CHIEF JUSTICE A, NUSTAFA JUSTICE OF APPEAL R. H. KIS.ANGA JUSTICE OF tPPEAL I certify that this is a true copy of the original. ( L. A A KYANDO REGI S TRAR