19840625 TZCA Dar es Salaam2

.. IN THE COURT OF APPE_AL. OF, .TANZANIA AT DAR ES SALAAM CORAt/J: MUSTAFA, .J.A., MAKAME; J.~--A. AND KISA.NGA, JoA.o C:RIMJ:}IA"j:., APPEA•t.,· :No.. 10 OF 1982 Between ATHUMANI SELEMANI MALILO . . . ., o • ·• APPELLANT And THE REPUBLIC. o o • • ,o .. ., .. RE'SPONDENT (Appeal from the conv:i,ction of the High · . Court of Tanzania at Mbeya·) (_B~· · Ao Sat-· ~+-3, J.) dated the 14th day of September, 1981, :tri Criminal Sessions Case No. 5 :r· 'or 197,9 JUDGMENT"-OP-'THE COURT_·.,,,... The appellant was charged with murder. 0 have attacked the deceased wh 0 died sh~rtly, afterward~ The: deceased h~d a fractured skull which was a cause of death,· _but:: it was also discovered that he was at the tiine of his. death, suffering from sever~ diarrhoea.. The trial judge ,. gave. the bene~f-i: ; . ;_ of the doubt to the appellant and found that the d~ceased could' ., .. have died' from cfiarrhoea or dysentery and acqui t~ed him of murder but £ound him guilty of assault causing actua'i bodily harm arid sentet\ced him to 2 years inprisonment.;. There was evidence, which the trial judge believed, i,,J'h°ich established that in a fight btiitweeri the parties, the apreHant had· inflicted· injurie_~ <>n the deceased,· shortly af_ter which. the decease_d .•died.. The 't.ti·a·1 judg~/ ·aiter due considE!.ration,' rej.ested · the :evidence. 'a·dduced by' the_· appellant, -who• eventually ca'me up t . = with, t1e- •i~s',).e• of ielf-·ctefente. The appellant, · in his $tatement . ,· to· t:t?~ .Pol,i'c::e after·his arrest, blamed P.w.1 for :~e deat~. of the_ deceased, a·rid ,-~drl'li ft-ed. in cour·t that h~ ·had iied t.·~,'_.'... the Polic•e. · . the In -~n extra-j~dicia1 ·stafe~ent to the Justice ofLPeace', he ·made ·, '· ~-· no r;~_ff:!rence to -a ,-figh'·t- with the deceased, and in court, explained·, :·th.qt. hE/ had made· t~at·,: stad:fineht' to the Justice of the Peace because he thought that the: Justice· of th.e Peace was a Police 0ff-i~ial. • · .14!1 . _ ..,.. 2 In court he first raised the issue of self-defence. We think .... that the trial judge was right in rejecting the evidence qf ~e appellant in the circumstances. The trial judge be;I,ieved P.w.,,1 and P.Wa2, and from the evidence· of those two . pr9se,:;:ut:toh I witnesses, it was clear that the appeilaht struck and stampl3d on the dece~sed? ca~sing hJm injuri~s. in 'this appeal wh:tch we dismiss. SALAAM this 25th day of June, 1984. A. MUSTAFA JUSTICE OF APPEAL L. Mo MAKAI"JE JUSTICE OF ,APPEAl, .... ' . ,.... - ~ I