19840508 TZCA Dar es Salaam3

H/c'~ IN THE COURT OF APP EAL OF TANZANIA L - ~j AT M\tJANZA (CORAM: CRIMINAL APPEAL NOo 7. OF 1983 B E '1' W,.E E N RASHIDI SUDI o o o ., o o 0 0 0 0 0 O O 0 APPELLANT A,N D THE REP UBL IC 0 0 0 0 0 0 0 0 O O C 4 O O O O O O RESPONDENT ! (Appeal from the conviction of the High Court of Tanzania at Shinyanga) (Chipeta, Jo) dated the 21st day of January, 1983, I ' : in Criminal S~ssions Case Noo 19 of 1979 I • JUDGMENT OF.THE COURT KISANGA, Jo Ao: The appellant Rashidi Sudi 1rias convicted of murder and senteDced to death by the Highi Co:urt sitting at Shinyangao He has now appealedo The killing was proved and a.dmi tted, and the only defence raised at the trial was that of provocation which, however, was rejecteda Mr. J. Mwakajinga .appeared for the appellant in ,-\ . .~ this appealo In his memorandu.m of appeal he had filed three grounds, but at the hearing we a~lowed him to file an additional memorandum containing one further groundo The essence of Mro Mwakajinga's argument was that1he trial court wrongly rejected'the appellant's defence of provocationo The appellant's defence is contained in his unsworn statement at the trial in which he claimed that he killed the deceased ' . because the deceased uttered threats to kill him and his family by witchcrafto The trial judqe sitting with his two assessors j ') L found that no such thre;:it was uttered., They found that the true ~position was as shown by an account which the appellan~ gave to Vincent Sadiki (P .. W.. 2): a ~ol~re ~fficer, and by his extra- judicial statement which he made before Mr .. G.. H.. Chabruma (P .. W.. 7)t a justice of the peace.; Mr, M·,vakajinga sought to challenge the admissibility in evidence Jf the, sa1d extra-judicial statement on the ground that it omitted certa~n matters which the appellant told the justice of the peaceo The same objection had been raised at the trial but it was overruled~ We are satisfied that the objection both here and in the High Court was unfounded .. The i appellant's accounts to both witnesses made no mention of the defence of provocation which the appellant raised at the trial, and the learned trial judge took the view :that if it is true that the deceased had offered such provoca'tion the appellant would have mentioned i't to P .. W.2 and P .. W,7, bu·i: the fact that he did not gc to show that the appellant is now raising it as an 2fterthought or a fabricationo We can· find no fault ,;11th such reasoning of the learned trial judge.. Once the oe:fence oi provocation was rejected then there was no alternative but to c·onvict the appellanto In his additional ground of appeal Mr., Mwakaj 1inga raised the defence of , self defence but it is quite clear that that defence is unmaintai- • ~able on thP. facts ·. of this case .. I t I, The learned trial judge after holding that the deceased did not provoke the appellant as the appellant claimed in court, went on to say that even assuminq that the deceased did utter such threats of witchcraft that did not a~ount to provocation in lawo Mro Mwakajinga made a long and lively submission on this point and referred us to a number of authorities. However in view of the :".'inding that the deceased did not offer any provocahon to the appellant, it is now not necessary to review and consider counsel's submission and the authorities r.:i '·n--' -- ':hj_s point~ ' \i • I and it is accordingly I_ I I I ii i