19840508 TZCA Dar es Salaam

. IN THE COURT OF APPEAL OF Tl,NZANIA AT M1·JANZA ( COR1'.M: NYlT,ALI, Co J. , MAKAME, J. h • . l.ND KISANGA, J": • CRIMINAL APPEAL NO. 19 OF 1983 BETWEEN PROTAS s/o EMMANUEL • • o C O o o O O O O O APPELLANT A N D THE REPUBLIC O O • 0 0 0 o o C 0 0 0 • • • RESPONDENT (Appeal from the conviction of,the Hiqh Court of Tanzania at Mwanza) ( Mwaikasu, J. ) dated the 18th day of i1pri 1., 1983, in Criminal Sessions Case No. 40 of 1983 JUDGMENT OF THE COURT J.A.: The appellant PROTAS EMMANUEL was, sentenced to de2th following his conviction for murder by the·High Court sittin.9 at Mwanzao He is now appealing against ,,that decision 2nd he is represented by Mr. Rugarabamu, learnec:i advocate. Mr. Tcmdwa, learned State Attorney, is for the respondent Republic. The fact of the killing of the .deceased KAZI PUNZWA by the appellant was not in dispute 2t the trial. However, while the Republic contended thut that killing amounted to murder, the appellant maintained th<"t the fatal incident was really accidental~ The evidence on which the High Co.urt relied to convict the oppellant was that of the woman P.W.1 ESTA MUYCKERO, who was cohabiting with the appellant at the material time and had had four children PILI Ji,MES P. W. 2 i and the testimony of a witness called by the court itself, GENDO SHABAN., P.W.1 1 s evidence est2blished th2t the appellant and the dece2sed were friends 2nd that on the material day the dec2used wr,s v.isitiqg them, having 2rrivcd ~ oooo/2 2 two dnys previously. On the futeful day she heard the two, the appell mt and the dece,~;sed, quurelling over som? __ ;1ing, and the deceased saying "wote tulizaliwc: w2naume". hfter that, both men went out and later, after their return, the decec::sed went out again, this time alone and toking with him his radio cassette., In the deceased 1,s absence the witness saw the appellaht take out a knife ordinarily used in their home and putting it in his pocketo When PoWo1 enquired why the appellant was teking the knife thus, the appellant told her to mind her own business., They both went out of the house c.nd, shortly 2fterwards, the deceased came bclck from his walk. He hc:,d with him the court witness GENDO and another person called Ml~K;'.SJIM.i..Li-.o Thrice the deceus"~d ·'demanded his money from the appellant but the appelle1nt did not respond thE-1 first two times. The third time the appellant became abusiveo The deceased bent down to fold up his trousers and, just us he was resum:tng his erect posture, the appellant struck him on the chest with~ knife he had taken from the house a short while ba~ko In her evidence PILI too said she heard the apDellcnt abuse the deceased immediately before dealing him a blow with a knife she recognised as she had u$ed i t before in the Ge'ndo' s evidence supplies some b 9ckgroundo Earli.:.::r during the day the deceased had rem2rked that the appellant was refusing to pay him back his mor-~y .. When the deceased told the appellant he wanted all his money a~ one go, the appellant gc:ve the deceased shSo 250/- a11d undertook to pay the bc:lance on the morrowo The deceased still insJsted th2t he must be paid all his money on that day.. Thc:t was in the ofternoon .. Then they, Gendo, the deceased and another person, p2rted company with the appellante .. i. Later, in the ! )" . early evening, they went to the appellant's house and he saw the appellant get out of the houseo The deceased rer"ated his 7 demands for his money but the appellant r minded hin, -J- at hu 'h<.\d 1 already told him he would pay him the following day-. The appellant asked the deceased to leave the pl ace end ubused him. The deceased asked why the appellant was becoming abusive and when the deceased was bending down to fold up his trousers, the a;_Jpellant hit the deceased with a fist and then struck him with a knife. The witness reckons that'he was about only six metres from the two men. In his defence during his trial, and here before us, the appellant has maintained that the sttbbing was accident2l. The knife was in feet the deceas,:~d I s 2nd irl the deceased' s possession~ When the deceased demanded his money, and the appellcmt assured him that he would pay him the following day, the deceased started assaulting him with his fistsw When the appellant retaliated in se1f-dt=fence, only with his fists also, the deceased took out a knife from his pocket and the two struggled for it. The appell'ant managed to get the knife when it fell down, and whc~n he ~ried to run away with it, so as to avert further trouble, the decedsee caught . " up with him and they started grappling for the knife again. In the commotion, when the appellant was about to fall on the deceased, the knife accidentally stcbJ:;!ed' the deceasad., The appellant also suggested that the two 1 adies were not in a position to see what went on as they we~e inside the house. 4 B12rore us the apoellant ·- '· substantially . rep~~t]d the same story he had related in the High Court. He further suggested that, in her evidence, PoW.1 was bl2sed and told lies against him because she did not want him back, P.W.3 is releted to P.W.1; and, like the two women, the witness Gendo is Msukuma while he, the appeilant is not. We have carefully re-evaluc1ted the evidence. Mr. Rugurabamu confessed himself unable to assist the appellant beyond dr2wing up the Memorandum of Appeal. With respect, we are not at all surprised., The appellant is ploughtng the! s2nds .. We are convinced, as was the court below, that P.W.1, P.W.3 and Gendo did really witness the f;:::tal assault and 'that their version is substantially true. The evidence· of these witnesses clearly established beyond doubt that the stc:,bbi.ng was intentional i with the appeJian't'fs own knif"e., not the deceased 1 s, and, .in the ,: ci:rcumstances,,. it was just to hold thot the killing amounted .. ..,, \ to ·murder.., We are ·not et all impressed by the appel1,ant' s version of accident., -~or by his efft>rts to suggest th at the thr~~ witnesses told lies agcinst him. It would appear that the appeilan't wc::s ~heesed of".f by the de~eased'·s ·persistent anci impatient demands for his money end tM,t he delib~rately decided to silence him a,nd get rid of the bother. •-Oeooo/5 ... rl • :.., • ... ;: C" 5 We resp~ctfully agree with Mro Tendwa that this eppecl has no merit 2nd accordingly we dismiss it. 'I) .......· ·, •. .. v·· ~ ·{;i '. .. )· Oh.TED ·at;._MWJ\NZi,. this $th~:q;2,::c~~f. t~:ciy:fJ_'{_19B.4.: __.· ! F. L. NYl.Ll',LI CHI:C;F JUSTICE L. i·1o MJ..Ki,ME JUSTICE OF•· J,PPEJ..L .l , '·. .... .. ' R:· He· K!SJJ\JGI~ . JU~T!CE..,;9F.J,PP.E:hL true copy of the original. ·..:..:-(.' . .1' :I'}.:_;.;_ ( Ih po, MOSHI ":-' SENIOR DEPUTY· REGISTRAR.