Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT DAR E5 SALAAM CCRAM: MUSTAFA, J.A.; KISANGA, J.A. And OMAR, J.A CRIMINAL APPEAL NO. 7 OF 1984 Between JUMA 2UBERI APPELLANT And THE REPUBLIC respondent (Appeal from the conviction of the High Court of Tanzania at Dar es Salaam) (Mnzavas, J.K.) dated the 27th day of July, 1983 in Eriminal Sessions Case No. 22 of 1979 JUDGMENT OF THE COURT MUSTAFA, J.A.; The appellant was recognised as one of the robbers who had waylaid and attacked a party in a /notor vehicle on the road at night. P.W.l and P.W.2, who were passengers in the motor vehicle saw and identified the appellant by the head lights of the vehicle as the appellant approachec) it. The appellant was their co-villager and they had known the appellant for a long time before the incident. In the course of ttye* jobbery a 5 ydar old child of P.W.l was snatched awa"y by the appellant. The <3hild could noft be found human bones and a skull and some halt were discovered in the bush about 1 mile from t.he incident, N©>©r the bones were the clothes and ear rings worn by the said Child at the time she was abducted. The boness and skull were found to be that of a child between 5 - 1 5 yenrs by the pathologist and the hair was human hair, as found by the Government C^hemist. In our view f this evidence sufficiently established £hat the bones and skull ■rzr;3.hair were those of the abducted Child. We are also satilsfied that the appellant was properly identified. P.W.l immediately reported to the authorities that the appellant wag, one of the robbers and that it was he who had abducted the fl fhild. Both P.W.l and P.W.2 described the clothes the appellant was allegedly wearing at the time of the robbery, and such clothes were found in the appellant's house when it was searched. Miss Mutabuzi for the appellant had submitt^d^hat there was insufficient evidence of the cause of deathZss. also th a t the circumstances do not point irresistably to the appellant as the one who had killed. We are satisfied that the appellant was one of the robbers, that he had abducted the child and was the last person seen with the child when the child was alive. The bones of the child were found a month later about 1 mile from the scene of the incident. The appellant gave no explanation as to what he did to the child after he had abducted her. It is true there is no evidence as to how the child died; she might have . been assaulted and killed or might have died of starvation or attacked by wild animals after she was abandoned in the bush, or fr°m some other cause. However the child was in the custody and possession of the appellant, and he, the least, had abandoned her in the bush, and this certainly, for whatever cau?ef brought about her death. Clearly the appellant had caused the death of the child in terms of section 2 0 3 (e) of the Penal Code. We are satisfied that the circumstances irresistably pointed the appellant as the person, or one of the persons, vjho had killed the child in the course of a robbery. We think that his s cjonviction for murder was justified. We dismiss the appeal. DATED at? D a R ES SALAAM thiyj 15th day of August, 1985. A. MU5/TAFA JUSTICE ^)F APPEAL R. H,, KISANGA RUSTIC/£ OF APPEAL a . m . a . omar JUSTICE OF APPEAL certify that this is a true copy of the original. SENIOR DEPUTY REGISTRAR.