19851121 TZCA Dar es Salaam

I HJ THZ COUJT OF ..\PPE'1--'.L OF TriHZMHil CJ Ir.II lL1+i ,-iFF E.. ,L NO. 40 OJ· 19 8 5 0 '• • • • • • • • , APPELLANT V:JHSUS THE ffE'FUBC::c. •• • . o • • • • • ,, • • liESPONDE'HT Cippeal -f'r,0n1 ,ths co:nviction of the Hi.sh Court o:C Ta11~;;;11ici 21t Tabo1 a) (Mushi, J,) 1 datsd t:1e 1st :1 <· o:l: ITovemher, 1984 in ,9!_i£1.i .:1.1:ll. I~ ;CJ?.i,0_n_s. ,C_ap~~~ }J.2..•__}§~ ~gt·~ ].3Jl The appellant was u.lJ 2,~r:cl to have killed thG dec,:sc1scd, a woman who vrns livi~ wit:: him. He_ w~s alle;;ed to have cut off the decea.sed's 'I head 7 completely s:vcr:il"t; it, as a reoult of which the dcccc~sed died instantly. The Hi,:;h Court convicted the appellant of murder and he is no.-: appc al ing. The cc1se for thci .:(cpn1,lic was based primctrily on the evidence of P.U-.1 and P,W.2. P.J~J. WqS c; co-villa;;er of the appellant, On 011 about 20.4.75, at about noon, wl1ile P.:-1.1 was in his house, he heard the appellant callin__; out his name. P.W.l came out of the house and saw the appell,a.nt <-1l)out 100 yards a.way. P. H,l went up to I the appellant and the appsllant said to P,l·T.l 11 Njoo uone nimeuwa;i. The appellant was holdi11;_; a pa11t;-l. .\ de ad body wi:ls lyi11ts near where the apl)ellant was standinJ, that of the decea.sed, with thG- head completely severed. F.~:T,1 ·cold the appellant to throw down his paTI£sa 1 which .. the appellant did~ p~-,1.1 pickG-d up the parl(sa and held .t:1e left hand of the appell~nt an¢\ tonl<: him to P.W.2 7 the Villu.:.;2 T:slozi. P.H.l explained to P.?.-2, in the presence of the appellant, what P.~.1 had seen and hear~. ••.-.- •••.. /2. P.W.2 corroborated the eiidcnce of P~Wjl, and stated that afte1' hG had heu:rd whc;it F •. :J.l had told him, he asked the appellant why he had committed the. oif2nca, The appellant did not Give an answer. P. U.. l also sti'1tGd the1t the appellant gave no a11s1-,er to the question :;::ios6d lJy' P.:T,2c The appella:1t WqS cir1'r;s·c::d and handed over to the police. There was soma GviC.:::nc\', 133, .P.11.3, the Jrandfc1ther of the deceased, that tl1e decec1s:;d 1 who had a child with the appell[lnt, had rdusad to stciy wHh t).1.:: c1,ppellant, as the appellnnt i-,Ets uni:iblc to provide for the deccc1s2d ,:ind hr:r child. 1 • The appellant testi:f:i::i'. ~1.t 1U.S trial, and called no witnesses. His mciin ground was thcrt r.;J.l and P.w.2 had both told lias. He stated th~t he h~d called r. H.l and inf or wed P. U.1 thc:it he had found his wifG, thG dac:::c1s::d, kilJ :;d 1 pr0sumc1bly by some -one unknown. P.T·J.l took the cir:,Gllant to P.:l.2, but P.H.2 did not believe tho explanation 5 iven by tha c.lppalhint. Jls a result both P.W.l and P.U.2 conferred, and then they cll'l'GStEd the appellant. The .:tppellEint mclintained that h:: did not :~ill the decea.sed. Mr. ilut;arabcr·m apps~l':Jd :fo1' the appellant befors us. - Mr. ~~u.;:_;c1rcibamu su·:.1mitt:id -chQt P.·.:J.l could have misha.::U'd what -~he appellcint said. :n the coats~:t of P.W.l's evidence, we do not thinl~ tlu~t Ground has any substa.i1cc. lJor was P.1'1.1 asked if he could have mislHc1rd at thG tr1i~l. F.::.1 saw the appellant with a pci!lf;a in his -hand; this appa:i:1an-W.3, the appellant had denied. It is a qu0stion of credil:1ility, '· not e1 question whether P.Wol wels mistc1ken • . . Than Mr. liUG .:::r QlJeiIDU su__, 0 yst0d that the c:1ppellu.nt could have been in a numbed state c1nd .. thcl'Gforc he -did not reply to P.:1.2 who had ciskcd him why he had co:;1;-1L·i;,:c: the offence. Trlith respect, thicit se'.;ms rather far fe:tchcd. '11l1:, 4]:ipell,:int at no stqga sl\:_;__;i:rntcd that he w;.:is so shocked thc:it ha bcc;:;me numb when he discoveracl -tiha dccec:1sad dc2ld body. In l1is testimony the c;ppcllant contandsd -that P.l-J.l and P.W.2 hc1d lied •a.,>:iinst him. The cippellant's tastimnny could not in ciny w.:iy i:.1.cc0r,1·,10dcitc the plcc:1 that he was too numbed to hc1vG h<::on c1blc to l'cpl3r ·i:;0 c:i -simple query. If the appcll;:q1t had rcJlly found the d.ec1c! l,·..,cl3r of' the dcceqscd as he nc1rratad, ••••o••/J. I 3 it is clear that he woulc cs:.:tciinly have told P.W.2 that fact when "tha P.-t·1.2 asl::ed hiniquesti()n c1t t]12 time w:1en the appellant was brought to P.H.2, Mr. Bugarab.:imu ctlso sUl)mi tted tl:H~t the trial judge should have accepted .the vcrsinn of the incident as Given by.the a.ppelJant instead of accapting .that 6 iven by ti1,3 prosecutionc It se:ms to u:c; that the version of the incident giv~n by the appellant was an afterthought. T:1c1t version was nave:r put to the pros,3cution witnC:;~:sss 1 especially P.w.1. The appellant only rGVaaled it when he t~stificd(I - The trial judge hc1d cc1:rduJJy considered the evidence adduced r before him, and he w,rn full~ s<'rtisfied that both P.w .. 1 and P."J.2 We can sea no reason to diffef• '•' -Jfff§TI CE' OF .dPPK 1iL "-=-'"·='' .. '"'·"' ,,.._, ~ •...-T-•---..,c"'r· ...... ,• ~ 1; Mo M_iKJMIT JUST1CIT OF APPEAL ••-:. ....., • -~-.,.~ ,.. '"-'~---- . . . . . _ . . , ~ _..... II:::;:;:' , I certify that this is i;t true coiv of the originnl.1-