19851019 TZCA Dar es Salaam 1

IN THl COlL/T OF ,4Pf'1i ..Ui OF T1-1NZ.AN!Jl ........ .... -......-iNZA Ai' ,ifri ~ • • • VE.L?SUS THJr RFPUJ1LIC. • • • . • • • • , . • • • • RFSPON.DiNT . (App~al from th~ 0011viction of the High Court of· Tanzania ctt T&bora) (N.M. Mushi, J.) dated · the 15th day of Janu.:1ry, 1985 i ill • -- JUD~ :-:rII-IENT OF THJr CQJ RT .. :a...e. ... --~ - -··· .... ,....., - - - -.- .... ., ......... The three ar,ellants, (hereafter called Jccused l Juma Faizi, ,,Accused 2 Hamisi Karume _,md •iccuae~ 3 Laurent Lutebuka) were convicted of murd;r a.:n_ the High Court (Mushi, J.) and are now appealing against 1;,heir convi ct:i.ons •. • The story began_ in a pombo cl1,1b at Kas1,1lu one night, on or about 21st September, 1973. P.w.1, a woman, was drinking in a bar with he11 brother. P.W.2. She be::;an drinking about 8.oo p.m. and continued to· about midni..:;hu.-. She was joined by th~ three appellants abou~ the time she be.;an ~l'in:l-:ipg. They we.re. drinking 11K~roJa 11 • Befo;i;te P.W.l left, the dec(lassd, har p,-~l'i'.lnoor, joined her and it sesmed that .Accused 1 resented the dec3ased greeting ~P.w.1.- ~Ppsll'ently the deceased 12ft •. Whcn_p, W.1 was about to 'leave the ~' bar, ~.1!ccused 1 said that he 'w0nld 15 0 and fetch a· vehicle·. ~- short time later i!ocus·ed 1-Ccl;;Je in a landrover, while P.w.1 and \."'.'.·'t;_: t.others • were walki~ on the :iroac1.' Later on P.w.1 entel'ad hr:r room in the house, 1-rhilo P.W.2 had r'lc ..e·ntered· ·, his room.. Shortly ·i;hHaaftar, the dGcGasad knocked on P.t-r.1 1 s room , and ·entued,, ·P.W.1 anc!l tho deceased had made the arra~~ment ' previouslye ! ~ ,· ••••••. /2. 2 ... Very sho:dly the.re after .11cct1scd 3 .pus.hcc: ~J)en ~he door of P. !'l.l 's room arta entered and a quQrrel arose bdwaen him and the c1ecec.1sed, arid a fi~ht started. ..:iccus,HJ 3 held thG deceased and ilccuscc1 1 entered the -room with ,:in iron t.:lr or rod. l~ccused 3 snatched tho iron bar frOll) .4c"'1sed 1 and hit·-i11a doceased on the front o:f tho hGad with it, Accused 3 holdin,:; tho iron bQr with both hancls. llw,ing that time accused 2 wao holdillel tha dec,aeed and pulliru the toeticles o:f tho deccac,od. r,:i,l tdad to raise an alarm, but was threatened h--<J 1-lccuscd 3 to desist, or P.w.1 would be finished. Tb.a three appellants too!: the clecsased awey- and put him in a vehicle which drove off• P.w.1 wue a mar.ried uom.:1n ,;,.rhoee .husbc1nd happened to be in Pl'ison at the time , Tb.e . foll owin;; mo~ nini; on her w'ir to visit her husband in pl'ison she- sc.1w people -fif.lb.irc ollt a body fr om the river., and she l.r racO(Jnised the dead body oi the dc0-0ased, P,;1,1 did not immediately report that the thre• <Dp,Jlants had assaultod tho dccaas,d the previous night in her room .:is shG wc:is c:ifrc:iid of her husband discovGl'ing _ho~ liason witl1 the dcc0cisad.. ThG police Qrrested P,W,l the follo>dng-dey- and P,1/,l.,iOVe tho full details to tho poliCG, P.w.1 stated that she h:.:id partaken of drinks on tha _ mataric11 night but shi2 w..:is not drunk. The de ceasod -was mora qru-nk thM tl¾, 3.appel14nts, - '!'he 3 appellants appea,od to be drunk, ~~t ''not 'klo much". ThG dcc:J.::iscid wc.1s hit once on the hGctd. P.W.2 oorl'obratcd P.·-; .. 1 about tha thiiea appellants joining P, W,l w4en P, 11,1 '.lQs drinkin.:; in the beu, on the motariaJ. ni;;ht, P,11,2 ••id ha was dzunk that ni3ht.und from his roOIJl.he hoard a slap from P,W,l's •oOIJI and heard something folliiu down, !fo could so e into P, W, l ' s ~o an thr ou_;1t s omo open spaces in the wall , and there was • Ko,oboi in P,:i,l's roan, He saw tha 3 appallants carrying a person out by the.back dool'., ~P.w.3 c1nd P.W~4L.both ~l.:ltchmen--of tha Water Department a11a Can works r a •P• ctiv cly, t, ntHic d that llccua, d -1, on tho matar iaJ. night, -went to their yards to collect a landrover, belongin& to tho Area Commissionar of whici, ,iccuscd 1 was the driver, ,1ccusad 1 took out tha vehicle anc: did not .1.1ett1r11 it that nii3ht. F? : er; • ,/ 3 ,· / P.T:1.7 1 a Police Offic~r, Cil':i:"csted .Accused 1 ~ma ..:lccuscd 3 on or .:ibout 22nd September, 1973, ,:ind on the following d.:iy- Accused 2 was qrrested, llccuscd 1 and Accused 2 denied they ware at the bar with P.W.l. on tta...J11.::iterial ni.;ht.----- .:caused 1 said he did not know P.w.1, P.W.2 and tho clace.:rncd . . .iccused 3 said he only know' • - j P.ir.1·and tho deceaswd by i'~ce, ..:Jccused 2 s-:iid he wqs trtwell_iug from .Dm, es S<-1lac1m to Ki.:isnJu. IIc lat·t D.::ir es Salciam on 21.9. 73 cind arrived at Kasulu on 23 ,9. 73, He said he wc1s . cirrested on 3,10.73 at .::ibout 5.00 p.m. Ha said he did not know P.w.1, P.1·1.2 and the de ceased• ~c Ct: .tlll tha three .appelLmts mainti:lined that P,W.l and P.:-:.2 had~told lias in court • •-iccusad 1 also said P.W.3 and P.:·1.4 also told lies. Mr. Kahaiuwa app€llrcd for the appellants before us. He submitted that there w.::s -:vic1Gllce th.';1t the appellants wero drinki~ fr oqi ...8-... 00 p,m, to . .:ibo1rt midm~ht with P. W,1, ~na . . that they must hav~ been too drunk to h.:iva bean-able to form. an intent. However P.:1.1 s.:iid that they were not th.::it drunk, olthou.:;h they hod portokcn of drinks that ?llilht. P.W.3 teotifie~ I ,' "·'- that .Accused 1 was not dru,~, whon he came to pick up thG vehicle, ( although ha hod p.::irtl'lkqn of c:rinks., The appellants did not avor that they wer<2 so dnmk that they wcra inc.::ipabla of forming an intont. In f oct thoir dof cncc was thot they were not in the bar on tho matGricil night. The trial. judwa f ou,nd that ul though tho appclL.mts .had partcike:1 of drinks, thGy ccrtc::iinly WGre not so drunk a.s to be incap..:ibla of i or;;1iit; c:in int:nt. The judge l'efarrad to t.hd.l' r conduct hci ore .::ind clf'ter the o.ttuck on the_ doceaaad. The appellants conied tha deceased out of the >oom ot P,tT,1 and put him in o ve;1icle, ond must h•ve dumped the bo<\}' in th<: river tq .s.imulutG d" .:rth ·1::iy··a.r owni.nc. I ••••.• /4.- /ostm~tem - 4 report a·t;Cited that the causa of dec\th was tha / head injurT _from cl. sealp wound 3 c\n x 1 cm x ½ cm rasul ting in I bleeding into the looss con:~c ctine tissue of the scalp fr c:1cture. / ThJ° fractUI!G could hc1vc bc~n c..:,usod by a. blow with a blunt instrumGnt. The cause of declth Has not by drowning. The trial judga ll~s si..(tisiied ;that the appellants wGra not so drunk 1 th.:.t they did Ln°~no1-1 uh.:i.t they c1id', and was satisfi~d that thGy ha~-~ tha necessc1ry intcntio:.1 to cause. death or causa griav ous hc:irm. when thay attao~~ed ths c1: ca .::w :;d. He <U.so held that they held a _common intention when ..ill three c:irrdlants attaokocl the deceasGd and la.tar dum!,ad the body in tha-rivc:r. ! .As to __ ident~f;_(?atio;.1, the tr.i.9-1 judge was satisfied that P.W~l and P.W.2 had pr.operly identified the thrGG appellants. P.w.1 was with them for a lo~ tima at the bar~ and the judge directed himself carefully on t!;~ uvirlenca df :e. w.1 bef ora he accepted hQ.r as a witness of truth~· He f'"nnd corroboration in the evidence of P.W~2, and partly in the evic1i;nca of ·p.w.3 and P.w.4. He also hcld.,thQt tho attack dn the doce:ased was a dcli~'r:rata and cc:il cul at ad o:!Q •· ilftor r(]ViGwing the: r.vidcnce the trial judge rejoctad the alibis put forwurd by tho appellants. In our opinion tha tric1l juclgJ, on the evidence beforo him, wqo justifiad in convicti~ -th:. 3 uppcllants of murder. Wa · find no merit in the apr;:;als \·1.hich -J.:..'c cJioi:1iarrnd. t- .1. I'.iUST .iF'il PP 11 , . - 5 - ' J,, C , ' ' : L _ __ 1...__.___ • . 72 1