19850321 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF TANZANIA j I / I AT DODOMA t I ( CORAiV': 1 I NYALALI, CoJo, ;MUSTAFA, JoAo, .and KISANGA, J.A.) . ! I C'RIM!NAL APPEAL NO. 1 OF 1983 ! BETWEEN FURAHA KANKA •• o ••· •• .; ••••• - 1 I •••• o o • • • • • • • • • • • • • • • APPELLANT I AND ' THE REPUBLIC •••• ~ ••••••• ~•••••••••••••••••o•••RESPONDENT 11 i (Appeal fro~ the conviction of the High -.~ourt iof Tanzania at SINGIDA) (Hon. w. J. IMAINA, J.) dated the 3rd:da~ of ~ovember, 1982, I ' I ' j·, I in ,I I I I Criminal Session Case No. 6 of 1981 ,\ JUDG~ENT. OF THE COURT MUSTAFA, ' The appellant \~as convicted of the murder of one Hassani Kumbi ,. .r i and was sentenced to death~ He is now appealing. I 1· i P W~2 Halimci testifi~d that in the evening of the material day 0 1 the dec:eased had:, viiited , Iher house and was drinking some h,cal liquor~ The app~~l1nt shuitly thereafter ais~ called. The , Ie ! I J • appellant and the deceased quarrelled ahd the deceased then left ,,· 1· . : Ir • her house and went ,~way.,, P.W.2 stated the appellaht, who had ?een 1 I her lover for the· prast two years, then asked her to have sexual ' I intercuurse, but/P.~.2 d~clined on the gruund that PoW.2's I I 1 husband might reitur n anyltime. (The appellant then left P.W.,2's I' ' house and went in ·1 the• , ditection ; \which the deceased had talfen. A short while la~el., she heard I the deceased crying that he was dying. P.W.2 gdt frightened and went to a neighbour's house I ,f I 'i ,; I where she remained!until II her husband's return. P.W.2 stated ' ! ,:},."'- that the appellant,had.~ore,to her house that evening carrying ' ( \ a spear. i ; \ i On the following m rn/ng P.W.2 went to the deceased's house, and discovered the/dead body of the deceased lying on-a bed, 1 with blood on the body. P.W.2 saw stab wounds on the chest and J abdomen. PW 2'left the house, and did not.report what she had .. ~ j I I I !' J see to anybody. P.W.2 said' she did not make any report because she did not want to become involved and be called as a witness. She did not know if the appellant had killed the deceased, but in the circumstances she th6ught that the appellant had done so, as the appellant had followed the deceased, and shortly thereafter I the deceased was heard cryihg qut that he was dying. P.W.2 only told what she knew later when the body of the deceased was discovered and she was being questioned. About 5 or 6 days after the death of the deceased a foul smell was emanating from the deceased's house, and this led to the discovery of the dead body. Three villagers, including the appellant, were arrested on suspicion, and in the course of the investigations by the villagers, PoWo2 Halima gave her account of what had happened on the material day in her house. The appellant admitted that he had speared the deceased and produced the spear. He admitted the killing to P.W.3, a ten cell leader, P.W.4 the Village Secretary and P.W.5 a militiaman, to whom he surrendered the spear. The admissions were made in the course of an inquiry _into the k~.lling, and were apparently voluntarily made in answer to questions,, after P. W.2 had stated what had happened in the presence of the appellant. The appellant also rnad:e an extra judicial statement to a Justice of the Peace P.w.s. In it he stated that he had gone to P.Wa2is house oh the material day and ~et the deceased thereu The deceased asked him what he wanted, and the appellant said that I he was after his lover. Th·e deceased then •istood up and aimed a fist at me. I warded off the blow with my left hand. He repeated the assault at me. Because I had the speatt I struck him on the ribs, I do not know which side. When he was injured he rah away to his house and I too went to my house. No one raised alarm.ii The trial judge and assessors disbelieved the pact of the appellant's statement that , the deceased struck or atte~pted to strike him. The appellant did not testify nor make a statement nor call any evidence. 'The trial judge believed P.W.2 and held that there was no fighting in PoW.2's house that night. Indeed in admissions concerning the killing to PoW.3 7 P.Wo4 and PoWeS the appellant did not mention any attack on him by the deceased, but said that their disagreement arose because of PoWo2 Halimao • ■ oo/3 ... 3 According to the post mortem report the deceased had two abdominal wounds wh~ch penetrated the intestines, a cut wound on the upper arm and another on the left medial thigh and other superficial wounds. Death was due to shock from the multiple injurieso The trial judge reviewed the evidence, was satisfied that 0 P W.2 Halima was a truthful witness ~nd believed what PoWa3, P Wo4 0 • and PaW.5 had stated about the appellant's admission that he had speared the deceased. The judge also accepted the confession made by the appellant to PoWoe, except as to the portion which related to an alleged attack on the appellant by the deceased in PoWo2 1 s houseo The trial judge held that there was no legal provocation, and that there was no doubt that it was the appellant whu speared the deceased to death. ~ro Alimwike for the appellant has submitted before us that the judge had erred in not finding legal pruvocation. But he could advance no good reason or ground for challenging the trial ( Fo Lo NYALALI) CHIEF JUST rd; Ao MUSTAFA ) JUSTICE OF APPEAL ( Ro Ho KISANGA) JUSTICE OF APPEAL a true