19850510 TZCA Dar es Salaam

IN THJ:IJ COURT OF APPEAL OF T.AN:lt;lU.A .A T r[i -,-ui NZ.A CRIMINAL ilPPEJlL NO. 34 OF 1985 Between .. • 0 • • • • • APPELLANT fl n d THE i1EP UBL IC. • • • • • • • • • • • • • • • :a.i:GSPONDENT (.appeal from the conviction of the High Court of Tanzania atWiwanza) (F. A. Munyera, J.) dated the 13th day of October, 1984 in Criminal Sessions Case No. 36 of 12,8_.} . JUDm!i.l!."'NT OJ:t1 TH.ci: COUrtT The appellant was convicted of murder and sentenced to death by the High Court Sitting at 111usoma. He has now appealeu. against both conviction and sentence• The facts cf the case were short and simple. The ap pe llan t approached the deceased at night and requested him to go out with him in search of a lost head of ca ttleo The deceased ref used because it was night time. Whereupon the appellant spent the night there with the deceased,, On the following morning the appellant invited the deceased to a drinking party< The deceased accepted the invitation and a number of ,other people also attended the party. The appellant wen-t to the party armed with an axe • .At the party people were drinking the illicit brew popularly known as "moshi"• The appellant boui._;ht Shs. 60/= worth of the brew and gave out a Shs. 100/= note. ,_ The appellant in his unsworn statement of defence clai,ned that while drinking was {;OinG on and while awa-iting his Shs-40/= change the deceased and three others a ttac ~ d him and robbed him of Shs. 3, 000/:::• ..... •••• JI 2 ' . The deceased also snatched fr~m him Shso 20/= being part of the change as it was being handed· to him. Then the deceased told the appellant to go with him to his village and when he refused the deceased and one Werema thr€•4;ened to kill him. He tried to run away but they surro.unct.ed him and in the course of self defence he picked up a piec3 of wood and hit the decea secl. with it. He also hit ,ferema who tried to attack him and this enabled him to get a chance to run awwy• The learnea trial j ud.ge ai tting with his two assessors accepted the prcsecution evidence and rejected the defence; and we think that he was entitled to do so. There was overwhelming evidence according to p.v/.1 and p.·v-1.5 whom the judge and assessors believed showing that while the drinking party was going on, the appellant suddenly and for no apparrent reason attacked the deceasect. 1 c-uttinG him with the axe several times and killing him instantly. According to the post-mortem report the <.ieceased died from severe cut wounds which could not have been inf lioted with a piece of wood as claimed by the appellant. Mr. s. Kah.,mgwa, learned Advocate, who appeared before us urged one ground of appeal, namaly, that the appellant should have been found guilty of manslaughter only. However, in the course of his submission he conceded, rie-htly in our view, that there was no valid 5Tound for pressing that submissionv On the evidance before us we are s,di sf ied that the learned trial j ua.ge was perfectly entitled to come to the conclusion which he did in this c2.se, and we can find no reason to interfere. In the result the appeal is without iTie_ri t and is accordingly dismissed in its entirety. DJlTEi.J at hivrnNZ.ll this 10th day of May, 1985. A• MUSTAFil JUSTiCE OF lJPP~~L L. lJ. Ml!KJllViE JUs·rICi!J OF ilPPElJL. / ) /