19851202 TZCA Dar es Salaam2

· ; , , :' .·f < ~ :~~ , -• '~; '1! J IN THE COURT OF APPEAL. OF TANZANIA ,, ,,c· A'I' MWANZA CORAM: MUSTAFA, J .A O , MAKAME, J .Ao And KISANGA, 9 CRIMINAL APPEAL NO. 70 /198 5 J_.~ ' BETWEEN l.KERARYO MWITA ) 2~MARWA s/o NYANCHARWE ~ - - - - - APFELLANTS -·· ~- Versus THE RIFU:SLIC ~ - - - - - - - - - - - - RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza)(A.G.G 0 KORROSSO, J 0 ) date the 10th day of May 1985 0 in Criminal Sessions Case No 1 52 of 1)84 Ji •f JUDGMENT OF THE COURT MAKAME 1 ~J ~4~: The High Court.sitting at Musoma convicted the two appellants ~ of Murder and duly sentenced them to death~ ThEY are appealing to this ~ourt before ~ich Mr 0 Kahangwa 1 lerned advocatet represented them. Mr. Mattaba 1 learned state Attorney, resisted the appeal. The deceased in this case, NYiu-vIHANGA MAMUTI, was a self- confooaed thief of a goat belonging t9 F .W .. 5 WILLIAM MAKEI\TGE. During the evening of the material day, 8th January 1982, the de7i'eased was chased by a large number of his co-villagers at Kubi telele, T3.rimc J District, when he was found carrying the meat of a goat which later turned out to belong to F "W.5.. In the process the deceased suffered a severe out wound on the right elbow and a nasty stab wound on the right buttock, resulting in haemorrhage from which he died, according to the post-mortem examination report, ~.F 0 lo On the available evidence the learned trial judge found the two appellants to be the ones who killed th.e deceased, with malice aforethought, and duly condemned them to death. Mr. Kahan 0 wa submitted that the testimony of P W l NYAMHANGA 0 0 MKAMI the dec0ased' s nephew, only est,ablished that the first appellant MWITJ. was merelJ standing nearby when his co-accused, NYANCEANGWE, was_ stabbing the deceased., If the first appellant did use a club be did not inflict any:.-~jury which contributed to J . 0 ... /2 ,- Ii.,., .•. ~1 2 the death because the medical evidence does not disclose any injury caused. with a blunt instrument. Iv~r. Kahangwa further submitted.that the two appellants' common intention was to arrest the thief, r~ther than to cause him grievcus harm, so that the stabbing by the second appellant could not be attributed to the first appellantq Lastly Mr. Kahangwa contended that, in the cir,cumstances of the case~ whereas the second appellant. might h:1ve been over- enthustastic1 there was really no malice in what he did to the deceased. Mr. Mattaba sought to suprort both convictions. He drew our attention to the Deceased' s Dying Declaration as testified to by various witnesses and to the appellants' alleged admissions. that they assaulted the deceased. Mr. l\l!attabcf iq;:>nceded 1 however, that unless the Dying Declaration was accepted in toto there would really be no evidence linking the first appellant with Murder. Regarding the second appellant, Mr. Mattaba .appeared to us to be wavering as to whether or not he was supporting the conviction for murder but finally we understood him to suggest that it was a Manslaughter/Murder borderline case. We shall deal with the first appellant first~ There is no doubt that he was one of the villagers wr.o took part in chasing the appellant and we are satisfied, that despite his laconic and rather stupid statement in court 1 he did indeed assault the deceased. With respect to the learned trial court, however, we are, on our part, unable to hold that he took part in killing the deceased. r.w.1 saw the first appellant at the point when the chase was ending, at r .W.l's mother's house. The first appellant I just stood there when the second appellant was stabbing the deceased, and r.w.1 did not say that the first appellant was armed with anything which could have caused any of the injuries which the doctor found to have made the deceased to die~ The first appellant was one of the several villagers who gave chase and the evidence is that the second appellant was only one of the very many who were armed with an assortment of lethal weapons. The first arpellant was found close to the second appellant merely because the two were the fastest of the chasers and we cannot, from the evidence, hold that the two appellants shared a common intention other than that \ of effecting the deceased' s arrest.. We ,are therefore unable to say that the first appellant was also r~sponsible for the stabbing and, as we do not know at which stage the daoceased sugtained the other ts adtt 3 - injury which contributed to his death, we 'HE: un-J.ble to sustain the first arpellant 1 s conviction., Cons;3equently we 3.llow the first arpellant's appeal. We quash his conviction 3nd set aside the sentence of death imposed oh him 0 Unless he is otherwise lawfully in custody the first appellant, KERAYO MWITA 1 should forthwith be released. In his sworn evidence in court the second appellant said that it was info.ct he who first saw the deceased in circumstancE.S which roused his suspicion, so he raised the alarm which made about two hundred villagers come out in response 0 He prevaricated somewhat as to whether or not he gave chaseo He said, however, that he was not at all armed, he did not assault the deceased and did not hear the deceased say who his assailants were. The evidence regarding the second appellant stabbing the deceased w2s accepted by the trial court, and rightly so in our view •. The deep stab would contributed to the death. The second appellant inflicted the injury J.t the deceB.sed' s sister's house when the deceased was really already at the end of his tetbEr and evidently already otherwise injured. The second appellant's action was most unjustified and uncouthy We respectfully agree with Mr. 1,httaba that it borders on murder, but in our view that .is the most we can say, after a careful analysis of ths evidence. In the particular rircumstances of the case we 3re hesi lant to assert that the necessary malice aforethought was sufficiently brought out by the evidence 0 This is not to say that malice cannot be established in all cases where suspected thieves are chased and killed in the process 0 It would depend on the circumstances of each case,•· as brought out by the evidence adduce'd •.. In the present case we think that while the stabbing was certainly unlawful, it was not necessarily done with malice aforethought. We -~.erefore allow the a1;peal against conviction for murder., We ~u3~· ~he co~viction 2nd 3ct aside ~he sentence of death. We for Manslaughter and '3. sentence of seven this 2nd day of December, 1985. A MUSTAFA 0 JUSTICE OF AfFEAL // L. M. MAKAME JUSTICE OF Aff EAL R. H.,. KISANGA JUSTICE OF AFT l_AL •o••·•oa•/4 this is a true copy of the original o (S. J. LAWENA) JjEf" UTY REGISTRAR