19850815 TZCA Dar es Salaam

t·. •· ' IN THE COURT OF APPEAL OF TANZANIA .. AT DAR ES SALAAM CC/RAM: MUSTAFA, J .Ao; KISANGA, J .Ao. And OMAR, . J oA. CRIMINAL APPEAL NO. 7 OF 1984 Between I) JUMA ZUBERI • • • • 0 • APPELLANT And THE REPUBLIC. o • • • o • • • o • • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Dar es Salaam) (Mnzavas, J.K.) dated. the 27th day of July, 1983 in griminal Sessions Case No. 22 of 1979 --J, JUDGMENT OF THE COURT J MUSTAFA, J.Ao: The appellant was ~~cogniced as one of the robbers who had . .;. waylaid and attacked a party in a motor vehicle on the road at night. P.W.1 and P.W.2, who wera pasi;engers in the.motor vehicle saw and identified the appellant py the head lights of the vefficle as the appellant approached it. The appellant was their co-villager and they had knoWn thij ap~ellant for a long time before · the incident. In the couFse of the rQbbery a 5 year Old child ,. .of P .w. 1 was snatched away by the •appellant. The <";hild could not be found, and a month later, some human bone.s and a skull and some hair were discovered in the bush about 1 mile from ,the incident 0 N!ear .the bones were the clothes and ear rings worn by the saicl child at the time she was abducted. The bones and skull were found to be that of a child between 5 - 15 years by the pathol, ogist and the hair was i human hair, as found by the Government O,hemist.. In our view this evidence sufficiently establishe~ ~\at the bones and skull .,,/i;.~f'!i- hair• were those of the abducted child.• ~ . :.:~:;;,·: I We are also satisfied that the appel\lant was properly identifieda . P.W.1 iriiin'ediately report.eel tJl the authorities ,, > I that the appellant was one of the robvart' \a1'd that it was he lri' who had abducted the child •. / i : II 2 Both ~.Wo1 and P.W.2 .described the clothes the appellant was allegedly wearing at the time of the robbery, and such' cioth.es ' were fountl in ttte appellant•s house When it wa.s searched. Miss Mtitabtizi for the appellat'lt had subti'd. tted ±hat there - and- was insuffici~nt evidence of the dause df deathi..also that tha. circu~stan~es do not point irresistabiy to tha appellant as the one whb had killed. We are satisfied that the appellant was one of the robbers, that he had abducted the child and was the last person ;Seen with the child when the child .was alive. The bones of the child were found a month later about l mile from the scene of the incident~ The appellant gave no explanation as to what he did to the. c})ild after he had abducted her. It is true there is no evidence as tu · how the child died; $he might have · . been assaulted and killed ~ : or might have died of starvation oratta.cked by wild animals after she was abandoned in the bush,. ;or from some other cause. However the child wae in thli custody /. and pvssession of the appellant, and he, at the least, h~c:1 · abandoned her in the bush, and this certainly, for whatevet c;iuse, brought about her death., Clearly the appellant had (';au~td the death of the child in terms Of section 203(e) of the Penal Code, We are satisfied that the circumstances irresistably pointed 1sO the appellant as the person, ~ or one of the persons, who had killtd th·e child in the course of a robbery. We thin1' th~t his ,; Conviction for murder was justified. We dismiss the appeal. DATED at DAR ES SALAAM[ this 15th day of August, 1985. A. IMUS~FA JUSTICJE . I OF ,; • APPEAL Ro Jtltt l\IStNGA J?STI/fi SF *PPEAL ill' 3 A. M. Ao OMAR JUSTICE OF APPEAL / ..