19850724 TZCA Dar es Salaam

A 1 11'7 THE COURT OF APPEi.L OF TJ..N ZAN IA AT ARUSHJ~ (CORLM: IvIDSTJ.. F/i, J~A.; M.AKAME, J.A. A:nd KISJ:.NGA, J.A.) CRIMINAL APPEAL NO. 6 OF 198 5 .,:·-t, BETWEEN ' NO. 7161 P~O. 111 ABDIEL SIMON •.•-••••••• APPELLANT AND t THE REI·DI3LIC •••••••••••••••••••••.••• RESPONDENT ( i~ppeal from the conviction of the High Court of Tanzania at .Arusha) ( Maganga, .J ~) dated the 10th day of October~ 1984 in Criminal Sessions Case No. 61 of 1911. () • - JUDGMENT OF THE COURT .. MUSTAF.A, J .1~ ... : ' • · This appeal arises from the conviction of the, appellant of triple murder •. The appellant w.as a prison warder and he was charged with killing., by shooting, three persons on the material night. On the material night tbe appel!ant, as a prison warder, was on guard duty. He was issued with a Greener gun and 4 bullets. This was according to the evidence of P!W.9, Warema, a fellow prison warder; who, at the same t1.me 9 was issued with a Greener gun and 5 bullets. The appellant and P_. W.• 9 were together and the appellant • I shortly thereafter, about 8 .• 00 p.ro,. or so,. lef't to :': ·... ~ guard the cattle boma. Shortly thereafter some shots were heari.. Three persons 9 two prison warders and a woman living near the ' prison quarters; were found shot and later died. There was evidence by P.W~3 Hassan 9 wbo lived near the woman Grace who was killed, that prior to hearing shots be;j_ng fired 9 she heard a man calling ou-t "hodi 11 and banging at the door of Grace's room. In answer to Grace's ~uery, the man said his name was Abinieri. That was tne name of the appellant. As P.W.3 hear~door open, P. W.• ) heard a shot. • .... /2. 2 Similarly P.W.7, Mwanga, another neighbour of Grace, heard some person ca.11.ing out 11 hodi 11 and trying to break open Grace 1 s door. P.W.7 said she recognised the voice calling out "hodi" as the voice of the appellant, as she knew the appellant before. After the shots were fired and an alarm sounded, the prison officers gathered 9 but the appellant was nowhere to be found. As the police party was approaching the prison areci: from town -after receipt of the news of the shooting, the police party came upon the appellant walking on the road towards town. He was about l½ miles from the prison. The appellant was in uniform and unarmed. It was then night, around 11.00 p.m. The police were suspicious of the lone walker, and stopped. On being questioned as to what he was doing, the appellant said he was going to town to a dance. The appellant also ·said he had left his firearm at the prison. The police arrested the appellant • .At the place where the persons were killed a Greener gun and some spent bullets were found. In an unsworm stat~ment the appellant stated that on the material night he had refused the issue of a gun to him because he was being given 3,instead of 4 bullets. He returned to. his house and he heard gun shots and he ran towards the town. On his way ,to town he · _.;_ · hid on the road side and was picked up by a police party in a police car4 The appellant said he was going to town to a police station. The tri2vl judge believed_ the evidence adduced by the prosecution witnesses. He was satisfied that the appellant wes, on the material night, in possession of a gun and some bullets. H_e reviewed all the evidence, and came to the conclusion that the circumstances pointed inevitably to the appellant as the. person who had shot and killed all the three deceased persons. Mr. Looum Ojare, for the appellant, submitted before us that there was insuffictent evidence to establish that the appellant was issued with a gun on the material ,. . _; · / ,-. i .1 I <!_.,ro ·-,< 3 night as the gun register was not produced to sbow that such an issue had taken place. We are satisfied that the evidence adduced by the prosecution sufficiently established that the appellant was in possession of a gun on the material night. We are also satisfied that the trial judge I• was correct in concluding that the circumstantial evidence pointed irresistably to the appellant as the person 9 and nobody else 9 who had shot and killed tbe deceased persons. _..We--f:L.:rid no merit in the appeal which is dismissed. ""·..; ~i)·-: r;:. /J.. '--:--. .-r·.'' ~tt~~·. ~ .... ·--..:.... (.. ,: .... . / cf1/f•f··~-,,,\1 .• , I . .,~ / _.~A~ED<:at, I ~. k V:~. ·.' ARUSHA this 24th day of July, 1985, ·.••'.,, . :. ., .· •.. : ~ ,''.~ ...... ( ·:~ , . .• · .,~.. \:, ""') , ~~.:.. t<'f ...if,/} . :- . . . -,~J t· .'[ A. lVIUSTAFA . ---/ .,.;-~~"~;;:fl ✓.,.,_/,.,.,1j1j')l',. ' t: _--~~....l~ JUSTICE OF APPEAL L j M. Ml.K.AN.IE JU srr CE OF J,.PPE.AL R. H. KISi.NGA JUSTICE OF APPE.AL I certify that this is a true copy of the original. Atf<v/ kv,fo , (L.A. A. KYANDO) REGISTRAR.