19850726 TZCA Dar es Salaam2

IN THE COURT OJ APPEAL OF T.ANZANIA AT ARUSHA ·.· 1 (CORAM: MUSTAFA, J.A.; M.AKAME, J~A. And KISANGA, J.A.) CRIMINAL APPBAL NO. l:i)_ OF 198 5 BETWEEN I SMAIL KAAJ A • • • • • • • • • APPELL1lliT AND THE REPUBLIC. • !~ • · • • • RESPQ)NDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) (M. J. Mwa-kibete, J.) dated the 23rd day of .August, 1983 in : ,:, Criminal Sessions Case ~o: 66 of 1~80 " I, JUDGMENT OF THE C0URT KISANGA 1 J • .A.Li The appellant was ini tia.ll;y ;charged with the murder of his wife 9 but was subsequently ,convicted of manslaughter, ,· I, because the learned trial jud[..e ifound the defence of intaxication to be available to (the appellant. The sentence of.ten years' imprisonment was imposed, and the appellant now appeals againJ,t both conviction and sentence. .. ' The conviction was based p~imarily on the evidence of P.W.l and P,W.2 who testified i~ effect that on the ' . material day they heard cries em~nc:3.ting from the appellant's ii home, and on going there they found the a~pellant assaulting his wife the deceased. On being asked th~ appellant stated 1 , that he was beating her because \3he had lost his watch. Both witnesses intervened and managed to stop the assault. • I, ., After some time bath witnesses went away leaving the appellant and the deceased behind but shortly afterwards 'I I the deceased also set out to go ~way. Howevar the appellant ran after her and 9 on catching up with her, kicked her caus1ng her to fall down and further hit her on the face using h:i.s hand as shJ lay on tbe ground. J. ... ..,·:;• .. . '- ' j ,., ' --. "" ., 2 P.W.2 ran to the scene to intervene again.• He blamed the lj , appellant for having renewed the: assault after he had .' promised not to do so but the appellant retorted that she was his wife. Once again the appellant promised not to renew the •,I assaul t 9 whereupon he returned the.: deceased to their house and P.W.2 went away. On the following day the witnesses I learnt that the deceased had die:a ;' ~'i: P. 5, the doctor who performed the post mortem ,l : examination on the body of the dec~ased, noted among other things bruises on the forehead 9 '; a contusion on the right side of the face and a closed depressed i ,, fracture on the right paraetal bone with a big clot of blood depressing rl 1,, the brain. In his opinion death was due to shock following cerebral haemorrhage. The doctOr was further of the opinion that the fatal injury was caused by a blunt object applied '· with great force to the head; a'.:cl~b or a stone was consistent with such injury. A~fall on a hard blunt object after a big push could &lso<'have occasioned such in jury. In his defence the appellant: vigorously denied the charge. He claimed in effect thatJthe' deceased sustained ., the fatal injury as a result of ,:a ;fall wben she was "I separating a .i fight between I <w. 3 and one Le banga on the dgy in :' . question. The appellant himself did not ., witness the said fight and the involvement of the deceased I in separating.it; the incident was'': narrated to him by one 1 1\ ,, Nd iki °P4a:!"~. who duly gave evidence for the defence. v/. In his te stirnony Nd iki ME.ra ( D. 2) stated that the , I deceased was pushed to the ground by P.W.3 and Lebanga when I ' she was trying to separ~te the fight between the two 9 and that the head . injury on ber was ::caused by a stick which these two people were tl'ying tc-:, snatch·I from ; each other. The learned trial judge efter due co~siderati~n of i the evidence for both sides 9 accepted the prosecution version I and J rejected the defence story. ' Mr. J. J. Mwale, the learned advocate !of the: appeli~nt argued that there were contradictiona in tlle ev+dence o:£ J?;W.l and p;w.2 on which I • ·' • .. ,I. 4 ••• /3 . .l --- - I 3 \ -; ! ' the conviction was based 9 which rendered that evidence 1 unreliable. We have scrutini hcd the evidence of those two witnesses and we are satisfiedI! that the contradictions I , which counsel has referred to,: were not material such as to ; render the evidence of the two witnesses worthless. '1 .. The learned counsel further argued that P. W•. l nursed I a g:rQ.nge against the appellan~ which arose from a dispute over a door of a house which the witness bought from the I appellant's brother, and that ,I such a grudge may have .. . 11 • motivated P.W.l to tell delib~ra~e lies against the appellant. However, • as Mr. Mtingele, •I , the learned Senior State Attorney pointed out 9 P .''vv .1 was the winner in that dispute and so he would have rio ti reason. to harbour any grudge against the appellant. : In a~y . . oase Mr. Mwale ' ' ':t could not suggest any reason 9 .\and we ~ould find none, . 11 'i . \': why P. vV. 2 whose eY-idence was e'.ven more incriminating, should have deliberately given false te~timony against i the appellant. And lastly IVIr. Mwale bi t:be.tly col!plaine a that the trial jud3e erred in failing tb ~pholo tbe appellant'p defence that the deceased may have susta1.ned the fatal J in jury when she was separa tin{ . the fight between P. vV. 3 I ' and Lebanga. With due respect1i to the J_earned consel, we . I . • could find no merit in this submi'ssion.,, ' . In the first . place, the allegation that the ,i decease:d ,w~s involved at . I i all in separating the fight betwe.en P ~ W. ,3 and Lebanga was made for the fir~t time by the :\defence ,only after the close of the prosec~tion case. Since. this al~egation clearly formed the core of the appellant'~ defe~ce, one would have expected it to have beep ~ut to the ~rosecution witne- sses, especial.l.Y P. W.3 who ~as 1,actually ,ini:z,olveo in the 1 fight. This, however, was not :done, wh:itth g.trongly goes • I \ I to suggest that the allegation :wa~ an afterthought. This I I ' view would appear to be sup~ort~d:by the fact tha~'when I the appella1t made the report tp the pol;ice, be- stf,\ted that the deceased had died of diorrh'~a. For, if it is t?ue ' that the deteased died from :injurie~ sustained w\ben tihe was I 11· '( \ ••• 0 ~ ••• / 4 4 separating the fight, why did the appellant not say •so to the police? Why did he· give the police a different cause? In such circumstanees we think that the learned trial judge was justified to reject the defence story as hq did. Turning to the issue of sen+,enea Mr. Mwale complained \1.:, that it was manifestly excessive. We d6·not think sor Bearing in mind that the charge was reduced from one pf murder which carried the de~th penalty, and that the: appellant repeatedly assaulted the deceased after he ~~s asked to stop, the extent of the injury inflicted anfl the part of the body on which the injury was inflicted, wq think that a term of ten years' -imprisonment was not manifestly exees~ive so as to warrant interference b!;f ·this Court. In the re6',lt we are satisfied that this appe~ is L , M, M{.R.AME JUS·rICE O;F .AJ?PE.AL R. H. KISANGA JUSTICE OF APPE.AL :•. I cert i!l .t }10.t this is a true copy of the o.ri.ginal. h &, (/It~ b-0 (L.A. A. KYANDO) I REGISTRAR