19850710 TZHC Dar es Salaam

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L_-----• the deceased at apellantts home in connection with the jcux'noy to Dar as Salaam but on ovary :)Ccassion the appellant informed P[,3 and P0W,4 directly and through their emissaries that the deceased had gnc to fetch her clothes at some place. voiitually P.i103 and P.1104 became sticious and pressed the appellant to open the door of his bedroom which was apparently locked. The appellant claimed not to have his keys and he asked to be allowed, to go and. collect the keys from someone in the neighbourhood. Ho was so allowed. lie disappeared and never re -tarried. The police were informed, and subsoaucntly'bhe door s broken oport under police supervision. Inside the room was a bloody scone end the dead body of the said Rehema d/o nyelwise. There was alco apeollant katfo nearby. The police took the dead body of 'the deceased and arpellant's knife away. Subsequently a postmortem cxaininat ion was ccnduct:d by a government doctord A meniiunt for the appall ant was launched and it resulted in the arrest of tile appellant at Uton'ule viilae on 'ike 7th April, 1978. He resisted arrest but was overcome by arnic:l game ocouts, Later at Igüx'usi village while boin toicen to Mheya Police twiten, he became violent and encased for a while before he was ro-'reotecl irr a crowd of civilians After he karL been cLolivered at Police 'trtion Mbeya, the appellant was on the 11th J\pril 1973 taken befor" tb' oigth prosecution witness (P.W.8), a jastico of the peace, to whom he made an extra—judicial statement in which ho -ubnjtted killing the c''1, With rcard to matters erach are in clieru'to between the parties it is the prosecution case tha't 'the apueliant fatally attacked the deceased to frustrate her arrangement to leave the aspellon't and go with her brother to Dar as Salaam. T`.ulo he had malice afo:'othough't On the other hand, the defence case is that the deceased 1 brought a quantity of bullets in their homo without appellant's kan:;lcdge Cr consent. Jhon the apiellant insisted, that she should remove the bullets from their home 7 a quarrel r'ni a fight erupted ho't:een thorn in the course of which 'the deceased s'truck the appellant on 'the head. Ot in retaliation 7 the a.)pellant iickod up what ho fliouglrt was a but which turxiod out to be a knife and struck the dcc eased. wi'th it The first point for consideration and dccii ion .203cc no difficulties . it is whether the death of the deceased resulted from 'the appellant s aft ack. I., •,0 00 '0 -3- The medical evidence coupled with the eviJence of the appolleirt loaves no doubt that the deceased died as rosult of the apo1lants attack, This means that the appellant killed the deceased. The next important point is whether the appellant haz'l malice aforothouht. The appellant con-tends -that -there was a f1L 'ht in which lie sustained a head injuJ. It is true that when he made his catra—judicial statement on -the 11th April, 1978? the justice of the peace noticed a fresh wound on appellant s head. Mo. question arises whether this wound Was sus-baincd by the appellant on the 4th April, 1978 when the deceased died. o are of the considered view on the evidence that the fresh would no -ted 1r the justice of the peace on the 11th April, 1978, could not have been sustained by the anpellant seven days earlier on the 4th April, 1978, A seven—days old wound cannot be said to be fresh. The appellant must have sustained it some days after ho death of the deceascj 1 The evidence shows that there was every likolihccd for the appellant to sustain such wound after lie disappeared from the scone. He resisted arrest and was violent when arrested on the 7t1h A-'ril, 197 8 . It required a crowd of people to subdue his attem: :. ;ts to CSCpC, Under those circumstances he must ha been injured on the head and euch vound would still be fairly fresh four days later when he act the justice of the peace on the 11th April, 1978. The Justice of the peace also noticed a second rou*, of superficial wounds on his limbs and cheeck. It is not our1in0 thab whQn ?..3 and ?..4 found the appellant at his home in the aornin of the 4th April, 1978, Uhis hands and legs wore iiot as be bar! been washincP himself U We think on the ev±donce the ape11nt muot have washed pqr traces of blood from his limbs to avoid susicion. Furthermore, the medical evidence shows that the dooar.ed cuffarod twenty- two cut wounds on her body, The apel1ant on his eart custained several superficial wounds Oil nis limbs and. cheock. Cloarl if there aas a fight, it must have been a one—sided affair apainst the d.oco;:aol and the appellant cannot be said to have been ac.tin' under . fcvaoatiOl or self—defence, Furthermore, the appellant's contation that ho used a knife by mistake thinking it was stick stretches crecbditr beyond rcasonabJ. limits, 9 * No one can out up anethor two —tNo times with a Imife and still think he is usin; a tick The nturo and number of these cut zounds establish beyond doubt that the aeliani hui malice aforothou;ht in killing -the deceased, lIe was therefore properly convicted. .T ismiss the appeal in its entirety. / DATED at' iBYA this 10th clay of Jvly, 1905. A ' •.- -.. :. . - - \\O - - CHIEF_JUSTICE L. M. 1.11)K1JtE JUSTICE OF :PPEAL L H. A. OiAR \ \ I cortif hat; ic is: true co of t1 c of11L 1. - . ....-/- (B. S:.:aoR D:FUT REUISTri.