anthony joseph mbinga vs republic 1986 tzca 52 8 october 1986

IN THE COURT OF APPEAL OP TANZANIA AT M R ES SALAAM COR/Ms MUSTAFA , J . A .; l a S A H G ^ J.A. .And OMAR, J.A. CRIMINAL APPEAL HO. 105 OP 1985 A NT H O N Y JOSEPH KBINGA. . . . . . . APPEL L A N T VERSUS THE REPUBLIC. . . . . . . . . . . RESPONDENT (Appeal from the conviction of the H i g h Court of Tanzania at Mtwara,) (I'Isumi, J.) dated the 2nd day of July, 1985 in Criminal Sessions Case No. 6 of 1984 JUDGMENT OF THE COURT M U GTAffA, J .A.s The appellant wa,s convicted of rnurder at the H i g h Court a n d he is n o w appealing against his conviction. The appellant and the deceased had lived together, either a,p husband and wife or man and mistress. However some considerable time before the incident w h i c h gave rise to this charge, they had either divorced or separated. On or about 10th October, 1981, at Namilema village in the District of Lindi, there wa,s a, festival celebration at night. The appellant met the deceased a,t that function. According to an extra judicial statement made by the appellant to P.W.8, a Justice of the Pea,ce, the appellant ha.d a.sked the dedea,sed to join him ajid the deceased refused saying "what are y o u calling me for w h e n y o u r time is gone". The a,ppellant stated that he wa.s so provoked and angry by that statement that he decided to stab her. He did so and la,ter tried to stab and kill himself. His attempt at suicide was unsuccessful. Apart f r o m this extra, judicial statement w h i c h amounted to a confession, there wa,s the evidence of a, dying declaration by the dece a s e d to P.V/.1 , P.V/.2 and P..;,3 to the effect that it was the appellant who had stabbed her. There was also the evidence of7p»V/.'7» who wa.s a militi a m a n and who had arrested the appellant after the incident. He stated that on being arrested, the ^ p e l l a n t had told P.W.7 that he* the appellant, had. killed the deceased. The deceased, according to the post m o r t e m examination suffered 11 stab wounds, inflicted b y a. s h a r p instrument, her liver was cut and d e a t h wa,s due to haemorrhage as a result of multiple’.. puncture wounds. The appellant ga.ve evidence and called no witnesses. In court he d e n i e d that he had mcde a statement to the Justice of the Peace i*1 the terms as it was produced in court. We may mention at this stage that w h e n the extra judicial statement was produced by P.W.O, no objection at all was made as to its correctness or admissibility. In court the appellant also denied the signature w h i c h appeared on the extra judicial statement was his. The trial judge rejected this testimony and held that the extra judicial statement was a true a.ccount of what the appellant had told P.V/.8, and was prepared to act on it. The trial judge also found that there was no provocation. He inferred malice f r o m the nature of the w e a p o n used, the number of stab wounds inflicted and the force u s e d in the stabbing. The assessors also found that the appellant was guilty of murder. »«,•• Mr. Rweyema,mu for the appellant has submitted, before us that the appellant wa,s provoked by the deceased w h e n she told the appellant that “ y our time is g o n e 1'. That issue wa.s put to the assessors by the trial judge. Ve do not agree that such a statement could possibly amount to a. legal provocation assuming it was in fact made. S u c h a submission did not find favour w i t h the trial court and we think it is completely without merit. In our viev the evidence established clea.rly that the appellant was proper-Iy.-Convicted'-bf 'iijurder as charged. The appeal is dismissed, / LiS.jiD ai M R ES S A I A A M this 8th day of Octobet, 1986 t£. V' * i ■ j, •' i VV ’ Jo ' I \ .\ •• /■*'/ X'v ^ " — .X A . MUSTAFA JUSTICE OF APPi-HAL R. H. KISANC-A JUST ICE OF APPEAL A. M. A. oiiar J U S T I CE O F A P PEAL I certify that this- is a true copy of the original. *■- ijir r ( J. H„ MSOFFE) DEPUTY REGISTRAR