kajala so bwigili vs republic 1986 tzca 66 24 june 1986

IN TFE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM; MU^'AFA. J. A. : MAKAME, J. A. And KISAffGA. J. A. CRIMINAL APPEAL NO. 18 OF 198.5 KAJALA s/o BWIGILI........................... APPELLANT VERSUS THE REPUBLIC...................................... RESPONDENT (Appeal from "the conviction of the High Court o f Tanzania at Muanza) (Kor*sso, J. ) dated the 20th day o f December, 19^5 in Criminal Sessions Case No. 1*3 of 1982 JUDGMENT OF THE COURT MUSTAFA. J. A. : The deceased was k i l l e d a f t e r he was stabbed with a knife • n or about the 6th February, 1982 at Kibona V i l l a g e . The Republic contended that i t was the appellant who had caused the death o f the deceased, and that such k i l l i n g amounted t * murder. Tha appellant denied having stabbed the deceased with a k n i f e on that or any day. The t r i a l judge convicted the appellant o f murder and the appellant is appealing from that conviction. P. 'LI Yosia, a son o f the deceased t e s t i f i e d at the t r i a l . P. W. 1 stated that he, together with P. W. 2, who was his s i s t e r , was in the company of the deceased going home on the material night. The doceased had purc^<..s^a pombe and was carrying it in a gourd. On the way the appellant, who was a cousin of the deceased. The appellant asked the deceased to give him the pombe; the deceased .'t. usee, and the appellant snatched at the gourd vj.'..ich f e l l t » the ground, s p i l l i n g i t s content. Thereupon the appellant fought with the deceased, f e l l i n g the deceased to the ground. The appellant stabbed the deceased with a kn if e while the deceased was on the ground. The appellant ran o f f with the kn ife, but in the course o f running away ,the appellant tri pp ed and f e l l down, and dropping his knife in bi# f a l l . In the; msantime P. if* 3 Anac l^ti came on the scene in answer to the alarm raised. P. W. 3 saw the appellant on top of the deceased. P. ¥. 3 t r i e d to intervene and was stabbed by the appellant with the k n if e befor e the appellant ran o f f . P. 2 and i.W. 3 substance confirmed the account as given by P. i/J. 1. According to the Post mortem report, death was due to c i r c u l a t o r y c o l l a p s e r e s u l t i n g from a penetrating wound within the 5th i n t e r c o s t a l space going into the heart. The wound was 2 cm x 4cm a^d i t was a cut wound. I t would appear such wound was consistent with i t s being i n f l i c t e d by a sharp instrument l i k e a The deceased died a day a f t e r lie was stabbed. The appellant denied that he had a knife on the material night, or that he had stabbed the deceased or any body. The appellant claimed that on the material night he met the deceased in the company o f his children and sev era l other persons. The deceased and his companions a l l e g e d that the appellant had f a l s e l y accused them i f t h e f t o f some clothes and the deceased and his companions, numbering a1i*ut 10 persons, assaulted the appellant, who was unarmed. The appellant fought with his assailants, was overpowered, and managed t» run away. He did not stab the deceased. Ha also stated ’'The kn i fe in questi*n was found in the house of Miranda, my el d e r brother". The appellant maintained that P. W. 1, P. Vii. 2, and P. W. 3 had a l l t o l d l i e s against him. Mr. Rweyemsmu f o r the appellant attacked the c r e d i b i l i t y of the prosecution witnesses. He submitted that the appellant, on his arrest a s e .0/3 . so on a fte r the incident, had t o l d the P o li c e O f f i c e r that he did not k i l l ths deceased. The appellant had a l l along maintained that he never was in possession o f a kn ife on the material night. The prosecution witnesses went into d e t a i l s describing the knife used, the s i z e o f i t s blade and so on and so fo rth , and the spot w-m'e i t f e l l and was found. Nevertheless the knife, was not produced in court and no explanation was forthcoming »8 to the reason f o r i t s non-production. Mr. Rweyemamu apparently maintained that since the question o f possession o f a kn ife by the appellant was in issue, an adverse inference should be drawn against the Prosec-ition by the non-production o f the k n i f e . Mr. Tendwa submitted that the matter was in fa c t dependant on the c r e d i b i l i t y o f the witnesses who t e s t i f i e d at the t r i a l . He contended that the judge and the assessors had b e l i e v e d the evidence o f the prosecution witnesses, and had r e j e c t e d the account given by the appellant of the incident as a concoction. He submitted that the judge was correct in his assessment o f the evidence. He admitted that the Republic had no reason to gi ve f o r i t s f a i l u r e to produce the k n if e , but that in the circumstances, such f a i l u r e rfjS not f a t a l to the prosecution case. We have c a r e f u l l y reviewed the evidence. We agree with the tria l judge that the evidence c f P. W. 1, P. 2 and E. W. 3 was t r u t h f u l and c r e d i b l e . The ver sion given by the appellant was c l e a r l y untrue, and the t r i a l judge was not wrong to describe i t as a concoction. It is not possible f o r the appellant, who a l l e g e d that he was unarmed, to have fought with 10 people in the circumstances described ............ 14 * by him. The appellant was uninjured, but the deceased, was stabbed in his heart, r e s u lt i n g in his death, and P. T :J. 3 was alsc injured with a stab wound. The prosecution version c l e a r l y is the true one. We agree with Mr. Tendwa that the f a i l u r e on the part of the prosecution to produce the kn ife , in the circumstances o f this case, was not f a t a l . In future we trust that such an oversight Would not be repeated. «.■ are s a t i s f i e d that the appeal has no merit and is hereby dii.' -v.issed. DATED at IT.vANZA th is 24th day of June, 1986. A. MUSTAFA JUSTICE OF1 APPEAL L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I c e r t i f y that th is is a true copy o f the o r i g i n a l . A# (J . H. MSOFFE) DEPUTY REGISTRAR.