modest kanani vs republic 1986 tzca 65 24 june 1986

IN THE court OF APPEAL OF TANZANIA at mwanza COR a M : MUS'Ta F^, J.A. ; M a k a ME , J.A. And KlSANGA, J.A. CRIMINAL APPEAL NO.J 6 OF 1986 M 0 3 E 3 t KANANI. . . . . . . . . . . APPELLANT versus the RE P U B L I C ......... .. . . . .^.RESPONDENT (Appeal___from the conviction of '-he High Cour+- of Tanzania at Mwanza) (Korosso, J.) da'-ed *-he 18^-h day of December, 1985 in Criminal Sessions Case No. 128 of 1982 JUDGMENT OF THE COUR t MUSt AFA, J.A.; The appellant was convicted of murdering '-he deceased, w h o was his wife. On '-he material nigh4-, according *-« P.W.i Merania, a relative of '-he deceased, '-he appellant had fough+- wi<-h *-he deceased and while '-he deceased was'ou'-side '-he appellant's house, P.W.i had seen *-he appellan4- c u b i n g '-he deceased wi'-h'a sword. The deceased was injured and P.W.i took '-he deceased *-o her house. >• Shortly '-hereafj-er '-he house of *-he appellan4-, which was nearby, was seen *-o be on fire; ~Bo'-h PiWfi and '-he deceased rushed *o the burning house.* P?W. l s*=a'-ed '-ha'-‘*-he deceased was rushing *o *-he burning house *-o *-ry i n Ler alia, >-o save '-he appellan4- in case *-he appellant was trying »-o kill himself- P.W.i s^-aj-ed ‘•ha*- as >-he deceased pushed open ^he door of *-he burning house and entered i4-, she saw '-he^appellan4- emerging from behind '-he door and proceeded '-o slash a'- *-he deceased's neck. She saw «-he deceased falling down inside *-he burning house. PrW.i ran home and me*- people approaching *-he burning house. P.W.i i-old them <-he appellant had cuj- ^he deceased '-o death. / P «W ;2 also wen»- *-o ‘■he scene of *-he burni^-c house. He'rae1- P.W.i on the way and was informed by P«Wrl*>-haJ <-he appellant had Killed *-he deceased with a sword and Lh 3 1- the deceased was inside t-he burning house. He saw the appellant with a sword in his hand standing a*- <-ha near corner of the burning house. when P.W.2 and others were about- 8 paces from *-he appellan*, P.W.2 asked *-he appellant the whereabouts of the deceased, the appellant's wife.- The appellant replied* saying that i-he deceased *"had *gone out with Descon", *the a p p e l l a n t s neighbour. P.W.2 and the others decided *-0 arrest*the appellant, and the appellant threatened P.W.2 and the others wi*h his sword, but the appellant was eventually overpowered and arrested. The following day P.W;2 and others started t0 dig at the platfe where P.W.l had said the de cea s e d * h a d * fallen. Some remains of the deceased were recovered, but mostly >-he deceased's body had been burnt. According to the p o s t mortem r e p o r t pr<ajtjc*»d at the trial *-he deceased died of burns; the body was found burnt and charred. The appellant gave an*unsWorn statement. He alleged that after h e had quarrelled and fought with the deceased, the deceased left for the home ~of Madede P.W. 4 , who was the fath^r^of P.W.l. The" appellant went to sleep. As*he was * .. ■’ asleep the hotise caught fire. He woke up and ran out with t -sword and a blanket. He found the door*which he had closed and bolted from inside somehow open- Wh en he tarned'round he noticed a person moving inside the rooms.* H e though* thaf person must have been *he arsonist, and'he cut that person with-his sword, The a p p e l l a n f t h e n ran outside the house where he met other persons who had gathered. ~In~answer to questions put to him the appellant allegedly told them that he had-killed the person who had sef the house on fire. He was then a r r e s t e d . The -trial judge and his assessors believed the evidence of the prosecution witnesses and concluded that the appellant had deliberately killed the deceased, and allowed the dead body of the deceased to be consumed by fire. Mri Rweyemsmu for J-he^appellan5-, subrtitj-ed‘before us tft^-i- j-he appellant had net killed with malice aforethought* He* submitted ^-hat the trersion^of the incident given by the appellant in his * unsworn statement- should be accepted. 'The appellant had thought he was killing en arsonist. However it appears *o us'that the appellant, for*the f i r s t time in his-isasworn s t a t e m e n t , made the allegation that he thought he was cutting'up a person whom he thought was the arsonist. -No such allegation was m ade by him until he made the unsworn statement. In f a ct ,‘when he faas questioned by P^W„2 immediately after the incident of the slashing, the appellant said that the deceased had gone'out with a neighbour. H e did not say he had killed an a r s o n i s t , - Yet in his unsworn statement referred to above, the appellant alleged that he had told P.w .2 and othefs who had'arrested him that he had killed the'person whom he thought had burnt his house. Obviously £he appellant was telling a lie; he never gave P.W.2 or others that information. That was clearly an afterthought, W e are of t-he view~tha* t-he trial judge was justified, on the evidence^ to have convicted the appellant as charged. The unsworn statement of the appellant does not create any doubt as to veracity of the evidence of^P.W.l and P.W.2. The killing was d one with malice aforethought. Before we~conclude we think we hare to ma]?e a few comments on the way -the trial was conducted. We notice that .t-he assessors questioned the witnesses before !-he defence~ccunsel had cross-examined the witnesses. This is not the normal practice. The assessors should put their questions after examination-in— c h i e f , cross-examination and re-examination of the witnesses have been completed. In this ‘case a police officer produced the pos^ mortem r e p o r t . N o opportunity was given to the appellant to call che doctor who* performed the post*mortem. We call a ^ ention to the requirements of Section 291 of the C r imi nal ‘Procedure Act concerning the statements given by medical witnesses. ( } ( D • • • l / 4 o ~ Again f-here was no identification of t h e M e c e a s e d by any- identifying witness. In the post mortem report two persons, one of whom was P oW» 4 t Were stated to have identified the dead body of the deceased to the doctor. No witness was called at the tr ial concerning such identification- Fortuna-f-ely in this case both'P.W.i and P»W,3 saw the charred remains of the^deceased in*the burnt honse, and their evidence was sufficient identification. In ceftain circumstances, the absence of such identification could be fatal. W e trust the trial of a criminal case would be more correctly conducted in future. We dismiss the appeal of the a p p e l l a n t . D A t ED at MWAN2A this 24th day of June, 1986. A. MUSTAFA JUSTICE OF APPEAL L. i\ . Ma k AME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL * * * * / I certify that this is a true copy of the original. / ■•- / M (J. H. M30FFE) deputy r e g i St r a p c