shabani kakunguru others vs republic 1986 tzca 69 25 june 1986

IN THE COURT OF APPEAL OB' TANZANIA AT MWANZA CORAM: MUSTAFA, J.A.; MAKAME, J.A. And KlSANGA, J.A. CRIMINAL APPEAL NO. 20 OF 1986 1. SHa Ba NI k a k UNGURU 2. KANSALU KULUNa LILA APPELLANTS 3. LUHUGA TUNGARAZa versus THE REPUBLIC..................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Munyera, J.) dated the 28th day of February, 1986 in Criminal Sessions Case No. 51 of 1983 JUDGMENT OF THE COURT MUSTAFA, J.A.; On or about 18th April, 1982 at Busunda village there was a celebratory dance in which the three appellants and the deceased, a woman, took part. After the dance the three T appellants accosted the deceased. hey wanted the deceased to go with them and apparently the deceased refused. The appellants claimed that the deceased had taken their money and had reneged on her agreement to go with them,, They assaulted the deceased, in the course of which some one hit the deceased on the stomach and the ribs. The deceased apparently fell down and was seen to be dragged on the ground. The following day the deceased died. According to the doctor P.W.4 who performed the post mortem on the deceased, the deceased had a five moft'tfc old foetus which was dead; the placenta had been separated from the wall of the uterus, and death was caused by shock following haemorrhage due to trauma. He was of the view that the placenta separated from the uterus wall due to violence being inflicted on the stomach or to a fall on the stomach. The other cause would have been kidney disease, but the deceased's kidneys were in order. A t the trial of the appellants for murder in the High Court, the judge convicted them as charged for murder and sentenced them to death. The appellants are appealing against their conviction for murder. Mr. Rutakolezibwa for the appellants conceded that the appellants had unlawfully caused the death of the deceased, but submitted that the appellants had not killed with malice aforethought. He contended that they should have been convicted of manslaughter. In his judgment the judge found that there was malice aforethought. He stated as follows: "The deceased was five months pregnant. The accused must have known this; yet they jointly attacked her, aiming their blows to the very stomach which contained the pregnancy. They knew their acts would destroy the foetus inside with serious consequences. ^hey should be deemed to have caused the deceased's death with malice aforethought.*..". On a review of the evidence, there is no evidence to the effect that the appellants had known that the deceased was five months pregnant. Indeed no witness, for the prosecution or the defence, had stated that he or she had known that the deceased was carrying a child. That was only discovered when the post mortem was performed on the deceased. In these circumstances it is difficult to understand how the trial judge could have attributed to the appellants the knowledge that the deceased was five months pregnant. There is not an iota of evidence to support that finding. The basis for the judge's conclusion that the appellants had acted with malice aforethought disappears. Mr. Tendwa for the Republic concedes that he is unable to support the judges decision on the malice aforethought issue. He agrees that the appellants should have been convicted of manslaughter and not murder, in the circumstances. We think that the conviction for murder in this case cannot stand. We quash the conviction for murder against all the three appellants, and substitute therefor a conviction of manslaughter against each of the appellants, and we sentence each of them to 3 years imprisonment from the date of their conviction in the High Court. We have taken into consideration the fact that they have been in custody since April, 1982. DATED at MWANZA this 25th day of June, 1986. A. MUSTAFA JUSTICE OF APPEAL L. M. MAKAME JUSTICE OF APPEAL R. H. k ISANGA JUSTICE OF APPEAL I certify that this is a true copy of the original. (J. H. MSOFFE) DEPUTY REGISTRAR