bakari mshabaha vs republic 1986 tzca 61 24 july 1986

IN THE COURT OF APPEAL OP TANZANI A AT ARUSHA CORAM: MUSTAFA, J . A . ; M A K A M E , J.A. And OMAR, J.A. 1f CRIMINAL APPEAL NO. 11 OF 1986 BAKARI MSHABAHA. . . APPELLANT VERSUS THE REPUBLIC'. . . . . . . . .RESPONDENT (Appeal fro‘.a the conviction of the High Court of Tanzania at Arusha) (Munuo, PIM) dated the 9tvh day of January, 1 86 in . Criminal Sessions Case No. 32 of 1985 JUDGMENT OF THE COURT MUSTAFA, J.A.: The d e c e a s e d , a woman, died from Exte rn al haemorrhage »caused by a nu mbe r of cut wounds to h e r thigh shoulder an^ siaril^* Th^ •■sppeilant ^adraittedly 'had-Tratt"seii'''heT''''(ieath. * Jhe appellant 'had:pleaded that-he was pro voked into k i l l i n g the deceased. The trial court held that there -was no provoca ti on and cotivicted the appellant of murder. *The appellant is appealing, a l l e g i n g ,that there was provocation. ... . * : ; ' i ■' ' T ■ It would seem that there was an'-‘ u n de rc ur re nt of ■belief by the appe'ulgnt that the deceased had caused the death of his two young children., in the course of a few days or of a few weoks. The appellant alleged that wh e n the fi±\s& .iihilclihaii .ilied, the. dec.eased.ha d told h i m nyou will bury more". The appellant was of the b e l i e f that his £i r s c h i l d .h a d .died*~because of the deceased, «»'•».- - - V I,, /:T. When his second child jya&_ i l l , the clail'h was admitted ' to h o s p i t a l . H o w e v r the appellant removed the said sick * n^ «■sriTH'fV :a-frt,- '.-V‘■ : _ •*-•# «*. J 'h P i --.:n t. ♦ f . f ,r » / 2 . j t Ki.l_ * ~ fi, , 1 ^ V ;t r; + fv ■*- child from hospital against medical advice and took the child back to his home* Accor din g to the appellant he invited or allowed the deceased to treat this sick child. That seemed incredible, in view of what the appellant t^.d believe d about the activities of the deceased. The appell an t testified and stated that after the deceased had administered medicine to the sick •hild, the child became worse. The appellant alleged that at night he took the sick child to the deceased. The deceased allege dl y told him "Did I not tell you that you will bury m o r e ? ” Thereupon the appellant became provoked and incensei and picked up a p a n g a and cut the deceased to death. That version of v events was apparently rejected by the trial court. P.W .l testified and stated that he stayed in the same house with the deceased, tnough in separate rooms.., t On the material night as he was asleep, he heard a big k n o c k at the door of the deceased. It was the appellant ca l lin g out that the deceased had killed his two children and that he would bury the deceased that night. P.W.l ra ised an alarm. The deceased tried to run away, but was chased by the appellant, his wife and son all armed. L a t e r he found the dead bo d y of the deceased a short distance away. P.W.l h im sel f was attacked ^nd injured by the appellant's wife an?. son. P.W.5> the wife of P.tfV.l, sub st ant ia lly testified to the same effect as P.W.l, N e it he r P.W.l or P.W.5 was questioned or cross-examined by the appellant a^oout the appellant calling on the deceased on that material night, and of the allegation that the appellant spoke to the deceased, and the threat or taunt uttered by the deceased. It was only when the appellant testified that the alleged incident was revealed. The trial court, and the assessors, believed the evidence of P.W.l and P.W.5, arid the trial court was of the vi e w that the appellant h Dd killed the deceased on the assumption that the deceased was a witch and had b y witchcraft killed his children. There was no question of provoca ti on at all, as alleged by the appellant. We think that the testimony of P.W.l and P.W. 5 was true and credible. The testimony of these two witnesses established that the k i ll in g must have been deliberate, < as the appellant and his family members, duly a r m e d , had mounted an assault on'the deciased with threats to bury her. The trial court right ly held that in those circumstances no provocation at all was given by the deceased which could have reduced the k il lin g to manslaughter. We find no merit in the appeal which is dismissed. DA T ED at ARUSHA this 24th day of July, 196^. A. MCJSTAFA JUSTICE OP APPEAL L „ M. MAKAME JUSTICE OE APPEAL A. M. A. OMAR JUSTICE OE APPEAL I certify that h this is a true copy of the original. (J. H. MSOPPE) DE P U T Y R E G I S T R A R .