nicholausi sengeu vs republic 1986 tzca 62 24 july 1986

IN THE COURT OF APPEAL OP TAN ZANIA AT ARUS HA CORAM: MUSTAFA, J.A.; MAKAME, J.A. An5 OMAR, J.A. CRIMINAL APPEAL NO. 12 OP 1986 NI CH OLAUSI SEN GEO. . ...............APPELLANT VERSUS THE REPUBLIC. . ................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Arusha) (Mwakibete, J.) dated the 8th day of May, 1985 in Criminal Sessions Case No, 34 of 1981 ’v T. Kvr :. J U DGMENT OP THE COURT MUSTAFA. J.A.: The appellant was charged with murder but was convicted of manslaughter and sentenced to 12 years imprisonment. He was alleged to have k illed the deceased in the act of r a pin g her. He is a ppealing mainly on the ground that it was a question of mistaken identity. P.W.l was the main and craaial witness for the prosecution. P.W.l had seen the appellant several times before the alleged incident, altho ugh they were not on sp ea kin g or friendly terms. P.W.l stated that on the material eve ni ng while he was r et u r n i n g from a walk to h i s house he heard someone shouting about a rape taking place. He went to where the alarm emanated and there he saw a man l y i n g on top of a woman. An ol£ man was s t a n d i n g by pr o t e s t i n g at the incident. P. W. l saw the man on top h o l d in g the woman below by the neck while sexually a s s a ult ing her. P.W.l p ulled the man off the woman. The man got up and assaulted P.W.l. The man in the fight fell down, and P.W.l saw that the woman was in a ve r y bad way. The man was then button in g up his trousers. On P . W .l 's instructions the man helped in carrying the exhausted woman into a n ear by house, and immediately t h ereafter the person ran off into a maize shamba, chased by P.W.l. P.W.l caught the man and took hita to a house where the man was tied up with a rope. La te r P.W.l got hold of a medical aid who examined the woman. The woman was pr o nou nc ed dead,. P.W. l was positive that the appellant was the man who was the rapist and whom he had caught in the chr.se. The appellant had denied the whole incident stating that it n e v e r took place so far as he was concerned, Mr. U m b u l a for the appellant contended that P.W.l was ei ther c onc octing the whole incident, or that P.W.l could have chased and caught the wro ng person because the field was full of maize and vi sib il ity could have been therefore poor. On a consideration of the evidence we are satisfied that P . W . l was a truthful witness as found by the judge and the assessors. The appellant in an u n s w o r n statement stated that he was arrested while he was in a pombe shop. That account would render impossible the p o s s i bi li ty that P.W.l had chased and arrested the wr o n g party. P.W.l took the person ae had chased and arrested and tied him up, and that was the appellant. We are satisfied that the appellant was pro pe rly identified as the person who was caught r a p i n g the woman vie tic*.. Then there is the question of the cause of death. P.W.3, the medical aid axamined the body of the deceased. He found that the body had bruises on the neck, and there was a fresh wound on tae right side of the nose. The 1' l e f t thumb and index fing er had wounds. The tongue and eyes were pro+^uding. | He noticed what he thought were dead -spermotozza^( 0n the' thighs of the woman. He was I of the view that the,dt| eased had died from asphyxia r e s u l t i n g from strangulation. P.W.6, a medical doctor, prepared a p o s t m o r t e m report. H o w e r e r P. W.6 did not examine the dead body at all, "but wrote down the symptoms noticed by P.W.3 and gave the cause of death as asphyx ia and strangulation. That post mortem repor t is based on h e a rs ay and is inadmissible. Indeed in our vi e w that was improper on the part of P.W.6, and we think that his action amounted per ha ps to u n pro fe ssi ona l conduct. H o w e v e r P.W.6 testified and stated that a ss uming the symptoms observed by P.W.3 to be true, then the cause of death was asp hyxia due to strangulation. He stated that the neck b ruises together with the p r o t r u d i n g tongue and eye could only have been the result of thr o t t l i n g causing asphyxia. The symptoms noticed by P.W.3 would be consistent wit h what P. W.l had observed. In the result we are satisfied that the deceased was throttled to death by the appellant while he was attempting to r a ^ j or r a p i n g her. The trial judge found that the appellant was guilty not of murder but of manslaghter on the ground "there was no evidence to show that the accused was sober at the time". We fail to u n d e rs tan d the reason for r e d u c i n g the offence from murder to manslaughter in the circumstances. The appellant was fortunate to have escaped a conviction for murder. As there is no cross appeal we will not concern ourse lve s with the verdict. In the result we dismiss the appeal against conviction. We also dismiss the appeal against sentence. DA T E D at A R U S H A this 24th day of July, 1986. A. M U S T A F A ^ JU S T I C E OP APPEAL L. M. MAKAME JUSTICE OP APPEAL A. M. Ac O MAR JUSTICE OP APPEAL I certify that this is a true copy of the original. (J. H. MSOFFE) DEPUTY REGISTRAR.