19860326 TZCA Dar es Salaam 5

... .I IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CORAM: NYALALI, CoJ.; MUSTAFA, JoA. And MAKAME, JoA. -CRIMINAL APPEAL NO. 32 OF.1984 ROBERT LANJI, • O O O O 0 0 • •• APPELLANT VERSUS THE REPUBLIC. . . • • e 0 RESPONDENT • 0 0, 0 (Appeal from the Judgment pf the High Court Of ·Tanzania at. ~ingida) (Maina, J.) dated the 28th day of February, 1984 in · Criminal Sessions Case No. 19 of 1983 ---~------- ' JUDGMENT OF THE COURT MUSTAFA, J.A.: In.the .afternoon on the 20th September, 1980 a~ Nkhoiree '{illage P.Wo1 Mtaturu, a school teacher met with one Koyoi a brother of the appellant herein. There was bad blOPd between P.W.1 and Koyoi and apparently· some fight took place between the twoo After the fight P.Wo1 ran inside a nearby house belonging to his grandmother, and Koyoi apparently was injured in the scuff1'e. An alarm was raised and a number of people rushed _to the scene.· Th~ appellant· also arrived there and came to know that his brother Koyoi had been injured by Pow.i. He also·came to know that P.W.1 was hiding in the house nearby. P.W.2 Hosea, a neighbour, also arrived. He said he saw the appellant trying to break the wall of the house in which I P.W.1 was hiding br kicking at it, and then he saw the appellant picking up a pestle and hitting the wall with the pestle. The appellant was.trying to force open the door, but the people inside held on to the door and the appellant failed to f / e it open. V aooooeo/2. .... 2 - Frustrated the appellant called out to. one Mohamed, and asked Mohamed to give him a knifeo The appellant left the scene and shortly thereafter returned with a knife. At that stage the appellant was still in an angry mood and quite vociferous.;- According to· P.W .. 2, the deceas·ed, who was standing nearby asked the appellant not to create any more disturbance. The appel l_ant in response, stabbed th-a de~eased on the Chest, PoW.;2 Hosea was about 10 _paces away when the stabb_ing took place, and another witness P.W.2, was about 12 paces away, The appellant withdrew the knife·from the chest of the deceased, and threatenad the people around with ito P.W112 ran to the deceased ' . and with help tried to carry the deceased to·a hospital, but-the deceased died on the wayo According to medical evidence death was due to shock due to haemorrhage as th~ stab wound had penetrated the chest to the right auricle and blood had collected in the thoraxic cavity~- - F.W.4 Omari arrived on the scene just after the deceased had been stabbed and he saw the appellant wielding a )?lOOd stained knife threatening th~ people around there. The appellant J . .) threatened P.Wo4 also, but P.oW.4 managed to get behind the appellant and held him. Other people joined PoW.4 and disarmed the appellant and apprehended him. The appellant ma<:ie an unsworn statement. He said he answered an alarm and when he arrived at the scene he saw his brother Koyoi lying on the ground injuredo He came to know that PoWo1 had injured his brother and P.W.1 had hidden inside a house. The appellant tried to get int~ the house but failed ····••13. 3 - to dO, so, as the ctoor was closed to himo l?eople around thrP.atened him and he saw Omari, apparently PoWo4, <;arrying a spearo In those circumstances, in his fear, he drew out a knife, :and stabbed one Of the persons around himo He then realised that he had stabbed the deceasedo He ran a short distance, thl:'ew d·own his knife, and was arrested by the people thereo He called no witnesses. The trial Judge reviewed the evidence given at the trial. He was very impressed by PoW.2, and he found PoWo2 to be a. witness of truth,, so indeed did the two assessorso p.:oW~4• s evidence in a way confirmed the evidence (?f PoWo2, as P-.Wo4 saw the appellant just after the stabbing, and the appellant was then threatening the on-lookers with his knifeo 'lhe judge rejected the accouht given by the appellant that he was threatened by the peop:~ around.him, as fabrication. He held that there was no evidence of any such threato He convicted the appellant of murder and sentenced him to death. Miss Mjasiri for the appellant submitted before us· that the judge had erred in believing PeW.2o We do not think so. We think the judge was quite right to rely on P.Wo2• s evidence, which has the hallmark of truth. It is clear that the appellant had killed the deceased without any provocation and the killing was done with malice aforethought~ &00000000.0/4. - 4 - We dismiss the appeal. DATED at DAR ES SALAAM this .26th day of March, 1986. F .. L. NYALALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL L. M. MAKAME JUSTICE OF APPEAL I certify that this is a true copy of the original. A1ct ua:k --~ , /. . . (L. A. A{ KYANDO) REGISTRAR COURT OF APPEAL OF TANZANIA