19860326 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM .££.~: NYALALI, C.J.; MUSTAFA, J.A. And MAKAME, JoA. CRIMINAL APPEAL NO. 3 OF 1984 ISSA MOHAMEDI. o • 0 • ... • APPELLANT VERSUS THE REPUBLIC. o o 0 e O • • • • • RE;SP0NDENT (Appeal from the conviction of the High Court of Tanzania at Kondoa) (Maina, J.) detect the 2~th ·day of October, 1983 in Criminal Sessions Case No. 85 of 1981 JUDGMENT OF THE COURT MAKAME , Jo A. : The appellant in this case, ISSA ·10HAll1ED, wat convic:::·ted for murder and sentenced to _d2ath; by t · ~ High Court: sitting at Kondoa (Maina, Jo). He is appeal~ni to this court against the High Court decision and is b~_ing r ~presented· by Mrs. Mneney of the Tanzania Legal Corporation. ; . ·• ;_:ronu, State At.t;o.pne,y, appeared for the _respondent 'Republic., It was common ground at the t:-:·.a1 t!.at. the apfellant shot the deceased with an arrow during an encouhtt.r out in the bush. The deceased died as a resul. t of t:,he conseque!ft haemorrhage .. I;t was the Republic's contention, ·, 1d the learned triel judge was so satisfied, that the shooting wa 3 with malice aforethought. The appellant's defence 'in his sworn evidence in court as well as in his extra ... judicial stateme·~t, Exh. P.2, was that he was acting in legitimate self-defence when the deceased wamted to strike him with an axe. Mrs. Mneney has urged the sam~e point before USo There was no controversy but that the e4counte.r• }!>etween the appellant and the deceased had something tp dO w! th a beehive the appellant said had been stolen and it that the appellant believed the deceased to .o,., the culprt t . • • • 0A./:!.. ♦ J 2 We have ourselves looked at the evidence closely to see whether it bears out the Republic's contention that in killing the deceased the appellant had committed murder. We are ·satisfied that it does~ The learned trial judge was quite justified in, relying on the .evidence of P.Wo6 ABUBAKAR SALIM the deceased' s grandson, and that of PoW• 7 SALUM ATHUMANI, the appellant's own wife's brother. P.W.6's testimony related to the encounter: ·• that when the appellant and his twq companions readled upon, the scene and found him, P.W.6, and the deceased; and the appellant's companions asked P.W.6 and the.deceased what they were doing there, the appellant advised that they should not bother asking questions ... they should just shoot them with .arrows. P.W.7 gave evidence to the effect that only a day prior to the incident· the appall-ant had complained that his beehives had been stolen, and said that he would shoot with an arrow any one he found out to be the culprit. The appellant corroborated P.W.7's evidence·when he ( the appellant) was being asked by the trial court. I We appreciate that P.W.6 would not have been in a position to see exactly what happened just before the appellant let fly the arrow, but taking into account what P.W.6 said transpired when·the appellant and his two companions accosted him and the deceased, and be 9 ring in mind what P.W.7 said regarding the appellant's threats, it was unavoidable to conclude that the appellant was guilty of murd~ro We take into account the following other factorso First, like the learned trial judge, we are satisfied that the fact that the arrow landed on the deceased 1 s buttock is inconsistent witn the appellant's version that ·the deceased was' in the process of chasing him, the appellant, when the appellant released the arrowo We are· satisfied that the deceased was in the process of running away from the appellant when he got hito Indeed in cross-examination the appellant admitted as much. Second we also think it significant that on his own account, the appellant threw away his bow and arrows after the incident, did not recount it even at the CCM Office where -.•o••••/3. I 3 e was asked, and indeed he lied and said he did not have a (" arrows. We think the more natural thing would have tell his story at the first available opportunity, certainly when he was being questioned at the CCM Office. further agree with Mr. Snfari, learned State Attorney, that one would have expected the appellant to call his two companions to support his version that th<:1 appellant tried to cut theft'. ~ wit.'i an axe. We are satisfied that the appellan~ was rightly convicted, so we dismiss the ~ppealn DATED at DAR ES SALAAM this 26th day of March, t986, C, • -F. L,. N'il\LALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF-APPEAL L. M. Mt\KAME JUSTICE OF APPEAL I certify that this is a true copy of the Original. !It/ll/Ci:,1_, C'~-:i ( (L;; A. A. K'iANOO) REGISTRAR COURT· OF APPEAL OF TANZANIA.