19860619 TZCA Dar es Salaam 1

'1 ~a:L '' ·11 " •4 IN 'l'HE COURT OF APPEAL OF· TANZANIA AT J>'IWANZA ~: MUS'l'AFA, J.A.; MAKAME, J.A. And KI3ANGA, J.A. CRIMINAL APPEAL NO. 86 OF 1985 CHRISAN'l' s/o JO.SEPH. • • • .APPELLANT VERSUS THE REPUBLIC • • • . . . . . . . . .RESPONDENT . (Appeal from the conviction of +-he High •. Court of Tanzania at Mwanza) (Mwalusanya,J.)' da+ed +he 18+h day of Oc+-ober, 1985 'I• in Criminal Sessions Case No. 219 of 1984 ------------- JUDGMENT OF"THE COURT MUSTAFA, J.A.: The hut in which +he deceased was living wi+-h some of her grandchildren wa& se+- on fire early one morning. _P.W.2 +-he deceased's grandson, go+ up, and no+-icej +-he fron+ of +-he house ,. • c,n fire. By the light of +he fire he saw +he appe11an+- 1 whom he i knew very well. The appellant warned P.W.2 +-ha+- if p.w.2 came I ·' ouf- +ne appel ian+ .would spear him. P. W. 2 broke ouf- .of +he house from.+he rear W~f-h some y9unger children. P.~.2 s~af-ed he +-hen ,, I saw +he appellan+ ehasing +he decea§ed and cu++-ing +-he deceased wi+h .a pang~. P.w.2 haq no doub+ a+ all +ha·.. he had properly- i :I I f idenf-ified the appellant. P.W.4, +he husband of +he deceased, was sleeping in ano+-her hut nearby. H~ was awakened by f-he fire in +-he deceased's house. He came out. wi+h a spear and he alleged +-ha+ he saw +he appellant ••••••••• /2., I .l , I ' I ~ . ·i ' ,,, ~ \ h " I ·,, l,, I i' ! ' 2 I I cu++ing +he deceased wi+h a panga. He s+a+ed +ha+ +he light· I from the burning hu+ was very bright. .. P.W.4 +hrew.his spear '! j ' a+ +he app~11an+, bu+ missed. He sa~ +he appellan+ running away.· -He- +oo hod known +he appellan+ well. I There was. uncontradic+ed evidence +ha+ +he appe11an+ had +rouble with +he deceased and her family ~ver some land ma++er •.. The 1eceased died of severe harmgrrhage and· circulatory failure as.a resuH· of +he mul~iple cu+ woundt'I she had __ received, accor~ing +o +he medical repor+. She died on her way +o· hospital. The trial judge and +he assessors were fully sa+isfied +ha+ +he appellan+ was properly iden+ified by bo+h P.~.2 and P.W.4. The judge was of the view ~ha+ the land dispu+e covld have provided +he mo+iv~ .for the a++ack. The appellant put ..:., ... up some sort. of ee tU"~ +ha+ he was sleeping a+ home a+ fhe ' The judge disbelieved the alibi:, c1nd in any even.-·; .. +hat: alibi did.not ~le out +he possibili+y +ha+.+he appellan+ would have had time+~ burn +he house and a++ack +he deceasedo I I I ' 11 ~r. 131,ltambala for +be appellan+, before us, has a++emp+~ +he a++ack the iden+ifida+ion evidence adduced by +he prosecu+io~ • • • • . • . • • /3 • • very favourable and we ac;rce ;,;::.. t-h ;.::e i:rial judge f.h~+- bO+-h P.W.2 ang P.W!4 had proper 4y ig8r-'::.~1.ecl 4-he appe11;,~,. '!S f.he assailant: of +-he deceased ani f.h~H- ;.J-,ey could ·no+- :~{_'i\ ~:~· ,!·•,: possibly have been mis+-aken in 4-he circums .. ances. The appeal has no merie and is dismissed. DATED at MWANZA ,-his 19+-h da~- of ,June, 1986. A. IV:USTAFA JUS'l'ICE OF APPEAL R. 1-i. KISANGA I certify 4-ha+- this is a 4-r-~,,:\ ccpy of 4-he original. (J. H. MSUE'FE) DEPUTY REGIS'l'RAR. • .