19861007 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TJ,.NZANIA I . AT DAB._ !S S.ALA.AM Cl.Ui'.IIli:AL APPEAL no. 19 OF 1985 J\10HAMf.ID MFAUll'IE ALLY. • • • .Al"PE!,LANT VERSUS THE REPUBLIC. • 0 O o C • • • • • RESPONDE:NT (Appeal from th,0 conviction of the High Court of Tanzania at J\'itwa.ra) (Msumi, J.) dated. the 11t;b. day of June, 1984 in Criminal Sessions Case No. 45 of 1982 J1J"IGME1JT OT!' TBB COURT ' The deceased h3,d lived. with the appellant as his wife for sometime and a child w2,s horn to th3m. There wa.s a quarrel between them one night, and P.W.6, who lived. with them, heard the quarrel. The appellant demanded the return of the bridewea,l th he ha.d paid, and it seemed that the deceased returned a pa.rt of it and was prepared to get the ha.lance to p,y bod: the appellant. They left together that night for the deceased to collect the ba.la.nce from her brother. ~ing the SDJJ1e night the appellant returned. to the village and. awakened P. W.2. The appellant was carrying the child. The appellant told P.W.2 that he, the appellant ha,<l°killed the deceased by strangling her a,t a place called Chota. P.W.2 refused to collect·the child from the appellant and informed the cell leader P,.W.3. He also called another cell leader P.W.4. The appellant repeated to P.,V.,3 and P.H.4 that he had killed the deceased by strangling her. And the appellant aJ.so confessed to P.W.5, a militiaman that he had strat1gled the deceased • ••. . ·•·• .. /2. f"\ - C. - The witnesses went to the plo.ce 9 Chota, and discovered the dead body of the deceased.. A doctor cn.rried out a post mortem ... examination and go.ve the co.use of death o.s 11 strangula,tion at the TrJ.e report neck with pieces of cloth 11 • L sto.ted that the dead. body had started. to putrify • 'l'here were pieces of cloth tightly tied at the neck. The atio-atlcmto joint was dislocated co:using severing of the sp:inal cord and. asphixic lungs were M1;3een. The a.ppellant in an uns:worn statement denied that he had confessed to killing the deceased to P.W.2, P.W.3g I'.W.4 and P.W.5~ He stated that he had. left the deceased outside the village boundary as he wanted to ret\ll'Il home. He then reaJ.ised. that the key was with the deceased. He returned to the deceased and he found tha.t the deceased had ha.nged herself on a tree at a place called Chota. · He cut her down and she W8,S still a.live. rrhere was a noose round. her neck a.hd he loosened the noose cJnd then the deceased died. The tria.l judge ond the o.:Jc.::ssors believed the evidence of P.W.2, P.W.3, P.W.4 and i'.W.5. He disbelieved the unsworn statement made by the appellant and he convicted the appellant of murder as charged. Miss ]V'"rja.siri a.ppoared for the appellant b0fore u,s, She submitted tha.t the o.ppella.nt ha.d. retra.cted his confession and therefore corroboration of such conf0ssion was needed• The trial j"µdge did not consider the issue of a. retre.ctecl confession a.s tha.t submission wn,s 11ot mo.d8 to l1im-t However we thin:;: tlnt there we.s sufficient corroboration in this ca.se, According to P.W.2, P.W.3, P.W.4 and P.W.5 the a.ppellant told ••••••• 0 /3. ~- -·~ ... ..._., ~- \ them that he had strangled the- deceased to death. The post mortem report by the doctor sllowed that death was C8.used by stra.ngula.tion. It also showed that the pieces of cloth were still tightly tied a.round the neck of the deceased. Despite Miss Mja.siri I s attempt ·:to challenge the correctness of the doctor I s opinion 1:siven in the post mortem report 9 we a.re satisfied that the opinion wa.s properly accepted by the trial court as showing the ca.use of death. In our view the strangulation element in the post mortem report would be sufficient corrobora.tion of the confession in this case. There was a. general submission tha.t the evidence as a. whole was insufficient to sustain the conviction. 'l'ha,t is completely without merit. We are satisfied tha,t the conviction of tho appellant of murder R. H. KI8/1.HGA JUSTICE OF APPSAL