daudi mnogolichuma chusi vs the republic 1987 tzca 35 4 may 1987

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAH: KU3TAFA. AG. C.J.° LAKAKE, J.A, AND OTAR, J.A. CRIMINAL APPEAL NO. 97 OF 1986 DAUDI liNOGOLICKU A CHUSI .......... APPELLANT And TBS REPUBLIC .......... . RESPONDENT (Appeal from the conviction and sentence of The High Court of Tanzania at Iringa) (A.C. Mrema, PR1!) dated IOth November, 198 6 in Criminal Sessions Case No* 84 of I984 JUDGEMENT OF Tin! _COURT OMARj J.A. Appellant was charged with the offence ofmurder and was |onvioted. He now appeals against conviction. On the afternoon of 8/2/83 appellant who was living at Kihanga village in Mufindi District, went from his. home to a house of a neighbour one Mwandikalamu who was entertaining neighbours to a ^OOal brew. Appellant sta/ed there and partook of the drink from to 8 p.m* when he decided to go home. As he was on ills way home he met the deceased Patson Vaginga who was also in the pombe party, walking ahead of him. When they got together deceased ■V ; seized appellant and announced. that he was Patson andthat he was g<|ing to kill him. Deceased cut the appellant on the leg with an axe and a struggle ensued. Appellant who was carrying a panga managed to wrench the axe from the deceased and using his left hand cut the deceased on the head with the panga. This is the Story of the appellant on the events of that evening, and no athey person had witnessed their encounter or rather no o'ther person had |^me forward to say that 'he witnessed it'. Appellant went home after that and met his wife PWI Saidina who saw a blood stained panga in his hand. Appellant packed his clothes and 'bade goodbye to his wife and children saying he was going to look for employ­ ment and asked his wife to- look after theirseven children while he was away. - 2 - Dissatisfied with, appellant's conduct PWI went to the pombe party and inquired from appellant’s brother Emily Chusi if any- thing untoward had happened there. She was told that appellant had left the place without quarrelling with anybody, PWI went to her ten cell leader and made a report of her husband’s unusual behaviour. She was told to wait till morning. The following morning the body of the deceased was found 10 to 15 paces from Mwandikalamu’s house where the pombe party was held the previous evening. According to the postmortem report deceased who was identified as Patson Vaginga had cut wounds on the head, his left shoulder and some fingers of the right hand partially cut and one finger completely cut off. The cause of death was established by the medical report as the cut wound on the head from which brain matter protruded. Five days later appellant who was hiding in the bush gave himself up and was arrested and on 14/2/83 interrogated by PW3 Detective Sgt, Mfurus who stated in evidence that appellant told him that he killed the deceased because deceased started to ag^ault him. The following day that is 15/2/83 appellant was sent, a Primary Court Magistrate where he made an extra judicial state­ ment admitting that he had cut the deceased on the head and arm with a panga after he was insulted and cut on the leg by the lat’ tej* wi-jjh an axe. Appellant admitted that he went into hiding in the tfUSh and could not give himself up till five days later because o£ pains in the leg. This is substantially the evidence appellant with ■Jjhe $rime and it-all eamo from his mouth. There is nothing to disprove it. The relationship between appellant a,id deceased was given by PWI and the appellant himself. It is to the effect that the appel­ lant and deceased had married t vo sisters :.-.nd that there was once a quarrel between them over a borrowed kettle belonging to deceased and t^at the lid of a kettle was lost by the appellant, further, appellant had slandered deceased by.saying that he, the deceased, was after a married woman in the village. Apart from thiss we know of no other misunderstanding between them, UxT xor Murder i s allowed and we substitute a conviction for s l a u g h t e r . Appellant i. - n t e ^ d Tient to start from the date of original \o 9 (two) years imprisons conviction i.e. 10th November, 1986, - 3 In his defence appellant repeated iiis earlier story -of salf— defence which the trial magistral:® rejected for reasons which he gave. We found the reasons given speculative. The trial magistrate f(jr instance did not believe that deceased had cut the appellant with an axe because he said an axe was n:>t found anywhere and so speculated that he, the appellant, could have suffered that wound ft*om wondering in the forest while in hiding. The Justice of the Pea$e said she saw the fresh wound on the appellant's leg. The police witness said he saw the wound on the leg although it was ngt 3 fresh wound. The wife of the appellant stated that she did not n<jfc^$e any wound on appellant’s body simply because she did not look cl^se^y as appellant did not stay long in their house before he left^ The trial magistrate also rejected the story of the fight as narrated by appellant as being very unlikely of appellant. The magistrate thought that appellant was thrown down by deceased and throttled then it was unlikely for him to have got up with the asthma appellant had said he was suffering from and attacked deceased on the head using his left hand. Blood stains from the -scene of alj^atk to the house of appellant were not seen? if appellant was injured they should have been there. These and other similar reasons were the basis for rejection of appellant's defence. We find and go hold that the evidence of self defence as given by the appellant i§ credible. The various injuries inflicted on the deceased showed that in the frenzy of self defence the appellant had used more for^e lap. was warranted. We find therefore in terms of section I&(b) i of Penal Code that appellant had used excessive force to ward off the attack* We find him not guilty of murder but guilt/ of manslaughter and we (jonvict the appellant. Er. Kapinga learned State Afcttfjrnay for the Republic does not s u ;j ;ort the conviction for murder Tjut. is of the view that manslaughter has been proved. The appeal against conviction for murder is allowed and we substitute a conviction for manslaughter. Appellant is sentenced 9 (two) years imprisonment to start from the date of original conviction i,e, IOth November, 1986. *■* * • */4 - 4 - DATED at MBEYA this 4th. day of May, 1987* A. MUSTAFA AG. CHIEF JUSTICE L.M. MAKAME JUSTICE OF APPEAL ........ A.M.A. OMAR ^ JUSTICE OF APPEAL ^ > v; r^;5) • -r ,,1 / - ' - ■ * •. ■ w I certify that this is a true copy of the original* ^ N\ »• ' • / (J.H. I.teoffe) DEPUTY REGISTRAR