omari kaniki shemkande vs the republic 1987 tzca 33 9 october 1987

IN THE COURT OF APPEAL OP TANZANIA AT TANGA (TORAMs OMAR, J.A., MFALILA, Ag. J.A., And MAPIGANO, Ag. J.A.) CRIMINAL ,iPFE£L NO. 94 OP 1986 OMARI KAJilKI SHEMKANDE. . . . . . . APPELLANT VEKSUS THE REPUBLIC.................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tanga) (Sisya, J.) dated the 20th day of November, 1986 in Criminal Sessions Case No. 22 of 198$ JUDGMENT OF THE COURT MFALILA. Ag. J.A.? The appellant OMARI I-CANIKI SHEKKANDE was convicted of murder and. sentenced to death by the High Court Sitting at Lushoto. He appealed against both conviction and sentence. TJie appellant having admitted killing the deceased? there was Jjjply QtM? issue for consideration and determination in this appeal najjiel-yi whether the appellant killed the deceased under circumstancos which amount to legal provocation* The deceased is recorded to have died of severe head cut wounds consisting of the following: ($) Peep wound dividing the parietal bones at mid line. Deep wound, involving maxilla and mandible dividing at the midline both were deep enough to expose the brain tissue. Loft humerus completely cut at mid shaft, if quite obvious from these injuries that the intention of the pors^ $rho inflicted them was to kill* ^he circumstancos under which the appollant killed the cLo^asod, who ijac^dpntally was his nephew, were narrated by the appellant him­ self "both in his extra judicial statement and evidence in Cour^ It was ip the light of these circumstances that -fche appellant both in the High Court and in this 3ourt advanced the defence of provocation and Ijjiat therefore he should be convicted of Manslaughter onlj^ Both in the extra .judicial statement and the evidence ho gave at his -ferial, appellant gave a very detailed background to the events of tha£ day. It app^axeg. that^ series of events started one day in Juno 1982 -that /• is ' more than a year before the killing when the deceased took somo pombe apparently surreptitiously to the appellant's wife « his aunt| Wien the appellant discovered this and that M s wife hadv,*takon 2 the- pombe secretly, be became suspicious of their relationship. Indeed he confirmed this when after questioning his wife, she confessed to having an affair with the deceased but she begged him not to publicise the matter nor take any action as it would be very damaging socially if it became known that she had a love affair with her nephew. The appellant agreed and his wife promised to terminate the §ffair. But the deceased became not only mere insolent but aggressive. He would not Qjily use abusive language against him even in front of other people, but he accused him on two occasions of having stolen or uprooted his casssvj)*, The deceased's intention, said the appellant, was to put him in jail so that he would be left free to carry on this love affair with his w^fe. All this, he said, made him build up strong grudge against the deceased, and he started thinking of eliminating him. The intensity of his grudges, he said, grew the more itfhen the deceased, denied, any such misconduct whenever he took him before the elders in the village, but immediately thereafter he would resume his insolent behaviour. On the day in question at about 6 p.m. as he was walking home from his shamba his urge to kill the deceased increased, when he saw him walking ahead of him. 3j will let him narrate his own story of the events moments before the filling j "Hivyo siku hiyo ya Jumanne tarehe 4/10/83 saa 12 jioni lcatika kitongoji hicho cha Kirangwif nilimwona Saidi Bagabu (ambaye ndiyc marehemu) akiwa mbele yangu. Wakati huo mimi nilikuva natoka shambani kwangv. kulima nilikuwa nimeshika panga saa hiyo. Nilimfuata nyuma hadi kwenye korongo na ndipo nilipoiafikia. i^ilipomfikia nilimwita na ndipo alifogeuka. Mara tu alipogeuka nilianza kumkata kwa jenga hilo. Hilionza kumkata kwenye uso na kwenye mkono m ndipo alipoangulca chini na nilipo*- ondoka nilimwacha akikcroma pale chini na nilijua hataaraka tena pale chini.''1 Yes? the appellant had intendec to kill the deceased, and. he left him for dead% In his evidence in Court, the appellant added an incident which if accepted^ could amount to or ;ould as "the last straw'1 to the series of the deceased's insolent arc' aggressive behaviour against hin^ He said that as they were walking hone together, the deceased suddently stopped and told hims ‘'I know your behaviour you old man. " And when he asked the cle^eased what behaviour, the deceased abused him saying "Mboro yakoft. The appellant said he was annoyed, and. suddenly attacked the deceased and cut him with his panga, 4, • The learned trial judge considered this aspect of the case and clearly .... /3. o<jnpluded that., the deceased uttered no suck abusive words to tho appe­ llant, Wo arc of the same view for the sane reason he gave, namely that if ho had been abused in these terms and that this, was the immediate caus<p far the attack, it is inconceivable that the appellant could have over-Lapsed to mention so vital information in his extra judicial statocort We agree with the learned judge that it was a belated after thought, '.e have an additional reason in support of our view that this abusive tag was a belated after thought. At the beginning ‘ of his evidence he gave tho spagon why he killed the deceased, lie said,? "I agree that I killed the deceased. The reason was because he brought ponbe to my wife, ly wife hid the pombe and she drank it alone,” So even by the time ho entered the witness box and started giving evidence tins abuse as the immediate cause of the killing had not crystalised in his c+ajad. It came later as he developed M s theme, Without "the last straw”s the deceased's previous series of .insolent and 'contumelious conduct cannot? as the learned judge found and held, amount to sudden and graves provocation. After all in the appellant's own words,, he had grown u$ecv 1j© ijhe deceased’s conduct. We are satisfied that the trial judge considered all the elements of provocation in this case and rightly came to the conclusion that there was no : j|egal provocation in the whole affairo A 9fordingly the appellant was properly convicted for nrur^ey §jid we discs 14s appeal, BATED at TAtTGA this 9th d.y of October, 1987o A. M. A, OMR JUSTICE OF APPEAL L. M. MFALILA A g . JUSTICE Qg' APPEAL D . P . MAPIGATO Ag. JUSTICE OF APPEAL |C certify that this is a true copy of the original0 ( J , n . WSOEMD) DEPUTY Iu3aIST!RAR»