donald magwega and another vs the republic 1987 tzca 32 11 august 1987

IN THE COURT OF APP E A L OF TANZANIA A T MWA N Z A (C O R A M ; MUSTAFA, J.A., OMAR, J.A. A n d MAPIGA^O, Ag. J . A . ) CRIMINAL APPEAL WO. 93 OF 1986 1. DONALD M A G W E G A x $ ...............A P P ELLANTS 2. PAST O R Y SAID I jj VERSUS THE R E P U B L I C . .............. RESPONDENT (Appeal from the con v i c t i o n of the High Ceurt of Tanzania at Mwanza) (Moshi, J.) dated the 27th day of October, 1986 in 'Qrimjnal Sessions Case No. 130 of 1986 JU D G M E N T O F . - - T H E COURT t; OMAR, J . A .: The twc appellants were charged With the offence of m u r d e r contrary to s e c tion 196 of the Penal Code* They wera a l l eged to have thrown overboard the deceased who was a p a s s e n g e r in their dhow, on 8 th May, 1984 * It is the p r o s e c u t i o n case that the deceased and his nephew P.W . l hired a dhow in wh i c h both a c c u s e d persons a n d P « W * 2 were employed, to ferry their luggage c o n sisting of fire wood a n d iron sheets across the lake from Nassa Village to Bezi Village at an agr e e d fare of Shs. l,000/~. It is in evidence that P . W * 2 the hel msman of the boat and P.W.l the p a s s e n g e r sat at the rear par t of the boat whereas the deceased and the two appellants sat in the m i d d l e part. They travelled from 8 a.m. to 3 p. ml w h e n 1: they arrived at Buga bo A r ea where they anchored, had their dinner ini the evening and then the two a p p ellants a n d the deceased went ash o r e l e a v i n g behind cn the boat P.W.l and P.W. 2. They returned at about 10 p.m. and set sail towards their destination. The two witnesses that is, P.W.l a n d P. W. 2 had different opiniors of the c o n dition of the three people who returned to the boat. P.W.l thought that the deceased and first appellant did not app e a r drunk whilst P. W . 2 was of the opinion that they appeared drunk. The first appellant in his evidence a d m itted that he partook of a bottle of local liquor with the deceased. The deceased had also two other bottles of liquor wh i c h he shared with his friends. The a seco n d appellant was not drunk as he was/teetotaller. -~ While they were t r avelling the two a p p ellants started to demand their fare to wh i c h the deceased refused to pay r e m inding them that he wou-l-d- P ay them, as agreed, at the end of the journey, u p o n their arrival at Bezi. Suddenly the first appellant held the d e o eased by the.. ■ • legs and the second a p p ellant held deceased’ s hand; they tossed him into the waters of Lake Victoria. A c c o r d i n g to P.W.l deceased who was his u n c l e could not swim, so he drowned. P.W.l and P.iv.2 clearly saw the appellants th r owing the deoea s e d into the lake. P.W.l said that before they grabbed the deceased the two a p p ellants talked in: the vernacular a l a n guage u n k n o w n to both P.W.l and the deceased. The tw* ap p ellants then threatened to out P.W.l ' a n d to dr o w n him if he as tried to rescue the d e ceased^/he P.W.l a t t e m p t e d to do so* The two appellants further told him that u p o n their arrival at their d e s t i n a t i o n they were to say that the deceased was left behind at his p a ramour's pla c e at Bugabu, P . W . 2 thp helmsman of the boat testified that when;he saw the d e c eased being thrown by the two a p pellants af t e r a n exchange of words over the p a y m e n t of fare, he tried to stop the boat but was told by the two a p p ellants to p r o c e e d as it was the deceased who had drownad himself. P.W . 2 said he heard the threat to throw P . W . l into the lake u t t e r e d by the two appellants. The two appellants denied that they threw the deceased into the lake. First a p p ellant said there was rain and strong wind while travelling; all of a sudden he and his colleagues noted that the deceased was no where to be seen in the boat and that P.W.l told them that the d e c eased had fallen into the water. Then they stopped the d h o w and tried to listen for any sound, S eoond appellant in his evidence agr e e d with what first app e l l a n t had. said. The defence is at variance with the p r o s e c u t i o n evidence.* The defence was that the deceased had accidentally . fallen into the lake, ...... /3. T h e trial m a g i s t r a t e convicted the appellant on all four counts, and sentenced him to 12 months imprisonment on the unlawful woun d i n g count, but sent him up to the High Court for sentence - 3 - The trial judge assessed the evidence of the p r o s e c u t i o n a n d the defence witnesses and concluded that P.rf.l a n d P.W. 2 were truthful witnesses. The a s s essors also were of the same ' view. As for the question of drunkness, the trial judge found that nobody was really drunk. The first appellant conceded that though he drank some local liquor he was not drunk nor was the deceased drunk. So the q u e stion of the d e c eased accidentally falling into the lake due to drunkness was ruled out by the judge. The trial judge believed that the deceased was thrown into the lake as the witnesses for the prosaoution had testified. As the judge rightly observed the element of intention to kill must have been present; he therefore oonvioted both the appellants of murder. We think that the judge was justified in doing so. We find no merit in the appeal whioh we hereby dismiss. DATED at MWANZA this 11th day of August, 1987* A. MUSTAFA JUSTICE OF APPEAL A. M. A. OMAR JUSTICE OF APPEAL D, P, MAPIGAWO Ag, JUSTICE OF APPEAL I oertify that this is a true oopy of the original* (J. H, MSOFFE) DEPUTY- REGISTRAR.