donald magwega another vs republic 1987 tzca 53 11 august 1987

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM; MUSTAFA, J.A., OMAR, J.A. And MAPIGA^O, Ag. J.A.) CRIMINAL APPEAL WO. 93 OF 1986 1. DONALD MAGWEGA x $............ APPELLANTS 2. PASTORY SAID I jj VERSUS THE REPUBLIC............. RESPONDENT (Appeal from the conviction 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 JUDGMENT OF.--THE COURT t; OMAR, J.A.: The twc appellants were charged With the offence of murder contrary to section 196 of the Penal Code* They wera alleged to have thrown overboard the deceased who was a passenger in their dhow, on 8 th May, 1984 * It is the prosecution case that the deceased and his nephew P.W.l hired a dhow in which both accused persons and P«W*2 were employed, to ferry their luggage consisting of fire wood and iron sheets across the lake from Nassa Village to Bezi Village at an agreed fare of Shs. l,000/~. It is in evidence that P.W*2 the helmsman of the boat and P.W.l the passenger sat at the rear part of the boat whereas the deceased and the two appellants sat in the middle part. They travelled from 8 a.m. to 3 p.ml when1 : they arrived at Buga bo A rea where they anchored, had their dinner ini the evening and then the two appellants and the deceased went ashore leaving 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 and P. W. 2 had different opiniors of the condition of the three people who returned to the boat. P.W.l thought that the deceased and first appellant did not appear drunk whilst P.W.2 was of the opinion that they appeared drunk. The first appellant in his evidence admitted that he partook of a bottle of local liquor with the deceased. The deceased had also 2 - two other bottles of liquor which he shared with his friends. The a second appellant was not drunk as he was/teetotaller. -~ While they were travelling the two appellants started to demand their fare to which the deceased refused to pay reminding them that he wou-l-d- Pay them, as agreed, at the end of the journey, upon their arrival at Bezi. Suddenly the first appellant held the deoeased by the.. ■• legs and the second appellant held deceased’s hand; they tossed him into the waters of Lake Victoria. According to P.W.l deceased who was his uncle could not swim, so he drowned. P.W.l and P.iv.2 clearly saw the appellants throwing the deoeased into the lake. P.W.l said that before they grabbed the deceased the two appellants talked in: the vernacular a language unknown to both P.W.l and the deceased. The tw* appellants then threatened to out P.W.l ' and to drown him if he as tried to rescue the deceased^/he P.W.l attempted to do so* The two appellants further told him that upon their arrival at their destination they were to say that the deceased was left behind at his paramour's place at Bugabu, P.W.2 thp helmsman of the boat testified that when;he saw the deceased being thrown by the two appellants after an exchange of words over the payment of fare, he tried to stop the boat but was told by the two appellants to proceed 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 uttered by the two appellants. The two appellants denied that they threw the deceased into the lake. First appellant 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 deceased had fallen into the water. Then they stopped the dhow and tried to listen for any sound, Seoond appellant in his evidence agreed with what first appellant had. said. The defence is at variance with the prosecution evidence.* The defence was that the deceased had accidentally . fallen into the lake, ...... / 3. - 3 - The trial judge assessed the evidence of the prosecution and the defence witnesses and concluded that P.W.l and P.W.2 were truthful witnesses. The assessors 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 question of the deceased 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. DATBl) 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.