joseas jilaoneka gida and another vs the republic 1987 tzca 36 29 april 1987

IN TIT] COURT OF APPEAL OF TANZANIA AT JEYA. OORAMs MUSTAFA„ A G C .J . 3 I'lAKAin , J ,A . '\ND O F .M l , J .A . CRIMINAL APPEAL NQ« 98 OF 1986 JOSEAS JILAONEKA GIDA AND ANOTHER ........ APPELLANTS Versus THE REPUBLIC ...........___ .............. RESPONDENT (Appeal from the Conviction and Sentence of Tiie High Court of Tanzania at Ifbeya) (A.C. Mrejaa, PR7') dated IIth November, 1986 in Criminal Sessions Case No. 64 of 1984 JUDGMENT OF THE COURT FU S T A F A a AG. C . J . The dceeascd who was brutally stabbed to death was the brother of the two appellants, AI and A2. AI and A2, together with their father who died while in custody, were charged with and convicted of the murder of the deceased and they arc appealing against thair conviction. The deceased was at the house of his sister in the evening,, where P';7I, another sister of the docaased v/as staying. At about 8 or 9 o ’clock that night AI and A2, together with th^ir late father, arrived there. AI and A2 wore ariod with a knife and stick, and AI allegedly told the deceased th-c.t ho and his companion's were looking for the deceased. Then A2 suddenly stabbed the deceased with a knife, and repeated such blows. AI struck the deceased with a stick and then stabbed the deceased with a knife on his right leg and chest. P7/I saw all this and raised an alarm. P7/I stated that she reckoned the deceased was stabbed and cut about 7 times. The deceased fell down, and AI and A2, together with their laiiQ father, ran away. PWI alleged that this happened in the veranda of the house, and that there was moonlight and visibility was good* In answer to the alinn ?73, the village Chairman came. Later the same night the three assailants returned t d the house and after repeated interrogations by F "/3 admitted that they had killed the deceased. P7I also heard the confession, including that by AI. - 2 « PW2, another sister of the deceased and the appellants, in whose house the deceased was when ho was stabbed and killed, returned home when she heard the alarm sounded while she was in a neighbour’s houseo 7hile there she stated that she saw A2 r e t u m i n ;r; to pick up Vic knife he had apparently used. A2 allegedly told her that he and AI and their late father had boen looking out for the deceased and that on that day they had got him, P',72 also heard all the three, i.e. AI, A2 and her father confess to having killed the deceased before P'¥3, the village Chairman. However P.72 stated that it was a dark night, although one could see. P73 the village Chairman questioned AI and A2 the same night and eventually both AI and A2 stated that they had been sent by their late father to got and kill the deceased because the deceased was a thief and had stolen their and tiioir fathcr}s cattle and property. According to the medical evidence the cause of death of the deceased was severe haemorrhage. The deceased had cut wounds on the back, the front, and the abdomen and his pericacLium had blood and the pericardial sac and heart were cut through -an^d his, aorta severed. AI made an extra judicial statement in which he stated that he and A2 not the deceased in their sister’s house and that he took away a knife from A2. He stated that as the deceased jumped up apparently to attack A2, somehow he saw that the dace-asod’s stomach was pierced with a knife. Both AI and A2 denied that thc.y had confosscil ta have killed the deceased. AI testified and stated that he was not at all involved in the killing of the deceased. he also alleged that he was drunk that night. A2 also testified and stated that he was in no way involved with the killing of the deceased. He and AI had bead drinking from 7^00 p.m. to 9.00 p.m. on the material nig h t y but A2 was not drunk. Mr. Mwakasungula appeared for both AI and A2. As regards AI he submitted that as the incident took place at night Pi/I could have been mistaken as to the identity of the attackers. He pointad /I a tout that night being bright 5 P ‘72 out that P'72 contradicted P : had said it was dark. ... / 3 ~ 3 - H owevor according to AI in his extra judicial statement, which he never repudiated or challenged, ho was with A2 on the night when the incident with the deceased took place. That in itself would confirm the correctness of P W I :s identification of A I . As regards A2j apart from the evidence of F7I, the evidence of '2.12. clearly established that A2 returned to the house for the knife. There was also the evidence of what A2 said to Pv/2. P'.72’s evidence would confirm that P77I had correctly identified A2 as one of the attackers of the deceased. And sincc AI himself had said in his extra judicial statement that ho was with A2 -./hen they confronted the deceased, that lends further assurance to P-yI ’s identification of AI as one of the attackers. We are satisfied that the retracted confessions of AI and A2 to PV/3 have been corroborated by the evidence of PWI and F ’/2. In fact ve are satisfied that the evidence of F7I, which wc accept as sub­ stantially true, by itself was enough to convict the two appellants AX and A2 of the murder of the deceased. Mr. Mwakasungula, in a last desperate effort for A I ; submitted that as AI had said that he was drunk on that ni^ht, tho Court should have found that AI was too drunk t > have been able to fora any specific intent. The trial Court dealt with and rejected a defence of drunk~ noss. For our part wc think there was not the slightest evidence thai; AI was so drunk as to be incapable of forming an intent. Mr. Mwakasungula also submitted that the killing could have arisen from a fir;ht between the deceased and AI and A2. The evidence pointed clearly to a deliberately -planned attack on the deceased by AX and A2 and this submission is totally devoid of i^orit. We dismiss the appeal of both AI and A2. DAT^D at MB1YA this 29th day of April, 1987. A. HJ'JTAM AG. C"H jI1 ’ JUSTICE /4 - 4 - L,M, MAKAK3 JU3TICH OF APICAL Vz N A.M.A, OMAR JUSTICE OF APPEAL (J.H. Maoffe) DEPUTY REGISTRAR