joseas jilaoneka gida another vs republic 1987 tzca 56 29 april 1987

IN TIT] COURT OF APPEAL OF TANZANIA AT JEYA. OORAMs M U S T A F A „ A G C .J . 3 I'lAKAin , J ,A . '\ND OF.Ml, 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 H i g h 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 w i t h their father who died while in custody, were charged w i t h and convicted of the m u r d e r of the deceased and they arc appealing against thair conviction. The d e ceased 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 n i g h t AI and A2, together w i t h th^ir late father, arrived there. AI and A2 wore ariod with a knife and stick, and AI a l l e g e d l y told the deceased th-c.t ho and his companion's were looking for the deceased. Then A2 suddenly stabbed the deceased w i t h a knife, and repeated such blows. AI struck the deceased w i t h a stick and then stabbed the deceased w i t h 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 w i t h their laiiQ father, r a n away. PWI a l leged 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 r e p eated i n terrogations by F "/3 admitted that they had killed the deceased. P7I also heard the confession, including that by AI. - 2 « PW2, a nother sister of the deceased and the appellants, in whose house the deceased was when ho was stabbed and killed, returned home wh e n she heard the alarm sounded while she was in a n e i g h b o u r ’ s houseo 7hile there she stated that she saw A2 r e t u m i n ;r; to p i c k up Vic knife he had apparently used. A2 allegedly told her that he and AI and their late father h a d 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 eventu ally 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 t h i e f and had stolen their and tiioir f a t h c r }s cattle and property. A c c o r d i n g to the medical evidence the cause of death of the d e c e a s e d was severe haemorrhage. The deceased had cut wounds on the back, the front, and the abdomen and his pericacLium had blood and the p e r i c ardial 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 s i s t e r ’s house and that he took a w a y a knife from A2. He stated that as the deceased jumped up a p p a r e n t l y to attack A2, somehow he saw that the dace-asod’ s sto m a c h was p i erced w i t h a knife. Both AI and A2 denied that thc.y had confosscil ta have k i l l e d the deceased. AI testified and stated that he was not at all involved in the k i l l i n g of the deceased. he also alleged that he was drunk that night. A2 also testified and stated that he was in no way invo l v e d w i t h the k i l l i n g of the deceased. He and AI had bead drinking from 7^00 p.m. to 9.00 p.m. on the material n i g h t y but A2 was not drunk. Mr. M wakasungula appeared for both AI and A2. As regards AI he submitted that as the incident took place at night Pi/I could have been m i s t a k e n as to the identity of the attackers. He pointad out that P'72 contradicted P :/I a tout that n i g h t being bright 5 P ‘ 72 had said it was dark. ...../3 ~ 3 - H owevor according to AI in his extra judicial statement, which he n e v e r r e pudi a t e d or challenged, ho was w i t h A2 on the night when the incident w i t h 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 ? T S the evidence of '2.12. clearly established that A2 returned to tho 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 tho attackers of tho docoased. And sincc AI himself had said in his extra judicial statement that ho was with A2 v/hcn they confx*ontcd tho deceased, that lends further assurance to P-yI ’ s identification of AI as one of the attackers. We are satisfied that tho retracted confessions of AI and A2 to PV/3 have been corroborated b y the ovidonce of PWI and F ’ /2. In fact ve are satisfied that the evidence of F7I, w h i c h we accept as s u b ­ stanti a l l y t r u o s by itself was enough to convict tho two appellants AI and A2 of the murder of tho deceased. Mr. M w a k a s u n g u l a , in a last desperate effort for A I ; submitted that as AI had said that he was drunk on that night, tho Court should have found that AI was too drunk to have been able to fora any specifi< intent. The trial Court dealt w i t h and rejected a defence of drunk ~ noss. For our part wc think there was not the slightest evidence that AI was so drunk as to be incapable of forming an intent. Mr. M w a k a s u n g u l a also submitted that the k i l l i n g could have a r isen from a fight between the docoased and AI and A2. The evidence p o i nted clearly to a deliberately -planned attack on the dcceascd by AI and A2 and this submission is totally devoid of i^orit. We dismiss the appeal of b o t h AI and A2. D A T ^ D at M B 1 Y A this 29th d a y of A p r i l , 1987. A. PA AG. Chlgp JUSTICE / 4 - 4 - L,M, M A K A K 3 JU3TICH OF APICAL vz N A.M.A, OMAR JUSTICE OF APPEAL (J.H. Maoffe) DEPUTY REGISTRAR