ibrahim matinya vs republic 1987 tzca 79 27 april 1987

IK T K 5 COURT-OF APPEAL OF TANZANIA. AT IIBEYA ICORAM;. MUSTAFA, AG. C.J.; KAKAE3, J.A. AND OKARl J.A 1 r-: CRIMINAL A P PEAL NO. 50'.OP 1986 _ IBRAIHM MATINYA ... . ^ ........ APPELLANT Versus T H E -REPUBLIC ...... ............. RESPONDENT (Appeal from the Conviotion and Sentence of the High Court of Tanzania at Iringa) (Mwaikasu, J,_) dated 21st August, 1986 in Criminal Sessions Case No. 97 of 1984 v JUDGE? S M P OF THE COURT fetUSTAFA. AG, C . J . F;-; The appellant) accompanied tho deceased to go 1*o the appellant's p and only the appellant subsequently returned to the village, .Tb oceased did not and eventually only his remains were found*- The ppellant, on his return to tho Village* had told several witnesses, bat— the deceased was in another place belonging to one Anthony Samil t transpired that this information b y the appellant was untrue* * j ■ ■■ After enquirios into the disappearan.ee 0 f the deceased had proc.ee; 3d for some days, the appellant cQ flfessed to some villagers that he ad killed the doceascd. He confessed to P W I ,1 a ten-cell leader, and iO, the village Chairman, and PW4 his father-in-law4 The appellant hen led tho village party to tho spot whore the remains of tho eceased were found. -4'.According to m e d i c a l evidence, the cause of death w a s due to .fphyxia as a result of drowning, Tho whole body of the deceased was ;in a state of putrefaction. The appellant was duly arrested, a nd icha^ged w i t h murder, . He was convictcd as charged. .At the trial, tho appellant repudiated or retracted his confe­ ssions, He stated that' the prosecution witnesses told lies^ He •/testified as follows. Ho said he was taking the deceased to his farm jj|jad^on the way they had to pass a deep pond filled with water^ as a Result of heavy rains. Ho was helping tho deceased through the pond |toiien-the deceased panicked and grabbed hold of him and was in fact ^endangering the appellant’s lifo. The deceased was in fair^ in the >:act of pulling both the appellant and himself down in the t pond. To save M s own life tiio appellant pushed tiu deceased off and the appell'aht~tlieriTnanaged to cross the pond safely. He said he had no intention of pushing off the deceased in order to drown him. However, he had told PV/I} during h i 3 confession that he had , kiJLled the deceased beoauso the. deceased was enticing the appellant's wife to divorce the appellant, The trial judge gave careful consideration to the version g i v m by the appellant of the incident at the trial and rejected it as an afterthought, in effect. The judge considered the nature of the confessions the apoellant had made. He also wondered why,'.if the trial v e r s i o n were true, after the appellant had gained the pond's bank, he did not seek help to holp the deceased. In fact the appellant went to his farm and cultivated there for I-jg- hours without holp for the deceased. There was also evidence, which the appellant admitted, that the appellant had threatened his later brother, one Ismail, not to divulge that he had killed the deceased^ Then there was the a p p e l l a n t ’s conduct in telling the villagers that the deceased was at the .shamba of Anthony Samila, when the appellant k n e w v e r y well that the doccased had been drowned^ The trial judge was of the view that if tho incident as testified in Court by the appellant wore true, the appellant could not possibly have acted in the w a 7 he did. We have carefully consi­ dered this m a t t e r and we are not prepared to sa; that the trial judge and his assessors were wrong to have rejected tho version given by the appellant in Court. 1 We also are aware that the appellant had repudiated or retrac­ ted his confossions. However there was corroboration of tho aoniss- ssians, if s u c h wore n e e d e d t in the act of tho appellant in loading tho villagers to tho remains of the deceased. In the result we think that the ap“>oal has no merit and it is hereby dismissed. DA T E D at KBEYA this 21t'x da/ of April, 1987. A. MUSTAFA •• Kd,- rC—H I -J U S T I C E ■ 1 I-*M. UAKAMm JU;STICS of T. ■A.M.A. OMAR JUSTICE OF A^P^AT. 1 cert^ this la a true c o m .o f stte-orl.sinal. /A -' ^ CV . /'/ o (J.H. MSOFFB) v DEPU T Y RDGI3TBAP