19870814 TZCA Dar es Salaam

--- J;__ IN THE COPRT OF AHEAL OF TAL-ZANIA AT MWtd'<Z.A (~: MU5TAFA 1 J .A. 1 OMI\R 1 J .A, And MAF1GANC 1 Ag. J ,A,) CRIMbAL .'!Fr EAL l~C'. 31 OF 1987 BA'rHOLCMEc .'3HIJA C03ll1A'3- • , • , • , AFPELLA.NT VERSUS THE REFUBLIC, • . (Appeal from the conviction of the High Court of Tanz3ni3 at Mwanza) (Munye:ra, J.) dated the 2nd day of March, 1987 in ( Criminal Sessions Case No, 40 of 1984 JUDGMEl~T OF THE COURT MAPIO l\i, 0 1 ·J\:etr--J ~A• -·-·•·h • •~-- .;..• ~~ ·-•g_• Tho ap~ellant was convicted in ~he ~i~~ Court a• Mwanza of the murder ~f one Mado~tii, ~di!/ aec'f,ioll 196 of ~He fen~l, Cpq~r He W3f? sel1~enced to death, We W}S~ to opserve tn,rt l'lO preliminar~ ~rar-in~ ~pp~ars to have been cond~cted as requ\fij4, by the proy;~ia~ of se~tton !~~ of tP.@ ~Pi~¼P~t fro~ij4qp~ ~P~, 1985, M~! Lyi~o, learned Principal State l\tt&f~ey, w~~ ~ppa~~@G for the Republic ~~fofe u~ has PP~@rved ~ijat t.~ts waa an eff~f on the part of ~he H!gh Co~t~ He has, pgweyer, s~b.rnitteg l~t. ~~e error ~~9 mer-el? procedural an4 ~oes not vt,i~te: ~n~ propeedings anq the judgment of th~ µ!ijh ~PW't! W~ F~&f~~~fui+l agree, The facts of this .case and the 15is t pf t.h.c evi~ eno~ aff;l plearly and fairly set out in the judgment ~f the le~r~~4 ~rial judge. It was not in dispute at all 4~4 there was sufficie~t e~dence that Madoshi was assaulteii ~nd kill_eq i,n "!;hf? ~fternoon of_ the 1-~~h-~f J.l!l-J', 1981, t~=--~-ncident ~~~n~ pJ,ac~ at hia reaidence at f/)?,)l~tini in the Mwanza Munictp~lH,y, Accorii~ng to medical ev~d~nce, the deceased h~d s\lSt.aineii deep.put wounds on the llt:J~d as well as fractures of tl'!i? · front9.l tempoz;_fµ . ,, . ,?, .- . and occiri tal °R~l'lt:J!:1. That evidence assi ~E! the cause of d_eath- to "haemorrhagic sho:.:C and severe head injuries", ·t· • ~ ' The deceas~d was a tanant in the ho\lSe of o~e Mas~auri . . Kulw~, .~ . ' the husband of F,W,5 Mbonabibi Mapesa• The deceased was livi~ with P.w.4 Sophia Cheyo a.s unmarried cohabitees, and he and the ..... /2. 2 appellant were good friends. Ao~ording to the appellant, their fri·endship·-st"a--r-ted-in- prison ·wher-e the appellant was serving time in connection with a moshi conviction• The oircumstances leading to the death of the deceased were narrated. by p.w.4 Sophia and P.W~5 Mbonabibi. The evidence of· these two women shows that the deceased came back home at 11 a.m. on that day carrying a gallon of local liquor commonly known as moshi. The qeoeased 1 his mistress F.w.4 1 his landlord Mashauri, Mashauri's wife ~.w.5, the appellant and other neighbours started_ l ' drinking the moshi immediately. In time all dispersed except the deceased, P.w.4 and the appellant; These three continued ... .. j~ to drink_ and at one stage in the Cci course of the drinking the ;,:f., 1';1- appellant left to answer a call of nature. When he came back he.was apparently in a drunken state of jealousy. He asked the deceased ·'>., -'.;··. and P.w.4 what they had been disoussing. Before the two could answer he remarked ltwai t for me"• ,, He went into his room and ·-· -~ '., fetched a panga. He came back and dealt p.w.4 several blows .. f1.l with the weapon. F.w.4 dropped down uncouscious. She was ·',:'\1 ~ rushed to the hospital. As it-came to pass, the deoeaaeA was killed when she was still in the hospital. .<( P.w.5 did not witness the attaaK on P.w.4. She oanie and· ...~~ found P.w.4 lying on the ground bleeding. She found the appellant .~:·i standing at the door of the house holding a blooded panga. She : :.1 saw the deceased sitting on a stone• She inquire~ of the ~wo , ,._ ..·I} what had happened to P-.w.4. The appellant was. in a fit of rage and he. '~ ' i. shot back and said "stop you common prostitute I will finish ·-·,c~r.'; you off too 11 or words to that effect. She left the place and went to the police station. When she x· tur-nc returned to the house in the company of policemen she found the deceased also lying on the ground wounded. The appellant had disappeared. It W3S in evidence that the appellant was arrested on 16/9/81 but be esoaped~from remand oustoey and was recaptured on 25/9/82 at Shinyanga.. A report of a Government Chemist;exhibit P-5~was pro~uoed a.:t-the t.t-j,al,. According to .. .:tk!.~:t _report, the said chemist bad received a Pfnga 1 a pair of trousers stained with blood.and a . ... r lump of blood-stained sand on 3/i/81 from the _band of one Sergeant ·;~\ ~ ..,:. '. ••••• , i::. .(/'/:.'' ,1., ·.:,-. ... -"'~ .· 3 - Yusuph for analysis. The learned judge made reference to exhibit F,5 and accorded it .some weight. He must have done so upon the assumption that the panga was themurder weapon; that the pair of trouaers belonged to the appellant; and that the blood on the sand was ~eceased. / that of .the L We wish to point out ~hat exhibit F.5 was misreceived and that the jud_~_!__~as obviously it) error in attachipg wei•ght to--ft-: There was I in our vi ew 1 no rosi ti ve evidence· that the panga was the murder weapon; that the trousers belonged to the appellant; and that the blood on the sand was that of the dece_ased, Further, the prosecution produced a statement given by Mashauri Kulwa to the police on 17/7/81 i.e. exhibit P.3. M!lshauri had since died and the.statement was ·pm-portedly tendered and admitted under section 34 of the Evidence Act, .1967. This is another piece of evidence which should not have been admitted and the learned judge may be well-advised to read the provisions of section 34 carefully. The appellant's defence was an alibi. He alleged that he was not in Mwanza at the material time. He. said that he had left Mwanza in June, 1981, for a place called Nyarugusu "for gold" and that he returned to Mwanza in September, 1981 via Ulyankuiu. In their final submissions both the prosecuting counsel ,. Mr.~Mat.taba-·a-nd the ·ddence couns-ei° Mr. Kahangwa proceeded on the • basis that the killing of the deceased ex facie constituted murder, and the burden of their arguments rertained to the isaue of drunkness. As it were, Mr. Kahangwa did not pursue the defence of alibi. We think Mr. Kah!mgwa was right in doing so. Indeed we may say th~t drunkness is the only question of moment in this appeal.' The judge' found that the deceased died at the hand of the appellant. As just indicated, we share th:1t finding. .On the evidence adduced by P.w.4 and F,W.5 the judge was justified to find so and we think it is proper that Mr. Rwe.yemamu 1 - counsel for the appellant, has not sought to ohallenge that finding. We ag~ee with ·Mr. Lyimo that the misrec~ption of.exhibits F.3 and P,5 has not· occasioned a failure of justice, The· judge rejected the defence of drunkness. He wa1 -~f the opinion that thc,ugh the appellant had taken some quanti. ty ·of moshi . ---.-.-.•.. /4. ,ti I __ ..~ ~~~~l·t;··,...~ ..•·~" ;...,..., . 1 f-~t.fJ?~ . ' 4 - be was c~pable of forming the intent to kill or ·· cause grievous harm. It is evident that the judge baaed that finding on the evidenoe of the two women, P~W.4 and p.w.5 •. The two assessors who sat with him bad expressed similar opi_hions •. We think the judge was right. It is true the appellant had bad a long drinking bout. It is true moshi is an extremely potent d~ink. More likely then not the appellant's mind had been aff_eoted ey_..:thc liquor• However;· considering the e;,nduot and u~tera.noea of the appellant immediately before and after his attack 1;1.w.4 we are satisfied that he was still. capable of forming. the m1,1;rderous intent when he set upon and ·killed the deceased. We dismiss the appeal. DATED at MWANZA this 14th day of August, 1987• A. MUSTAFA ,JUSTICE OF APPEAL A. M. A, OMAR··, JUSTICE OF APF¥J, D • F. Mii.PIGAivO Ag. JUSTICE OF APPEAL I certify that this is a· true copy of the original. ~II (J • H. MSCFFE) Dp>UTY ROOIST!Wi. . . • ~-·.'\.. '• I ~I. .. . . ·1t1t;;.;1~. :·..:·: - ~ __,/-~ :~--- .. ~ _, -~:....,...~~_.,,..,,,,,_,.,,,,.,;,-~=n,-