19870217 TZCA Dar es Salaam

JJ4j_ SS§Jl$1 .,.#! U#!P. i61f I #12 1 _.., r r 9 ►► .w.•••, , ~-·"_",:.:· {l&Jl!F~"' ;; 1¥1¥ $$£k4 .· . . . ·~ ' . I ".t AT D.·,2 ES ~ALi\id-1 CRIMINAL· APPEAL NO-., 98 OF--1985 HASHIM KASSIM BUSHIRI j\.ND THE REPUBLIC .. o ~ o o c • c • o • • e • o G • • • e • RESPONDENT (Appeal from the conviction of The High Cou~t of Tanzania at-Mtwara) (Msurni, J.) dated 26th Oc'tober, 1983 in Criminal Sessions Case No. 27 of 1983 JUDGMENT OF THE COURT .) ' +-. • MUSTAFA, J.A. Th~ appellant was conv~cted of murderin~ -his wife and h~ Js appealing. The prosecution evidenc~ is a~ f•:.illows: PW1, a PolicP. officer statione~ at l'unduru, was on duty v1hen the n:,;>ellant report<:·d·· to him., The appellant told him that he had fought with his wife.who~ell down and the appellant thought that she might have died. The app,.?l lant said thci t he had Onl~ used his fists. PW1 de~ided to arrest the appellant. I PW2, PW3, PW4 and PWS, two s:tep•sons of the appeHant and one~ other being. 4· a ... ()...villager"'-and one a Pel iceman attended at the police station to report {'i,'"le death of the deceased. PW2, PW3 and PW4 ,aw. th~ appellant at the site i· -Pf the dead body and in the questioning that took place there, all those three witnesses testifi!~d thf t they heard the ap?,E;:llant suying that he had ' ·, killed the deceased •. PWS heard thP. same ,:iqmission at the police Stationo NOPle of these 4 witrie,sses was: cross-examined in Court on the: udmission by . . ,he appellant that :h-e had killed. ·' ·\'." In C6~rt.'~the .. I< ~ appellant -t(_~ stifi_E,d. i •• He' 'kaid . that his wife left#for the ' shemba at .....abOut ., 4o00 porn. ,.and. _he foJ.lo¼'.ec.'. her about an hour later. When . ~ ~ . tie <lfrived at the. sh~mJ?~; ~e - found hr~r lying near a foot path and ha noticed that sh~ ·;,_,as J:?leeding. "•'The appellant stood at a distance of 20 y;;irds; he did nQt go·ne?rher at all. He shouted for help but nobody cameo He did not 9" llack,~O the nearby v~llage for✓ but went to Tunduru Poli~~-~~;:ion . ,iii 2 .... on f(>~ and arri\rea there the f'.Jllov:ing morning and reported, apparBntly to PW1.. The app~llarit said that h(• reported. -to. -the P-olice- :bha.t his wite \.fl\$ de~- f!Otn, PW2 at\d PW3 ,. the _sb;p-sons Of the appe~lirnt, in evidel\Ce stated, 'Chat ?n the materiql day -th•c .:..'.p-pel1an:b ,3n,9 the rle~eased left. t;ogeiJ,e~ in the aft~r11oon to c_;-..i to the shamba. The appei'la11t was armed with an axe and a knife;· Auorcl.ing to the med1eal evidence, the deceased di,'.d from cut wo1,1nds infli•ted by a sharp instrument lil<(;' an axe. The cause of deat;b was inte•l'l~l and external ha(imorhage and 09iltu.lon and laceration of the brain. 'l'he dece.aMd had a. largi~ hearl. wound which rt?sul ted in iaci.?t'ation of the· b,;aift and there was also a cut wound on th,-~ lµmb<fr regiurt which pen~1:rated and cu, a portion of the liver. '!'he appellaht wheh giving evidence "denic~d that he had admitted Jcj,:!,ling the deeeased in the prf:aen'cc ·of PW2, PW3, PW4 and ~WS. Thf.? trial judge 1 t19h~lYt in Our view, b,~lie:;_i,ed th,~t the appellant did make the admisst.on . ttuii, he had killed. The trfal j 1.:.dge considered the circ_umstances and came .... ,,·. We eonsider the appf~llant' s report to PW1, and his own evidence at the t,.:t,ai, Court. It is clear that the only person with the· deceased when •he dee:ea$J:d was seriously injured or killed was ·:the appel1°ant. We believe the ev.tdenc:e of PW·2 and PW3 that the ·appe'llant left for 'thr, :shamba together 1th the deceased on the material afternoon. The'. appellant oov1ously ·tied ,·"'-' Wheri he told FW1 that he had only ai:tacked the decec1sed 1ri.ith his fists. ~ The i~ju,1es caused to the deceased 'c6ul·d only ha_yA been caused by a ·sharp inst,ument liki: an axe which, according to I'W2 and P~l3, the appellant had Wl.11;1\ h£am _On that day" · ~. ~ukwaro for the appelL:"'t hDs asked us· :to ignore the admission made by the appellant to h·J2, ,_;,d-, PW4 "ind p·~1s t:v}t he had killed. • I He . .fUggesi:ed that there were inco:is1stenci~s in thei~ evi:::1•:mceo We have ~onsldered these so-calh~ci incons'L;tci~cit~s, they cir,/ so insignificant that . -· ·1 they d·o · not deserve any attention. :Mr. Lukwaro also submitted that no / I moitvP. tor the killing has been e.~tablishe~. But ,the evidence i{) this case, 'i' t 5upported by the appellant's ad~iss·ion that. he had killed, is so ·-6oqent ••••• /3 . 3 that we. haverfo reasonable dOubt at 2:'..l that it wc1s the appellant who had Jci~led the deceased in circumstanc•c>s -,1hich 2.rr;o~mter:i. to murder. We find no merit in the appeal which is dismissed. DATED at DAR ES SALAAM this 17th day of February, 1987 ;·.:. \ '·, I I \ Ao MUSTAFA JUS?ICE OF APPEAL L.M. MAKAME JUSTICE Op APPEAL A.M.A. OMAR JUSTICE .Op APPEAL r ce~tify that this is a true copy of the original. 1 ,"i / l. ~-.f.l' . .-, -l' y-·-- (JoH• MSOFFE) DEPUTY RaGISTRAR