19871230 TZHC Zanzibar

IN THE COURT OF APPE1L OF TANZANIA AT ZANZThtR (.ccm DI&KAME, J,A. 1 ICISANGA, J.A, CRIMINAL APPEfL No. 106 OF 1987 ALl MOHAMID BAKARI. • . • . • • APPELLANT VERSUS S,N.Z . . . . . . . • . . . . . . . .RESPONDENT (Appeal from the conviction and sc-ntence of the High Court of Zanzibar at Pemba) (I4sui, J.) dated the 19th day of hay, 1983 in Criminal Sessions Case No. 2 of 1983 JUDGMENT OF THE COURT The appellant Ali Nohamed Bakari was charged with murder contrnxy to section 180 of the Penal Decree (cap.13 of the Laws of Zanzibar), but was found guilty of the lesser offence of manslaughter, and. sontenced to 10 years' imprisonnent. He is now appealing against both conviction and sentence. Essentially the prosecution case was that the appellant had installed electric wires in his garden and connected thei with those which carried electric current in his house, Apparently the appellant had taken this meaau.e against the theft of the sugar cane in his garden. The deceased, a little girl of about 12 years, while chasing a hen, was electrocuted through these wires in the appellaiit's garden. The deceased died only shortly after the incident, but her companion, another little girl who was also electrocuted, was rescured in time and her life was thereby saved. At the trial the appellant chose to soy nothing in his defence, but in an extra—judicial statement which he had made to 8 justice of the peace, and also in his mamoranduiB of appeal to us, he stated that he tied the wires round the sugar cane to keep the sugar cane in an upright position, but asserted that the connection between these wires in his garden and the live wires in his house was done without .. -2- his knowledge by one Farahani, a, neig.hbor, with whom he : had been in serious misunderstanding. Such misunderstanding, the appellant further alleged, arose from ftrahani committing adultery with his (appellant's).wife. The learned trial judge found as a fact that the wires leading to the ppellsnt's garden were connected to the live wires in the house at a point in the ceiling of the appellant's house. This finding was amply supported by the evidence. The learned judge further found that the corniection in the ceiling between the two sets of wiies cannot have been done without the appellant's knowledge. Again that finding cannot be faulted. It is impossible for a person to connect the wires in the ceiling and lead them outside the building and hence into t garden without the appellant seeing or being aware of them. The appellant who appeared before us and argued his appea1 in person claimed that the connection between the two s e ts of wires was done by Farahani at a time when both hirilf and his wife were away from home for some day. The appellant alleged further that Parohani did this by plugging a certain gadget into the lamp holder of a security light on the outer wall and oowiectjng to it the wires from the garden. The appellant claimed that Farahani did tb.. in order to kill him. We can find, no merit in the appellant's allegation. kdmittedly the said Farhani could not be called as a witness to either confirm or deny the alleged misunderstanding between him and the appellant as he was said to be out of Zanzibar at the time ofthese proceedings. But PW.21 Mohamed Juno Rehani who lived in Farahani's house and hence a neighbour of the appellxit, testified that he had heard of no misunderstandings between Parahani and the appellant. Again although the appellant claims to have reported to his 'Ibclozill his grievances against Farahani, he did not call the "balozi" to support that story. But what is even more is this; If Farahani sought to kill the appellant, wtr should he lead the electricity to the sugar cone in the garden? It seems plain that the act of leading the electricity to the appellant's garden was .13. consistent with on attempt to prevent theft of the appellants sugar cane rathOr than a design to kill the appellanti We hirik that the ape1lnt's oonviotiorf was quite sound and wo can aee no valid ground for complsint& As for the aentence, the complaint ib not justified eithe Admittedly 10 yeats' imprisonment is a ti1'f sentence, but irt our view it was well. deserved. The bppcliont dcliberatelr set the electric trap 1nowing fully well that he was thereby endangering the life or health of other peop].e, and as it tu.rned out an innocent life was lot. That fell only slightly short of malice aforethoht which would have constituted the ofI'ence charted attracting as it does the death penalty. Indeed' the trial jud€e entered conviction for the lesser offence only because he thought that there could, be some doubt whether the appellan% biew or could have known that the amont Q electric orro4 flowing through the wire8 was 240 volts and. that it was sufficient to cause death or grievous bodily harm. But evi with that finding in his favour, the sppellant's conduct cannot be viewed lightly 4 It is true the appellant was perfectly entitled to prevent the theft of his sugar oaxie, but the modality he adopted for achieving that end was totally unacceptable end must be deprecated. We ththk that in all the.ircumstcnoes of the case the sentence meted. out fitted the gravity of the of'ence and we se no reason to pterferei \ We are ,atisfiect that this appeal is dovoid of merit and we accordingly disi6iss it in its entirety. D2TflD at ZANZThM thi. 30th' f December, 1987. I.-. L • H. MPJWIE JUSTICE OF APPEAL R. H. IKISANGA JUSTICE OF tiP PEAL A. H. A. c.*IAR JUSTICE OF AFPEAI .14. r1 I certify that this is true copy of the original. (. J. N. MACKAiJA) • RIXISfl1A2