19871021 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAB ES S ALAAM (QA: OWiR J A k1!L Ag. J.A.AndMAPIGANog.Jd.) CRIMI1JAL APPEMJ NO. 50 OF 1987 HASSANI MADENGE. . . APPELLANT VERSUS THE REPUBLIC. . . . . . . RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Morogoro) (Bahati, j.) dated the 6th day of December, 1985 in Criminal Sessions Case No. 58 of 1984 JUNENT OF THE COURT The appellant HASSANI IIADENGE was charged with 6nd convicted of the rmwd.er of his father IARIND1E MADENGE. He was accordingly sentenced. to death.. He is now appeal5g against both conviction and sentence. The pillar of the prosecution case against the appellant was NEEA G1ARI i'ilAGUO who gave evidence as P.W.1 and. is the appellant's step mother. She described, the events immediately, before the fatal assault on her husband, by the appellant. Her evidence was accepted as true by the assessors and. the learned trial judge. She told the trial court that on the day in question at about 7 p.m. she was in her half finished hut cooking when she heard an exchange of words between the deceased and his son the appellant. B0th men were outside. The deceased was admonishing the appellant for roaming about in the village doing nothing instead of remaining at home and help in shamba. work. The appellant replied that he was in the village visiting his brothers. Whereupon the deceased further told. the appellant that he had. also been told that he appellant was going about stealing people's properties in the village. At this stage, p 0 W,1 said, the appellant picked. up a pctle and. hit the deceased with it. Twice on the head and once across the body as he lay on the ground. The appellant ran away from home. and. the village. . . . . . -.2-. The appellant admitted assaulting his father the deceased both in his extra-judicial statement and evidence in court but he denied, that it was in the circumstances and manner described, by .P.W.1. According to him he assaulted. his father when the latter provoked him by accusin him of being a thief for having stolen shs. 30/-. belonging to his cousin, and when at the same time he produced a imife and. attempted to assault him with it. He also added that on that day he had, been drinking with his cousin Belina until 8 p.m. when Beitha started accusing him of stealing his sha. 30/-. This dispute later reached his father the deceased. As indicated. the trial court rejected. the appellant's allegations and found. that he had, assaulted his father in the circumstances described, by P.W.1 and that therefore there was no legal justification for this fatal assault whose intention was either to kill or to cause grievous bodily harm. Accordingly the court 'found. him guilty of murder as charged. At the hearing of this appeali Miss MJASIRI put up a spirited fight for the appellant for tqhich we are very appreciative She attacked. the trial courtts rejection of the defence version regarding self-defence and provocation and relying unduly on the evidence of P.W.1 who according to her was more likely than not to have a self-interest to serve 1 Miss Mjasiri based this conjecture on the traditional bad ittitudee attributed to step mothers. With regard to self-defence, she à,ttadked. the judge's finding that the appellant's assault on the deceased more than once tended to negative the defences of provocation and self defence,, We agree with Miss Mjasiri that the learned judge was wrong in implying that the nature and extent of the assault can negative the defences of provocation and. self defence. In the case of provocation as a defence, the only way in which the prosecution can negative it, is by showing that the deceased's conduct complained of by the acci.sed does not amount to legal provocation, once legal provocation is shoi to exist the nature and extent of the assault is irrelevant 1 With regard to self defence, this is a complete defence for any criminal charge depending on the nature and extent of the retaliation. If it is excessive as three blows on the head, with a pestle would seem to suggest, it does not negative the defence, rather it operates to reduce the offence to a minor offence is, in the case of murder, the charge is reduced. to manslaughter. But we ...../3, - 3-. do not think this misdirection affected the justice of the case in view of the fact that the trial court rejected the existence of both provocation and self defence. We agree and concede that the learned judge when rejecting the a:ppellant's story may have misdirected himself when he stated in his judgment et page 31 of the records "The assessors did. not believe the accused nor do I have any reason to believe him" We trust that this was a slip of the pen, the learned judge could not have meant it. We trust that the learned judge iciows that an accusedts story does not have to he believed. He is only required. to raise a reasonable doubt, that is to say his explanation must be within the compass of the possible in human tern. In the present case the appellant's explanation could. not and did not raise any reasonable doubt in his favour. No father can wish to stab his son with a knife simply because he is accused, of being a tKiefj Similarly it is the prerogative of every father to admonish his Son if his son's untoiard behaviour comes to his knowledge. No reasonable son would be provoked, by this. It was in these circumstances that the trial court found. P,W.1 a credible and truthful w1tes and decided to act on her evidence. We cannot, sitting here as a Court of Appeal, discredit her evidence merely on the basis of conjectures suggested. by Miss Mjasiri. Once the evidence of P.W.1 is accepted as it was, the assault on the deceased by the appellant was without legal justification, perpetrated witb.itent either to kill or to cause grievous bodily harm. In those circumstances he was properly convicted of murder and. we dismiss the appeal. DATED at DAP ES SALAAM this 21st day of October, 1987 A. M. A. O1.IAR JUSTICE OF APPEAL L. N. MFALILA AG. JUSTICE OF APPEAL D. P. MAPIGANO AG. JUSTICE OF APPEAL