19870921 TZHC Dar es Salaam

* / IN 1iE COURT OF APPE.AL OF TANZM1IJ (9R MUSTAFAS CRIMINPL JPPEAL NO. 39 OF 1967 * GCLDFREY L]MUNC-E. . . . • . . • . . APPELLANT VERSUS THE REPUBLIC . . . . . . . . . . . RESPONDENT (pea1 froia the conviction of the High Court of Tanzania at rusha) (Chua, .) dated the 22nd d.ay of November, 1986 in JUDGMENT OF M,gORT 1he appellant was charged with the offenoe of murder and was convicted, and sentenced to death by the High Court. It is alleged by the prosecution that on the night of 19.8.1983 at about 32.30 p.m, P,W.3 Judith Faustin, the sister of the deceased who waz asleep in a house of her mother which was 15 paces from, that of the deceased, was rouad from sleep by the cries of her brother the deceased shuing "thief thief", She got out of her house and saw her brother Anq]A Munuo chasing a person she did not knew. Jud.iths sister P.W.4 Nd.bjwarai air>zwho was also in the sane house with PJ,3 joined in the I' chase crying out thief thief , until they reached a spring where they saw the appellant slashing their brother the deceased with a panga. There was moonlight and both women could see. their brother and his a.s4lant clear3y. J4ppellarrt threatened to cut P.L3 as well, if she went near him '1hy took their injured brother to the house of the ten cell leader P.W.2 followed by the apeUnt :wh= thy had rerquostecl to do so, •. . 0 0 0 0/2. POW,, Z had heard the deGeased ahotrt that he saw appellant stealing cJAthes from his houac but p 1 W,4 did not hear about it until they had reached the ç11 leader 1 s house who.4 bobh the appellant and the deceased gave their respottve stories that led to the chase and. the cut wounds. 7ho app ollant explained. in bi,,s denoe that he was awakened by a hea17 sound new hie houag wall and on opening his door he found the deeásed tarrying a piece of irgn 'sheet with burning coals on it, and a wa3.kthg stick (finib) whigh he used to strike appellant with, after pting dawn tha iron set. Appellant stated that he warded off the stick blow with a panga and panga blows landed on the arm of the deeased, Thn dooeaaed ran away ikrom appellant's house. Appellant looked up at the roof of his house and saw burning charcoal on the roof. .ppel3.ant stated that he had to tak dawn the eharcoal from the roof by using the deoeased' s stick Which at one time in the fight got stuck there, Zlov= days later doeased died of the injuries sustained. It must be noted that the appellant had consistently stuck to his defence 'ersion having mentioned, it sgon after he had, out the deoeased and apeared with the deceased before the 10 cell leader p.W. 2, P,W,l. and P,1,2 as ten cell lehderd of the appellant and the deceased respetively, visjted the hb ~ so.of the appellant after the in.dent to chk for s±gts of bUrxig of the house but could not find any apart frau 00me ashes which were seen smeared on the roof made of banana leaves, abere were other ashes on the ground mixed with bits of char43. PJ64 the pliGe officer who also visited this house could not tird any signs of biwrjng. The assault had taken 3.aoe 150 paces away A'om the houe Qt the appellant the were no signs of blood sta.in anythe'e neer the doW of the appellant which would have been the ease if the de9eased was attacked at the door of the appellant as was sUegod by the appe,a4 It is true that the panga was not seen again or found a.fte' the appellant had run away from the house at P1W0 1 vi be oeU, leader 1 $imilari.y the elctjies allegedly stolen by the appellant were not seen or found. P,W, however did say that when she went to her brother's hue to &oJc her clothes Which were .oz-the rope the pzo e i4 not tjrd. her• p aJxo of o, ri±t and alj,p, *Sjtp j/3 * q -3. The trial judge after analysing the evidence came to the conciusidn, so did the assessors, that deceased could not possibly have gone to bt'n the house of the appellant, On the contrary the evidence of prosecution witnesses bear out dying declaration of the deceased that he found the appellant stealing frOm his house, chased him and was attabked and out The dying declaration of the deceased made to the police officer, was consistent with what the dececsed told PeW02 the 10 ecU leader, immediately after hehad been cut, and was horned out by thr: evid.ence two of,the deoeasedtsLsisters, P 0 w,3 anl p • W4 who saw the deceased chasing the appellant after the deceased has raised alarms. It was not in dispute that the deceased died of septioaemia resuiting from the out wounds on his forearms inflicted On hun by the appellant on the material night. We agree with the learned judge that the prosecution has proved its case beyond reasonable doubt. We dismiss the appeal. DATED at ARUSRA this 21st day of September, 1987, A0 MUSAFA A 110 A. OMAR JUSTICE OF APPEAL L. M. MFALIIA I oertify that khis iLs a true copy of the original. (j. H. MSOFFE) DEPUTY_RISTRAR.