19870812 TZHC Mwanza

IN THE CoURT OF AFFEAL OF TANZP.NIA AT MWIUZA (CORAM: MUSTAFA, J,A., CMAR1 J.A. And MMIGANC, Ag., J.A.) CRIMINAL APPEAL Nc 24 OF 1987 SERAF!TUS E1VIMAijUEL. . , . . . . . AFTFLLAIJT VERSUS THE REFUBLIC. ..... ... ....RLsrcDFJNT (Appeal from the conviction of the High Court of Tanzania at Bukoba) (Katiti, j.) dated the 19th day of December, 1986 in C r iminal 3essions Case No. 52 of 1985 JUDGMEi'T OF THE COURT... 1USTAFA, J.A.: The appellant was charged with and convicted of the murder of the deceased, his father. He is appealirg. - The appellant, shortly after the killing had told P.w.6, the CCM Branch Secretary of the village, that he had killed the deceased. He.stated that he was egged on by his eider brother Ibugast to doso, and was paid aboutShs. 200/- for the job. Later the appellant made an extra-judicial statement to F.W.l, a Justice of the Peace. In that statement the appellant alleged that it was P.W. 5 Damian w, had paid him, not Abugast. Damian allegedly asked the appellant to steal an animal from the deceased, and failing that, to kill the deceased. In both the statements, the appellant admitted that he had killed the deceased. The deceased died from shock dueto haemorrhage. The carotid arter on the deceased neck was cut, according to the post mortem report. The wound was apparently caused by a sharp instrument like a knife. The killing took place on a Suiday afternoon. P,W,4, the wife of the deceased and the step mother of the appellant had locked her kitchen door - the kitchen room was at the rear of the house. P.W.4 testified and said she left the kitchen /2 I -2- key hanging in the appellant's room. When F.W.4 returned home from Church that afternoon after being summoned owing to the death of the deceased 1 she found the kitchen door open and the kitchen key missing. Also found missing were two kitchen knives. One of the kitchen knives was obviously used in the cutting of the neck of the deceased. The appellant admitted he had opened the kitchen door and when the appellant was searched, the kitchen key was found in the appellant's pocket. In fact the appellant also admitted that he had taken the knives, and during the investigation, the appellant showed F.W.6 where he allegedly threw the knife after the killing. The place shown by the appellant corresponded to the spot where the police had earlier picked up a blood stained knife in their search for the murder weapon. 14r. Kahangwa for the appellant has called 4tflt1n to the difference between the version given by the appellant to P.lr.6 and to the Justice of the Peace as regards the source of the money payment to him. However in the extra—judicial statezrent to the Justice of the Peace the appellant had stated that he gave the name of Abugast to P.w.6 in order to avoid being beaten by the villagers. When he was making his statement to the Jp.stice of the Peace he took the opportunity to exonerate Abugast from blame. In any event the appellant at his trial did not challenge or object to the extra—judicial statement-he made to the Justice of the Peace being admitted. Neither did he challenge the evidence of P.W.6. At the end of the prosecution case the appellant made no statement, did not testify nor did he call any witness. He opted to remain silent. We think that the trial judge was right to have convicted the appellant of murder in the circumstances. Like the judge we are satisfied that the confessions made by the appellant to P.W.6 and P.W.l the Justice of the Peace are voluntary and substantially true. There was also corroboration in the evidence adduced which showed that the appellant had taken the kitchen key and opened they kitchen door to get the kitchen knives, and also the evidence that one of the kitchen knives .. - . 13. was the murder weapon. The appellant indicated the spot where he had thrown the knife. We are satisfied that the appellant was properly convicted of murder as charged. We dismiss the appeal. DATED at MWANZA this 12th day of Avgust, 1987- A. MUSTAFA JUSTICE OF APPEAL A. M. A. OMAR JUSTICE OF APPEAL P. MAP I Gki Q g.JUSTICE OF APPEAL I certify that this is a true opy of the origiia1. (j. H. - MSOFFE) DEFUTY. REGISTRAR. \ Al