19880522 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA /\T DAR· ES SALAAM CRIMINJU, APPEAL NO. 6 OF 1981 BETWEEN KAMULO MATEGE o. o o o o C O 0- 0 O e e O O O O • ~ APPELLANT A N D THE REPUBLIC e O • • • 0 e O O O O O -· 0 0 0 0 O e RESPONDENT (Appeal ;rorri t:he conviction and s~fttenc~ of the High( Court of Tanzania at Bukoba) (Rubama, J.) dated the 17th day of ,December, 1980, in Criminal Sessions Case a N6~ .24 ,:of 1980·· JUDGME.N'T OF THE COURT MUSTAFA, C JoAo: P.Wo1 was an eyewitness ,to the killing of the deceased by the appellanto P.Wo1 was the wife of the deceased~ The appellant is the half-brother of the deceased. P.W.1 stated that on the material night she was sleeping with her dec·eased hust,and on the same bed when she was awakened by the sound of a blow. She heard a second sound of a blow and awake and then saw a person attacking her husband with a panga. There was a log fire burning in the room about three paces away. She said she recognised the attacker as the appellant whom she knew very well. P,Wo1 rushed towards a wall to escape, but the appellant . caught hold of her and threw her down. PoWo1 somehow manoged to escape out of the room and raised an alarm and some co"!'villagers .came in response. PoWo2.and PoW.4 co-villagers of the deceased came in response to PoW.1's alarmo P.Wol told' ,them that her husband was cut by the appellanto P.W.4 went to ' the appellant's house which was nearby but the appellant was not·. there. The appellant did not attend the funeral of the deceased and was discovered •oooe/2 ' I, I.I I I • 2 - hiding in a bush about 11 days after the incident and was arrestedo -There is evidence that the deceased had expelled the appal.ant from the deceased's house some time ago and that the parties were not on good termsa The deceased died as a result of the panga wounds which damaged his brain tissues. There ., :. were six cut wounds on the ~kull, according to the post mortem reporto The appellant raised the defence of alibio He said .· he was not at the village on the material night! He said he returned to the village a number of days later, learnt that he was suspected of killing the deceased and went into hidingo However P~Wo3, the appellant's wife gave evidence, after due warning. She stated that the appellant had come home on a day a.nd was given lunch by hero The appellan~ left at about 4 Porn• without informing her where ·,,he was going, and that same night 1 she heard an-. al arm and :discovered that the deceased had been cut. We are satisfied that PoWot could not have been mistaken in her identification of the attacker of her husbando We also, like the trial judge, accept PoWo1 as a witness of truth. She had had ample good opportunity of identifying the attacker. The fact that immediately thereafter the appellant was found absent in his house, the fact that he did not attend the deceased's funeral and the fact that about eleven days later he was discovered hiding im· the bush were all factors which tended to corroborate PoWo1's identificationo PoWo3's evidence.which the trial judge rightly accepted further supported P.Wo1 1 s identification and contradicted the appellant's allegation that he was not in the village at all on the material day. We are satisfied that the appellant was correctly identified as the attacker of the deceased, and that his alibi could not raise any doubto The judge convicted the appellant of murdero eooooo/3 .J J / originalo I d