19880530 TZCA Dar es Salaam3

lli?' THE COURT OF APPE!i.L OF Td~ZAJ:UA ~b"'YA ( CORAM: MAKlU'l£:.a.J .A. 8 KISANG:1 3 J .A.,, And OI>'UJli..-~-!j~) CRIMINAL APPEAJJ NO. Ht OF 1987. versus THE R:I!J'.PUBLIC •••••••••, ••••••••••• , .•• HE3I'OE0 ..1F.T . (Ap·.'Jeal from the conviction of the Hi.::;-h Cou.·:·t of T1mzDni2 flt Njombe) (r>1w2 ilrnsu 1 J.) dat2d the 18th dny of JeptembEr 9 1987 in Criminal Sessions Case No. 52 of 1985~ JlJIXJ.Er'L8N"T OF IH1.':: CDUHT KISAl~GA, J .A.: The appellant wos charged with and convicted of 1m:cdcr contrary to section 196 of the ;penal Code 9 and w2s srntcnced to death by the High Court {tiwai~asu~ J.) sitting 2t 1·jonfbe 0 He ia now appe a 1 ing aea inst the convict ion and sent .m ~ 2. they were not in dispute. V°Gry briefly they wsre es l'ollows:- The appellant is thE, son of the deceased, On the t" r.:y oZ the i.m~t, the appellant nrmed himself wj_th a pan~~a and 0 kni:'e .::ml foll-0m .-the deoeased who was at bis shambo with his wife (P.W.1; i1.::;:test~ maize. On arriving there, the oppellant s·uddenl:y ottoct-::ed the deceased. most viciously using bis pange and inflicted r:1(3vere multiple cut _wounds on the head and the neck. Th2 dece8ssd died,. on the spot followine- the injuries so sustained. The appellant I s ,defence was that he killed the deaeesed 'be-M.µse of his practice of witchcraft whereby hE hfld CDU$Gd the death of,~ (appellant •s) three children and his li""~·;to~; Emd sometimes he had also bewitched the appellant further slleeed that on the day of the incident he had .teported to th€ Qeceased that h~s (appellant 1 s) -:;Uld wss ... 2 - siok but in reply the deceaaed sounded indifferent adding that even if the child died he could not -care because the eppellant had branded him a wizard. Such a rep]~,, the appellant cl!ilimed, sparked off the previous grievance,: 8:3'Dinst tho decensed nnd led. him to attock a:r.·'. kill the <~ :::eased as he did. In short the The learned trial judge after .t>eviewtng the r-vidence in he cnse DS a whole held th4lt the defen~e of provocayioh was not open to the appelltmt. .. Mr. Mwakasungula appearing fo~ the appellant in this appeal filed and argued only one grolU1d of appeal. He complained that. the de.fence of provocetion was not considered suff:i.o:Lently • In his defence at the trial, the appellant had claimed that when he .reported about: his sick child to the deceased, thG deoease.d ii, his reply sounded indifferent and added thzit even if the said ehild died he could not care. '11 he lec1rned counsel ·ccntended that such words of the deceased amounted to prc;roo8ti0n. We can find no_ merit in this contention. The leorned tri3l judge in his address to the three assessors s1,--e cifically put tbot issue to them, and the assessors unanimously found th:it ,3uch words. were not 1apable of inducing the appGlJ.ant to act as he dit'._; they were fu:mly of the view that the appellant followed 2:1d l:illed the de<?eased at his sbnmba out of an old srude;e which ho hc,d been harbouring against him (the deceased.) '1'he learned tric:.l judge' endorsed thot view and accordingly convicted the appellant as charged. We can find no fault here;, especiolly benrin:::; in mind that the assessors were the best judges of fact in matters relating to the behaviour of the appellant as an ordinary mei;;ber of the society to which he belongs. \ •••..• /3. f 3 We are satisfied that counselis complaint wos imjustified. The appellaht 1 s defence of provdcatioh was adequately considered and, on ilhe evidGhce, the .~,JUrt properly held that thDt defence was not 0pen to t'.1e appeUant o Ir. the rcaul t we con f i.nd no merit in this ::ppE?al vidch is accox:Jingly dismissed in its entirety~ DATED at MJ3EY.\ this 30th ·day of MGYr 1988.; _:. , , N. MAKA.ME ..J.T.EIT.!QJt ( 1? AFPEl\.1 1 R. H. II.SANG A JUSTIC8 OF AJ.::PEAL A. M. A, OIS/ffi I certify +,hat this is ~ ·. ~rt:.s c C•!Y of t-be 0ri. ::: ,,,) _ I w1.✓-,-f7'(r (J. ,E.. f'i'::CFYE) S.t'i:NIOR .Dt'l:-V'1Y 'RB.-:;.I::.·5:_~,B. 0