19880627 TZCA Dar es Salaam2

.f 1H TI:zE COURT OF APPEAL O:l TANZAfJIA AT DAR ES 3ALAAR! I ( COR/1.N~ EUSTAFA9 J .AO 9 WuetJIE9 J .A. J.nd Ol:1AR2 J ~A .. ) CRI?mrn.1 AP?EAL 110. 19 OF 1 988 ALLI CHiil:-rDE • 0 • • • • • APPELL.'UJT Versus TEE. REPUBLIC O O RESPOI-WDNT O o O o O •· O O (Appeal· from the conviction of the Ihgh Court of Tanzania at Htwara) (Kazimoto, J.) dated the 26th day of August, 1987 in Crifilina1·sessions Case No.19 of 1986 -------- J1JDGlIEiJT OF TIIE COURT Appellant is charged with a.nd convicted. of ;i11.,rrd.er c/s 196 of the P·enal Code,. In the evening of 22.4.,84_Appellant was seen sleeping on the becl outside the house of P.i"i-., 1 Thomn.s Stephaneo P.,W .1 was incensed by this and wanted to get appellant out of his bed and away from his house., PoW.1 looked for the ten cell leacier to coi,~plain to but did. not find him 9 he then met Victory rhllanzi 9 the c:teceased and sought his assistance. Victory.went to where appellant was and told him to 1 eave- the place and so appellant left, appa::rently very peacefully. After a while deceased also left ?.W.1's place after bi.dd.ing P oW .1 goodbye and took the road_ the appellant had taken. Shortly ~f:t;er-warosr.w.1 heard a beating and he went in the direc-:;ion of the noise and saw Appellant running auc::.1, further ahead. he saw Victory lying down tm<ir.nsc....,._~a , ·{.near a· . . . a 1.sused hut., P,,W .• 1 went and called the cell lead.er P..,Wo3 I'-iOIL'\1:IED BINA11U and other people and they returned to the scene to only find Victory Iiillanzi had already been removed to his sister's houseo P.U .1 saw a cut wound on his b.ead.o Deceased was sent to lfo,chingwea IIospital where b.e died seven days latero PoWc6 Dr. Aloyce J'ohn examined the deceased.'s body and certified that he died 11 not because of the wound on the head but because of haemorrhage due to ru.ptu.red spleen gall 0 0 D ./2 I· 2 WO\Uld bladder and intestine 11 ., The ~u.t~_he said was caused by a blunt object<> The doctor ft,rther said th.at if a person is beaten and falls on a hard object he can sustain ruptures of t:1e spleen 9 _gall blaclcler and intestine anc1 diea Appellant in hi? defence admitted that he war: at PoWol 1s house and was lying in the bed which was outside the buildingo .Victory Eillanzi then appro2,ched hi;n accompaniecl by one i~Icmdehebu, Victory-the deceasecJ. started oaking accus2,tions of,itlultety .,against him with the wife of or:e II1.misi and then asked. him ( the appellant) to move fro:H that house. P .l! o1 who was also there made a si~11ilar order. and before ho appellant left the pl2.ce Victory ~1i t him with a i 1gongo 11 · (a thick stick) 011 the waiGt and he 7 appellant, took a small stick and hit him backo They actually fought outsirlc the house of PoWo1 but none of them fell d.owno Then ?or;o1 escorted the appellant homeo Appellant denied boating the deceased away from the house of PoW.,1 as alleged by P.,Wo1o Appellant adrnitte(l on cross-exa~.1ination that while he appellanJc was g0in6· home after being chased f:com the house of P. W o, dee ease cl f' oll owed him and hit him on the waist and he the ,, appellai1t hit deceased on the head and he fell clown and became un,c c-.n sc-i_flµ~. The evidence estabiishes that appellant hit the deceased on the head near the right ear with a blrmt instru.r,1e;1to Fe have to take the word of the appellant that he used a small stick because no weapon was found and the doctor said he fo~~1d a small wound on the head 1 cm x 2 om a:ncl .this the doctor said. that was not the cause of death, but the cause of death was haemmorrhage due to ruptv.red spleen intestbe and. gall bladder ,::mc1 these could. be causecl by a fall on a hard objec·i; or being hit by a blunt or a sharp object o The post rnortera report says~ •1A dead male body was found lying r in a mortuary with sculp cut wouncL. No othei· eidernal injuries were noted 0 • From the foregoing it :i.s clear that the o;.1ly exte1·nal wound that was found was that 0~1 the head and it was sme,ll .._ and tJ1is is consistent with "i;he adwission of the appellant in hiG testirnoney that he hit the c1eccascd 011 the head with a small sticko It is not clear how the ruptu.res of the spleen~ the gall l)ladc't.er and. the intes·i:;ine ·were cac..sed. and by whowo 0. ./3 0 ,I -.; . ~ ~ 3 I The trial j1.1.d.ge fom1d that the wound on the head caused the death of the deceaseclo '11his was clearly in error., Ile therefore convicted the a3_)pellant of ;,nirdero fXo Simbak:alia for the Republic subr.1i·~ted that the eri·oi' on the part of the juclge 2.s to the. cause of death was not fatal to ·Lne convictiono We disagree., We are satisfied that the appellant diu attack the deceased just prior to ·Lho, deceo.sed's death and we believe that the appellant I s attack on the deceased must h2.ve · contributed to the deo.th of the deceased, in this case by the rupture of his in:~ernal organso However it w2,s'doubtful if -~he atiack by the appell;::,nt could }1ave been expected to caur:e death or grie-rous bodily han-110 Nevertheless it must have been a f2.ctor which, uith others brought about the death of the deceasede We find- the ai)pelli:mt guilty not of murcler 9 but ofi:anslaughter,·as we beleve the element of·r:1alice aforethought was lacking .. murder We therefore quad.1 the conviction for L and substitute therefore a conviction of I-Ianslaughter,. We sentence him to eight years imprisom:ient o I . DATED at DAR ES SALAli.1-1 this .. 27th .d~y of June, 1988" Ao MUSTAFA JTJSTICE OF APPEAL L o E,, I1Ifil(ANE JUSTICE 01:' !1.PPEAL A,, IL A. OUiR JUSTICE OF APFTI:.A.L I certify that this is n true copy of the original.a (J < 0-i-1/t rio H.SOFFE) SID.HOR DEPUTY REGISTRAR