19880607 TZCA Dar es Salaam

', ,. I. IN THE COUR'I- OF APPE.i\L OF TiU"'IJZANill, AT DAR ES SiiLAAI1 (CORAI'h. MUST.AFA 2 J .A., Mi'iKAI1E 2 J .A. 2 And Of1.AR 2 J .A.) CRIMINAL APPEAL NO. 21 OF 1988 . BAKl.RI MF'AUME ••••••••••••••••••••••••••• APPELLP.NT VERSUS THE REPUBLIC ••••••••••••••••••••••••••• ,RESPONDENT (Appeal from the conviction by the High Court of Tanzania at Dar es Salaam) (Bahati, J.) dated the 4th day of May, 1984 in Criminal Sessions Case No. 26 of 1979 JUDGMENT OF THE COURT MUSTAFA, J .A. ~ The nppellant was charged with and convicted of nmrder,. He is , appealing to this Court from that conviction. At about· 4 or 5 p.m. on a f~otba11 pitch in the Kinond.oni District 9 Dar es Salaam., the appellant and one Kesi Abdullah, since deceased, were seen by a number of witnesses among the people there. The appellant was seen trying forcibly to remove the shoes worn by the decensed. It was in evidence that the appellant and the deceased were friends Of ncquaintances. The deceased .rjtf.is.tia{. and tried ·to run away. The appellant chased and caught up with the deceased and stabbed him with a knife. The deceasedts br~df,.~~~·,.,~tery was severed and he died from extensive bleeding from ·severed blood vessels hours later at Muhimbili hospital. P .w .2 sa:w ~a.t had happened. P 0 W.2 saw the attempt by the I appellant to remove the decoased's shoes by force, P.W.2 also snw the appellant stabbing the decoased on the shoulder with a knife. P,W .2 lg).ew both the appeUant and the deceased. P.W .2 stnted thnt the deceased was very young, and the appellant a nmch big3er person than the deceased. P.W,3 gave evidence more or less to the same effect as P.w.2. .,, ~<· [ ·' 2 The appellant disappeared immediately from the scene, and was onfy · arrested about 2 weeks later_•. In his defence, the appellant_ stated that he did not remember anything· concerning the stabbing. HG said he did not know the witnesses who had testified a.t· the trial. He sDid he was not at the p ~ where the stabbing had taken place~ He called no witnesses. ,.._ At the trial;P.W.2 had stated that on that day both the appellant and. _the deceased "held tnken liquor"., lioth ];'.W.2 and P.W.3 ha.d stated ) that there· was some sort of a struggle when the appellant tried to take off the deceased 1 s shoes • ... Mrs. Oriyo appeared for the appellant before u~. She conceded · that she had a. weak case, but submitted that since there wa.s evidence of a. struggle between the appellant and the deceased, the possibility that the stabbing occurred in the course of a fight could not be ruled out. She also submitted that since there was evidence that the appellant, on the material day "had taken liquor", it wa.s for the prosecution to exclude the possibility that the app6llaht could have been so drunk as to be incapable of forming an i11tent. In the circumstances she contend.ed that the appellant should be given the benefit of the doubt and a.conviction of mfmslaughter be substituted for that of murder. We Dre satisfied, as was the trial judge, thclt there was no provocation in the legal sense which could justify the substitution of a. convict ion of manslaughter in thi.s case. The appellant was tho aggresso:rr, and when the deceased. ran off to prevcmt being robbed of l1is shoes, the ........ appellant stc:i~bed. the deceased to death. There WDS no evidence c:it all tha.t the appellant could have been so drunk as to have been rendered .,..,;:•..,-._._:l''<~. inc8pable of forming £1n intGnt. The evidence of killing with rnal ice aforethought is overwhelming. WA dismiss the appeal. ;:jff: •::.-.-:•./ .. : .,·: .. • : • I•~ ... ~fi · ,.~.,:, · ~\:t:.... ~ ·,;.:..·v·. ••·1 -.; • • :~:r· c • ·t;"t~'.l\,~~r.J-~,:~,,-.4 ·.J . \.:- .-. ·, .. if.... ,:(~: .-;;-,, 4.~.~~-.. >E::rl'M- -~ ~ • I ~,jE/~~:,: :i:~ ~, .,.. • I ' 3. DATED at DAR ES Sil.LAAM this 7th day of June, 19,88. Ao MUSTAFA JUSTICE OF APPEAL .... / L • M,. l'f1AK.1\ME JUSTICE OF JIPPEAL A. M.A. OMAR JUSTICE OF APPEAL I certify that this is a true copy of the original. I (J. H. MSOFFE) SENIOR DEPUTY REGISTRAJ:l.