19881013 TZHC Tanga2

IN THE COURT OF APPEAL OF TANZANIA AT TANGA CORAM: MAKAM&, - J.A., KISANGA, J.A., AND OMAR, J.. CRIMINAL APPEAL NO. 64 OF 1987 RAMADHANI SHABj\NI .. . . . APPELLANT Versus THEREP1JBLIC.o..00.o.00.e000.00.00 RESPONJNT (Appeal from the conviction of the High Court wf Tanzania at Tariga)(Ho E. D.Sisya J.) dated the 8th day of May, 1987, in Criminal Sessions Case No 0 21/1984 JUDGEMENT OF THE COURT OMAR, J.A. The Appellant is charged with and convicted of murder C/S 196 of the Penal Code 0 He is now appealing. There is only One prosecution witness in this case callEd Shamba Abdalla, He stated that he was an Askari in the Tembo Bar in the Tanga Municipality and in the evening of 21st Apxi1,1983 while on duty he WaW the appellant taking •ut a knIfe and stabbing the deceased. Shamba admitted that he saw those two people for the first time that day and he did not know what went on between them before that time. But he successfully, caused the appellant to be arrested by the peOple in the vicint, and the knife used was also found. The appellant in his defence did not dispute the stabbing, but he said he did sQ after beig hit twice by the stones which were thrown by the daceesed as hc., the appellant, was trying to seperate the 60PSikedt and another person he was quarrelling with4 Appellant expliined how he, the deceased and two other colleagues, Kichangani and Abdi Ally spent their day of 21/3/83 frol P.M. to 8 P.M. I ,. fl —2- These eight hours were spent in two bars drinking various 1 types of local liquor and at 8 p.m. the quarrel between 1 deceased and Kichangani..strted and was subdued and it erupted again while the four people were on their way Out of the Bar and the end result was stabbing of the deceased by the appellant0 This story of the appellant about the fight prior to the stabbing was not believed by the learned trial judge as the sole prosecution witness did not allude throwing to it and at any rate the act of stns at close quarters did not appear credulous0 Consequently the act Of appellant in using a knife on a valme=bIja part of deceased body was considered frought with malice af Ore thought which jj1j1. the offence of murder 0 The argument of the learned trial judge runs as follows: "Shambas evidence is clear and straight forward0 His evidence does not support that of the accused0 As a matter of fact It is in direct conflict with It. Shamba did not make any mention of the alleged presence of any other persOns apart from the accused and the deceased at the relevant place and at the material time 0 As a matter of fact Shamba swore that there were them only the accused and the deceasedt'. In the light of this argument we find that at least one of the people, Abdi All, who was mentioned by Appellant as his companion was charged with him and held in custody for 18 months before being discharged 0 Abdi would not have been kept for sO long if some involvement was not discerned from him. We on Our part lean more On the defence of the 'appellant who mentioned matters which were not in the knowledge of P..1 we do therefore hold that the stabbing was due the provocation consequent On attack by stones on Appellant as explained by Appellant himself 0 We hold, therefore that the offence of murder has not been proved and we acquit him of it. We SO substitute for it the offence of manslaughter and sentence the appellant to eight years imprisonment. 0 • 3/. • -3- DtTanga this 13th day of October, 1988. . Cl I 1 A - / (L N. NAKAME) T11'PTP OP APPPAT. / (R. H, KISANGA) JUSTICE OF APPEAL: (A • N. A • ONA R) JUSTICE OF APPEAL b' / I J_. 41 'A• f certif tht.\this is a true cOpy of the original. (J.. H.SOFFE) SENIOR DEPUTY REGISTRAR 12