19880930 TZHC Arusha

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JO UOTOTAUOO E)rrq. uoaj iodd) ° ° " IO(I DItIEfidZu LLL SflSJOA 0 0 0 0 0 9 0 OOIIS NOE'ITh L6- jo 0oi rrrrtcrr 'jIItDD .. 0• Tf ''DIFTI)I pulr 'f r>rJu 'ro 'VffvflN rioo rflr r:T VIL\P77IIVL IO Tvaav Io La100 NI - -2- of the skull and brain damago that led to the death of the deceased only shortly afterwards0 The appellant in his defence on oath denied the chargO and claimed that the deceased accidentally foil from a tall table where she was standing while pasting nowspapors on the wall in her room0 Elaborating on that, the appellant wont on to say that the deceased fell on her back and hit her head on a flat charcoal iron which was l ying around In a carefully considered judgment the learned trial judge rejected.. the appellant's defence in the light of the abundant evidence adduced by the prosecution, Hr0 D'd.ouza representing the appellant in this appeal, filed a total of eit ounds of appeal. In the first seven grounds his complaints ranged from failure by the trial judge to reolve conflicts in the prosecution evidence to misdiroctions and non—directions by the judge to the assessors and to himself on the evidence, and as to the test to be applied before conviction can be had on circumstancial evidence0 Essentially, counsaUs complaint here is that tho appellant's conviction was against the weight of evidence. In the eighth ground whiCh was in the alternative, Mr0 D'Souza contended that it was open to the trial 'judge to find the appellant guilty of manslaughter only0 Mo could find no merit in these complaints0 idmittedly the appcllants conviction was based wholly on circustancia1 evionco0 But the trial judge found that the circurnstancial evidence as adduced was sufficient to warrant conviction0 The pieces of circunstancial evidence tending- to ir:mlicato the appellant with the offence may be sumrnaiizod as followsg- Prior to the day of the incident, the appellant had uttered threats to kill the deceased, The appellant and the deceased were living apart but all previous. visits by the appellant to the deceased • Se 0e0 ./3. am -3- were followed by trouble. Indeed on one such visit the deceasod's land lady (P.W.6) found the appellant throttling the deceased which macic it necessary f or the landlady to find the deceased temporary accommo- dation elsewhere for the nig.at. On the day of the incident, after the quarrel had • started between the appellant and the deceased, P.1.3 saw the appellant holding a piece of iron rod just ' before and after the deceased was injurcd when holding the piece of iron rod, the appellant was andry, and after the deceased was injured ?..3 saw her bleeding from the top of her head. The policeman who 'visited the scene of crime recovered from t1C deceased' s room a piece of iron rod • which had blood stains on it. lIter the ap pellant had taken the deceased to hos5ital where she died that same night, the appellant never returned to the promises to inform the deceased's landlady and neighbours generally how the deceased had met her death. 6 On the morning following the death of the deceased the appellant admitted to P..6 that he had quarreled with, and injured 9 the deceased. Te think that in the light of all this evidence, the appellant's claim that the deceased injured herself accidentally when she fell from a tall table cannot possibly be true. In holding that view we take into account that the appollant gave inconsistent accounts of the incident. He told P.H.2 9 the doctor who attended the deceased on admission, that the deceased was fixing a bulb in her room when she felt drowsy and then fell down on a piece of iron thereby injuring herself0 Later on his explanation to the police was that the deceased was injured by a piece of iron which dropped from a tall cupboard in her room. .knd later still, in his defence at tie trial, he came up 0 with the story of the deceasea having been injured accidentally by falling from a tall table as she was pasting newspapers on the walL It seems plain to us that such inconsistent accounts cannot be compatible with a witness who is tolling the truth. On that account the trial jud69 was quite justified to reject the appellant's defence as he did. 00 0 Mr. D'Souza criticised the trial judge for convicting the appellant Wicn, on the evideice, there were factors which tended to point to the appellant's innocence, nanely, that the appellant promptly took the deceased to hospital after she was injurod, and: that before the deceased died sho did not say 8nything to implicate the appellant with the injuries she sustained. The learned trial judge dealt with the submission that the deceased did not mention the appellant as her assaillant, and took the view that since on the evidence the deceased had suffered injuries which damaged her brain, it would be too much to expect her to behave as a normal person, and to givn an account of hat happened0 Such reasoning could hardly be faulted, especially bearing in mind the evidence of the doctor who said that the deceased was in serious iain and was in a . state of anxiety and talking a lot, which would suggest that the deceased was not in her proper state of mind0 Nor could the appellant's act of taking the deceased to hospital after she was inju±ed be said to be consistent with his innocence in the Peculiar circumstances of this case, For, the appellant know that if he left the deceased. there, chances were that sho would explain to people what had happened to her. So that the appellant decided to take her away in order to pro- ept such possibility and thereby assume the responsibility himself of explaining the incident to suit his own purposes. Thus he gave different versions of the incident to the doctor y the police and eventually tb the court in an attempt to conceal what had really happened. The learned trial judge found that the circumstancial evidence before him was abundant and well tied up, and was not explicable upon any reasonable hypothesis save that the appellant killed the doceasode think that the learned judge properly directed himself in the matter and came to the right conclusion. There can be no doubt in our minds y ____ 19/O . •1 • • * *oq13uoqn 'qoecIsoi tqte. 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Lccordinly the appeal is dismissed in its entirety0 DJTD at JRUSE A this 30th day of September, 19 88 ( i IUSTF.f) g. CHIEF JUSTICE (L0 M0 r4LtKIJ;L) JU-)TI=j OF LPPLL (H. H. KISANGk) 31JSTICO' APPML I certify that this is a true copy of the orijinaL (in. UTAXLNGTTA) DJIPUTY RGISTRR