19880311 TZHC Dodoma2

IN THE COURT OF JPPEAL OF TANZANIA AT DODOMA ( COW2 MAKJJ .A. ,KISANGi 1md CRIJ'IINAL APPEAL NO. 26 OF 1987 KUNGURUSE BALLSYE. . ....., • . APPELLANT VERSUS C' THE REPUBLIC. . . , , . . ., RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Kond.oa) (Bahati, J.) dated the 23rd, day of February, 1987 in Criminal Sessions Case Now 3 of. 1985 JUDGMENT OF TUE COURT The appellant ICtJNGURUSE BALASYE was coflflQd to death following his conviction for the murder of a youth called P1LSAL ThNDOO. There was no dispute that the appellant consigned the deceased to his death by shooting him, point—blank, with a poisoned arrow at Chase Village in Kondoa District, Bahati, J. shared the view expressed by one of his assessors that the appellant was guilty of murder and differed from the opinion of the second assessor who felt that the appellant was defending his son when he let fly the lethal missile. S Mr. Mbezi, learned advocate for the appellant, complained that the appellant ought to have been found guilty of the lesser offence of Manslaughter. Defence Counsel valiantly submitted that the defences of Provocation and Intoxication ought to have been found available. This was after the learned advocate had conceded, during the course of exchanges in court, that Self-Defence and the Defence of the appellant's son were non—existent in the case at hand. . . , . /2 * .. - 1 -2- Mr. Mbezi urged. that when the appellant was informed, quite wrongly as it turned out, that his son BILJISYE and another person were killing each other, and he set out with a bow and arrow, he was 'provoked' when he found somebody lying prostrate on the ground and assumed that that person was Balayso 'killed' by the person he was told. had been fighting with Balayse. He shot at a whitish object in the heat of passion, thinking that it was his son's killer. Is it transpired, the prostrate person was other than his son, and alive, and the whitish object was not John, thE . man he had in mind, but the deceased, who was incidentally the son of his own cousin. Fir. Mbezi urged that this act by the appellant was caused by a mistake of fact and so qualified to be treted as "Transferred Provocation", which should have reduced the killing to Marslaughter. Hr. Mbezi secondly sought to rely on Intoxication. He submitted that the old man had been drinking for some six hours so he was unable to form the specific intent necessary for a killing to amount to the offence of murder 1 Hr. Chaila, learned State Attoxey supported the appellant's coxiviction. He urged that the killing was done with malice afore- thought. Mr. Chaila submitted that, on the evidence, the appellant simply invented the fight report story so as to prepare the ground for the defence of provocations The truth of the matter, Mr. Chaila said, was that the appellant was merely intent upon getting even with John, a man who had fathered a child of Balasye's wife before Balasye, the appellant's son, had got married to the woman. 'Apparently John was still continuing to chase Balasye's wife. Regarding the question of Intoxication, Mr. Chaila submitted that, from the appellantts own extra judicial statement, it is clear that he was in full control of his mental faculties even though he had admittedly taken some alcoholic drink. I 0 ./3. /S 0 0 0 * 0 0 S 0 j7 oq eqUfl aT ØM aouepTAa Dq4 qno.xq upoo'1 oe aq o. cI .StrtD' et4 uo spuadap pe ;i •3nOqq.OzrOJ3 eoTw eAq oq. equrt eq ol s o pqjeo j xoq.uT OG si Ctj q.eq. 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UT C.1 t t9TA P3a3PTUO3 tflO UT 6 esncoeq q.uau.roat aq. i oj fu ess aoquLm aq PIflOM eTo.xaxe eqq aneoaq ex .uamrajep STTJ UT * jUOT ~ e 0O A OjCjPaa x aj 2 uexLTJ I jo sept tq 9 9TN0 0% Gfl P9q .TAUT Seq Tzeaj 'W )[?Eq. aq UOtOOO 9T.1clOxdcl 91OW e .xoj 9Ae2 o eodo.xcl 9M 4rroo Ut uawn2zrc s lTasunoo pau0xca pa.1epuoo Aiao - o pue aouepça aqq. peqcei' A --tnjao aeq aj -c- see any evjdnce of Intoxication much as we are aware that it is for the Prosecution to establish the absence of this type of Intoxication canvassed : and not for the appellant to prove that he was so intoxicated. See CHEMINIMA V. R. 1956 23 E.A.C.A. 451. As Mr. Chaila pointed out, even after allegpdly abusing himself with alcoho1 the appellant had still enough sobriety to try to reconcile a quarrel in the family. We do not think he was intoxicated. He intended to kill and was callous enough to retire to bed even after discovering that his son was infact home and safe, not having been involved in any fight, with John or with anybody, and 1iowing that he, the appellant had just shot an innocent person with a poisoned arrow. We see no merit in this appeal. We accordingly dismiss it entirely. DATE at DONA this 11th day of March, 1988. L. N. MiUM10 JUSTICE OF APEEAL H, H. KISAiNGA JUSTICE OF APPEAL A. M. A. OI'IAR JUSTICE OF APPEAL I certify that this is a true copy of the original. # A Z-, ; -//" - (j. H. rEOFPE) DPTTPY.. BF.TETRJa-