19890830 TZCA Dar es Salaam2

ni THE cotrRT OF 1il'P3lJi OF }L'i..NZI.i.NIA AT .i\.RUSHA \ ( OORAM I I XIs.till CRIMINAL .ti.P.l'I!Ul.L NO. 71 OF 1988 w.tLBi:i.liD MOS!i.B • • • • • • h.PP!DLIJ1.NT VERSUS TBliJ .Rlill'U!LIC • • • .f • • RLSPONDIDNT (Appoai from tho ~onviction and sontonoo ot tho High Court ot Tanzania a.t Arusha r' J da.tod tho 21st day of Novembor, l~8T in i JUDGMIDNT OF TBI1 ·COURI, .?:= 1UJ.1A.Drn • J •.A.. • 0 The appellant, Wilbald Moses, was convicted by C us.I of the Je chargo of tho murdor of one FidoSd}o ii.Uy c/s 196 of o PellBl Codo. r Tho evidenco adduced.by tho Ropublic was that on; 'iho ,th !uly1 1983 at Kisutu, Mto wa Mbu, Monduli District, tho ~ppo la.nt shared a room with the docoasod, a girl of a very tender ago o! 4½ years. !hoy were tho only two occupants of the material house that night. In the morning of tho 6th instant tho girl was in bed d dead.. She was blooding from her priva.to pertse Medical ovid-nco was that the anus was lacoratod up to tho vaginao Thora wore a so marks of violence ?n her nook. (Exb..P.l). The appellant in his evidenoo I ad.mi 'Mod sharing t ·' 0 room with tho deceased. But he denied having done ~ i n g to her. ' e said that he 1 I ' ' had retired at about 11.00 p.::n. after he had some •mb , 1 • However, in his extrar-judicial statement (Dxh.P.3) he ad.mi tted :ving raVished }ho deoeased and in the process cov:ered her mouth to atop from rjaking noise. ,, ••••• /2 Miss l3igeyo for the. appellant put f orw~d two gro ds of appeal . on the mooorandum of appoala First, she said that tho t ial judge erred µi socui;ing convio~ion on o;irQumstantial evidence. Seco d 1 that the 'irtal judge erred in n9t holding that there was.tho dofo co of intoxication. llowevor, the learned counsel deciiod not to argue tha ap eal but io loave it to the court, For' the Republic·, Mri Mono, the Principal Sta.to A'ti that. fq oiroumstanti,a.l evidenoe was irresistibJ.r poiriti at the· appellant. On 1h~ (luestion of malice aforethought he said it iS pro ed under section 200 (t . Qf, the Penal Code i~ th.at the death was a result of t.1:ie commission of a fejonyf Finally ho $~bmitted that there was not a ·ot of evidence of intOfcation, We ·are satisfied tnat the circumstantial eyidenoe s so overwhelming and glat-ina that it irresistably points at e appellant as the one who killed 4ihe deceased• As he was committing a folon_y the de~th was caused with tlalioo a.forethought. The defence f intoxication is not available• ~e appellant himself, in oroas-exami tion at the trial, had this to seys .. "I was not dl'ui'lkJ If I were d.run}! I would not. ave managed . to go hom9t"~ Wo therefore cannot but conc_ur with thG lea.rned j go in his findings. Appeal is diamissoa.. R. II~. ICTSJUiGA JUSTICE OF-~ ii. RiJIUJ)HANI Q JUSTICE OF i'J?PD/Ji .,r ..,,.;-~,i .;. ~ ~---- .,. -----=---- -----~- ,- .,..-,, ..... .., 3 I. certify that t~ij is a true copy of the 6ri~inal • .... · .., __., 1~4A~'-- 1//7 y- JI, . · ( S. S·. K.AIJAGE ) . ,,, RY:VTY REGISJJiRAfl• 6 ' - )_ (. "i•·:· , ,'. •: J-- .;.