19890719 TZCA Dar es Salaam

I IN THE COURT Oc APPEAL OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 22 OF 1989 BETWEEN RAMADHANI SALUM • • • • • • O o U O O O O APPELLANT A N D THE DIRECTOR OF PUBLIC P R0SBCUTI0NS '• o • Rt::SP0NDENT (Appeal from the conviction of the Hi<Jh court of Tanzania at MOrogoro) ( Kyai1~0, J. dated the 5th day of .March, 1988 in Criminal Sessions Case N'o·.: ·95 of .1986 JUDGMENT OF THE COUHT MFALILA, AGo J.A.: The appellant Ramadhani Salum was char<)ed with ~nd convicte1 of the murder of one Uweso Athurnani. The High court (Kyando, J.) sittinq at_ Morogoro sentenced him to death. He appealed to this court against bOth his conviction and sentence. Originally the appellant was jointly charged with one Ally Selem an .Ng Orne who unfortunately died in remand custody be for'": ; the trial got underway. During the triar' in -the High court, the appellant denied invOiy"emP.nt in the killing of th~ deceased, saying ,.inLeffect that hP did not even know him and that on the day of the incident 20th July, 1985, he did not meet the deceased. On that day, he said, he went to drink pombe at a place called Bint.' Mlale's. He was in th~ company of his erstwhile co-accused Ally Seleman Ngome. He said they remainad at Bint Mlale's until about 6.45 p.m. when they left for I{< t::_~_} ' 2 I ·v their respective homes in Tambuu village. He r~mained thrre '· ·• ~~-- until he was arrested by the Police on 22nd July, 1985. However t; f· .,.; , !VJ:- the learned trial judge prefP-rred the prosecution version as narrated by the other young man who was in the deceased's company at the time of the incident. This·was Hamisi Mohamed (PW~ 1).. He was quite positive in his evidence that it was the ii., appellant and his dead friend Ally Selem an Ngome who with out any reason decided to chase and attack them as he and the dece~s2d were walking back home aft8r a fOotball match at a local ,Primary Schooi. He himself ran away l<->.aving the deceased t,beh;nd being assaulted by the appellant and his c<?lleaque. \:Jhen the n?xt iay he returned to the scene in the company of his grandfather ':!nd other relatives, they • found the deceased lying dead a few paces. from the place the appellant and his colleague had attacked themo The deceased had stab wounds on the chest and stomach. The le,3.rn·3d judge found that this version hy PW.1 was supported by other factors such as needle stab wounds on the hands and back of the appell3nt, these he said, ('",-• corresponded with the stab wounds described by PWe1 which he inflicted on one of their attackers as he trie1 to assist the deceased. There was als? the evidence by PW.2 that he had seen th(~ appellant and his friend pass by his home 3.t about the time describ~d by PW.1. In this appeal the Tanzania Leqal Corporation filed two interrelated grounds of appeal. In th•?ifirst ground, the def8nce of complete denial c~nvassed at the trial was abandoned and inst2ad the appellant criticised the learned judge for "failing to appr::ciate that there was a fight bebween the appellant, deceased, PW.1 an1 one Ally Seleman Ngome" and secondly that 11 the learned judge erred in law and in fact by finding that the appellant caused the death of the appe 11 ant~". . .... /3 " ·~·.. I\;; - i'.:~~t.~~--J·, 3 .Mr. Jvikongwa who argued the appeal on behalf of the Tc.nzania Legal corporation ~onceded that the appellant assaultect the deceased and PW&1 but he submitted that as this assault was committed in the course of a fight, there could be no malice afOrethOUgh_to SecQndly he said that as the fatal injuries were inflicted in the course of a ilght. c~bl'dy ca:1 say \vi th exactitude who inflicted the fatal injuri2 s between the appellant and his de~ colleague and that therefore this uncertainty should be resolvPd in.the appellant's favour • . We are clearly of the view that there is no merit in either of these submissions. With regard to the f_irst point, we do not agree that there was a fight as such for there was no reason for such a fight, ther, was an unprovOkP.d attack by the appellant and his cQllAague a0ainst the two young men who were trying their best to defend themselves. There was therefor•'! no ·•-fight under which the appellant and his colleague can hide their fatal attack on the two unfor:bunate young men. Secondly from the circumstances and nature Of the attack, it is quite cle~r that the appellant and his dead colleague we·re acting in concerto They had from the beginning embarked on a joint vP.nture. 'rhere is no evidence that at any time one tried to r8strain thee oth -~r or disassociate himself from him. They were equally responsible for whatever conaequences flowP.d from their joint venture. After examining the dead bocty, thP. rloctur found cut wounrls on the uppPr right side of the ch~st deep enough to have fractured the 6th rib and laceratP.d the rnidlobe lung and another on the umbilical region. He formed the Opinion that death wa-s ·due to inte11!1al haemorrhage leading to .. -:-r-hu~morrhaglic shock., - We think that any on-" who attacks another human being anct causes the kind of cut wounds found on the deceased, must have the • 4 ~ intention to kill or at the lowest to cause grievous ...c bodily harm. BOth intenti~ns are evidence of malice aforeth?ught cQnstituting the resulting death into murdP-r. This is whatc.-• the learned 0 judge found and we agree with him. L. Mo MAKJ,.F£ JUSTICE OF APP~AL A. Mo Ao OMAR JUSTICE Op AF,PEAL Lo Mo MFALILA ~g. JUSTICE Op APPEAL true copy of th,'? .original. SENIOR DEPUTY REGISTRAR