19890323 TZCA Dar es Salaam2

~ 4 .. •".t ·•-~"'f•,. ... .... _~ efL IrI ' !N THl!l OI.IIJH'l' OJ~ M1 l11ML O~• 1111\NMNJ.A AT DAR ES SALAAM (~-: MAKAME, J.A., KISANGA, J·.A•, And 1)MARz J.A.) CRIMINAL APPEAL NO. 131 OF 1988 JOSEPH K0MBA. . . . . . . . . • APPELLANT ' VERSUS____ . THE REPUBLIC. • RESPONDENT (Appeal from the conviction of the High Court of Tan·zania at Songea i Mtwara Registry) · 'I f: ~;: (Kazimoto,. J.) .•.f dated the 21th day •f June, 1988 in csm~nd ~Qtf:1.tjiop '!, ~q,a~e .,li• I il .2t J..W i,,,,..,U~MfMll;M, KISANGA, J.A.: This is an appeal against conviction for murder and the sentence cf death imposed on the appellant by the High Court 1i~zi~ofo, J.) sittin~ at Songea. The facts o~ the case may 1:ie--summarbed briefly-as ·'follows:-· ..... /'!l •~ t •~he appellant and the deceased had 9een living together as husband • I and wife for ab•ut six months before the day of the incident. It would appear that they did not get on well; they quarrelled sometimes. On the day of the incident the appellant was. seen assa•Jl ting the : ·. · deceased by the road side 'in broad day light. Those wi;ie saw him raised an alarm, chased h~m and managed to arrest him.: They brought him back to the scene where they found the deceased lying dead with a. severe cut on tha throat. 'l'he appellant confessed to the killing •4dttlo thct th• da1:11,ui,ic1 h.it1 M~l"l+11n hh Cl1,r.!JhUt At111ftr~4,m1 t:C'l the p()itl!ln,tltt:etn l?JU!1•1it1r~ld.U11 t•l,Jlll,lit ~h• d•ti•o~d 1111•htt4m1rl II""~ wa11r1rt on the neck and a cut wound .on the left cheek, and death wes due • to external 'bleeding • • In his defence the: appellant claimed ~that he ·had surprj.sed thP. deceased committing a·chiltery w·ith Renatus ·Komba, the appellant's own , 'l •- ,I .brother. - ·Following such surprise, he and Renatus fought and the 2 , j . ~-, deceased intervened in the course of which she was injured and died . "t'! -~~- as a result. Renatus Komba was called as P.w.11. In his evidence ,I he deniGd the allegation lidding tt,~~ at tho m111t."d-d tima hi:t wu l buUdit11j Ii hOuae 11t ~ pt111.11!l r.11lh111 l~ttl;11b• tvl11,1.1~ l;llf' !'1Mr1111,11~11~ Wl!IS kiilod eit l<ipapa Vi!lugo whfoll was 1tttmw f.J.va ttlUA!i ~WIIY• The trial judge and his assessors accepted the prosecution version and, rejecting the appellant's story, convicted the appellant as charged. .I •l \-:-....... Mrs. Ori•, the-learned counsel representing the appellant in this appeal, strenuously contP-nded that it was open to the .,•1I .! trial court to find her client guilty only of manslaughter on- ;1 . grOunds of prov•cation. With due r~spect t•·- the learned <:ounsel, I' h•~ever, we can find no merit in the submission. If it is true that I the appellant surprised the deceased comm.itting adultery with P.W.11, one. would ,.expect him (the appellant) te· raise tne alarm but he did I n•t. Nor would one expect him to run away when his fellow villagers, P.W.1, P.W.2 and P.W.3 approached the scene. Indeed, on the contrary, -:< ' one would have expected him ·t<- disclc·se the ~lleged adult~rer _t_. the ·s~id fe1l1tw villagers and I if necessary, to eeelc their -. -·C auist•nc::1t to eipt;lrehend hht, ia11egi,t;l6'n wa, If•• ·t:111,I. Im t!\U'Pl 4 adultery, then thfl most natural thing for him to do was b~ disclose No11 bt,l~ l:h11l.1 !i<ld t.1111 tr !;ht t~p•UliHI d1w,iu111I lh iii udl tlt' I , the same when his fell~w villagers asked him the reasen for the Killing. But strangely enough 1 bis P.xplanation to fello-..P villagers for the killing was that the deceased had stolen hi·s clothes, and he made no mention Of any- adultery. We are satisfied that the trial court was amply justi:fied t• reject thP. appellant's story. Once it did that, then there could be' no basis at all for the defence of prov~cation. The ~ppellant's conviction; therP.fore, was well founded and we could /-./,_·-~;Hiid': n~~'- ground for complaint. In the result the appeal is /;}/};.srr4~;;~ ts entirety. .[/,-.. u: /,': " .· ·,\ ·DA DAR ES SALAAM this 23rd day of March, 1989. ! :; . •.:. ' .. : ~-~ ;-., • . . <~~ ::::~::' ~~ ,. --· - . l > ~ . . . . . .--~l- .·- , . ' t ...ii j 3 i ~ } ,, 1 R. H. KISANGA -:' :1 I JUSTICE OF APPEAL II ·1 • 'r • I A. M.A. OMAR JUSTICE OF APPEAL Y:.';. r s~,!S~~·;•b!JAGE '> 3>: _::\·.~ DEPUTY REGISTRAR. :t j. I , .. 'II . . ... \ . ,