19900531 TZCA Dar es Salaam

' IN THE COURT OF APPEAL Op T,\NZi\NIA J.,T. DAR ES SA:ar.AAM ( COR1\M :. :K~_?!.}.~s£:..i- J. J, t i<id~ADHANI ,- j . /> •tz- And MF ALI LA t J .A .. ) o CRIMINAL i\PPEi",L NO. 8~ •F 1989 ,,f'.~ hi.JJ,BU hBDALLAH •. 0 •· • o APPELLANT ver~us THE HEP UBLI C .;_ • a • • ,'.{ESPONDEN.T U1ppeal from the donvictipn the 9f Hj_qh Ccurt of_ T=rnzartia cit Mtwara) ciate<i the 7th rlay of March,- 1989 in fl!ciminal Sessions C3se N:~. 29 0£ 198i, JUDGMENT ~ THE CO~HT \ ·rho::'.! nppellant wa~ -,onvicted -on two counts ultder ~ction 19• of the P :mal <;:c<. (, fer the murcler of one Ahlflradi I!~a MaliJRusi an·J. on= Amina Allyo The n.ecea~d persons were son. an<i mother respectively. The appellant was ~eritenced to- •ieath in. respect o.f the murier of hi:.:r--1:ci Is~a Malimu~i; and he has now appealed against both th~ convicticns and the sentence~ In this appeal he was represenb1d by Mro S. H. El-MaaMry while the respondent Republic The facts 1E:ac1ing to the "tragic events may be su-,marized briefly as· t:011ows :·- On th£ day o~· the in•ide:it the appellant and the deceasei Ahamac~i returned home together at night ~f'ter havin~ I had s'CJm•3 dri.nks., Gn arriving at th.e home of .tie decease<l they •••ci:ao./2. 2 quarrelled anc1 fought but they wene separated. The appellant was escort:d home anc1 everybody thought that it was all over. In the meantime th.e deceasE·d picked up another quarrel with his J11Oth.er Amina,. the other deceased, but th·at quarrel also was put down,. ' P ~ W~ 1 and Pa Wa,4 were among those who helped to put down the · quarralso P.W,1 was the husband of the ~eceased Amina and ~tep father of the decE:ased Ahamadi Issab After the sec.end quarre~ was put ::lown the two deceased persons plus P.W.1 ~n.d P._W.4 gathered together at the home of PoW~1 ,:1here they started discussing th 1.:: c2uses of the quarrels and the fighu tJ")at night~. Then as they .were 0oing so,. the appellant suddenly appeared on the sc~ne and att~ck~t A~amadi with what was described as a "qongon. When ~mina tried t:> intervene the. appellant also attac:)ca1 her using the 5ame "~ongo 11 a Both deceased sustained serious injuri2s fellowing the attack inflicted by the appellaht;,. and di ~1 only a cay or two afterwards as a result of those. ihjuries. rh-3 app8llant' 3 de-fence as contained in his evidence at the trial and in his extra-judicial statement is essentially_ one Of provocationo In bot:1 v~rsions he maintairin that there was only onu incicent of a quarrel and a fight that nigh~~ Acqorr:ling to him this is 'che incident which happened at the hom2 of the d€ceased Ahamadi Issae In his evin.ence in coµrt ha claims that while he and Ahamadi were engaged in the str:uggle with each other~ the deceased Amina came and interv3nad but Ahamadi temporarily abandoned him, picked up a stick 3.nd ass;:iulted Amina with it;_ it is from that assault that A:nina (~ied~ After thus assaulting Amina, Ahamadi resumed 3 his ass:3.ults on thE appellant in the~_,i?llrse of which the appellant " pickai up a stic_k and hit him with it after which the fight was pu~ down, and P.W.2 and P.W.3 escorted him to his house. He denies i0mp1,~t.3iy going back that night and hai,•ing another encounter wi ,!1 ' the decaased persons. In his extra-judicial statement he made a ~light 1~viation by sayirlg that it is He who assaulted the de•e~~ed A~iha Ally. when she tried to f.)~crvene during his fight wi ~ A»'1?1ad1 Issa, but 0t the trial he rtisowned that part of· his statement(.and impli8i that that part of thP statement was added by the justice of the p·aace who rECCrded it. The triai court accepted the prosec1tion version and, rejecting the defence, convicted him In his memoranr'.um of appeal Mr. El-Maamry filed five groun-1 s of aj;,p~al in 1-1hich he raises substantially the following issu~s, namely, the identification of the appellant as the person who inflict'Gd the fatal blow or blows on the deceased persons, provocation, c:.runk€·nness and accident. On the first point Mr. El-Maamry urgec us to find that after the appellant was escorted to his hOuse following the -ight with the deceased Ahamadi at the home of ti1e latt~r, he did not return to P.W.1's home to renew his enc'.)untear with the decea~ed Ahamadi. He submitted that Aham3ii and Amine may well have been attackerl by some other person or persons at t~e home of P.W.1, but it was assumed that it W3S the aprellant who did so simply bec~use of his earlier fight with the deceas~d Ahamadi at the home of the lattero In support c,f 1this submission the learned counsel reliei on the: cviclence of P.W.3 who stated that the incirlent 4 I happenad on a dark night which, in the opinion of couns~l~ rtid not f:'l.V·'.)Ur correct i<'l.e.ntificat:i.on~ However; we can find no subst1.nc2 in the submission~ At the time of inflicting the fat~l ~ss~ults, the appellanb1was identified by P.W.1 and P.VH4 who know the appellant well as a fellow villager. P~W.4 identifi2d the appellant by voice when he spokottotthe decensed Ahcima1i as he struck him with the ''gongo". Furthennore, according to P.~.1 the appellant rlid not lea~e the scene immediately after the assault. He remained at the scene until P.W91 returne1 there after reporting the matter to the village secret~ryo That provided ample opportunity for ictentifyin~ the ap?allant correctlj~ lhe submission on provocation is equally devoid of merit~ The evic'.ence of P.w.1, P.W~2, P.f.3 anct P.W.4 makes it abun1antly cl~ar th~t the appellant had two separate encounters with the dece21 sect Ahamadi that' night: The first encounter wus at the home of the li_ec,eased Ahatna<li ond the . . . ~ seconi one vJas c1t the home of P.\'J.1.. The evidence further · shows clearly th2t the fatal assaults inflicted on the dece3 s2 i during thf. seoond encounter were completely unprov~ked in thet after the first fight was put down and the· appellant wc,s escorted home anli everyone· thought that it was all over, the appellant in a fresh move returned to the h-)use of F .Vi.1 where he carried out sudden and unprovoked attack on the deceased persons. In these circumstances the trial c~urt rightly foun~ that the defence of provocation was not op~n on the 2p:rellant. -~ •• o./5. 5 Nor do we fine' any merit •in counsel's submission on ·the issue of int•Jxic.::1tion.. J,drr:ittedly the appellant h!:id han. some drinks on the iny of the incic'.ent an<l he, in his n.ef.ent!e at the trial claimed that h :! wns c:runka But there is evidence that after the appellant wns esc:.>rte<l to his house, he was able to trace .his way bnck., on that J3.rk night, tc. the home of P.W.1 which.; from the sketch plan {Exh.P.2), is shown tc be some ~40 p.:ices away. Furthermore upon reaching the home cf F.W.1 he was able h? select or pick on his target., the ,'..cceasE:C~ Ahamadi, on the same dark night, out of the four :,i3op1e who h2c. gathered there to ca scuss the cause of the disturbances that night .. Such conduct could !hot :Oe sairl to be consistent with a person who was so rfrunk as to be inci'lpable of forming the intent to kili or cause grievous harm.: the deceased Amina, the appellaht st,r.,uo~-= her only al!lcidentally when she tried tc separate the appellant frort1 •the deceased Ahamadio But it shc.uld be apparent that once we haY-e found that th~ appellant w2s escorted home after the first fi~:ht, and that he inflicted the fatal injuries only upon hi~ returh ~o the h~me of F.¼o1, then that submissi~n can have no rele~ance because when the apr,ellant sen out b0 return to the hOu~e of P.W.1 ha already.formed the intent to kill or cause grievous harm; a!"ld it is immaterial that he executed that intentio.n on Amina who was net the target of the attac'c. And lastly I'-'.r. El-Maamry complained that no post_;rnortem examin 3 tion report w2s put in evidence in respect of the ..... . /f, .... 6. -. deoaased Ahamad:i. Issa o There was bne su~:h report ~-nly in respect of 1:;ha d(:!ceased Amina,. and yet,~ the appellant was sentenced ~ death on the count of murcering Ai;lamadi I~sa. If we under~tand the· learned ' b--::iunsal correctly, his complaint was that cause ~ deat}:l was hOt. establish2d., With cue respect, however, that complaint was totally unfOun 1,;1d.;. As for t-he deceased Ahamad1 Issa there was abundant evid2nca that thE:. aprel lant hit him on the ,head ~wice wi tt-i a "~ongo"; the dcceasec' fell down as a re·sul, t arld remained there in a ser:Lous ccndi tio~nt-il the fol_lowing mori,ing whe~ he was;tt'G..-,1ovc,c~ to the ·local dispensary, bu·t1 on arriving at the •. di3pensary he dieC even before he could be attenrted. It 1~ apparent that al though the dead body was takez:i. to h_ospi tal ,. no post~morb::m cx2rnination wa3 carried out:-., For, l?.w._f b~stit-ied that . he acc.'.)mpanicd the body 'b? Mkomaindo hospital and identified it ' to th~ :1octor who t~id not., however; examine i-ii._ No rea~on wa~ qivari for not concucting post-mortem examination d~JJh,~ dead body~ ··,. That w3.s cl:.:arly wre,ng; 'the doctor .!Should have perforimed a post-mortom excir,:inc,tion or readons should have been giveri why such (!:;caninr1ti.cn could not be performed.~ But having said that, it is obvicus that thP. absence of post-mortem examin:1.ti.::in r<:1pcrt i 5 cf no consequ<-'!nce at all here. It wasn~t n0ccssnry for the purposes of ascertaining cause of dentho 'IhE evid•:'nce of the persons who eye- wi tna sscd thG incicent~( clearly establi--shes that, -:~!le det'.eas(~d Ahv.mndi Iss2 died directly from ·the injuries sustained during thE attaok on him by the appellant. :\:s for thG ce:cea:sed Amina also there was ample evidence thnt the arpellant, u-sin~ the ,~arne "gongO" he ·• .... ~ 0 0 ./7 7 used on Ahamnci, hit her on the jaw, on the tummy and on the loin. ht) rn•' This w~s ~r~J.:J. ~'ll,'f';_ ou t by the post-morte~ examination report which shows that sh= susta"i.1--,::c' three fructured ribs, a fri'lctured jaw an<l had a swelling on th~ left sine of the trunka T.~e eye-witnesses' account w2.s th21t after the appellant had inflicte<i the::ie injuries, the riec :)'3.S2d Ar:;ina was rendered in a serious condition and that · she •iie.1 in h:.>spital cnly a day or two after the assaults. · In his or=3.l evic1c:ncc in ccurt toe doctor who cur.ducted t:he post- resul~ing from the injuries which he found and listed in his report a::; summ3.rizcd ubcveo In the lizht of such evi<ie::c::' we coulcl. find no r .:>·.Jm f·)r duubt as tc the c:au::;e of death of Amina either. I,1 the l2st. an.=ilysis the appellant 1 s conviction for murd~r Jn bOth ccunts was amply justified, and w~ can see no gr0und fer complaint. We are satisfied t~at the appeal is CJm;_Jletcly devcic: of merit an<i it is acc·ordingly cUsmissed in its entirety., May 1 R~ H. KISANGA -TIJ.STICE OF' APPEJ\L Lo M. MFALILA JUSTICE OF APPEAL I certify that t:h:i.c, :i.~ ~ J.::rue copy of the original .. .d-' t~i/ ( Jo Ho MS0FFE ) __...____ SENIOR DEPUTY ; REGISTRAR.