19920513 TZCA Arusha 2

L IN THE coUR·r OF APPEAL OF TANZANIA kT ARUSHA \ <f,9!~: ~ J•• A. kRJt1ADHhNI, J .A.·, AND MNZAV"5, J •J\.; )' CRIMINhL APPEhL NO. 44 OF 1992 BETWEEN {Appeal from tha conviction of the HJ.~ Court of 'l'em7,ania at 4\J:ushe) tMunuo, J.) detcd the 25th day of September, 1990 in £S,m1nal Sessions Cos,.s No. 18 of 1982 JUDG~ENT OF THE COURT -··~•- . - ........-- -··OM/"\R I J .A.: Th~ appellant Yahaya Ama was jointly charg,ad With 0"'1la. Sanay Sarme with the offence-of murder. Yohaya waa c~••1c~ of the offence of murder and his co-accused was ecquittod. Th~ prosecution evidence 1s to the effect that on the night of 12.9.87 th~ deceased Iddi Abdurhman and his two col1c~gucs and co-villagers P.w.3 and P.w~s went looking for water at the ho-use of the appellant where he was staying with his mother P.w.1 and his alder ·brother Qwaray Ama. They ware received well by Qwaray Ama who gave them water nnd to1d them to wait for food to be cooked. After a ...... /2 - 2 - After a while Yohr.yc.1 4:tla appeared f.ron outsi~1e with three people; he went insiJe the house an:J caue out with a spear and stabbed the deceased on thia ::cibs cfter aeyin3 HYou people from sanu Village, You cci.ii.. cs far as this placen. Deceased lt?ter ran outsi~e raisin:_; .:ilcJl"r.a. Secon:1 accused wh,~ was their neighbour w2s in -~his housG too an:: it is said that he used _to slee;;, thero e0metines. He too was believed to have cJssociafoc~ hL1self in the fracas one w:::iy or the other ThG Sj_'.lpellant :1oes not dispute spea.rins the deceased on th~ riba c:::t12i.1c; hir.:i. ::ie0th but his plea is of self-defence that he was a-ttcck;:~1. by those people who went to hie house . . '- an: clnined t6 hcve as:::ed for water. Th€ appellant ,'lenies that those threG ,eople hej eone to his house for that inn::icent purpose. ·l1here was plenty :if water in the r:j.ve.r which was on the 1-rny to their houses but the real pur';)_osa he ss id in his (:e:.:·~nce wcs that they went to demand money shs ,300/= the ~1ece,1i:e:.: J.ont appellant sornetiue back _but held not haJ occ8si~n to ask for it ,~ior to that ni~ht, The lsa.rned :~ef'ence counsel assr::iled the .reception _j of the police _ak:t:?2ents of P .W 43 and P .W .5 which were used to convict the ap~:ellant rather than their evi;lence in court,. The other grouu~~s o:::' c::·9:;_)ecl were on bias between pr,:,secution witnesses ant ths ::ppellFmt €ls they were co-villae-ers and t1eceaat:d was the::~ c0n·;;,onion,' thei:efore witnesses, he said, wouL1 be on ·th-:: ei:ie of the <.lecenset1. The defence then preyed f,:;ir ·the i:'GVit:t-1 of the evidcrnc~ espcciclly with a ..... dcso:c.;pencies which exist in tha po«:':.ci.ce stDte·,"Jents an:: th:o Gvideno0 i.n court one; to note ... ./3 . ,.. I 3 :-:.~ h~v:--:: no d•.;,Ubt seen that th·ere are diserapeneias S::r;;: ..! ·::.1,~n ;:;ssr)Ulted th-:~ said Muhrlle Sank<l". 'lh~ ~\l!icLmc.:! \ th;:.'-Ugh i-.i,.~:!.nll' ~r.9'oy ~ek~ us ~onoor wheth,~r. th,2 attack .:.nc, ,::;;; w.:-.s th-:-, co-accu.aed; both tendered PF •.3 1s ard th-= stick W;:.'.S From ~.,se blo0d .:ind in what circ:umstanc:~s? - :,f-. r.,......-•. ..,.•.• ••••• /4 r.t::~.ck c('. th, d,:c,:ias,.,d who die:' n.::,t put up a fight. D/,:2.2:D at j;JWSH.h this 13th day of May, 1992. A. M. A. OMAR h• S. L. R.AMhDHANI ---··------ JUJTICE OF hPP£Af., ....... ~ N. 3. NNZAVAS JU.:>TI:B OF i-Jh £;,la -·-·· I c,:rtify that this is a tru2 c<.,py of th.:; ori tin al. ( M. S.Jtt) DEPUTY REGI.3Trt."\.R.