19920817 TZCA Dar es Salaam

J_j.. . . ,, 0 .. IN TEE COURT OF APPEAL OF TANZANIA Kr DAfl ES SALAAM (CORAM: RJ¥1ADII/JU 2 J.A. 1 Mli'ALILJ~, J,Ae 1:irtd IV"Jii.PIGJJrn 2 Ag. J.A.) CRIMIN/J.., 1..PPElili NO• 88 OF 1992 BEI'Wi CYPRIAN 1..TIDJIJ".l.S KIBOGOYI..e ., ,, • • iJ.PPELLLNT MID TIIE REPUBLIC• . • • • • • • • 0 • • RESPONDENT (Appeal frora the decision of the High Court o:f Tanzania at Morogoro) (Bahati, J.) dated the 15th day of :tr1a.rch, 1990 lll CriJ:linal Sessions Case Uo. 7 of 1989 JUDGEMErlJ"T OF TIIE COURT Rl'J\UJ)ITANI , J .A. a . The appellant, Cyprian li.thanas Kibogoya, was convicted. o:f the murder of his wife, Febronia Atbanas, the deceased.. Two pieces o:f evidence ma.de Ba.ha.ti, J. arrive at that decision. These were the dying declaration by the deceased and the confession of the appellant. Stephania Athanas (P.w.6), the sister of the deceased, told the Court that on the fateful day, 20/9/1987, the appellant ncnt with the deceased to her home and that the appellant asked :fo~ some clothes from P.W.6 so that he could take the deceased to a dispensary to be treated the injuries that he bad in:flicted on the deceased. P.W.6 also said that some seven dc4Ys later the deceased complained that s:1e was dying because of the appellant. The other key witness was lkim Samson Msyokege (P.W.4) who was a Medioal Assistant at Kidodi ITealth Centreo On 24/9/1987 he saw the deceased a.t the Centre with ::i. stitched--u.p head wound -.•; r ~f. ~ , ~ - 2 - which she said she had sustained from a fall as she was fetching some firewood. On that daJ" the condition of the deceased, according to P.w.4, was satisfactory. The following day, however, her condition had greatly deteriorated, pus and water were oozing fror,1 the wound., On this day the deceased-; admitted to have been assaulted by the appellant. This was "i:5"4 after P.w.4 quized her relying on the information he had L.. obtained from a relative o:f the deooased• P.W-4 then confronted the appellant in the presence of the deceased and her relative. The appellant eon.fessed to have beaten the deceased. The defence of th~ appellant, both in his extra-judicial statement (Elth.•~•2) -which wa.& recorded by Ma.llfred Al.i,_.Kah.ero (PoW.3),. · and in his swam evidence. in ~ourt, was that the de.ceased. c..li..p~. and fell d?-wn~ and banged her head on. a. stone. This happened as the two of them were on their wey home from the pr mises 1 ef Agnes Joseph (P.W-5) where. they had been drj.nking sOIDe ~ local brew. The appellant was advocated for by Mr._IYkongwaa learned counsei. He bad three grounds of appeal atta.cki.ng th.e. lea.med judge for convicting on a very weak evidenea; for treating the words of the deceased as a. dyj_ng declara.tion and then relying .on S..t; and for not oak:i.ng a f ind:L."'lg as to how th.a W ~ tha.t- caused the death were oame upon. I'4r. JYkongwa submitted that the two key m.tnesses were not credible. P.w.4, Mx:. :M:lcongwa said, did not tell the Police a.bout the confession by the appellant so, it was argued, his eviJ:lence .in court should not be believed. Likewise; Mr. JI.Ilrnngwa contended, both P •W.4 and P • W.6 alleged that the appellant. bad. instructed the. deceased not to disclose tbat she had 'been beaten by him • If that •••••/3 3 was so, the learned aclvocate posed, how then could the appellant be the one who freely, ancl without having been cornered, told P.W.6 of the attack~ So :r.".I.I'., :Mkongwa questioned. the credibility ~f P.W.6 too. In tllat event, it was submitted, the version of the appellant should have been believed 0 Fmally 9 Mr. !filcongwa contended that· since death occurred sorae seven dcWs afteJ~ the incident then the injury was not all that serious ev011 if it was caused by the appellant, implying that L1al.ice aforethought was not established. Miss Kiwanga, learned State 1..ttorney, appeared for the respondent/Republic in support of the conviction. f>J:i.e submitted that the evidenc~ of Pe Ws. 4 and 6 were credible a:iid that the story o:f.' the defence could not raise a reasonable dovbt. W,,, a.re in agreenent with Miss Kiwanga that whereas P •.W.6 1 as the sister of the deceased, could bave been biased, there is '· no reason wby P.w.4, a coo.p'J..ete stranger, should have been co. Not on}Jr that but P.w.4 was not·--c:roas-examined when he talked about t).:e confession by the appellant. For that matter, P,J;.6 too, was not controverted. _This,~ __to.....say--t-he---leaet,--m::.~ v-e:t~ odd since the defence was tha/G o:r accidental slip by the decea3od,. .. ·Then P ..W.5 said that the deceased was alone when she left the h01lse in which pombe was being sold. She too was not contradicted. That would have laid down the basis that the appellant and the deceased left together and hence the appellant witnessed thG accident. It is true that seven days elapsed before death took place but death was not caused by anything else except the head injury which had been .inflicted by the appellant. The force used war· 'l.llldoubtedl.y so great as to break the skull, a most vulnerable pa.rt of the human body'. •........ /4 4 - The eanviotion ea.unot:, therefore, be faulted,- and we are at etie. ~ th the learned trial judge thats UWo reason bas been advanced by the accused why . he - .... . :inflicted sueh injury on tho deceased. Ther~ is, therefore, no defence advanced in this case to reduce .the off enoe." This appeal ,is dismissed :in its entirety. Dfil'ED ~ MR ES. SA.LA AM -th:i.A 1.'1th c1a¥ of ~ - . 1992. A. s. L. R/Jv1/J)I1'..NI JUSTICE OF ~PEJJ, L. M. MFALILu. D. P • Mllf'I Gl~.N 0 ~ L JUSTICE OF L.PPEL.L. I e<artity tllat this is a. tru.a ~opy of' the -or-ig:ina.L,._ ~ ( M. s. sk)t6;4 ) . ~/ ii . .DEPUTY,. REGIST~ffi, ,. j