19930 521 TZCA Arusha

rn THE COURI'··-GF--APf'TI:AL Oli' T.PJ;Z.AlHA ·• ~ -·:r, AT ARUSlIA ' i: (COR.Af!!: KISJ,NGA, J .A., Jsw:ZllVAS, J .A., And !!IFALILA1 J .A.) -i . ,~ I •!)ii ,,t. CRU,Ir'AL APfE.AL 1rc. 28 OF 1993 BEn''ZEF, AUGUST M.AIITY.'O. . . . AI'FELLAl-:T . ... . .. RES FOlIDEr.1T . (Appeal from the conviction and Sentence of the i''.igh Court of Tanzania .at Arusha) (ll!unuo 1 J.) dated the 9th da;y of August, 1991 in Criminal Sessions CaseTo. 57 of 1989 r.n.rzAVAS, J .A.: I The appellant, Augusti I,:ahiyo 1 v1as charged_ with anc':. convicted of murder and condemned to death by the I:Iig'h Court, (NU11uo 1 J .).,- sitting at l/ioshi on 9/8/91 ~ Dissatisfied with the decision of tli.e tTial Court he has appealed to this Court. It was the prosecution case that the· appellant on or about tl1e 6th _day of June, 1988 ·at Keni 1-l:engeni, Rombo district, Kilim;ui.j aro region, with malice aforethoc...:)-_.t killed one, Gudila w/o·August, his wife. ' In supr,ort of the prosecution case a relative of tl1e ar,pellant 1 ',. Justice Ndemasa, P:-r.2, testif"ied in ,the lower Court that on the ' fa.te:t\11 evening one, Jamila. Au@lst 1 F'.·i.1-1 daughter of the appellant, met him as he ,~as returning home from a. cooperti.tive society (Kt~CU) and ~old him that her mother had sent her to call him because her pa.re~ts were· quarreling. He proceeded ,to deceased's house but found the kitchen padlocked with a ''V-iro" lock • IJ.'he door to the main hou.se • . . -...;.... ....-- was also locked. As no one responded to his call of 11hodi 11 he re:turned.Jlgme. At about 9 a~-~~-~~n. the same evening one, Focas,. came to his house and told. him that the deceased had falleo. down and collapsed •. The witness hurriedly proceeded to'deceased 1 s house where he met her husband, the appellant. On asking the appella.1t what had h_appened the appellant ±s said to have told hm that his wife ,mo was -expectant had suddenly collapsed and that he had massa;:-,ed her I - in an attempt to revive her to no avail and that the deceased. died. In the morning relatives ard neic;hbo~rs of the appellant gathered to t:,e bereaved house and su1i;ested that the deceased should not be buried before poe.t.:.inortem examination Wa/3 ~rfo:rraed to :fincl out the Ca;.>.se of death. ' The .witness told. the trial Court-that at that juncture t:,e appellant changed his sto:cy ani tolcl. the gathering that the deceased had han[:.ed herself in the kitchen; and showed to them a sweater which.the deceQ.'Sed allegedly used in hanging herself. Deceased 1 s Cleath was reported to t:1e police and after ., investigations the appellant was chart-ed with murcl.er; and, after hearing evieence in support of the c:1arge aild appellant's defence that the deceased had. hQJ:1ged herself, the learned trial judgei_ was satisfied that t!1e charge ·of murder· had been proved beyond reasonable doubt and proceecl.ed to convict the appellant of the offence as charged •. Before us the appellant was represented by !fir. ~~akan;:e,-learned Counsel, while l-irs. Iqimo, lea,rn~d Senior State .Attorney appeared for the Republic. • •••• /3 • ... 3 11:r •..lfokan1.,--e, submitted that the learned judge <hd not consider appellant's defence that he was not at home ·at the time the deceased- met her death antl that he shoulcl have believed appellant's defence that it was when he returned home when he tHscoverecl that his wife had hanged herself. The learned defence Counsel finally argued that ··----- . the alleged inconsistenci!)S in appella11t 1 s story regarding t!1e cause of deceased 1 s death did not necessarily _point to the guilt of the appellant. In rebuttal ;,;rs. lzy'imo supportecJ. t;.1e conviction on the ground that the circumstantial evidence against the appellant irresistibly pointed to the 3Ui1t of the appellant. In support of her .submission regarding appellant's inconsistent stories the Court was referred to the evidence of PW.2, PH.3, PU.4 and PT1J.5 • . . 1:Ie have considered tl',e matter carefttlly; and, in our 01,m view .. ,, of the evi(ence ar.d the submissions by learned Counsel,. we a.re I satisfied tl1at t:ie learned trial jud.e,-e's findin:7, that the appellant murdered !lis wife was amply warranted by the evidence. Hhen asked by his relative and neiJ:1bour, (P1·:.2); as to what had caused. deceased 's death. he in11ially sai~ that the deceased suddenly fell a.own and died. On suu;estions by neighbours and relatives who had a.ssemblied to the breaved home-stead that tl10 deceased shoulc1. not be buried till a· post-mortem examin.ation was perfonoed to est,;,blicheci. (ecec,.Sed 1 s cause of death the appellant prevaricated; changed his story and said that the decea.t1ed !1ad hanged herself. That he prevaricated, a good deal is evident from the testimor.c,· of not lesser a person than his close relative PWi2 • •••• •/4 • . I , ,,,.. ,... ,.· . ·-- - ... ..... . ...., 4 Not to mention the evidence of PW.3, P'·r.4 and FW.5, the police constable. Appellant's defence that the deceased had committed suicide by hanging· was proved. to be bo,1Us by the neighbours who saw the place the appe lla:nt alle,:,-.ecl that the c'J.eceasecl had .hBI15-ed herself. In respect of t11is defcnc.e F~-1.6 JJt/Corp Jacob,. told the Court in his evidence inter alia: • ;;~ - 1:rrhe accused told ..me-1i.is wife had stomach pains so she committed suicide. The accused shot<ied me a small kitchen where she alle&redly hanged. hera~lf. I surveyed the place and the hei01t was just 5 ft. w,lile the body a1.,i:;earec, taller. • •• I measured the he1ght of the cle..:;eased; it ;·,1e asurec1. 5 ft • 6". On beinr, cross-examined by Iir. ~asen1ia, learned Counsel. t<Jho represented tl1e aprellant in the High Court i the witness said inter alia: 'The body was 5' 6 11 while the height at 1 the hanging place was 5 ft•". i'iedical report - exhibit P1 waB to t:1e effect that the deceased had injuries on r..er neck and that the cause of death was ''severe \ ---Dealin-g-Wi-th the question .. 0£...circumstantial evidence t\e :.'llastern African Cou-rt of Appe:11 haa. this to say in B.8E,~~ £fu1ITA '!The force- of. suspicious circumst ancea is a).lgJnented whenever the person accused· attempts no explanation of facts. which · he may :r:ea.cionably be expected to be able a.rid interested to explain; false, incredible or contradictory statements given by way of explanation if disapproved, become of substantive inculpatory effect" • • . .. ':';f ",,;11 r •·! . ; . /, 5 Lookin{<: at the totality of the evidence we are satisfied. in our own. minds that tJie circumstantial evid.en.oe pointed irresistibly to the guilt of the appe~lant. On tb.c evidence the learned trial l judge had no alternative but to find t:1at t:1e prosecution had proved the charce ac,ainst the appellant beyond reasonable doubt• 'l'he appeal is c.evoid of merit and we accordingly dismiss it• •' .~ "P Ii.A'l'lID at .ARUS~IA this 21st da,y of Ilay, 1993. ?,,J,, .ftH~ - ,_U'.,, fflC~---_:_·•c· '~Gt~~ •;."' ,~. . -· -~. ',i\ ,, R-.H.- KISll11 G,". JUS'l'lCE OF ii.Fm.AL 1i .S". EI:z.AV.AS JUSTICE OF .AFrEAL L.i•i. EFllLILA JUSTICE OF .APPJ:";AL. I certify that this is c', true copy of the ori~inah ·" I •·' ...····•. • },-'1 ,1 - ,.,.;,_ ', t~.fl".t,.·,''· . ~r '·, ~.;!'t~.:. '1 . ~ • ·...~"";...!I: