19970710 TZCA Dar es Salaam

I IN THE COUP.r OF APJL OF TANZANIA AT DAR ES SALAAM ·--.. ----·--·--r.--.. --- !;1_,:tMJ~.~.iJ.!.Pi.~_, (CORAM: ~~I-.i:. Jf •~.::;,,_!_ni..l_~I-IAt_~), CRIMINAL APPEAL N0.1200 OF 1994 I . I BE'IWEENI ALIAMINI ANDSON llACIIDNDA I· . . . . APFELLANT AND' I THE REPUBLIC • • • • • • i. . . . . RESPONDE .. I (Appeal from the c;onviction and Sentence of the H~gh Court of '.I'anzania at Kilosa) I i (_M]_:\:1..e.,_f.' dated the 23rd daylof July, 1993 in : t ·--·-----~-- Criminal . .._ .... Sessions Case No.26 of~ ""-·•--_:_.;..._, ------- 1993 I ........ -·~-----..OF THE _...._ -JUI:GEMENT ---.._. bouRT __ __ I -+I I The appellant Aliamini Andson Machunda was convicte of --!-- I I the murder of the deceased Tizoni Mah~ika by the High coJt . I sitting at Kilosa (Mkude, J.) and sentienced to death. This1 , sentence of death. appeal is against that conviction and the I l I The deceased died of the injurie~ which he sustained . following the fight between him and the appellant. 'I This was not disputed. \Jhat was hotly aisputed I~t the trial were theI I circumstances in which the fatal injury! was inflicted and whether the circumstances warranted thelinference of malice ! aforethought on the part of the appellant. I According to the evidence given b~- the deceased' s lover, Dora Fares Kisongea (FW.1), she and th~ deceased Passed by the J I . appellant;s ~ome as they were ret:~~g kme,from a drinking! session. It app.ears that the _appellant tas a well known j brewer in the village and the deceased was his regular custo er. • I! .. I i [ I -u., - 2 On passing near the appellant's home, the deceased suggested that they go in and see whether they could get some drink. When they entered the appellant's house, the deceased asked for some pombe, the request the appellant turned down as the deceased had some outstanding debt from a previous drinking session. The deceased then han~ded Sh. 100/:= to the appellant to settle the previous debt of Sh. 60/=. When the appellant returmid the Sh. 40/:-.; change to the deceased, the latter told him to keep it as he intended to buy some more pcrnbe. According to }!W .1, it was at this stage that the appellant started abusing the deceased by uttering disparaging remarks about his ability to buy pombe, and he started pushing the deceased out of the house. The deceased resisted and this led to the scuffle between them. In the ,course I i of this scuffle, the deceased was knocked to the ground. The I appellant continued pressing him to the ground until the deceased I freed himself and on the insistence of PW .1, she and the d~ceased left and started walking home. They had gone about 15 paces when the appellant followed them and hit the deceased with a blunt weapon on the upper part of the neck. The deceased fell down and ,. ii when F\r/.1 turned to see what was happening, she saw the appellant walking away towards his house. She then closely examined the deceased and found that he we£ already dead. The cause of; death as certified by the doctor was asphyxia following the spinal injury. The appellant's version of the events leading to the deceased's death was slightly different in that according to him, the deceased died accidentally in the course of their fight at his home and tllat there was no gap in their fight before the I deceased fell down and died • • . • I 1, . 1: J 3 i At the trial, the prosecution urged the Court to accept the version given by PW.1 and then infer malice from the weapon which the appellant used against the deceased and the part of the body which he targeted and hit. The learned trial judge and all the assessors, accepted the prosecution case as totally credible and found that the appellant followed the deceased as he was going home in the company of PW.1 and hit ··him with a blunt object breaking the spinal chord at the top of the neck which killed the deceased instantly. From this conduct and actions of the appellant, the Court inferred malice and convicted him of murder as charged. In this appeal, a one ground memorandum of appeal was filed on behalf of the appellant to the effect that the learned i trial judge erred in convicting the appellant of murder instead of manslaughter. In support of this ground, ~~!-J.jasiri who advocated for the appellant, submitted that killings in the ' course of a fight are normally treated as manslaughter. On the other hand Mr •. Mwairnu supported the appellant I s conviction on behalf of the republic arguing that this Court should not upset _tl1e__findings of the ·tr-·:ral · Court which accepted as true the evidence of the prosecution witnesses, particularly PW.1, and the findings of fact by the Court on page 29 of the record finding PW .1 as a truthful witness. We of eourse appreciate Mr. MwaiE_U'.!3 strong arguments that this Court should not lightly interfere with the trial Court's findings of fact based on the credibility of witnesses. This we would not lightly do. Indeed in this case we have no reason to differ with the trial Court in their assessment of the credibility of PW.1. However what has given us some anxious moments is . . . • 4 - whether the trial Court correctly appreciated the effect of her I evidence. Did her evidence necessarily mean that the appellant's ''I fatal attack on the deceased was a completely new transaction divorced from the fight which had just taken place? According to PW.1, after the deceased had struggled and freed himself from I the appellant, the two started fighting and exchanged blows for about three minutes before the deceased agreed with her entrities to abandon the fight and go home. They had walked for about fifteen paces when the appellant came up and hit the deceased on the upper part of the neck. What.-was the interval in po·int of time': It was not stated, but the Court was only told that the 1 1 fatal blow was administered about fifteen pace,s from the point of the initial fight. Are these facts enough to separate and completely sever the two events i.e. the fight which took about three minutes and the fatal assault fifteen paces awat"? We think that the duration of the fight (three minutes) was sufficiently long not to be obliterated as it were by the space of fifteen paces. We are therefore satisfied that in these circumstances, it is not possible in a case involving capital punishment to separate the two events and categorically say that the fatal assault was not carried out in the course of a fight. If the appellant's fatal assault on the deceased can be characterized as such, and that the nature of the _we.apon used is not known, and that being a dark night it cannot necessarily be inferred or presumed that in inflicting the blow, the appellant aimed at a vulnerable part of the body, we find ourselves in agreement with ~iss Mja_§jri's contention that no malice aforethought can be imputed to the appellant. In the result we find that the deceased 1 s killings amounted to manslaughter only. . • ' ' - 5 - Accordingly we allow the appeal, quash the conviction for murder and set aside the sentence of death. We find the appellant guilty of manslaughter contrary to Section 195 of the Penal Code and convict him of this offence. With regard to the appropriate sentence, we take into account the fact that the appellant has been in custody since May 1992, that is slightly over five years ago. Taking also the circumstances in which the killing took place, we sentence the appellant to (3) three years imprisonment. DAT"~D AT Dfi.R ES SALA.AM THIS ,.10TH ·DAY OF JULY, 1997,, 1 L. M. MJ\KAME JUSTICE OF APPEAL A.S.L. RJ\MADHANI JUSTICE OF APPEAL " L. M. MFA.LILA JUSTICE OF APPEAL --·--- I certify that this is a true copy of the original. ... i ,,, •