20030526 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA : AT ARUSHA' (CORAM: LUBUVA, l.A.; MUNUO, l.A. And NSEKELA, l.A.) CRIMINAL APPEAL NO.75 OF 2001 LABAN SHADRACK ............... .,~ ......... APPELLANT ·And - 'j THE REPUBLIC ..................... I ~ J ....... . RESPONDENT ' I (Appeal from the Conviction of the High Court of Tanzania At Arusha) I (Nchalla, J.) · dated the 27 th day of September, 199:2 in '· Criminal Session No. 54 of 1992 ' I ------1 • J U D G M E NT OF THE COURT t I I NSEKELA, J.A.: I I ' ' The appellant was convicted of murder and sentenced to death I ·by the High Court (Nchalla, J.) sittin,'g at Moshi. He Js now appealing against both conviction and sentence. ' I J I I I PWl, Victoria Laban, was the key prosecution vJ tness. She is a I I daughter of the appellant and the d,eceased. At the time of giving I ' . I her evidence, she was thirteen years old, a child· of :tender years in i : 1· I terms of section 127 (5) of the Evidence , Act, 1967. She I testified that . I I her mother, the deceased, died on the 4.9.89. On that fateful day, ' I ·- I the deceased had gone to the market and returneq home at about . I. I , I . ' 11.00 a.m .. The deceased prepared lunch and later: on dinner. The . I , I appellant who was not at home, ret~rned at about 7 ~00 p.m. He was . I I given food, then followed the deceased to the kitchen, I kicked a pot I I and then dragged the deceased out of the kitchen: to the bedroom I . I while beating her. The appellant then called one· Henry, a neighbour who came with a club and stick and then both of them continued to beat the deceased with the club and stick. PW1) who was in the I I kitchen, saw all this episode unfold-before her eye~ -since it was -not . I I dark as yet. She raised an alarm and saw the appe llant going behind 1 I I the house where he collected coffee spray which he administered in ' I I I the deceased's mouth. Three ladies then appeareq on the scene but I . I the appellant and Henry had fled from the scene. :Pwl also testified I . I I that she heard the appellant utter these words "lea utanieleza I 2 I I . I I ulichelewa wapi?" before beating the deceased.: When cross- examined, PWl reiterated that she saw the appellant and Henry I I beating the deceased with a club and stick; that she; could easily see I from the kitchen to the bedroom where this tragic ~vent was taking . I I place since the door of the bedroom· was open and that she also saw I I the appellant administering coffee spray to the dece~sed. PW2, Dora Manase, was one of the women who . responded. to :the I . alarm raised I by PWl. She testified that she found the appellant sitting outside his • I I 1 house while PWl and her younger-sister were crying • PW2 asked the I appellant what had prompted . the children to cry. His I response was I "achana na huyu mpumbavu amekula sumu mama yake". PW2 then entered the house only to find the deceased lying on the ground. I ! She also saw a tin of coffee spray beside the: deceased. The I . I deceased was then taken to a nearby dispens~ry and then to I Machame Hospital where she died.· The appellant did not accompany I I PW2 and Doris in taking the deceased to the di$pensary. During I I cross-examination PW2 stated that the appellant, appeared normal I I and sabre. She also asked the deceased why sheiI had taken poison I but the deceased's response was " jamani sikunywa sumu nakufa " 3 I PW3, Isdory Amandus Kavishe was a Medical Assistant who received I I and attended to the deceased at the dispensary. . She :was I apparently in critical condition but he managed :to make her vorinit which smelt ' ' ! I I . ·coffee spray and beer. PW3 did not observe any ext~rnal injuries on I I the deceased's body. He did not perform tl;le postmortem I ! examination. This was done by Dr. Mfuru of Ma'chame Hospital I I according to PW4, a police officer who was detailed t? investigate the matter together with PWS, D/Sgt. Zubeda. I . I I The appellant gave evidence: on oath and ~id not call any I I witnesses on his behalf. His version of the events was to the effect I I • • I that on the 4.9.94 at about 9.00 a.im. he left his heme and went to his shamba and returned at 1.00 p.m., but the deceased had not I I I .returned from the-mark€t wheree she had gone. H~-returned to ,the I I shamba where he stayed until 3.00 p.m. when he retired home. The - i ' deceased was not back as yet and so the appellant oecided to have a I I I walk leaving behind their children. He returned :at 6.00 p.m. by I I , which time the decepsed had already returned: home and was I I cooking in the kitchen. The deceased served the appellant with food. ! 4 I I • I I I After eating, he asked the deceased where she had/ gone and her ' I response was "unadhani nilikuwa ·na wanaume kule sokoni ... ' I I I ukiendelea ukiniuliza maswali nitakunywa sumu niwape pia hawai . I I watoto wako". Sensing a hostile atmosphere, the appellant left his I I home and went to the shops, but While on the way) he heard cries . i , I from his children that their mother had locked hersel;f in a room and I ' I had drunk poison. He returned immediately and /soon thereafter I ' ' I I PW2 and Doris came. The appellant: added that the door of the main ' ' I I house was bolted from inside and so pushed it open~ in the presence I I of PW2. Both of them entered the room and fourid I the deceased I I lying on the floor and beside her :was a tin of ctjffee disinfectant I ' l spray he had previously bought to: spray their coffiee shamba. He I I I . I admitted that he did not accompany PW2 and Qoris to take the I , I deceased to hos~ital "because I:.. remained behind I to hide the : I I . poisonous spray so that our children would not also take it". I I I ' I The appellant categorically denied ~aving beaten the deceased. After ' I ' I a careful. analysis of the evidence,:, the learned trialI Judge (Nchalla, . I . J.), convicted the appellant hence tre appeal to this! Court. I I 5 ' . On behalf of the appellant, . Mr. Njau, learned advocate, I advanced two grounds of appeal, narnely- I I (i) That the learned trial Judge erred I both in law and fact in convicting: the appellant of the offence of murd~r in I • the absence of any . credible ev1idence. I I I I (ii) That the learned trial Judge Jrred I I both in law and fact in holding: that I the conduct · of the appellant I I constituted malic:e aforethought.: I . I The first ground of appeal essentially concern~ the evidence of I I PW1, who was the key prosecution witness. Mr. ~jau, desperately I I sought to discredit the testimony of :pw1. For instarlce, he submitted I I that PW1 stated that the deceased:· returned home ifrom the market I I at about 11.00 a.m. whereas the qppellant , said that I when he went I home at 3.00 p.m: the deceased \h{as not at home~ that when PW2 I I responded to the alarm raised by :children, she fownd the appellant I I sitting outside his house whereas PW1 stated th'at the appellant had I I . I fled with one Henry. On the secdnd ground of appeal, the learned , I . I 6 advocate complained that the learhed trial Judge found malice 1 I I 1 aforethought established by making :inferences from :the conduct of the appellant, for instance in not tpking the deceased to hospital I I together with PW2 and Doris; sitting outside the ~ouse while the I I I deceased was lying on the floor inside the house.· Qn her part, Mrs. I . ' I Lyimo, learned Principal State Attorney, was of the view that the I I I I I I appellant was properly convicted. : She submitted: that there was ' I I , I ample evidence to that effect. PW\ was found by the Court to be a I I . I . credible witness; that the cause of death were I,head I,. injuries as , I 1 explained in exhibit Pl; that exhibit P3 ruled out th e cause of death I 1 • I ' I as poison and lastly the conduct ,· of the appellarlt I in beating the I I ,· I deceased with a club thus causihg those injuries in exhibit Pl, , I established malice aforethought according to law. In order to sustain the conviction for murd~r, the respondent Republic must satisfy the Court - I I (i) First, that the: death of the deceased I I I was a result of the injuri~s she 7 ' sustained at the hands of the appellant; I I I I I (ii) Second, that the appellant acted I I wrongfully in so injuring the .deceased; I (iii) Thirdly, that ,' there was · ~alice I aforethought ahd absence . of: any I exculpatory factor either in totral or I partial justificatiion for his act which I resulted in the deceased's , deathi. , I I I ' j . Needless to say, the burden r~sted on the pro~ecution to prove I I I each and every essential ingredient of the offence ~f murder beyond I I reasonable doubt and that the appellant bears no burden of proving I I his innocence. Mr. Njau,_ learned advocate, submitted that there ! I were contradictions in the testimony , of PWl. We would I like to point I I out that the issue of contradictions in the eviden¢e was not raised I I before the trial court .. It was not an issue, it is being raised on ' I I I appeal for the first time. The evidence of PWl vyas given on oath after the learned trial Judge had complied with section 127 (2) of the 8 ' I I ' ' I I Evidence Act, 1967. This is obvious from the record df the Court. In I I I the course of his considered judgment the learned trial Judge said that PWl was - I I I "Subjected to strenuous cross-examination I which never shook her credi~ility. I Demeanourwise and intelligence PWl. is! just I marvelous. I have believed her so. There; is a I lot of corroboration to PWl 's evidence. Firstly, the· postmortem report (exhibi~ Pl) I and the Chief Government Chemists' Report I I (exhibit P3) both of which support PWl's I I testimony that Belta did not die of poisQn but I from beating." • I I The learned trial Judge accepted the evidenceI of PWl without -reservation and we do not find any reason to :fault him. This disposes of the first ground of appeal. From the evidence of PWl, which we have aq:epted as truthful, the head injuries suffered by the deceased as detailed in the post- mortem examination report, exhiibit Pl, were ipflicted upon the I 9 deceased by the appellant. There is no shadow of doubt I about this. '! I This exhibit was one of the matters apmitted in the Memorandum of I Undisputed Matters which were recor~ed and therefor~ ' deemed duly . ' proved under subsection 4 of section, 192 of the Criminal Procedure 1 ' I ' I Act, 1985. There was only one cause of death, namely the head injuries mentioned in exhibit Pl. Th~·re was a clumsyi attempt by the I : I appellant that the deceased had taken coffee sp,ray which was ,· ' ' poisonous. But exhibit P3, a report from the Ch)ef Government ., I ' Chemist points to the contrary. It reads in part as foll,ows- , I ' I ' ' "KIELELEZO: MATUMBO (TUMBO: NA VILIVYOMO) Uchunguzi wa gramu SO za vilivyoku1emo tumboni umedhihirisha : kuwa hamna sumu I yeyote inayotambulikana·". ' I 1 So the question of poisoning as a: cause of death was completely ' ruled out by exhibit 3, a fact we have accepted . . i I I I I I ' I I I I 10 ' I 'I ' I ) • I, I I ' I I I I I The next question is, did the 'ppellant act wTngfully in so I I I injuring the deceased? In other wprds, was the ?ppellant's act . ( I . I unlawful? Generally speaking, if a pe~son causes injur1Y or harm to a t I I person, his conduct is prima fade uf lawful unless ttle use of such I I I 1 I I force can be justified. It is now com mon ground that the deceased I . l H . I died as a result of head injuries inflicted on her by the appellant. The r learned trial Judge, and we respectfJlly agree with him, did not find I any exculpatory factors to justify the· appellant's contluct in inflicting I . l I the head injuries. The conduct was ~herefore unlawful. ,,I 1, ( I Lastly, did the appellant ~ill the deceased with malice I I •. aforethought? Malice aforethought/ is defined in section 200 of the Penal Code. It has a technical ~eaning quite di~erent from the ordinary meaning-of the words. Oui interest is in p~ragraphs (a)and- 1 I (b) of the section which provide as ~nder - / . I I I t I 200. Malice aforethoudht shall be deeJed to be established b~ evidence provi1g any one or morel' of the fol/lowing circumstances - / I ,t I 1 I I 1 I 11 I I I I I I (a) an intention to cause the death of, ,, I or to. do grievous harm to 9:ny ·, I person, whether such person : is . I I I the person actually killed or noti (b) knowledge that the act or omission causing death will I I ' probably cause the death of/ or I 1· I grievous harm to some per~on, . I whether such person is the peison ,, I ' actually killeq or not, alth6ugh I ' I such knowledge is accompanied ' by indifference whether death or I grievous bodily harm is cause8 or 1 ' I I' , I I not, or by a :·wish that it may not be caused·" I From the totality of the evider)ce adduced at the. trial Court by I I I I PWl read together with exh-ibit P1, we are: sa,tisfied that the I . I I appellant's conduct falls under paragraph (b) above. The appellant I I I , I must be deemed to have known that his act was li~ely to cause the I I I death of the deceased but was at that moment in different as to .12 I , I r , 1 whether death ensued or not. The appellant l was reckless as to the l I I I I 1 possible consequences of his conduct. l t l 1, I1' ' I In the event, we are satisfied that the appeilarlt's conviction was well founded. We dismiss the i:appeal in its ehtirety. It is I I . i. accordingly ordered. · I I I I I I DATED AT ARUSHA this. 26th dayiof • I I I I I May, 2003:.i I I r I I I I I t I I I, 1 I, I t D.Z. LUB\JVA JUSTICE OF ~PPEAL . . . t_ •' . E~N..:.MU~UO I• _JUSTI-C.E.OF~APPE-AL ; • I I I 1. I H.R. NSEKELA f JUSTICE OF APPEAL rI i I 13 I I I I I . I I I I • I I .. 1 I 'i I I I I I I I certify that this is a true copy of the original. I . I I (F.L.K. WAM$ALI) DEPUTY REGISTRAR I I I 1 14 • I • •