20060228 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA {CORAM: MUNUO, l.A., MSOFFE, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 64 OF 2003 BETWEEN YUNGA S/0 SHABAN @ SHEMA.~ ••••••••••.••••••••••••••• APPELLANT AND THE REPUBLIC. ■ ••••••• ■ •• ■ •••• ■ •• ■■■■■ •• I ••• ■■■• ■■■ •• I. ■ II ■ I I .RESPONDENT {Appeal from the Conviction of the High Court of Tanzania at Mwanza) {Masanche, J.) dated the 3 rd day of March, 2003 in Criminal· Sessions Case No. 74 of 1992 l UDGMENT O F T H E COURT ------------------- KAJI, J. A.: TAe High C0urt-(Masanche, J.) sitting-at--Mwanza, convicted the appellant, Yunga Shaban @ Shema, of murdering Kudukwa d/o 1•,\. ,: ~ 0 .,,... 2 Mhanda, the deceased, contrary to section 196 of the Penal Code. He was sentenced to death. The facts giving rise to the case can briefly be stated as follows: The appellant was the grandson of the deceased Kudukwa d/o Mhanda. They were residing in the same village of Jojiro, in Kwimba District, but in different homesteads. The appellant was living alone in his house, whereas the deceased was residing with at least two grand daughters who included Anisia @ Ligwa Juma (PW. 1). On 1.3.1991, the deceased went to . ask for fire from her neighbour Shileki Shaban. She got it and took it home. T~e ·appellant went-eo··nernome and aske·a fier where sne fiaa got tfiat '" fire from. On hearing that she had got it from her neighbour Shileki Shaban, the appellant got angry. He cut a twig from a tree which was nearby and whipped the deceased almost all over her body. The deceased bled through her mouth and pulled herself to her bed. The . . 3 appellant fled to Mabuki Village at Paulo John's (PW. 4) home. The deceased died on the following day. According to the Post Mortem Examination Report (Exh. P.1), the deceased had a big haematoma on the right part of the head,. and a fractured frontal bone and compression of brain. The doctor who performed the autopsy was of the view that cause of death was due to brain injury. On 4.3.1991 the appellant was arrested. In his defence the appellant denied the offence charged and raised a defence of an "alibi" that on the material day he was at Mabuki at PW. 4 where he had gone three days prior to the date of incident. The learned trial judge evaluated the evidence and was satisfied with the prosecution evidence that the appellant was involved~in the offe-nce ~charged:-· - The· appeilant was cotivicted accordingly. The appellant was aggrieved with the decision; hence this appeal. --------.------ _________ ,. ___ --• -----~----· '). . ,, ..... 4 Before us the appellant was represented by Mr. Nasimire, learned counsel, who preferred one ground of appeal which reads as follows:- "That the learned trial judge erred in failing to properly address the assessors on- the issue of provocation, thereby improperly convicting the appellant of the offence of murder". In elaboration the learned counsel contended that, there was ample evidence that, on hearing that the deceased had taken fire from a neighbour, the appellant became angry, and the learned trial judge mentioned it when summing up to the assessors. But the learned counsel complained that, notwithstanding mentioning it, the ,~ ~ ~ learned~trial~juGlge did- not. direGt:~-the-assessefS-0A-t--Ae-le§a-l--r:>0siti,-0A-n- - - - - on the defence of provocation through anger.· The learned counsel further contended that, although the appellant had denied the charge, yet the le~rned trial judge made ,. . . ,, 5 some remarks in his summary to assessors which influenced the assessors to hold the view that the appellant had killed the deceased. In support of this proposition the learned counsel cited a passage where the learned judge had remarked as follows:- "Lady and gentlemen assessors, I started by informing you that, before we started hearing this case, there were attempts by the defence counsel Mr. Butambala, to ask his client, the accused, to plead guilty to the lesser offence of manslaughter contrary to section 195 of the Penal Code, and that the accused adamantly refused". It i~ the -learned -counsel's-- submission that-th1s=-rema-rl{--was--uncalled----~- ------·------~--- - for, and that it influenced the assessors to 'hold the view that the appellant had killed the deceased. -. .' 6 The learned counsel further contended that, the learned trial judge induced the assessors to take his view that the appellant hated the deceased when he remarked as follows:- "lady and gentlemen assessors, I am reminding you all this, to demonstrate to you that the accused harboured grudges against the deceased". The learned counsel pointed out that the assessors should have been left free to decide whether the appellant harboured grudges against the deceased instead of telling them his own view. The learned counsel further contended that, the learned trial _judge misled the assessors on the proper~-legaLposition-oA,~a -defence of belief in witchcraft when he remarked: "If you now believe, from hearing the defence that the deceased died because of the beating .. 7 from the accused and a beating which resulted from a belief in witchcraft, you must hold the accused guilty of murder". In the learned counsel's view, where an accused person kills a person through belief in witchcraft, he is guilty of manslaughter. The learned counsel called upon the Court to quash the conviction of murder and substitute a conviction of manslaughter. Responding to these submissions, Mr. Bulashi, learned State Attorney, who represented the respondent Republic, contended that, the appellant had not raised a defence of provocation at his trial, and that, his only defence was that of alibi. In that respect, the learned State Attorney wondered how would the learned trial judge direct the assessors on provocation. which was noLraised.---~The=learned State.. - Attorney further contended that, it was not the learned trial judge's view that the appellant hated the deceased, but that it was the appellant himself who said he hated her because in his view, she was a reputed witch. ..- . 8 On our part we respectifully agree with the learned counsel for the appellant that, to remove the question of provocation from the assessors when there is such provocation, is fatal to the resulting conviction of murder as was held by t~e Court in Jesinata Malamula v. R. (1993) TLR 197. But, with due respect to the learned counsel, in the instant case, provocation was not raised as a defence, and the circumstances did not suggest that the appellant killed the deceased as a result of provocation caused by the deceased's act of getting fire from a neighbour. There is a piece of evidence by P.W. 1 that the appellant became angry when it came to his knowledge that the deceased had got fire· from a neighbour. But it was not clarified how angry he became. At any rate, when the appellant was asked by his advocate in examination in chief whether the act of the deceased getting fire from .an~ighbo.ur~- provoked .him,. ------- . . - -.... __ --- - he is recorded at page 20 to have replied: "I did not get angry". According to the replies in the cross examination, it is crystal clear that the appellant killed the deceased because he hated her, as in his view, she was a reputed witch. But belief in witchcraft per se does 9 not constitute provocation in law as was held by the Court in Magazi Kilunga v. R. {1981) TLR 165. The learned counsel for the appellant complained that the learned judge influenced the assessors to hold the view that th-e appellant killed the deceased by his remark which the learned counsel cited. We have carefully considered the impugned remark. With due respect to the learned counsel, we are not persuaded that ' that remark was of the type which could have influenced the assessors to hold the view expressed by the learned counsel. ' The learned counsel also contended that the learned trial judge induced the assessors to take the view that the appellant hated the deceased. Again, with due respect to the learned counsel, we do not subscribe to that pro.position .. It is in record _ that.itwas.tbe_appellant -·· himself who said so when cross examined by Mr. Shio, Principal State · Attorney, whereby he is recorded to have said: .... 10 "I hated her because she was a reputed witch". The learned counsel avoided to address the real defence of the appellant at the trial, that is, alibi. We think he rightly did so. It would be a futile exercise in view of P.W. l's evidence and after P.W.4 had said it was later on the very day of the incident that the appellant came at his home at Mabuki, a two hour walking distance from the scene of crime. All in all, this appeal lacks merit. In the end result and for the reasons stated we dismiss the appeal in its entirety. DATED at MWANZA this 28th day of February, 2006. 11 E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S~ N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. 7 ! ✓t S. M. ~t(NY, DEPUTX REG STRAR /