20080930 TZCA Tabora

t ,' I IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: RAMADHANI, C.J., MROSO, J.A. And MUNUO, J.A.) CRIMINAL APPEAL NO. 19 OF 2006 BIGILIKIMANZI MISHENI ..............................APPELLANT VERSUS THE REPUBLIC ........................................... RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court at Tabora) (Luguru, PRM, Extended Jurisdiction) dated the 25th day of November 2005 in Criminal Sessions Case No. 4 of 2003 · JUDGEMENT OF THE COURT. 26 September & 3 October, 2008 MUNUO, J.A.: The appellant, Bigilikimanzi Misheni, was charged of murder contrary to the provisions of section 196 of the Penal Act, Cap. 16 R.E. 2002 for on the 2ih February, 1999 at Mbeta Village in Urambo District within Tabora Region, the appellant murdered his wife Getrude Barandeleka. The learned trial Principal Resident Magistrate, Extended Jurisdiction, Mr. Luguru, in Criminal Sessions Case No. 4 of 2003 in the •• ' ' ',, .... 2 Resident Magistrate's Court, convicted the appellant and sentenced him to death by hanging. Aggrieved, the appellant, through the services of Mr. Kwikima, learned advocate, who also represented the appellant at the trial, lodged the present appeal to challenge the conviction. Mr. Prudence Rweyongeza, learned State Attorney, represented the Respondent Republic. The appellant was the husband of the deceased, Getrude Barandeleka. They were staying at Kibeta Street in Ulyankulu within Urambo District. Around midday on the 26th February, 1999, PW1 Nyandwi Elias, passed by his neighbour's house and found the said neighbour, the appellant, assaulting his wife, the deceased with a stick. PW1 was in the company of another neighbour, PW2 Mbazumutima Peter. As they saw the appellant try to strangle the deceased after she fell on the ground, these two neighbours, PW1 and PW2, intervened to quell the assault. Meanwhile the deceased rose from the ground and sought refuge in the house of her father-in-law. Disgusted that the person he had been attacking had escaped, the .. . i r: 3 appellant turned on PW1 and PW2 who ran away. The two neighbours said that they did not know what the spouses were quarrelling about. In the morning, PW1 and PW2 got information that the condition of the victim of assault by the appellant got worse. She was bleeding externally. She passed away that morning. The matter was reported to the police. Subsequently the appellant was arrested and charged with the murder of his late wife, Getrude Barandeleka. The postmortem examination report was not in dispute at the preliminary hearing so it was admitted as Exhibit PL It states that the cause of death was beating. The body was found in the house on the bed bleeding from the nose, mouth and ears, external haemorrhage. At the trial the appellant denied assaulting the deceased at all, saying she was loose so she could have been raped during the night. During the appeal, Mr. Kwikima, learned advocate for the appellant, stated that the deceased was indeed assaulted by the appellant in a domestic quarrel but the assault, he contended, was not the cause of death. He submitted that the cause of death reflected in 4 the postmortem report is vague so it does not establish beyond all reasonable doubt that the appellant fatally assaulted the deceased. The prosecution, counsel for ·the appellant maintained, failed to establish that the appellant killed his late wife so the appellant should be given the benefit of doubt and be accordingly acquitted. Mr. Kwikima abandoned ground one of appeal, namely that the learned trial magistrate lacked jurisdiction to determine the case. Mr. Rweyongeza, learned State Attorney, did not support the conviction for murder. He contended that as the spouses had been quarrelling, there was no mens rea on the part of the appellant because there is no evidence to show that the killing of the deceased · was premeditated. It is the opinion of the ·learned State Attorney that malice aforethought was not proved. The appellant, he urged, should be convicted of the lesser offence of manslaughter c/s 195 of the Penal Act, Cap. 16 R.E. 2002 because the appellant unlawfully killed his late wife, Getrude Barandeleka. He cited the case of Augustina Kaganya and Others versus Republic [1994] TLR 16 in which the Court held that - I 5 In a charge of murder, only where it is doubtful on the evidence that the accused intended to kill or cause grievous harm to the deceased will the Court give the benefit of doubt to the accused and find him guilty, not of murder but of manslaughter. We respectfully distinguish Augustino Kaganya's case because the issue in that case was malice aforethought in the circumstances of the appellants fatally assaulting a thief with a knife, club, fire and utterances that they would finish him off. In the instant case the issue is what caused the death of the deceased. Unfortunately no investigating officer testified at the trial so it is difficult to say when the condition of the deceased worsened considering that she could run and seek refuge in her son in law1s house when her neighbours intervened in the squabble as the appellant wrestled her on the ground. That she could rise and safely run away suggests that the assault inflicted on her by the appellant might not have been fatal initially. The postmortem report states that the cause of death was beating but all her major organs and skeleton including the head were normal.. In that situation we think 6 the doctor who conducted postmortem examination had to testify to explain to the Court how the beating caused death when all the organs of the deceased were normal and there is no indication of head injuries. · Under the circumstances we are unable to establish the cause of death with certainty given the discrepancies of the cause of death under the postmortem examination report, Exhibit P1. The learned judge, in our considered opinion should not have grounded a conviction. In the result we quash the conviction and set aside the sentence. We accordingly allow the appeal. We order that the appellant be released forthwith if he is not detained for other lawful cause. i 7 DATED at TABORA this 30th day of September, 2008. I =----·- A. S. L. RAMADHANI -~ p p E: Al CHIEF JUSTICE {: \ J. A. MROSO ri ) JUSTICE OF APPEAL \) / W; ' ~.... . . ?:~~ , E.N.MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. I (P. B. K D DEPUTY REGISTRAR