20080926 TZCA Tabora

,. - ·• \. IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: RAMADHANI, C. l.; MROSO, l. A. And MUNUO, l. A.) CRIMINAL APPEAL NO. 190 OF 2005 BETWEEN SYLVESTER GWINO } @ } ••• APPELLANT SIRIRO VYIGERO . } AND THE REPUBLIC ... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Mziray, l.) dated the 23 rd day of lune, 2005 ) in , Criminal Sessions Case No. 81 of 1999 ...... JUDGMENT OF THE COURT 18 & 26 September, 2008 RAMADHANI, C. l.: The appellant, Sylvester Gwino @ Siriro Vyigero, admitted at the trial before MZIRAY, J. that on lih September, 1999, he stabbed the deceased, Vyitiro s/o Boniface, who died as a result of the injury. However, he raised the defence of provocation. The learned Judge, just as his three assessors, did not buy his story but believed that of the prosecution and convicted him of murder and sentenced him to suffer death. The only issue in this appeal is whether or not there was provocation. There were four prosecution witnesses. Saba s/o Kagoma, PW 1, was a neighbour of the deceased. On the fateful day he met the deceased •· 2 - ' arguing with the appellant over some unknown document. Then all three of them went away together for some distance before the appellant parted with them. A little distance further, the deceased insisted that they went back to a beer shop. On their way to the shop they saw the appellant a few paces ahead of them and he remarked "Mnaenda hapo, mnaenda hapo, ngoja". Literally saying "you are going there, you are going there, wait". The appellant proceeded to his home. At the shop the deceased remained outside talking to a person while PW 1 went in. After some ten minutes the deceased joined PW 1 and shortly afterwards the appellant rushed in wielding two knives in his hands. He went straight to the deceased and stabbed him in the neck. Alson Chagio, PW 2, the owner of the shop, disarmed the appellant and found two more knives in his pockets. The wife of PW 2, who is the appellant's sister, Mitondero d/o Vyigero, PW 4, gave evidence that she was the only one who was selling roast meat at PW 2's beer shop and that the appellant was doing that business at another shop. However, that was contradicted by Mkungano d/o Daudi, PW 3, the appellant's wife, who said "1 knew Alson. He is the brother in law of the accused. Alson had given the accused a place in his pombe shop to sell roasted meat." 3 PW 3, after being properly warned under s. 130 (3} of the Evidence Act, Cap. 6, further said that on the fateful evening, at about 7.00 pm, the appellant got home and told her that "Mimi naondoka narudi huko, nikirudi nisikukute", that is, "I am returning there, when I come back I should not find you here". At that-time PW 3 was in the bedroom and the appellant was in the sitting room. When PW 3 went to the sitting room she did not find the knives on the table. The learned trial Judge and the assessors believed the prosecution witnesses. So, let us see from the prosecution case whether or not the defence of provocation could be established. The defence of provocation is provided in ss. 201 and 202 of the Penal Code Act, Cap 16 in the following terms: 201. Killing on provocation When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as defined in section 202, and before there is time for his passion to cool, he is guilty of manslaughter only. 202. Provocation defined (1) The term "provocation" means, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control 4 . and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered. Was there "any wrongful act or insult" which gave rise to "heat of passion caused by ~udden provocation"? Admittedly, there had been an argument but it ended and the appellant, the deceased and PW 1 went out together for some distance before they parted. When they met again after a few minutes, the deceased did not utter any words instead it was the appellant who shouted "Mnaenda hapo, mnaenda hapo, ngoja". So, the deceased offered no wrongful act or insult. Even assuming that the mere sight of the deceased was such a wrongful act or insult, which it was not, did the appellant act upon sudden provocation with no time for his passion to cool down? It is crystal clear from the evidence of PW 3 that after the second encounter, the appellant went home and armed himself with knives. According to PW 2 it took about four minutes to go to the appellant's house from the pombe shop. So, time taken by the appellant before returning to the shop was slightly more than eight minutes. PW 1 said that the deceased joined him after ten minutes. Then the appellant rushed in and attacked the deceased. About 15 minutes elapsed and the appellant's passions should have cooled down. We, therefore, agree with the learned Judge and the assessors that there was no provocation. • I 5 Let us now see the appellant's version of the incident. He said that he sold roast meat at Jumanne Magambo, DW 2's pombe shop. However, on that day, as he still had some meat to sell while that shop closed, and as he normally did, he went to PW 2's shop. DW 2 supported the appellant in that but quickly added "I don't know what happened to him after he had left my business premises." The appellant said that while at PW 2's shop he had an altercation with the deceased who refused to pay shs. 200/ = for the meat he had eaten. The deceased then held the appellant by his collars almost suffocating him. It was at that point that the appellan~ grabbed a knife he used for his business and stabbed the deceased in the neck. The deceased fell down and he was arrested. If that narrative raises a reasonable doubt, then there was provocation or even self-defence. But does it do so? This is a question of credibility. Rule 34 (1) (a) allows us to "re-appraise the evidence and draw inferences of fact". So, we have to do just that. From the appellant's case the stabbing took place outside the bar where there was roast meat business and that he picked the knife there and then, and not that he went for it at his house. ' , (i'-t 6 ' ,, " There are the following five particulars which are impervious to any reasonable doubt by that narrative: One, the appellant does not mention PW 1 at all while PW 1 gave evidence that he was present at both scenes. Two, both PW 3 and PW 4 said that the appellant went home leaving the deceased at the shop., Three, after the appellant left home and went to the shop PW 3 discovered that the knives on the table were missing. Four, it is the unanimous story of PWs 1, 2 and 4 that the appellant rushed straight into the shop and stabbed the deceased killing him in cold blood. Five, PW 2 disarmed the -''\,,, appellant and did so inside the shop and not outside where the appellant said the stabbing took place. - Even if PW 3 was- truthful that the appellant was also selling roast meat at PW 2's shop he did not do so on that day. The appellant's _attack on the deceased could not have been spontaneous. We, therefore, dismiss the appeal and uphold the conviction and the sentence passed by MZIRAY, J. . __ ) DATED at TABORA this 26th day of September, 2008. A. S. L. RAMADHANI CHIEF JUSTICE J. A. MROSO JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL 7 I certify that this is a true copy of the original. (P. B. DEPUTY RE