20120911 TZCA Mwanza

1 IN THE COURT OF APPEAL OF TANZANIA ATMWANZA CRIMINAL APPEAL NO. 122 OF 2007 ! I CORAM: BWANA, J.A., MJASIRl,J.A. And MANDIA, J.A. I SOSPETER KAROLI •••••••••••••••••••••••••••• ~ •••••••••••••••••••••••••••••••••••••• APPEL~NT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••• J••••••••••••••••••••••••••••••••••••• RESPONDENT I (Appeal from the conviction of the high court of Tanzania:at Bukoba) i' (Sambo, l.) ! ' i ' I Dated 28 February,2007 ,n Criminal Session case No. 80 of 2004 --------~---------- ' i JUDGMENT OF THE COURT I MJASIRI, J.A: The tragic incident occurred at Mashute ·Kyamalile village within the : 1 i District of Bukoba in Kagera Region.! , The appellant, Sospeter Karoli vyas 1 \ charged with and convicted of murder contrary to section 196 of the Penal i . Code Cap 16 R.E 2002 and sentenced to death by the High Court (Samba, i' J.) sitting· at Bukoba. He is now appealing against both conviction and 1, sentence. ' " . Briefly, the facts of the cas~ were as follows. The appellant is the I son of the deceased woman. The two had been in some misunderstanding 1 2 apparently arising out of a dispute relating to land. The case for the prosecution was that on the 25th day of June, 2001, the appellant went to the deceased's shamba (farm) to dig taro ( cocoyam). He borrowed a hoe from his nephew one Edson s/o Deogratius who was at the shamba with his grandmother (the deceased). The deceased upon learning from PWl that the appellant was in her shamba digging taro, she followed him where he was. The two had a quarrel and the appellant struck the deceased with a hoe. The deceased fell down and died instantly. No evidence was led in court as what had transpired and what led the appellant to strike the deceased on the head with a hoe. PWl in his testimony stated that he was not able to see where the deceased was hit. He just saw her falling down. He did not also tell the trial court what caused the fight between the deceased and the appellant. In convicting the appellant the trial court relied on the evidence of PWl who was the only person who witnessed the incident. In his defence at the trial the appellant denied assaulting the deceased. He also accused PWl and PW2 Damian Ndalaba (who was a ten cell leader) of conspiring against him to steal his land. 3 At the hearing of the appeal; , I the appellant was represented by Mr. I, Constantine Mutalemwa, learned ~dvocate and the Republic respondent I I had the services of Ms. Jacquline \Mrema, and Paschal Marungu learned State Attorneys. i I The appellant presented in court two (2) grounds of appeal which are 1: reproduced as under:- t1, 1. That the trial judge erred in l~w in not convicting the accused for a . I I' lesser offence of manslaughter on account that the d?ath of the i I deceased arose out of the quarrel to wit, fight between the deceased I I and the appellant. ( I. 11 2. That the trial judge erred in ~eceiving Exhibit Pl '' Post - Mortem ; 1:. I Report) as proof of malice afor~thought on account that the 9ontents i 1: of the Exhibit were not read, ex/?fained and shown to the appellant. I, 1, Ii I I I ! In relation to ground No.1, Mr. ~,utalemwa submitted that the trial I judge erred in receiving Exhibit Pl (tt,e post-mortem report) contrary to I i the requirement of section 192 (3) of the Criminal Procedure Act (Cap.20). i I He asked the court to expunge the said exhibit from the record, relying oh i the_ case of Benjamin Holela v. R. 1992 TLR 121. I •, I 4 Mr. Marungu on his part submitted that Exhibit Pl was simply used to determine the nature and extent of the injury to the deceased. The complaint has not basis as it is clearly shown on page 4 of the proceedings that section 192(3) was complied with and the memorandum of matters not in dispute was read out to the appellant. In relation to ground No. 2 Mr. Mutalemwa submitted that the death of the deceased occurred in the cause of a fight between the appellant and the deceased therefore the appellant was guilty of the offence of manslaughter. He made reference to Gobeth Cleophace v. Republic., Criminal Appeal No. 210 of 2010 CAT (unreported). Regarding ground No. 2, Mr. Marungu submitted that malice aforethought can be inferred by looking at the circumstances that determine an intention to kill or to cause grievous harm. This can be determined by looking at the nature of the weapon used, the nature of the injury, the number of blows and the force used. He made reference to Said Ally Matola @Chumla v. Republic, Criminal Appea~ No. 129, CAT (unreported). I \ j 5 In relation to ground No. 1, this need not detain us as it is clear from the record that section 192(3) of the Criminal Procedure Act (supra) was complied with. The main issue for consideration is whether or not the trial court was justified in holding that malice aforethought was proved beyond any doubt. "Malice aforethought" is defined in section 200 of the Penal Code. The relevant paragraphs (a) and (b) of the section state:- "200. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:- (a) An intention to cause the death of or to do grievous harm to any person whether such person is the person actually killed or not; (b) Knowledge that the act or omission causing death will probably cause the death or grievous harm to some person, whether, such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused'~ After reviewing the evidence on record and the submissions made by counsel, we are of the considered view that it is probable that a struggle between the deceased and the appellant preceded the infliction of the fatal 6 blow. The appellant came to the farm carrying a machete. He borrowed a hoe from PWl and went to dig taro. He was followed by the deceased. The verbal exchanges between them led to physical confrontation which led to a fight. The appellant was carrying a machete which he could have used if he intended to kill the deceased. The appellant struck the deceased using a hoe. We are therefore inclined to agree with Mr. Mutalemwa on his submission that the established facts are not consistent with the existence of malice aforethought. In Tunutu s/o Mnyasute v. R (1980) 204 it was held that where death occurs in a cause of a fight an accused person shall be found guilty of the offence of manslaughter. See Moses Chichi v. Republic 1994 TLR 222 and Stanley Anthony Mrema v. Republic, Criminal Appeal No. 180 of 2005 CAT (unreported). In the result we accordingly allow the appeal by substituting the conviction for murder with one for manslaughter. Taking into consideration the fact that the appellant has been in custody for a period of almost eleven (11) years, we hereby sentence the appellant on such terms and conditions that would result in the immediate release of the appellant. i i, ! i 7 - \i I th DATED at MWANZA this 11 day of September, 2012. 1: S.J. BWANA I JUSTICE OF APPEAL I I' S. MnASIRI JUSTICE bF APPEAL i 1, W.S. MANDIA JUSTICE OF APPEAL