msitegwa madagha vs the republic 1996 tzca 15 21 october 1996

/ iif court q ? appeal a? Tanzania AT MB5YA (COilAMs M Z M A 3 . J . A . . KTALILA. J . A i f And LUBUVA. J . A . ) CPJIill'iL APPEAL NO. 44 OF 1994 BETJHEH MSEEEGtfA ICDAG^i-............................................... APPELLANT AND ISIS REPUBLIC# . . . . . . . . . . . . aTHSFOHDEN'T (Appeal from the Conviation and Sentence of the ~-igh Court of Tansania, Iri w g s.j (Hwjpopo, J.^ dated 'the 23rd day of ?e-hruary# 1994 in Cric.laal_oessions Case No. 2ft of 19^1 JUDCPIKEKT 0? lrJ E COURT MNZAYAS. J.A. 8 The appellant Ilsitegwa Iladagwa «aa esntanaad. “ fc*><Lea4]i tQf tile Iligh Court sitting in Iringa (Kvipopo^ J.)? upon hia convici*ifin ior the murder of ones Ilbena d/o Sembete on or about the 3Ctfch day of April t99® at Idodi Tillage within the district and Puagiflp. of Ixinga* Mr, Mbisej learnod advocate argued, the appeal 3*ol^al£ of the appellant while Kr. Mulokozi, learned -State —ttaaaieyy-segued in support of the nigh. Court decision, i£r* Jlbis^ learned- advocate submitted and argued four grounds of appeal togetherj that- the laajaied trial judge erred in coming to- the oeaclusian that it was the appellant who killed the deceased when there was no sufficient- euicLeac^ to prove it. It was the learned Counsel's, submission that the trial £ourt- should not have believed the testimony -of Lotisia- Mgowa (F¥.1 ) which was to the effect that on the material day sh-s. was attending a call of nature when she heord the deceased* her groat ^rand-mothex*. crying — she hurriedly returned to the deceased's hut to see what was happening* As she was doing so she met the appellant coming out fronv the deceased^s hut where she (deceased) was crying. It was Letisia's evidence that on entering the house she found the deceased suffering from three head *••«/2 juries ■which, -wore bleeding. The deccae^d told her that the a p p e l l # # ha4. h it hey three times with a stone# ^t %tas argued that the loaaStei ju iga erred in believing the testimony of l>etisia wiihottt talking-iit»0 account tm 'terial ©ontiradiaticna iu hex evi&enca* Kr. Mbise finally submitted that the High. Courts fcrfed Xcl^ljag on the dying declaration of the deceased that it was the appellant who had Assaulted her* She learned defence Counsel argued that as the deceased’ s head had "been "crushed.” she must have been A n a firitioal condition when she gave her dying declaration and that in such circumstances the learned judge should not have relied the dying declaration* In rebuttal Hr. ISulokoei, learned StatQ. Atfccxraeyj supported the conviction* It was iiis submission that at the time the deceased mentioned the appellant as her a&saillant she -was mentally alert and in full control of her mental faculties. As- £ov the ^arml-agf) inf o r m in the evidence of Lotisia, (PW•1 )3 Hr. Mulskosi argued that such contradiction could be explained by the fact that the witness was testifying on events which took ula/ia, over three years. The 1 State attorney told the Court that as* tillage authorities were preparing to send the appellant to th® Ward Sacretaiy to looked up he escaped from lawful custody. That the appellant escaped from lawful custody the Court was referred to the evidence of thet Village Secretary, (PW«5)* In Coming to the conclusion that the appellant was guilty Of the offence of murder the learned judge said inter alias "When theys P¥«3? PM*4 and the cell-leader took the accused, to the dec-eas^d*, the accused confessed to have hit the deceased and prayed fan*' i ^ g a a e from custody so that he could help in treating and taking care of the deceased* The accused's confession shows his knowledge «f the assault he had done. With the defence of knowing - 3 - what happened, impliedly raises the defence of insanity through intcixication. The accused drank the.sacrificial pombe which had been prepared by a neigh hour' — Ox both the accused and the deceased* She liquor was £or pulilicu consumption and free of charge* Was he intoxicated? Most likely yes for at one stage ---- the accused to® played, in some traditional dances- called Mkiduwon« How much he drank and to what degree he was intoxicated is a ijuestion whi<jh has been answered the prosecution witnesses who were drinking with him and dealt wjth him at the time of the incident. FIT.3 who was drinking with the accused when cross-examined by the defence Counsel* the learned Hr, Hshplcarwaj testified as f^Ll-oa^i— There was not much pombe, but we were drinking slowly with traditional dances being played, The accused started playing "kiduwo!x at around 2 p.m.* he was getting a bit drunk but not much,,, just* a little* The other witnesses, F¥*4 and PW*5- ttht>-dealt vi'feh tie accused prior to or after the incident have all assessed the accused as having not la&en ^jjcunk though he drank the ritual ponbe — ■ ■ The normal way the accused danced "kidmrtVj walked home returning rushing back to the pombe, talking j;efutting the accusations or confessing to the assault tend to add weight to the witnesses* (PW.1 s FIT,3, P-J*4 and FW.5) assessment of the accused1a intoxication as having been mild. He was capable of kjicwing what he was doing and of knowing that what he was doing was wrong and unlawful* That is why he later escaped i?ith ropes tied around his hands”* .After the learned judge had summed up the whole .evidence to the three lady and gentlemen assessors they -were all. -of U oq .“ unanimous o.ptiAa-«il. that the appellant was guilty of the charge of murder as charged* We have minutely examined the evidence tendered before the Court of first instance and have come to the conclusion that at the time the deceased gave her dying declaration that it was the appellant who, without rhyme or reasoy^ attacked hex she was in. full control of her - 4 - Senses. Her head had. not been "crushed." as Mr. Kbise> learned defence Counsel, would have us to believe* Doctor's post-mortem report — Esli.P1 is to the effect that the deceased had a fractured skull* The undisputed fact that the deceased survived the injuries for two days before she died goes a long way to show that she could not have mistaken the identity of her assailant, *.s for the learned Counsel's submission that the trial Court erred in believing the testimony of when she said that she saw the appellant going out of deceased’ s hut as she* (Pli7#t) was returning to tfe hut where the deceased was crying with pain we agree with Mr. Mulokozi, learned State Attorney, that the contradictions in Letisia's (PTM 's ) testimony can safely be explained T^y the fact that she was testifying on events which took place 3 years ago* The contradictions were due t a lapse of memory and not deliberate* As for Mr. llbise’ s argument that PW*1 told lies against the appellant bccauso there was misunderstanding between them we agree that the evidence showed that the two were not in the best of terms but there was also the evidence of the Village Secretary (p w .5 ) and Fir, 6 which was to the effect that the appellant eseeped from lawful custody as was being sent to the Hard. Secretary* There was ao suggestion leave alone evid.Jnce that these witnesses had reason tell lies against the appellant. And, to crown it all there was the evidence of PW«3* PW.4 and PW.5, the cell-leader, that the appellant confessed *ta have assaulted the deceased. Looking at the totality of the evidence wo are satisfied in own minds that the learned trial judgo was right in oonviofcing the appellant of the offence Of murder as charged* The sentence of death is mandatory. In the event we order that the appeal be dismissed in its entirety, • •»*/5 5 - Di^ED a t I.IP=-T!.r;. t h i s 2 1 s t d a7 o f O c to b e r , 1 9 9 6 * n.s. M'ia;,v/is jU3Tic^ or appjs& l L.K . LUV.LIU JUaxIClil 0]? *»P. D.Z. LOBOVA JUSTICE Or\iPPII,;L I certify that tliis is a true <iopy of the osrigimli ( m .s . ) DIDPUTI HJUGISGllVJl.