19851003 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA . AT DAR. ES. :SALAAM CORAM: MUS'tAFA,. J .A. k MAKAME ;·. J;,A'.· And KISANGA, J .A. CRIMINAL APPEAL NOo 8 OF 1984 Between • PETRO SEBARUA • . . . . 0 0 ·• o • APPELLANT And THE REPUBLIC. • o • • • . • • • • • • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tanga) (HoEoDo Sisya, Jo) dated the 10th day of February, 1984.) in Criminal ~e&sions Case No. 19 of 1979 JUD.GMENT OF THE COURT • MUSTAFA, J.A.: •• The appellant was convicted of murder and sentenced te death and he is appealing against conviction and sentence. The appellant and the deceased were neighb~.urs and had lands adjilt,tng each other. The deceased had goats-, and h'is goats wereI alleged to be habitually tresp,assing . on the appellant's land and damaging the appellant'' s crops. Eventually the appellant sold his plot of land to the deceased .:-~ .in Order to terminate the trespass problem. But, according to the appellant, the deceased's goats still continued to damage ~ his crops in his other plot of land. Sometime in May, 1978 the deceased and his wife PoW.5 Asia went to their shamba to dig for cardamon seedlings. • P.W.5 left I. for home, leaving the deceased behind. \The following morning, 1- PoW.5 got up and sent her son P.VL4 Samuel to the shamba to dig for yamso Very soon Samuel returned and told P.WGS .t~at ne had seen a lot of blood at the tea

plantation which was nearby. _P.W.S thouc;ht perhaps it was the blood of a goat of hers which had strayed the previous day~ P~W.5 and P.W.4 went to the spot it where the plood was seen and PeW.S saw drag marks on the ground. / .,./ j ·- -2 - P.W.5 followed the drag marks to a spot which had a shal1''9w hole, covered with vege'tation. She dug up some earth and discovered a leg of her husband, the deceased. P .i,-Jo 5 reported this findinJ to the authorities and when the Police asked her if the deceased had any enemy, P.W.5 said that the appellant, Sebarua, was a suspect. P.Wo4 Samuel corroborated the evidence of P.W.5 • .. P.W.6, a Police De.tectiv2 1 was sent to the scene and after P.W.5 had told him that the appellant was a suspect, P.W.6 went to the appellant 1 s·~ouse. P.W.6 als0 saw ·drag maiks and blUbd. P.W.6 was accompan'ied.g_by P.W.7 Mbwana and P.W .. 8 Constantino. P.W .. 6 saw a clean panga in the appellant 1 s house, which looked as if it had been thvrvughly cleaned and a hoe, with a lump of soil on the handle. When questioned the appellant told P.W.6 that he had been digging with the hoe, c·nd th 9 t he had dug a hole to plant tomatoes. The appellant agreed to take f> .. W.6_ to the spot he had dug. They wer:t there, a short distance away, and when the appellant dug intn ":11e spot: a plastic bag was found-.. Ip the bag were a wrist watch and a jacket, both·

the articles ~eloriging to the deceasedo un being questioned, the appellant said the articles belonged to Alimasi, i.e. the deceased., The appellant also sa:i.d "I killed him because he is tvo proud". P.Wo7 and P.W .. 8 substantially corrobrated the evidence of . PoW,.6 and bot}) heard the appella.rtt saying to P.Wo6 that he had .killed the deceased because he v1 :1.s "too proud". Both P.W.7 and P ..W..a identifi~d the jacket and watch as the property of ·the deceased. P .. w.. 1 Dr. Gongwe, curtducted the p0st-'n;.rtem examinati,,m on the deceased. He found 5 cut wounds, one on the left side of the head, one on the left side of the nawk frfr{lturing the 3 sixth cervical' bone and severing the left carotid artery '3nd left Jugular vein, one on the right side of the abdomen, wit11 the intestines cut and protruding, one on the furearm with the ulna and radius fractured and one on the right leg., Death wa~ due to haemorrhage, the fracture of the backbone and the cut intestines. The'cut wounds were most probaly caused by a sharp instrument. At the close of the prusecution·case, defence Counsel told the court that certain fundamental differences had arisen between him and the appellant and that in the circumstances he was unable to defend the appellant to the best of his ability. ' The appellant confirmed the existence of fundamental differences ' between him and his counsel and the

trial judge allowed defence counsel to withdraw. The appellant then decided to proceed to defend himself on his own. He then gave sworn testimony. He called witness~s, but they did not help :1irn in any way. In his testimony he referred to the deceased's goats trespassing on his crops and his sale of the plot trespassed on to the deceased. On the material day he had chased off the deceased(s goats and as he was preparing to return tv his house he saw the deceased appruaching him with a stick. The deceased abused him and whipped the appellant's back. Then the deceased got hold of the appellant's penis and pulled it, and continued • pulling it. The appellant felt pain and he cut the deceased with a panga he was carrying. After being cut the deceased fell downo The appellant also fell down Owing to. his pain and laid down for a long time, until . ' ·{1,:\ the moon ~ . When he got up he was surprised , to find that the deceased was lying there dead., The v appellant went home and slept and the next morning while he was preparing tu go to Amani Police Station to make his repurt a.Policeman arrived~ The appellant said that his genitals were swollen. The appellant said that he told the police that the deceased had pulled his genitals. ••ooo/4. 0 - ' 4 ... In short the appellant's defence was that he was attacked by·the deceased who caught hold of and pulled his penis, and as a

result ' he cut the deceased. It was either a case of self defence vr killing under provocati.on .. The trial juqge and the two assessors duly considered the prosecution and defence evidenceo They all beli~ved that the prosecution witnesses had t,:;,ld the truth and that the appellant had told a blatant lie, and that his story was .an af,~~i-':t.hought. When first approached by the Police Officer, P.W.6, who was · enquiring intu the death of the deceased, the appellant told P.W.6 that he had killed the deceased because the deceased was "too proud". Both P.Wo7 and PoWaS, who were presen.t heard the appellant say so. In his defence the appellant stated that he .. had told the pol~ce officer that the deceased had pulled his penis .. The police officer P.W.6 did not say so; indeed neither C, P.Wo6, nvr P.Wo7 nor PoW.8 was questioned on this crucial piece of evidence. The deceased was hidden in a shallow grave, -~ · Obviously dug by the appellant. Yet the appellant in his evidence in court never,menti0ned about this; in fact he had said that ~> . ~ when he recovered frum the attack on his genitals by the appellant, he had got up and went ~ome. As one assessor had remarked the evidence given about the deceased's assault on the appellant's · genitals was incredible. The appellant had a panga in his hand at the time the deceased was ~ppo1ed to be pulling his penis. No :taM person would

have dar;.ed t9 do a thing like that to a man armed with a pangao This alleged assault 0n his genitals was only made when the appellant gave evidence in court. He never safd so bef0re and no prosecution witness was even asked this q~eitiono The improbability of such an attack in the circumstances of the case, the sudden appearance of this allegat\on, and the absence of this allegation by the appellant dering lis arrest and subsequent enquiry clearly supported the trial ,:tdge' s the assess!'.)rs' 0pinion that this allegation was a lie an~ an afterth0u~ht and that such an assault I1ever took place .. 5 Mr. Ngasala for the appellant has urged upon us thpt the only account of the killing was given by the appella:'!t\ a·rla he therefore should be believed; or at any rate the appeilan~'s account, even if not believed, w0uld be capable of raising a doubt in his favour. But the appellant had given an account and of the killing to the policeLto other witnesses, PoW.7 and P.W.8. The appellant had said that he had killed the deceased because the deceased was "too. proud". In view of the background of the strained relationship between the deceased and the appellant tre trial judge believed that the appellant had deliberatly killed the deceased~ His explanation that he had killed because the deceased wa,s· 11 t00 pro.ud" would support the trial judge's eoriclusion. We do not think we can

interfere with the trial juqge•s conclusion. After the ·withdrawal of the defence counsel; the appellart decided to. J?roceed: on his own•. We have looked into th~. matter, .-·· and find that no prejudice could have been caused to the appellant in the cirCumstanceso The appellant d~d riot askLfg§ adjournment or want another c;ounscl;· in any event the prosecution had already c9mpleted its eyidencea. In the· result we find that the appeal has no merit and is hereby dismissed~ DATED ,qt' DAR ES SALAAM this 3rd. day. of October, 198~~ .A. MUSTAFA

JUSTICE OF APPEAL ,,., ., , :.. :.L.- ~o - MAKM1E . JUSTICE Op APPEAL 1•.· · ·' ·. ; ,- ,B..J li.o · ¥iJSANGA, · .:I JUSTIC~ OF APPEAL • r ..;· ~--, .-,·t'·~ •1 "!.¾... _.~_•--:i_:•~: -:l;•· ,-,<.-.-~.-*,: >! th• ~~-~t:~ <opy :~< -~he ori9.~Jial. { B."--P" "MO SHI) .SENIOR DEPU'I'i .REGIST~AR.