19880226 TZCA Dar es Salaam

' I HJ THE CDlffiT OF APPEAL OF Tl:.NZID'il'IA 11.T DAR ES S/iLN'iM CRIMINAL APPZAL NO. 56 OF 1987 THE REPUBLIC •••• ~ • • • • • • • • • •••••••••• APPELLANT

VERSUS FREDRICK KISIRJ\.GA •••••.••••••.•••••••••HESPOJIIDEN'f (Appeal from the decision by the High Court of Trmzania .at Dar es Salanm) (LukE!nga,. }?..R.H., E.J.) dated 10th April 9 1987 in Criminal Sessions Case No• .5 of 1986

RULING MAKAJl'IE 2 J .A ~ In the High Court at Dar es Snlaam the respondent Fl1EJXUCK -. · IITSIRJ\.GA was tried for the murder of n young lacl.y called MTGiiliICA .. RWECH.UNGURA. The learned tri81 mag istr.cite, Lukanga, P.R. M. 9 Extended . Jurisdiction 9 emerged with the same view as both his assessors . thnt the respon:lent- 1s guilt had not been established.ueyond rnason§lble doubt, He accordingly found the Resp,ond.ent Not Guilty and acquitted. him. This now is an appeal by the Rep':lblic .from the said acquittal. The respondent is represente·~-., by Mr. Ballonzi, leEJrned advocate, as ho wa.a also at the trial. Mr. Shio 9 lea.med State J\.ttomey 9 appeared for the appellant Republic before us. We have carefully considered .Mr. Shio•s submissions. H~- tried to·persuade this Court that the trial court ought not.to have acquitted the respondent b8oouse there was enough evidence on record to prove the case beyond reosonable doubt. on his pc:irt Mr. Ballonzi supported the High Court decision ;:md urgd. us to dismiss the appeal by the Republic. E:)Ch counsel nrguod the 8ppeol in careful detail. • .... /2. - - 2 - We are of the considered view that it would be in thG interest , . of justice if we ordered that additional ~·vidence be taken in this case. Only then can the matter be finally disposed of satisfactorily. Learned counsel on both sides agree on this course of action

in connection with ~-t least one matter, that is in connection with the building from which the deceased allegedly fell to her death. In accordance with Rule 34 of the Court of Appeal Rules, 1979, we order that the trial court should take additional evidence on the following matters and accordingly certify it to us~ ( 1) By P .W .1 VICTORIA RWECHUNGURA the dece3sed 1 s mothe.i'.', whether or not Ex:h. Eis the photograph of the deceased, and whether or not the pair of shoes featuring in this case belonged to the deceased. (2) A clear sketch plan of the building from which the deceased is alleged to ·have fallen, showing the height of Room 601 from street lGvel, the various balconies and protusions 9 the e:x:tent_ of the arGa forming the roof of the Dar es Salaam Supermarket, and the distance from this to the· precise point \·1here the deceased's body was found lying; ( 3) The condition of the road where the body was; nnd whether it was consistent with a motor vehicle accident~ (4) By a coo:peten\ doctor 9 expert opinion on whether the injuries found during the autopsy are consistent with only a fall from a height and. whether such ·injuries could not have been sustained elsehow. ThGreafter the record should be sent up for f "L,al determination of the appeal by us. DATED at DAR ES SALAIU1 this 26th day of February, 1988. Fo L. NYALALI

CIUEF JUSTICE L. M. MAKAME JUSTICE OF .l\PPEAL A. M.A. OMf.R JUSTICE OF AP PEAf. I certify that this ie a true copy of the original. -~\l-f (J. H. 'r\1SOFFE) SENIOR DEPUTY Rffi ISTIU\.l} .