Wana v Rex (Cri'rhirial Appe'al"No.-217 of ‘1950.) [1951] EACA 148 (1 January 1951)

## 148

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, President, SIR'GRAHAM-PAUL, C. J., (Tanganyika), and LOCKHART-SMITH, J. of A.

KASIMIRI s/o WANA, Appellant (Original Accused)

REX, Respondent (Original \*Prosecutor)

Criminal Appeal No. 217 of 1950.

(Appeal from the decision of H. M. High Court of Tanganyika-Mahon, J.)

Tanganyika Penal Code—Witnesses relatives of other accused—Failure to consider motive of witnesses to fix guilt on appellant.

The appellant, together with one Yohani, was tried for murder. The victim received an injury on his chest and another injury on his head. It was the head injury which caused his death. The trial Judge found that there was no common intent between the accused. He accepted the evidence of four witnesses named Sagumu, Fitilizi, Songo and Swamehe that the appellant caused the head injury and convicted him of murder. Yohani was convicted of assault.

Held (1-2-51).—In view of the fact that Fitilizi was the brother of Yohani, Sango was the brother-in-law of Yohani and Swamehe was the wife of Yohani, these three witnesses would have a strong motive to fix the guilt for the fatal blow on the appellant. There would have a strong movies to hix the sum for the matarbow on the appearant. There<br>was nothing, however, in the judgment to suggest that the trial Judge had directed his<br>was nothing. However, in the judgment to suggest tha

Appellant absent, unrepresented.

"Summerfield, Crown Counsel, Tanganyika, for the Crown.

JUDGMENT. The appellant was charged in the High Court of Tanganyika along with one Yohani with the murder of Juma. The appellant was convicted of the murder. Yohani was acquitted of the murder but found guilty of assault causing actual bodily harm contra. section-241 of the Tanganyika Penal Code and sentenced to 15 months' imprisonment with hard labour.

The facts of the case are extremely simple. Juma apparently brought, or allowed, the cattle in his charge to enter the shamba of Yohani whose wife gave<br>the alarm in consequence of which the appellant and Yohani each armed with a stick came on the scene. They attacked Juma with their sticks as a result of which<br>Juma was injuried and died. His injuries were one on the chest and one on the<br>head. It was the head injury which 'caused his death, by conc not completely fractured.

The learned trial Judge rejected the Crown case of common intent and the only issue at the trial was which of the two accused struck the blow which caused the head injury. Upon this issue the learned Judge decided against the appellant. In his judgment the learned Judge said as follows: -

"Four witnesses have stated that they saw accused No. 2 hit the deceased upon his chest with a stick whereupon accused No. 1 struck him over the head with his stick. One of these witnesses is the young boy Sagumu whose evidence requires corroboration and this is to be found in the stories told by Fitilizi, Songo and Swamehe."

That excerpt from the judgment is apparently convincing against the appellant, but it becomes much less so when we find on examination of the evidence on record that Fitilizi is the brother of the other accused, that Songo is the brotherin-law of the other accused, and that Swamehe is the wife of the other accused. All these people obviously had by their relationship with the other accused a strong motive to fix the guilt for the fatal blow on the appellant and so save their relation, the other accused. There is not a word in the judgment to suggest that the learned trial Judge directed his mind to that most important aspect of the evidence and in the absence of any such direction we do not think it safe to uphold the learned Judge's finding of fact as to the fatal blow.

In these circumstances we quash the conviction of this appellant of murder and set aside the sentence of death pronounced upon him. We substitute a verdict of guilty of an assault causing actual bodily harm contrary to section 241 of the Tanganyika Penal Code and sentence him to 15 months' imprisonment with hard labour to run, as from 8th, November, 1950, the date of the judgment of the Court below.