JUMA ZUBERI v REPUBLIC 1984 TLR 249 (CA)

JUMA ZUBERI v REPUBLIC 1984 TLR 249 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Kisanga JJA and Omar JJA

August 15, 1985

C CRIMINAL APPEAL 7 OF 1984

Flynote

D Criminal Law - Murder - Robber abducted child - Robber was the last person to

be in custody of or in possession of the child - Child found dead after a month -

Whether robber is responsible for the death of the child.

-Headnote

The appellant was recognized as one of the robbers who had waylaid and attacked a

party in a motor E vehicle on the road at night. In the course of the robbery a 5 year

old child was abducted by the appellant. The child could not be found. A month

later remains of a child were found in the bush about 1 mile from the incident.

Evidence established that the remains were of the abducted child.

F The appellant was convicted of murdering the child. He appealed to the Court of

Appeal arguing, inter alia, that there was no evidence as to the cause of death of the

child.

G Held: The appellant had caused the death of the child in terms of section 203(e) of

the Penal Code because the child was in his custody and possession and he had

abandoned her in the bush and this, certainly, for whatever cause, brought about her

death.

Case Information

H Appeal dismissed.

No case referred to.

[zJDz]Judgment

Mustafa, J.A. read the following judgment of the court: The appellant was recognised

as one of the I robbers who had waylaid and attacked a party in a motor vehicle on

the road at night. P.W.1 and P.W.2, who were passengers in the motor

1984 TLR p250

MUSTAFA JA

vehicle saw and identified the appellant by the head lights of the vehicle as the

appellant A approached it. The appellant was their co-villager and they had known

the appellant for a long time before the incident. In the course of the robbery a 5

year old child of P.W.1 was snatched away by the appellant.

The child could not be found, and a month later, some human bones and a skull and

some hair were B discovered in the bush about 1 mile from the incident. Near the

bones were the clothes and ear rings worn by the said child at the time she was

abducted. The bones and skull were found to be that of a child between 5 - 15 years

by the pathologist and the hair was human hair, as found by the C Government

Chemist. In our view this evidence sufficiently established that the bones and skull

and hair were those of the abducted child.

We are also satisfied that the appellant was properly identified. P.W.1 immediately

reported to the D authorities that the appellant was one of the robbers and that it

was he who had abducted the child. Both P.W.1 and P.W.2 described the clothes the

appellant was allegedly wearing at the time of the robbery, and such clothes were

found in the appellant's house when it was searched.

Miss Mutabuzi for the appellant had submitted that there was insufficient evidence of

the cause of E death and also that the circumstances do not point irresistibly to the

appellant as the one who had killed.

We are satisfied that the appellant was one of the robbers, that he had abducted the

child and was F the last person seen with the child when the child was alive. The

bones of the child were found a month later about 1 mile from the scene of the

incident. The appellant gave no explanation as to what he did to the child after he

had abducted her. It is true there is no evidence as to how the child died; she might

have been assaulted and killed or might have died of starvation or attacked by wild G

animals after she was abandoned in the bush, or from some other cause.

However the child was in the custody and possession of the appellant, and he, at the

least, had abandoned her in the bush, and this certainly, for whatever cause, brought

about her death. Clearly H the appellant had caused the death of the child in terms

of section 203(e) of the Penal Code. We are satisfied that the circumstances

irresistibly indicate the appellant as the person, or one of the persons, who had killed

the child in the course of a robbery. We think that his conviction for murder was

justified. I

Appeal dismissed.

1984 TLR p251

A