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

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. 

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 recognized 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 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 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. 

Appeal dismissed. 

1984 TLR p251 

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