19710906 TZHC Dodoma

U, 2Q HIGH COUT.. 'C' -TAL JURISDICTION (Dar es, Salan Registry) \ 9/ Criminal Pe 9L.7!

14.

TPJBIIC versus I4ATI S/0 PATRIS CHARGE: MURDER - Contrary to section 196 of the: Penal Code; J U D G Ii N - The accused, Matel s/a Patris, is charged with i"1urder c/s 196 oL the Penal Code. The prosecution alleed that the accused on or about the 8th day of July 1969, at Udindaiisi 'village, Kigre division, in the district and region of Dodona, murdered one, Mnyatobe s/o Nakanya. It is not at all in dispute in this case that it was the act of the 'cused' that caused the death of the deceased. qually it is not seriously ii diepute that this act of the accused was an iui2wful act; what is serb- 4.sly in dispute is, whether the accused in inflicting the unlawful fatal blow did so with malice aforethought.. The Republic argued that there was ample evidence that the accused had formed the necessary malice aforethought vhen he inflicted the fatal wound. The defence on the otT::er hand was of the view that the Republic had failed, to prove that the fatal wound was inflicted by the accL1sud with malice atorethought, and that the evidence was uore consiatont with the lesser offence of manslaughter. The facts of this case are as follows:- On the night of 7/7/69, accused's fffty head of cattle were stolen from his .kraai. He raised an alarm and neighbours went to his house. The accused and his neighbours followed hoof—marks on the ground for some distance but lat3r abandoned the search

as, due to darkness, they could not clearly follow the hoofmarks. They decided to wait till next morning when they would start searching for the cattle. Next day, (8/7/69) '1y in the morning they resumed the search. According to the evidence William (P.W.2) the search started at 6.00 s.m. and that all the people were armed with bows and arrows and others with spears and sticks. He told the court that he himself was armed with a bow and arrows and that the accused was armed with a ...and, a stick. In his testimony he said that the search continued up to 1 p a m. but was fruitless. At this :'time theyciecided to gofor lunch at Kigwe, According to his evidence they did not get food and therefore they decided to buy n.tive liquor worth shs. 11/=. They drunk the pombe up to 'about' 2.30 p.m when they left the pombe sp and z'es'umec1 their searo1, He said that as they were approaching a bush they heard people in the bush making noises as if they were chopping firewood. According to his evidence the group thought that these peôple were the cattle—thieves and they decided to divide themselves into three groups and advanced towards the suspected thieves in three differenct directions. According to his evidence as he was approaching the suspected thieves he heard someone in front of him crying for help. He ran to the ,laco the oios were coming from and he saw an old man lying on the

ground and an old lady standing near him. He also saw the accused standing near the old man, He told the court that as he Wa5 arriving at the scene he heard Matei Msonge (P.w. 4) asking the acc;sed why he (the accused) had speared the oldman and the accused replying that they should run away as viUagers would beat them up if they found them there. According to tis wtnss all the people in the searching party gt worried got worried, and' ran to accused's house. .. .,.. . 0/2 -2- Lendeme (P'.13)ave almost similar evidence as William. He also told the court that he saw the accused spearing the deceased and that the deceased was standing when the accused speared him. Matei Msonge (PW4) gave similar evidence to that of William and Lendeme in his examination in Chief. He also said that he saw the accused attacking the deceased with a spe-ari He however materially differed from the other witnesses when cross-examined by the defence. The wife of the deceased (Pwi) also gave evidence in her testimony she related to the court that on the material day she and her husband were in the bush chopping firewood. She said that as they were doing so suddenly people came and started attacking them. According to her evidence she herself wss attacked with an arrow by one, Mazengo who has since died. She told the court that she received injuries on her arm and on her thigh and that she was sent to

Hospital for treatment in a motor vehiele She also told the court she saw the accused attacking her husband, the deceased with a spear. She said that she did not irnow vhy they. were attacked and that a far as she imew there was no encuilly between the deceased and the accused. The doctor (F19) who perfomod post-mortem examination on the deceased told the court that the deceased had a wound scalp-deep on his head, and a stab-wound on the left hypochondriac region measuring I+x-- wide penetrating to the abdominal cavity0 This wound according to the doctor is the same wound which injured deceased's spleen. The wound in the spleen was said to be of I--xI .ride and two inches deep The doctor was of the opinion that tb.e penetrating wound to the abdominal cavity was caused by a sharp instrument and that a spear could have caused such a wound. The doctor formed the opinion that the cause of death was due to raptured spleen interperitonoal halmorrhage and shock. Accordin to his obsexation considerable force have been used in inflicting the blow. The doctor also examined the accused (Exhibit C) and found him to be mentally normal. He found no marks of violence on his body and he estimated his age 25 years. The accused in his an unsworn statement did not deny inflicting the fatal wound on the deceased... He however said that the deceased ccidentally fell on his (accused), spear when he

(accused) was texening a fight between the deceased and another man. Egidi (PW2) related to the court that he was one of the earching par±y. According to his evidence he did not see the accused attacking the deceased but he heard Itatei (F14) asking the accused why he (accused) had speared the deceased and the accused replying that he did not Imiow whether he had speared the deceased. G'rifen Ma,busila (PT:13) an inpector of Police testified to the court that he recoded Matei Msonge's (PJ4) statement on 17/7/1969. He read the statement to the and the statement was without objection by the Republic admitted and markd as Exhibit D. After summing up to the assessors one of the assessors was of the view that the accused is only guilty of maunslaughtor. The remaining two assessors were of the opinion that the accused intontinally causd the death of the deceased and returned a verdict of murder. In 'i.is address to the court the learned defence cow..sel argued that there was such a confused atmosphere at the time the accused inflicted soon after the searching party had left apombo shop whore they had boon drinking and that drunknoss should be considered, when dealing with the question of Malice aforethought. It was also argued that if the court accepts accused's unsworn statemen then the court will have to find that the fatal wound was purely accidsntal. The learned counsel

alternatively argued that the Republic case showed that the accused had an honest and reasonable, though mistaken, belier that the deceased was the person who stole his cattle when he • .. •j7 /• . • P I I .O3; JO SSUI COOE.xqwe .icuo qOTT& 0p03 TUOI 30 IT UOT4Dos ,O SUOSçAOXc et. £q po.iaioo qou C.IOJOtet. puu A JO OjSTW la JV[1E0[O SWt STt eTq4 STT.{ °TOS ot uosJod ;D -qo eq oq. pcioçoq 0Tj, MoTim peseoep 0TT1. UO Aoq; C POq.OUT Otj UOT.t ;oç O. pTUa JTTeT S OT qtq peoToq posmou eqq. p. 'peAopJeq sç osvo UOqflOOsOIcI eqq ;o OTOtk ot. ;ç 'juaddu pij.io rc eeo u q..ou pU oej 09, SO?TE.I eq.sçtu Ot(4 (TTT) !oT q ia uos 'e a .i eq .snw oqsui ot q.w (c) ouop pe etfl. peç;iqsuC etj 'on.1q 3ç 'prnoA paeroq suçtfl. ;o oqqs etr e'tq. (T) - PePTAOxd ooue;ep e sp paqqTmp aq uto ON L4S T N tl -:sSss JOIUe POUJeOT tfl G JOH 6L od q (uop.Tpa qTT) aurçzç - UO TOSni UT SOTaWMS kT UT eSTtU Oq. 512 SOULI 4 T UOEtOO et JTC O 1OthI12 epO .IUOO T T UOTl.00S 'Al2t .O E'I 12 STW 12 OU pU12 Or O12J JO e3i3qsuI 12eq q.enm Xa Tl aq Ue[12qsw ewi. apoo TE'uo otjq U0p0e5 j opun OJ12qO T12 UTrJITJO UT OOUGjap ie eq oq. ;oçoq 'uep3qs -cux nq 'eqeuos'eE.x pu12 qSeUOtj we .10; q12t. UoçsSTwqnS S5UI0412 PUJ'SOI OtT OO.X5 oq. pUq. I 'J sPx OL ptq ;eoq O[tUOS13OJ pU qsouoq U12 p12t et rsn1200q peseoep ot. pooqqc pesnoo etj. q.iqq eoue;ep ot. oq. sy 12J305TA peos-deop qons O pOeuod 0Al2q qOU pnoo qs T.UePToo12

till T12UepTOO12 uoeq OAl2 OU pinoo prn'iO Oq!. E't SkOT{S J[J12O[O STTU ptmOM et Ucorc;UT UT pesn ueoq oq snw ODJ eq12.xepTsu00 V 3M. 0 .MOD , Oq PT°- JOOOp eU p0.1nqct12.x S12k tIOTLIA U05 1d 5 OtT oUT WTX seqo eq. p5q12.1qouod ptmo T 12; eqq i3Uj. a4.oqs eouep.&o TTPW '0s12e LqPI pee stusçp eq U120 qUepçoOe JO eotio;op et[. 'ASTA 1cm U .1120c1S 12 qqTA POS12000P atfl. 0JO1212 pasnooi3 ot o.xo;eq qouC pouecldet[ ia-qm ogr se suoTs.1o.A. 2U T q. O TPUX.UOO eq uçp.xe.x OU T qndoLT atlq. Aq qUOttirt12 qourn otz sat& eIeq; epo [12UO Otfl JO IT UOTOCS &q PaJOA00 OU O.IOO.IOtj. P1112 012J JO O312OSTtU OU p1.112 4 12T JO 0120.sm 12 SA 'Peni s -T 'sfl uiTi TIPI o perço 0.10Je.1eqq. pu12 ;oçtq etjq. 512A Ot[ poAoqeq eq osnooq peseeoep eq. uo MOTq Ti4u; ot POqrçTJUT POSUOO12 OLJq 12t{q pun .W xe SaLuo n,qpe POUnX'e01 OT.1 '0S120 ST1.fl- g o 500 X12Or SlItflO.1TO 01.j UT 0Oti0JO 12 eq q.oLuzeo J04 oq. SeM pes12000p et{q. q13qq, pesnoo12 oqq. S q JTTOq erq12Uoaee.1 p1112 q.saioq 1112 JO U0UIfl112 0t{qr quLjq. pçee npUTTT)i .1ZepTOO12 Jo eoUoJep 12 pepiv[oxO eouep -pe T12oTporiI 05111200q ç o. uoTqUeq.12 £1112 £cI O pes12 51211 .IflO0 Cq 't1OpTD012 JO .O0UCJ0P eqq .IOJ S .o.z12qo T12UTtUT'I0 13 UT COUO. 12 Cc OU p[noO sseU3[urLIp Stj 'e0tIe;;o eq. peoçwuzoo eq U0qFi. 311MOEP S12A pOSflO012 O1.10. q12qq. pttno. .in0O etjq. JT UCAC O131.. 0 U J12 c eU.10T412 eq129S PO1L112CT e1 JVJ12d

oqtuod: Oq. Y[urL.Ip S121t £i12cT cITt{o.reoS m4or Jo seqwem oqq. Jo OUOU 12qq. oouop -p.e SSM 0.101.{. 9.12q. PTUS UPUTTT)I JN uOTsswq.ns OOUOJCP eqq. O. JcTdo.1 TiI 12 '44 tT1.J 3O12412 o. qnoqe . 513M pos12ecep eq. esnoeq peseoep eqq. paxee d s pesn'.o eLfl VeMr PTS SSotZp& .1eqq.OU5 s12e.1Cl4t 0T.120 SçLJ O[O.s Ot.M U051.tod et r eq oq. miq pOqOXTSIIS oq osnooq io; POS12000P Oqq. 1.10 punox Oqq p00TTUT p0SflJO12 Otfl. Wq r PT 5 sOssOu DrTm 011. J0 Cmos U ueqs UooUT S T AoTq T-J eq. Jo UOTq.OTT,pIT e.xO;eq .SUç petI0Cd12q .12qM Jo uotS.XOA 8 1 0çqndoeqq. pam9 ale S12b q T £TT 12 UT - 'peeeq pq eq 812 qons ueeq p13q sup.j. ,O C125 1120.1 etjq. T Ue.X0 jo !~ iaaaS £1112 oq. 54.O12 eçiq zo; oqsuodse.1 £TT12UTIUT.1O .OU St p05110012 eq. OJ0J0Je1 t.1? 'J120d5 sçq ttrçq p01012r13 7 a - 4 - it is/generally accepted principle of law that ignorance of the law is no defence in a criminal charge and this legal maxim is reinforced by section 8 of our Penal Code. The defence that the accused bolievad that the deàeased was the thf when he attacked him is ther;fore of no consequence because the law does not allow people to attack thieves. I now deal with the quostion of drunkenness. The argument by the learned state attorney that drunkeness cannot be a defence in a criminal charge is, with duo respect, a little too bold. I agree that drunknoss Mar se cannot be a defence if there is

evidence to the effect that by reason of drink an accused's mind was so poisoned that he didnot know what he was doirg at the time he committed the offence; that is, there was total lack of mens rca. Drunkness can also be a defence to a criminal charge if it is s1on that by reason of the effects of alcohol on accuaed's mind he became insane, and was in u .state of insanity when he committed the alleged offence. Looking at the evidence in this case thor3 can be no doubt that the searchirg party in Cenoral, and the accused in particular were mentally excited from the time they started looking for the stolen cattle. They became all the more rnc•ntally agitated soon after they iad loaded themselves with liquor. That there was an agitated and confused atmosphere, is evident from the way the soarthing party behaved soon after hearing people chopping fire wood in the forest — They all of them imnodiately believed that those people were the cattle- thieves. They divided themselves into groups and advanced towards them. On seeing the deceased and h wife the accused spears the deceased to death and one, Nazeno shot deceased's wife (p.w, 1) with an arrow. Taking into account the evidence that relations between the accused and deceased had alway been cordial and the further fact that deceased's wife is aunt of the accus.d; I fail to see any valid reason for the sonaeless attack on the

deceased and his wife. The only reason for the senselosa attacks is that the liquor must have inflamed accused's mind and that of Mazengo as well as reducing their self-control — But this cannot, of course,, be a defence in a criminal charge. That some of the people in the scaohing party were under the influence of alcohol is evident from the testimony of William (P.W. 2) ho, on cross-examination, said "We were a little drunk'. Although L1O used the word "We " I think he meant that he was a little drunk for he could not have been in position to tell how drunk his friends were. ]giti (D.W. 2 ) also told the court that he was slightly drunk after the pombe. But, notwithstanding this evidence, I am satisfied that naie of the people in the sear.bhing party was so drunk as to be excused from a criminal offence. As to the conflict of evidence in the prosecution case the Republic has in this case presented two possible views cf the facts, The deceased's wife (P0W. 1) told the court that the accused speared the deceased without any provocation. Lendeme (Pir, 3) and William (P.P.2) related to the court that they believed that the accused speared the deceased because he (accused) suspected him as the thief of his cattle. These witnesses did not witness the actual attack. Natei "Isonge (P.W. 4) in his examination in chief told the court that he saw the accused attacking the deceased with

a spear and that he asked the accused why he had speared the deceased without seeing him with cattle or meat and that the accused did not reply to his question.. On being cross-examined, he admitted having gi'ren a statement to tin police only nine days after the incident. On further cross-examination he admitted that he in his statement told the police that the deceased advanced towards the acoused brandis}3ing his bill- hook because the accused was at this time beating deceased's wife (P.w. i) Inspector Mabusila (DOW. 3) related to the court that he, on 17/7/69, took Matel's statement and that Natei (P.W. 4) told him that the accused was boating deceased's wife (P. . 1) when the deceased, advanced towards the accused brandishing his bill-hook in a stptkirg nni±inr igh +1-,c -5- ,9 If the court is to accept the evidence that the accused attacked ' and killed the deceased for no reason at all then the court will have to find the accused guilty of no lesser charge than that of Murder. If on the other hand the court is to believe the evidence of Matci when cross-examined, that the accused struck the fatal wound as he was about to be attacked by the deceased with such a lethal weapon as a bill-hook then the killing cannot be murder • If the deceased, in a bellicose ma'.mor, advanced towards t1-2 accused with his bill-hook in a striking position the accused was entitled in law to

retaliate to ward off' the imminent attack. As I wave already stated, t1 prosecution case is of two different versions of what hapened just bf'ore the infliction of the fatal wound. One of the versions pointsto the offence of murder whereas the other version is more consistent with manslaughter. In YtJSITO ONGUTI JO OYOO Vs 1J.A. 134 two witnesses for the prosecution differed substantially and in his judgment LIS, J. (as be then was) made no reference to one of these witnesses whose evidence, if it were true, went to establish manslaughter rather than murder. He convicted the accused of murder. On appeal ' the Court of Appeal held - "It was incumbent upon the trial judge to deal expressly with the conflict bet' een the evidence of the crown witnesses and with the vital question whether, it was safe to convict of the graver The conviction was varied to the lesser offence of manslaughter. This decision quoted and followed an earlier decision on similar facts L CH'S1) . AOC.A.4. In this case the evidence of Matei Nsonge (P.".. 4) when cross- examined, and his statement to the police (Exhibit D 1) cannot be lightly dispensed with. The statement was given to the police only nine days after the incident. At that time the facts were certainly much more fresh in his mind than when he testified to this court on 6/8/71, over two years after the incident. Looking at the prosecution's case

in the light of what Matei lisonge told the police only 9 days after the com:ission of the crime i cannot, without doing injustice to the accused find him guilty of the serious offence of Murder - Denning, L. J. (as he then was) had this to say in BTR Vs BAT]R (1950) 2A11 E.R.48 at page 459 - ........" Incrimical cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof' within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear". This exposition of the law as to the standard of proof in criminal cases was approved in EQRNAL Vs NEUBTGJR PRODUCTS (.1956) 3 All E.R. 370 and in HQTRY_H ILANGA Vs N. MANYOKA B.A.

705. In this case the accused is charged with one of the most serious criminal of fences in our law. It is therefore necessary that for the court to find him guilty of the offence of murder the evidence must be much more ciearer that evidence required in support of say, a charge of causing grivous bodily harm or for that matter a charge of manslaughter. Although, on the evidence, there can be no doubt that it was accused's act that caused the death of the deceased and that the act was an unlawful act, it cannot, in the light of what I have already stated, be safely concluded that the accused in inflicting the blow did so with malice aforethought. Like the first assessor, I find the accused not guilty of murder but guilty of the lesser offence of Manslaughter contray to section 195 of the Penal Code. DODOMP, .. . N ./S. Iu.zA& 6th Sopt.e:ber, 19 7 1. .... .,/6 TUD