19771011 TZHC Dodoma 1

- 32 -. HC

IN THE HIGH COURT OF TANZANIA

AT SINGIDA

ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE. NO, 39 OF 1977

REP UBLI C

VERSUS NALIGYA s/o DAUDI Charge: M U R D E R c/s 196 of the Penal Code.

J U D G M E N T CHIPETA J. The accused in this case, Naligyn s/o Daudi stands ch;jr ;ad with the offence of murder c/s 196 of th Penal Coda, The Republic has all god th it on or about 27th day of July, 1975, in Sinqida Region, the accused murdered one Makuan s/o Kiula. The accused denied the chirqe. To prove the charge, the prosecution adduced the following evidence; on the morning of 27th July, 1975 7 the deceased left his villece to go and look for foodstuffs in some oth .r area from wh re h intended to return that very day. That same morning, the wife of the decoas.d, one Nkawe d/o Nkana (P,W.l), her mother, and her sister-in-law, one Minazi d/o Mpinga (P,W.3) left for Mininrja vill.iqe to go and rHcnd a funeral. On their way back from Mininga the thr...e women stopped at Ulukuta villaqe where they drank local liquor worth =/50 or shs. 1/=. According to P,W.l, while the three woman were at Ulukuta village, the accused called P.W.l and asked h•r if hr husband was at home. Wh..n P.W,l told him that her husband had gon. to look for foOdstuffs, the accused asked her when he would return, to which she replied th it he w. .uld come beck on the s mo day. Later the thrhe wbmdn 1 if t for thir village On arrival at their village, they stopped at the house of one Samwel Pyuza(P.W 0 2) where thre was local liquor. At mw. J s housethe thre women were eith r given or they bought for

thomse lves some local liquor. P,W.l left for her house shortly after wards as she wanted to go home early b:cai.iro her husband 'eS allay. On arrival at her house, which is about a quarter of mile awry from P.W.2 's house, she started making preparations to cook food. While she was thus busy, the accused a'p, ared. 'It was then at about ab-st. On arrival there the accused who ciccordinq to P.W.1 and as abmitta :1 by the accused, was an old paramour of P,w,l, asked if P.wo 1 '5 husband had come hack, and P.i.1 told him thAt ha had not yet come beck. Thereupon, the accused prsuiaded P,W,1 to have sexual irftercoursa with him. The two ... hen orit rod P.W,l's bedroom and had sexual interc.;ursa. . ( 4 33 - through When they were with the sexual act he two made to out of the bed-room0 It would app ar th t as the w.re trying to go out the accused (if not P 0 W.1 as well) was still fastning his clothes0 As fate would h ye it, the deceasd knocL:d on L:h outside door and asked p.VJ1 as to who w s inside the house with h :r0 It was the accused who answered and said, "I am h•re"0 When the deceased asked whet the accusud was doing th ire, the accused s:id that h wes looking for fire to light his tobacco0 By then, so it would appear, the deceasd wes in the siLting-room and th accused and P O W, 1 were in the door-way 5twcen the sitting-room and the bed-room in which they had ju;t

had. sexual mt rcourse0 When the d coesed askd the accused why :h: accused should say that h,4 was looking for fir when he was fstenin ; his clothes, he cu•ed said: "Today w have met", and then added tht he was q ing to kill the deceased0 Thereupon the accused grabbed the lqs of the dec.;csed and fell'd him to the floor within the sitting-rooru. }k then took a knobberry which was hanqing on the wall within th.. sitting rcm and struck the deco asad with it twice on h.. h ail and chin0 When P 0 W.1 trid to intervene and plead d ;i:h Lh. accused not to assault the deceased, the ac:cued threaten•-d to lzill her as well The deceased apparently di-d on the spot. P.W. 1 then raised an alarm twice0 Meanwhile, tb. accused held the de:eas-d '5 legs and dragged the deceased's prostrate bodyout of the house0 As no one was answ.:ring hr alarm, P.W.l rushed to the house of P.W,2 and reported th.1t her husband was d.;ad. Many people, including a ton-cell leadr, one Flatayo Ndalu (p0W.4) wont t the scene where they found the bod of the deceased sprawled on the ground outside the hous:. Th. L..::easod had sevral arid sev. re hod injuries. Th accused, however, was not at the scene. That s ime eve ing, P.W.l told the people presnt that it was th accused who had killed the deceased, and that accused had attacked the deceased after the latter had found h .r :d the accused having sexual

intercourse P.W.4 then sent a report to Police, end police arrived at the scene the following morning and examined the scen A police ins. ctor (P.W.6) found smears of blood insid.-; th sitting-room and ncr tb re wes lyinq a knobkerry wich had b..n bro.e:n into two0 He found no oth. r weapon of any description in the hcus. P.W.6 also notd signs showing that the dead body of the c1.ee:asd had been dragged from the sitting-room to where he fiund it lying outside the house The broken knobkerry was produced in court and w as identified by P.W.l as belonging to the deceased, and to he the one the accused us'.:d in assaulting the deceased. 00/ 3 On le.rning th ..t it was the accus d who killd the deceasd P.W.6 went to Npande village where he arrested tht accused. The dead body of the (ICC ased was taken to hoepital where an auopsy was carried out0 The autopsy report produced before the Court under section 275 of the Criminal Proc Uure Code reveals th -it the deceased sustaind extensive had injuris which includd a large lacerated wound of an indefinite size on thu left frontal ara involving fracture of th1 left frontal bone, fracture of both left upper and lower jaws, fracture of th. right pariatal bone with laceration of meninges and brain substance, and fracture of the right temporal bone at the base of th.. skull. In the opinion of the doctor who conducted the autopsy the cause

of d-ath of th.: dce .isod was violence causing brain injury 0 The accused was taken b.fore a doctor who o; rdnd him. The examination reveald that he accused was aged 30 y ars, was mentally and physically normal, and had no marks f viol..nca on his p. rsen. In his defence on o.ith, the a:cuscd snie Lhat on the day in question he saw P.W.1 at Ulukuta village, but he lid not talk to her. At about 6.00 p.m. he want to P,,lts house foz' the express purpose of having sxual intercourse with P.W.l who was his long time paramour. Laying out th contradictions in his evidence, this is the gist of what the accused siid happened on •a :rivnl at P,W,l's house: he persuaded P,W,l to have sexual int..rcourse with him, and the two then wont into P.W.l 's bed-rDom where the two h d sexual int..rccurse. When they were through, they made to go out of the bed-room, 'ust then the deceased ant .:red th sitting-room and asked as to who was with P O W O 1 in the roum. The accus d answered and said he ;as in th re. Asked what he ws doing, the accused said thit ho was hying sexual intercaurse with the deceased's wife. Thereupon the deceasd seized h accused by the collar of his shirt, pushed the door shut and pickd up a knobkerry, ap;arently iñtëndinq to strike the accused with it. The aecused, however seized the knobkerry and snatched it away from the deceased. The deceased, still holding th; accus.d

by th collar of his shirt, then picked up a piece of 1Lirw0oc1 from the fire-place in the siti:ing-room, But b.:foC1. , th deceased could strike the accuaed with the piece of wood, the accused hit the deceased once on the left side of the head with the knobkerry, and the deceased fell down on his back uncounscicus. The accused went on to say tht after that he pulled the decasod outside the house so th t the deceas d could hove some fresh air to resuscitate him. While all this eas happening, P,W,l had gone out and was raising an elcrra, and so ccld not see wh t WaS hapening inside the house. After pulling the dece sd outside, th accused noticed that the deceas :d WaS dead, md so he became afraid and scan away. The a cused a dod that he had no means of g :ttinq out of the house b fore he hit th deceased because docr was Closed and the house had no windows. He admitted having threatened to kill the deceased, but added that he said so after the deceased himself hid threatened to kill him. In his final submission, Mr. Mwailungi, leariad defence couns.l, invited the court to accept the accusedts story as the truth of whet happened and so hold that P.W.l never saw what happened between the. accused and the d .:ceased, from which fact the court should hold that the Cccu;eJt acid in self-defence and so is not guilty of any off :flCC, In the alternative, l.arncd counsel for the defence

submitted that if - 35 - the court should hold that th defence of s.elf-dcfnce is not available to the accu ed, th.in it should hold that the accused killed the dac asecI in the course of a fight and so find him guilty of the lesser offence of manslaughter and not murder0 The 1 arned state attorney, on his part, invited the court to accept P 0 W0 1 as a truthful witness; that h.;r account of what happened is the whole truth; and so should reject the accus-"dls version of the story as a bundle of lies 0 In his submission, P0t1 was straightforward and consistent in her story, and hr demeanour was beynd reproach0 He has therefore urged the court to find as a fact th it it was the accused who throatend to kill the deceased and did in fact kill the deceased; that at no time can the accused he said to h ve been in imminent danger of a serious attack from th5 deceased, th t the injuries were very extensiee, and th:t the a.:cused pulled th5 deceas ;d outside th house probably in -a biCt to dispose of the body0 If these facts are found establishd, the 1 arned state attorney submitted the irresistib1 inference is that the accused acted with malice aforethought and so is guilty of nurder 0 In the alternative, lamed state attorney submitt.:d that if the court accepts the story (f the accused as th: truth, never- tbeess the defence of self-defence is not available to him becuse: (a) the

force he used was not raasonUl5.. hut excessive, and (b) he cannot h said to have b an under mc :1 apprehension about his lie0 After my summing up to the two gentlemen ass.ssors,, both gentlemen assessors accepted P 0 W 0 1's OVideflC as a true account of wh..t hajpned0 They therefore found as a fact th t the accused h:ld the deceased's legs, felled him to th.. ground and kill d him, and th:it at no time did he attempt to run away even whn he h.d the opportunity to do so aft-er fdlling the deceased0 Each of th :m accordingly found the accus-d guilty of murder0 On the evidence, it is beyond dispute that a p rson by the name of Makuza iüula is dad; thet he oied a violent death; and th it it is the accused who kill U him0 The question 1-ft for consideration, therefore, is wh ith r the killing in the circumstances amounted to murder, manslaueh:cr, or no offence at all.0 As I told the gentlemen asss-ssors, it is 5:stl.d law that in criminal cases the prcs-cution has to prove its casa beyond eoasonabl-:1 doubt, and that an accus.d rsen dc.s not assume the burden of proving his innocence., All that an a-::cusd p rson has to do to be entitled to on acquittal is to give an explanation that raises reasonable doubt in the mind of the ccurt. - On the basis of this principle, an accus.d a ;'scn ought to be convicted on the strength of th prosacutin caoo and nut on the w• akn,ss of his

defence0 Indeed, the mere fact that an accused person has t .ld lies does not desolvo the tn al court from ascertaining from the whole cvid:nce whether the offence with which h-- was charged has ba;n provd buycnd reascn-able doubt0 (Longinus Komba v0 Republic, (1973) LRT.n0 39) In the instant case, the prosecutionts case U-I; :ncls almost entirely on the evidence of PW0l0 The first questlon I have to consider, therefore, is wheth r P.W 0 1 is a witness of truth0 I have hard and observed this withess as sh5 eave evidence, and I have taken into consider:ition the admitted fact thet she - 36 - is a woman of weak morl fibre. But hr moral turpitude notwithstanding, this wi.tness impressed me as an hcnest witnes Her st..ry was straightforward, and she graphically described th€- nasty events of that day even when th - facts were not in her favour0; She calmly answered every question with a demeanour I could nut fault. I therefore fully agree with the two gentlemen assessors that P,W,l is a witness of truth. The next question I have to consider is whether she correctly described what happened th.:t fateful evening. Again I have no doubt at all in my mind that her account of the incident is actually or substantially what happened that evening. I am fortified in view by the fact that shLrtly after the incident she gave the same story to the ten-c:ll loader (P.W,4), and her evidence that

she saw the accuoud hit the dacoas. d at 1 tht twice, and that one of those blows landed on the deceased s chin, is supported by the post-mortem examination report0 According to this report, the decsed had fracture of the l.ft frontal bone, right, pariatal hone, of he skull, and fracture of both the left lower and upper jaws. Theso findings clearlysuport the evidence of P.W,1 and ridicule the accused's stry th± he hit the deceased only once, Indeed, P,W,l's evidence cfurthcr findd support in the evidence of the a. cuscd himself w a at on - stage admitted having thr.atcnacl to kill the deceased, havinq held the deceased's legs and fell d him to the floor, and h.:tving pulled theded body out of the house. All these matters were deposed to by P.VJ,l. The story of the accused th:'t the deco as. l picked t.. up a piece of firewood from th: fire-place is contradicted by the evidence of P,W,6 (which I accept) th t anart fr:m the broken knobkerry, there was no weapon of any description in that house. On a full consideration of the evidence as a whole, thereforL, I am in no doubt at all th .t the st.ry of th accused Was a ridiculous afterthought which I completely r. j..ct. I am satisfied that th accused was the person who thre.at-..ned to kill th. deceased; th it he then grabbed the daas d by th l.gs and felled him to the ground, and th.roaftor picked U]) the knobkcrry from th wall and

savagely pounded the deceased's head with it, and then dragged the clace sd's dead body out of the hcuse. I am also satisfied th t the U ceased was at no time armed, and th it he never caus-d any dameac to the vrscn of the wcused, Further, I am satisfied and fini . as a fact that the accused threatened to attack P,W,l if sh.: int..rvened. The question now is wheth .r on thoec facts the defence of self-defence is available to the accused. To start with, it should be pointed out th t whre a defence of S..lf-defefl is rais.d, the onus remains throughout on the prosecution to prore that the accused is guilty of murder, The onus is never on the accuoed to establish that defence, In u:h r words, where a plea of self-defence is raised, it is for the prosocution to nerj;itive0 I will now proceed to discuss the principl.s of law regarding the defence of s-if-defence, AS I told the gentlemen assessors, it is beyond dispute th t a man who is attacked is entitl:d to deFnd himself; but in doing so he must only do th .t which is re Isc,nably necessary in ah; circumstanc :s, and what is re as' nably necessary will djond on the seriousness of the attack or :Ii crisis with which h. is faced. Before a pl a of self-defence con succeed, th .refore, it must he shown th t the defence was necessary, that h lid all he could to avoid it, and th t it w S necess ry t.. r-rot.:ct himslf from such serious

bodily h .rm as would gie a reasQnalDble - 37- apprehension th t his lie was in immediate dnqer, and that the force used was reasonable in the circumstances, (S:i Archihold, 38th Edition, para 2499). But if the moment of clangor is over, or if there has ben no etac]c at all and no danger requiring immediate reaction then the use of force as a defence cannot be justified, and may amount to iure aggression0 In such a case the plea of self-defence will fail0 Of course, as was stated by the Privy Council in Palmer V. R. 55 Cr, App. R. 223, at page 242: "If th.re has ben on attack so thct fen'a is reasonably necessary, it will be recognized that a p rson dOfending himself cannot weigh to a nicety the exact m :eSU3te of his defensive action". This dictum was quoted with approval by the East African Court of Appeal in Mhabi Mtunqi v, R., digested in 9 E.A.L.J. page 270. However, where the force used cls any WOfli beyond that w;ich was reasonable in the light of the circumstances as they reasonably appeared to the acused, then the plea of self- defence must still fail. In the instant case, th accused was not at all under attack, sand there w ts no reasonable appreh..:ns ion of .Lmme(iiate danger to his life or p:rson for thi deceased was ec: armed, and apart from asking questions, there w as no immedi. tie cause for apprehension at any stage. Besides, the accusd would appear to have

taken no av iding action. He could have gone out of the house at the time P,W,l did so. He did not lu that. He could have gene out after felling the deceas ci before h; hit him. Again h: did not do so. In those circumstances I em fully satisfied th at the prosecution has cemlete ly ncjetivec1 the p1 a of self-defence. The question that now presents itself is this: whtt are the consequnces when a pie of self-defence to a charge of murder fails, either b-:cause there was no attack end no immediate danger to justify the use of force, or where the use of force wont clearly beyond that which was roasonebli in the light of the circumstances as they reasonably apL)ear.id to the accused? In oth .r words, should a man whose p1 ia cf self-defence to a charge of murder fails n- cessanily b: found guilty of murder? In my viw, in such a CiSC the accused may b. iuncl guilty of murder or m:inslausihter depending up ath peculiar facts on which the plea of self defence is unsuccssfully raised. I am fortifi:d in this view ba the p drsuasive English de- cision in the case of R. v, Mclnnos (1971) 3 all E,R.295, in which the Court of Appeal followd the decision of th Privy Counil in Palmer's case (supro). In Mclnnes case, Lh Court stated, at page 301., "If self-defence fails for the reason stated, it affords the accused no protection at all. But it is important to stress th ± the facts on which the

p1 :a of self- defence is unsuccessfully sought to be based may never- theless serve the eccusad in good stead. They may, for example, go to show th at he may have acted unde:c provocation or th t, although acting unlawfully, he may have lacked the intent to kill or cause serious bodily harm, and in tht may render Lhe prop r verdict one of manslaugh:er." The final qu.:st.ori for decision, h.erefere, is tihcther• the urosecution in this case has pr u 'red m:alicu :afcretiioucjht beyond re -ascnahle deubt, or whethcr the facts en which the - 38 - plea of self-defence his failed the accused ma" he said to have lacked the intnt to kill or cause grievous hrm end so render the proper finding to be mansliughter 0 Undoubtedly, the aCt':d in a most impious manner. He insdently stood his ground when ho should have run away or askd to b. par'J.ned, and then went on to viciously attack he whom he had so seriously offended0 But that said, one must consider the sequence of events0 The accused cud not cja to the deceased's house armed, and at the tim.. they were cxCh:anjiflcJ words, ha still was not armed0 At the time ho firft :ftack ci .he deceased, he did so with his hare rms0 Ho caught the deceas .d' s leqs and fel1d him to the ground like one would in a wrestling contest0 From P.W 0 1's evidence, un gets the impression th 1t the deceased took it h:ands d.wn. But there is all the

possibility th t the dt:ceas•d put up smo resistance, albeit ineffect vely, nd th reupon the accused snatched the kriobk.rry frm the wall ani used it to inflict th:. fetal injuries to the h-ad of the deceased0 In those circumstances I am not persu ided th : the inevitable inference should b th .t the accused .... ee.1 with malice aforethought so as to make the killing a 1iurd.:r e In my view, it is safe t.1 hold th;at the prosecution h.as not proved malice aforethought beyond all re sunahle doubt0 On these grounds, and with greet resp :ct to di.. gentlemen assessors, I must, albeit with reluctance, .'if:er with their opinions0 I hold th..t the killing in this case amem:ed not to murdr, but to manslaughter0 I accordingly find the accuued not guilty of the offence of ourder with which he was ch rried, but I find him guilty of the 1 .2sser offence of menslau- ghtr c/s 195 of the Penal Code end I duly convict him forth- with of that offence0 B. D. CHIPETA

JUDGE Mr0 Mchora: State Attorney for the Republic Mr. Iezi: Holding brief for Mr0 Mwailunq for purI.;os..:s of the judgment0 Mr0 Mbezi: As eccusd has b;en convicted of mansleuhcer, I pray for a 5 minute adjournment So tht his counsel can eppar. Court: Application granted B. D. CHIPETA 11/10/ 77 JUDGE Later::. As before Mr. Mwailunq a for the accused0 Record: (Mr0 Mchora) My Lord, accu; ci has no record0 But I submit the court should consider the fact that deCo OS td nev.r contributed to his own death. Th accused hed b en warned by P.Z.l that deceased weuld return home 0 It w s th . accused who threatened the dc-ceased with death0 The barbaric attack 1 an.iS cred.::nce to the fact that -.-jr, cuse.I h is brttal tendencies0 His dnial of the iumber of blows he inflicted shows th .t he is far from -39- being repentant. It is only by a speck of fortune th :,t thO case has ended as it his done 0T'is is on.. of the very bad cases of manslauqht:r. For the hen•fit of the accused, the Republic prays for a ditarent sentence. Mr0 Mwailunqa: My Lord we pray for leniency on the following grounds: accused h ,s b en in custody for the last two years: h.; is mnrri:d to two wives, He has a total of five children. He also has three dependents. He is the hra.'ad-minner. Furth.r, th fact that a:cused could not remerdaer how many blows he inflict•.'d on the deceased is just iefct of memory and not

lack of repentance 0 Besides, in this part of Tanzania, peopl-: k .:p weapons in their houses. AcU 'ed must have thought that there coelci h :ve been w -epons in' the house. I pray fur a leiiient sentence The a cusod is age! 32 y irs He, tb refore, fells within the group of labour supply. I th refore pray for leniency. Accused: I have nothing else to ido San b:nce: That the a cused is a first offend-'r .nd that he has h-an in remand custody for the last two years aaama::t rs weighing in favour of leniency. However, the fact that the accused killed a p rscn whom he himself had wronged, th,t the only sin that th,: riecaas,d committed was th it he merriLd a women whom th nccusd loved 'and th fact thtit th attack on the deceased was, v.ry brutal, certainly o utwih anything tht can be said in rovolir o:c the accused. Indeed, but for the structures of the law, the accus:d might have faced very grave consequences for this case de,ngerc;usly bordered on murder. In the circumstances, I S di no reason to t':'eot the accused with leniency and md': d, I do not think any r-eisonahle tribunal w 0111 d0 For these reasons I s ntence th eccus:ai to li:te imprisonm-.nt. B. D. CHIPETA 11/10/77 JUDGE Right of Appeal expleined. B.D. CHIPETA 11/10/77 JUDGE Gentlemen Assessors th inked and discharged. B.D. CIJIPETA 11/10/77 JUDGE