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Dr TEE HIGH COURT -OF TANZANIA AT KO1IDO.A ,, .' ' ORIGINAL JURISD!CTION (DODOMA REGISTRY) CR:!MINAL SESS10NS CASE Noi 136 OF 1977 THE REPl:$11:C versus MAULIDI S/0 ALLY CIL4RGE: Murder c/s .·196 of the Penal Code. JUDGMENT JONATHAN, J. MAULIDI ALLI is faced with· a charge of murder in that, on or about March 14, 1977 at a place not stated in the particulars of the offence but otherwise within the Dodoma Region, he allegedly murdered one ALLI ISSA. He has denied the allegation. On March 14, 1977, at Iyoli village, Kondo.a District Alli Issa aged about 25 ye,,,:,rs appears to have met a violent et death. Going on Doctor SEMPINDU'S report of post mortem examination and on his oral evidence, the deceased appears to have sustained many grave wounds. Among these were two cut wounds to the head underneath each of which was a fracture of the skull. The other injuries included two cut wounds on the left elbow, a cut· wound on the left ankle and another on the right wrist joint. f he cuts to the limbs a}Jpear to have also severed major blood vessels. Having regard to such injuries I ac~ept the doctor's opinion and find tha.t the death was due 30 to massive loss of blood and ca~age to the brain. There is no dispute that the :fatal injuries were .Lthe inflicted by the accused using a. panga, andLcrucial area of dispute is whether he inflicted them in self defence, as he claims. • The circumstances may therefore be examined. It is the prosecution case that the accuse:-:.d h3,d no lawful excuse fort he onslaught~ Such contention is based mainly on the evidence of PW.2 PASCHAL SEVER.INI, the only eye-witness to the circumstances imme- diately preceding the attack, and also on the dyii."'1.g words 40 of the deceased .as told by three other witnesses • .... ... ·····•. ··•'•·· ./ - _ 37 _ 'Starting with· PASCHAL' S -a.po~, ~ .appea.1'16 that, previously to the inc:ident the ac·cused and PASCIIAL,both friEmds, had concluded an agreement whereby the former kid given the le..tter the frame-work of what, for wmyi; of a better term, I would call a "swahili cap" so that he might put decorations to it. The agreed price for the job w.·.s sbs- .}t, and the accused at the outset had advanced him sbs .10. It so happened that on the evening of March 13, 1977, a Sunday, at a river, which might more appropriately be called a wator drift, 10 <i~1 the accused met PASCHAL. The l~tter wasLthe company. of the deceased. The accused had then asked PASCiiAL if he had completed that job. He had not although he hac sta.rted to work on it, and he had replied so, whereupon the accused demanded of him to teturn the cap. He hal)iJened to have it there and he duly hard.~d j_t back :.i: to him. he accused then asked him to return shs.9 out of the money he had already paid him., allowing him to r8tain one shilling as payment f0r the work he h2.d already done. PASCHAL·replied, however, that he flid' 20 not have the money then. Tho accused becanr,_ insistent and there foll.owed a quarrel, and probably a fight, bo- tweon them. They ,;•rere ho 1:rever soparnted by the deceased 1' . and another pe_rson. , hen the·y all went their separ2;~e .-.-.:.JS,. PASCHAL and the deceased going together to spend the night at an old settlement from where the villagers had been evacuated to a new settlement. It would seE1m that the deceased and PASCHAL had normally slept in the derelict dwellings and worked at the no·w settle- 1 . ment by day. he accused, on the other hand, appears 30 to have spent that night at tho new site. jarly in the morning of the next day PASCHAL a.nd the deceased had set out to return to the new village. Pausing here, it would appear according to PW .5, tho deceased' s father, that the accused had in the moa...'1.- t ime beon to the house of PW.5 and asked for the deceased. He had not found him present, and he bad left as if to meet him on the way. Indeed, that soon ho.p/ened and at the same drift. PASOH1ill 1 like PW .5, said the . .;::i.sed was covered up in a bl;:,_.nlrnt. The accused then 4J asked him what he had told him the previous night. Tho vitneSE:< r0minded him th2,,t had been settled, but th 3 accused's reaction w2.s to throw down the blanket an.a. to approach him in readiness to strike at him Fith Hhat he thon thought to be- a part ialJy c·oncetl-~::d stick but what l:::~ter transpired to be c; pc:mga. ?~13 deceased in order to save hiin had then approached ·ch._, accused from behind and heid him as he told :..'1:JCHAL to ru.n awrw. The Witness did just that and fj_:J did. not himself see what then ~nsued between the accused and the deceased. He had however sustained a cut on tho head and another on the forearm before he 0scaped. PASCHAL has told the further story that his flie;ht took him into the bush, apparently a considerable distance away. He was still not safe for, one hour l::;;,ter the 10 accused was again on him. Be still had that panga. 1ne witness ran desperately to save life and limb, but :-ie ;-ri~-t:le accused cat>ght up· with him u.ponLstumbling. He beat ~1im hard three t :im.es on the he.?:.d i-tith the flat of the pangao The accused, as if not content Fith that, then cut a stick and with it thoroughly beat him up~ He also asked him to go back to the scene to se0 what had befallen his friend. He finally ordered him to get ou.,:; of sight o Tb.is part of his evidence would howovcr r,-, suspect o For, firstly, although he ap:r.:ears to 20 1.:2.va r;1ad.e stetements to the police on three different G·:'.!casions he does not appear to have made any sugge- ,.: c::.on th£4.t anything had hap 1)ened to him after he left -~:1,:: scene., Secondly, the doctor upon examining him on"Ly on the next day he does not appear to have observed any inj'u.::··iss on him apart from the wounds to the head a.nc. forearm. I would therefore hesitate to act on ·chis part of his evidence, much as there would ·<,,:=;rwise be little purpose served to tell a lie that ~::; had thereafter been chased and beaten up again by 30 accused o r20 knoi:•r precisely the fc1te that befell the deceased h~•.ve to turn to what he is said to havo told : ,,3 r PW o 4 and PW .5. .L1ecording to PW .3, he had found -::~:"'l deceased in his sharnba. He w2..s gravely wounded but .,,., ·:vas able to speali.:. His account was. that,he had been c. ,,_,.·_•0 by· the accused as he was intervening in a· · T.::-ol between him and PASCHAL. PW .4. and Fv[.5 appe2,r ,.~::.Ye come there a little later._. .According to tho : .~.:.c;r r himself a brother-in-law of the accused, the 40 ·:~.1,,:ec~ told h:im the accused had cut him with a panga ~,._ount of a cap. The witnes.s went on i;o say that :.ccused h2sd in f?,ct told him previously to the :·-.:~.; :::ient that he hail quarrelled wit_h PASCHAL ove::: a L; .. :.,, .J.nd the latter had Hwantea:n to beat him. Finally, -- . - ...i!: ~ -~. ·:· ·-·· -- - ~ ·P\<1,.5,the deceased 1s_ father, tes~if~ed that, when he got there his son told him th0. fco:te; thnt had befallen· him, thus: The accused.'. ~c:1f-;i":iven his cap to PASCHAL for the latter to make the· usual decorations on it. When tb.e.y. ..met·? ·1iovrever, PASCHAL had not done that job, so the accused had slashed him with a panga on tho head and the arm, whereupon he had had to hold the accused to r~strain him from· further attacking PJ.SCHAL. The accused had thoroby seemed restrainod. Suddenly, however, he had then turned against him by cutting ,11 him with the panga. The accused after the incident disappeared from the village taking the pang2, 1·1ith him and he was not found until. 10 days later uhen he was arrested at the house of his maternal grand father in Kondoa tovm. ll!ri$fly, that is the prosecution's case. The accused in his evidence has admitted killing the de- ceased. He says, however, that he had had to do so in self defence. On March 13, 1977, he says, he had 20 quarrelled with PASCHAL over t·hat cap and the latter had attacked him until one N.ii.JID (not a witness) in- terv['~_od. On the next morning he again met the t-ritnccs and the deceased. He grG.ctcd. them but they would not reply. Instead, he says, the deceased broke the silence by asking him what he had intended to do the previous night. The deceased then holding his shirt,slapped him h2..r l thereby sending him staggerin-8... qihe:-1, w;2.$ .r---, followed by PASCHAL giving him a kick that felled him to the ground,. whoreupon the deceased continued to 30 beat him. As he was being beaten, he says, he looked arouJ1d and spotted what looked like a stick and, to defend himself, beat tho doceascd with it. Upon soe L-rig him bleeding, he says, he then ran away taking tho ,;-reapon with him. Initially, his intention ws.s to re)ort the incident to the police but he had later de- cided against that, this ostensibly out of fe2r. The accused soon upon being arrested appears to have made an extra-judicial st2tement to a justice of the peace. The statement would have been tendered by 40 the prosecution but after sustained efforts had failed to socuro the appearance of the officer who had recorded the statement, the prosecution decided to do vrithout his evidence. The officerhad however left the original statement behind,so the court referred it to hbn. In the event, he-has admitted making the statement volunta- rily, judici:11 ste.,tement make no mention of the fact the.t <:.· PASCHAL was ·wounded, o.s ho evidently was. The dofcmce docs not suggest that he had suffered the cut wounds 2t tho >:-.:__ :::_..3 of the deceased o.nd it may be deduced that tho accnscd himself had been rosponsiblo for those injuries. There is a dispute 8,S to which - either the accused or the deceased - had that 1:.Mg.J.. PW .5, whom I 'believe, is cle2.r that it w~'.s 21ot his son's p."'cnga but that of the accused whom hCJ had often seen 10 haro.ng it. 1\ii').t is supported not only by P.ASCH!i.L but also by the dying decl8.raticm nf tre d0ceased 2,s rendered by his fe,thor. That it could not but bo tho property of tho accused, there is the further fact thz:t ho took it w:Lth him, theru being no su:_<,:;cestion th2.,t he took it wi_th tho object of handing it ovor to the authorities. I would t~ieroforo have no hesit2.tion in rojccting the de::::·ence that the panga had been borne by tho deceased; the accused himself had it~ 20 Wore the defence true I think there would have been n strong urge· for the accitsed to report the .-'.:-:i.cidont to tho authorities, if for no other rco,son, in order to~Tc ~OU.'!ld .my false allegntion tht,t PASCIB.JJ mi6 ht make ag2.inst him .knowing, as ho must hcwo done, that the witness would undoubtedly report the incidents Howovor, the 2ccusod did not report, cleG.rly an indico,tion of guilt.- PASCHAL, the only eye-witness to the incident, in his account may have exagger!:lted it somewhat, nt 30 any r2te as raga.rds his claim th2t he w2,s chased e...nd b0aten up by th·; accused. I am hm,rovcr satisfied that his account is basical~y true. It is;· in any c,,se, supported by tho dying words of tho decoF2sod to PW.3 r PW.4 and P'\'1.5. The three witnesses did not gi~o completely identical versions, but they aro not .I. contradictory. J. be fullest c~ccount was, perhaps quito undorstnndably, that e,iven to h:.s fathor. I belicvo the witncssos wer0 told by the d.ecoascd all that they have given 2...s the doces.sod's account of the incident. 40 In sum, the three accounts ad.cl up to a story completely in harmony wj_th tho testimony of pi·J.SCHAL. They also toll of what happened after this witness h.'1,d run away. The doceasod at the times he 1B,TI'atJl the incident to the three witnossos had undoubtedly lost a lot of blood, thereby rendering him 1rroak, but considGring that the inc idcnt occurred in day light and that tho accused and PASCHALwero persons so intinL',tely famili-?.r to him 43 i, Accused: After the cettl-e got 1-oet d.eceased. ask0d~.·mg. 2.bout how thrJ cattle had got stolen. They were m;u{ing a claim on us. That w::,s the souroe of the quarrel between us. Th.:'lt was settled.· Thon c::;..;- ': tho quarrel ovor the cap. It wa.s betwoon me and. Paschal. I think at that time deceased bore a grudge against me. That is why deceased intervened between mo and .Paschal. Court: The law provides but one sentence for the offence of murder. Accordingly, being satisfied, as I am, 10 tm.t you were above the age of eighteen when you coiilllti- ttod tho offence, it is h8reby directed that you shall . , suffor deHth by hanging. · l41l \,/\I\., . P .M. JONLTHJ~l'T JUDGE Right of appeal explained. f)¾LV' (,. · P .M. JONATHAN JUDGE The assessors are tharJrnd and discharged. (.{j \. '-"- l \ P .l'.i. JONii TH.AN -. 20 JUDGE