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U 4e IN THE HXU COURT OP TANZANIA AT RONDOA • ORIGINAL JURISDICTION (DODOMA REGISTRY .IHINAL SsstONS CASE No 16 OF 1977 THE RPtJI,I versus ?L&IJLIDI SIO AI1Y CHJRGE: Murder c/s.196 of the Penal Code. JUDGMNT JONATHAN, J. MAULIDI ALTI 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, Kondoa District Alli Issa aged about 25 years appears to have met a violent FS 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. he cuts to the limbs appear to have also severed major blood vessels. Having regard to such injuries I accept the doctorts opinion and find that the death was due 30 to massive loss of blood and c1 anage to the brain. There is no dispute that the Zatal injuries were /the inflicted by the accused using a panga, andLcrucial area of dispute is whether he inflicted them in self defcnce, as he claims. The circumstances may therefore be examined. It is the prosecution case that the accusc.d had no lawful excuse for the Onslaught. Such contention is based mainly on the evidence of PW.2 PASCHAL SEVERflTI, the only eye—witness to the circumstances imme diately preceding the attack, and also on the dying words 40 of the deceased as told by three other witnesses. . .......... - 37 - LI Strtin with AB0HAL'S .appae that, previously to the incident the accused and PASCI1AL,both friends, had concluded an agreement whereby the former had given the latter the frame-work of what, for wmii 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 shs..5M and the accused at the outset had advanced him shs•.10. It so happened that on the evening of March 13, 1977, a Sunday, at a river, which might more appropriately be called a water drift, 10 the accused met PASCHAIJ. The latter wasLthe company of the deceased. The accused had then asked PASCA1 if he had completed that job. He had not although he had started to work on it, and he had replied so, thereupon the accused demanded of him to teurn the cap. He happened to have it there and he duly haed it back IT to him. he accused then asked him to return shs.9 out of the money he had already paid him., allowing him to retain one shilling as payment for the work he had already done • PASCHAIS replied, however, that he id 20 not have the money then. The accused becan, insistent and there followed a quarrel, and probably a fight, be- tweon them. They were hoTeversopamted by the deceased and another person. when they all went their separate 75, PSCHA1 and the deceased going together to spend the night at an old settlement from there the villagers had been evacuated to a new settlement. It would seem that the deceased and PASCHAL had normally slept in the derelict dwellings and worked at the new settle- ment by day. he accused, on the other hand, appears 30 to have spent that night at the new site. Early in the morning of the next day PASCRAL and the deceased had set out to return to the new village. Pausing here, it would appear according to P11.5, the deceased's father, that the accused had in the mean- time been to the house of I'W.5 and asked for the deceased. He had not found him present, and he had left as if to meet him on the way. Indeed, that soon happened and at the s aine drift. PASCHL-IL, like 2W .5, said the ased was covered up in a blanket. The accused then 4 asked him what he had told him the previous night. The witnose reminded him that had been settled, but the accused's reaction was to throw down the blanket E. to approach him in readiness to strike at him 7,.7ith what he thr.-;n thought to 'bc a partially concee1ed stick but what later transpired to be a anga. I - h3 deceased in order to save him had then approached th accused from behind and held him as he told fl0HAL to run away. The witness did just that and hj did not himself See what thi ensued between the accused and the deceased. He had however sustained a out on the head and anothei on the forearm before he escaped PASOHAL has told the further story that his flight took him into the bush, apparently a considerable distance away1 He was still not safe for, one hour later the 10 accused was again on him. He still had that panga. The witness ran, desperately to save life and limb, but he iii-the adcused crnght upwith him uponstuinbling. lie beat him had three times on the head with the flat of the panga0 The accused, as if not content with that, then cut a stick and with it thoroughly beat him up. Ho also asked him to go back to the scene to see what had befallen his friend. He finally ordered him to get ou' of sight is part of his evidence would however suspects For, firstly, although he apears to 20 have made stetements to the police on three different cicasions he does not appear to have made any sugge- on that anything had happened to him after he left scene. Secondly, the doctor upon examining him only on the next day he does not appear to have o'bsc±'ved any injt:'ies on him apart from the wounds to the head and forearm. I would therefore hesitate to act on this part of his evidence, much as there would rwise be little purpose served to tell a li re that _D had thereafter been chased and beaten up again by 30 accused, TO Imow precisely the fete that befell the deceased bre to turn to what he is said to have told PWI4 and PW.5. according to PW.3, he had found h- deceased in his shainba. He was gravely wounded but 'n as able to speak. His account was that,he had been a. * by- the accused as he was intervening in • .ol between him and PASCH&L. W.4' and PW.,5 appear h:are come there a little later. According to thu himself a brother-in-law of the accused., the 40 'sed told him the accused had out him with a panga -"ount of a cap. The witnes.s went on to say that .ccused had in fact told him previously to the ent that he had quarrelled with PASOHAL over a and the latter had "wanted to beat him. Finally, - 5the deceaseds father, testified that, when he got there his son told him thc'f ate that had befallen him, thus: The accus ed.:hiven his cap to PASCHAL f or the latter to make the usual decortins on it. When t]ymot;however, P11.5CHAL had not done that job, so the accused had slashed him with a panga on the ho ad and the arm, whereupon he had had to hold the accused to restrain him fromfurther attacking PAS0HL.L. The accused had thereby seemed restrained. Suddenly, however, he had then turned against him by cutting 414 him with the panga, he accused after the incident disappeared from the village taking the panga with him and he was not found until. 10 days later when he was arrested at the house of his maternal grand father in Kondoa town. i0f1y, that is the proecution'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 that cap and the latter had attacked him until one MJE (not a witness) in- terei.ed. On the next morning he again met the Witncos and the deceased. He grQCd them but they would not reply. Instead, he says, the deceased broke the silence by asking him what he had i±itended to do the previous night. The deceased then holding his shirt,slappc-d him harl thereby sending him stagge-ring Th w followed by PASCWAL giving him a kick that felled him to the ground,. whereupon the deceased continued to 30 beat him. As he was being beaten, he says, he looked around and spotted what looked like a stick and, to defend himself, beat the deceased with it. Upon seeing him bleeding, he says, he then ran away taking the weapon with him. Initially, his intention was to re.'ort the incident to the police but he had later de- cided against that, this ostensibly out of fear. The accused soon upon being arrested appears to have made an extra-judicial statement to a justice of the peace. The statement would have been tendered by 40 the prosecution but after sustained efforts had failed to secure the appearance of the officer who had recorded the statement, the prosecution decided to do without his evidence. The officerhad however left the original statement behind,so the court referred it to him. In the event, he.has admitted making the statement volunta- rily, judicial statement make no mention of the fact that PiS0HAL was wounded, as he evidently was. The defence does not suggest that he had suffered the cut wounds at the :a: of the deceased and it may be deduced that the accused himself had been responsible for those injuries. There is a dispute as to which - either the accused or the deceased - had that panga. PW.5, whom I ioliove, is clear that it was not his son's panga but that of the accused whom he had often seen 10 hating it at is supported not only by PASCH.L but also by the dying declaration cf t1' deceased as rendered by his father. That it could not but be the property of tho accused there is the further fact that he took it with him, there being no suggestion that he took it with the object of handing it over to the authorities I would taerof ore have no hesitation in rejecting the defence that the panga had boon borne by the doceasod; the •accused himself had it 20 Were the defence true I think there would have been a strong urge for the accised to report the Thoident to the authorities, if for no other reason, in order to round any false allegation that PISCHTJ might make against him knowing, as he must have done, that the witness would undoubtedly report the incident. However, the accused did not report, clearly an indication of guilt. PJSCHAL, the only eye—witness to the incident, in his account may have exaggerated it sornøwhat , at 30 any re as ragards his claim that he was chased and beaten up by th - accused. I am however satisfied that his account is basically true. It is, in any coso, supported by the dying words of the deceased to PW.3, PW.4 and P1 11.5, The three witnesses did not gie completely identical versions, but they arc not contradictory. ho fullest account was, perhaps quito understandably, that given to his father. I believe the witnesses were told by the deceased all that they have 'given as the deceased's account of the incident. 40 In Sum, the three accounts add up to a story completely in harmony with the testimony of PSCHAL. They also toll of what happened after this witness had run away. The deceased at the times he narrat the incident to the three witnesses had undoubtedly lost a lot of bloods thereby rendering him weak, but considering that the incident occurred in day light and that the accused and PASCHALwCrO persons so intimately familiar to him P• -; 4 Accused: After the cattle got bet dceased asko4; 4 about how the cattle had got stolen. They were mJcing a claim on us. That w:s the 30urae of the quarrel between us. That was settled. Then c:.; the quarrel over the cap. It was between me and Paschal. I think at that time deceased bore a grudge against me. That is why deceased intervened between me and .Paschal. Court: The law provides but one sentence for the offence of murder. Accordingly, being satisfied, as I am, 10 that you were above the age of eighteen when you commi- tted the offence, it is hcreby directed that you shall suffer death by hanging. P.M. JONATHLY JUDGE Right of appeal explained. • P • M. J01\TJtTHAN JUDGE The assessors are thar4ced and discharged. 1-11 20 JUDGE Ir I - •-• - Li