19700311 TZHC Mbeya

IM THE HIGH CCU}?T OF TMTZAHIA r7 kL-- -.- -v---- iLb.ii .' C V OHICI[' SUJJICTIOi (D0DO1IA FLEGIETRY) 41(4 CRITIIEAL EIO.TG CAGE NO 148 OF 1971 Tii TTDT Tc'( IJJI Lj!j: UiiLLLL Versus ( 1 ) 8oIOiIoNI S/C HEEA (2) IAl:ISI s/o SOLOIIOFI MURDER — c/s 196 of the Penal Coded 071A'ri. H .11 .A 11; IETIII.A Ag, Judge Mr. Kilindu State Attorney for the Republic Mr. Dhebar - Counsel for the AOcused. Accused (nane )SOLOMOfI s/o HEAL:A AND LJIISI S/O GOlOMOITI are present pnder cus -tody and represented by counsel. Interpreter Hr. JiI, Phorogo English into Kiswahiii and vice versa. LTr dUD G ii]3E. The two accused who are father and son stand charged with the murder of one Angopile Sol6moni, at Londoni vlllage. Mbozi District on 13th March, 1971. The deceased was the son of the accused Solomoni and the brother of the second accused LsJis1 The irosecution has led evidence to show that the deceased died when he was dealt a blow with great force on his head such that the skull bone was shattared and the brain was damaged. All the witnesses who saw the body told the court that brain matter was oozing out of the deceased's head woimd. This fact has not been disputed and I hold it to have been established. There is overwhelming • evidence that the two accused and the deceased drank beer at the home of Andendekisye on the afternoon immediately before the death of the deceased While they drank, the deceased took offence when his father the 1 st accused responded to the name of Mwangwina. The two then had an argument in the course of which the deceased left the )lace. All this evidence has been consistently repeated by witnesses -and i hold it to have been proved. The second accused on his part admitted hitting the dedeased with the handle of the billhook at the spot where the deceased was found with a shattered skull bone. From this admission I hold that the deceased met his death at the hands of the 2nd accused who may have dealt the deceased more blows than has been admitted by him. According to Thomas and Tupilike who are respectively the brothcr and widow of the deceased, there were two fights between Lakisi and the deceased and that the first one was stopped when these two witnesses went to separate them. I hold this to have been proved since I have no reason to doubt Thdmas or Tuplike. The only point exercising mr mind, is the role of the 1 st accused who has been reported by Tupilike to have called the deceased to come out after which he chased him to the spot where the 2nd accused. has admitted to have struck him the fatal blow or blows While believing Tupilike, I cannot say with any certainty that the 1 st ac accused dealt the deceased any blow. Icarnot say either that ho counseled, aided or abetted the 2nd a;.cused in his act of Fratricide. There is no evidence on which to conclude that he was there when the fatal blor was struck. The case of the 1st accused is somewhat similar to that of AlAHE J12 A C A . . . 74 whose headnote reads thus;- •G •. j 2 Bothappollanto' woro convicted of the murder of the deceased. The second appellant struck the deceased on the head with a hoe, inflicting an injury from Th1cJ,l he subsequently died. The first appellant was in a partially drinikcn condition at the time and he chased the deceased out of the 1OUSC and caught hold of him. The conviction of the first appellant was basod on an alleged coianon intention rendering him ressonsihie in law for the fatal blow struck by the second appellant ........... ...... :EIeld; (1) In deciding the ctue iLion of common intent it is right to coisader the d:unken condition of the accusod as affecting his capacit i to sea or appreciate what is hapsening. (2) The facts of this case were insufficient to justify with legal certainty an infeionco that the first appellant aided cud ase tted the soc ond appellant in killing the cleccasod. Conviction of 1 st appellant sot aside, In the cuarect case Poioiaoni had just come from drinking at 'kadondekispe Accepting as I do that ho called the deceased out of his house and chased him into the uha:iba, I have found no evidence to show hiui to have hej.d any coiaon intenion with IJ:isi to kill the doceascd. In act his contention that he vent to separate Lakisi and the deceased annot be endircly unreasonable in vlec of the sact that his Cell hauaa vIas cut and that ho ursrit to no ort his injury and the fight between his sons to the cell-leader Lafoto. Althouqh he is a resorted to have admitted chasing the deceased for his disrespectful conduct towards hii:, Solomo:ai cannot be said to have shared this intent with Lakisi who was not the deceased's father, It cana.ot be said that he was in a position to foresee that - 1-akiei w uld shatter the deceased's skull and cause his death. In another case therein the father and brother of the deceased were convicted for the joint murder of the deceased the death blow having been struck by the brotier, the East African Court of Appeal held on the question of common intent thus;- The only b sic, then on which the conviction of iMbogo (the deceased's father) could he sustained is that he faile to dissociate nimeelf from what Lderekaba(the deceased's brother) was doing and on the contrary tried to prevent interference. mu thigh it would be carrylng the doclrine of common intention much too far to held that it applies here, when liTboge had called for help and in the course of a brief drasluen brawl incidentally rendered 1\Tdoreivaba some assistance. There is nothing, however, to show that Abogo had any reason to anticipate the violence the violence with which Ldere}uaha struck the deceased and it will be remembered that the assault by iTfderel:aba was not a sustained beating but two blows struck quickly, Te are not sammsiied that. the evicLenco shows Isbogo to have been ti] by uf any o:rcrice.(ITD th DGvh 20", O) n . In the current case, Solomoni ar no tine tcied to prove-nt interierence in light between his sons. Tupilike simply saw him chasing the deceased into his shamba. that took place there can only be gathered from what the accused have told the court • Solononi has consis -ten - blv maintained that it was Lakisi who killed the do eased and Lakisi on hispart has been admitting that lie dealt his brother the death blows. i- hero was no evidence led by the prosocution to show that the two accused were simply seeking to oxculpat Soloiooi'i so that only one of them should be punished. Unlike the gentle-Lien assessors who sat with me, I cannot hold Solomoni responsible for the death of his son. My reasons for disagreeing with them shouls be quite clear to them by now. The deceased was killed in circumstances not entirely dissimilar to those in the case of R. Vs JOHITIAAJeHA, 196E ,HCO.D. 49 which is reported thus: - •.. . . . •... '' j V I Deceased was allegedly insulted by the younger brother of one of the four accused, whereupon he seized the boy and threw hin doun. ihe bc.yts brother sot upon the deco,sod, and the ti.o of then fell struggling o the groun. he other three accused using s -Gricks to beac hin. 1hey bit hiLl unconscious in the I1OUSO where he was t:coated briefly by his wife and some friends. He was taken next day to a dispensary for treatrlent but diod four d:;ys later fran brain injuries sustained in tiio struggle. Hold; :oth bcs;inge wore in the course of tile same transaction. The matter tool: a very serious turn when accused persons chased the deceased nd beat him a second tine, but I do not tninh that incident could be lsoiaGecl iron nie frm bea;ing non cieaGIl occurs as a result of a fight as i-1-1 this case, unless there are very exceptional circumstances, no::sons who cause death are guilty of manslaughter and not of murder. In.. case the offence disclosed is 011 the borderline and I will ivc. the bencfi of tho doubt to the accused persons and find then guilty of Lanslaughtor. There is cvid.nco that the two accusd 3olom oni and La.:isi had had an arguoment at different tines lTitll the doecased before they came to his house and chased him into his :hba, The dcoased aimself invited trouble when ho went out of his house after being challenged to fight. hon ho was chased by the two accused it was the continuation of the earlier arguor:ionts ho had had with thou. The blow which killed him was not dealt with a lethal weapon. Only the handle of a bill hoo:.; was applied albeit with considerable force. Bearing in mind that the two accused and the deceased had boon to drink that afternoon, it is difficult to say that ac.cusod lakisi dealt the deceased the blow with intent to kill him or do him grievous harm. I would hold this to be a borderline case, taking into account the vie exprcss in Vs JY T1 uiich VOU closely resembles tht i970 H1J 07 LLiI:isi dd not USC C lethal oson, Althcuh there is evidence that the deceased Iskisi fought 0:10 bo:'ore, there is nothing upon which tO base the conclusion that he was seeking revenge this tine They are rc. orted to have forgotten the incident and rcsum living in harmony. The nonuso of a deadly women by en accused who had just cone from drink was dealt with in I1TTJU 1 ) (1TJ U (3 Theeifl it ITCO Sole case has of course to be considered on its on 'facts, and rhibe ro s j h Bc"on ldor i 112 L tcC cje C. C.,P.207 that the inference of a murderous intention flows more readily in a case where a deadly weapon is used, and we would add, still more readily there in addition a • motive has bean established, tho mere fact of tIc use of • deadly weapon may not in every case be cOnclusive I have carefully considered Lakisits case and I am left with a feeling that he couid not necessarily be guilty of murder in view of the scarcity of evidence to show that he struck his brother the death blow intending to kill him or do him grievous harm. I find that his quarrel with the deceased was trivial and would have not been fatal had they been so bar at the tine. They were quarreling over the name IIwangwina. After all, what is in a name? I am again constrained to disagree with the ,entbonon assessors that malice aforethought has boon proved be y ond reasonable doubt. From the foregoing, my findings would be as follows, that oiomoni has not been shown to ha\re either participated in the killing' of the deceased nor has he been shoai to have commonly intended with Lakisi to hill him. I would therefore find him not guilt and acquit him 0 As far as -5 akisi is concerned his admission to have killed his brother is an act of contrition which this court accepts as ?roof of the case against hiri. At the same tine, however, this court has net received sufficient ovidenq to show that he killed ..e./q. —4 S iv - 4 his brother intending to do so. This was another of those frequent drunken brawls which have resulted in so many fatalties • I would therefore find Lakii not guilty of murder as charged but guilty of the unintentional Killing of his biiother. Accordingly, I convict him of the offence of Manslaughter, c/ 195 of the Penal Code. I / MOIi Judgement read and delivered in open court at iJbeya this 11th day of March, 1970. KIiA / The accused is a first offender. MITIG-ATIOTh The accused repeats what he has done. The killing arose out of accused ts insult to the father of the deceased. It was through anger and drunk that the offence occurred. Accused is 22, married with 2 children. He has been in custody for over one year. hay the court be lenient. ALL0CUTUS 9 Let the court consider my case. r3J jTT As I said, uhis is a borderline case But for so e subtle legal- considerations the accused could as well be conricted of murder. He is quite lucky to escape that conviction. I would, therefore, not find cause or reason to be lenient to him inspite of what his advocate has said. I sentence the accused to nine (9) years imprisonment. I_HI A I IL AG-. JUDG-EO Appeal rights explained. v H ATIILThA