19720208 TZHC Mbeya

TN TI-IF HIGH COUfl.T OF TANZLNI 41C srn AT MBEYA ORIGINAL JUNISDICTION (DODOIVJA RFGI'TRY) Criminal Sessions Case No. 114 of 1972 The Republic \7 versus Charge: Purder c/s 196 of the Penal Code. JUDGEMENT NAVASJ. The accus ud, AflyosisSyc s/c .wakyando stands charged with murder c/s 196 of the Penal Code. It is the .c..public 's case that the accused on or about the 29th day of January 1972 murderod one, Angunwilo s/o Wwan1clwa. The accused peadod not guilty to the charge. From the medical report (enhit C), the doctor's evidence and the testimony of the deceased's wife, (P.Y.4), thoe can be no doubt thatAnguimile 1-ims died. Equally there can be no doubt ) indeed it is not disputed, that Angumwile died a violet death. What is in ainent is the. allegation by the Republic that it is the accused who with malice aforethought, assaulted an killed the deceased. In support of its case the prosecution produced four main witnesses. These are Wilson (p.11.1 ) and Elen d/o Sibonike (P.W.4), thm deceased's who, Jackson (F.1.T .2), Dr. Nicholson (P.i.3). Wilson Masmopeta (P, 101.1 ) gave eviclonce to the effect that on the night of 29/1 /72 he was at TTbe3nGooperative Union's godown where he works as a night watchman, According to his evidence Mbeya Cooperative Unionts godown is near another godown owned by Southern Road Ways. The witness furthár related to the court that he knows the accused very well and that he was employed as a night watchman by Southern Roadways. On 29/1 /72 Wilson reoorted- duty at the Union's godown at 6 p.m. According to his evidence when he arrived on duty he found, the accused who was working only 10 acos across the road, already on duty at the Roadways godown. .#tfrT -2 Wilson went on and testified that on that night ho was on duty at the Union' s godown with his fellow watclaoan called Yackson. The court was also told that the accused crossed to whore Wilson and Yackson wore working and that the three of then were conversing near a fire when the deceased reported at about 8 p.n. for duty. The deceased was also euployed by South Road ways as a night watchman and, on the material night, he was work- ing with the accused According to Wilson's tosticiany soon after the deceased's arrival the accused asked hire hy are you late? The deceased is reorted to have replied "It does not matter oven if I an late as we are both at work. The accused is said to have rotortod in anger: You are late and you answor ra rudely You are drunk and. you cane and annoy mo. 11 According to Wilson he intervened and told the accused not to bother about the deceaseds lateness as the deceased appeared dri.uk and advicod him not to cuarrol with the deceased. The accused did not -bake heed of Wilsons advice and, according to Wilson's evidence, the accused pulled a piece of firewood from the fire and struck'the deceased on his head, and ahain on his shoulder with it. The deceased fell down and the accused ran away. The deceased is reported to have remained on the ground soni- conscious for about 10 minutes before he woke up and continued with his work. ilson testiiied riai the C.LOC cased worked as usual up to next morning when he went back hone. The witness further told the court that the accused did not cone back that night but that he was on duty the following night i.e. the night of 30/1/72. Jilson finally told thecurt that the deoescd dic1c1io .thrn- up for; work... ona30//72, He J.atmr cario ;u. know that he had been adnittod in hospital and that he used to visit him in hospital. Ho -bold the court that the accused assaulted the deceased because the deceased reported late that night, Yackson (F,W,2) who is also employed as a night watchman by Mbeya Cooperative Union also told the court that he was on duty at the Union's godown at the mat crial night. He related to the court that. while Wilson (F W 1 ) himself, and the accuse d were conversing near a fire the:deceaseci arrived, at about 8 p.m. Like Wilson this witness testiId that seen after the arrival of the deceased the accused asked him why he was late and the deceased is repor-bed to have replied: "You shoad not ask me why I see late - Both of us are on duty' Then the accused retorted - 'Now when am I going to take my super? The deceased is said to have replied: "You know yourself. According to Yackson the accused replied - 'You are coning from drinking pomber - , and thereupon iic1:ed up a piece of fire- wood from the fire and twice assaulted the deceased with it. First on his shoulder and again on his head, The deceased fell down. Jackson testified that he ran away when he saw the deceased falling down as he was worried that the accused had killed the deco as ad. S5 6 6 /3 0 • -3- According to his evidence the accused held the piece of fire-wood with both hands when he landed the blow on the deceased's head. Yackson further told tile court that he cane back from whore he had rim to after five minutes and found the deceased had stood up and that the deceased continued with his work. Ho, according to his oviConco, did not see the accused again that night. The court also heard evidence from Bleni d/o Sibonike, (P.J.4), wife of the deceased. She related to the court that on 29/1/72 the deceased left his house at about 4 p.m. to a por.be shop. where he went to drink. He returned home at about 6 u.n. and re:ained at hone un to 8 u.n. when he proceeded to his place of work. According to her evidence next morning 30/1/72 she went to draw water and that on her return he found her husband had arrived from his work and was in bed. It was now about 9 a.n. She asked the deceased what was the matter with him and, according to her testinany the deceased replied by pointing at his head. She told the court that the deceased was unable to go to work that evening and that she decided to send him to hospital on 31/1/72 where he was treated as an out - patient. The deceased's condition became worse and he returned him, to hospital on 4/2/72 and was admitted. Eleni further related to the court that the deceased started sicaking with difficulty on 3/3/72 and that on this day he told her that if he died it was Anyosisye Idrakayando who had assaulted him on his head and on his shoulder. After this story by the deceased the witness reported to the police. The doctor (P.W.3) related to the court that he first saw and examined the deceased on 3/2/72 as an in - patient and found him to be suffering from a bruise on his left eye and also diagnosed bleeding in the sub..:.arachnoid space. Ho told the court that the deceased was seriously ill at the time and assessed the harm as dangerous harm. Later that day the doctor did a lumbar puncture on the deceased and found the soinal fluid to be blood-stained, Tbi s confirmed his earlier diagnosis of sub-aracimoid haer.orrhago. On 11/2/72 the deceased died and four hours later the doctor performed a post - mortem examination, His findings were that the deceased had suffered from sub--dural haenorrhage and that tIere was a doubtiful fracture of his right ephenoid - (exbit C). The deceased also had a brusie on his left eye. w The doctor as of the opinion that the deceased died from sub- dural haoioorrhago as a result of the head injury. In his opinion the head injury could have been caused by a blunt instrument or even a fist or a fall. He told the court that the snou of force applied on the deceased's head must have been consid.erable. In reply to a quest- ion by the court the docter said that it needed a fairly heavy stick to cause the injuries hc observed on the deceased. The accused gave his dafence on oath. He told the court that the deceased was working as a night watchman in the sane company as himself, . 0 •G0 • • / 4•••• "-4-" According to his defence ho, on tho naterial day, reported for duty at 5 P.ri. and that tho deceased reported at 8 or 8.30 p.oi. He related to the court that the deceased cane and found hir seated near a fire at his place of work i.e at the Southern Rose. ways.godown. According to the accused he exchanged greetings with the deceased and that the deceased watched the pé rnisos of the conrany's office and that he rooiaincd at the conpany's garage. :ext uorning 30/1/72, according to his defence, he saw the dece- ased. and that he did not conplain of any sickness. The accused further told the court that on the evening of 30/1 /72 the deceased did not report for duty as it was his day - off. He told the court that the deceased reported for duty on 31/1/72 and worked as a day watchnan. On 1 /2/72, according to the accused, he riot the deceased at their office at about 8 a.n • as he was taking a sick-sheet. He testified to the court that the deceased corplained that he was feeling out of sorts but that he did not k hin what was actually wrong with hin. The accused further told the court that on 5/2/72 he visited the deceased in hospital and found him unable to talk. He finally related to the court that he was surprised when on 9/2/72 the police arrested him saying that he ha assaulted the deceased. J After my sunning up to the gentleman assessors the whole evidence and the law involved they were both of the unanimous Opi1.fl.: . that the accused unlawfully assaulted the deceased on the fateful night. They we-re equally unanimous that it was the un- lawful assault of the deceased by the accused that caused the death of the deceased. As to the vital question whether the accused assaulted the deceased with the intention to kill him or at least to cause him grievous harm both assessors wore of the view that there was no evidence to suggest that the accused had forr.aai an intention to kill the deceased or to cause him grievous harm at the tine- he inflicted the fatal blow. The specific reason they give for th is opinion is that the ovid once showed that there was no enemity at all between the accused and the deceased. They therefore found the accused not guilty of murder but uilty of manslaughter.. Murder, to put it briefly, is in law an unlawful act from which death results, done with intent to kill or to cause grievous harm. Ii. the present case I on satisfied, as are the assessors, that the accused was the auther of the unlawful attacks on the decea- sed from which the deceased died. In support of this conclusion we have the evidence of two witno- sscs Wilson and Jackson (P.u.1 and P 0 W.2) who were present and who saw the accused assaulting and felling the deceased to the ground. There is nothing to suggest that Wilson and Jackson had reason to tell lies against the accused. Indeed the accused has himself said that he saw no reason why the two witnesses should have decided to cook up a story against him. That the two witnesses gave a true account of what happened on the material night is also reflected by Augustin., the witnessed summoned by the court, who related to the court diat as he was going to his work on the morning- of 30/1/72 he not Jackson (P.W.2) who related to kin that tho accused had assaulted the deceased the previous night. This witness also denied the accuscdts def e- floe that ho and the deceased handed their duties to him on the morning of 30/1/72. According to Augustn. it was only the de- ceased who handed duties to him on the morning of 30/1 /72 and that he r.IiC, not see the accused that morning. . . . . •/5 . . -- 5-- The dying declaration of the deceased to his wife P.W.4'.) also goes a long way to confirn the toetinony of Wilson and Jackson that they saw the accused assaulting the deceased on the head and on the s].aoulder. I have no valid reason to differ fran the doctor's opinion that it was the wound he saw on the deceased head that caused the extra-clural haenorrhago that caused the death of the deceased, And having accepted the evidence of Wilson and that of Jackson; I have no doubt at all that the wounji: the doctor found on the accused's head was caused by the accused when he assaulted the deceased with a piece of fire-wood. I en therefore, as I have already said, in full agreenent with the gentleman assessors finding that the accused unlawfully assaulted the decoased and that the deceased died from those unlawful assa- ults. What is however more difficult to decide is whether the ne- cessary intent has been proved. The judges o'f fact took 4 minutes to decide this difficult auestion. They cane out with the answer that the accused did not have the necessary malice - aforethought when he inflicted the fatal blows. Intent is rarely proved by direct evidence. It is nomally inferred from the circumstances viowod as a whole. The nature ol: the weapon used and the manner in which the blew is inflicted are faôtors to be considered; so is the motive if any mOtive is known. In the eresont case it is difficult to assess the natUre of the weapon with any anount of certainty as the alleged piece of fire- wood was not produced in court as exbit. Wilson told the court that the piece of fire-wood was as long as his arm, lie could not estimate how thick the piece of fire-wood was because, as he said, the piece of fire--wood was flat. Jackson on the other hand thought that the .ioce of fire-wood was about two feet long and estimated its thickness to be about that of his arm. The doctor said that a stick to have caused the iriury ho saw on the deceased's head the stick must have been fai.ly.he;r; ant that considerable force must have been used. Jackson's evidence is to the effect that the accusod held the piece of firo-wood with both hands when he landel the sane on deceased's head. As to motive, there is no known motive. There is no suggestion, let alone evidence, of any previous quarrel or grievance, however trivial. Indeed, on the contrary, relations between the deceased and the accused were very good and have been so for 4 years before the incident. The accusca in his defence argued that he was • -cry friendly with both the deceased and his wife (F.W.4), and that it was the deceased who was instrtuental for his (accused) being employed by the Southern Roadways as a watchman. In this the deceased' s wife bears him out. The learned defence counsel argued that the accused would be the last ijerson to wish the death of the deceased, a person who saved him from unemployment. There is, I agree, no motive known in this killing; indeed as the evidence shows, the accused and the deceased wore, at the tine of the incident, in the L of relations. The prosecution is not however required to proved no - ivo - But, as it has repoatcd, been pronounced by this court and the Court of Appeal a complete absence of motive in p charge of murder is relevant to the question of intent. In this case it could he argued., and reasonably so, that the accused must hove intended to kill the deceased when he wildly attacked him with the piece of firo-wood. . /6. . . - But it could also be argued in favour of the accused that if he had the intention of ±illing the deceased he could have surprised hin while they were alone at their place of work and not in the presence of Wilson and Jackson. No legal provocation has boon established. The two gontlenon assessors are nenbors of the sane comnunity as the accused. They have, after 4 ninutes of deliberation told the court that it is difficult to say that the accused intended to kill the deceased when he inflicted the blow which nroved fatal. It is ny view that their opinion oribodies all that is nature, sensible and wise. On the evidence it is I agree oxtror.oly difficult to say with that sj:aount of certainty required in a crininal case that the accused intended to kill the deceased when he inflicted the fatal blows. As it was held in fi VS JOfEPiIS/O PYJdUSHENGOJ46J 87 "Whore it is doubtiful on the evidence that the accusid intended to kill or cause grievous harie to the deceased he should he giion the benefit of the doubt and found guilty. not of 1---urdor 1 but of nanslaughtor". Like the unanirous opinion of the gentleioan assessors I have doubt regarding the question of nalice aforothough and I have no alternative but to resolve the doubt in favour of the accused. I find the accused not guilty of nurdor and I acquit hin of this chargo but jon the evidence I find hia. guilty of nans lauhtor c/s 195 of the Penal Code, and I accordingly convict hin of this offence. I rt N.' S. JUDCE. Pros - Nothing knoun, In Mitigation - Mr. Dhebar rj is narriod with 9 children Ho is 51 years of ago. He has boon in cueoay for 14- years. I ask for your leniency, Accused: I have nothing to achi, ntence - This is a very had case of rianslaughtor. The worse I have seen. The accused deserves severe punishment, I sentence the accused to life inprisonment R. 0, A. to E. A. C. A. explained, 4 / 41 . NBEA N. /S . A 8/2/72 JThDGE Mwiopo for the Republic Dhcbar for the accused. /F}IS.