19731127 TZHC Dodoma

/ IN THE HIGH COURT OF TANZANIA A ! AT IRINGA ORIGINAL JURISDICTION AC - (DODOMA REGISTRY) CRIMINAL SESSIONS CASE N089/73 THE REPUBLIC VERSUS FRANCIS LUHALA AND THREE OTHERS Charge: Murder c/s 196 of the Penal Code. J U D G M E N T MAPIGANO AGO J. The two accused persons FRANCIS S/O MWALUHALA and JAFARI S/o SIGACHIMA, alias MWAKILIWA, hereinafter the first and the fourth accused respectively, are charged with the murder of one LAURENT S/o MWAKING'UNZA, on the 24th day of February, 1971, •atJ1aa village, within the district and region of Iringa. There isno doubt whatever, that Laurent s/o Mwaking'unza is death I accept the medical evidence that his death was due to external and internal bleeding, pain shock and concussion of the brain, as a result of the injuries he had sustained - on the head and on the rijht thigh. The dead body was traced in the shamba of Kilengemali. (PW7), on the morning of February, 25th, 1971. It was apparent that he had been assaulted and physically worsted0 The deceased was a stranger in the village where he met his death 0 He had come from another village called Tosamaganga He had pass.:d through this village on the way to another village where he attended the funeral of his mother in—law0 He had gone there with hi: brother Michael (PW4). They left the funeral place on February, 24th,atd stopped at the house of Maria d/o Sekisunda (Pw2), their :;ister in—law, in this village of Mkaa. Later the deceased left the house of PW2, most probably to go and search for local liquor. While he was away a crowd of people assembled at PW2 1 z house and then started beating PW2. She was being accused of keeping hooligans at her house and both herself and PW4 had to run away to escape further torture. According to her story, both the accused persons were present and took part in the assault. I am inclined to agree. On the same day, the deceased was caught and tied with a rope. It is not clear from the evidence whether this was before or after the incident at the house of PW2. It seems that the mob suspected that the deceased was a thief. There had been numerous thefts in the village, the last of which took iblace at the house of one Telesia on February 22. The common belief ih the village was that the culprits were outsiders. According to the first accused, the deceased was seen going around and about the house of Telesia while holding an iron rod. The crowd then caught him and tied him with a rope whereupon he confessed that he had stolen some clothes and offered to go and show them where he had hidden those clothes. The deceased was proceeding to the place where he sd he had hidden the clothes when he ran away and was then pursued. Now whether the deceased was a thief or not is difficult to determined. One witness, Daudi Mwaloli, who met the deceased in the custody of the accused persons, testified that he also heard the deceased saying that he was going to show them the place he had hidden the clothes. am therefore disposed to give the accused the benefit of doubt and proceed to determine the case on the basis that the FA deceased's arrest by the crowd was justified. Unlike the first accused, the fourth accused claimed that he was not among the people who arrested the deceased and that he was not in the village at all on that day0 However in view of pWg and PW6's evidence, I am satisfied that there is no truth whatever in his allegation that he was not present, and I reject the alibi0 1 find that he was present in the ti1lage, that he was one of the people who assaulted PW2 and PW4, and that he was also one of the people who were escortinc the deceased. According to PW6 the first accused struck thedeceased with a bill hcok, or the leg at the road. It is not abusolutely clear from his testimbny whether the blow was inflicted before or after the deceased had started to flee. The first accused's contention is that he struck when the deceased had started to flee and that he struck in order to prevent the deceased from escaping. I think the accused's account is the more likeli, I find therefore that the first accused inflicted the bill hook blow when he realised that the deceased was in the course of escaping. According to the testimony of PW6, he left the accused persons still :hasing the deceased and they had covered a distance of about one hund::ed paces from the place where the first accused hit the deceased with the bill—hook 0 The deceased ran towards the shamba of PW7 and it was in that shamba that his body was discov'ered the following morn:ng. This was a distance of about six hundred paces from the place where the 1:111—hook blow had been inflicted by the first accused. Though the first accused disputed that he gave chase for long distance, I am inclined to believe the account given by PW6 that by the tine he PW6, left the scene, both the accuseds were still pursuing the deceased. The Republic contends that the accused persons must have pur8ued the dec:eased up to the end and that they must have belaboured him to death after they hai recaptured him in the shamba of PW7. There was no direct evidence to establish that the accused assaulted the deceased in that sharuba, :owever it is clear from the medical evidence that the deceased must have been beaten'again in that sharnba.. As I tried to impress on the minds of the assessors, there should he no doubt that those who took part in that ttst beating, must have intended, at least to do grievous harm and therefore guilty of murder. As I understood the argument, the contention by the Republic is largely based on the proxiriity of the place where the dead body was found to the pl3ce where P16 left the accused still chasing the deceased. It was also based on what PW7 had allegedly told PW6 and sub—inspector A;sajile (PW9). She disputed that she had related the story to these witnesses and it is impossible to say that she is lying owing to the fact there was pOssibly problems of communication between her and the two witnesses. The assessors appeared to hold the view that the accused persons tcok part in the last beating and that there was no possibility of the deceased having been finally assaulted by different persons altogether. I respectifully do not share their views I agree that the possibility of an assault by other distinct persons is somewhat very remote but it is a possibility which this court cannot discard in the light of the evidence on record. It was also argued that even if the first accused gave up the Ghase, he is equally guilty of murder, the reason being that the one bill—hook blow which he inflicted, at the read, was sufficient in itself to cause the death; that it was so intense to imply that the first accuSed had knowledge that the blow would at 1eas4t occasion grievous harm, As regards.the fourth accused, it was argued that, he must have appreciated the nELture and quality of that blow and that though there is no direct evidence to show that he ever assaulted the deceased, his subsequent cor.duct in chasing the deceased, shows that he had a commpn purpose, in conjuction with the first accused, to assault the decensed and that therefore he is equally liable for the bill—hook blow, ......,.0/S 3 - The question which poses i wherther the bill—hook blow was, independently,faal., The medical opinion is that. .extnal bleeding alone would have caused the dealh. According to the eviden6el external bleeding comprised of : (l' bleeding from the right thigh, (2) bleeding from a stab wound on the head,, and () bleeding from two stab—wounds in±he eye rigion. . .. . It is clear that there was only one wound on the . legs.. this is the wourd on the right thigh. I have no doubt that this is the wound which the first acáused inflicted with the bill-.'hook at the road. This wôuAd was severe and it ,must have been caused by an intense blow. I am satisfied 'that the first accused intended thereby to cause grievous harm to the deceased when he struck this blow. The question then is whether this bleeding from this wound alone would have caused the death. As I have endeavoured to point out the doctor merely talked in terms of a totality of external bleeding, tbt is he appeared to say generally that the aggregate external bleeding would, independently of the internal bleeding in the head, have caused the death. He did not go further to say whether the external bleeding from the thigh wou'd would, alone have causCd the death. I am therefore not certain that the thigh wound was fatal in itself, and this is also another aspect of the case regarding which I must differ with the' opinions of the assessors. In the event, I hold that the charge of murder has not been proved beyond reasonable doubt and I must acquit both the accuseds of it. I find however that the first accused is guilty of the lesser offence of doing grievous harm and I convict him accordingly0 Pronounced in court. D,P, MAPIGANO AG, JUDGE Mwipopo First accused has no previous conviction, ElMaamry Accused has been in remand prison for over two years. He is married man and supports a large family, The circumstances that have led to this case are rather unfortunate. His entusiasm in restraining the deceased from running brought about more serious consequences which he had not intended. There was no bad blood between the accused and the deceased, Invite court to view the offence with leniency and sympathy, Sentence I have taken the above plea in consideration, I impose two years imprisonment, 27th November, 1973 D.P. MAPIGANO AG.. JUDGE