19731123 TZHC Dodoma

• • /2 p IN THE HIGH • COURT OF TANZANIA AT SINGIDA 4 0 ORIGINAL JURISDICTION (DODOMA REGISTRY) - 4 CRIMINAL SESIONS CASE Nu, 145/72 • THE REPUBLIC .VERSUS NLEWA 5/0 MDANU -- MWALUKO s/a MADINDA • Charge: Murder contrary tosection 196 of the Penal Code. ; •.! S. • J U D G M E N T - • 4 S S • MNZAVAS J. The acci.iscd peisons, Mlwwa Mdamu and Mwaluko Madinda are • jointly charged with murder c/s 196 of the Penal Code. • • It is alleged that the two accused persons on or about the28th day of Octobér'1970 at Manyoni district in Singida region • jointly murdered one, Mkwaya s/o Msigwa. 'Both accused persons p1eded not guiltj to the charge. The following facts -are not at alith dispute: Sometime in October 1970 thirty one head of cattle which were in the custody of • Mwaluko (2nd accused) were stolen. Nineteen of these cattle belonged. • to Mlwa Mdamu (1st accused)0 The rest belonged toone, Ngunda Mkomochi*(PW70 and another person stie, MtumboMgunda (Pw1), son of th Mkonochi (PW7), and Mlwa (1st accused) started looking for the cattle following hoof—marks. • They spotted the cattle as theywere being hustled away by three pep1e. They raised an alarm and with the help of villagers who responded arrested the three thieves and recovered all the cattle but one. It is also not in dispute that the three 'thieves arrested were Bijile s/o Mpal,, Juma s/o Malusu (step—son of the deceased), and one 7 Nolo. The thieved were later re—arrested by the police and remanded in Ikasi primary court from where they were taken to Manyoni police station where they were eventually charged with cattle theft: and according to the testimony of Mtumbo, convicted and imprisoned. On returning home Mlewa (lstaccused) related to Mwaluko (2ND Accused) how he recovered the cattle and mentioned to Him the people arrested as the thieves. He also told Mwaluko that Juma (step—son of the deceased) hadthold him that the cattle were given to him by the deceased. At this juncture Mlewa, Mwaluko and Mgunda Mkonochi (PW7) decided to arrest the deceased as they thought that he had also participated in the theft of their cattle, ' }nowing that the deceased was t the time • in his concubine's home—stead, one 7 Masunzu Mchiwa (Pw13), they proceeded • to Masunzu's house and arrested him. They-decided to take the deceased to their ward executive officer. On their was' to the ward executive officer they digressed and went to Miewa's (1st house, Latr • on the same day, Mlewa, accompanied with Mwaluko (2nd accused) and Mgunda Mkomochi (Pw7) reported to their cell—leader that the deceased * had absconded as they were bringing him to him0 • - %From that day the deceased was not to be seen anywhere in the village. Over a month later the 'deceased's wife (PW12) reported the disappearance of her, husband to.,the police. After exhaustive * 'investigations a well filled with soil in Mlewa's' shamba was excavated Human remains were found, Also fourd in the webb-were clothes whioh .• - 8 5 3 were identified as similar to the oncs the deceased was wearing on the day he disappeared, It is the Republic!s argument that the human remains were those of the deceased and that it was Miewa and Mwaluko who killed him 0 • The question of identity of the remains of the body as those of the deceased does not 1 in my view, present any difficulty 0 • Mkwaya was last seen alive and well on the da' he was arrested by the accuseds at Masunzu's house 0 He has never been seen since and it is not suggested e had any reason to disappear and leave his family 0 On the day he disappeared he was wearing a red and green blanket, black nylon sandles and a belt which had white and black dots0 Similar clothes were found with the human remains in the welL, The blanket, the belt and the sandles wexidentified by Masunzu (PW13) as similar to the ones the deceased was wearing on the day he was arrested by the accuseds, The deceaseds wife (PW12) also identified the blanket, the belt and the sandles as very similar to the ones the deceased was wearing when he left to asinzus house0 She told the court that the deceased had recently bought them in a market in her presence after they had sold their paddy, Silo (PW3) the cell—leader, also related to the court that the blanket, the sandles and the belt were identical to the ones the deceased wa wearing on the day he saw him as he was being escotted by the accuseds to the ward executive officer. M:'ialuko (2nd accused) also told the court that the belt the blanket and the sandles produced in court as exhibits were the same clothes the deceased was wearing on the material day And, what is more both accused persons admit that the deceased has died0 There was,I agree with the Republics argument, that there is ample evidence entitling this court to come to the conclusion that Mkwaya Msigwa has died and that the human remains fourd in a well in Miewa's shamba were those of Mkwaya Msigwa The next question, which admittedly is a more difficultione is - what was the cause of the deceaseds death? Did he die from natural causes or did he die from violence? The doctor who examined the remains of the deceasec1s body over a month after his death says in his report (exhibit G) that it was impossible to say what was the cause of death Re lying on this report Mr. Mangat for the first accused argued that as the cause of death was unknown the deceased could have died from natural causes. It was his argument that the most that the first accused can be f::rd1?gui1ty of is mere simple assault of the deceased. In support of the charge the prosecution related to the cou- rt what happened to the deceased from the time he was arrested by the accused persons at Masunzus homestead to the time Mlewa (1st accused) reported to their ward executive officer that the deceased had run away 0 Ma;unzu (PT13) told the court how the two accused arrested the deceased in her house 0 According to her evidence, soon after the accuseds and Mgunda Mkozochi had arrived at her house, Mkomochi left to call the cell-Jeader (PW3) leaving the two accuseds there 0 While Mkomochi was away the two accuseds arrested and tied the deceased. The witness told the court that Mlewa held the deceased while Mwaluko tied his arms with a rope. She also related to the court that Mlewa(lstaccu- soi) aultc the deceased with a st. 4 k he was carrying. According to her evidence while 1'aewa was assaulting the deceased the cell—leader arrived and warned him not to assault the deceased. One, Ndahani Chenjele, a passer—byis also said to have warned 4lewa not to assault the deceased 0 The witness concluded her.testimony by saying that soon after the arrival of the cell—leader the deceased was taken away 0 The cell—leader (Pw3) testified to the court how one day in October 1970 Mgunda Mkomochi (Pw7) called on him and asked him to accompany him to Masunzus house where there was a thief. According C 00 0 0 0 to his evidence as he was going to Masunzu's home—stead he met Miewa, Mwaluko and one Ndahani who had arrested Mkwaya Msigwa (the deceased) whose arms were tied with a rope0 The witness told the court that he told Miewa that he (the cell—leader) was going to send the deceased to the ward executive officer but that Miewa said that he was going to send the deceased to the ward executive officer himself and from there to Manyoni where he had sent other cattle thieves He allpwed Niewa and his company to send the deceased to the ward executive officer.: He further related to the court that next day one.. Gangayo was sent by Miewa to his house and told him that the deceased had escaped0 The witness also related to the court that he accompanied the police to Mlewas shamlia where the remains of the deceased's body were found in a well. Mgunda Mkomochi (Pw ) testified to the court that soon after they had arrived at Masunzu's home—stead Miewa sent him to call the local cell—leader0 He came to Masunzus house accompanied with the cell—leader and found the two accuseds and the deceased outside Nasunzu's house0 The witness related to the court that Miewa (1st accused) suggested that they should send the deceased to the ward executive officer0 The cell—leader agreed with the suggestion and allowed them to send the deceased to the ward executive officer0 While on their way to the ward executive officer they decided to pass at Miewa's house for food before sending the deceased to the ward executive officer0 They arrived at Mlewa's place and entered one of his houses0 According to his tetimony while they were ih the house Miewa continued interroga- ting the deceased and started beating him with a club three times on his back and abdomen. The witness further told the court that Mwaluko (2nd accused) tied Mkwayas testicles with a rope which rope he pulled and tied round Mkwaya's neck 0 According to his evidence at this juncture Niewa told him (the witness) to go and take food at one of his (Miewa's) wives houses and leave them alone as they were sending Mkwaya to the ward executive officer.0 He left leaving Mkwaya lying on the ground with his arms and testicles tied0 It was his evidence that he warned Mlewa not to beat Mkwaya as they were sending hi:c. to the ;ad executive officer and Mlewa is reported to have replied: "Let us teach him as he has refused to admit stealing our cattle." The witness further testified that as he was taking food Mlewa and Mwaluko came to him and said that Mkwaya had escaped0 He told the court that he was surprised to hear that Mkwaya had escaped as he had left him tied with ropes 0 He all the same adviced the two accuseds that they should report his escape to the ward executive officer0 They proceeded to the ward executive officer where Miewa reported that Mkwaya had escaped0 Detective Surgent Stafford (Pwll) related to the court how he investigated the case0 After receiving a complaint from Mariamu (PW12) regarding the disappearance of her husband, the deceased, he proceeded to Masunzu's home—stead and interrogated Masunzu who told m, that the deceased was arrested by the two accuseds who said that they were sending him to the ward executive officer alleging that he had stolen their cattle He contacted the cell—leader (Pw3) who led him to Miewa's house. According to his evidence at M1.ewa's shamba they saw draging marks on the ground which led them to a newly dug well but which well had been filled with soiL. He became suspicious and started digging out the soil. There they found human remains and clothes. The clothes, a blanket, a pair of black nylon sandles and a belt were produced as exhibits C, Dnand E 9 respectively0 The remains of human body were on the application by the defence also produced and marked as defence exhibit A. The witness also told the court that on 7/12/70 he again visited Miewa's house looking for Niewa who had earlier been reported by his wife (Pw6) to have gone on safari, and arrested him0 According to his testimony he searched Miewa's house and found a club which he took into his custody. The club was produced as exhibit and marked as exhibit F.. 000 0 • 0 0 6 0 0 0 Nyarnlimka (PW6) wife of Miewn (1st accused) decided, (aftor she had been explained that she was not a compellable witness), to give evidence.. She related to the court how one day as she was coming from her shamba she saw her husband and Mwaluko (2nd accused) entering one of their houses accompanied with Mkwaya (the deceased) whose arms were tied with a rope. According to her testimony she left them inside the house and went to fetch some poles for building their house6 She told the court that she did not bother to ask why Mkwaya had his arms tied0 On further cross-examination she said that Mwaluko (2nd accused) told her that Mkwaya had been tied with ropes because he had stolen cattle. Philip Masinde (Pw14), a justice of the peace, gave evidence and produced Mlewa's extra-judicial statement - exhibit H. Having been explained their rights in defence Miewa (1st accused) elected to give unsworn statement. Mwaluko (2nd accused) gave evidence on oath 0 Mlewa told the court how he looked for his stolen cattle and how he managed to arrest one. Juma, step-son of the deceased, and tied him and his friends with ropes. According to his statemerft he interrogated Juma who told him that he was given the cattle by his father, the deceased. He related what Jurna had told him to Mwaluko (2nd accused) and that he, liwaluko and Mkomochi (Pw7) decided to go and arrest the deceased at Nasunzu's house. He told the court that they arrested the deceased as he was attempting to run away and that Mwaluko tied deceased's arms with a rope. As they were sending the deceased to their ward executive officer, the cell-leader (PW3) and other villagers are reported to have said that they were tired of cattle thieves and told him and his friends (Mwaluko and Mkomochi) to send the deceased to the ward executive officer themselves.. He told the court that on their way to the ward executive officer they decided to go to his house. At his house he left the decea- sed with Nwaluko (2nd accused) seated at a verandah and went to get some money from one of his other houses. Mcoringuto hisldéfee when he retumied to where he had left Mwaluko and the deceased, Mwaluko reported to him that the deceased had run away. He told Mwaluko that they she id follow foot-prints.. As they could not trace foot- prints they decided to report deceased's escape to their ward executive officer.p They did so and., according to his defence, the executive offi,cet promised to look for the deceased. They then returned to their respective homes. Nwaluko (2nd accused) told the court how the cattle were stolen. What Mlewa told him about the arrest of the thieves and the re- covery of the cattle and the decision to arrest the deceased. Accordilg to his evidence as he and Miewa were at Masun 7. u's home-stead the deceased emerged from the house. Mlewa raised his mu 5 le-gun and pointed it at the deceased ordering him to remain in•sjde the house.. Miewa is also reported to have ordered the deceased to throw down a knife he was carry- ing and that the deceased complied Then according to his defence, Miewa ordered him to fetch a rope and tie deceased's hands and he complied. Soon after the cell-leader arrived and that on M1ws suggestion to the cell-leader that the deceased should be sent to the ward executive officer the cell-leader agreed but warned Miewa not to assaultthe deceased. The accused told the court that as they were sending the deceased to the ward executive officer Miewa assaulted the deceased on his beck with a club, It was hjsdefenee that while at Miewa's house Miewa assaulted the deceased on his chest with a club felling him down. As he was still lying on the ground Miewa is said to have assaulted him again on his bak. with the same club.. He further told the court that at this juncture he intervened and asked Miewa not to beat. thedeceased. Mlewa is said to have responded by pointing the club at him. (2nd accused) and ordered him to keep quiet. The accused also told the court that Nkomochi (Pw7) enco- uraged Miewa saying that the deceased was a thief and as such he deserved abeating. He further told the court that he got worried as•the deceased's s condition had become critical and decided to leave the room s but that Miewa pointed his gun at him and ordered him to remain in the room. The accused told the court that .he touchi.desed body id found him already deacL. On telling Miewa that - 4.. . Mkwaya had died fr11ewaiistsad to have told him to sit down. Mwiluko further related to the court that after Mkwaya had died Mlewa told Mkomo- chi (PW7) that he was going to kill him (Mwaluko) as he was afraid that he was going to report to authorities that he (Miewa) had killed a perso*. Mkomochl asked him (Mwaluko) whether he was going to report what Niewa had done and that he replied that he was not going to report to anyone what had happened.. He further said in his defence that as he was afraid that Miewa would kill him if he reported what he had done he decided not to report that Miewa had killed the deceased. According to his defence after the deceased had died Miewa sent his wives to collect poles so that he could conveniently dispose the bod' and keep the secret to himself. In his defence he said that Miewa and Mkomochi draged the dead—body and hid it in .ne of Miewa's houses. After this he and Mkomochi escotted Mlewa to the ward executive officer where he repprted that Mkwaya had run away. A few days later he met Miewa who told him that, he had buried the de&ased's body in a well in his shamba. Mwaluo's copy of cautioned statement was produced and marked as "defence exhibit B". After summing up to the gentlemen assessor he told the court that in his view Mlewa (1st accused)was the "chairman" of the killing. He found Mkomochi (PW7) to be a truthful witness and found Miewa guilty of murder as charged. As for Mwaluko (2nd accused) he felt that he participated in the assault of the deceased but that he did so under the orders of his master, Niewa. He therefore fouhd him not guilty of the offence charged. I'th.. Kinabo for the Republic argued that Mkoiochi's evidence left no doubt that Miewa grievously assaulted the deceased with the club (exhibit F) and that Mwaluko helped in the assault by first tying deceased's arms with a rope while at Masunzu 1 s house and later by tying deceased's testicle's at Miewa's home—stead. The learned state attorney vigorously argued that on the evidence Mkomochi (Pw7) cannot be treated.as an accoplice so as to require corrobotation of his testimony. In support of this argument the court was referred to the decision in WANJI KANYORO KAMAU VS R (1965.) 501. It was also the Republic's argument that even if Mkomochi is found to be an accomplice there was evidence corroborating his testimony that it was Miewa and Mwaluko's assaults that caused the death of the deceased. The finding of deceased's body in Miewa's shamba and the fai- lure of Mwaluko to report Miewa to authorities were said to be corrobo- rative of Mkomochi's testimony that it were the two accuseds who killed the deceased. In rebuttal Mr.. Mangat argued that even if it is to be accepted that his client S, Miewa, assaulted the deceased using the club there was no medical evidence in support of the Republic's case that it was the result of those assaults that caused the death of the deceased. It was argued that the most that Miewa can be said to have committed is common assault on the deceased. Mr. Mbezi for Mwaluko argued that Mlewa's extra—judicial statemeht (exhibit 14) which Is to the effect that it was Mwaluko who killed the deceased by tying his private parts and neck should not be accepted as evidence against Mwaluko as the statement did not amount to a confession by the maker Miewa. In support his submissioh the court was referred to the decisions in MILINGWA s/o MWINJE and another va R (1953) EACA 255 and ANYANGU and others (1968) E,A 239. It 'was also with great force argued that Mkomochi (Pw7) and accomplice and that as such his evidence that he saw Mwaluko tying deceased's testicles needed scrutiny before it is accepted against Mwaluko, . . The learned defence counsel argued that as Mkomochi did not immediately report what he said he saw to authoritiesi his evidence in court was unworth of credit— And that if the court found him to be unreliable no amount of corroboration would mkc his evidence acceptable against Mwaluko. 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He only believed, though reluctantly, the accused's reported that Mkwaya had run away 0 It was when remains of Mkwaya's body were found in a well in Miewa's shamba that he related to the investigating officers and later to this court what had actually happened just before the disappea- rance of the deceased. The next question this court has to look into is whether Mkomochi did in any—way acquiesce the beating of the deceased. In his evidence he told the court that he warned Miewa not to assault; the deceased but that Miewa did not take heed of his warning0 Miewa is said to have replied - "Let us teach him as he has refused to admit stealing our cattle" 0 It was also at this juncture that Mwaluko is said to have retorted: "Let us tie him". He then proceeded and tied deceased's private parts. This evidence clearly shows that Mkomochi did not in anyway approve the beating or the tying of the deceased by Miewa and Mwaluko. Even if for the sake of argument this court was to hold that Mkomochi did not take any steps to stop the beating of the deceased and that he did not report to authorities what had happened in Mlewa's house, this would not by itself make Mkomochi an accomplice. To hold so would be goihg counter to the provisions of section 22 of the Penal Code. Dealing with a similar situation the court of Appeal had this to say. in WANJA KANYORO KANAU'S case, (above quotted) at page 504. "We think it is quite clear that a passive attitude while • crime is being committed or following the commission of • crime will not ordinarily, of itself, in the former case, or an accessory after the fact in the later." This was a Kenya case. In e similar situation Crawshaw, J. was upheld by the 6ourt of Appeal when he said in ZUBERI S/o RfSHID VS R (1957) EA 456,a Tanganyika case at page 458: "That it is not sufficient to constitute a person a principal in the second degree that he should facitly acquiesce in the crime, or that he should fail to endeavour to prevent the crime or to apprehend the offenders, but that it is essential that there should be some participation in the act, either by actual assistance or by countenance or encouragement." From the evidence of Mkomochi (PW7) I am stisfied as is the assessor, that Miewa assaulted the deceased with the club (exhibit H) with great force. Soon after the deceased disappeared from the room in which he was being assaulted. Miewa reported to Mkomochi and later to his ward executive officer that the deceased had run away. One and half months later dragging marks were found in Nlewa)s shamba which led to a well which had been filled with soil. The soil was excavated and remains of deceased's body were found. The report by Miewa to Mkomochi and to the ward executive officer was clearly a lie as the deceased who had already been thoroughly beaten and was lying on the ground with his arms and private parts tied cou'd not escape. In his unsworn defence Miewa denied killing the deceased. He told the court that he had left the deceased with the second accused and went to see his children in another hou6u and tiat when he returned the second accused reported to him that the deceased had escaped. He said that they attempted to follow deceased's foot—prints but that they 0 0 0 0 .... / 9 - - failed to trace them. They then decided to report to their ward executive officer. His defence is apparently diametrically opposed to his extra- judidial statement (exhibit E) in which he says that it was Mwaluko who caused the death of the deceased by tying his private parts. Miewa's defence is clearly that of a sinking mai Like the gentleman assessor I found no difficulty..in rejecting his defehce as bogus. It was a ctiumsy attempt to shift the whole blame to Mwaluko. In a criminal case the burden of proof is always on the prosecution. An accused has no burdern whatever to prove hisinnocense. In the present case Miewa was seen assaulting the deceased with a club. Later the deceased Was not to be found aiywhere in the village. Miewa falsely reported that he had run awayJi About a monthiater deceased!s body was found buried in Niewa's shamba. There is evidence from the d ecease d s wife (PW12) that the deceased was alive and well when he left to Nasunzu's home-stead. On this evidence I am fully satisfiGd as was the assessor s that the esault of the deceased by Miewa contribu- ted to the death of the deceased.,. As to the question of malice-aforeth- ought I would say that intent is rarely proved by direct evidence. It can often be inferred from the circumstances viewed as a whole. The nature of the weapon used and the manner in which the blows are inflicted are factors to be considered; so is the motive if any motive is known. In the present case the club (exhibit H) was undoubtedly a formidable and deadly weapon. According to Mkomochi's evidence Miewa inflicted blows using the club with great force. The inevitable inference to be drawn from the evidence is that at the time Mlewa was assaulting the deceased he either had formed an intention to kill him or he at least had formed an intention to cause him grievous harm. On the evidence I am satisfied that the prosecution has proved its case against the first accused,. Mlewa,. beyond all reasonable doubti. and I accordingly find him guilty of murder as charged. As to the evidence touching Mwaluko, (2nd accused) we have Mkomochi's testimony that it was he who tied deceased private parts with a rope while the first accused was assaulting him. In his defence he told the court that he did not tie deceasddts private parts as alleged by Mkomochi. According to his defence it was Miewa who killed the deceased by assaulting him with a club. He said that he adviced MLewa not to assault the deceased but that he did not follow his advice. Mwaluko said that Mkomochi approved the assaults by saying that the decea:ed deserved being beaten as he was a thief. The accused admitted that he tied deceased's arms with a rope while at Masunzu's house but that he wasforced to tie him by Miewa. He said that he dicided not to report what Mlewa had done because Miewa had threatened him with death if he did. The accused argued that Miewa and Mkomochi told lies to the court when they said that he tied decoased's testicles 0 Mr. Mbezi argued that even if the court finds that Mwaluko tied decea5ed private parts he may have done so as a result of coercion by his master, Mlewa. I tend to agree with accused's defence that Miewa could have easily told lies against him inorder to shift the blame from him (Miewu). I also agree with the learned defence counsels argument that Miewa's extra-judicial stateme- nt cannot be taken against the second accused as it does not anount to a confession of the crime by Mlewa. But there is the evidence of Mkomochi (PW7) to the effect that it was Mwaluko who took the initiative to tie deceased's private parts with a rope. Nkomochi was not at any time charged with the offe- nce -. And as such it cannot be argued that he gave evidence against Mwaluko because he wanted to shift blame from him. Mwaluko himself told the court that Mkomochi had always been his friend. Indeed there is the evidence that Mwaluko was at the material time keeping and taking care of Mkomochi's cattle as well as those of Miewa. This being the position I find it difficult to believe the argument that Fikomochi told lies when he said that he saw Nwaluko tying deceased's private parts. As to Mwaluko's defence that Mkomochi approved Mlewas assault of the deceased, I wuld say that Mwaluko did not appear to be a truthful witness. He was uncomfortable in the witness box and hesitant in a c 0 0 answering simple questions. And, as rightly mentioned by the learned state attorney, the defence did not cross—examine Mkomochi as to his. alleged approva. of the beating of the deceased by Miewa. When cross- examined by the court Nwaluko said that Mkomochi did not assault the deceased0 There can in my view, be no doubt that the mentioning of Miewa and Mkomochi by Mwaluko as the people involved in the beating of the deceased is nothing more than an attempt to shift the blame to them and sve himself. I now come to the argument that Mwaluko may have been forced to tie deceasedzs private parts by Miewa (1st accused), his master. I can imagine cases where a master can have a lot of influence over his servant; so much so that a servant is forced to do an act which he would normally not do. But to argue that an accused committed a serious criminal offence because he was in subjection to the power of another is, in my viewa very lame defence. Dealing with the defence of duress per minas KENNY in his Eighteenth Edition, 1962 at page 65 has this to "Duress per minas is a very rare defence; so rere that Sir James Stephen, in his long forensic exprience r never saw c s in iicse in which it was raised. It has, however, been thought . t that threats of the immediate infliction of death, or even of grievous bodily harm, will excuse some crimes that have been committed under the influence of such threats, Yet it has been found impossible to say with precision for what crimes the defence will be allowed to avail0 It certainly will not excuse murder." ARCHBOLD —(THIRTY—SEVENTH EDITION) at page 21 paragraph 45 says: ....."Thus if A by force takes the hand of B in which is a weapon, and therewith kills C, A is guilty of murder, but B is excused; but if a merely moral force is used, as threats, duress or imprisonment, or even an assault to the peril of his life, in order to compel him to kill C, it is no legal excuse 0 " In his defence as well as in his cautioned statement (defence exhibit B) Nwaluko does not say that he was forced to tie deceased's private parts0 Indeed he denied doing so. Even if for the sake of argument it is to be accepted that the accused tied deceased private parts in subjection to the power of Miewa, such compulsion would be no defence in the circumstances of this case. After the whole thing was over Mwaluko did not, at the earliest possible moment, report what had happened. On the contrary he told lies to Mkomochi that the deceased had run away. On the evidence I am satisfied that Mwaluko tied deceased's testicles not because he was forced to do so by Mlewa but because he believed that the deceased deserved such treatment as he was a cattle- thief. His acts were a result of his own free action. Looking at the totality of the evidence I cannot resist to infer that it was the cumulative effect of the beating of the deceased by Miewa - and the tying of his private parts by Mwaluko that caused his death. It was the Republic's argument that although it is not possible to say wiich were the assaults that caused deceased's death. Mwaluko was under the doctrine of common intention also guilty of murder,. Section 23 of the Penni Code is to the effect that: "When two or more persons form a common intention to prosecute an unlawful purpose in conjuction with one another, and in the prosecution of such pnrpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose each of them is deemed to have committed the offence." In R vs TABULAYENKA.and.others (1943) EACA 51 it was held: constitute a common intention to prosecute an unlawful purpose within the meaning of section 22 of the Penal Code, (now section 23) eg. to beat a so called thief, there being no suggestion that the vi1ence used was necessary to effect the thief's arrest, it is not necesary that there 00 0 • • should have been any copcerted agreement between the accuseds prior to the attack ô. the so caled thief. Their common intention may be infer jred from theIr presence, thir actionsi and the omission of any of then . to dissociate himself fromt the assault." In the'pre1 s±nt case the deceoseds arms were alrady tied - And tied from behind. /There was tharefore no question of his escaping from the accused person. But, as if this was not enough, Mwaluko proceeded and tied his/Private parts with a rope which he pulled and tied it round his neck 0 Miewa assault2d him with a club as he was lying on, the ground0 Such ats by the accuseds were uncalled for and unlaw- ful. It.wasin the prsecution of these unlawful acts that the deceased died. I, under the doctrine of common intention, find Mwaluko guilty of murder as charged. N 6 S 0 MNVAS J UGE Allocutus - 1st Accused: 'I ask the court to be lenient to me as I have been in remand for a long time 0 My family is alone0 There is no one to take care of them. 2nd Accused - 'I have nothing to say. Sentence - YÔÜ, Mle.wa s/o Mdamu and Mwaluko s/o Madinda have been convicted of the serious offence of murder for which there is but one sentence, that is dath sentence Yourare each sentenced to death and shall suffer death by hanging. Right of Appeal to E?ICA explained. DODOMA MNZS 23/11/73 JUDGE Kinabo for the Rep' lic Mangat for the. 1st ccused. Mbezi for the seào. accused. I /42