19731009 TZHC Dodoma

% IN THE HIGH COURT OF TANZANIA I1 AT SINGIDA ORIGINAL J1JRISIDICTION (Dodoma Registry) CRIMINAL SESSIONS CASE NO0 124 OF 1973 The Republic Versus HAMISI s/o P!z --- - 1974 Char: Mz-slaughter contrary to section 195 of the Penal Code0 J U D G E M E N T 4-- MNZAVASJ. In this case it is alleged by the Republic that he accused, HANISI S/o PYUZA, on or about the 14th day of May 1972 at Malaja village. Nduguti division in the district of Kiomboi, Singida region, murdered one, Musa s/o Athuman. In his plea the accused admitted that it was he who unlawfully caused the death of the deceased but denied the Republics allegation that he killed him intentionally0 As the learned state attorney would not accept a lesser plea the case went on trial0 The following facts are not at all in dispute: On the night of 14th /5/72 the deceased was shot with an arrow in his abdomen. The arrow penetrated about 10 cm into his abdominal cavity severing the mesenteric blood \'esseis and lodged in the mesentry 0 The severed blood vessels caused profuse internal bleeding which, coupled with the interirening shock, coused the death of the deceased, As I have already mentioned the accused admitted th was he who shot the arrow that killed the deceased. It was the Republic's argument that the circumstances under which the killing was done were consistent with the offence of murder. The defence on the other hand. vigorously argued that on the evidence the killing co&üd not amount to murder. The prosecution case is based on the allegation that on the mateflal rd.ght the accused armed himself with a bow and arrows and came to deceased's house and shot him. In rebuttal the defence argued that the accused shot the deceased while the latter was breaking into the former's house0 In support of the former version two wives of the deceased gave evidence for the prosecution. Hadija Ramadhani (Pwi) related to the court that in the night her husband was shot with an arrow she was 3leeping in a different house from that the deceased was sleeping. According to her testimony the deceased slept in a house adjacent their cattle- boma watching against Mang'ati cattle-thieves. She told the court that as she was in bed she heard some- one calling her husband from outside asking him to come out and help in chasing Mangatis who were stealing cattle. According to he: evidence soon after hhehhendhhrhhusband calling for help saying that he had been shot with an arrow, she immediately went to the rescue of her husband and that hhe found him lying on the ground outside his house inside the cattle-boma injured,. With her husband was the accused who she said she saw pulling an arrow shaft from her..husband's abdomen. This withess also related to the court that aer co-wifQ (PW2) and tir two brothersin-laws, Hamisi Salehe ad Kassim Salehe also came to the scene and that they also saw the accused pulling an arrow shaft from the deceased' s abdomen. The witness futther related to the court that they asked the accused t7hat he had done but that the accused did not reply. Thereupon her brother-in-law attempted to arrest the accused but that he managed to escape and ran away. Selewe, (Pw2), another wife of the deceased gave a totally different story from that of her co-wife, Hadija, (PWl)A According to her evidence on that fateful night she was feeling out of sort and went to bed at about 7 p.m., earlier than she normally does. She told the court that as she was in bed she heard her husband calling them saying that he had been shot with an arrow by Simbi, (Simbi is apparen- tly another name of the accused)0 She got out and foild the deceased lying on the ground injured. She told the court that she did not see the accused; nor did she see an arrow. According to her testimony her co-wife was a step or so in front of her when they were going to the rescue of their husband and that they arrived where their husbanc as lying more or less at the same. time. She said that she did not see anyone with the deceased. The witness further told the court that they raised an alarm and that their brother-in-laws, Hamisi and Kassim came and took the deceased to hospital but that the deceased died on the way to hospital. On support of the argument that the deceased was shot while engaged in the burglary of accused's house the defence relied on the testimony Kese d/o Adam (PW3), wife of the accused. This witness gave evidence to the effect that on the night when the deceased received fatal injuries she was sleeping with her husband in the same bed when they head a bang which seemed to origiitate from the main door of their house near where their cattle were kept. Her husband peeped through a space in the door to their bed-room and saw the main door of the hous- e wide open. She testified that after her husband had told her that thermain door was open she also got up and on peeping through the door she confirmed her husband's story. The witness also told the court that she and her husband saw something bulky outside near the main door which they could not figure out what it was. Then, according to her evidence, her husband armed himself with a bow and arrow, proceeded to about three paces from there the bulky shadow was and shot an arrow at it. After the shooting the thing ran away and they got out and raised an alarm. The court was also told that a panga, a stick and an arrow sbaft were found outside the house near where the bulky shadow was. The witness further testified that next morning a white rubber shoe was found lying on a foot-path which led to the deceased's house. The deceased's uncle, one, Malizia Makala (PW4) related to the court how on the material night at about 11 p.m. he responded to an alarm by the accused. According to his evidence In arrival he asked the accused why he had raised an alarm and that the accused replied that he had shot a thief who was breaking his door. The witness also related to the court that he saw that there was a hole near the frame of the main door of the house which hole would admit a hand. And that from the location of the hole a.person standing outside could pass a hand and unlock the door from inside. The witness also confirmed Kese's evidence about the stick, the panga the arrow shaft and the white rubber-shoE. According to his evidence the deceased used to put on white rubber-boots. Nakala Mkumbo (PW5) gave similar evidence as that of Malizia (Pw4). As to the white rubber boots found on a foot-path leading to the deceased's house this witness told the court that the shoes were similar to those the deceased used to put on. One, Seleman Pyuza (Pwle) a councillor also gave evidence. He related to the court how he answered accused's alarm. According to his testimony when he interrogated the accused as to what made him raise an alarm the accused told him that he had shot a person with an arrow; and that the person was at the time breaking his house. This witness's testimony regarding the breaking of the house, the finding of an arrow shaft, a panga and a stick is similar to the evidence of (PW3), (PW4) and, (Pw5).0 As to the xubber-boots found on the foot-path leading to the ./3 II • C 0 0 0 0 0 0 0/3 deceased' house, the withess told the court that he knew the deceased's rubber—boots and that the boots found on the foot—path very much resembled those the deceased used to war. It is en. the evidence of Kese (Pw3) coupled with the finding of the white rubber—boots which were similar to those of the deceased that the defence argued that the deceased was shot by the accused while breaking into the house of the accused as opposed to the prosecution's argument that the deceased was shot while at his home—stead. After my summing up to the gentlemen, assessors the whole evidence and the law applicable they were both of the opinon that the accused shot the deceased at the deceased's house. They also came to the conclusion that the 4 shooting was with malice—forethough and they accordingly found the accused guilty of murder As charged0 In his address to the court the learned state attorney argued that the evidence of Hadija (Pwl) that she saw th@ accused pulling an arrow from the deceased's abdomen and that the accused by took to his heels when they attempted to arrest him is corraborated by the testimony of detective Corporal Hebron (PW7), and Hassani Hamisi (W8). It was also argued that the evidence of the two wives of the deceased (PW1 and PW2) was very consistent. The court was also referred to the doctor's evidence which was said to favour a ' conclusion that the deceased was shot while at his house. In rebuttal the learned defence counsel submitted that there was no corraboration of Hadija's evidence0 It was also contended by the defen.o that the evidence of Hadija and that of her co—wife contradicted. With respect to the learned state attorney I have totally failed to understand his argument that the evidence of Hebrn (PW7) and that of Hassani (PW8) corraborate the evidence of Hadija (PW1). All that Hebron told the court is what he was told by Hadija and her co—wife (PW2.). He did not himself hear the deceased being called out nor did he see the accused pulling an arrow from the deceased's abdomen. As to the evidence of Hassani his evidence was that while he was at his house listeningto lI.p.m. news from radio Tanzania, one s Kassirn Salehe came to his house and told him that the deceased had beez shot with an arrow and had died. Such evidence cannot be said to be corraborative of Hadija's testimony that it was the accused who shot the deceased with an arrow. Corraborative evidence is evidence which surports previous Mft evidence not only that an offence has been committed but that it was MW the accused who committed the offence. Corporal Hebron's evidence did not go that far indeed it was a mere repeatition of what the two ladies related to him. As to the testimony of Hassani it was a repeatition of what he was told by a third party - (PW8). Coming to the question of consistence regarding the evidence of Hadija (Pwl) and that of her co—wife (Pw2) I would, with respect to the learned counsel for the Republic, say that the two witnesses materially contradicted themselves. Whereas Hadija told the court that she and her co—wife found the deceased lying outside the house with an arrow sticking from his abdomen and the accused pulling it; her co—wife told the court that they found the deceased lying on a bed inside his house. She also said that she did not see the accused anywhere near the deceased. Indeed she said she did not know the accused; a fact she amply proved to the court when she failed to identify the accused in court. At this juncture I would also like to mention that when in her statement to the police hardly a day after the incident Hadija did not think it important to mention that she saw the accused pulling an arrow from her husband's abdomen. In her statement (Defence exhibit A) she only told the police that her husband told her that he had been shot with an arrow by the accused There is yet another contradiction in these two ladies øvidence when compared to what they told the police officer (PW8) about the incident. In this cbürt they testified that they were in their beds when they heard their husband calling IA 00000000 00000/ C o.. for help. But their story to the police officer is totally different. To him they said that they were cooking when the deceased raised an alarm. Faced with all these contadictions and taking into acc:unt Hadija's demeanour in court I can only come to the conclusion that RidijA these two ladies, particula so with Hadija, are unworthy of credit. It would be extremely dangerous to rely on their testimony and come to the conclusion that the deceased was shot while at his house. It is interesting tonote, if only in passing, that Hamisi Salehe and Kassim Salehe who were said by Hdija to have also seen, the accused pulling an arrow from the deceased's abdomen and who were said to have attempted to arrest the accused were not called as witnesses for the prosecution. I now come to the defence argument that the deceased was shot while breaking into acrused's house, That the accused's house- cum-stable was burgled on the material night is a fact supported not only by Kese (PW3), wife of the accused,. but also by the prosecution witness who answered accused's alarm. Detective Corporal Hebron (PW7) also supported the accused's defence that his house was., on the night of 14/5/72, burgled. The accused's defence that next morning a pair of while rubber-boots similar to those the deceased used to put on. were found on a foot-path leading to the deeased.s house is supported'by not less than three prosertion witnesses. Malizia Makal (Pw) wha±sduolthefcthetdthbesbstold the court that his nephew used to we while rubber-boots. Makala Mkumbo (Pw5) related to the court'that his shamba made boundaries with deceased's shamba. He testified to the court that he used to see the deceased in his shamba wearing white rubber- boots which were similar to those they found on a foot-path leading to the deceased's house. There was also the testimony of Seletr.€a- Pyuza, a councillor; He gave evidence that he used to reet the deceased in thá.r mosque wearing shoes similar to the ones found on the foot-path. When this witness was cross-examined by the court he said: " The ones I saw on the foot-path were very similar to those of the deceased". There was of course evidence by the deceased's wives that the deceased had only one pair of black leather shoes. As' I have already mentioned these two ladies proved unworthy of credit. The evidence, which I accept as credible is that accused's — SP house was burgled on the material night, he saw "a bulky structure" which according to the accused he could not figure out what it owaq and shoi, an arrow. Next morning rubber-shoes are fo.ihd,leading' to deceasecL house and the bulky object shot by the accused 'turns out to be the deceased. The rubber-boots are identified by not only the accused but by the deceased's uncle and two independent witnesses as similar to those the deceased used to put on. There is I agree evidence to show that a number of villagers of Malaja used to wear similar shoes. But the prosecution has not produced evidence to suggest leave alone to prove that the shoes found on a foot-path leading to the deceased's house belonged to a person other than the deceased. The burglary of the the shooting of the deceased and the finding of rubber-boots similar to those of the deceased on a foot-path leading to e"deceaseds house are in my view not mere coincidences. I, with respect to the learned defence counsel, agree 1:t the argument that the deceased was shot by the accused while at accused's house is, on the evidence àcceptéd by this court, more plausable.. The next and final question this court has to decide is whether the shooting of the deceased by the accused under such circumstances amounted to any offence in law. Mr. Kinabo argued that even if the court came to the conclusion that the deceased was shot while at accused's house., the accused would still at least be guilty of manslaughter. In support of his ih'rt the ]eëd counsel referred to the coutt the decisions, in YOWERI DANULIRA Vs ••0 •• . ..... .o R (156) EACA 501 and ZEDEKIA LUKWAGO vs R(1956) EACA 507. Mr Mbeion the other hand contended that as the accused did not know what he was, shooting at and that because at one time he believed that it was a wild animal he was shooting at his case should be treated as a mistake of fact and be disposed of by finding him not guilty u/s 11 of the Penal Code. Alternatively but without prejudice to the above it was submitted that as there are Mang'atis in the area who are well-known for their ferocity and banditry as cattle thieves, the accused may have genuinely believed that his life was in danger hence his shooting the arrow which shot and killed the deceased. This argument is, with respect, as attractive as it is unconvincing. From the accused 1 s own defence the deceased (who he described as a bulky object which he could not make out what it was) was standing about 3 paces from him when he shot the arrow. That this was the distance between him and the deceased is also supported by no lesser a person that his wife (PW3). And what is more, We have the evidence of Malizia (PW4) who told the court that when he interrogated the accused about his alarm the accused replied that he had shot a thief who was breaking his door. Indeed the accused went further and told this withess that he had shot the thief in the abdomen. That the accused knew that he was shooting at a person is also evident from the. testimnny of Makala Mkumbo (PW5) to whom the accused said that he had shot a thief who had broken his door. There is also the evidence of Seleman Pyuza (PWlO) the councillor this withess also related to the court that the accused told him that he had shot a person who was breaking his house. And, to crown it all, accused's wife said this when cross-examined by the court, "We thought it was a Mang'ati who had come to steal our cattle yes, when we saw the shadow we thought it was a Mang'ati". For evidence to be so consistent the only common denominator, save perjury, must be truth. I find it as a fact that the accused knew, at the time he shot the arrow, that he was shooting a person. Did the accused have any legal justification to shoot the deceased with an arrow? At the time he shot the deceased, the deceased was about three paces away from im outside the house. According to accused's own defence he himself was inside the house. From the evidence it could be said with some certainly that the the deceased must have known that his mischievious acts had been heard by the occupants of the house and was on his way to escape. It is, I agree with the defence, that the law entitles the owner of a house to arrest or expel an intruder as long as he uses resonabIè force i, so doingl The law also allows a house holder to use all reasonable and necessary force to ward off an attack by II91 Indeed he is entitled to use even lethal force if he finds it necessary to do so inorder to save his own life from destruction. Where however in see- king to arrest an intruder a householder uses more force than is necessary and kills the intruder he will certainly be guilty of an offence, not of murder, as the killing is without malice aforethought but of manslaughter. Where a householder's life is in ±mihin_ periJ and he uses lethal force and kills his intxruder the killing is justifiab: homicide and the accused will be found not guilty of any offence. In the present case the deceased was outside the house and he had desisted from raking the house The accused, as I have already mentioned was inside his house. His •property, namely fbur head of cattle and seven goats were safe inside the house and his life was in no way in peril. On these facts the accused should have shouted at the deceased instead of shooting him with an arrow. Had he taken this reasonable step the chances were that the deceased would have left the place as fast as his legs could carry h im. If the deceased had responded to aftband6p shouts by resorting to violence say by brandishing a panga at the accused then the law under such. circumstances entitled the accused to use his bow and arrow to preserve his own life. But as the facts stand the accused had no legal justifi- nation to shoo,t the, deceased with an arrow. In his attempt to arrest or expel his intruder he used more force than was necessary. I with respect agree with the learned state attorney that the killing of the deceased by the accused amounts to the offence of manslaughter. In conclusion I would like to say that I am not at all surprized by the assessor's verdict. The evidence was rather involved and in mi view beyond their capacity, I have a feeling that they failed to analyse the evidence of the doctor which evidence, if not properly handled, could have been accepted in favour of either side. To them the deceased could not have reached his house alive if he was shot at accused's house I agree that the doctor said that a person suffering from deceased's ijuries would haa oocumed to his death withing l minutes. Given that accuseds house is about al mile from the deceased 's home-stead the assessor?s conclusion appears plausable Bub against this the doctor's reply when coss-examirxed by the learned defence counsel and the court that depending on the efficiency of clotting mechanism a person with injuries as those of the deceased could live as long as 11,2 hours. Here the balance is tilted in favour of the accused. I was not all that happy about the doctor's evidence regard- ing this difficult point. The law is that if there is a doubt the doubt is resolved in favour of the accused and I have done just that. I find the accused not guilty of murder and I accordingly acquit him of this charge. But, on the evidence.,. I find him guilty of the lesser offence of manslaughter c/s 195 of the Penal Coded N.S.MNZAVA'S JUDGE -' Prosecutor - Nothing known In Mitigation - (Mr. Mbezi) -- My lord from the evidence it appears that the deceased was the author of his own death. I would ask the court to take into account the reaction of a villager whose house is burgled at night. I would also ask the court to take into account the fact that the area is infested with cattle-thieves0 The accused alk PW 4P is married and has his own two children and three adopted children He also has a lunatic mother thy all depend on the accused... The accused is a first offender and has already been in custody for 18 months. In view of this my lord I sulmit that, the accused is to be pitied as he has been brought into this situation by the deceased anti-social behaviour. Accused - I have nothing to add. Sentence - There is a lot of misconception among members of the public that the law entitles them to kill a thief. This is exactly what the accused had in mind when he shot the deceased with an arrow Courts of law have a duty to help in removing such misconception0 I however take into account the accused's unblemished record and the fact that in a way it is the deceased who has caused him to be in his present predicament. Taking all the mitigatitxg factors into account and the fact that the accused has been in remand for about 1½ years with the serious charge of murder hanging on him I feel that the justic: ce of the case would be met if the accused Is septncti±oi:2 Tiears. npisnmat..':.nkies so sentenced. R.O.A. to EACA explained.. SINGIDA N..S., MNZAV 9/10/73 JUDGE