19730122 TZHC Dodoma

• Z •:' kA- e IN THE 1-1IGII COURT OF TANZAETA AT ])ODOM ORIGINAL JJEISDICTION (:DoDoITA. REGISTRY) Criminal Sessions Case No. 28 of 1972 The RepuiLic VersuS NIJHINDI s/O IIIACHA 1MAIII1A s/o iKACI-IA J U D G II B NT The accus eds I:uhindi - s/o j4akacha and I4 a lima s/o .Hakacha - (They will hereinafter be referred to as the 1st and the 2nd accused respectively) stand scharged with murder c/s 196 of the Penal Code, Both accuseds pleaded not guilty to the offence, It is the Republic's case that the accuseds on or about the 26th/4/71 at Tinai village in the district and region of Dodoma murdered one, Lusinde s/o Visito and iinga s/o Visito. From the evidence of Ny-undo Visito (P.ti. 1), brother o the two deceased persons and the medical evidence (ethfbits A and B) there can be no doubt that Lusinde Visito and I'thinga Visito have died0 Equally there can he no 6hadow of doubt that he two brothers died a violent death. The only question thi court has to decide is - Who was/Were the perpetrator/s of this crime?. The following facts were related to the court and, if I may add, there is no argt'nent about them. On the 26/4/71 the first accised had pombe in his home stead. The pombe was for harvesting his groundnuts. Many viJ.lsers and neighbours of the 1st accused came to first accused'e. house and participated in harvesting the crop. At about 6 p.m. harvesting work was over and participants started drinking poisbe. The two doceaeôd brothers, the two accuseds, one Nyundo Visito (P,W,1 ) and Kunena s/c Chidole (P,w, 2) were among the people who participated in the harvesting work and later in the drinking party inside 1st accused's house. The drinking party continued up to mid-night Just before mid-night a fight broke out and the two deceased brothers received fatal injuries. According to the evidence of Nndo (P,W, 1) soon after. the pomhe was finished P4uhindi (let accused) started fighting with Lusinde and that immediately after malima (2nd accused) started fighting with Nhinga the other deceased. He related. 'to the court that as they were fighting Nuhindi had a bill-hook and Lusinde was holding a stick. . • .. . . . . /2 — 2- This witness further told the court that Nalirna (2nd accused) and IVilhinga oro not armed and that ;hey fought with their fists. The witness raised an alarm and that he intervened in the fight between Malima and MI-iinga and managed to separate them. He further testified to the corrt that soon after he had separated them Malima ran into his brother's house and came out armed with a bow and arrow and shot and struck Nhinga with an arrow in his abdomen and iinediately ran away carl7ing his bow with him. N3mndo also told the court that he saw Pihindi attacking Lusinde twice with his bill-hook and that Lusinde retaliated by assaulting Muhindi with his tstick. In his testimony Nndo also told thecourt that as he was near his deceased brothers the two accuseds emer.ed and started assaulting him with sticks. He ran to his house when, according to his evidence, he heard Iuhindi calling for a bow and arrows. He related to the court that it was Muhindi who actually assaulted him on his head with a stick. He later cane 'back to the scene accompanied by his elder brother, one, Mtonya (P.W. 6). Kunena (P.w. 2) testified to the court that as he was drinking pombe inside the 1st accused's house he heard an alarm outside. He recognized the voice as that of My undo (P,w. 1) who according to his evidence was saying: "They have killed my brother". In answer to the alarm he cane out. According to his testimony as he was going out he met the 1st accused coming inside the house from outside. He asked the first a ccised what was the matter and the 1st accused is reported to have replied: "Your brother-in-law has assaulted me and I have cut him with a bi1lhook". Kunena further relatedto the court that the 1st accused was holding a blood-stained bill-hook as he was relating to him what he had done to lusinde. This witness also told the court that when he g ot out side he saw lVthinga lying on the ground with an arrow sticking from his abdomen. He told the court that he heard Iainga telling Npindo (P.M. 1) that he had been shot with an arrow by Malima. The court was also told that Kunena had left the 1st accueedts wife inside when he came out but that The neither the I- 1st accused's wife, nor the fir.t accueed answered his (Kunena's) alarm. He left i'Iyundo at the scene and went to call one, Elisha (P,w, 5). When he cane back accompanied with Elisha he, to his great surprise found that the arrow he had left sticking from 111ingals abdomen was not there. They decided to report the matter to their cell-leader, one, Mwanche1a When they came back from the cell-leader's house they found Mhingat s bor miss -. from where the y had left it. According to his tesim.ony while they were still wondering as to what had become to Ihin:a 1 s body they heard someone groaring in the bush. They went to where the groaring was comin from and there they found Lusinde who was complaining saying Mithidi. you have killed me". Elisha (P.M. 5) testified to the court how he was awakened by Kunena (p•r• 2) on the material ni(ht and how he visited the let accued's premises and fownd Plhinga lying dead - outside the first accused's house. •eeO •Oe -3- Like Lunena (P,W, 2), this witness also told the. court th,t t . ey found Paing,a' s body missing from where they had left it when they went to report to their cal-leader.. This witness also told the court that he heard Lusinde saying that he had been attacked with a bill•hook by Muh±Mi(lst accused) Thdt. witness further related to the court that next morning they started looking for TU -iinga' s body and that they found it outside Muhindi's house; and that the body had been removed from where they had first seen it to a few paces further south of the 1st accused's house. After the accuse-dc had been explaiied- their right', they' both decided to give their defence unsworn. The let accused denied killing In.sinde. According' to his defence while he was inside his house he heard noises outsiie. He got out to see what was the matter and there he saw iusinde, hihinga and LTunena holding N3ru,ndo. On asking why they were restraining Nyundo the three people :reported that they had decided to send yando to his house as he had become quarrelsome- and had started fighting. soon after a struggle started between Lusinde and Nyundo. Lusinde was thrown to the ground and that his b rother i'Ihinga intervened. Then he heard thinga saying to N3rundo - "Look Nyundo; you have cut my ear', The accused a10 told the couTt that Nyundo and Kunena also started fighting and then he (let accused) was assaulted on his hd with a stick as he was standing at his do' by Visito' a sons. He ran into his house. While there he heard Pa'ionya broTher of the deceased persons, threatening to break into his (1st accused's) house. Hearing what 'Baonya was about to do he advieed his young brother (2nd accused) that they should run away. The left the house through the back opening and ran away. He further told the': court that next morning they reported to Dodoma. police station what had happened but that they were surprised that socn after they were ar;:ested and charged with murder. I6 finaLLy told the court that he knew nothing about the death of the two brothers. The 2nd accusedls defence is that while he was inside the house his elder brother (1st ac used) came and reported to him that'.; he had been asslted by "Visito's family". He also told the court. that soon after they heard f'honya asking - 'Whero are the people who have killed my son". They then ran away and reported to the police what had hapned The accuseds called two defence witnesses. Pagale (h.W. 3), wife of the first accused, told the cou-:t in her testimony that it was his husband (1st accused) who attacked and killed Lusinde. She also testified to the court that it was the second accused who killed Lhinga. As I have aJieady stated the-re is not the slightest dispute in this case that the two d eceasedt s brothr:. were fatally attacked at the first accused" a house. As to the question tho.' attacked and killed the two brothers on that ' fateful night we have the evidence of Nyundo (P.W, 1 ) who witnessed the- fidht between the two deceased brothers and the two accused brothers. He told The court that he saw the first acci ed assaulting Lusind,e twice with his bill-hook. He also told the court that he saw Lusinde retuliating by assaulting the 1st accused on his head with a stick. /4 - 4 It was argued by the learned defence counsel in his subiuission to the court that Nyundo's evidence should be examined with care as the a11eed att 5 ck took place at n:Lght and that the fact that it was a drunken brawl and Nyun.o having himself been already under the influence of alcohol at the time it was possible that he may have been mistaken in his identify of the deceasedts assailants. I agree with the 1e-rned defence couneel that the alleged offence took place at night. I also agree that the fiht which led to the death of the deceased bothers took place after a long sessions of oombe-drinking. There is also evidence that people already showed signs of being drunk when the deceased brothers were attacked. And if I may add, there is also a possibility that Nyundo'sevidence may be tainted against the two accuseds because the deceased persons were his brothers and as such he may have decided tomake sure that the people responsible are punished, Indeed I would have accepted the learned defence counsel's submission that.; Nyundo's evidence could not be relied upon regarding the identification of the accused if his testimony was the only evidence implicating the accused with the offence charred. Evidence of identification by a sifl(.lo witness should always be examined with care; and Jdajs is especially so when there is .'i evidence that the conditions favouring identification were dificult ABDUIL BIN' WENDO and another Vj3 E,A.C,A. 187. In this case however it is clear tht there is other evidence which tends to confirm Nyundo's testimony that the two accuseds are the people who inflicted fatal blows on the two deceased brothers. There is thev±donce of Kunona (P.w. 2) which is to the ef:ect that when he was going out of the first accused's house in answer to the alarm he me -b the first accused who in answer to his question replied: uYour brother-in-law has assaulted me and I have cut him with a billhook:. Indeed, according to Kunona' evidence the first accused categorically mentioned Lusinde as the person he had attacked with a bill-hooJ.. Kimenat's evidence therefore tallies with Nyundot a evidence that he saw the first accused fighting with Lusinde and saw him attacking Lusinde with a bill-hook. Kunena's evidence also suu'orts Nyundo's totimony that he saw Lusinde retaliating by assaulting the 1st accused with a stick. And to crown N3rundo's evidence all thb more we have evidence from no lesser a person t ha the first accused s wife (D.w,3). She told the court without the slightest hesitation that it was his' husband (1st accused) who attacked and kiI,ed Lusinde with a bill-hook. When she was cross-examined by the court as to how she ccme to know th:;b it was her husband who had attacked and killed Lusinde she replied th. t she heard her husband telling his brother (2nd accused) that he had killed Lusinde with a bill-hook 0 Accepting as I do Nyundo (P . W. 1), Kunena (P W. 2) and Pagale (D:i.3) as witnesses of truth, I can only come to the conclusion that it is Muhindi Makacha (1st accused, ) who attacked and killed Lusindo lrisi±o, 0 ......./5 *41 41 5- As to the evidence in respect of Nalima Iakacha (2nd accused), there is also the testimony of Nyundo who s aid that he saw a1ima struggling'with Mhinga Visito. He intervened and 1 'alima ran inside the house and soon after emerged armed with a bow and arrows, He told the court that he saw Malima aiming and stricking the deceased P'llainga Visito with an ar::ow. Nyndo's evidence that it is the second accused who shot Mhinga Visit o with an arrow is again supported to the hilt by the second accused 7 s sister-in-law (D.W.3). She to]d the court, when cross-examined that she heard Malina re]ting to his elder brother (let accused) that ho had shot Painga with an arrow. Doctor's evidence (exhibit A) is to the effect that ithinga died of a penetrating wound intr his abdomen severing a large vessel, possibly the inferior vena cava. There is evidence that the arrow struck the. deceased on his abdomen near his umbilicus and the doctor's report is that the wound he found on the deceased's body- was about two inches below his umbilicus. Taking into account the evidence of ]yundo, the eyewitness, the testimony of Pagale (D.W.3) and the doctor's evidence I have not the slightest doubt to hold that the second accused shot Ilinia Vjsito with an arrow and that it was this att a cie that killed flainga Visito. There can be no doubt that the fatal attacks of the deceased brothers by the accused were unlawful. The next question I have to decide is whether the fatal unlawful attacks were inflicted by the accused with the intention to kill the deceased or if the accused had no such intention did they intend to cause the deceased brothers grievous bodily harm. After. summing up to both assessors, they were both of the opinion that the accusede deliberately caused the death of the two brothers and found both accuseds guilty of murder. There is throught the trial in this case something very special. There is no knoun motive to suggest that the two accuseds wished the death cf, the two thceased brothers. There is no suggestion, let alone evidence, of any quarrel or grievance however trivial between the two accuseds and the deceased brothers prior to the attacks which culminated in the death of the deceased persons. I agree with the learned state attorney when he said in his submission .th.t the accused struck the deceased brothers wildly. I also agree with the Reublic's submission that the prosecution is not required to prove motive but 1 would say that the complete absence of motive is relevant to the cuestion of intent. The evidence showstthat the accuseds and the two deceased lived together happily prior 'c the nasty incident. It is clear from the evidence that there was a long session of drinking starting at 6 p.m. up to midnight when the fight between the accused and the deceased brothers started. There is also evidence that the pombe was strong and that people were already intoxicated - This was especially so with Halima (2nd accused) Nyundo (p. 1) and the deceased brothers who according to Kunona (P.W. 2), started vomiting. There is also evidence from no lessor a person than the deceased persons' brother Nyundo (:7J1,1 ) that the killing of the two brothers followed a fight between them and the two accuseds. . . . ....../6 -- - 6- Dealing with fights which load to killing ARCEIBOLD - 37th Edtj arai 2492..sa n1f two persons quairel and afterwards fight, and one of them kills the other - in such a case, if there intervened between the quarrel and the fit a sufficient cooling time for passion to subside and reason to interpose, the killing will be murder; but if such has not intervened If the parties in their passion, fought immediately, or oven if immediately upon the quar:ol, theywent out and fought in a field ... the killing in such a case would be nanslauh -bor only whether the party killinr: struck the first blow or not The learned author goes on and says . 'Even in a case of a sudden quarrel, where the parties ii:imodiatoly fight, the case may be attended with such circumstances as willindicate malice on the pa::t of the party kil).ing and the killing would then be murder, and not merely menslaughter. In the present case it is not disputed that there was a fight betwe:n the parties. It is not clear from the evidence rho, between the two acc::sod persons and the deceased brothers were the aggressor, Prom the evidence of Kunena the first acLused told him that he had cut Lusinde with a bill-hook because Lusinde had assaulted him on his head. That 1st accused was assaulted by Lusinde with a stick is also clear from the testimony of N3Rmdo (P.11,1 ). Medical evidence (exhibit C) confir: the testimony of Nyundo (P.W, 1) and that of Kunena that the first accused was assaü1td on his head. This being the evidence it is therefore vcry difficult if not impossible to rule out L the defence of provocation regarding the attack of Lusinde by the first accused Though of course retaliation by the 1st accused was clearly out of proportion. As for the second accused there is evidence that soon after Nyundo had intervened the accused went into the house and omer ed with a bow and arrows and shot ainga with an arrow. Here again it. is very difficult to say why the second accused behaved so irresponsibly. There is not the slightest suggestion that he wished the death of the deceased. There is however evidence that the shooting followed the fight between the 2nd accus:d and Ithinga. Taking all the circumstances into account and especially the glarring evidence that Plalima was alre ady drunk at the time it is very d iff icult to s ay with any am omit of certainty that the accused had fomiied the nocos ary malice aforethouht when he shot and killed the deceased with an arrocy. It is, on the evidence çuite pos:ible that the second a:cuscd's mind was at the tinc so imflamed by alcohol that he behaved more like an animal than a man. Be it as it may I hav; a lot of doubt rd arding malice aforethought. I resolve the doubl in favour of the accused. • ..• .17 - W -- -7, W -7 This ; àdnitodly, isa difficult case much so in connection with the second accused - It is with reluctance and only after considerable reflection tI-at I have decided to difer from the assessors. I find both accused not guilty of murder and I accordingly acquit the m of this charge; but, on the evidence both accused are found guilty of manslaughter c/s 195 of the Penal Code. I accordingly convict them of this offence. N. S. MNZ.!WAS JUDCE Prosecution: Nothing kno'rn against both accused persons, Mr. Maiat in attion' My lord both accuseds are youngmen with fatailies. They liave boon in remand for 21 months, I ask your lordship to ake into account these factors when sentencing then, let Accused: I have nothing to say but to tell the court thct the killings were due- to drunkenness. 2nd Accused: I have nothing to add, SENTENCE: This is by any standards a bad case of manslaughter. The first accused brutally attacked and killed Lusindo with such a deadly weapon as a bill-hook. There is of course eidence that he himself was attacked with a stick by the deceased. Who strucl: the first blow is as I have stdtoö. difficult to say from the evidence. But even if it is argued in favour of the accused that he attackd Lusinde with a bill-hook in retaliation to an attack on him by Lusinde. Such a retaliation with suOli a lethal weapon was clearly un-called for and exceedingly out of proportion. The accused deserves severe sentence. I sentence the accused to 9 years iiiprisonment. As for the second accused the pisiton is a bit different, Apart from the fact that the deceased Malima did not use a weapon in attacking him we have evidence that there was a mere struggle between hiLl an. the deceased. Why he ran th an into the house and later at;ackod the deceased/ia, to say the row/ least, beyond my comprehension, Way be as I have said, his passions were at the time inflamed' by drink hence his most .rsosfljie. acts. Drunkness however is not a defence Li a criminal charge indeed, as it is in this case, may aggravate the offence. The second accue.od deserves no mercy. Taking all the-mitigating factors into account, I cannot sentence the accused to any lesser sentence t1i4n a sentence of 12 years iiprisonment. He is so sentenced. Rights of Appeal to E,A,C,A, explained, DOBOMA, 22ndJanuay1973 J1JDG-E'