19740228 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA- AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 121/72 THE REPUBLIC VERSUS CHIDILO cHIBANGA':: AND 3 OTHERS Charge: Murder,contrary to section 196 of the Penal Code Cap. 16 of the Revised Laws. J U D G M E. N T• MAPIGANO AG. J. In this case it is alleged by the Republic that the •foUr accused persons, namely 1. CHIDILO Sb CHIBANGAT, 73 MAILE CHILANGAZI ANDREW, 3. NYAMBUYA SIO MAGANJLA and 4. MASUKWI S/O MATONYA MBUTIKA,' on or about the 22nd day of July, 1971, in Dodoma Region, murdered one MULEMETA S/o MALIPEO All of the accused have pleaded not guilty to the charge. The following facts which were tendered by the prosecution • were not in dispute. On 22/7/71, the deceased Mulemeta was beaten up by a gang of people at a cattle market. He was taken to Chilonwa dispensary by his father, Malupe. Kilemshana (PW5) and he was admitted there. He received treatment there for three days and according to Mr. Namalombe (PW2), a Rural medical Aid, his condition appeared to be improving. However he died on 26/7/71 and the body was then taken to Dodoma Government hopita1 for post-mortem examination. It is in evidence that the deceased had sustained three bruises on the forehead, a cut wound above the right eye and another cut wound in !the middle • of the head. Post-mortem evidence shows that the base of his skull had fractured and that the lower part of the brain had been damaged0 The opinion of Dr. Gomile who performed the post-mortem is that ãoath was due to shock following the head injury.. I accept the above evidence as well as the doctor's opinion as to the cause of the death. This is to say that it was the assault on the centre of the head and the assault which fractured the base of the skull which primarily caused the death. On the evidence I will not exclude the great possibility that the fracture of the base of the skull and the wound on the centre of the head, may have been occasioned by one and the same blow. The other bruises appear to have been minor and I find that they could not by themselves have been fatal. - The next thing to consider is whether it was the accused's act which caused the death. This is in dispute. Prosecution case in this regard consists of the evidence given by Mgoli (PW4) and Malupe (Pw5), the deceased's father. According to Mgoli, she was present throughout the incident at the cattle market. She saw the second accused grabbing a stick from one Nara who was related to the deceased. Nara resisted and this developed into wrestling and a fight. The first accused joined in the fight by assaulting Nara. At this stage the deceased appeared at the scene. He entervened and made effort to separate them. The first accused then attacked the deceased with a stick while, shouting "beat the Masai". The deceased and Nara were Masai by tribe, Nara' fled from the scene. The rest of the accused persons joined in the fight and they all beat the deceased with sticks Jj The witness saw the first accused delivering a stick blow on the deceased's head and hurling a stone which hit the deceased in the region of the right eye. She saw the other accuseds beating the deceased with sticks on the ribs. Malup.e (Pw5) then arrived at the scene. ..oeoo.../2 , ---.- According to him he saw the first accused hurling a stone towa.rds the deceased wi-ta, sce tI. He ase the accused why they were -: assaulting the deceased and the first accused retorted by sayihg "let his father be beaten too". Hej PW5, was beaten up. The second accused beat him with a stone s the third with a stickk. In the meantifte, the deceased had collapsed. and the accused fled from the scene when they observed this, Deceased was then taken to the dispensary where he died on 26/7171. It seems that nobody had reported to the authorities about the fight at the market until the death. All the accused agree that they Were at the cattle market on that day 0 However ? all .denI to have witnessed a fight or to have participated in a fight, However, I find no diffIcult in readhng the conclusion that all the accused participated to a certain degree in the assault 0 There is no evidence to establish that the second addused beat the deceased 0 Mgoli did not see the second accÜsd assaulting the deceased 0 Howver, this particular accused wasp in a sense s the person who set in motion the chain of eVents which culminated into the assault. He was the one who grabbed Naratb stick, which, act brought about the fight with Nara, the deceased'srelative. He was surroundiñgt'he deceased when the other accused were beating the deceased. He assaulted P'5 when this Witness came to deceased's rescUe Even if therefore he did not beat the deceased, he must be deemed to have participated in the assault, because his actions amounted to counternancing in the assault 0 As I advised the assessors, it is difficult to say who actually delivered the fatal blow or blows. However, the Republic have made it clear that the case against the accused is based on common intention 0 It follows that to prove the case against the accused, the prosecution has to establish the following things, viz Whether the accused participated in the assault, Whether the accused had a common intention to kill or to do grievous harm to the deceased, Whether the accused knew that death or grievous harm was the probable consequence of their assault act. The assessors were of the opinion that the prosecution had succeeded to establish the above matters beyond a reasonable doubt 0 In my considered opinion, as already shown above, I accept that all the accused partici- pated in the assault 0 I am however, not certain whether they had an intention to kill or to do grievous harm to the deceased 0 I believe that it was the blow on top of the head which was fatal. The other blows were minor 0 According to PW4 1 the other blows were on the ribs, but this is not supported by medical evidence, If there were such blows, then they must have been so minimal as to defy medical observation0 Now, the blow on the head could have been struck at the end of the fight, by any one of the accused persons,.probably when that particular accused saw PW5 approaching. Having regard to this possibility, it is arguable whether the rest of the accused persons had the guilty intent, since as I have said, the assault up to that stage, would appear to have had not occasioned any grievous harma in my opinion the matter whether the rest of the accused had a common intention to kill or to do grievous harm, is not free of doubt.. Likewise the matter whether they knew that death or grievous harm was the probable result of their assault act, I would respectifully differ with the gentlemen assessors in my finding that there is doubt whether the fatal head blow was committed in furtherance of a common purpose. It being doubtful as to who delivered the fatal blow, I am constrained to dismiss the charge as a whole, inthe event, I find all the accused not guilty of murder and acqtiit them, They are to be dischaged from custody unless other- wise lawfully held.,. -"I 28/2/74,.. D,P. MAPIG4.NO - G. IJUDGE . . . . . .... 13 Court as before Mr. Mwipopo for the Republic Mr. Mangat for the Accused. Accuseds present under custody. Judgment pronounced. D.PXMAP IG'ANO / AG. JUDGE /