19740220 TZHC Dodoma

/15 IN THE HIGH COURT OF TANZANIA AT DODOMt. E.A.C.A O CRIMINAL APPEAL NO. 31 OF 1974 -. ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 77 OF 1973 • THE REPUBLIC .5. I.. .5. • -.' .'VERSUS • i 8JUig74 I RALIFA s/o ABEID KIMPINGA I -- ... a • J.0 D G N EN T The accused Halif a s/o Aboid Kimpia Is charged with mtider, contrary to section 196 of the Penal Code,the allegation being that he murdered one Yusuf s/d Rajabu Mdanga on the 1st day of July, 1972 at Twist Bar, within the township of Kondoa. On the evidence tendered in this court, I have no doubt that Yusuf do Rajabu Mdanga is dead. He was fatally stabbed at Twist bar.while he was drinking with his wife, Mwamvita Nohamod (Pw4). HO was stabbed twice on the abdomen. According to Dr. Charles who performed the post mortem on.the dead body, the weapon penetrated 2 inches: into the deceased's body,. thereby rupturing the left lobe of the liver. The deceased died a few hours after the infliction of the two ounds. I accept the evidence of Dr. Char1es.that death was due to : shock, foilowing excessive bleeding from the two stab wounds in the liver, - There is evidence from four witnesses which implicates the accused in the killing, this is the evidence of the deceased's wife, Mwamvita, of George Martih Malesa (PW2), of Patrick Joseph (PW3) and of Paulina Matei (2115). The thrust of their evidence is that the accused stabbed the deceased apropos of nothing, and.tbat by threatening to stab other people who were there, theadoused cowed them wherefore he managed to escape. It is not in dispute that the deceased and his wife arrived-.at • the bar at about 8 p.m. They. sat in an inner room where .they were later joined byPatrick.oeph and George Martin They were. served with drinks, A short while back, the aZ ,.6used had beendrinkiiig with Pa±ribk Joseph at the counter of the same bar. The accused had however left the bar f or a short while. When he returned. to"the bar,he went to see Patrick Joseph in the inner room. He found Patrick Joseph disputing a claim of • Shs. 425 by the 4barthaid Paulina Matei, and he, the accused, offered to.pay the money on Patrick's behalf. He duly paid the 5 nioney. Later Patrick introduced the accused to Goorgo Martin 'Malesa and according to the four witnesses, it was this intro- duction which set in the short chain of events which culminated in the tragic death of the deceased. • 41 /16 /16 According to the four witnesses, the accused.remarked, on being introduced to George, that he had seen George at two other bars during the same ovenii.g; wbereupon George rejoined by saying 'how is that you wore observing me in all the places?' or words to that effect. Somehow the accused was infuriated by this remark. He immediately drew out a kuife from his pocket and started knocking bottles which were on a table. According to Patrick, the deceased then asked the accused why he was disturbing them and the accused replied by saying 'now you are going to see.' The gathering apprehended that the accused was bent on doing mischief and started to flee from the room. However, the deceased had not managed to escape when the accused stabbed him twice on the abdomen. The deceased who was bleeding profusely, walked out and proceeded to the hospital. The accused also walked out while threatening, and disappeared from the scene. The deceased died at the hospital during the same night. On receiving a report of the incident, the police mounted a search for the accused but were not successful in tracing him in Kondoa. The accused was arrested at Arusha where he lives, on 11th July, 1972 The accused agrees that he was at Twist bar during that night. He related that he had gone to Kondoa from Arusha to visit his aunt who was ill. He had arrived at Kondoa at about 1 p.m. on the same day. He had seen his aunt whose condition was improving and encouraging. He had then, at about 7 p.m. gone to drink at 'High Life' bar where he met Patrick Joseph whom hethad known since 1958. He had drunk two pegs of VAT 69 after which he proceeded to Twist bar with Patrick, where they continued drinking Lrhen he felt that he had taken too much liqueur, he left Patrick there and went to a hotel to take food. He went back to Twist bar only to find that Patrick had left the counter. He followed Patrick in a room where he found Patrick arguing with the bar-maid. He inter- vened by paying Shs. 4/25 which the barmaid was demanding from Patrick. He then told Patrick that he was tired and that he felt he had enough drinks. He then left the place and proceeded to the bus stand, where he slept. He left for Arusha by bus the next morning. He went on to say that while he was in the journey, police who were accompanied with Patrick stopped the bus, apparently looking for a suspect. He alleged that he heard Patrick telling the police that the suspect was not in the bus. It is evident that the accused denies the allegation that he was the person who stabbed and killed the decascd, as according to his account he was not involved in any unpleasant exchange of remarks with George Martin Malosa and in any assault incident while he was at Twist bar. However; the evidence against him is overwhelming. I believe the prosecution witnesses that it was the accused who stabbed the deceased. I find no reason and the accused himself did not suggest any reason, why these witnesses should fabricate evidence against him. On the evidence, I have not the slightest hesitation in reaching the decision that it was the accused who caused the death and that the accused's act was unlawful and I so find. A more important question in this case is whether the killing amounted to murder as defined by section 200 of the Penal Code. I may remark that there is nothing in.this case which suggest, and it was not pleaded by the defence, that the stabbing was done under p±óvocation. There is also nothing to snggest that there was any bad blood between the accused and the deceased and probability is that the two persons may have been strangers to each other. Now I must say at this stage, that I, accept the submission by counsel for the Republic, that considering the weapon employed, the part of the body which was stabbed, the fact that the accused inflicted not one but two stabs and the intensity of the blows, an intent to do grievous harm or a knowledge on the part of the accused, that the assault / would probably cause grievous harm, must be inferred. /17 The inference must be drawn unless: (1) the accused was either by reason of a mental illness or by reason of alcoholic excess, insane, which is not pleaded or suggested by the evidence as a whole: OR (2) the accused's mind was incapacitated by intoxication to the extent that he could not have formed a guilty intent, which is pleaded here and which I now proceed to consider s Counsel for the defence has invited this court to take intoxication into account in accordance with section 14(4) of the Penal Coda. The accused himself does riot say he was so intoxicated and of course that was not his line of defence. However, this does not preclude the court to consider this matter and to sustain this defence, if there is enouh material in the evidence as a whole such as will leave me with a reasonable doubt as to the accused's guilty intent. The question which now poses is how drunk he was the accused. It is not in dispute that accused had been drinking since about 6 p.m. Jccording to his own statements, he drank 'soda' and two pegs of whisky at High Life bar, and at Twist bar he drank two more pegs of whisky. According to Paulina the accused drank one bottle of beer and three pegs of whisky at Twist bar. There is evidence that he had also been at River bar but it is not alleged that he also took any drinks there. It is probably true that the accused was drinking on an empty stomach. However according to George, Patrick and Mwamvita, the accused did not appear drunk at the time he commi- tted the assault, while according to Paulina he was moderately drunk and could walk normally. On the other hand, the defence argued that the accused's demeanour i.e.. picking up a quarrel from nowhere, knocking the bottles with a knife and the killing, shows that he was drunk and that his drunkness was such as it prevented the formation of a specific intent. I am not persuaded by the defence argument. I do not think that accused was so befuddled with drink that he could not have formed a guilty intent. Unlike in the case of Stefano Alois (1972) HCD No. 199, which was quoted by the defence in support, the accused in the instant case disappeared after the event and was not traced in Kondoa. He did not appear to be intoxicated when he stabbed the deceased. His statements before the committing magistrate and before this court, appear to be wholesome. He could recollect that there was a dispute between Patrick and Paulina and that he settled that dispute by paying Paulina a sum of Shs. 4/25. In the case of Stefano Alois, the accused had elped himself liberally to the free drink and had become drunk when he stabbed the deceased.. As the learned judge found, the accused was so dni.nk that he had no recollection of what had happened and was unaware that he had stabbed anyone until he was told so on the following morning, when he was in custody of the Ward Executive officer. Like the assessors there- f ore, I find that there is nothing from his statements or from those of the witnesses who observed him, to suggest that at the time of this event, the present accused's faculties were affected to the extent that he could not have formed an intent to do grievous harm, or to the extant of not knowing that his act would probably cause grievous harm to the deceased. In the event, I feel constrained to find that the accused, of malice aforethought, caused the death of Yusuf s/a Rajabu Mdanga., I find him guilty of murder and convict him accordingly. D. P. Mapigano Ag. Judge /18 rAI 20/2/74 Court, advocates as before Accused present under custody. 0 Judgment pronounced in court. Allocutus: I have big family to look after. Sentence: There is only one sentence which this court can pass. Thaj is you Halif a sb Aboid Kimpinga, shall suffer death by hangirg, D. P. Mapigano S .Lg . Ju dae Right of ppeal to Court of Appeal explained. D. P. MapiganO Judg /1 9 N