19740316 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA S ORIGINAL JURISDICTION I 4 * (DODOMA REGISTRY) CRIMINAL SESSIONS CKSE NO162 .OF: 1973 • THE REPUBLIC - V * . S 'I •. S • S •-VERSUS' I •. • WILLIAM SIO MATELEKA •.. .. S • Chargè: Murder d/s 1'96 of thePehal Code Cap.16 • * of the L-aws: 5 •.. • • • . • ... • • • JUGMENT - • - . - •. . • I • I •.•. S • MAPIGANOAG. J. The accused WILLIAM s/o MATELEKA stands charged with murder in that or orIabut the 17th-day of March, l973, he murdeved one AUGUSTINO /OMADAKA: Tothis harge the accused has pleaded not guilty. • •- Prosecution has' led evidence from three witnesses to .-shdw that the accused and the.deceasd had quarrelled in the evening • of that fa'ful day and that < they eventually fught each other 4 The • 'evidence show that-before this affrhy,.the accused and the deceased had traded in the commodity of vulgar jokes as they were drinking pombe .,at the house,of TanielLChilingo-(PW1), a ten cell leader. •The accused • told the-deceased hat-his.ciife.ws deserting him and the deceased rejoined by saying the accüsedts wife 5was carrying on with him. According • . to Tanieli, both the accused arid .the deceased were very drunk. Bystanders • separated them thid?nañaged tocalm them e Then Tanieli, asked the whole • . - crowd to leav and it scattered 0 The accused has denied having fought . - • with the deceased tthe house of Tanieli. However I am satisfied by • the evidence tendered by the three witnesses that a fight, albeit a feeble One, took place - as related, • •.: •• • It was on his way home when the accused was stabbed on • -. the tomach, which stab brought oCit a segment of his intestines. The • deceased was however able to proceed to the house of Asubeti Madaka • (PW3),• his young brother, which house was about 115 paces from the scene. He died at that house ater a few hours 4 The body was taken - •by.police and examined by a medical' officer at Mpwapwa Government Hospital. A small woundon. the left upper side of the abdomen, was observed by the doct'or, whoThlso. observed that one metre of the small intastine was protruding,, His opinion was that -death was due to shock • and the protruding intestines.• It cannot be said that 1his opinion is' unfounded, * It is my-finding that the death is attributable to the - stab blow which the deceasedreceived on his way home 0 This in facts is not in dispute. What is in dispute is whether it was the accused who • inflicted the blow upon the deceased- In this respect the accused is implicated by the evidence of. -David Nadaka (Pw2) and by the deceased's • dying declaration. I will deal with the dying declaration first Three witnesses, namely David Madaka (pW2), Asubeti Madaka (PW3) and Boti Nghwenzi (PW4), claimed that before he succumbed t the blow, the deceased told them that it was the accused who had stabbed him, PW2 and PW3 in particular stated that the deceased • declared this immediately on arrival at the house of PW3. I find it as a fact that such a decalaration was made by the deceased while at the house of the PW3 when he was dying. - While it is true that evidence • - - of a dying declaration by itself can be accepted, I think however that it would be risky for rne'to do that in the instant case, - 2 - As learned authors of "Evidence in East Africa (Law in Africa No, 24)" state at page 42, "the danger of accepting a dying delaration lies nbt only in the fact that the deceased, who cannot now be cross-examined on his decalaration, may have been uncertain or actually mendacious in his statement, but that he may in declaring the identity of his assailant sincerely believe his statement to be true and yeti in fact, have been mistaken" I accept this advice and I am now constrained to look for corroboration. It is not in controversy and I find it as a fact, that when he met his demise, the deceased was in the company of David Madaka his nephew, They were ip rocee di r!xg home from the pombe party. PW2 related that when they left the pombe place, accused had already left. They met him on the way and he was coming from the opposite direction s The deceased asked the accused who he was when they were about fifteen meters apart. The accused replied, to quote PW2, "I am a man, if you are also a man then let us confront each other." When they were near each other the deceased slapped the accused and the accused retreated a bit. Then be'chavged forward and reciprocated the deceased's blow by stabbing him on the stomach. When PW2 went nearer them, the accused threatened to stab him too and he, PW2, ran away in fright. He went home to inform the people there. He also said he went to tell Asubeti Madaka what had happened and that he arrived there earlier than the deceased. However this was disputed by PW3 who positively testified that it was the deceased and not PW2, who first arrived at his house on that occasion. I would think that it was PW3 who was correct as regards this matter; Asked how he was able to recognise the assailant, PW2 replied that there was moonlight and that he was standing at a distance of about seven metres fromthe accused when the latter stabbed his uncle. The central question here is whether PW2 1 s testimony is to be believed 9 In this regard I have to consider the possibility, as pointed out by the defence, that PW2 may have not recognized the assailant and he may only have believed the word of the deceased who implicated the accused by his declaration at the house of PW3. I have carefully assessed the evidence and I am satisfied that PW2 was telling the truth on this point. It is clear that the accused, the deceased and PW2 were neighbours and it is not in dispute that there was moonshine during the material time s As such, I think having heard what transpired between the assailant and the deceased and standing at a distance of sbout seven metres from them, the witness would have been able to identify the accused correctly 9 The assessors who sat with me are of the same opinion. I find that the withess sw and recognized the accused who later threatened to assault him with the knife. 'I therefore find that it was the accused who stabbed the deceased 9 I am fortified in this view by the fact that a handle of a pipe was discovered at the scene the following morning. This was not tendered in court, but the witnesses who saw it, that is Tanieli Chilingo (PW1), David Madaka (PW3), Boti Nghwenzi (PW4) and Lyacheleza Nadaka (PW7), testified that this pipe-handle belonged to the accused, that the only person who smokes a pipe in their locality is the accused, and further that the accused had that pipe at the pombe party a short while before the event, I now come to the mental element, whether when the accused stabbed the deceased he intended thereby to kill him or to do him grievous harm6 I may hasten to say that I will exclude the defence of provocation on the ground that though it is in evidence that it was the deceased who started assaulting the accused by slapping him, the retaliation, by stabbing if it was retaliation at all, was in those circumstances, excessive and unjustified. Likewise, the defence of self-defence cannot avail the accused, because the deceased's assault was not, it appears to me, so fierce as not to allow him to retreat and avoid the fighting altogether. He was obliged to retreat and he could, I thiJc, have done so safely. The eesaors are of the view that the stab was possibly an accidental one, particularly taking into consideration the fact that both the deceased and the accused were in drink. I will have a re-look into the evidence of David Madaka (PW2) in this respect. He said when he had been slapped by the deceased, the accused retreated a bit and then in another moment he charged forward, He then stabbed the deceased in the stomach. He did not specifically say that he saw the accused holding the knife at the ready. It may have been that the accused pulled out the knife when he had charged 4 S 3 Ir andengaged with the deceased in order merely to threateh, This is to say that tlié particulaTrs of the violence may have hapened under cir- c.imstances of confusion and that PW2 may have not observed hem accurately. Though,.therefore it was not a tdrunkenc.blow, as I believe that the aácused was not in such a complete state of intoxication as to make him incapable .of forming4 therequisite intent I would share the view Of thcr assessors that ti-le blo,hichas not intense.,may have been accidental, This essentially negatives the intent on the part of the accused, In the final event, I find him not gu?lty of murder an I acquit him 0 He is to be dischared forthwith, unless otherewise lawfully hld - D.P. MAPIGANO AG. JUDGE Court as before Counsel as before Accused present Judgment pronounced. D.P. MAPIGANO AG, JUDGE 16/3/74 . 4