19740613 TZHC Dodoma

I. IN THE HIGH COURT OF TkNZANIA AT SINGIDA ORIGINAL JURISDICTION c_- (DODOMA REGISTRY) CRIMINAL SESSIONS CASE. NO.123/73 THE REPUBLIC VERSUS ALLY SIO SHABANI Charge: Murder c/s 196 of the Penal Code. J U D G M E N T MNZAVAS J. The accused Ally s/o Shabani stands charged with murder c/i 196 of the Penal Code. The prosecution Case is that the accused on,, or about the 14th day of October, 1972 at Mpongola village, Iramba district in Singida region murdered one, Kitundu s/o Shumbi. From the evidence of Shumbi Nkaula (PW7) and the doctor's post-mortem report (exhibit C) there can be no doubt that a man by the name of Kitundu s/o Shumbi has died. Equally there can be no doubt from the post-mortem report that Kitundu s/o Shumbi died a violent death. What is in dispute is - Who was the perpetrator of this crime? The Republic argued that it was the accused who uxiawfully and intentionally assaulted and killod the deceased. The accused denied killing the deceased. In support of the prosecution case that it is the accused who on the material night assaulted and killed the deceased three witnesses gave evidence. Omari Kitundu (PW1) testified to the court that he was at one, Samwel'.s home-stead on the evening of 14/10/72 where there was pombe for mourning0 According to his evidence as they were dancing a native dance known as Mbutu the accused suddenly assaulted the deceased with a club and ran away.. He told the court that he chased the accused, held him and fell him down but that the accused managed to free himself and started running again. The witness continued his chase and that he again arrested him According to his evidence at this juncture the accused drew a knife and attempted to stab him but that accused's knife only tore his shirt. It was his evidence that after they had seen that the accused was armed they stopped chasing him and raised en alarm. Nelson (PW2) also testified to the court that as he was 3sault- at Samwel's place drinking pombe he saw the accusedLon the head ig the with a club. He told the court how he participated in chasing ceased the accused and how he helped Oman (PW1) in arresting him.. He also related to the court that the accused pullod a knife and attempted to stab him and that he had to retreat to avoid being stabbed by the accused. Kiula (PW3) gave similar evidence as that of Oman (Pwi) and Nelson (PW2) regarding the assault of the deceased and the chasing of the accused. He told the court that he saw the accused as he was escaping from the grip of Oman (1:W1). According to this witness after the alarm he and other villagers went to accused's house and called him to come out and t12.at the accused replied: "If I come out I will assault another rson." It was his evidence that one Masense (PW5), elder S S S S a S S • . 12 * brother of the accused, helped in arresting the accused and that they brought him to Samwel's house. The accused in his unsworn defence denied killing the deceased. According to his defence on the material day he left his house soon after 12 noon to one, Shuka, where there was pombe and that he drank pombe at Shaka's place up to about 4 p.m. when he returned home. It was his defence that he did not visit Samwol's home-stead on the day the deceased is said to have been assaulted. After summing up to the gentlemen assessors they were both of the opinion that the three eye witnesses told the court the truth about the assault, and found it as a fact that it is the accused who assaulted the deceased on the material night and caused his death. As to the question of malice aforethought it was their opinion that the accused did not intend to kill the deceased when he attacked him with the club (exhibit B). From the demeanour of the three eye witnesses (PW1PW2 and PW3) and their bearing in the witness box, I have not the slightest hesitation in accepting their evidence that they clearly saw the accused assaulting the deceased with the club. Equally I have no doubt at all that it was the assault of the deceased by the accused that caused deceased'ls death. The only difficult question which has for quite some time troubled my mind is whether at the time the accused inflicted the fatal blow he had formed an intention to kill the deceased or to cause him grievous harm. The learned state attorney argued that the fact that the accused used a club in assaulting the deceased arid the fact that he landed the blow on a vulnerable part of deceased's body, the head, showed that the accused inflicted the blow with malice aforethought. The learned defence counsel on the other hand argued that the fact that only one blow was inflicted by the accused showed that the accused did not intend to kill the deceased when he inflicted the single blow. In support of this argument the court was referred to the decision of the Court of Appeal in MWAKABUKU and another (1972) H.C.D. Case No. 89. The decision of this Court in R vs STEPHANO (1972) H.C.D. 199 was also quotted in support of the defence argument that the prosecution had failo'3 to establish malice aforethought beyond all reasonabla doubt. Intent is rarely proved by direct evidence. It can often be inferred from the circumstances viewed as awhole 0 The nature of the weapon used in inflicting the blow, the manner in which the blow is inflictedLthe blow is tdirocted, are the main factors to be considered so is the motive if any motive is known. thich In the present case the club used by the accused in assaulting the deceased was undoubtedly a formidable ono. The blow was obviously struck wildly although thoro was no fracture of the skull; and the blow was directed to the head, a vulnerable part of the body. There is however no known motive or provocation. There is no suggestion, lot alone evidence, of any quarrel or grievance, however trivial. The prosecution is of course not required to prove motive but the complete lack of motive is relevant to the question of intent. Why then did the •accusod behave in such a reckless manner? The second assessor in finding the accused gtdlty of manslaughter told the court that dancers in Nbutu dance always assault themselves when dancing and that this is part and parcel of Mbutu dance. He told the court that in assaulting the deceased the accused was only doing what all Mbutu dancers do but that it was unfortunate that he used excessive force. I think this gives some light as to why the accused assaulfed the deceased. There was also the evidence of Samwcl (PW4) who told the court that when he was inside his house he hoard people outside saying - I... • i'I- . . • .. . 13 p 4, "They are fighting", If there was fighting between the accused and, the docoaèod when the former inflicted the fatal blow the kIlling would, unless there are very special circumstances, amount to manslaughter only and not murder - R.its J OHN 98) HOC..D ,4,9. On the evidence I agree with the opinion of both assessors that it is not possible to say with that degree of certainty required in a criminal case that the accused killed the deceased with malice aforethought.' As it was hold in the case Of R V's JOSEPH YUSNGO, (1946) E.A.C.AO 73 - "Where it is doubtful on the evidence that the accused intended to kill or cause grievous harm to the deceased he should be given the benefit of the doubt and found guilty, not of murdorbut of man- slaughter". Like the gentlemen assessors I find tho' accused not guilty'of murdo' and I accordingly acquit him of this charge- But on the evidence, I convict him of the lesser offence of manslaughter c/s 195 of the Penal Code.'. A k N.S. MNZA'çAS' JUD---3 Prosecut - No record my lord. ThMitigation' —Mr. Mbozi - My lord this; is M . unfortunate death arising out of a traditional dance.' It is most unfortunate that the accused used oxcossivo force in assaulting the deceased; an assault which was otherwise traditionally allowed. The accused is marricd with three children.': His father is dead and his mother depends on him. He is a frt offender who has already bean in custody for 21 months.' In view of this my lord '1 pray ±' or leniency on the accused person. Accused - I also have my two young brotherswho are schooling. My. grand—mother also depends on ma. Sentonce - This is by any standards, a bad case of manslaughter. The accused is sentenced to 10 years imprisoument. R.O.A. t'o E.A.C.A. explained... S ING IDA N 13/6/74 JUDGE Lushagara for the Republic. Mbezi for the Accused.