19740808 TZHC Moshi

IF- .-- - IN TH IGH COURT OF TAN IA AT MOSHI / 6j ft ORI'GINAL JURISDI TION (Arusha Registry) CRIMINAL SESSIONS CASE NO. 88 OF 1973. The Republic. versUs B. 38913 PC 8AIMON FRANK CHARGE: Murder c/s. 196 of the Penal Code. JUDGMENT JONATHAN, J. Police Constable Simon Frank stands charged with murder, c/s. 196 of the Penal CQde. The information alleges that, on tpril 20th, 1973 at Police Lines, Mohi he murdered one Halima d/o Oman. It is undisputed that Halima d/o Omuri is dead. The evidence of Dr. Philip shows that she died on April 20t4 L1973' as.a resul:t of a gun shot which hit the forehead above the lft eye and came out at the back of the had, theeby causing -a fracture of the skull and lacertion of the brain. We are satisfied this js an accurate account of the doctor's observation, and on such evidence we are clear the death was caused by a gun shot • -. - th.toUgh the - head The background to her death is lagely undisputed-also. . The accused at the material time was a police constable. He had his living quartcrs at the Police Lines, Moshi,, where for several months previously he--had kept the deceaszd as his concubine0 On the night preceding the fateful morning he and Detective Sereent Major Simon (P.w12) hacl.been on night duty guarding the premises of a bank in the township, for which they had each been issued with a gun- . - That of the accused was an Irael made sub—machine gun called UZI.- At dawn they reported back at the ármoury to hand in. the - weapons. .Howeker, they did nof find, the arthoury officer, constableMathias (P.W 6) 9 whereupon, according to Major Simorhe sent the accused to look for Máthiás. The accused did not return within - a reasonable time and Major - - .:Simor decied to deposit his gun with Mwita Mali - as the superior officer of t4athias. On this point the accusd both in his cautionoct statement to the police and in his unsworn statement In defence says that, he and Major Simon uponfinding Mathias absent agre-d to take their guns borne and to return them to the armoury later that morning. There was evidence by various - witnessth-hat, in the event of Mathias hin away,Mwita Msali was the proper officer to handover the gun, and indeed it was to him that Major Simon handed his gun. .The-accus.ed is not.telling the truth,- therefore, when he says he and Major Simon agreed to 'take the guns. home. Accused took the gun home, -Three or f .our hours. later there was .bhe iticidént P.C. George's (P.W 5) hoIse was next to that of the accused, about 5 paces from it. According to this witness and P.0 Godfrey (P.W 4.) who was at the house of PC Geoge, at about ten o'clock that morning they heard the sound of gunshots inside the house of the accused. They were shots of an automatic gun ashey were in rapid succession. They were however broken by one or two very brief pauses, during one of which P.0 Godfrey called accused. There was no respore and the shots resumed. It would appear from subsequent investigations that altogether, -there were as many as eighteen shots. Immediately after the shots stopped the voice of accused was hard 1esperately calling P.C. Godfrey for help. The main' door was bolted from inside and the witnesses had to break it -open to enter the sitting room. They then entered the bedroom only to find the deceased on the floor near' - the bed and lying helplessly, on her -back. She had a wound on the forehead. /was/-Accusedtoo,/lying helplessly on the floor. He was ncrr:thebedroom door - and further away from the bed than wa4he deceasedo /2 - - 0 -. 2 - The UZI gun was in.etween,.the barrel pointing at the stomach of the accused. He had several wounds. Accused narrating 'the incident to the, two police officers saidthathe hadre€urnd from duty at 6,00 a.m, put the gun uner the piilow ar)d then slept until about .10.00 a.m. when woke up. He had then left the room td stay either in the sitting room or in the kitchen (s.C. Godfrey and' P.0 George differ on this), to make room for the deceasod to make the bed. He hn1 then heard shots inside the bedroom and gone there to take the gun from deceased. He hJ found her holding the gun and having, a wound on the forehead, and as he was trying to seize the gun he had himself s'ustined injuries. They were taken to hospital in.a critical condtio,that of the deceased being by far the worse off for she cOuld not spLak. it one stage while on the way to host ital the accused enuired of the witnesses to lçnoi'i'"the cOndition of the deceased.: Dr Ndosi (P.W '2t)..'of •the Kilimanjaro Christian Medical Centre Hospital who attended to the accused observed five rather superficial gun shot wounds o nLth ecc he, four wounds penetrating the stomach and two more wounds at the left elbow which was crushed. Thedoctqr in his opihlon 'said 1f'wds extremely Unlikely that these wounds could haVe been self-inflicted. The Dep-uty Regional Police Commande, Mr. J3akerà (,w3) held a 'differe'nt vie: For, he said it was quite possible for the accused tohVe dClibera'€l......r±li'cted: the wounds, and the witness duly demonstrated to this effect0 He had searched the bedroom, of accused and observed 13 gunshot marks on different walls. It would appear the five 'other shots, giving the total of oeighteen, had Sb at the roof, ' . . •, The accused In a caudned statement' to the police said he had put the gun unier the bed at*the top andthem slept. Dcensed ioke him up at 10.00 a.m and as she was making the bed he moved to the sitting room to comb his hair. A short while later he heard gun shots and rushed to the bedroom in order to seize the gun from the decased. Upon entering the oarrel was pointing at the door and gun shots hit him. He fell helplessly on the floor before he could reach her. The shots continued for a little longer and ultim'tely, he hdard the deceased ancthe gun fall to the floor. His unsworn statement in defence is essentially iontica1. It is the prosècutiori'chse that the fatal shot was fired- by the accused' who then shot himself to fakeup an accident being caused by the deceased. For this reliance is scuoht mainly on the evidence of Constable Godfrey and George who spoke of pauses in between the shots, and on the evidence also of a balistics expert, Mr. Malangalila (P0W 11)0 Accordir- to him on'C requires some training to fire at intOrvals The ddceased had r0e. He alo said thot a person upon shooting at himself, throws "away the g and cannot continue to hot. Mr. Osinde Wangwor the learned state attorney submits, therefore,, that the deceased ftr sustaining thefatal shot could not have then held on to the gun to fire more shots. There would, at first glaná apear to he some merit in'Mr. 0inde's argument For, going on the evidànce of Mr.: Malangalila which I acc'ept, if the accused eiftered the room tO find the deceased having fired the fatal shot, it was not possible for her to fird anymore shots, thareby1wounding the accused as well. We have .to examine the premis upóh which" the argument is founded. As already statedabove, according to P.C. Godfrey, the accused had said that as,he ented the room he sawthë'decased holding the gun and having a wound on the forehead. P.CO .Ge'orge's version was not exactly to the same effect. For, he said the 'ccused reliéd to them that he'got the shots as. he was trying to zeize the gun from hOr. The're are, on the other hand, the cautioned statement and the unsworn statement of the accused. In the latter he does not dwell specifica]ly on the point, but he would ap)ear to say in the cautioned statement that the decaisd red the fatal shot 1 after she had:", iñjure him. The poiht hO' thref ore to' be resolved whether the ac'cused found the deceased having had the injury or whether that was occasioned thereafter. This did not appear so significant when constable Godfrey and George were giving evidence and the point was not really /an probed. The accused, fohis patt, -;by,giving melunsworn.'.statement has --/3 V .- - 3 - not assisted in throwing. light - onthe matt r, indeed on the circumstances as a whole0 I would, however, consider it unsafe to go on the premis that' the accused is saying: heiôiind the deceased having 'fired the f'tal shot. This, I think, sufficiently disposes of Mr0 Osinde's arguement.. There is, however, the point raised by the learned state attorney th a t.f±h:e • deceased, had shot herself ,some burning aoUld have appeared on the. face0 Dr. Philip does not appear o have observcd such burning. I cannot, with respect, see much substance in this argurnnt. There was no evilence that self inflicted aun shot wounds must be accompanied by some burning, nor was it 'id that other .gu1 shot wounds cannot have such a characteristic. I think Dr1. Philip and Mrp aIangal'i'ia'.were saying that it all depends on the shortness of the shooting.ranqe0 . There is of course the evidence that the accued was not supposed to take the gun home for the regui.tions clearly prohibited that. He may not have found P.C. Mathias at the armóuryut he could have taken the weapon to Mwita Msali as Major Sinron had ddne. But ts rightly pointed out by Mr. Mawalla, the learned defence advocate, the breach of the regulations did not necessarily indicate the accused had a plan set. For, tLS clear that had he found Mathias present he would have handed in the gun. • . We have been asked to find that the accused fired the that kIllec the deceased. I3oth the gentlemen assessors sitting with me, are,' however, clearly and firmly of the view that the death was accidental. The evidence is not altogether c1er as to what transpred at the time of the shooting. In this the ccused has not been as helpful as he might have been. This apart, can we say that his account is unreasonable and should he rejected? It may be recapitulated. He heard gun shots(the gun had been left loaded and cocked redy f(:'firing).. and:.ruhed in... t ind the deceased holding the gun. It was pointing at the door and several shots hit the accused. Deceased, presumably shaken and out of control,accidental shot herself,dropped the gun añ1 fell on.the floor. The particular type of gun Is not a simple machIrto handle and it is not insignficant to /because/note that Maijor Simon is not'particularly fond of it, apparently/it require experiencd:hand1ingo The deceased was completely a novice, at that. Such account cannot in my view be lightly rejected. Mr. Mawalla has then vigorously submitted that the accused could not have intended to kill the deceased. There seems to have been no motive whatsoever. The accused had on the previous evening played football with P.C. Godfrey. According to the witness he had looked quite normal. At 8.00 p0m.. accused had gone out for duty in the company of Major Simon. This witness, too, said the accused was in his usual temparament. The witnesses who had knowithe accused and deceased sufficiently closely had known of no friction between them. There is then the evidence of P.C. Godfrey that it was calm when the shots started and that he did not hear any quarrel between the accused and the deceased, which he was in a position to hear. if there had been any.. There is finally, the vidên of P.0 George that at one stage the accused asked to know th condition of his girl friend, which inquiry, Mr. Mawalla submits, was consistent with the accused's innocence. The evidence as a whole in our view raises considerable doubt that the accused may not have been responsible for the fatal shot, and that it may have been triggered off by the deceased herself.. Accordingly, I am respectfully in agreement with the assessors that the accused is not guilty of the charge. We acquit him of it. . However, the conduct of the accused in taking the'.gun'hme and leaving it under the bed, apparently at the ready, cannot but be'-extrnfely negligent. Accordingly, I am also in agreement with the gentlemen assossor that he is guilty of a reckless act, c/s. 2, 3 (g) of the Penal Code, We convict him accordingly. . P.M. JONATHAN, J. . 8/8/74 . /3• , Jr - .- - Mr0 Osinde Accused has no previous convictions0 Mr0 Mawalla - Accused has been in the Force for 3 years His recorl in the Force Y. is clean0 He is. a first offender0. He has.heen in remand for over a year0 By virtue of the onyition it is very doubtful he would be're—employe&by the ll Force0 He may lose his iDonefits0 The't, I su5mit, is ample punishment0 The 6ffencei.a misdemeanourd Section 234 and 235 are similar to Section 23 There the punishmeflt is-6 month impriscnment0 1 would plead these factors be taken into consideration0 SENTENCE.. •. ,. .;;The:acused is convitédof a reckless act c/s 233 ()of the Penal Co1e0 • It akThtUt a il that Mri, Mawalla has pleaded for ...him in mitigation, and it might also be said in his favour that, aftor a long sleepless night, the accused was tired, sleepy and prono to forget :ulnëss- Would onside±thi to he a fit case for giving suspended sentence 'Accordingly, acdused is sentenced to ohths imprisonment to be süended for 12 months conditional upor his not committing an offence within this period0 . ... • 00 JONKTHAN, . .• . . ,.. JUDGE .., . :. 8/8/74 /Kimathi : • • : . • .. . . . . . .... .. ....... 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