19740810 TZHC Kondoa

• ., IN THE HIGH COURT OF TANZANIA AT KONDOA ORIGINAL JURISDICTION (DOD0MA REGISTRY) CRIMINAL SESSIONS CASE NO. 11/74 THE REPUBLIC VERSUS NDANGVENGtE S/o NININI Charge: Murder c/s 196 of the Penal Code. J U D G M E N T MAPIGANO AG., J. The accused NDANG.!ENG' S S/O NININI, a Mznasai youth,. is on a charge of murder, namely that on the 3rd daydf February, 1973 at a place called Sonzogolo. in Kondoa district he r . mf malice aforethought caused the death of his cousin., one MWNDA SIO NGOYE. It. is common ground and conclusively established that the said.Mlanda Ngoye.died upon sustaining an arrow wound on his chest on that day0 A deadly poisonous arrow. blade was, found in his body 0 It had penetrated the chest slantwise towards the right,, piercing the right lung and the heart, and this caused bleeding into the pericardium t' i.e. the membranous sac which contains the heart. The doctor who performed the post—mortem says that the bleeding was fatal, he did not say whether the poison on the arrow had any contributory effect to the death, and neither is the •rc 'jj6.of the evidence suggestive of that possibility,, However, whatever consequences were precipitated by the poison, it is clear and undeniable that it was the arrow blow which brought about the death of the deceased, and I so find. The deceased's death was preceded by a fracas involving the deceased, the accused and the young brother of the accused called Sepeiwa Ninini (PW3). It is plain that it was the deceased who started the fracas. It is not in dispute, indeed it is common ground that the accused and his brother were at-âe in a journey and on a perfectly peaceful mission at the material time, when they met with ' the deceased in a forest near their home. They had just finished accosting him when to their great surprise and apropos of nothing the deceased charged towards Sepelwa Ninini and started hitting him with a stick. He subsequently turned to hit the accused who had endeavoured to intervene, and in due course he got stabbed with one of the three arrows which the accused was carrying and died shortly after that stab. There is nothing like clear and positive evidence to show how the deceased sustained the arrow wound. The prosecution conten4s that the arrow was discharged towards the deceased by the accused from a distance, but there is precious little evidence to bear that out. That may only be surmised from the intensity of the blow. But the intensity of the blow in itself is also equally consistent with the accused's contention that the deceased sustained the blow during a face to face confrontation0 I am therefore bound to give the the benefit of doubt on this point, and find that the arrow was not discharged from a distance, but there was a face to face confrontation during which the deceased got stabbed fatally. One of the defence put forward is that the stab was entirely accidental,.. It. is submitted that the deceased may have bumped himself into the arrow which the accused was using in warding off the stick blows whf?h the deceased was deilvering on the accused. I wotil1 reject that possibi1ity v because apart from the intensity of the arrow stab s . that has never been the version put forward by the accused himself 0 I have read his extra-.judicial statement and I have also heard and recorded down his short statement from the dock s and I find that by and 0 0 S • • 0/2 large he explains that in the face of the continuous stick blows which the deceased was dealing him, he resolved to resort to the arrow s whereby he stabbed' the deceased on the chest with it The deceased cannot therefore be said to have collided with an arrow which was not meant to stab him, In my opinion, the accused did deliberately re€iort to it and wilfully stabbed the deceased on the chest with it, The defence of accident would no therefore avail hime There is however consensus among the two assessors who sat with me that the accused struck the blow in self—defence0 I will therefore review the evidence briefly to see whether or not this opinion has any reasonable basis. According to Sepeiwa Ninini, what happened is that he Sepeiwa ran away on being hit twice by-the deceased. to save himself from further punishment. And that when he had done so the deceased turned to the accused and started beating bLm. Sepelw.a went on to say that he proceeded to hide himself and did not see what happened at the scene thereafter. The accused's account from the dock is that he tried to separate the deceased from Sepeiwa and that the deceased threw away the small stick, exhibit P3, with which he was hitting Sepeiwa and then took a club s exhibit P5 9 and started hitting him. He stated that on one of the blows landing on his finger, he decided also to run away from the dedeased, Now, in his extra—judicial statement, exhibit P2. he had told the J,P, that beore interceding in the quarrel in order to help his brother Sepeiwa, he had run away for a distance of fifty yards. This as the prosecution has properly observed, does, not tend to tally with what he had stated.in this court. But I would, in my judgment, consider it to be an immaterial conflict: if it is a conflict at all 0 The substance of his story is that at one tage he resolved to intervene and that he actually did so 0 The accused further alleged that the deceased gave ciase' and that when he the accused got tired, he stopped running, whereupon the deceased caught with him and resumed clubbing him. When he saw that the deceased was bent on giving him further blows, he stabbed him 0 They then wrestled and when the deceased fell down, he the accused fled from him and went home where he related to his uncle, Lesebele Mugagamu (PW4) what had happened',, and thence to a primary court where he surrendered himself. There is no evidence to contradict this accuunt. The prosecution proposes that the deceased never pursued the accused as alleged. Again the evidence does not support that proposition. On the contrary, there is the evidence of Sepeiwa. who testified that ere he found the deceased lying dead with the arrow was a different place from where he left him challenging the f accused. This is reinforced by the testimony of Sub—Inspector Lucas PW7) to the effect that he traced the stick 2 exhibit P3 9 and the club, exhibit P5, at different places0 The fact is therefore that there was a chase, and what is believable is that it was the deceased who was giving that chase. It has always been a good defence in justification' of killing, that the accused caused the death merely in his own defence s that is, in order to repel an attack by the deceased. But it has generally been required of the accused to temporize, to disengage from the fight if circumstances allow, and to retreat as far as is human1k possible.. And further that he should only strike when his life is manifestly in ikinent danger. Mr. Mbezi learned counsel f or the accused, submitted that the accused in the instant case did precisely that. I respectfully agree with him, On the evidence, we have here the deceased person who formented trouble capriciously embarking on striking Sepelwa In response to a greeting! The accused was perfectly justified, indeed called upon, in those circumstances, to intervene. He did so, whereupon the brunt of the deceased's rnischivousness was directed to him0 The accused took to his heels in order to avoid further belabouring, but it was a measure of the deceased's vicious temperament and his determination to inflict more blows on hLm, that he pursued the accused in. order to punish him for nothing0. The accused alleged that he stopped running when he was out of breath and that that is when the deceased reached him and continued beating him with the club, which club is to my mind eminently capable of delivering formidable blows. 0 0 5 • 0 0 It is therefore evidently clear that the accused did whatever he was expected to do in order to evade the attack on' him. Given that situation and taking into consideration that the event took place in a 'forest, any reasonable man would, in my view, be justified in apprehending that his life was in imminent danger such as to impel him to attack in order to forestall the impending danger to his life. This brings to the fore the question whether that kind of attack was reasonable, the position being that in all cases of self- defence the accused can only 'justify such assault as was necessary to his defence 0 The prosecution submits that the accused's attack in the manner of stabbing the deceased with the poisoned arrow was unwarranted On the other hand the defence argues that the arrow was handy and that in those circumstances, it was not at all unreasonable for him to employ it. One would have thought that perhaps the accused should have - '.1. utilized his bow at the first instance 0 He could have struck the deceased with 'the bow stick from a distance without himself being touched. Still, it could be argued with some force that that may be indulging in wishful thinking, since it might be unrealistic to expect the accused in that sort of predicament to weigh to a nicety as to what weapon between the two he should resort to0 I am not sure whether that kind of attack was not necessary, and I have to give the accused the benefit of that doubt. I would therefore sustain his defence that he killed the deceased in self—defence0 In the event, the accused is cleared of the charge of murder and acquitted. He is to be released unless he is detained on another matter. Judgment pronounced in court at Kondoa. Accused and both counsel present. V,.. 10/8/74 D.P0 MAPIGANO AG. JUDGE )