19750220 TZHC Iringa

IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO0 143 OF 1974 THE REPUBLIC VERSUS ANTONI MSAMBA CHARGE: MURDER c/s 196 of the Penal Code0 J U D G M E N T The accused Antoni Msamba was indicted on a charge of murder, contrary to section 196 of the Penal Code, namely that on or about 19th March, 1974, he unlawfully and of malice aforethought killed his elder brother, one Nazaleno s/o Msamba, at Mgama in Iringa Region0 He was however called upon to answer a charge of assault causing actual bodily harm, contrary to section 241 of the Penal Code, as there was no sufficient evidence that he was responsible for the death 0 The evidence shows and the accused Ldmits that there was a row involving him and the deceased at the house of the accused on 17th March, 1974. This happened in the presence of several people, mostly relatives, including PW1 Aloyce Kidungu, their cousin, and PW4 Sikumbwa Kibiki, their mother0 According to Aloce, the accused ordered the deceased to leave the place as he, deceased, had allegedly stolen his stool0 The deceased agreed to leave, but almost instantly the accused rushed to him and pushed him0 The deceased stumbled on a ridge and fell down on his back and before he could rise the accused descended on him and employed his head to strike the deceased on the face0 They were disengaged and on standing up the accused rushed to pick up a stick with which he repeatedly slashed the deceased on the back0 The accused was caught and kept under control and the deceased was advised to go away. The deceased was agreeable and left for his home. On the following morning, he was found in his house, in which he lived alone, lying down and almost unconscious. He was taken to hospital but his condition deteriorated and he died on the following day. PW4 Sikumbwa testified as much. Dr. Kjwia (PW3) observed, on examining the dead body, that the skull i.e. the right parietal bone was fractured posteriorly and that this had caused bleeding into the brain. His opinion is that this was the immediate cause of the death and that it was suggestive of having been' inflicted by a blunt object and that the blow was formidable0 He excluded the possibility that the fatal injury was due to falling down on a hard surface or to being struck by a head. It was difficult therefore, in the light of the doctor's evidence, unchallenged as it was, to establish any nexus between the accused's assault on the deceased on 17th March, 1974 and the fatal he injury which the doctor ascertained., . . .12 ~ ji.!!!!! no 14 ./2 In other words, it was difficult to reconcile the doctor's evidenìce with the prosecution assertion that the death was attributable to the acts of the accused. Hence the ruling that there was no sufficient evidence that the accused committed the offence of murder. The accused's unsworri evidence is in substance a repeat of his extrajudicial statement (P.1.). He denies that he struck the . deceased and he alleges that he merely pushed the deceased who fell down 0 He claims that it was the deceased who started trouble and who provoked him into fighting. I am in agreement with the assessors that the accused's story is slanted in his own favour and that the tt'uth is to be found in the testimony of the two prosecution Witnesses as reviewed above. I consider it unthinkable, in the circumstances, that his own mother Sikumbwa (PW4) could have falsely implicated him in the assault. I therefore find that the accused did in fact assault the deceased by using his hands, his head and a stick;, and that throughout the incident the deceased showed no stomach for a quarrel, much less, for a fight0 Several blows by a stick did, undoubtedly, cause the deceased actual bodily harm. Consequently I find that the accused is guilty of assault contrary to section 241 of the Penal Code and I convict him for that. LL D. P. MAPIGANO 1. JUDGE 20/2/75 Judgment pronounced in court. Advocates present. Accused present. Mr. Knabo - Nil. Mr. Mwakingwe: Accused is 35 yearg old. Married with children. Has been in remand for 1 year. Assault no serious. Senten c 1 month imprisonment. /1 AQ D. P. MAPIGANO JUDGE