19750116 TZHC Dodoma

-- I - sQ IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 67 OF 1973 t THE REPUBLIC VERSUS MANYANGA SOMITO BABAHI MACHAKU CHARGE: MURDER c/s 196 of the Penal Code. J U D G M E N T •The two accused persons, Manyanga s/o Somito and Babahi sb Machaku (hereinafter the first and second accused respectively) are on a charge of murder, to wit, that on or about January, 8, 1972 at Bankola in Dodoma Region, they, of malice aforethought, caused the death of one Mtumwa s/o Lungalala. They have pleaded "not guilty" to the charge0 The death of Mtumwa s/o Lungalala (hereinafter the deceased) is not a matter for any doubt and is not a disputed issue. The evidence shows and establishes that he died on January 9, 1972 following an, assault on him on the prvious night. The testimony of PWI Dr. Gomile, who examined the body on January 10, 1972, confirms the accounts of two witnesses who were present at the scene of the assault, that the deceased had sustained two deep cut wounds, one on the head exposing the skull and the other on the right shoulder. The doctor opined and I think soundly, that both blows were inflicted by.a sharp weapon and with formidable force. He also opined, again soundly, that the cause of death was profuce bleeding and shock resulting from the two blows. It is not in dispute, and on the evidence I am satisfied beyond reasonable doubt, that the fatal assault took place at the houe of PW2 Eligens Francis.' The deceased accompanied by one Konzeli and Konzelits wife PW3 Maleo d/o'Kibwana, stopped at that place on their way 'home from a market in order to drink a local liquor called mtama. It was between 7 and 8 p.m. The three sat inside the house where they bought and drank the liquor. The two accused persons arrived almost immediately, according to PW2 Eligens Francis it was about five minutes after the arrival of the deceased and his companions., According to both PW2 and PW3 Maleo d/0 Kibwana, each of the accuseds was carrying a stick and a panga. They bought and drank the liquor. In due course there was an exchange of words between either one of or both the accuseds and Konzeli over Konzeli's torch cells. This developed into a wrangle and a fight during which the deceased was sl.ashed with panga by one or both accuseds. The accused persons elected to saying nothing when their defences were called in at the close of the prosecution case. However, they happened to have volunteered their statements before Justice of the Peace on March 27, 1972, exhibits B and C. Each denied that he quarrelled with Konzeli or with the deceased, each denied fightinr with or assaulting.the deceased, and each by and large implicated the other in the assault, The issue of great moment in this case is therefore this: who caused the deafh of the deceased?. 1• . . ./2 The prosecution case on this issue of causation is based on the deceased's dying declarations and on the testimony of PW2 Eligens s/o Fransis and PW3 Maleo d/o Kibwana. The prosecution case tends to show that the deceased made dying declarations, one before his wife PW4 Nkatilwa d/o Nyakwaka, and the second to PW1O constable Iskari on January 9, 1972, which was recorded down by the constable and thumb- printed by the deceased0 He told his wife that he had been beaten by the two accused persons following a quarrel over torch cells. He told the constable that he had been attacked by the accused persons by means of sticks and pangas when he asked them to leave PW3 Maleo alone after she, Pw3, had declined to sell torch cells to them at the house of P2 Eligens, As I advised the assessors, these dying declarations can hardly claim to be specific0 They do not show for instance whether both accused persons struck him with pangas, they do not show who delivered which blow and they do not say whether or not he, the deceased, put up a fight with either or both. They are, it appears to me, general accusations against the accused persons. The rule of practice with regard to dying declaration is that corroboration is always not necessi:y to support a conviction but that generally it is highly desirable. As has been said elsewhere, the danger of accepting a dying declaration lies not only in the fact that the deceased, who cannot now be cross-examined on his declaration, 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 yet, in fact, have been mistaken. Since it is difficult to ascertain from these declarations how the accuseds participated in the assault, and since the attack took place almost in the dark, it would, in my opinion, be real unsafe to act on these declarations without corroboration. The testimony of PW2 Eligens and PW3 Maleo could, if believed, afford sufficient corroboration as to what actually happened, indeed it could, if believed, independently establish that the death was caused br the acts of the two accused persons. I shall now proceed to review and assess the testimony of these two crucial witnesses. The substance of P112 Eligens' account runs as follows: While the deceased and his companions were in the course of drinking, the first . accused approached Konzeli and asked him to sell to him torch cells, • Konzeli refused and the first accused abused the deceased "Kuma ya mama yako". The deceased asked him "why are you following me?" The first accused who was holding a stick charged towards the deceased, but Konzeli intervened whereby he was himself struck. The witness separated them and both accused, went out of the room. But they came back shortly after and bought liquor for 50 cents. Then both of them approached the deceased and asked "are you going to sell us the torch cells or are you not?" • The deceased was angered. He stood up, grabbed the first accused, and lifted him and took him outside where he felled him and pinned him down by the neck. The deceased had an edge over the first accused because he was bigger and stronger. The witness tried to separate them but he failed to lift the deceased from the first accused. The witness went inside to secure his pombe. He heard the sound of a beating and he heard the deceased saying "Babahi why are you beating me?" Babahi is the second accused.,. The witness went out again and saw the second accused slashing the deceased on the head, and next, he saw the first accused who had then stood up, cutting the deceased on the shoulder. The two accuseds then took flight and disappeared. Adcording to this withess, he was the only person who witnessed the assault, the other people including Konzeli and his wife PW3 Maleo, remained sitting and drinking inside the house and were generally indifferent to what was taking place outside. The testimony of PW3 Maleo is at variance with that of P1 ,12 on some vital points. She stated that it was the second accused and not t' - first accusedLeho asked Konzeli to sell the tdh cells. Pausing here, I would believe PW3 on this point as the second accused himself seems to admit this in his extrajudicial statements, 000 PW3 also disputed that the first accused abused the deceased "Kuma ya mama yako" and she disputed that the deceased caught and carried the first accused outside. She allejed that when Konzeli refused to sell the torch cells to the second accused- the latter toOk Shs. 2/- from his pocket and threw them on the ground. The first accused picked up the money and at that stage the deceased told the accuseds to stop shouting0 The first accused then lifted up a stick to beat the deceased but instead he beat Konzeli who came in between, on the ribs, PW2 Eliigens came and took the accuseds out and the deceased followed them 0 There was then fighting outside. She, PW3, gave conflicting evidence on whether she saw the accuseds assaulting the deceased outside. She started by alleging that she saw the assault as she was standing at the door. Later on the she stated that she went there when she heard the deceased complaining 'you have killed me" and found him down yelling. And at one stage she was more specific when she stated that she went to the door after the deceased had been attacked. Further, she alleged that PW2 Eligens was inside the house when the attack took place, which also conflicts with PW2 1 s testimony. She also countered PW2 1 s allegation that there were other people inside the house at the time of the assault apart from her- self, her husband Konzeli and PW2€. As observed, each of the accused persons denied in his extra- judicial statement that he quarrelled with the deceased, each denied that he fought with 7 much more, that he assaulted the deceased. Each seems to implicate the other in the assault. The statement of the first accused is as follows: He was in the company of the second accused when they passed at the house of PW2. There, the second, accused quarrelled with the deceased. He interceded on behalf of both and on that account the second accused dealt him with a stick blow on the head. He fell down. He got up and fled, leaving the second accused fighting with the deceased. He learned, two days iater, that the cond accused had killed the deceased. That of the second accused is longer and is as follows: He and the first accused and another person called Chiyeye passed at the house of PW2 on their way home from a cattle market. They drank pombe outside the house. When he observed that the first accused was drunk and too talkative, he went inside and sat with the deceased and his companions. He saw Konzeli with two torches and he asked him to sell to him two torch cells. Konzeli was agreeable and asked for Shs, 2/-. He gave him the money and Konzeli Put it on the ground and asked for 40 cents more. The first accused appeared and picked up the Shs. 2/-. from the ground. He asked the first accused why he was taking money and the first accused denied that he had done so and alleged that the money had been picked up by the deceased. The deceased denied the allegation and asked the first accused to surrender the money. The first accused abused the deceased, the deceased scorned him and a quar;'el between the two ensued. The first accused left the room and the deceased followed him outside where they engaged in a fight and the first accused was wounded on the head. He, the second accused, separated them and the deceased was then escorted back into the house. When the first accused threatened to fight him, he left the place and proceeded home, ' vital issue as stated above, is who assaulted the deceased, The three assessors who sat ith me were in agreement that both the accuseds assaulted the deceased with pangas, the first accused under a provocation offered to him by the deceased, and the second accused viciously and of malice aforethought. They appear to have believed the two prose- cution withesses, PW2 Eligens and PW3 Maleo. They rejected the defence which was 3ut forward in the altrnative, that th assault was carried under a state of drunkness, I believe and find that there was a quarrel between Konzeli and the second accused over torch cells.. The .second accused alleged that Konzeli had agreed to sell to him two torch cells, and that he had accepted Shs0 2/-. in that respect. I have no doubt that this is a lie. I accept the prosecution vesior: that he had, au 3st aggressively, required Konzeli to sell to him the clli and that Konzeli had refused to do so. This was. succeeded by chain of events which. culminated in the assault. I do not believe the first accused that he was hit on the head when he was merely intervening to separate his colleague from the deceased. It is most probably true that he sustained head injury, because the J.P. who recorded his extrajudicial statement, Mr. Ramadharii PW7, observed on examining his body that he had a scar on the head. It is therefore probable that he was hit by the deceased on the head by means of .a stick as he alleged. But I am sure that this was not when he was allegedly separating the second accused from the deceased. This, I think, happened when he was .fighting with the deceased outside after the deceased had pinned him on the ground by the neck.. PW2 Eligens alleged that the deceased grabbed the first accused, took him outside, felled him and squeezed him by throat. This as shown was countered by PW3 Maleo. Her story is that the deceased followed the accuseds outside after they have been driven there by PW2O I prefer the testimony of PW2 to that of PW3 on this point, as I entertain the impression that PW3 1 s memory was gauzy if not faulty, perhaps time has dimmed her recollection, and in anevent, her objectively cannot safely be said to be beyond question. I therefore find that it was the deceased who started the fight with the first accused. I am satisfied that at that stage the first accused had not offered the deceased any grave provocation to invite the attacks. I would in the circumstances share the assessors view that on the contrary it was the deceased who provoked the fight with the first accused when he lifted and took hi.a outside where he pinned him down by the neck. The assessors believe that the first accused attacked the deceased, subsequently, by a panga on the right shoulder. But they are of the view that this was done under a grave provocation. That may be so0 However., what I think I have to consider very carefully is whether there is cogent and conclusive evidence to prove that the first accused in fact assaulted the deceased with a panga as alleged0 There is only the evidence of PW2 Eligens and PW3 Maleo. As already demonstrated, PW3 was not consistent as to hher she actually witnessed the fight outside0 PW2 stated that she, PW3, was sitting with her husband Konzeli inside the house when the fight took place and that he, PW2, was the only person who saw the accuseds slashing the deceased. In my 1 opinion, I doubt very much if PW3 really witnessed the fight and think that she went outside when the deceased had already been slashed, on hearing him complaining "you have killed me," I have no caus.e for doubting PW2 1 s allegation that he tried to lift the deceased from the first accused and that when he failed to do so he went inside to secure his pombe. The question is whether he went out again in time to witness the assault. He claims that he did so, but PW3 alleges that he was inside when the attack took place. There could be truth in her allegation0 It appears that the actual attack on the deceased by pangas took a very short time. This could have happened PW2 was still inside securing his pombe. With regard to the second accused, as already indicated, I would find that he is the one who instigated the fracas by trying to force Konzeli to sell the torch cells to him. There is no suggestion, much less, any semblance of evidence, to show that he was ever provoked or incited into a fight by the deceased or the deceased's companions. If therefore it is true that he assaulted the deceased with a panga as contended by the prosecution, that assault was groundless, unjustifiable and vicious. But as in the case of the first accused, I have to address my mind on whether there is credible evidence to .stablish beyond a reasonable doubt that he actually assaulted the deasad as alleged.. There is also only the evidence of PW2 Eliçjens and PW3 Maleo to that effect. However, as I have just shown, that evidence is not cogent enough and is suspect. 0 , What happened therefore i& that the deceased was ghastly Wh attacked by pangas outside the house of 2W2, in the dark. But the evidence is not clear cut as to whether both the accuseds Darticipated in that assault0 It is submitted that nevertheless both the accuseds are liab]e on the basis of common intention. I am not persuaded by this argument. In order to fix the accuseds with liability on the basis of common Intention, the prosecution have to prove the following things beyond a shadow of doubt;- that both accuseds participated in the unlawful assault or that one was encouraging the other who assaulted the deceased to commit the assault, and that the accuseds had a common intention to kill or do grievous harm to the deceased; and that they knew that death or grievous harm was the probahi consequence of their assault act. With respect. I do not think that the evidence establishes the above ingredients0 For one thing, as stated earlier, there is no constraining evidence to show that both participated in the assault, and for anothr, there is no evidence, constraining to show that if they did so they acted in concert, with a shared purpose of killing the deceased or doing him a grievous harm. The doctrine of common intention cannot therefore, in my view, be successfully invoked in the circumstances of this case. It comes down to this: while I am satisfied, and find, that ' deceasd was assaulted at the house of P1,12 Eligens, there is no cogent evidence to establish that he was assaulted by both accuseds. While it is true that at least one of the accuseds assaulted the deceased, it is impossible for me, on the evidence, to determine with all certainty who between the two committed the assault. And there being doubt as to whether tiey acted in concert, have to give eeTh one of them the bene fit of that doubt. Following that, I find both the accuseds not guilty of murder. and acquit them of the charge. I direct that they are to be set at liberty forthwith unless they are detained on another ground. Judgment pronounced Mr. Kinabo for the Republic Mwakingwe for the accuseds Accuseds present. 16th January, 1975 D. GANO AG. JUDGE