19750124 TZHC Dodoma

*ft_ IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 66 OF 1973 WHE REPUBLIC VERSUS ANDREA @ MJENI MASUNZU Charge: Murder c/s 195 of the Penal Code. J U D G M E NTT MNZAVAS J. In this case the accused, Andrea Masunzu, stands charged with the serious offence of murder c/s 196 of the Penal Code, It is the Republic case that the accused on or about the 7th day of March 19' at Ch.Uila village in the district and region of Dodorna, he unlawfully and with malice aforethought killed one, Donati s/o Mtemi. There not the slightest dispute in this case that a person by the name o:' Donati s/o Mterri has died. It is also clear from medical evidence (exhibit s..) that Donati died a violent death. The only question that this court has to decide is - who was the person or persons that killed the deceased ? The prosecution argued that it is the accused who murdered the deceased. The accused on the other hand denied killing the deceased. In support of its case the Republic called a total of nine witnesses, Zakaria(PW1) gave evidence that on 7/3/72 at about 6 p.m... he saw the accused and the deceased fighting and that the deceased was lying on the ground and the accused was on top of him and that he (accused) was throttling him. According..to his testimony he approached to where the two were and that as he was approaching them the accused left the deceased and took to his 17.ee1s The witness reached where the deceased was lying and, according to his evidence, he found him already dead. The witness added that he observed the deceased was bleeding from his nose and mouth, Marta (Pr2) related to the court at she saw the accused )itting the deceased with a stone felling him down. She also said that she saw the accused throttling the deceased as he (deceased) w-is lying on the ground. It was her evidence that the accused, 'on inte:'-. rogation admitted killing the deceased, Chiluluse (PW4) testified to the court that the accused accompanied by the deceased visited hts house to drink "pombe" He told the court that as pombe had finishei the accused and the deceased immediately left his house. Unlike Marta's (PW2) evidence the witness said that the accused, on interrogationby the villagers, denied killing the deceased. One, Lembile '(PW5) also gave evidence. He told the court that the accused told the villagers that he had quarrelled with the deceased who had abused him by saying that he (accused) eats' grass. According to his evidence the accused and the deceased were drinkinc pombeat Chilihiusers house when the later abused the former saying that he (accused) eats grass. It was his evidence that the accused told them that the quarrel led to a fight, whereupon the accused hit the deceased with a lump of sand and throttled him. . . .12 •O • Dogo (PW6) gave similar evidence as that of Lembile (PW5). He also told the court that the accused admitted assaulting the deceasej with a lump of sand and throttled him; and that the fighting was a result of a quarrel between the accused and the deceasedo In his short and unworn statement the • accused admitted visiting Chilulüse's house for pombe on the materialevening but hel if only by implication, denied being in the company of the deceased. According to his defence he met the deceased at Chiluluse's house with other villagers, It was his defence that he drank pombe up to evening time when he left to his house and went to bed. Later in the night he was arrested by , villagers who accused him of having, killed the deceased. In his address to the court the learned defence counsel argued that the evidence of Lembile (Pw5) and that of Dogo (PW6) that' the accused donfessed to the villagers that it was he who assaulted and killed the deceased should not be relied upon as the two witnesses are relatives of the deceased and that because of this relationship there Was a danger of their testimony being biased to the detriment of the accused. It was also argued that the evidence of.Marta (PW2) should be received with caution as her evidence was inconsistent with that of Chinyo (PW3) who told the court that she did not see the accused assaultii'ig the deceased. The learned state attorney on the other hand argued that both Lembile (PW5) and Dogo (PW6) should be accepted as reliable witnesses It was also submitted that the evidence of Zakaria PW1) supported the evidence of Lembile and Dogo. It was the Republic's argument that the evidence of chiluluse (PW4) that the accused denied killing the deceased when interrogaed by the villagers should not be taken into account as Chiluluse is father—in—law of the accused, As I have already mentioned, there is no argument in this case that one, Donati s/o Mtemi has died and that he died a violent death. As to the circumstances under which the deceased died we have the evidence of Zakaria (P].) who saw the accused and the 'deceased fighting. It was his evidence that he saw and recognized the accused he was pinning and throttling the deceased who was lying on the ground. It was his testimony that as he was approaching end *€i4I4 the accused got up and ran away. He went to where the deceased was lying and found him bleeding from the nose and mouth and had already died. Zakaria's evidence is supported by the evidence of Marta (PW2) who also told the court that she saw the accused pinning the..-deceased on the ground and throttling him 0 As to the alleged accusedts confessiofl, that it was he who assaulted the deceased on the material day we have the evidence of Lembile (PW5) and that of Dogo (PW6).. Coming to the question of credibility of the prosecution witnesses,Ito some extent, tend to agree with the learned defence counsel's argumont that the evidence of Lernbile (PW5) and that of Dogo (PW6) have to bereceived with caution. Lembile is dec.ased's brother whereas Dogp is deceased's nephew. This being the position these two witnesses evidence could very well have been tainted to the detriment of the accused. If those were the only witnesses that testified against the accused I would certainly have taken their testimony with a grain of salt s But these were not the only witnesses that testified against the accused. There was, as I have already mentioned, the evidence of Zakaria .(PW1) and that of Marta (PW2)0 - These two are independent witnesses and are in no way related to the deceased. They both told the court that they saw the accused throttling the deceased and that as they were approaching the accused. tbo; o his heels. There was no suggestion by the defence, leave alone evidence, that these independent witnesses had reason to tell lies against the accused. From the evidence it would appear that the two witnesses live in the same village as the accused. The 'incident took place in broad day light and the accused is 0 S • L intoxication they were in it is difficult to say. There was evidence that the deceased had abused the accused by saying that the accused "eats grass." This abuse annoyed the accused. A quarrel started betwe'èn them and the quarrel led to a fight. The accused picked a lump of sand and hit the deceased on the head felling him on the ground. As the deceased was on the ground the accused proceeded and throttled hime From the doctor's report it was the assault on the head that caused the death of the deceased and not the throttling. From the evidence it cannot-be said that the accused wished the death of the deceased. On the contrary the eiidence is to the effect that the deceased was brother-.in—laW of the accused and that they have always been friends. This being the relationship between the accused and the deceased just before the incident, I am not prepared to say that at the time the accused hit the deceased on the head with a lump of sand he had formed an intention to kill the deceased. His response to abuses was in no doubt unproporti.a onal; but this alone does not necessarily mean that the accused had the necessary malice aforethought when he inflicted the fatal blow. On the evidence Iten agree with the second gentleman assessor that there is doubt as to the question of malie—aforethought. It is. the law that where there is doubt on the questiôn of malice—aforethoUgh the doubt must be resolved in favour of the accused and the accused be found guilty not of murder but of manslaughter - See the decision in R V JOSEPH S/OBYARUSHENGO and Another (1946) E.A.C.A. 17 9 a Tanganyika case. Like the second assessor, Ian on the facts, satisfied that the evidence points more to the offence of manslaughter than to the alleged offence of murder. I accordingly find the accused not guilty of murder and I acquit him on this charge. But I, under the provisiofl5 of section 181(2) of the Criminal Procedure Code find him guilty of manslaughter c/s 195 of the Penal Code. N. . MNZAV. JUDGE Pros: The accused is a first offender. In Mitigation Mr. Mwakingwee My lord the accused is a first offender He has been in remand since March 1972. The circumstances urder which the offence was committed call for leniency. I pray that the cort passes a lenient sentence on the accused. -. Accused: I have nothing to add. Sentence: This was a drunken brawl that led to the death of the deceased. Taking into account the relationship between the accused and the deceased, the fact that the accused is a first offender and the long period he has spent in remand I agree with the learned defence counsel that the accused deserves some leniency. - I sentence the accused to 5 years imprisonment. R.C.A. to E.A.C.A. explained. N.S.NZAW .0 --- '