19750304 TZHC Iringa

I IN THE HIGH COURT OF TANZANIA AT IRING-A ORIGINAL JuRISDICTION (DoDoMt. REGISTRY) CRIMINAL SESSIONS CASE NOf 137 OF 1974 VHE REPUBLIC VERSUS KASTORI M1AKISJXI JEREMIAS KIPANGUIA COSMAS CHOTEIA charge; Mudor c/s 196 of the Penal Code. JUDGYJENT M1PIGANO J. The accused persons (1) Kastori 5/0 Mwakisaki, (2) Jeremias s/o Kipangula and (3) Cosmas s/o Chotela, are charged with murder, contrary to section 196 of the Penal Code; the allegation being that on or about 1/5/73 in Iringa Region they jointly and together murdered one man called Kastori Nalipula. They have denied the allegation. The three accuseds as well as the said Kastori Malipula (hereinafter the deceased), were residents of Kiponzero in the Iringa Region. On or about 21/4/73, the third accused Cosmas lost his two head of cattle and he concluded that the cattle had been stolen. A few days later, he traced the suspects who were eating meat in a forest. He, third accused, and his companions caught some of the suspects and sent them to the authorities. The others escaped and the accused suspected that the deceased and PW1 Victory Msige were among the escapees. On 1/5/73, he, third accused, set out to search for the two suspects. He was accoinpa- nied by the second accused Jeremiah. They found them at a place called Kaning'ombe and caught them. The prosecution sought to prove that the second and third accused unlawfully and maliciously fatally wounded the deceased at that place 'and on the way to Kiponzero Primary Court whore to the deceased was taken by them, and further that the first accused Kastori, joined them on the way and struck the deceased with a stick on the stomach. Thei'e is no dispute that the cattle of the third accused were stolen on or about 21/4/73, and the prosecution concedes, and on the evidence properly, that the deceased and PW1 Victory were reasonably suspected of having been parties to that theft. ,12 . . . /2 It is also uncontested and clearly established that on 1/5/73, the third and second accused left their village in search for these two suspects. They found the two suspects drinking a type of local liquor called bamboo juice at the house of one woman called Sekipangula at Kaningkombe. According to the evidence of PW1 Victor, he and the deceased had gone there to see a relation who had been stricken with some disease and this is not contra- dicted. The two accusods arrested both the deceased and PW1 Victory, tied thorn with ropes and escorted them to Kiponzero Primary Court, about twelve miles away. On their way to the primary court, they met with the first accused who dealt. the decea- sed some stick blows on the stomach, On reaching the primary court the deceased was overcome by the blows he had received during or after his arrest at Kaning'ornbe and he died shortly thereafter0 The medical evidence, which also is undisputed, shows that the deceased's right mandible was fractured and that he had sustained two wounds on the head, one of which fractured the skull and depressed it into the braii, causing serious subclural haemorr- hage. According to Dr0 Kessi who performed the post mortem exa- mination, the deceased died of severe trauma to the brain following the head injuries0 And he was of the opinion that the head injuries were consistent with having been inflicted by a blunt weapon and that with considerable force. The doctor stated that he also observed bruises and minor wounds on other parts of the body, but he thought that these did not contribute to the death0 I respect- fully accept his findings and the views he expressed on them. The main question for determination in this case are ( whether or not the death of the deceased is attributable to the accused persons or any one of them, and (2) if so whether or not it was murder 0 It behoves me therefore to review the evidence in detail and asso 35 the same, which I now proceed to do PW1 Victory, the only prosecution witness who was present throughout this incident, testified that while he and the deceased were drinking the bamboo juice at the house of Sekipangula the second and third accused appeared there. They and other people caught and tied them with ropes They ordered them to go to Kiponzero Primary Court, the third accused remarking that the deceased had stolen his cattle0 He alleged that while they were being escorted to Kiponzoro, the third accused struck the deceased with a bamboo stick on the head and repeatedly on the back, and that the second accused who had wrested an axe (P4) from him, hit the deceased twice on the head using the blunt side of that weapon, and that the deceased bled from the resulting wounds and at one stage fell down. He went on to say that when they reached a place called Nakongoti, the first accused appeared in the company of other people and that he, the first accused, hit the deceased with a stick on the stomach, which blow felled the deceased who had to be carried for the rest of the distance. He denied that the deceased attempted to evade arrest by fleeing and he also denied that the deceased put up a fight when he was being apprehended at Kaning' oube, The prosecution also introduced in evidence extra- judicial statements (P1, P2 and P3) made by the accused persons before Justices of the Peace. These were admitted without any objection and there was no crOss examination on them. They do not however amount to confessions, and as properly pointed out by the defence counsel, they are not to be taken, and will not be taken, into account against the co-accuseds. There is no rnater±al disparity between the extra judicial statemeit made by the first accused and that part of the evidence of:PW1 Victory which touches him, the first accused, which has been reviewed above, .. .13 .13 The second accused stated before the J.P. that the deceased was beaten by a crowd at Kaning'ombe in order to subdue him, as he had attempted to flee and had offered rosiFtance and put up a violence when he was being arrested. And that he hiriseif struck him twice but only lightly: "Walipomfunga huyu marehemu alitaka kutoroka na nikarngonga kashoka kadogo.. Hapo ilikuwa saa nane za mchana. Nilingonga mara mbili tu." The third accused denied that he boat the deceased at all and his extra-judicial statement is in harmony with that of the second accused. The first accused gave an unsworn statement. Again there is no material difference between his statement and the prosecution evidence against him. He stated that he was going about his business at IViakongoti when he hoard the third accused shouting "thief, thief". He went to the place and found the third accused and two other non, namely Mtonde and Milmilabandi, escorting the deceased and PW1 Victory.. And that he learned from the third accused that the two men who were in custody were thieves, thereupon he hit the deceased on the stomach with a bamboo stick. He claimed that he did not intend to kill him or do any grievous harm to him. He said that he was stopped by the third accused from further beating the doceased. It is common ground that this 'happened after dark. The second accused s unswo±'n statement is that the deceased who was carrying the axe P4, fled when he saw them approaching the house of Sekipangula. The crowd pursued and caught up with him. The deceased then moved threateningly to hit the third accused with the axe he was wielding. The third accused dodged his two blows and he, second accused, intervened and caught the deceased. They struggled over the axe during which the deceased got knocked by the axe on the head. He overpowered the deceased and wrested the axe from him. They tied him and then took him along with PW1 Victory to Kiponzero Primary Court. He alleged that nobody beat the deceased either at the scene of arrest or on the way. He could not know whether the first accused assaulted the deceased at Nakongiti as he had then left the party and proceeded to his home to attend his sick child. The first and third accused appeared to confirm that allegation. The third accused also gave an unsworn statement which is identical with that of the second accused. He denied that he beat the deceased at all and seemed to allege that the only person who beat the deceased was the first accused - with a bamboo stick on the stomach, which assault, as pointed out, is not denied by the first accused himself. There is clearly a serious dispute as to what actually happened at Kaningtombe. The prosecution contention is that the deceased did not at any stage resist the arrest, and that he never made a bid to escape as alleged by the second and third accued. The prosecution also contend, and the defence vehemently deny,, that the secoi'd accused struck the deceased with the 'blunt side of the axe on the head and that the third accused sashed him with a stick on the head and on the back, and all this after he had been apprehended and tied. On the point whether or not the'deceased fled and later resisted the arrest by taking to violence, the prosecution relies on the testimony of PW1 Victory and invites this court to believe his evidence... . . . . .14 s • 4 ., 44 Per the accuseds, it is submitted that this prosecution witness is not in all probability impartial, on the grounds that he was himself a suspect in the cattle theft, that he himself suffered the harrowing ordeal of being apprehended and baeea he could have easily been tempted into slanting his evidence in favour of the deceased, and against the accused persons0 With respect 4 I think that there is mexit in that submission 0 I also entertain a doubt as to the objectivity of this witness0 I think he had an interest of his own to servo,, I would agree that essentially his evidence must be approached with some reserve and treated with caution, as I j'eel, for reasons which the defence have advanced, that his testimony is inherently not beyond exaggeration and vindictiveness,. I will therefore accept the unanimous advice of the the three assessors that most probably the deceased did offer resistance in the maimer explained by the second accused and third accused0 The next point to determine is who in fact inflicted the fatal injury 0 PW1 Victory alleged that it was the second accused who after wrenching away the axe from him struck the deceased two heavy blows on the head 0 The second accused seamed to agree, in his extra judicial statement, that he struck him lightly with the axes 'tNilimgonga kashoka kadogo, a ,... Nilingonga mara mbili tu0t' But in a turnabout from this earlier statement, he denied in this Court that he struck any blows and alleged that the deceased got himself knocked accidentally during the struggle over the axe. He did not however deny that no other person struck the deceased on the head at any stage0 The medical evidence as to the gravity of the head injuries tends to back up PT1 Victory and to contradict the seccnd accusod There is no doubt that tho ayr , blows on the head were intense and must have been delivered with great force. As pointed out, the doctor observed bruises and other minor wounds on other regions of the body, but in his opinion, these did not contribute to the death 0 The gravity and nature of the fatal head in.urie are suggestive of having been inflicted by an adversary and are cJearly inconsistent with the story that they were sustained accidentally as the second accused would have this court believe 0 I find therefore, as the assessors did, that it wasthe second accused who deliberately inflicted the lethal blows, and that these two blows were heavy and that he knew that they would cause a grievous harm 0 The question which arises is whether the second accused committed murder 0 As I have just said, the blows were deliberate and had. But they seen to have been struck during a lawful arrest, as under section 32 (1 ) Criminal Procedure Code - any private person mty arrest any person who in his view commits a cognizable offence, or whom he reasonably suspects of h'iving committed a felony. It is not in dispute that the thi±'d accusecPs cattle were stOlen a few days prior to this incident, and that he reasonably suspected the deceased of having been a party to that felony. H. the second accused, was therefore executing a lawful duty in endeavouring to procure the arrest of the deceased 0 He alleged that the deceased attempted to evade the arrest and that he forcibly offered resistance 0 This could be true. Now, granted that it was so, then section 19(2) Criminal Procedure Code permitted him to use all means :iecescary to ffect the arrest0 The provisions of that section is however to be read together with that of section 19 of the Penal Code, which reads: .15 ..,/5 "Where a person is charged with a criminal offence arising out of the arrest by him of a person who forcibly resists such arrest or at;ompts to evade being arrested, the court shall iii considering whether the means used were necessary or the degree of force used was reasonable for the apprehension of such person,, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person." The offence which had been committed was cattle theft and there could be no disputing that it is viewed to be a serious offence in this country - henôe it being punishable stiffly under the Minimum Sentences L.ct, 1972. It was committed at night and according to the third accused, the culprits had threatened to take his life. He subsequently traced the culprits in a forest and three of them who included the deceased fled. He searched for the escapees and traced the deceased at Kaning'ombe. The deceased first attempted to escape and then forcibly resisted being arrested by delivering two axe blows to the third accused which did not connect. These are, I think 2 the factors to be considered when assessing whether the means and the degree of force used to effect the arrest were necessary and reasonable. Bearing in mind, therefore, that the act of the second accused apparently proceeded from a lairfulduty, one of the following three consequences will ensue: If considering the circumstances as above observed the degree of force used was reasonable. for the apprehension of the deceased, then the killing would be justifiable and the second accusod would be entitled to an acquittal; Or if the degree of force used was in fact •excessive but merely actuated by an intent to arrest, then the killing would amount to no more than a manslaughter; Or if the force used was in fact excessive and overtly incompatible with a bonafide belief that it was reasonable to effect the arrest, then it could be properly inferred that the assault was actuated by malice and not merely by an intent to procure the arrest, and it will amount to murder. This, I think, is based as much on good sense as authority: it finds expression in the decision of the Court of Appeal for Eastern African in Muhidin .ulsunanv R (1962) BA 383. That was an appeal from the decision of the HiThourt of Tangan.k. 4 The appellant had been convicted of murder and the evidence was that he slashed the deceased who had entered his sharaba after dark to steal maize cobs or stalks, and that the strong panga blow which killed deceased almost instantly had been struck when he was endeavouring to flee. There was evidence that maize thefts were prevalent in the .area 'and that they were often committed by gangs who were sometimes armed. The court hold that the case fell under category (2) above and substituted a conviction of mans- laughter for that of murder, The Court expressed the following view (p. 390): "We think the essential matter which has to be determined, from the circumstances and from the nature of the injury inflicted, is whether the person endeavouring to effect the arrest was actuated by malice, orero1y by the intent to ..../6 arrest. Malice is an essential ingredient of the offence of murder. Normally, on the basis that a person must be taken to intend the natural consequences of his act, malice may be inferred from the fact of the intentional infliction of an injury calculated to cause grievous harm. Where, however, injury may lawfully he inflicted in order to effect arrest, the inference of malice does not arise unless the dgree of force used is incompatible with a bonafide belief that such force was reasonable to effect the arrest....... . ....... . the mere knowledge that the act which is the subject matter of the charge would be likely to cause grievous harm does not, in our opinion, establish malice aforethought if the accused person intended to do no more than effect a lawful arrest and had no realization that the force he used was excessive or unnecessary. If such was the intent, and the force used was in fact excessive, the offence would be manslaughter." I have addressed the assessors in comparable terms and all of them held the view that the assault was reasonable and justified in the circumstances and therefore that the second accused is not guilty of any offence0 With due respect, considering the fact that the second accused had extorted the axe from the deceased, I do not agree that it was necessary f or him to inflict that typo of injury in order to effect the arrest. I have no doubt that the force he used was uncalled for and in fact excessive and it tends to suggest that it was not only actuated by a mere intent to arrest but flowed from a desire to punish. But perhaps it is a borderline case and I have a doubt on that point and I cannot bring myself to say, with all certainty, that the fatal assault was actuated by malice. I would therefore give the second accused the benefit of doubt and in consequence find that he did not commit murder but manslaughter. With regard to the third accused, there is the evidence of P1%J1 Victory which tends to implicate him in the killing. This evidence is to the effect that the third accused participated in the assault by striking the deceased on the head and on the back with a bamboo stick. The third accused denied that allegation and has maintained throughout that he did not assault the deceased. As I have already stated in connection with the second accused, I an not sufficiently impressed by the evidence of PW1 Victory, as I think it is inherently partisan and suspect. In the absence of any material corroboration it will be really dangerous to act on it. This also is the unanimous view of the assessors. I may only add that if at all the third accused assaulted the deceased, that assault did not contribute to the death and that it could have been perfectly justifiable on the ground that it was necessitated by an intent and duty to arrest the deceased. The third accused would therefore be cleared of this charge. As regard the first accused, he has candidly admitted that he assaulted the deceased with a stick on the stomach, This happened when the deceased was being taken to the primary court and after dark. This incident appears to have been distinct and ;ç seperable from theearlier assault at the scene of arrest. It was clearly unjustifiable and unlawful. But it was not fatal in it- self land it would appear it did not contribute to the death. The accused claimed that he did not intend thereby to kill or to do grievous harm to the deceased. There is nothing material to gainsay that allegation and I am Irepared to believe him. I would therefore find that he only committed assault. To conclude, I find the first accused Kastori Mwakikasi guilty of assault causing actual bodily harm c/s 241 of the Penal - /7 ... -S ..17 Code and I convict him of that offence; I find the second accused Jeremias Kipangula guilty of manslaughter c/s 195 of the Penal Code and I convict him of it; and I find the third accused Cosmas Chotela not guilty and acquit him and set him free forthwith, unless he is otherwise lawfully held. D. P. MâPIGANO0 J1JDGE 4/3/75 Court as before Advocates as before Judgment pronounced. Mr. Kinabo: I have nothing to say. Mr. Mwakiwwe: Both the first and second accused are married with children. First accused is 23 and second accused 25 years of age. They have been in remand since May, 1973 The first accused was more foolish than criminal and I think he has suffered enough and in any event his participation was only minor. Sentence: The second accused is sentenced to five (5) years imprisonment, Order: The first acôused is discharged absolutely under S. 38 of the Penal Code, as the period he has suffered in remand prison is adequate a punishment for the Offence he committed. It D. P. Mt.PIGL.NO JUDGE