19750512 TZHC Mbeya

E?---- IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JIJRISDICTION REGISTRY) CRIMINAL SESSIONS CASE No0 52 OF 1974 THE REPUBLIC bersus AJONGWISYE s/o MULMPEPO & ANOTHER CHLRGE Murder c/s 196 of the renal Code. J U DG M E N T MPIGL1QJ J * L The accused persons Andongwisye Mwampepo (the first accused) and Abraham Mwakalyelsye ( the second accused) stand charged with the murder of N elo /o Mwakalyela. The incident took place at about 5 p.m on the 25th day of August, 1973 in Isebe village in Rungwe district.. The case of the prosecution is within short compass and can be briefly stated. On 25/8/73 there was a local dance in Isebe and a good number of people of that tillage as well as others from neighbouring villages attended. They included the dooeased Nelo and the accused persons. All was well and merry until twards the end when it generated irr;o a violent evening A fight in which the first accused ;as irc1ved ; . ensued. At one stage the first accused lost stomach for further fight and took to flight. A group of people who included the deceased pursued and caught up with him after he had stumbled and fallen down.. He was belaboiircd by being stamped upon. The second accused, his young b'other, came to his rescue and it was during the rescue struggle that the deceased and another man PW..3 Gwalugano Ndindi received neavy head blows which rendered them instantly unconscious. The deceased died a few hours later. The body was sent to Tukuyu hospital where Dr0 Swai performed and autopsy on it. The doctor identified multiple fractures of the right and loft parietal bOnes0 And hO assigned the cause of death and, with respect, reasonably, to head inury. The evidence does not disclose the casue of the fight. PWOS Juma Mwakamyanda and PW06 Isakwisa Angyelile testified that they only saw the first accused fighting with people from Kuba village who apparently included the deceased and that in another moment they sw the deceased chasing the first accused and further that after he, the first accused, had fallen down the deceased and other people attacked him by stamping on him. All the prosecutioI witnesses who saw the second scone of the fight by and large testified identically that the second accused rushed to the scene and had occasion to strike the deceased on the head once or twice with a piece of bamboo wood0 That piece of wood appears to have been misplaced at the Tuku:'ru police station but the like of it was shown to the court 0 And that following the assault both accused ran away leaving the deceased uncOnscious. PW.3 Gwalugano alleged that he was also hit on the head and became unconscious. I would accept his story. The first accused made an extrajudicial statement to a Justice of the Peace, the district magistrate. of Rungwe, PW,4 Julius Mwakihaba. This statement, exhibit P1, was admitted in evidence without objection0 Indeed when the defence was . . - 2 callod in the first accused specifically remarked that he chose to stand by it and to say nothing further. In that statement the first accused stated that apropos of nothing the deceased rushed to him and repeatedly dealt him blows on the back with a piece of bamboo stick he was wielding. He fled but the deceased gave chase and when he fell down he, the deceased., resumed beating him. When he had managed to stand up he retaliated by hitting the deceased once with a stick after which he fled towards his village. The second accused chose to give unsworn evidence. He stated very briefly that as he was about to leave for home one man came to inform him that his elder brother, the first accused, was being attacked, whereupon he ran to the scene where he found him lying down and a crowd surrounding him. He unsuccessfully tried to pull thom apart during which he received • fist blow which felled him down. He stood up and picked up • handy bamboo stick and with it he smashed one of theassailants H then took to his heels and made good his escape. Two main points arise for determination. First whether the death of Nélo Nwakalyela was caused by the accused persons. Secondly if so,, whether it was murder as contended by the prose- cution. I have summed up to the three assessors and directed S . them on the law on the issued of self defence which was put forward by the defence. The first ad second assessor were of the view that both accused are responsible for the death while third assessor opinionated that it is the first accused alone who is responsible and that there was a possibility that the second accused did not assault the deceased but PW.3 G-walungano. The argument advanced by learned Counsel for the accused seems to have commended itself to this assessor. However, all assessors gave a unanimous opinion that the accusd persons ac-ted as they did in self defence and have therefore advised that both are not guilty of the offence. I have carefully considered the evidence and, with respec;, I would agree with the opinion of the first and second assessor on the issue of aausation. What is not in dispute is that the first accused hit the deceased before he made a successful bid to escape. Ilso, what is not in dispute is that the second accused hit a person in the course of his endeavour to rescue the first accused. He did not say who was that person. Could he have been PW.3 Gwalungano? The evidence of PW.3 does not of course illuminate upon this point for he candidly admitted that he did not know his assailant But the evidence of the other prosecution witnesses, particularly that of PW.5 Juma and PW.6 Isakwisa whom I consider independent and credible, shows that the second accused struck none other than the deceased. On this evidence and in the circumstances which prevailed I would find that both accused persons are responsible for the death. The second point entails an assessment of the evidence in order to determine whether the defence of self defence avails the accused persons. The story of the first accused that he fled from and was pursued by the deceased tends to find support in the prosecution case itself., Likewise the contention of the second accused that he intervened in the fight after the first accused had Un down and when he was being assaulted by a mob. The upshot of the defence case is that the first accused had to strike back in order to save his life and that the second accused was driven to strike in order to rescue his brother from further attack directed towards himself. The position in law is that if two mer fight upon a sudden quarrel as was the case in the present case, and one of the combatants after a while temporizes in an attempt to avoid any further struggle and retreats as far as he can, until at length no means of escaping his assailant remain to him and .13 - 3 - he then turns round and khls his assailant in order to save his own life 9 that killing is completely justifiable in that it is one purely committed in self de±'ence. This defence also avails cr, person who in the eircumstances of necessity intervenes with the sole object of restoring the peace by rescuing another person who is being attacked I would concur with The assessors that this was exactly the state of affairs which obtained during the killing of the deceased., The evidence tells strongly that the first accused had disengaged and fled from the deceased. until he was he was literally driven to the wall. It shows that a mob descended on hims and attacked him as he was lying down on the ground, Mob mischief being not a rare occassion in this country, I would think that hc had a well grounded apprehension of violonce to him. I would think that there was no other way of saving his life and that he attacked the deceased solely to avoid any further fighting, I would aiso agree with the assessors that it was necessary for the aecond'accused to intervene to rescue his elder brother the first accued. J.s he related, he first tried to separate the attackers from the first accused. But he was himself knocked. downby a hard blow, He then got his hand on a piece of wood and attacked, it appears, the first man in his sight and fled. I would agree that he struck with the sole purpose of saving his own and his b±'othors life, Lnd I cannot say that the means. employed wag unreasonable nor that the degree of force used was excessive in the circumstances. I will therefore find both the accused pe'sons not guilty and I will acquit them. So far as the present case is concerned they are no longer lwfully detained in cubtody. Delivered this 12th day of May, 1975 before Counsel and accused persOns. D.P. iJIGLNO JUDGE,