19760327 TZHC Singida

IN THE HIGH COURT OF T1NZILNL T SINGIDA ORIGINiL JURISDICTION (DoDOW REGISTRY) .. CRIMIN/L SESSIONS CSE NO. 50 OP 1974 THIJ REPUBLIC flULOBI s/o MiSANJA CHILRGE Nurdor c/s 196 of the Penal Code • 0 J U D GEMENT The accused, Nyalobi Masanja stands charged with murder. 0 It is the prcs.ecution case that the accused on or about the • .22nd day of Augut;1.972 at Kigaa: village, Iramba district, in Singida region ho, of malice aforethought, killed one, Nagoshi s/c Jiloya. The accused pleaded not guilty to the charge. 0 FromheovidencefKisilaja s/c Kilaya (PW2), the • identifyLng witness, and; the doctor's post-mortem report (ex.h.A) there can.he no dispute that a man by the nate of Magoshi a/e Jiiyahas.died. EquaIy there can be no argument that Nagoshi Jiloya died a violent death. The only question this court has to decide is - who was the p?rpQt,i'.atölof this odibud, Ôrine. •0 The Republic argued that it was the accused who unlawfully • • and i 1 t nti onally attacked and : iti1J&1 the deceased. In support of the charge three prosopution..witnesses, ga've evidence. K1sllàj,.(W2), brother of the deceaed related to the court that a day before the deceased met his death he and the • • 0 deceased had sold one head of cattle at Kigai cattle-market and.that soon after the sale they.proceeded to a porbe-shop where thedra±ik.'pombe the who]ê night and throughout the follow- 0 ingday;'t was his evidence that at about sun-set they started their way back home in the company of: ànothe' man,,one, Kalatini 'O (Pw3). He told the court that as they were on their way home they saw thb accused and two other men (whose nameshe gave as, Liana and Sinyira) folIowin them..Then,áccording to his testimony the accused gratuitously abused, them saying ;'kumaayot The witness and his friend :K.a-jfli (iW3) took to. their 0 heels leaving the deceased (who was too drLik to rim) behind. The witness further told the court that they stopped, about 75 paces from the deceased afld.. that. they saw 'the, • accused assaulting the deceased twice on the head"ith:a..stick The deceased fell O down and the accused and his companions ran awa.y. When they returned to where the deceased was lying they found him in a morib.nd condition and that he süccumod to his injuries as they were carrying him to his hcuso0 . . ..2 - 2 - Kalatini (PW3) gave s'ihlar eidence Ps that of Kisilaja (Pw2) regarding the long drinking session, their journey back home and their being fo1Iowod by the accused and two other men0 Like Kisilajalthis witness also told the court that the accused abused them and twice assaulted the decea.ed on the head with a stick. In cross-examination by the court Kisilaja (PW2) said that the accused and the deceased fought with sticks. In his examination-in-chief Kalatini said that he saw the deceased assaulting the accused once on the head with a stick, just before he (deceased) fell dowi. P 0 C Philemori .(Pitii) related to the..court.hpw he investigated the case and arrested and charged the càused ith the offence of murder 0 After the accused had been explained his rights in defence he opted to ffe-r no' e.vid.eii.c.e.0-'. The learned state attorney argued that the,.fact that th accused aimed the blows at such a vinerabIe p't of the bed d8 the head and used'such,forcoas to fracture deceased's skull proved rialiceaforothought and that the accused should be con- victed of murder. fl.itornativoly it was argued that if the court found that the acc - c had foruod no intention to kill deceased • ". ôr to cause him grievous ham wheñ,ho inflicted the'fatal blows 'on the aá,qused, it was a'guod, should ,e found guilty of the lesser dffbnce of manslaughter0 The Ibarned defence counsel on the other hand argued that there was acia, fight between the deceased and the accusec. and that: 'oôare of this,tho killing s it was submitted, aaouatcd a. -'- ho. most to -onsl'ughter only, if the court belieite the ovidenc.o of:the '±b,witnesss (PW2 and PrJ3)0 •H..' '. iifcrjmy, sunning up. to:.th,o..gentleuen assesaors they were both of the Opinion that the two witnesses : (2 .aid. PW3) had amply identified tile accused as the deceased's assailant on ie uateriaLevening. They were however: of the view that it was • a drunken. fight aid that 'the : abused, had riot .frned an intent n to kill the deceased when he was inflicting the fetal blows. • They therefore returned a verdict of manslughter. 4urder, to put it bciefly is in lew, an unlawful acG or - omission from which death: results, done with intent:: to kill or to. cause •grievous harm. In the present case lam satisfied, ':aS are the assessors, that the, two witnessè.s (PW2..aiad PW3) amply identified, the accused as the person who aCsaulted the deceased on that fateful evei.ng. The blows caused dèceasedts death. ..Thee can equally be no..doub -t that.accused'äs.saults on the '.dece'sed were unlawful 0 What is' thore'difficult todecido is ,'1..whether, malice-aforethought has .bee.nprovad against.the accused :b:eyond all ;rasonabJ ,dob o as to support the charge of rde:. 'ks 'itt has :of'te:n been. pronounced by-this court and the court of a'ppeamalic,e-a±'orethought is.rarelyproo. by direct evidence: It is often.inferrodfrbm'the..circumstancosvi.ewod.'as a whole, P. The nature of the weapon used and the manner, in which the blow 1 .:is.'flflicteae.fa'c,tors to.. taken- bo is the rnot'iveif aiy- notive is known,. •. : • . '- In the presen- ae aflu SL,øFc aeed by the accuced in infla.ct±ng the fatal wounds was not produced in court E'S exhibit. The court is therefore at loss as to what was the size C •3 - 3 - of the stick the .accused. used in ass.ulting the deceased. It could have been a big and fornic1ablo.stick0. It could have been a small stick0 We do. i:ot know. Theio can of course be no doubt that the bJbwa wore Jii etod at a most valnorabJ-o part of the body the head0. BUt againio do not have any medical evidence as to what amouiht of force bould have caused the injuries sustained by the leeased0 It was of course argued b the Republic that the fact that the deceased's skull was fractured the force ued in inflicting the blows must have been considerable0 This may very well have been so, but it. is also anoclical fact that some people arc born with 'soft skulls' and that the slightest application of force on such skulls could cause fracture., S Again: in the absence of medical evidence the court cannot • be in a position to decide as to the, amOunt of fbrce the accused , used in inflicting the fotal bJows. As to the quest-ion of motie. There is no knm motive. On the contrary there was no enemity between the accused and the deceasedbefore theincident. The prosecutioiiS of course not required to prove motive; but as rightly.guéd by the learned defence counsel, the complete absence of motive is relevant to the question of intent0 As I have already mentioned, both the witnesses (PW2 and PW3), testified that the accused and the deceased fought. with sticks befre the former inflicted the fatal blows on the later. There was als.o evidence that the deceased inflicted a wound on accused's head with a stick. Unfortunately it would appear that the accused was not medically oanined and as a result the court could not say the nature of injuries sustaThed by the accused as a result of the assault on him by the deceased. It is now settled law that "When death results as a result fight .,.... unless there are very exceptional oircflist.3eS,LOf a r:and not persOn who.causo death are guilty of nanalaüghte murder" - R.vs JOHN In the present case I agree with the gentlemen assessors that the evidence is more consistent with manslaughter than with murder0 I acOrdingly find the accused not guilty of murder and I acquit him of this charge; but, on the evidence, he is convicted of the lesser offence of manslaughter c/s 195 of.the Penal Code0 N. . Judge ~ IZ ;Cr Prosecution: My lord the accused was convicted of assault causing actual bodily harm in .1969 and he was sentenced to two years' imprisonment0 Accused: Yes, I was convicted by Kiouhoi district court of assault causing actual bodily harm in 1969 and sentenced to two years'.. imprisonment0 In My lord deceased's ac a t1i mloc as a result of P. drunken fight between the deceased and the accused0 The accused is . . 4 unrried. Hc has two young brothers and a sister. His father died in 1974. He is the one who locks after his motner and the ether child-roii }L ha been in roi.,and for 5 y e a r s and .eight.monthsi We Drry for lonioncy. .ccused I have nothing to say I was too dnrnk on that '.:day';I .cli'flt know what' .L did ' There ctn be no doubt from what the accused has admitted that the accused is a person given to violence. Only in 1970 he was released from prison after having served, two years imprisonment for assault'causing bodily harm.' A year later he'urilaw±'ully asaultod and killod thô deceased. I take into account accusod'slong'stay in romandbut I am'aJs convinced that 'the accused should be taught that violence does not pay. The previous 'two years sentence appear to have not deterred the acOüsod from acting violently on ot•her, This Is, in my view, a case calling for condign if not deterrent sentence The accused is sentenced lo five (5) years' irlprlsonment SINGIDA N. S as 27th March, 1976.