19770513 TZHC Singida

ot S - -- IN TUE HIGH COURT OF TAU71NIA AT SINGIDA -- • ¼ ORIGINAL JURISDICTION (DoeDoA REGISTRY) 2 CRII111T.L SESSIONS CASE No. 173 OF 1976 THE REPUBLIC • versus PETRO s/o NGOI CHARGE: Murder c/s 196 of the Penal Code, a' JUDGMENT MNZAVASJ, The accused, Petro Ngoi, stands charged with murder. It is the prosecution case that the accused on or about the 19th day of October, 1975 in the district and region of Sinida at Muhaa division murdered one, Nwan& ombe s/o Ndimi.. The accused pleaded not guilty to the charge. From the evidence of Lesso Ndimi (Pw.4), and the doctor's post—mortem report "Exh. B" it has been proved beyonu any shadow of ddubt that a vilLger by the name of Mwang'ombe s/o Mdimi has died. It. 3s also from the evidence beyond dispute that the deceased Mwang'ombe.Mdimi died a violent death. The only question this Court has to decicleis who was the perpetrator of hisodious crime? The nrosecutionargud that it was the accused who assaulted the deceased on tIe head with a stick and that it was the assault that caused deceased' s death. In support of this alleghtion the Court heard evidence from two main 1wosecution witnesses Lriti Mchanc:a, (Pw.1) and Sita ifliambi, (Pw.2). Lyiti's tiestirnony was to the effect that one day iii 1975 the accused visited her and that Soon after the arrival of the accused the deceased followed. According to her evidence when the deceased saw the accuSecL he started abusing him and ,that the accused -retaliated by alec abusing the deceased. Thereupon the deceased, according.Lyita • eidonce, rushed towards -thraccused who was inside the house and held him by the arm. Seeing that the deceased and The accused were ma combative mood tW withess rushed to' one. Itambi's house where her husband, (Pw.2) ) was drinking pombe 2fld infomed him that peple. wee fighting in their home—stead. This witnesswas diown a stick "EXh. A" which stick sho said was similar to the one the accused was holding on the day he was quarrelling with the deceasd. C. - r -. - Sita Ichambi(Pw.2) a girl of about 9 years , did not understand the nature of an oath but was of sufficient intelligence to justify reception of her testimony under setion 127(2) of the Evidence Act, 196 7 , She gave similar evIdence as that of her mother (Pw.1), regarding the arrival of the accused and the deceased at their house and how they started abusing each other. It was also her evidence that the accused and the deceased pushed each other. Khambi (Pw.3), related to the court how he was called by his wife, (Pw.,1 ) who told him the people were fighting in their house. According to his evidence on arrival at his house he saw the deceased lying on the ground bleeding freely from a head injury. The witness told the court that he asked the deceased as to who had attacked him znd that he replied t - at he did not know. Lesso Mdimi (Pw.4), gave evidence to the effect that on the day the deceased. received The fatal injuries he visite'. and interrogated him as to what was the cause of his injuries and that the deceased replied that he should not bother him as his head was confused. It was his evidence that next morning when he hoard tha: it was the accused who had assaulted him he asked the deceased 'vthether what he had heard was true and thereupon th, is said to have replied - "Ifhave known that it is Petro who assaulted me why do you bother me?" Detective Sergent Kweka, (Pw.5), related to the court how he visited accusedts house accompanied with the accused and recovered a stick "Exh. A". • In his sworn defence the accused admitted visiting the house of one Itambi where he drank pombe. He told the court that he met the deceased, Khaibi, Pw.3, and LyitL (Pw.1), at Ihambi's homo-stead. It was his defence That he drank poribo for about one hour and left to Lyampiti viflage He denied visiting Lyiti's house on the material day as alleged by Lyiti and her daughter, (Pw.2), leave alone assaulting the deceased a t Lyiti's hone—stead.. Ho argued that Lyiti deliberately told lies against him because they had quarrelled in 1974 when he (accused) married a girl vkio was apparently Lyiti's brother's sweetheart. As for the evidence of Sita (Pw.2), it was his argumon± that she was taught by her mother (Pw.1) to toll lies against him. The learned state attorney urged the court to accept the nrosecution evidence that the accused visited Lyiti's house on the material day and that after exchanges of abuse;: between him and the deceaed assaulted the deceased with the stick ard caused the fatal injuris.. - 3 It was argued that because the accused used a big stick and directed the blows with such force as to fracture deceased's skull the court should accept it as a faet that the unlawful assault of the deceased by The accused was carried, out with malice aforethought and .thsrefo find the accused guilty of murder as charged. In rebuttal the ijarncjd defence POunsl arguod that avon if the court was to find that it was the adcused who had inflicted the fatal injrios on deceased's head, thre was,- it was aibmitted, evidence that the assault of the deceased by the accused could have been a result of a fight between the accused and the deceased - Because of this evidence it was argued that the accused could at the most only be found guilty of manslaughter. It was also argued that the deceased had told Pw.1 and Pw.3 that he did not know who had assaulted him and that because there was no one who actually saw the accused assaul - ng the deceased the prosecution had not proved beyond reasonable doubt that the deceased received the fatal injuries from accused's bands. After my aimning up to the gentlemen assessors they were both of the opinion That the accused is the person who fatally assaulted the deceased at Lyiti's house on the material day. They were however of the vi ow that the assaults were a result a fight between thum and returned a verdict of manslaughter. My assessment of Lyiti's credibility is that although she can 1 with justification, he described as a woman of doubtful moral fobre her evidence as to what happened on the material day is essentially a truthful account of what happened. She told the court that it was the deceased who started abusing the accused and who in a truculent mood advanced towards the accused and held him by his arm. It was at this juncture when she ran to call her husband. When she returned accompanied by her husband they found the deceased lying on th; ground bleeding profusely from a head injury. The accused was apparently no where to be seen. Five days later the accused was found with bruises on his back. When Lease (Pw.4) interrogated the deceased on the second day as to whether' it was true that it was the accused who had assaulted him deceased's answer was, if only by implication, a dying declaration that it was the accused who had assaulted him. Siwa's evidence that the accused ciarreled with the deceased and ?pushod each other is fully corroborated by her mother, Lyiti. - - 4 - That the accused was found with biiscs on his back on 25/10/75 by the doctor (as per "defence Exh.. B"), only five days after the assault of the deceased, is not without significance. This avid, once tends, to supprt the argunent by the learned defence counsel that there was most probably a fight between the accused and the deceased before the later received the fatal injuries. Apparently the assessors were also of the sane view. Accused's defence that he never visited Lyiti's home- stead on the material day neither impressed the a-JSOSSOrS, nor the court. He was more of a loquacious witness than a taciturn one and I was left with the clear impression that his defence was palpably false. If Lyiti-had reason to cai.ise him his undoing there was nothing to prevent her to tell the court that she saw the accused assaulting the deceased with the stick, (Exh.A). She did not say so. She only said that at the time she decided to go and call her husband the deceased was holding the accused by his arm and that they were uarroling Taking into account the totality of the evidence I agree with The learned state attorney's submission that there is ample evidence entitling this court to find, as a fact tha 4 it is the accused who inflicted the fatal wounds on the deceased on the material clay. As to the question whether the killing of the deceased amounted to murder, I agree with the Republic submission that The stick used by the accused in inflicting the injuric: was a fomidahle one. Doctor's post mortem report also echoes the Republic argument that the accied used considerable force in inflicting the wounds. And what is more the accused directed the fatal blows on the head ; a most vulnerable part of the body. The. cumulativi effect of these facts would tend to support the learned state attorneyT -s argument that at the time he was assaulting the deceased the accusod had formed an intention of either to kill the deceased or to cause him grievous bodily harm. But as rightly submitted by -the learned defence counsel the evidence in this case shows that the deceased was all-along the aggressor. On the testimony of the two witnesses, (Pw. 1 and 2w. 2), it is most probable that the accused was provoked by the deceased when he attacked and killed him. As it was held by the Court of Appeal in ASANIJQ QJ:&XS... R(95EOA.C.A. 241 - "The uere intention to kill (as it was in this case) does not, in its self, 5 depr3.1re an aced. T .r;ion, but the iat ent ion must be inspired by budden provdation." Leaving br a moraaut the, quc-stioii of tae deft cc of provocation the evi(:ence. of Lyiti. and that of her dnh.er Sita, is that the accused and. the deceased were in anger holding each other when thT left to call Khamhi, This being the evidence it is possible, ndeed most probable, that when the two itnesses left, the accued and the deceased 'ought and th -.t it was durin'r the 'ight that th accused inf1ict the fatal injUries. Dealing with a case of rurder where c1eai had occured during a figb.t this Court had this to say in & JOHIi 1cLa .D. Whon death occurs as a result of a flht, unloss there are very oxcetional circumetancs-, the parson -ho caused death is guilty of manalaughtor and not urder.0 In the proseit caae and for the rasons which I have, I ho: amply demonstrated above, I echo the gentlemen assessor's opinion that the evidence is more compatible with manslauhter than with the offence o± murders - The accused is acuiti;sd of the offence of murdr - But on the evidence and by invoking my powers under section 181 (2) of the Criminal Procdure Code I find the accused guilty of the minor offence of manslau.hter c/s 195 of the Pnal Cide and he is so convict(•:d. Pros The accused is a first offender. In niUjatinr.Nbezj My Lord in this case, the deceased was throiejhout th a[;ressor • Th accused having, b ec:fl living with the fa;•iily of Lyiti had every reason ol visitin: then in the me.terial day. The deceased who was apparently a paramour of Lyiti started abusin: th accuced - May be becus. of jelous The .dcassd had no rason to behave the way ho did. Jhen the quarrel started th accused had the stick v th hi;.:. B-..aring in mind the bruises found on the hack of the accused it is possible that the accused had been thrown down on his back by t1 thiceased whon ha inflicted the fatal injuries. The accused is married with two children. His br'thr died leaving behind five children who depend on the acc".s -d. Accu •d's father is dead. Tha accu.ed has the burden of takir' cers of his mother s d -two young brothers. The accused is a first o:L. ner and has b on in ru?and custody for about 19 months. We ask -1' oi lEnioncy. • Accucod Nil, 1 - 6 - Si Sentences This was as the evidence shows a case of provobation curn-sel±'-defonce. It is also amply clear from the evidence that it was the deceased who started the quarre which led to a fight culminating to his death. If these facts were to be looked at in isolation of the other facts, the accused would no doubt he entitled to a lenient sentence But on the other side of the coin the deceased was, despite of his being the aggressor, unarmed. Medical report does not show that the deceased caused any serious injuries to the accused which may have prompted him to use his forrij1dable stick on the deceased. All that the accused was found to be suffering from were bruises on his back. Taking into account the totalit of th e evi d enc e there was noth ing justifying the ac cus ed in attacking the deceased so violently with such a lethal weapon ad directing the blows on a most vulnerable part of the body. Accused's retaliation to deceased's provocati' was most unproportional. In attacking the deceased the way he did, the accused showed total disregard to huran life. Had it not been for the fact that the accused is a first offender id that he has a1ready ben in remand for 19 months I would not have hesitated passing a heavier sentence than I an now passing. The accused is sentence to 8 years imprisonment. Right of appeal to E.A.O.A. explained. N • S. I'NZAV,.S J1JDGE SINGID 13th May, 1977 Mr. Ojare for the Republic Mr. Mbezi for the accused.