19800603 TZHC Tabora

f I Jtj C- IN THE HIGH COURT OF TANZANIA AT TABORA ORIGINAL JURISDICTION (TABORA REGISTRY) CRIMINAL SESSIONS CASE NO.12 OF 1978 THE 1EPUBLiC versus MSULUZYA.: LUIUNGA, CHARGE: Manslaughter c/s 195 Of the Penal Code, Cap.16. JUDENT MAPIGNO, J. ISULUZYA LUBIJNGA is at this instant on a charge of manslaughter, contrary to' section 195 of the Penal Code.. The allegation is that on or about the 19th day of August, 1976 he unlawfully killed one •Lubatula Masenge, the incident taking place. at Bulungwa in the Kahama District in the ShinyangaRégion. He has pleaded not guilty to the charge. There is no dispute' and it is beyond any sane doubt that Lubatula Masenge is dead 'and that he died of an, assault. He was described as a middle-aged person in good'nutritional condition. He was a resident of : 3ulungwa in Kahama. He was seriously attackedoutside a pombe shop on 19/8/76 at about 8.30 p.ms when h was proceeding home from the pombe shop. He had been: drinking at the pombe shop with other people. He was 'hit on the head with a blunt object. That assault fractured his skull and rendered him unconscious. He was sent to the GOvernment hospital at Kahárnawhere'he did three days later. Medical evidence establishes that the injury on his head was what caused his demise. There is evidence from several prosecution witnesses, including the bar-tender P.W.3 Sangano''abula, that the deceased had been drinking for long hours at the pombe shop..Likewise the accused pe'rson. Thereis evidence that at one stage the 'deceased did volubly, and scornfully mock the accused by remarking that he was a poor man and that he., the deceased, could 'feed hinv and his family. The accused took offence at that unsavoury remark and shot back in kind. There' then 'ensued a trading of insults which took on the dimension of a shouting-match. -e (2) That exchange spoiled the mrriment and when the bar-tender realised that the atmoslhere had growñthore charged he closed the pombe shop and requiredhis handful patrons to quit. Everybódr left the place. The deceased was assaulted soon thereafter, just outside the pombe shop OOnid. There is only one witness who said he saw the deceased being assaulted-. .P.W.2 Robert Mabula, his relative.: He toldLthecourt that he had goneto the pombe shop with the deceased and one Kafupu. He said he did not stay long. He proceeded to his home, leaving the deceased and ISafupu at the place. Soon after retiring to bed he heard noises from the Pombe Shop. He became anxious and went to the place. 'e. said he found the deceased fighting with Pw.4 Kadoke Nadalali. He intervened and succeeded to separate theii. Then, he alleged,he observed the accused springing out from the grass holding a club. He allegedithat he saw the accused dealing the deceased :b1ow on the head. He said that he next saw the deceased falling down and the accued and Kadoke running away. But Kadoke denied having fought with the deceased. He alt denied that he was present at the scene of the assault. AS for the bar-tender PW.3 Sangano who accordihg ttHP'.2 'bbrt was also pieseht, he also denied that he awthe assauILt.- Th oTher pfece of v •.jicc-n which the prosecution relies is the extrajudicial statement, exhibit. P.1., which the accused.madeto;the Justice of the Peace PW.7 Mohatned Sefu Maluba on 13/9/76. That statement his, been recanted by the accused. In substance, the .ccüsed is erf record as telling: the Justice ofthe Peace a story which is similar to.l that deposed by the prowection as to what hd happened between him and tbeHdeceased inside the pombe shop. Further, he told the justice of the Peace that after .PI4..3.Sangano had asked the.patrons to go away he immediately stood. up and left the place. And thei, toquote him: "Baada ya kutembea kidogo •tu .tukashitukia marehëmu na mwenzie wametupata. Marehemu • • alikuwanafinbo. Tuiiwaogopa tukakinibia. • - Kumbe:.mkwewangu alikuwa aniezidiwa na (3) "pombe wakati tunakimbia áliangukachii.' Ndipo màrehemu alifika ná kumpiga fimbo -. kwenye:mgongo. Akalia': nakufa'.. Marehemu na mwerizie .waliendelea kuni-,' .ftiata. Ndiponiiichukua fiznbo nikampiga marehemu'halafü .nikaondoka ..nikawaacba Wamesimama pale pale". P.s"bserv.ed, thèaccu'sed has retracted the statement, contending that' he gave it'out of iear..'In.!'is unp'rn • 'statñientbèfore'thiscourt he diedt,at there was any • iñ.idnt whatever which involved. , hirn and the, deceased: at' lthe pombe shop'. He aiiege,d that, he. left, the:place: at 7.45 p0m.' and peacefully went, home. said he. Was surprised when two days later he was .quesione.d by his. Katibu Katä about the assault'on the. decease4. Hfurther alleged that :en1 the decOased himself had cate!goriç.'aly denied at'th.e hospital that,he, the accüsed,:'wasis. asailant. 'iij . •' : , , . '. . Th'efirst' 4on-Ishou1d 'ask myself is whether it -1-s ündoubtedly't'1.:u-'.that P.2 was present at 'the scene at the"t'±rne th d&Jas;.ed was being assaulted. I posed thd same 'question to the gentleman assessor and in afigw6 . rf 1hp expressed grave doubt about the wxtness pres'ence.';lrespectfully shar hi&d9ubt.e Because, for one hip"'"if'*ego'byt'hetes,t,imony of PW.3 the assault took.,p1ac immediately'after..thedeCeased.had gone out ofthe pofie hoi; ccirdo It'is, therefore, quite unlikely that P'.2 ould'have come back in, time to, witness it. Fpr another,.,his allegati.on.thatP,.3.and w.4 were also presentat the scene was denied by, the two witnesses. Probàbiy y, I.think, is. that PW.2 'arrived at the' scene after the assault and that he did.:not.see the •pe±son who cohrn'1tte'd; it. . I would, therefore', discard his' evidence in' so far as. it .tends'"td connect the accused to the assault. That leaves us with the retracted statement, - Exhibit to P.1.' 1 direct myself, as I did the assessor, that the present rule as laid 'down by the Court of Appeal is th&t a retracted. statement such as P.t.can only be accepted with caution and that corroboration in :some material partIcular is normally required before it, can beacted upon. And that 'if such corroboration is wanting then the (4) statement can only be accepted if the court is amply satisfied, in the circumstances of the particular case, that the statement cannot but be true: See Duffus Ag. V.P. in Tuwamoi v. Uganda (1967) E.A.84. Mr. Kw1ic1rna,learied counsel for the accused, has submitted that there is real likelihood that the statement is false afl hat it .wcu1 be dangerous to act on it. Relying, Mr.Sengwaji, learned state attoi-ney, has invited this court to find the staterient true and he has given two reasons. One, that part of the statement is in line with thtestimony of some of prosecution witnesses. Two, that the accused 4as, according to several prosecu, tion witnesses, the only person who had a short while back been quarrelling with the deceased in the pombe shop. The assesSor has not been impressed by any of those arguments& was of the opinion that the truth has - not been disclosed. "e thought that neither PW.2 Robert • nor the acd has told US the truth, and bearirg in mind the incidence of the burden of proof, he has advised that th accused be acquitted of the charge. Irespect the views ofthe gentleman assessor. I think that there is a quality of sincerity and penetration in them. For myself,.. 1 would start by saying that the accused cannot succeed to dispute the evidence adduced by the prosecution as to what happened inside the ponñe sI'op in that evening. There is simply no reason to think that all those jrosec.ution witnesses were lying about that. I find, therefore, that at one stage in the course of drinking there was an exchange of insults between the accused and the deceased and that it was the deceased who preciptated the Y, hoie thing. I' find that that was what led to the immediate closing of the pombe shOp by PW.3 Sangano and the consequent dispersal of the:;patrons. I find that the attack on the deceased followed soon after the closure of the pombe shop, just outside the .................. compound. . . I think that Mr. S.engwaji's submission regarding the extrajudicial statement is a forceful one ad I am tempted to agree with the view he canvassed. Cluite clearly th details of, the, statement P.1 accord in many particulars with what was deposed by the prosecution Witnesses regarding the incident which took place inside the pombe shop. Ajid as the learned state attorney pointed ________ -- t•• (5) out , the fact that the accused was the only person who had quarrelled with the deceased a short while back has to be given some consideration. As I have just said, I am tempted to agree with the learned counsel that the statement carries the trutn in every respect. But the cuestion must be posed: does the statement help the prosecution case and can a conviction be properly based on it? Mr. Sengwaji would have me answer that questionin the affirmative. I regret to say that I cannot bring myself to do so. As I carefully read it the statement strongly sets up the defence of self defence. it says that the deceased and his companion followed and chased the accused and his father in-law. They caught up with the latter and dealt him a stick blov. Then they proceeded to chase the accused and when they reached him he decided to hit the deceased witi, a stick and he did so. Now it is the prosecution's contention that that is what happened. I say that if that was so, then it is difficult for me to find that the assault was at all unlawful. It would seem that the accused was at the moment reasonably in fear of his life or limbs and that he struck the deceased merely in order to forestal an attack on him. I am inclined to think that the avarage man would have done the same thing in the circumstances. I would, therefore, hold that the assault was at law justifiable. In sum I find t 1nat the evidence wh - .ch has been led against the accused does not support the contention that the accused killed Lubatila Masenge unlawfully. On the contrary, I find that the prosecution case itself establishes that the accused killed him in self defence. Conseouently, I find the accused not guilty and..aoqit him . H e is to be set free forthwith if he is not otherwise lawfully held. Pronounced in Court. (Sgd.) D. P. MAPIGANO, 3.6.80 JUDGE. I certify that this is a true copy of the original. rM