19811120 TZHC Tanga

• .-.•-- Wit- -Q -- IN THE HIi COURT OP TANZANIA AT TAN GA ORIGINAl 7URISDICTION I • (TANGA :iEGIsTRY) CRIMINAL SIT'SSIONS CASE NO, 7 OF 1980 THE REPUBLIC Versus i; ZAKARIA KANYANZURU 2 EI1IAS TUSIWE CHARGE: Murder a/S 196 of the Penal Code JUDGEMENT SieyaJ: The accued, Zalaria ilo Kanyanzura, and another person, in respect of whose charge a nolle posequi was entered at the close of the case for the Republic and he has since been discharged, appeared to answer to : information containing a single count of murder contrary to section 196 of the Penal Code. They denied the truth of'the charge vthereupàn the Republic.. called seven witnesses to prove its case s The accused gave a sworn statement in defence but he did not call any • witnesses on his own beha1f. • • There can be no doubt s on the evidence adduced in the case, that the deceased, Mjohoro Mpinyeke, is dead and that he died a violent death, The deceased 1 s own full brothers Lupapa Mmakonde (pW2) gave evidence in this case'.. His testimony is to the effect that on the evening the deceased met his death he, PW2, was summoned from his house after he had retired to bed He responded and acting on • iiformation received he proceeded to the house of the Ward Secretary of that area s one Bakari Mambo (PW6). He found his brother, the • deeeaed there, lying down. He, i.e. the deceased, had injuries on the upper lip and at the back of his head from which blood was - sUR o -paupnq U trç posnoti sr xts . 1rni-w p -ç o otu. aq o pwç i qoTt puo pendsp. Ot SOM tioTtiM 0oUep -pO IXTMT qj tq clra[nq-lq ;o GVXOU 0..1epufl sut all TIOTtIM izA(I ;o pas-noou ot q poqinossO SOM posoeoep attq qoTfl etq p10q nxotiM jo ttq-oq '(GM) TSTUIoH odoqpi puo (i) oTirnqo1o/ Tzn•tJ fsassquqTm oq pollrio oTlq -ndaU ouq osoo et'q ;o q.0adsu STtiq ''O ZP°°°eP atq ;O. ttop. Ot pOsflO3 tIoTt soç.XflUT etq poqOTTJUT OttM-'ST u0TqnjapTsuoD .10; SOSiJO qotq U0t4.sonb qxou ot qvep qalOA o poçp qoLq puo poop P 09 PUT ST osoo sitq. 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The roof is supported by..piilars, In shot PW4 and PW5 testified to the effect that on the material evening pW4 went to the bar to assist his bar maids whereas pW5 went there to drink "pombe" There were also ot;herswho'.had gone to the same bar to drink liquor One of them was the deceased who apart from dri1ng was also engaged in his usual netty business of selling snacks in the form of boiled: fish At about !'OO p.m.•the accused too arrived at Mtukula bar. According to PW4 he i,e. accused, was accompanied by thxee others whereas pW5 said that he only saw the accused and his coaccusedat the trial, The accused and his co—accused entered the bar and ordered some "pomb" One of the :bar maids told him that there was no more pombe left for sale, ' On hearing this the accused became abusive. At the same :timé hekiOked the lamp which was then burning on the floor and i t, went 4Qff At that stage pW4 who stated that he knew the accused aILd hjsbomar.ioiis before rebuked him and told the accused that if he had a score to settle with someone then that was not the..proper. way to go about it The accused then went out of the bar while telling those inside to follow him if they considered themselves men, No one folljwed Both pW4 and PW5 told the Court that thereafer the accused and '1 the man whó appearred s his., cac'Cttsed at the trial then began to - pull out Some poles from a.r4ck whi'ch'-was outsIde the bar. It is in evidence that the said rack was 'being used as 0. form for sitting by some patrons Who preferred to sit outside; The accused and his colleague then flung the said poles inside the bar through the gaping Spaces in between the pillars As this wnt on PW4 and PW5 heard the deceased say that he was going outS to urge the brutes to Stop throwing the poles at them because they, i.e. accused and his companion, were his. "friends", The deceased mntined that he used to beet or see the.,accused at the milk place; The deceased got up - . '/4 I / - - 4 and went out's Theie was bright moonshine an that particular evening and this enabled pWi. and pW5 to see outside c1èarly. The moment the deceased stepped out P44 and PW5 saw the accused strike him With.a1 pole on the facE. 6ne The deceased fell dbwn There- .fter the deceased got up c.nd turnëd apparently, to get away' The accused then struck • hith a second time with a pole at the back of his head The deceased fell down again and became helpless. On seeing this those in the, bax including PW4 and PW5 rushed to his aid ;6kJ At the same time the.accused cnd his companion -began to ran away' pW4 and others :t.tende the dceaed whereas pW.5 and others ran after the assailants while raising :i alarm. In no time the accused and his Ôoaccusedat. the trial we'e appreherided Eventually, they were brought tb justice . The Plice officer wi-a investigated the case, Detective Sergeant Major Onrlus (pW7) gave £vidence In the case--He testified that he visited . the scene of the assault on the following morning and with the assistance of the bar owner, ?4 1 he picked up three poles from there which he then retained as exhibits in this case, He kept the said polesatthe Police station, Pangani, He has however, since been moved over to Korogwe and, therefore; he could no longer trace the said poles O Consequently no pole, or any other object or weapon, was tendered as an exhibit in this case In his defence the accused told the Court that on that fateful evening he was on his way back home from Madanga where he had gone to look for some sugar which he failed to get because he was told that there was noie He was alone He was then suddenly confrbnted by agroup of about five persons who "fired a arrageI of questions at him. As he tried to answer them he overhe.rd one of his assailants tell his companions that he, i.e o acäused, was not at the scene of incident'ej Thereafte.r he was hit with a-stone by one of his assailants whom he could not .•identi.f, The attackers then fled leaving him behind but hurt on the head. He thei.proceeded to the local dis—. there pensa.ry,f or tratment 0 Beoie he got Z a TA1ESCO vehicle arrived • with some people, none of vom.he Ithew, in it. These too interro.. • gdted hith before fina]1y ai:prehendIng him in connection with this present matter. It was afte±"he was put in the said TANESCO vehicle when he saw his co—accused, whom he did not knowbefore, also being brought The accused denied assaulting the deceased He said that he is a eetotalier and therefore he is not accustomed to entering bars. He denied anyknowledge of p\4 pW5 and the deceased He conceded, however, that it was possible these persons and many other local residents knew 5,hjm because he was working at the milk sectibn of , Azimi He added ti :t these too could have developed a grudge gn'st him after missiiig some milk. The first assessor did notaccept the accused's statement in defence 05 He wis alsonot impressedby the twoeye witnesses, .PW4 and PW5 because 6ftheitradiction in their account on the number of people who idcompanied the accused Prther, since the incident' tookplace at I "a"p1iiO house the fit assessor as of the view that it waspossi- ble that pW4 and PW5 were drunk at the material time. He was also displeased with the prosecution for its failure to produce the. poles... The second assessor was equally unimpressed by P1 114 and PW5 as • eye witnesses Both assessors were thus not satisfied that the • identification of the accused was sufficiently established They, therefore: ridvised that accused should, be acqujtte'd of the offence charged • •'• " • 5 . • . With '-the'•greatest respect to both assessors I find that in their assessment of the evidence adduced in this case they had the correct - - 6 Principles -in mindbut theyproceeded on wrong considerations. To beginw.iththe me±e. factthat a person was in a. bar and drinking pobe" at the aterial timc-- does not ipso facto mean that he was -drunkand/or incapable of gving a correct account of the events that •took place in his view In the present case both PW4 and PW5 denied the suggestion that they were drunk at the material time. PW4, as aforesaid, stated -that hewab merelyassisting his barmaids, in selling pombe at the time the accused arrived PW5 stated that he was taking his first bottle of pombe at the material time and -that he.wasnot:drdrk There is absolutely no.reason why these two witnesses shoiild - be.disbelteved on this point. By.. Suggesting that pW4 and pW5 may have been drunk at the material time, therefore, the first asessor dwelt un an assumption which went against the evidence on record - - - Secbndly it -must be onceded that pW4 and pW5 did differ on the number Of persois who accompanied the accused The material question that one has to ask-.h:.mself hero, however, is what effect does this sort of cdnradiction have on the Prosecution case as a whole and in all-the circumstances of the case On my part I find that the said contradiction is anderstandable in as much as it is also expli- cable. Admittedly people differ in their powers of observation and recollect-ion In the instant matter it Should be borne in mind that PW5 was setted inside the bar with his drink whereas PW4 wa selling -pombe Both- -PW4 and PW5 are agreed that only the accused and his coaccused were the aggressors with the accused taking an upper hand PW5 alsoconceded- that if the accused had other companions-who remained outside ther he could not have seen them, It seems to me that onthiS aspect of the matter pW4 must have been more observant or rather was in a better position to see and observe when the accused arrived at his bar than PW5. This Is confirmed bythe fact that PW4 - - ...../7 -7- even saw from where the accused and.his oompanionS emerged: It was from the bar hext to his own. It seems to me that bo;h assessors were influenced by the mere fact that the incident took place, or rather the principal witnesses werein a bar 0 This was a wrong consideration Both PW4 and PW5 sta;edthat°they saw the deceased being. struck on the face and at the bac1 f his head Their evidence on this point wássupported by Dr Mohamed (pWl) and Mmakonde (pW2). pW4 stated in his evidence that he Imw the accused before; he was thus hot a stranger in his eyes 0 Th:.s piece of evidence was not challeged or contxadicted and I have no cause to reject it. PW5 stated that he did not know the accused bc?fOre the incident. He, however, testified that he heard the deceajse say that he knew the accused because he used to see him at the mic place The accused himself conceded that he was working t the milk section of Azimio Ranch. Further, pW5 stated that after beling struck he overheard the decease.d cry out "Zakaha, you are kiiliig 'me The accused's fIrst name. iS .Zakaria From this it can be deduced that accused must indeed be the person who went to Mtukula bar on the material evening and assaulted the deceased Not only that There is also evidence to show that thé accused was apprehended not long after the asauiton th very same evening as he tried to escape from the scene In the light of all this evidenàe considered as a Whole I am satisfied beyond doubt that the identification of the acused person as being the person who infli- ctd•d the injuries which caused the death of the deceased has suff- ciently been established The deIence story to the effect that the accused was apprehended for no appont reason at all does not raise even the slightest doubt in'mymind I have considered the fat that both PW4 and pW5 testified that the deceased. was struck only twice in the head, i.e. on the mouth -. - 8 - and at the back of the head, These two witnessess added however, that the deceased also fell at least, twice as a rêsült of the assault Pr' iViohamed etated that the ruptured live±' could have been caused by a a11on a.hard surfacee It seems to me that in the absence of evidence of a direct hit on the deceased's stomach the only reasonable inference to be drawn from the facts available is that the dedeased ruptured his liver in the fall However, since accused is the one who caused the said fall he is also deemed to be the one who ruptured. the, deceased 1 s liver Pinally, InoW turn to the question of malice aforethought: Ordihary this, is iiifezed from a proved intention to cause death or grievous harm in this case although the blow on the mouth did cause actual harm but it did not resul.t in any traumatic extraction of any tooth which would have amounted to grievous ha The one on the back of tie..head did not cnuse any fracture of the skull or any injury that could attract the attention of Dr, Mohamed (p)' At any rate none of these wo - injuries was said to have directly caused or contributed to the cause of the deceased's de'ith, In the event I do not think that these injuries are such as to make it safe to jmfer malice aforethought. I will s therefore, find the accused not guilty of murder as charged and I acquit him of thatoffence He is however, guilty of manslaughter contrary to section 195 of the Penal Code and I convict him of that off ence . . Delivered in open Court at Tanga this 20th day of November, 1981 • (HLs 0 Judge 4 -- • - 9 : kasege for Republic Accused is a first offender gasala for accused: The weapon used was not seen by the Court. The amount of force too does not show that accused intended to kill'. Although there is no evidence that accused was drunk there IS, however, sufficient material from which such an inference may safely be dran He threw a cha1lerge to the world for a fight The accused has been in custody f or a very long time since 1977. In the mean time he has lost his job He has a family to look after and he is the sole bread winner Accused is sorry for what happened. The Court should exercise leniency on his part SENTCEg Accused is convicted of the lesser offence of manslaugher. He is a first offender and has been in custody for three years. The attack on the deceased who was defenceless was unprooked& and seneeless It connot be explained except indeed that the accused must have been drunIg e 411 iii. all I sentence accused to three years imprisonment. 1vL7 C) Judge 20/11/81 Right of appeal explained Assessors thanked and discharged (H.E.B. Judge 20/11/81 'C