19830905 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF TAN ZANI/, . ff-(c. l-~~,J ~ ~-~. O AT ARUSHA (CORAM: MWAK1\SENDO, JoA., MAKM1E,. JoAo & KIS1\NGA, J.Ao) CRIMINAL APPEAL NOo 22 OF 1982 BETWEEN ·10 ELIAS KIMARO \ 2. 3. WILLIAM FARAJI) ADRIS ADAM ) • . 0 0 0 0 .• ..•.0 APPELLANTS 4. HAJI HhTIBU ) s. DAUDI ABASI ) A N D THE REPUBLIC o • · o • • • 0 • oo·eo·eo RE"SPONDENT (Appeal from the conviction and sentence of the High Court qf Tanzania at Arusha) ( ;Maganga, J. ) dated tj'le 12th day of Februa·r.y, · 1982 · JUDGMENT OF THE CPUBT KISANGA,. J.Ao: -The five appellants were convicted of murder and sentenced to death by the High Court sitting here in Arushao They are now appealing against that decision. The deceased Shabani Pwaha was, before his death, employed by Elias Kimaro, the first appellant. After the ·- deceased had left Elias' employment, a theft occurrE:,d at Elias' home in which some cattle were stoleno It turned out that one of these cattle was that of William Faraj i, the second appellant, who h;:id kept it with ·Elia so It was suspected that the deceased had stolen the cattle and so a number of villagers including the first four appellants set out to. search for himo The fifth appellant Daudi Abasi did not join the search at that stage. The search party had set out in a motor vehicle belonging· to the appellant 2 William, ,,ncJ. they succeeded to trace the deceased at a market place. They took him with them and drove back. Before reaching ✓ home they asked him about the cow belonging to William but he denied stealing ito Whereupon William requested the members of'the search party to disembark from his vehicle and leave him to take the deceased to the police. Most of them disembarked accordingly but there remained the first four appellants including William himself plus the deceased. They drove to William's house where they had an evening meal. The deceased was invited to the meal but he declined saying why should he eat while they were going to kill himo Meanwhile William announced that the deceased had intimated to show them where the stolen cow was, and so they took a sisal rope and put it onto the motor vehicle apparently for the purpose of tying the cow with if retrieved. But just before they set out the deceased escaped and ran awayo However, the first four appellants chased and re-arrested him. They beat him up, felled him to the ground and trampled on his head and chest after which they threw him onto the vehicle. At that stage the deceased was bleeding from the noseo It would I ' , appear that the f_ifth appellant, Daudi, did not take part in the assault even though he was present then. After the deceased was thus thrown onto the vehicle all the five appellants drove off saying that they were taking the deceased to the police and to show them whe·re the cow waso / They returned home after about half an hour without the deceased or the cowo On beiqg asked the fifth appellant :Daudi stated ·that they took the deceased to Moshi Police Station while I the appellant Haj i replied that they took him to Kilimanjaro International Airport Police Stationo All this happened on •ooo/3 3 ·, 3rd May, 197'6, and th.0 last time- the ~g-ased was seen alive was at about 8 poma that day when the appellants drove away with him after the assaulto The dead body of the deceased was found lying in a river, some three days later, with a sisal rope tied to one of the legso The deceased had sustained a big wound at the back of the head and according to the post-mortem report death was due to a fracture of the skull underlying the said woundo In their defences, all the appellants denied the charge, each setting up an alibio They said in effect that on the material day they and many other villagers went to the home of the first appellant in answer to an alarm raised because the first appellant's cattle had been stolen a They organized themselves and set out to ,search for the cattle. The second appeilan~ used his motor vehicle to ferry the searchers to different places.· Eventually they found the cattle with three Masai qirls. They recovered the cattle and drove·back home without any incident. In cohvicting the appellants, the learned trial judge took the view that the injury causing death was inflicted at some point after leaving the home of the second appellant. This is clearly born out by the followinq passag'e in his judgment:- I believe their evidence that it was the . 11a o a five -accused who drove off with the deceased at 8 Pomo in the accused William's vehicle and that they took a rope with themo I also believe their evidence that the five accused persons' went back to William's house a short while later without the deceased.". And further down in the same paragraph he said:- "The evidence of these witnesses as to how the deceased / was taken away by the five accused, which I have believed, proved beyond r~asonable doubt that it is the five accused who took the deceased with them on a mission which resulted to his death.". - ·4 JV'ir 0 Co Mo Ngalo, who argued the appeal before us, submitted in effect that the learned judge erred in arriving at that conclusion as the only conclus:i.on wh.i.c:h was open to him on the fact's before himo It was equally open to ·him, Mr. Ngalo submitted, to find that th~ fatal injury co~Ici h·ave been inflicted during the as·sauit on the deceased at the home of Williamo Mr. Mtingele appearing for the Republic conterided that such a possibility was untenable but· he could give no reason for holding that view .. There was ample evidence to show that the deceased was assauited fairly severely at the home of William .. He was beaten up, he was felled down, he was trampled on over the head and the Chest and he was thrown onto the motor vehicle at which pofnt he: was bleeding from the noseo We think that under the circumstances one cannot exclude the possibility that the deceased may ·have sustained the fracb..lred skull during the assau·1t. Thus vie uphold Mr. Ngalo' s submission that .the fatal injury could have been inflicted on-·the · deceased during the assaults on him at Will:i.am'shouse or-at a later stage after the appellants arid the deceased had driven away from there and that the learned trial judge ought to have held so. Having come to that view, certain consequences fci liow. The learned trial judge found that the fifth appellant Daudi did not take part in assaulting the deceased at the home of William; it is only the first four appellants~who did so. The fifth appellant's participation in the whole affair started only when, after the other appellants had ~ssaulted the deceased and thrown him onto the vehicle, he ( the f:i.J.=th appellant) joined the other appellants and drove off. We think that the learned judge was; on the evidence; enti tied to come to those findings •Oooo/5 5 of facto It therefore folluws that the fifth appel 1ant would be implicated only if the fatal injury was inflicted after driving away from William's house. If it was inflicted during the assault which took·place before such driving away, this appellant could not be implicated bpcause he did not take part in that assault. But on the evidence it is impossible to say for certain when exactly the fatal injury was inflicted, that is, whether it was inflicted before or after the fifth appellant joined the activities of the other appellants which led to the death. In those circumsta- nces we would agree with Mro Ngalo that the fifth appellant should be given the benefit of doubt. We therefore hold that the guilt of the fifth appellant Daudi Abasi was not established beyond reasonable doubt ·~nd we acquit him accordingly. In the result, his conviction for murder is quashed and the sentence of death set aside, and he is to be released from prison forthwith unless he is otherwise lawfully held in custody. Corning now·to the remaining· four appellants, there is sufficient evidence to show that the deceased died at their handso The only question is whether the killing amounted to murder or rnanslaughter.o According to the learned trial judge, there was no room for a verdict of manslaughter here. The first difficulty which is posed in this case is that on the evidence it is not known which appellant inflicted the fatal blow. In such circumstances, in order to implicate the appellants they must be proved t~ have had a common intention. If the fatal blow was inflicted during the assault at William's house, what common intention existed among the appellants then? The learned judge did not conceive of the possibility of the fatal blow being inflicted at William's house, and _therefore he did not addre,ss himself to that question at that stage·. Mr. Mtingele refe:-red to a threat by the appellants to the effect that they were • 0 0 0 /6 . I 6 going to kill himo This threat was said to have been made to the deceased after leaving the market, but before reE!ching vJill,iam' s horneo According to Mro Mtingeie,. this was evidence to prove malice on ~e part of the appellants. While this 1; • submission is attra~tive; it is not without problemso The appellants assaulted the deceased after the deceased had· tried to escape and run awayo Now the question is: Was the assault prompted by the deceased' s escape or was it in furtherance of the • appellant's alleged threat to kill the de.ceased? It is impossible to give a definite answer to this quest.ion. .Furthermore, if .the appellants really. meant to kill the deceased as they · are sa•id to have threatened, it seems that they would consider it prudent . to kill in the wilderness before reaching home because then c;hances of being noticed or detected would be minimalo They would consider. it most imp,rudent to kill him at Willi.am' s home where they were bound to be seen because this would amount to furnishing evidence agai~st themselveso These matters at least cast a reasonable doubt on whether the ·appellants assaulted the deceased in furtherance of their. alleged threat to kill the deceased. In the circumi:;tances therefore the charge of murder could not stick. On the other hand, there was _ample ev1dence showing that the appellants jointly assaulted the deceased and none of them at any stage dissociated himself from such assault. So that they must all be responsisle for the death regardless of who cictually inflicted• the fatal blow. Killing in those circumstances was clear],y unlawful but bec.-mse of the absence of clear evidenc;e of malice aforethought it amounted not to murder but to mansla~ghtero I If the I fatal injury was i'nflicted a_t some stage after leaving Will.iam' s home, it was equally necessary to establish common intentionarnong the appellants because there is no evidence of who caused the fatal blowo The learned trial judge merely st:cit,=d I . t 7 that the appellants certainly had common intention when they drove off with the deceased but he does not· show how that common intention was manifested or signified by the appellant$. There was evidence that w~en the appellants drove away from William's house they said that they were taking the deceased to show them where the cow Bwas and to the police. As stated ealirer, it is not known which appellant delivered the fatal injury. Furthermore, it is not known whether whoever inflicted the fatal blow did so in furtherance of the threat to kill or in the course of trying to force the deceased to show where the cow was. But even assuming that whoever inflicted the fatal blow di so with malice afore-thought can it reasonably be said that the rest of the appellants necessarily shared such malice aforethought when there is evidence that the ·appellants had said that they were taking the deceased to show them where the cow was, and to the pol'ice? We think noto Once again no conviction of murder could be had in those circumstanceso On the other hand, there can be no doubt that the appellants are responsible for the deceased's death because they took away the deceased while he was alive but thereafter the deceased was found dead, and the appe~lants have. offered no. explanation of what. they did with himo All the appellants, therefore, are jointly liable for the death regardless of who actually inflicted the fatal' blow because none of them dissociated himself from or denounced the person inflicting such blow. The killing was necessarily unlawful because there is nothing to suggest that it was accidental or justified 0 However, by reason of the absence of malice on the part of the appellants it amounted not to murder but manslaughtero Therefore, whether the fatal blow was inflicted before or after leaving William's home, all the four appellants are fully implicated but the circumstances of the killing would ·amount to 8 manslaughtero Accord:i.ngly, the appel lan,ts' conviction for murder is quashed and ;the conviction for manslaughter .is substituted. The sentence of death is also set aside and, considering that the appellants have been ~n custody for about seven (7) years with the serious charge or murd•.~r hanging over their he"ads, we substitute therefor a sentence of five (5) years' imprison- ment fo~ each appellanto JUSTICE OF APPEAL Lo Mo MAKAME JUSTICE OF APPEAL I certify SENIOR DEFUTY REGISTRAR ,' ,•.·. r