19830905 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM MWAKiSENDO, J.A., MAKd€, J.A.& KISANGA, J.A.) CRIMINAL APPEAL NO, 22 OF 1982 B E T W E E N 1 ELIAS KI1IARO WILLIAM FARAJI) APPELLANTS . . . . . . ADRIS iWAM ) HAJI HATIBU ) DAUDI ABASI ) A N D THE REPUBLIC. . ... . . , • RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) .Maganga, J. ) • dated the 12th day of February, 1982 JUDGMENT OF THE COURT • KISANGA, J.A.: The five appellants were convicted of murder and sentenced to death by the High Court sitting here in Arusha. They are now appealing against that decision0 The deceased Shabani Pwaha was, before his death, employed by Elias Kimaro, the first appellant. After the • deceased had left Elias' employment, a theft occurred at Elias' homein which some cattle were stolen. It turned out that one of these cattle was that of William Faraji, the second appellant, who had kept it with Elias. 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 him. 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, 9nd 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 it. Whereupon William requested the members of the search party to disembark from his vehicle and leae him to take the deceased to the police. Most of them diembarked. 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 him. 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 away. 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 nose. It would appear that the fifth 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 where the cow was. They returned home after about half an hour without the deceased or the cow. On being asked the fifth appellant :Daudi stated that they took the deceased to Moshi Police Station while the appellant Haji replied that they took him to Klimanjaro International Airport Police Station. All this happened on .... / 3 -3- 3rd Nay, 1976, and the last time the deceased was seen alive was at about 8 p.m. that day when the appellants drove away with him after the assault. 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 legs. 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 undrlying the sa.d wound. In their defences, all the appellants denied the charge, each setting up an alibi. 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. They organized themselves and set out to search for the cattle. The second appellant used his motor vehicle to ferry the searchers to different places. Eventually they found the cattle with three Masai girls. 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 following passage in his judgment:- "... I believe their evidence that it was the - five accused who drove off with the deceased at 8 p.m. in the accused William's vehicle and that they took a rope with them. 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 reasonable doubt that it is the five accused who took the deceased with them on a mission which resulted to his death.". ..../4 -4- Mr 0 C. M. Ngalo, who argued the appeal before u's, submitted in effect that the learned judge erred in arriving at that conclusion as the only conclusion which was open to him on the facts befoEe him0 It was equally opn to him, Mr 0 Ngalo submitted, to find that the fatal injury could have been inflicted during the assault on the deceased at the home of William. Mr 0 Mtingele appearIng for the Republic contended that such a possibility was uñtenablce but he could give no reason for holding that view 0 There was ample evidence to show that the deceased was assaulted fairly severely at the home of William0 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 point he was bleeding from the nose 0 We think that under the circumstances one cannot exclude the possibility that the deceased may have sustained the fractured skull during the assault. Thus we uphold Mr. Ngalo's subMission that the fatal injury could have been inflicted on the deceased during the assaults on him at William's house or at a later stage after the appellants and 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 follow. The learned trial judge found that the fifth appellant Daudi did not take part in assaulting the deceased at the home of iilliam; 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 assaulted the deceased and thrown him onto the vehicle, he (the fifth appellant) joined the other appellants and drove off. We think that the learned judge was, on the evidence, entitled to come to those findings . 0 0 0 0 /5 5- of fact. It theefore folluws that the fifth appellant would be implicated only if the fatal injury was inflicted after driving away from William's house0 If it was inflicted during the assault which took place before such driving away, this appellant could not be implIcated because 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 Mr. 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 and w 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. Coming now to the remaining four appellants, there is S sufficient evidence to show that the deceased died at their hands. The only question is whether the killing amounted to murder or manslaughter. According to the learned trial judge, there was no room for a verdict of manslaughter here. The fi'rst 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 ordei' to implicate the appellants they must be proved to 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 address himself to that question at that stage. Mr. Mtingele refe:red to a threat by the appellants to the effect that they were S - 6 - • going to kill him. This threat was said to have been made • to the deceased after leaving the market, but before reeching VUlliam's home. According to Mr. Mtingele, this was evidence to prove malice on the part of the appellants. While this submission is attractive, it is not without problems. The appellants assaulted the deceased after the deceased had tried to escape and run away. 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 deceased? It is impossible to give a definite answer to thiS question. Furthermore, if the appellants really meant to kill the deceased as they are said to have threatened, it seems that they would consider it prudent to kill in the wilderness before reaching home because then chances of being noticed or detected would be minimal. They would consider it most imprudent to kill him at William's home where they were bound to be seen because this would amount to furnishing evidence against themselves. 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 circumstances therefore the charge of mu±der could not stick. On the other hand, there was ample ejdence showing that the appellants jointly hssaulted the deceased and none of them at any stage dissociated himself from such assault. So that they must all be responsible for the death regardless of who actually inflicted the fatal blow. Killing in those circumstances was clearly unlawful but becuse of the absence of clear evidence - of malice aforethought it amounted not to murder but to manslaughter. If the fatal injJry was inflicted at some stage after leaving William's home, it was equally necessary to establish common itentioiong the appellants because there is no evidence • of who c-used. the fatal blow. The l.arned trial jude mere? stated _.7 that the appellants certainly had common intention when they I drove of f with the deceased but he does not show how that common intention was manifested or signified by the appellants. There was evidence that when the appellants drove away from William's house they said that they were taking the deceased to show them where the cow Awas 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 police? We think not. Once again no conviction of murder could be had in those circumstances. 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 appellants have offered no explanation of what they did with him. 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. However, by reason of the absence of malice on the part of the appellants it amounted not to murder but manslaughter. 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- I manslaughter. Mccordingly, the appellants' 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 In custody'for about seven (7) years with the serious charge or mVrder hanging over their heads, we substitute therefor a sentence, of five (5) years' imprison-, / ment foreach appellant. DATED at ARUSHA this 5th day of September, 1983. \\\ :- Y. M. M. MWAKANDO ,:; •'• / ' JUSTICE . OF APPEA L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL - I certify that this is a true copy of the original. (I L A. A. KYANDO SENIOR DEPUTY REGISTRAR