19841001 TZHC Dar es Salaam

.. . IN THE HIGII COUHT O:P T/J JZANIA 1 -·--...;....,.- AT Dii.R :CS GAJ.,LAM. OnIGI111.L JURIS.DICTION (Tu.r es Salaam. Re{sistry) CRUJINAL SESSIONS / CASE NO. 1 OF 1983 1 •. --Affil:ID IITl\JIYO 2• MOHI\JV!ED NCUSU 3• YJJ.IBOHA AJ:f.DBEW CHlffiGE: - Murder Contrary to Section 196 of the Penal Code. -----·-- JUDGMENT MA.PIG.P.NO 2 J. The three accused persons AJi":ID KINIYO, i',10Hilll'IED NGUSU and KJJvH30NA AlJDREW are on a charge of Murder contrary to Section 196. of the Penal ~:t;i;ff :i: Code. It is alleged that on the 28th day of April, 1982 at Melela in the Norogoro District they murdei~ed one Ifol3IBU ffRISHO a peasant. Each of th6m has pleaded not guilty to that charge. The accused persons a.nd the snid Habibu Mrisho were residents of Helela at the material time. On 28th April, 1982 at about 9 p.m. Habibu was. brought to the homestead of P:7,2 Alphonce Almasi by the three accused and one i\iigogo tri be&111an, bound vr.i.th a rope. Habibu was c;..rrying a slain ram. He had received severe blows on the head and i.a.ood was running down his f2ce from tho wounds. He was still ' conscious and coherent but his strength was ebbing. The accused disclosed to Alphonce tl:m t Ha bi bu had stolen and slaughtered the ram , and he did not deny that accusation. Thence he was taken to the Of:::-ice of the ward secretary and he died either on the way or soon after reaching that ofi·ice. The doctor who performed the autopsy on the dead body observed a cut wound on the scalp and another cut wound ' on the occipatal region. i-nd he deposed to his opinion that the cause of death was neurogenic shock. 1Ql the foregoing is either common t:;round or not in dispute and onc is bound to find it true, as I hereby do. Further, by a~l accounts? iw;:luding those o~ the accused, the people responsible for the denth . of Ifubi~u are the accused. What actually led to the fatal assBult? We have only the accused accounts to go by and, to be ,sure, th~y are parallel with one another. \iimt 's more, the accused have b:::•.·_n consistent throughout. This is the story, in sub.stance: The first accused Abe:i,.d ke.eps livestock and earlier on tl'.la t day the herd and floc}::s v-,c1x1 taken by his daughter •.•..• /2. - 2 - to pasture. When they were brought back f'rom the pasturage one ram was missing. He set out to search for it and in the course of the search he found it in the bush already slaughtered. He returned to his house to report his discovery and he went back to the carcass in the company of the other accused and the ~1gogo tribesman where they set up an ambush. In due course when darlme ss had fallen, the deceased appeared and started to carry the carcass. The foursome sprang up and coi::tronted the deceased. They ordered him to drop down the panga he wns melding and to surrender. f~ did not yteld. Not only tbat, he turned violent 9 charged into their midst and swung his panga to hack at them. They warded off his blows with their sticlrn and rained blows upon him with the sticks, drawing blood. he was overwhelmed an1 he surrendered his weapon. The foursome tied his arms with a rope and had him carry the carcass to the office of the ward secretary. As I have observed 9 that is the only account which has been adduced before this court and I share the opinion of the assessors that there is no good reason for disbelieving it. So what falls for consideration and decision is whether the ld.lling was unlawful and if so whether it amounted to murder. Mr. Tari.mo who advocated foil'.' all the accused has submitted tbat the killing V".raS justifiable, 1ie said th:'1t the fatal injuries were inflicted when the accused. were executing a lawful duty of procuring the arrest of a thief who had tried to avoid the arrest by offering .i, stiff and dangerous resistance. e termed the blows that the deceased received as ne~essary fo1·ce in tbat regardG lmd wha:t 1 s in doubt, he argued, is whether the blows were calculated to cause death or grievous harm. His arguments have found favour with the assessors. With respect I think there is considerable force in those arguments. As demonstrated, there were grounds for the accused persons to suspect that deceased had stolen_nnd slaughtered the ram, In our law, as pointed out by the learned defence counsel, there is hardly any distinc_tion between the powers of a police officer and of a private person to arrest without warrant on suspicion of a felony; , anc1 so long as there are reasonable grounds for suspicion, a private person is entitled to arrest and in doing so to use such force as is reason....r-le in the circmnsto.nces or is necessary for the apprehension of the suspect, See section 19 of the Penal Code and sections 19 and 32 of the Criminal Procedure Code, I am .also of the view that the force uoed was reasonable for the apprehension of the deceased in the circumstances. As we have seen,.t ..... .I, . . · t• c· - 3 - . . . the deceased put up resistance a11d charged to strike the accused with a lethal weapon. One might as well ask: can you realistically expect a person to confront a raging pangaman with lddgloves? No, I think it would have been foolho.rdy on the parts of the accused if they had done so. In the fim.l event ;r find that the deceased courted his death and that the accused were justified to inflict the blows on him. I find each of the accused not guilty m1d acclui t him. The accused are to be set free forthwith unless they are otherwise lawfuJ!yheld. Tulivered at Morogoro before the accused and the advocate this 1st day of October 7 1984. MOROGORO lst··october 2 1984.