19861123 TZHC Tabora

12 /: nr THE HIGH CCL T OF Ti'.J-r.: ~.NJ.A .. f._T_ _ A f:3CRA T__ ORIGINAL JURISDICTION (Tabora hegis~ry) CRirn:HAL SESSIONS CASX NO. l CF 1984 THE REPUBLIC versus JUDCiMEN T _· ~· B. I~SHO~iE' PR?-'.:( E,. J. ) : TRCMAS NTP.NDI stands cha ·•1;ed with kurdet'.c·~n:t;J"-ai:v · .t~ section 196 of th~ Penal CoiJa It has been all~ged by t i 1 prosecution that on -i:he .l.1--tt day of October! 1982 at about LOO p.m., th~ accuso6 -wa@I ,' , Seen fig~-:.ting with the d~ccase 5, on.e Bec!a Katoto. P 1W1 1l_l: ! ' tried to seperate them.. { . . ega:J,it aut J.. r. :c:.:· ac·cused followed . I ·Katf"to and sta_rted. the t·ight r,,f-n:1.sh. Accused kn4'eked · _deceased down. As>dceceascd ~i~ trying to leave accueel- sbouted 11 Mwizi, Mwizi i: o Then mcwbcrs .of the public, thinking the deceased was a tl.:.i..ef, es 11 Mwizi" is ·tl;lt!! Ki-swahili word for Ht.hie~" joj :ncd in _to bring mr,b juaii.f~•- .; Deceased W§.S beaten up one'! l\l'01mcer. f·ateJ.ly. Deceaaed c1i,ed e. day a:f·tcar thf' bf':?.ting of 11 per:foration o:f t~e tte¥ ·. and peri_toni tis 11 , e.c cordinr, t<J the ;p:>st-1'1"16:tern exawinatitn· Teport~ Accased was then arrestnd an<" charged. In hie ,,worn statement here yesterday occ~aed denies to have eve~ ~ouched the deceased. He sayA he met de~ea~ed ~n the way and without any provoca·t.ion d icease.d hit the accused oa the eye with fists and the ey .1 sot swollen. ,Accused •rie# with pains. People C{:l.t'1e to h,lp }:lirn .. Deceased r~n 8way, The peopie who cerne chawed deceased and beat hi~ up, Then· they lied that i t "ms accusec who had beaten· !fP the dtH·ea.se.c. There are issues of f?,.(·.t and c-issues of. 1aw invo).vet'. ·1n this case,, The issues of· feet are whether acC\lS@d f~ught with d.ec"'ased and shouted 11 !mtlji .mwizitl . t~. briag the ~t>b to ~·aa.t the deceased or. he was - just• ettack.ed by cefe'a•ed .. .... . . .. .......... .. ..... ·-·- l) ..... _ ✓ and never hit back. The is sue of law is whether if'• tlH. · prosecution evidence is believed the accused's act• ~mount to murder or mnnslaufhte~~ The learned counsel for the accused raised the . ~es t ion • ~f 1 1.ca t·ion b u.t as r1·ghtly pointed ou~. o:t.~ J."d e:ri. t"f' • . .· the learned State A~tornej identity is no~ ~n issue tn •h'• ~ase as accused himself admits to have been at the seefte and beaten by the deceasedo Learned counicl for the ·accused submits that the prosecution casx has contradict~_ons between the testimonies et' P.W.111 a_nd P.W"lV nnd so sh,(Jld not be believed. But their contradiction is on wheth, e:~ accused w:a.~_pr_~sent at . ·---., the scene.. This fo.ct is not mai c-irial as accused him.s...eir---.: 4oes not deny to have_been at ti 0 scene. P.W.lV who admits ••·have been a friend of the acr1 sad and with whom they had bQon Charb·ed with the nrurdcr of :, 1cceased at first told _this fourt .J.ies · in his efforts to s.q J,. ;:-ccused., He lied· when he ~aid accused was no£ at the sec .l· while ~ccused hi•~elf adwit~ t~ hav~ been at the scene" Alt:~ugh PoW.lV was ~alled by '.the prosecution one he was not h:iclared on. request by the prosecution to be a hostile wit wss, the court ought not· flose its eyes at his naked lien and find against the prosectione On the other hand I find no reason to disbelieve ·P.W.111. Like one o-f thC' gcn_tl :.n;cn as&c3sors I do not believe accused would just be hit on the face by the deceased and sit down and cry _in. despeir without hittinJ_ ba•k or culling for help. So I find that .there was a fight "be~weon accused and deceased which prompted accused to ·call '£or help by shouting nmwizi mwi2',i 11 ( thief thief). thereby inviting mob justice which finished up dece3sed~ Then comes the issue whether this amounts to· _ftlurder or manslaughter~ The learned _State . Attorney . argued-that . by _shouting 11 mw:izi rriwizi II accused j_ntended to call. the mob to I kill. deceased and so he hnd the malice aforethought. f.n Bornbo Tomala V. Republic. (1·~}0~ T."L .. R., 254 _ t.he Court of ·Appeal hold that where death is caused bi assault by tw8 assailants and tht' court io unafule "to say;_.w:\'lo st+µ_ck :-the .f~ta.l QJ.nw the accused is guilty of-Manslaughter. ·••umau M:pangani 1967 a.c.o .. n • .390 -- And in R.V. • where accus.ed and manyi ______ .. ,_, ··•-.-.~ 0th.ors respond€d. to an alarm and found deceased hall assault~d _ a, woman, the crowd followed deceased to another hotuse w)ler•e accused ~nd others beat him, anJ it was not clear w~• inflio~ed •11\f e eeath . the fatal injury1 it wns held p tr Cross t. J ~ that I er grevious bodily harm was a _,robable c:ons·equence •t: ike attack c::nd the att2dur.3 &'~tcd ·,:ith n. common purpose •ceused wns hold liable for the denth and eonvieted ti ·. mamtlaughter though he did not l:.'imself inflict· the:·1'a'ial ,"blow., And in ReV• John Wi.manna. (1968) H.CoD,. n. 4, , . W4f hcild per Mustat~, Jo as he then~~as, that when death &ffUr~ as a result of a fight unless th3ro are very excepti•nal eircur.:ista.nces persons who cause ,.-Jeath are guilty of manslaughter and not murde~a And in this cnse I would f':.rid the nccused guilty ·et • I ~nnsle.ughter but for one thing., : The cause of the fight i between deceased and accused is ,:!Ot known. It could be I" anthing. Although the nc-r..1· rd -- i.scd neither the defen,e 0 6f provocation ~or that of self :jefence the b~iden i i on the prosecution ~o prove nalico/,forethought and negative I the defence of' provocation or sjlf defence. Accuserl muft therefore get the benef'it of.' do rbtn He:· could be af\tiJ\i · ; in solf;..dcfencc and as there is;no evidence on how the f:\.ght started one cannot say whether 1:,e used excessive for,.~ ev•n by ~sking for aid menilie~s ol the public when he fou~- his appponent stronger than hirt0lf- PRINCIPAL RESIDENT MAGlSTRA~, (EXTENDEC JURISDICTION) 25 +.·~.., Novemb er·' 1986 • . , !1 · ·r ., i': / (~ i: · =: c. s~ j. i ... ~- . •' ..... '•,' I- ·:;\: .. ,, . <.: ·. '\, 1:,: .:;: i/ tJ .1 •• _::i iJ ..P L x. :; ...