19910801 TZCA Dar es Salaam

II 'I j' IN THE COURT OF APP~ OF TANZANIA AT MBEYA . ,CRIMINAL APPEAL NO. 79 OF 1987 BE11WEEN ,1. BATISTA NYAKINYWA ~ 2• ELIASI MWASAIDA J• • • • • APPELLANTS AND THE REPUBLIC. •. • • • • • • • • RESPONDENT {Appeal from the conviction and --· sentence ~f the High Co~rt of Tanzania at Iringa) ·(Mwaikesu 1 J .) . dated- the 25th day of Mny, 1987 \\ i 1n Ct'iminsl Sessions caa, No. 27 of 1986 ~-- JUmMENT OP THE COURT MNZAVASi J.A.: The two appellants, .Batista s/o 1ryanginywa and Elias Mwasanga, were jointly oba.rged with and c onvict,ed of m~der contrary to section 196 _of the penal Code ~- the -~~h Court, (Mwaikasu, J.), sitting in I.ril'lga on the 26/5/87-end sentenoed._ to death; / Dissatisfied with the finding of the trial judge they have appealed to thi=; Court. The .charge against the appellantB wao that they, on / / ' 27/2/84 at Ibumila village within the district and region of Iringa murdered one, Joseph Mohamed ~ang:Lnywa. ,. •· •••c/2 / ... .2 Before this Court the appellants were ad'V008'ted for by Mr. F-:Iwakilasa, learned counsel. He argued that on the material day the deceased attempted to attack the first appellant, Batista NyakinyWa with a panga and that in retaliation the first appellant pushed the deceased· and fell him on the floor and ran away leaving him on the g.t'ound. It was s1,1bmitted that · apart f.rom the pushirJ8 ot the deceased the t'irst app11ll11nt did not attack th.e deceased leave alone killj.ng him. As for tile second appellant, Eli.at Mwaaanga, it was Mr. Hwakilasa 1 $ JJ;gunwnt that he dj.d not touoh the do9'ased on the fateful day. \ In the alternative it was e~bmittod that tbqra was evid<mce that th,e first appellant and the deceased had bacn drinking together bafora they went to tho house who~a people ware m~ing the doath of on0, Daima, where the deceased met his doath. It waa a.rgued that if this Court \ finds that tha first appallant did in fact attack the daccaead. and· caused his doath; ho did so 11cecusc of drunkenness. The learned dot'enee counsel submitted that the question of dt'unkcmness was not put to the assassors by the rial judgo and that baoause 0£ this omissi.On..--~ ... on the part of the lea:rned judge malice-aforothought·was not proved against th~ first appellant beyond reasonable ·,. doubt. The Cour:t was eskC!d to find tho appellants guilty, not of murder, but guilty of tha lasser offence of mnns:i..aughter. In.rebuttal Mr. Mbisc, l~a.rned State Attorney, supported the verdict of thG lower court. It was argued l;ila·l; there was amph evidcnca that the appc.:llanta .•.. /3 - 3 - gratuitously attacked the: deceased and caused his death. In support of his argument the learned statG attorney rGforrcd us to tho avidenoa of Sabina, P.W.4• The lea.mod counsel argued that the appellants had .fo1,nod a common intention to kill the docoasad who itwY. boliovod to bo a wizard. Thora was undJ.sputGd ovidenoo tQnt on ihG msteriol day .ttw deceased went to tbG house whert villagers woro mourning the death o£ ona. Dai.ma, aocompaniod by tho tiret eppollant. Aocordins to tho cvidcnco 0£ RosaJ:i,a Mdoto, P.W.2, as the \ dccoaaGd was onta~iJJ& tho ,:oom in- which tho dead body was \ \f lying the first appellant who wae tollowing behind him him suddcmly pU:ShGd the doo..;asod and tqllLdown.•. .Sabina .Mrisb.o., (P.H.4), testified that aha saw the first appellant belabouring tho deeeaeed with a 'bamboo club as ho was lying on tho ground. According ta bar tastimo11¥ the first acoueod dirgctod tho blows on dceGasad 1 s, head tht-oe titoos and that the bamboo club got broken. After this tba tt.rst accused is said to haVG resorted to kicking tho dGceased and that at this juncture th;; second appallant joinQt\ thG first appellant and kickod the doccasad as he was lying on the ground holpkss. Sabina, (P .w .4), also related to the. trial court that as th~ appellants wore attaoki.ng tha decoasod thoy announc~d that they were killing.the deceased because it was he who had killed Daima by bewitehing him. e!<· . ,.;:.,-. .' . o ...... /4 \ '· - 4 - . Mod.:stus Mh0mo, (P .W .1), also tusti.fi.,,<l bofore the High Court thot hG saw th0 appcllaLts boating thG dc,ci:,ased as he was lying on thu ground prostratt:. .rhc dGc.;;ascd su.::;. :umod to the: injurias susta inod in 1 the scmo house. Nud ical report oxhibit P1, givus th\J cause of cleat~ as h~od injury end cerebral haomorrhagG. First appellant's def~ncc that ho only pushGd the docGcscd once and that after tho docaasod had fallen down ho ran away was rojoctod by tho learned trial judge who acc~ptGd tho evidence of tho throe pros~oution witncsse~·- P.W.1, P.W.2 and P.W.4 as a true account of what happened. ~~uolly tho trial court disboliQvod sucond appellant's dofcncc that hG did not assault tho deceased. The question -whether or not thu appe:llants a.asaultod tho deceased on th.:: fateful dGy w::::;s on~ of foct. Tho as locrncd trial judge saw and hc,ard tho witnessusL ~hey tostifi.,d b of ore him. H;:: was thorcfore in a but tor position to assess thG crcd ibility of th.J witnesses than this Court which rnGraly ~cads tho transcript of th0 rocord. Apparently the thrac assessors who sat with the 'It.rial judgo wore also of thG view thot the prosecution witnesses told tho truth and rojoct~d appellants' dcfoncc. That being the position we havG no reason to differ with tho finding of·fcct by the lower court, based as it was, on th~ credibility of thi.1 witnasscs. Having acoopkd the finding o;C th;; trial court that th0 q>pcllants assaulted tho qcccnsod thG next question we havG to dGcidc is whuthcr ip were thi.1 assaults that caused dococscd 1 s daath. • •• /5 - 5 Tho prosecution witrn.1sscs t-.!stifid that thG app.:;llcmts assaulted th-:, dccc['scd on th<: hea<l. Initislly using a b8:'lboo club ond ofter thG bamboo club had broken rasorled to kicking him on the hood continuously till h~ was rGndcrJd unconscious. The dGcGascd diGd soon after on the spot. Tho. doctor, (P.W.5), who oxaminlld the body two days after dcoaasod 1 s death t0stifi0d that docoasadis huad was b.:!dly swollen and, on opaning th-J skull, ha found intra-cronial hocmorrhogo. As alroady mentioned above cousG of death was given as "h.::ad injury and ccrvbral hacmorrhagu". The evidence of P.W.1, P.W.2 and P.W.4 and that of tho doctor amply ahowod that the assaults on the d~caascd by the appollant were the cause of doooased •s death. As fol: the qu1Jstion of malice aforethought thQ appellants initially attacked thJ dcooasod with a bamboo club and than rcsottd t.o kioki.rlg him on th1:: heed. It oould be argued that tho oppollants did not USG o lGtlull woopon when essaulting the dc;ceo·sod ond thnt this nc:gGtivGd mclicc aforethought. But th0 Eastern Africa Court of App1.:ol had this to say in a som-2wh:::t s imilor cosc - R.~.• 'l'UB.JRE · .. Y.!:. OCID0-~ (1245) E.A.C.A.63g 11 (1) A parson using o stick ond causing such injuries must be deemed to hove the intention of causing gri0vous horm. (2) In arriving at a conclusion as to whcthGr malice aforethought hos been 0stablishcd the court must consid1.:r the w-:?apon used·, the tnonncr in which it is USGd ond tho part of thQ body injured. (3) Although an inference of malice will flow more readily from the use of a spear or o knife than from the use of a stick, it must not be assumGd thot the Court tak~s a lenient view where o stick is used-. 11 • i,,., ••• /6 - 6 In tho pr0sent cosG o7on if WG were to find that the weopon us0d by tha appallants wos not so lethal os to inf Gr u2licc af' orcrthought there was th:;; uvidonco that .os th,., o:.)pollonts wo.t"G beating tha dccoosad they said they wcrv l:illing him '\;ooouse he hc1d killed Do ima by means of witchcraft. This omply shows thot at th,;1 timu they woro ottockiJls' tho doooased the, a ppallcnta had formod s poeitivo int<mtion to kill. Appollonte• bolief that tho docoasod was a wizard and that ho had bewitohod and killed Dairna did not absolve thom trom blama. In tnu OOSG oJ J!.,v. AKOP~ af9)!:JIRUON and !11~11_~: ..(.1j4Z) 14 E.A ••q,A • .192 whoro 11 occuscd kill1:d thou- victim in tho honust boli~f that hY woe ruaponaibla by rvason .:, of witchcraft, £or thi1 desth of thi3 fothor of th~ first occuscd 11 it wcia held that: · ; 11 Thllre being no 1:uddon shock which might ~have doprivod tho aoouscd of thoir aolf- control th~ killing was murder, In oey t8SO, such a bcli.Jf, to constitute a defence, must b~ found on some peysioal ~nd not matapb;yaicol .:ict 11 • M to,: Mr, Mwakilosa •s crgumcmt thot th1.:.rc was ovidcmco thot tho first appellant snd thG dacooscd. lwd bocn drinking 11 ulonzi 11 bQforc tho killing and tr.at thi.? first appc:llant must havG·bcon so d~unk as to be unatic to form an intention to kill, · it is,· with rospaet to th0 lcc::rncd cofonco oounaal, our vi... w that __ de.fonoe on the cvidcnoo tendered in th~ High Co'U.t't tna' of druribmncas was not oveilc:bk to th" first clccuscd. Indocd it wos n.::vcr rais..id in the Htgh Court.· ThGrc was no raason why th~ learned judgo should have put thJ question of ... ,. ../7 .-- 7 - dl'ui1kcnnoss to the i!SS-,ssors as argued ·by Mr. Mwakilasc:i, lJo~ncd counsel. Orl tho evidence ~dduced in the lower court uc agree with Mr. Mbise, learned stote attotnay ~ thDt tho l0nrncc1 judge w"~ right in coming to th;i conclusion that A. M.A. OMAR ~Tl,(2:lil, qF .~\PPEA~ _A• S • L • lUM.Al>HANI JUSTICm OF l\PPJTIAL N. S. NHZ.AVl.S ~US1:I,q:~ ,OF AP.PJ!:AJ,