20020327 TZCA Mwanza2

CRIMD::::AL l\.]?":::- E!\L N"O a 28 OF 1999 LIBERT s/ c HUB'};RT a o o " o n ~ .. APP1ELLANT AND TFIB P.E:PUBLI 8.. ~ o 0 0 o o o ~ o RESPONDENT (Appeal from the conviction Qf the Sigh Court of Tanzania at Mwanza) dated the 30th day of Marc11, 1'999 in • J U-~---- D...-------~-- G M3 N T .................. The High r'.,ourt sitting at Mwa.nza, convicted the app.ellant, Libert sfo IIubert 1 of murdering Pastory s/4 Magonji, the deceased., contrary to section 196 of the Penal Codeo Je was sentenced to deatho At the trial, the appellant was represented by JVl..r. Matata, learned advocate.. On 4-/10/1993, preliminary hearing was conducted o '1'he memorandum of matters not in dispute comprised the following; First, the deceased, Pastory s/o Magonji died a violet death, second, the cause of death was a stab wound on the chest leading to massive haemothorax and. cardiac arrest anc'l third, the accused caused the death a.f the dee.e.asedo The trial throughout •~ ,,~,~~'.;t.~;~,:--,~•.~:-::Zf:•,,~ • I !'Yh !, . -·· ,I ·1' J~~:~·, ', ' 2 ~e.den .an the basis of tbGse undisputed fa.c.tsq As a resu 1 t, the post mortem examination report, (Exh. P1), was tendered witlwut objection by the defence& On this premise, the only issuJ2 of contention was wbeth12r the appellant in-t·ended 't<;l kill the deceased., In order to facilitate an easy appreciation of the sequence of events~ the background giving rise to the case may be st.atJ2.d briefly, The deceased lived with Lucy -<l/o Peter (PW1) as his. co.nc.ubine at Ilemela, within the City of Mws.nza. On the fateful day, 9/2/1992 1 and not on L!-/1O/1993 1 as the learned trial judg.e s-3.icJ in his judvnent, at about 3o00 porno i _PW1 went to the lake:shore to vmsh clotbes and take a bath, accom-panier.'1 by a ten yee.r .. old girl, Naurr.u., The appellant was left behind at home o After sometime 'j :P1.:VI saw the appellant along the lake shore 9 cbasing the deceasec) while holding a ~rhe cJeceased wns stabbed in the chest ano kni.fe in hi.s l1and o Sckou Toure was taken to the hospital, I, and T?)ugando. in Mwanza, where he died after 10 days. The ap 1::,;e tlant. was arrested and charged with the murd.e.r of the deceasedo At the trial, as already indicated~ an agreed memorandum of uridisputed facts was signed by both counsel for the appellant and tbe '.i.epublic. The appel la.nt also signed. The '•, ;>( prosecution case was ba.sed on the single eye witness PW'l '-iind · PW2 who came to the scene of incident a.ftc?l' the stabbing. It was alleged by the prosectuion that the appellant set upon the deceasecJ 2,t lake shore 7 gave chase to the deceased holding; a knife in his hands. Th<:; deceased was stabbed with the knife on the chest fro.m which wound he died on 19/2/1~92, • 0 ,/3 ,' " •.. ~ ' .. .....,._ .. _._ :r . i 3 -In defence, the aprellant 1 s version was that he had gone to the lakeshore to call PW'l back home to attend to relatives who had piid a visit to their house~ On arrival at the lake shore, he found the c~(:-:20.sed anc3 PW'l in suspicious circumstances, both naked~ The deceased sprang forth holding a knife with which he attacked the appellant. Unde:i;:- grave ~revocation, the appellant snatched the knife from the deceased, and in self~defence, stabbed the dGceased on the chesto The learned judge, after careful consideration of the appellant's defence, rejected it holding that the appellant killed the deceased with malice aforethought. Aggrieved by the decision, this appeal bas been preferred. Mro Magongo, learned counsel, appeared for the respondent, while Mro Felesbi, .learned ;3tate Attorney, represented the respondent Republico From five grounds o.f appeal filed, Mro Magongo opted to argue grounds 4, 2, 3 and 4- togethero The gravamen of these g:.r:'ounds was tbat the mandatory provision · of section 192 (3) of the (!rj_;,:,in.~l Procedure Act, '1985, was not complied with during the preliminary hearingo As a result~ he contended, the cause of death had not been proved~ Furthermore, he urged that the trial judge wrongly held that the parties had conceded that the appellant inflicted the fatal wound that led to the death of the deceased. He al~c charged that because of nonr.•con~pliance with the law, the sketch plan :8~xb. P3 was also wrongl;y admi ttc<l. 0 • • /4- t r h zt 'I•' In elaboration, Mro Magongo submitted that it was not shown in the record that the contents of the memorandum were expiained to the appellant in a language tbat l1e understood before he signed., Without the appellant's under.standing of what was contained in the memorandum and indicating which of. the facts were undisputed, it was not enough compliance with section 192 (3), Mro Magongo stressedo To underscore this point, he drew the attention of the court to the provisions of rules 4 and 6 of the Accelerated Trial and Disposal of cases Rules, 1988~ Rule 4 provides; iThe person prosecuting stial l in every 1 trial under those rules, prepare, as clearly as possihle, the facts of the case which shall be read to the accused and explaim~d in a language he can understando ir Rule 6 also provides; 11 Wben the facts of the ca.se are read and explained to the accused, tlJe court shall ask him to state which of those facts he admits and the trial magistrate or judge shall 1 record the same · " He said that,the Reference was also made to the decision of (1992) TaLoRo 121 where the 0ourt reitarated that the provisions of this rule are mandatory. Bad the learned judge o o/5 o -·1 r s- ~ 5 properly addressed himself to these provisions of the law, Mro Magongo went on, the post .rriortem re1,;ort (Exh., P1) and the sketch plan (:Cxh. P3) vmuld not have been admitted in evidence~ Without this evidence, Mro Magongo concluded, the _appellant would have been convict,2d of the? lesser offence of assault causing bodily harm and not murder ... Mro Feleshi, learned State ~ttorney, strongly resisted the appeal. He took tbe viC?w that the appellant"s signature in the memorandum was an indication that he understood its content... He conceded however 1 that the record does not show that the content of tbe memorandum were read and explained to the appellant before signingo On the other hand 9 Mro Feleshi maintained that even if the ~ost mortem report (Exh .. P1) was excluded, still there was sufficient evidence to show tl:1at the appe 11.ant was linked with the death of the deceased., There is no gain-sa.-7:i_n~ th2.t the provisions of section 192 (3) of the Criminal Procedure Act, 1985, read together with rules 4 and 6 of the Accelerated Trial and Disposal of cases Rules, 1988t are m9.ncla.tory. While it 1s common knowledge tl1at the object behind tl1ese provj_sions wc..s to expcdi tG criminal proceedings 1 the rights of tbe o.ccust-?d at the tr\al were .nonetheless to be safeguarded., We resriectifully agree with Mro Magongo tb~t because the provisions of this section were not fully complied with, the evidence on post mortem examination report which was 8.dmitted on the basis of the memorandum, c:?-11not be deemed to have b.-~en duly proved in terms .. 0 ./6 ( f . .., 6 of sub-section 4 of section 1920 In the case of Holela ·(supta) 9 the court inter alia stated: :;J3ection 192 ( 3) of tbe Criminal ·nroc .r:: e dure ·"· , ,_. ~ 1r.Q1:r ;\c,_._ ·:)CD~ 1·-- ---~ ,:,t:: ,::, a :i! ,;'l,r•''"' mandatory duty ~1at the contents of tlJe memorandum must be read and eArplained to the accused. Since the requirements under section 192 (3) were not complied with, the provisions of section 192 (4) of the Criminal Procedure Act cannot apply 11 o Sub~-rule (4) provides to ttic-i effect that facts agreed· in the ·memorandum shall be deemed to have been duly proved,. In this ·case, Mro Felesbi strenuously submitted that the appellant understood what was contained in the memorandum because he signed ito With respect 1 we agree that, generally, the signing of a document si~nifies that one signing it understands the cont,?nt of the document n Eowever, the is sue in this case is the requirement of law not being co~plied witho As it is· not shcn•m on record that the contents of tbe memorandum were read over and explained to the appellant, it may well be that it was not done. To resblve the doubt, we discount the evidence pertaining to tbe post mortem examination report "(Exh.P1) and the sketch plan (Exl10 P3)o After the cxclu:-:io.n of the -poGt mortem examination report 9 Mr. Feleshi, maintained that still th8rc was evidence linking the appelJ.o.nt with the dccith of the deceased. \.:Je think . " .. /7 '. 7 there is merit in this submissiono This is borne out from the record,, On 4/10/1993 when the cbarge was first r2ad over to the appellant 9 he pleaded ;rit is true, but it was because I found him makinsi: love to .my wife 11 .. Again on the same day, after preliminary hearing, the advocate for the ·appellant conceded that the appellant caused the death of the deceased, the? only issue in dispute was whether the killing amounted to murder. On 21.~/3/199L~? wiJen tbe information was read over, the appellant pleaded; ;ii t is not true.. It was by bad luck', and on 23/3/1999, when plea was taken, the appellant plC?aded; "I caused the death accidentally" .. The trial proceeded against such background. In bis defence· tbe appellant acJmi tted causing the death o.f the deceased under provocation 9.nd in self-defence o li1 urther- more, there is the statement of the decease:d to Gabriel Kasmir (J?W.,3) wbo took tbe deceased to the hospital .. The ~tatement is admissible under section 34 of the Evidence Act, 1967. According to :2w3 the deceased said that w\1en the accused reacbed ne2.r the '!':'·~.c:'.'.:-;cc1? be:· r'rew out bis knife and stabbed the dc~ceasea. Ji'rom t!"\is evidence, we are satisfied, and as Mro Feleshi subr!'.litted, tlle exclusion of tbe post mortem examination report notwithstanding, tbe appellant caused the death of the deceased. Irt ground five, the crucial issue is whether the appellant caused the death of the deceased intentionally. Mr. Magoma vigorously e!..ttackeo. tbc les.rned judge's rejection of the appel V:mt' s account on bow the d eatb occurred. He said of the two versions of tl1e incident, n~mely, the prosecution 8 side as testified by PW1" and the appellant's version, the account of the incident by thG appellant was more preferable., Since there was a fight in which the appellant sustained injuries in his hands 7 th0 judftG should have accepted this as a factor in determining vrb.ether the killing was intentional, Mro·Magoma urged .. He further stated that it is a settled principle of law that a charge of murder in which death • rest..11 ts fr·om a fight is normally reduced to manslaughter. Mr .. Fel~shi submitted th.3.t the le&rned judge was · entitled to atcept the version of the prosecution in preference to that of the appellant.. In his view. self-defence was not available to the appellant ... He said., it is inconeeivable that the appellant had to throw the knife nt the deceased whom he had already caught up with .. As already indicated, the only eye witness for the prosecution is PW1o She was the one who could tell what exactly took place prior to the stabbing of the deceased. On the other hand, there was the Yersion given by the appellanto In order to reject the version of the n.ppellant, the witness Lucy d/o Peter (PW1) has to be 'believed fully in her evidence .. We have had .occasion to closely examine her evidence on record. In her evidence 9 sbe stat\?d that sbe saw the appellant with a knife in 1l1lS • hanj chasing the deceased. At the time, she further testified, the deceased was completely nakedo It is also on record that after the deceased was stabbed, he was taken to the roacJside from where, Gabriel Kasmir (PW2), took the deceased to the hospital 0 If according to PW1, the decear::od was completely naked when he was stabbed, ••• /9 ' { 9 it is not clear when the deceo.sed dressed upo PW2, a neighbour and fric.:nd of the deceased, does not show in his evid.ence that the deceased war_; found naked.. He had spent considerable time with t>_.-_. d0cec.'.'.:2d from the lake shore to Sekou Toure L and Bugando hospitals.. 1.,Je can find no reason whatsoever why PH3 should not say he found the deceased naked if inf3.ct 1 tho.t was so ns te,Jtifii:~d by :l?W1 o Such being the position, it seems to us that possibly PW1 may not have told the whole truth about what she saw. It follows that as PW1 cannot be believed fully, there is no rational basis upon which·to reject the appellant's version~ Likewise, the appellant on tbe other hanc1 7 may as vrnll have not told the entire truth in his. version._ All the same, as an accused person, he bas no burden to disprove the case against him., The appellant's versicn was th3t he found the deceased with :P.W1 in suspicious circumstances nt the lakeshore, a fight ensued, in the course of wl1ich tll.e rleccased was stabbed, he also sustained injuries.. Thj_s may well be so. In the circumstances, as ti12 possibility o:f a fight cannot be discounted, we s.gree with Mr o Magomet tl,'3.t the appellant is to be given the benefit of doubto Accord~_ngly ~ the appeal is allowed, tbe conviction for murder contrary to section 196 of the Pennl Code i~,, •,: .. quashed and tbe sentence of cleath is set aside.. In substi tu-•~ tion therefore, the appellant is found guilty of manslaughter contrary to section '195 of the Penal Code .. He is sentenced to imprisonment for a term of seven (7) years from the date of conviction. - 10 DA.TED at MWANZl\. this 27th day of March, 2002. LoMo J\1!1.KAME JU;:3TISl~ OF__....A.PPJ:BAL ..-:-'"'""'"'•------ ·-·...,..···'""- ~,,.__. _______,..._ Do Zo LUBtNA J ,,A.. rvrnoso JUF~TICS!J~ ~ OF t\P~PEI~J~ ..._,..,.._._,_.,_..,c.....__._~~----=- I certify that this is n true copy of the origina4 /. --~-·1 ~ ··-· -·;· t' i ._.,/ ·............ i__,,.·· '· - .,-~· - , ( FcLeKo WAMBALJ }; - DEPUTY R~GI:3TRAR ---------~