20040610 TZCA Mbeya 1

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA (CORAM: MROSO, J.A., NSEKELA, J.A., And MSOFFE, J.A.) CRIMINAL APPEAL NO.97 OF 1999 BETWEEN INNOCENT PHILIPO KOMBA ................................ APPELLANT AND THE REPUBLIC .................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Songea) (Kalegeya,J.) dated 29th day of June, 1999 In Criminal Sessions Case No. 44 of 1998 JUDGMENT .MROSO,3.A.: The High Court, Kalegeya, J., at Songea, convicted of murder contrary to section 196 of the Penal Code, one Innocent Philipo Komba, and sentenced him to suffer death by hanging. Komba was aggrieved by the conviction and sentence and, through his advocate, Mr. Mkwata, has appealed to this Court, relying on a single ground of appeal. In that ground of appeal he contends that the trial judge erred in law in not availing the appellant the defence of mistake of fact or of self defence. .,. I 406 2 The appellant does not dispute the fact that he caused the death of the deceased. The question which the trial court had to resolve was whether the killing was murder or. manslaughter. A summary of the facts of the case which was before the trial court may be useful. The deceased; a member of the people's militia, accompanied a Primary Court watchman who had a warrant from court for the arrest of the appellant The court watchman, Herman Mhagama (PW1), wanted to execute the warrant of arrest early in the morning So, he and the deceased set out at about 5 00 hours in the morning On the way to the home of the appellant the deceased and PW1 were joined by two other people who included Clemence Komba, the ten- cell leader of the appellant Apparently, the practice in the area was • that suspected offenders. could only be arrested during daylight. On that day, 8th January, 1996, the ten-cell leader felt that although it was then around 6:00 hours, it was top early to effect an arrest as it was still dark and misty. He expressed that reservation but PW1 and the deceased reassured him that it was not too early. "I 3 When the arrest party arrived at the home of the appellant the door of the house was closed and the ten-cell leader, PW2, called out the appellant and introduced himself to be the ten-cell leader. In fact, the ten-cell leader lived only 100 paces away from the appellant and was his clan relative. The wife of the appellant responded to the ten- cell leader by explaining that the appellant, her husband, was not in In that case, the ten-cell leader explained to the arrest party that they would have to come again at another time. The deceased did not believe that the appellant was out of the house. So, he went to the door of the appellant's house and knocked it with a "gongo", according to PW2, the ten-cell leader. Again, let us use the ten-cell leader's own words - "When he (the deceased) knocked the door it opened and then as he was trying to enter I saw him swaying back and he fell down. I then heard a voice saying I will kill you all. I could not tell whose voice it was and we run away. The militiaman was struck with something like an axe and he fell down." 4 It was in those circumstances that the deceased met his death because he never recovered from the blow which was inflicted on him by, undoubtedly, the appellant. The appellant in his defence said he did not hear the ten-cell leader call and identify himself. He also did not hear his wife reply to the ten-cell leader's call. He claimed he had been asleep and when he woke up he saw someone remove the grass thatching on the roof of his house and other people outside were threatening to set the house on fire. He believed the people were bandits and took the only weapon in the house, a "rungu", and as one of those people knocked the door open and wanted to enter inside, he hit that person with the "rungu", and then rushed out to escape the bandits. He never made a threat to kill everyone and he had no axe in his house There is no doubt the appellant used great force in the manner he wielded the weapon in his hand, whether it was an axe or a "rungu". The postmortem examination report on the deceased showed that he had suffered a cut wound on the parietal scalp and a fracture of the parietal bone resulting in a leakage of the brain matter from the wound. The doctor who performed the postmortem A. examination did not indicate in his report (Exhibit P1) if, in his opinion, the cut wound was consistent with the use of a sharp object (like an axe) or whether a "rungu" could have caused such a wound. The trial court, relying on the evidence of PW1 who claimed to have clearly seen the weapon to be an axe and that it was blood- stained, believed that the appellant had used an axe, not a "rungu" We think.that the evidence.is not clear enough toj.ustify a categorical finding that the appellant used an axe rather than a "rungu". PW2 was not quite sure it was an axe, the postmortem report does not provide a clue either way The position, therefore, is that it may well be true, as claimed by the appellant, that he had used a "rungu" - with which to hit the deceased,. Did the appellant know that the people who were outside his. house included his own ten-cell leader and that they had come only to effect an arrest?. The trial court believed the appellant was well aware why the people, including the deceased, were at his home and, therefore, not only was he intent on resisting lawful arrest, he deliberately as.saulted the deceased knowing or having reason to 1. rel believe that an assault with an axe would cause death or grievous harm. We think that the evidence on record does not lead to an irresistible conclusion that the appellant had committed murder. The appellant's claim that he had not heard the ten-cell leader introduce himself because he was asleep cannot be discounted out of hand. The only person who could have-given the court the assurance that the appellant was then awake would have been his wife. But neither the prosecution nor the defence called the wife to testify at the trial There is a possibility, therefore, that the appellant was truthful when he claimed that he was asleep when the ten-cell leader called him from outside and introduced himself. The trial court doubted, and we share that doubt, that anyone had removed the grass thatching on his house. But if there was the possibility the appellant did not know who the people outside his house were, the chance that he believed that the deceased was a bandit when he knocked on the door with a "gongo" and was attempting to enter the house forcibly, cannot be brushed aside. In such circumstances it would be a natural reaction by the appellant to 7 ward off the intrusion, which would amount to self-defence. The question then would be if the amount of force used by the appellant was reasonable in the circumstances. There is no evidence that the deceased in any way attacked the appellant. There was merely the fear of an attack from the perceived bandits. We think, therefore, that the appellant did not have justifi.catiorrto -use the kind of force, even by use of a "rungu", which smashed the head of the deceased to the extent that brain tissue leaked out. We think the trial court erred in finding that the offence of murder had been proved beyond a reasonable doubt. The facts of the case are consistent with the appellant acting in self-defence, although he used excessive force. We, therefore, quash the conviction for murder contrary to section 196 of the Penal. Code, set aside the sentence of death and substitute thereof a conviction for manslaughter contrary to section 195 of the Penal Code. We take into account that the appellant spent three and a half years in remand custody before he was convicted by the trial court and that between the date of conviction, 29th June, 1999, and now, five years 1 . 1 have elapsed. So,the appellant has by now spent over eight years in custody. We consider that a sentence of five years imprisonment from now will meet the justice of the case We so order. DATED at DARES SALAAM this 10th day of June,2004. J.A. MROSO JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL . , y J.H. MSOFFE JUSTICE OF APPEAL I certify that this is .a true copy of the original. • (S.AMURA) SENIOR DEPUTY REGISTRAR