republic vs abdallah 2004 tzhc 11 23 june 2004

In tbis case, the accused Kilango Abdallab is cbarged with Murder cis 196 of tbe Penal Codeo 'rbe p-erson against District of Morogoro - 0 Tbe date on vlhicb be was killed is nn 1st January, 2000 before midnigllt 0 Tbe prosecution's case Vias led by l\lr 0 Jobn I"Iapinduzi, learned State Attorney The following is wbat happened immediately before and sometimes after the deceased1s death: On the material Tbere arose a fight betlrJeen him and PJJ1.. Ali joined in the fight and the accused cut him with a pocket knife on bis chin.. Both P"V"1 and Ali made alarm.. The deceased who had been with them from ~n{uyuni Pombe Club and who had sbontly"befbre taken 8 different 1tJayto his home heard their alarm and ,,"ent to see what vvas bappening to themo He found tbe accused fighting 1tJitb them.. He intervened in the fight and the accused stabbed him on bis neck with a pocket knife upon vlhich he shouted by saying that he has been stabbed by him.. HI11 and Ali got scared and run ai,Nay.. They left the deceased alone" A few hours later~ a certain lorry driver who was driving from Dar es Salaam to f10rogoro saw the deceased IS body lying dOvm along the road. at the area where tbe fight took placeo He continued on his wayc Jhen he reached the Police road barrier at Nungu~ bi~ informed P:J3 FiooEo7214- PC Saiman who vJ8S on duty abom:: it" CrCJesaid Police Constable went to the place lihere the c:;,:;c(::?8sed vras seen lying dead and saw a cut v.JOundon cus D2Ck.. I'rom there, he went to the Police Station at Mikese and reported to his fellow Policemen on what be had seeno Thereafter, he went back to the place of the incident with another Police Constabl~ called Ibrahim" Both of them removed the deceased's body and took it to the mortuary at Morogoro Regional Hospital .. The postmortem examination on tbe deceased' s'bOd~i was conducted by DvJ2 Alban MnyamboNdekeye vlho among other injuries savl a deep cut wound on the deceased is neck exposing carotid vessel. T1hedec eased's body was handed over for burial to PvJ5 Budi Sara \-vhosavl a similar wound on the deceased's neck. The events before the deceased's death show that there was a fight between PW1 and tile accused in v"hich he intervened and got stabbed by the accn,sed on his neck witb a pocket knife. Both the accuseel 2.nd FW1 gave different explanations on hOlythe figbt between them arose. Whereas the accused said that the figbt arose when PvJ1 and Ali started pulling his bicycle ODe after tbe other which made it impossible for him to move for'.tvard, PW1 said that the fight arose wben the accused SUddenly kicked him and punched him at his s~oulder without any reason. In my view, the explanatioD given by the accused on how the fight between him amI F\IJ1 ar'::lS 2 is more understandable i than the explanation given by PiN1. illlJE.: accused does not deny to have seen the deceased during the fight. In fact, when he Has under cross=examination t)(-~ revealed to have said in his statement to the Police that during the figbt, the deceased took off the air from the back tyre of his bicycle. -w'bat is being denied by him lS thl': fact that he stabbed tbe deceased irJi-cha knife on his- ned\: at any time during the fight. However, despite his denial of this fact, I find that he did so and tbat what hc, did ~'Jas quite unla1l1fulo I so find on the evidence of Flu which vlaS supported by tbe evidence of P,,13 Wll0 saVl the stat 'Iound on the deceased's accus~d, Ali and the deceased. Vlere 9.11 drunk,,:I:l1e fight took place when all of them were on tl1E:~ir "\fayhome from tbe pombe clubs on new yearis eve" All of the~ were acting under tbe influence of alcohol" None of them including comminuted fractures of humerus bone:3~ a fracture of femur bonesi a fracture of the skull at the temporal area and torn vessels at the fractured sites. In actual fact~ it is not keown as ta tou the deceased sustained those other injurieso The defence side wanted to raise doubt in the prosecutionis case by trying to say tbat in view of those injuries, it is not improbable tbat the deceased died in a motor accident and that the cause of bis death was not a stab wound However, measuring the si tea on \vhioh th€?~ deceased J sustained fractures~ it is improbable that accident. P,d3 PoCo Saimc)[l, a Traffic Police Officer who went to the place wher'2 the deceased' d body was found lying dead a £'e\'J bour,s after bis destb i did not trac(~ any signs of a motor accident having ta"!cenplac'::thf2re. So, there is nothing to show that the deceased died in a motor accident. The accused told lies when he said that he sm! tbe deceased being Imockc.'ddOIHIlby a motor vehicle during the night of the incident. I believe he did so in order to save his neck. The Medical Officer's opinion was that the deceased's death was due to haemorrhagic shock fraill multiple injuries. One of these injuries is a deep cut wound "which was seen on the deceased1s neck exposing carotid vessel. It hac vIel1 been established by th,: pros,':::utionthst this wouiJd vms inflicted on his neck by the 8~C:lsed 1<'1ho stabbed him with a pocl'Cetknife. ~~ ;~',~~ -,0.0 8bangwa