republic vs sijali moshi 2014 tzhc 2345 3 november 2014

IN THE HIGH COURT OF TANZANIA (TABORA DISTRICT REGISTRY) AT KIGOMA ‘ CRIMINAL JURISDICITON CRIMINAL SESSIONS CASE NO. 149 OF 2012 THE REPUBLIC VERSUS SIJALI MOSHI 31st October& 3rd November, 2014 JUDGMENT MWAMBEGELE, 3.: The accused person Sijali Moshi is charged with murder c/s 196 of the Penal Code, Cap. 16 of the Revised Edition, 2002. It is alleged in the particulars of offence that Sijali Moshi, on or about the 26.02.2011 at Simbo area within the Municipality and Region of Kigoma did murder one Hassan Mpenda. He pleaded not guilty to the information and therefore a full trial ensued. The prosecution fielded four witnesses in support of the case and the defence, except for the accused person himself, fielded none. The prosecution has sufficiently proved that Hassan Mpenda is indeed dead. This has been proved by Tega Hassan Mpenda PW2 who testified that he took the deceased home after the alleged fight, massaged his chest with hot water as first aid, took the deceased to the hospital, was with him on discharge, attended to him at home after the discharge until his death on 12.03.2011. PW2 is the one who identified the body to Dr. Muganyizi Emmanuel Paul PW4 who conducted an autopsy on the body of the deceased. The fact of the deceased's death has also been proved by PF 18641 Asst. Insp. Ramadhan Hamis PW3, a police officer who had the conduct of this case and was present when PW4 examined the body of the deceased. PW4 tendered in evidence the relevant Postmortem Report (PMR) which was admitted and market Exh. PI. And to cap it all, luckily, the deceased's death is among undisputed matters which were agreed upon pretrial and a memorandum thereof signed by the parties - the state attorney, counsel for the accused person and the accused person himself.' * In the premises, I am satisfied and take it as proved that Hassan Mpenda is indeed dead and that he his death was due to intra-abdominal haemorrhage secondary to ruptured spleen as explained by PW4 and as appearing in the PMR (Exh. PI). There was evidence led by the defence suggesting that the deceased's death might not have been unnatural. It was suggested that as the deceased was discharged from the Hospital, his death could have been caused by some other natural causes other than those suggested by the medical expert. Having considered each piece of evidence before the death of the deceased, during the alleged fight between him and the accused person and after his death as well as the testimonies of the witnesses during the trial, I am satisfied that the deceased's death was far from being unnatural. PW4 stated in evidence and exhibited the same in the PMR (Exh. PI) that the deceased's internal organs, particularly the intestine and spleen, looked heavily traumatised. It is also in the testimony of PW2 that the deceased was discharged from the Hospital but he was still in pains and did not look recuperated. On these premises, I am satisfied and take it as proved that the deceased did not die a natural death; he died due a ruptured spleen which was traumatised. And from the very evidence, I am also satisfied that his killing was unlawful. The most contentious issue before me and which actually prompted the trial of this case is whether it is the accused person Sijali Moshi who killed the deceased Hassan Mpenda. Before zeroing-in into the evidence in a bid to resolve the foregoing issue, let me, firstly, address one preambular issue. This is that the accused person challenged the record of the PH in that he challenged some of the details of the memorandum of matters which were agreed upon to be undisputed. The PH recorded the following five issues as undisputed: 4 a) Name and personal particulars of the accused person; b) The accused and deceased's son had a quarrel on the material date/time; c) The deceased interrupted the quarrel; d) The deceased was admitted for some medication in the hospital and he was discharged but he died later; and e) The accused was arrested and charged with the present offence The court record has it that the accused person, like the learned State Attorney and his learned counsel, appended his signature; a thumb print, to be particular. And for the avoidance of doubt, reading in context, the term "quarrel" as appearing in items (b) and (c) the foregoing memorandum, I think, refers to a physical altercation. That is perhaps the reason why, earlier, the accused person offered a plea of guilty to a lesser offence of manslaughter, a plea which the prosecuting Republic was not ready to accept. However, unluckily, tne accused person challenges this record as well. He told the court during the hearing that it was his advocate who lured him into throwing the offer onto the Republic's table so that he would not stay long in remand without his case being tried. V I have subjected this episode of the accused person to serious scrutiny and having done so, unfortunately, the same has found no purchase with me. First, I cannot imagine a situation where an advocate assigned to represent an accused person advising his client as the accused person asserts. An advocate, as an officer of the court, has a primary duty to his client and a general duty to the court to ensure that justice Is done and seen to be son done. It does not sound to me as practically possible to have a court officer who goes around advising accused person to plead guilty to offences they did not commit. Secondly, the accused person's episode is meant to impugn the court record which he admits to have signed. In this jurisdiction, it is the law founded upon prudence that a court record cannot be lightly impeached; there is always a presumption that a court record accurately presents what happened. That this is the law was articulated by the Court of Appeal in a civil case (from which I do not find it legally offending to borrow a leaf) of Halfan Sudi Vs Abieza C hichili [1998] TLR 527 wherein, relying on what it » earlier stated in an unreported case of Shabir F. A. Jessa Vs Rajkum ar Deogra Civil Reference No. 12 of 1994, the Court of Appeal held: "A court record is a serious document; it should not be lightly impeached". 4 And, restating what the High Court of Uganda (Bennett, Ag. CJ) stated in Paulo Osinya Vs R [1959] EA 353, the Court of Appeal added: "There is always a presumption that a court •i record accurately presents what happened". On that score, I am not ready to buy the accused person's episode that the court record does not depict what was agreed upon by the parties during the PH as matters that were not contested. However, even without relying on what was agreed upon by the parties as undisputed, there is ample evidence on record that a fight ensued at the scene of crime between the accused person and Imani Hassan Mpenda; the -deceased's son, which fight .was triggered by the accused person refusing to pay Tshs. 20,000/= he owed Imani. This fact was testified to by PW1. Having closely watched PW1 testify, and in the absence of any grudges between her and the accused person, I am satisfied that she was speaking but the truth. That is to say, I find as sufficiently established by that the accused person fought withTmani and the genesis of the fight was that the former refused to pay the latter the sum of Tshs. 20,000/= he owed him. PW1, perhaps, having seen that she could not manage to stop the fight \ rushed to the deceased to seek for help. The deceased went to the scene of crime and met the furious accused person who stopped fighting Imani and kicked the deceased severely. I am satisfied that PW1 and PW2 saw the accused person kicking the deceased several times on the chest and stomach. I have no doubt in my mind that those blows were very severe as they the ones which led to the deceased's spleen to rupture.' As the deceased died within a year and day after the attack, well within the,limitation as to time of death as provided for by the provisions of subsection (1) of section 205 of the Penal Code, the accused person cannot escape responsibility for the death of the deceased. *• jr. But that is not all, for it is one thing to kill a person and it is quite another to intend to kill that other person. The lady and gentlemen assessors who sat with me in the trial of this court entered a not guilty verdict for the offence of murder with which the accused person is charged but entered a guilty verdict for a lesser offence of manslaughter. The lady and gentlemen assessors were of the view that the accused person was in a state of intoxication which might * have wiped out his mental faculty thereby being unable to form the requisite intention to kill. PW2 was forced to tender the statement he made at the police as Exh. Dl. This was done, I suppose, under the provisions of section 164 (1) of the Evidence Act, Cap 6 of the Revised Edition, 2002. This subsection reads: "The credit of a witness may be impeached in the following ways by the adverse party, or with*the consent of the court by the party who calls him... . (a) NA (b)NA (c)by proof of former testimonies inconsistent with any part of his evidence which is liable to be contradicted". The course taken by Mr. Kingu, learned counsel for the accused person to impeach the credit of this witness was, in view of the foregoing provision, quite apposite. However, I have carefully compared the testimony of this witness and his previous statement he made at the police. Undoubtedly, it is true that PW2 said something different from what he testified in court. In court, the witness PW2 testified that when he arrived at the scene of crime he saw the accused person trampling on the deceased body. However, in the statement he previously made at the police did not unveil that fact. He stated in his police statement: "Nilipofika pale nilimkuta baba amezimia na nikaamua kumgusa sehemu za kifuani kuona kama mapigo ya moyo yanapiga ndipo nikaona yanapiga. Wakati huo Sijali s/o Moshi alikuwa ameondoka eneo hilo ..." [Emphasis mine]. Although PW2's statement was not true in certain aspects when he testified before me, his testimony was consistent with the substance of what he said in court. Even if the witness did not find the accused person at the scene of crime, there was evidence from PW1 that he left him there fighting with / Imani and the deceased went past her to the scene to help his son Imani. PW1 found the accused person at the scene of crime kicking the deceased several times on his chest and stomach. I am in full agreement with my lady and gentlemen assessors. The evidence is loud and clear that the fight between the accused person and Imani which, it appears, culminated into one between the former and the deceased, occurred amidst a drinking spree. Admittedly, intoxication, under the provisions of section 14 (1) of the Penal Code, is normally not a defence to a criminal charge. However, subsection (4) provides an exception to the general rule. It provides: "Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence." The accused person had taken a local brew which the seller describes it as very strong and if we are to go with the accused person's word, he had taken two litres of it and added the third. And even if we are to discredit his evidence as to the amount he consumed and go with the evidence of PW1 that he had sipped only twice, we are not sure as to amount he consumed in those two sips, for the possibilities that he might have gulped a large amount in those two sips, are not eliminated. It becomes safe, in the circumstances, to opt for a situation which favours the accused person. The accused person kicked the deceased several times on his chest and stomach. As if that was not enough, as per the testimony of PW2, he trampled on the body of the i deceased who was lying down unconscious. This kind of behaviour would seem to support the idea that the accused person, due to his state of intoxication, had lost his sense of reason and was incapable of forming the requisite malice aforethought in killing or causing grievous bodily harm on the deceased - see Tunutu M nyasuie Vs R [1980] TLR 204 and Am osi Maiko Mbodele Vs R Criminal Appeal No. 158 of 2004 (both, respectively, reported and unreported decisions of the Court of Appeal). And as if to clinch the matter, the death in the present case occurred as a result of a fight and there is a plethora of authorities that death which occurs as a result of a fight, an accused person will not be guilty of murder but of manslaughter - see, for instance, Stanley Anthony Mrema Vs R Criminal Appeal No. 180 of 2005 (CAT unreported) and the cases cited therein: R Vs D. H. Retief{ 1941) 8 EACA 71, Jum a G. Tim bulu Vs R, Criminal Appeal No. 27 of 1991 (CAT unreported), S aidi Kipanga Pole Vs R Criminal Appeal No. 28 of 1991 (CAT unreported), and M oses s/o Chichi Vs R [1994] TLR 222 . I have not made use of the authority cited to me by Ms. Rugaihuruza, learned Senior State Attorney; the case of Dism as Atoyse Msoke Vs the DPP, Criminal Appeal No. 216 of 2009 (unreported) which is an authority for the identification with the help of moonlight as I, like the third assessor, am of the considered view that this case is not one on visual identification. PW1 was with the accused person for quite some time after which Imani arrived and verbal attacks and later'a fight which later the deceased became part. As * such the question of visual identification does not, in the circumstances, arise. In the end, I am convinced therefore, as did the lady and gentlemen assessors, that the deceased Hassan Mpenda was killed by the accused person Sijali Moshi but that in killing him, due to his state of intoxication, he lacked the requisite malice aforethought. And that the death of the deceased occurred as a result of a fight. In the premises, I acquit the accused person Sijali Moshi of the offence of murder contrary to section 196 of the Penal Code but find him guilty of the lesser offence of manslaughter contrary to the provisions of section 195 of the Penal Code and convict him accordingly. DATED at Kigoma this 3rd day of November, 2014. J. C. M. MWAMBEGELE JUDGE Court: Judgment delivered in open Court today 03.11.2014 in the presence of Ms. Maryasinta Lazaro, State Attorney, Mr. Rumenyela, Learned Counsel for the accused person, the accused person and the lady and gentlemen assessors. J.C.M. Mwambegele, Judge, 03.11.2014. v i* * • ' ** • £ f r- v Ms. Lazaro We have no previous criminal record of the accused person but pray for a stiff sentence. The fight involves loss of life of a human being. Moreover the accused person is a youth but indulged himself into excessive drinking. A deterrent sentence will deter other prospective offenders like him not to indulge into excessive drinking and end killing persons out of intoxication. MITIGATION Mr. Rumenyela: The accused person is a first offender. He has been in remand for more than three years now, the accused person is very sorry for what happened. The accused person is a youth aged 28 years and, obviously, he has parents who, obviously, depend on him. We therefore pray for a lenient sentence. ALLOCUTUS Accused person: I pray for a lenient sentence because I have been in remand for three years and eight years now. I have a kid who is eight years and has not been taken to school to date because I am not there to take care of her. That is the reason why I pray for a lenient sentence so that I join my family. SENTENCE I have taken into consideration the mitigating factors raised by Mr. Rumenyela, learned Counsel for the accused person, particularly that the accused person is a first offender who has been behind bars for. more than three years now. I have also taken into consideration the accused person allocutus to the effect that he has been in remand for three years and eight months now and that he has a kid aged eight and needs his care and attention. However, I have also taken into consideration what has been said by Ms. Lazaro, learned State Attorney to the effect that the accused person is a youth who indulged himself into excessive drinking and that a deterrent sentence would deter other prospective youth offenders to commit such offence and shy away with excessive drinking. All considered, this court sentences the accused person Sijali Moshi to a prison term of three years. J.C.M. Mwambegele, Judge, v 03.11.2014 Court: i Right of appeal to the CAT explained. ?■ J.C.M. Mwambegele, Judge, | 03.11.2014 Court: Assessors thanked and discharged. J.C.M. Mwambegele, Judge, 03.11.2014