20150422 TZHC Arusha

IN THE HIGH COURT OF TANZANIA \ AT ARUSHA CRIMINAL SESSIONS NO. 4 OF 2012 (Originating From Arusha Criminal Case No. 32/2011) THE REPUBLIC VERSUS NAGUNWA S/0 PETER@ TYSON ............................ RESPONDENT I I JUDGEMENT HON. DR. M. OPIYO, J. The accused in this case, Nagunwa Peter @ Tyson stands charged with the offence of murder contrary to section 196 of the Penal Code, Cap 16 RE 2002. The particulars of the offence are to the effect that on or about 22 nd day of January 2011, at Mbauda area within the District and Region of Arusha did unlawfully killed one Ayubu s/o Abdalah. When the information for murder was read for him the accused pleaded not guilty, and thereupon the Republic opened a case against him. In vouch to prove their case beyond reasonable doubt, the prosecution as represented by learned State Attorney Adelaide Kasala summoned a total of four witnesses, to wit, PWl Adam Abdalah, PW2 F. 8356 PC Andrew, PW3 Thobias Joseph Felix and PW4 Abdalah Iddi. The accused in this case was dully represented by the learned counsels Fauzia Mustapha and Joseph Hilary. 1 The gist of the evidence on record as per the prosecution witnesses is that on 22 nd January 2011 the accused person herein Nagunwa Peter @ Tyson embarked in the bus (daladala) as a passenger in which the deceased was working as a conductor with his two children who were both under the age of 10 years. They all got seated in the daladala. The deceased asked the accused if he was going to pay the bus fare for his children too for occupying the seats. The accused is reported to have agreed that he will pay. Upon reaching their destination the accused with his children disembarked and gave a conductor Tshs 200/= only as a fare instead of 750/= for three persons he promised. Misunderstanding arose between I the deceased and the accused as I,a result of that. Then one Adam I Abdalah, PWl who was a driver of the same daladala told the said Ayub Abdalah (deceased) to just return to the accused his 200/= which dropped on the ground accidentally infuriating the accused. Thereupon the accused grabbed the said accused and started beating him using his fits. In the mid of that turmoil, it is further alleged that the wife of the accused came to the scene armed with a ha_rmer which accused person grabbed ' and punched the deceased on head with it. The deceased fell down as a I result of a punch. He was then rushed to Mount Meru hospital where he died some hours later due to head injury as established later by the postmortem examination report. That, in the effort to help his conductor (the deceased) from the assault by the accused the driver Adam Abdalah, PW1 was also beaten on the mouth with the same harmer losing his two front teeth. 2 ~The evidence of each witness in summary is as follows. PW1 one Adam Abdalah testified before this court that he was the driver of the "daladala" in which deceased was a conductor an~ that when they reached soko Mjinga bus stop one passenger whom he identified to be the accused embarked in their car and got seated with his 2 children, whereupon the deceased asked him if he was going to pay for three of them and he agreed. However, when he reached his destination he refused to pay the adequate fare for three instead he gave the deceased 200/= and not the required amount of Tshs. 750/= Then the quarrel arose and PWl told the deceased to return the 200 shillings to. the accused so that they can proceed with the journey. The 200 shill(ngs accidentally slipped and fell down. The accused got angered by that and started assaulting the deceased using his hands. Consequently he grabbed a harmer from one of persons at the crime scene as there was construction going on nearby. He beat the accused with it on the head n~ar the left ear.. After that the deceased was rushed to the hospital as his condition deteriorated as a result of the blow: He further stated that at that point he had to get out of the car to help his '' conductor where upon he was also beate·n with the same hammer by the accused resulting in him losing two of his frontal teeth. He then had to go to the Police Station to get .PF3 for his treatment and report the matter just to find that accused had already gone there and opened a case against I him. He was instantly arrested until when he was bailed out enabling him to attend treatment. At dawn of the next day he received information of 3 the deceased's death. He went to the Police station in the company of 1 deceased relatives to facilitate the arrest of the accused. I PW2, F 8356 PC Andrew told this col'.Jrt that when he was at his work station the deceased went there complaining of the fact that he had been I assaulted by one Tyson. He then opened a case file for him and gave him PF3 to enable him get medical attention. The next day he received information that the deceased had dieb. He then, together with accused relatives matched to the accused persc;:m's home for his arrest. They was 1 found hiding under the hip of clothes Iin his house. He was arrested and I arraigned in court. PW3, Thobias Joseph Alex, the brother of ·deceased told this court that he i got information about the death of! his brother on the morning of 23/1/201 L They immediately travelled to Arusha and attended a Postmortem examination where hel saw the deceased body with inflammation on the left side of the head near the ear. Afterwards, they availed with a body for entombment services. I I There was yet the evidence of PW4, Abdallah Idd, father of the accused i 1 who also testified to this court tha t he had a chance to attend a postmortem examination and saw the swelling near the left ear of his sons I dead body. That marked the end of tne prosecution evidence from which . I the court ruled that the accused had a case to answer, thus he had to bring his evidence in defence. 4 . In defence the accused denied ever beating the accused rather he was the one who was beaten by the deceased and the crowd. Narrating the situation the accused told this court that he went to pick his kids from Kisomo and embarked on a daladala in which accused was a conductor. He got seated and held his two kids, 7 and 4 years old respectively on his lap. Upon disembarking he paid 2000/= shillings and accused returned him a change of 1500/= He asked accused as to why he did not return him a proper change, but accused refused to give him the balance. He complained to the driver, the fact which annoyed the accused as a result he throw 200/= to the accused. That money fell on the ground as he had had already got out of the bus. He picked it and as he was leaving he was leaving decesed hit him with a stone at the back of his head and as he turned to look he was again hit with another stone by the deceased and later the crowd joined in attacking him. He had to run to save his life and went to the Police station to report the attack. He later went to the hospital for treatment. He was then got arrested the next day and arraigned to court for murder. ' After hearing the testimonies of both sides, the issue before this court to determine is whether accused who did unlawfully cause the death of the deceased, one Abdalah Ayub on or about 22/1/2011. In the hearing of this case the court was assisted with two. lady assessors, Asha Badi and Theresia Kipande. Both opined that the accused is guilty of the offence of murder as charged pointing to the fact that accused being the one who started the quarrel at his place of embankment near his home, he intended the worst that happened to the accused.· 5 In our criminal law the general principle is that the accused is presumed innocent unless proved guilty. Thus it is, the duty of the prosecution to prove beyond reasonable doubt the guilty of the accused before he can be convicted of the offence charged. In other words an accused person is convicted on the strength of the prosecution evidence against him not on the weakness of the defence. This principle is well settled in a number of cases some of them include the cases of Nathanael Alphonce Mapunda and Benjamin Alphonce Mapunda V. Republic (2006) TLR 395, Mohamed Said Matula v. R. (1995) TLR 3 John Makolobel~ and Erick Juma alias Tanganyika v. Republic (2002) TLR 296. This Court's decision in the case of John Makolobolas case ' (supra) runs in the following words; " a person is not guilty of criminal offence because his defence is not believecl rathe~ a person is found guilty and convicted on a criminal offence because of the strength of the prosecution evidence against him which establish his guilt beyond reasonable doubt' In the instant case the material evidence ·for the prosecution is as per PWl who was present at the crime scene and witnessed or saw each and ' everything that transpired on that day. It is that the accused and deceased had a quarrel over the bus/daladala fare culminating in accused beating the deceased on head with the leading to his death hours later. This kind 6 . of evidence is indeed relevant and admissiible under section 62 (1) (a) and (b) of the Evidence Act, Cap 6 R.E 2002 which states that: 62(1) oral evidence must, in all cases whatever, be direct, that is to say (a) If it refers to the fact which' could be seen, it must be the evidence of a witness who says he saw it 1 (b) If it refers to fact which could be heard, it must be the evidence I of a witness who says he heard it. I I In this case, PWl did heard how the quarrel stated and did see with his ' necked eyes the accused punching the accused on head with a harmer 1 leading to his death. This is confirmedI by the postmortem examination report admitted as exhibit Pl of death \-\'.as intracranial bleeding and brain damage following being hit with hard object in front of left ear leading to depressed fracture of left temporal bone• and depressed rupture of Medical meningeal artery. The fact of there being a misunderstanding between the accused and I • deceased over a bus fare is as well not i1h total denied by the accused who I in his defence admitted there being a misunderstanding between them I over the bus fare though with a varied nature as he puts it. The Evidence I of PW3 and PW4 who were also present during postmortem shows the I existence of inflammation on the left side of the head near the ear. PW2 I also testified that deceased went to him to report that he was beaten by 7 the accused before he was given PF3 for treatment. From these facts I am convinced that the death of the deceased 'resulted from head injury due to 1 beating. So far there is no any piece of evidence pointing to any other I source of beating apart from that of accused. Even from the testimony of _the accused in defence, in as much as he 1is denying beating the deceased I • but he does not at all or at any point indicate that the deceased was I beaten by any other person including the crowd. I Accused's claim is that the crowd attacked him not the deceased. ·I I I This court is alive to the principle that it )s for the prosecution to prove its case beyond reasonable doubt and not for the defence to prove accused person's innocence. Thus the defence ca~e's role is just cast doubt to the I prosecution's case. As noted above tha~ accused was heard telling this court that he did not beat the deceased rather he was the one who was beaten by the deceased who was latet joined by the crowd who were I passengers from the said daladala in ass,aulting him by throwing stones to him. _When he was cross examined by the prosecution and questioned by assessors as to how come he was iAnocently attacked by his fellow I passengers, he replied that he couldnft have known their reasons but insisted that they attacked him for notning. In my view this is quite an I usual thing or reaction from a crowd. If he was the one who was being ! attacked by the deceased the passeng~rs could have ganged up against the deceased and not against the one who was innocently attacked before their naked eyes. This piece of testi1ony leads me to believe that the crowd reaction against the accused was actually triggered by what he did l I I 8 I . to the deceased and not what the deceased did to him. In this kind of revelation, one is not unreasonably justified to reach a conclusion that the accused engaged in some violence with deceased. His defence case has not been able to cast any doubt, let alone reasonable, on prosecution proof of that fact. In the circumstances therefore, this Court finds no good reason not to believe that the assault leading to the deceased death resulted from the one he had a quarrel with, in this case the accused person. · To prove a criminal offe~e one need to prove the actus reus which is the act is self and mens rea which is a required mental state in a particular offence. In this case, the above proof that the accused is the one who actually injured the deceased leading to. his death only .proves the actus reus of the offence of murder he is charged with. The element of mens rea referred to as malice aforethought in murder cases is not proved by the facts as analysed above. The prosecution also ought to prove that accused intended to kill the deceased for him to be held liable for murder as charged. From the facts above, in as far as prosecution evidence has been able to prove that the accused attack to the deceased, it has not been possible to prove that the attack was one sided. That means the existence of possible attack from the deceased is not ruled out. The court noted the existence of a elements of fight between the two, as we are not told that the deceased was beaten while sitting quietly same where without 9 • returning the blows. After all there is evidence that the accused was also I injured in the incidence. In the circumstances therefore the court finds that I • the death of accused resulted from the fight. And when death is found to have occurred from the fight, the law is well • settled on the difficulties of proving mens rea involved in the circumstances. In the case of Moses Mungasani Laizer Alias Chichi v Republic (1994) TLR 222 it was held that; 11 Where death occurs as a result of a fight an accused person should be found guilty of the lesser offence of Manslaughter and not murder." I Therefore, because the death of the deceased in this case is found to have I resulted from a fight, the accused person, Nagunwa Peter @ Tyson is found guilty and equally convicted of ~ lesser offence of manslaughter I contrary to section 195 of the Penal Code, Cap. 16 RE 2002. I I SGD: DR. M. OPIYOI JUDGE 22/4/2015 Previous Conviction. We have no record of previous conviction of the accused. But honourable I Judge if you look on the cause of this death, it is a fight fo_r no good reason ' which was caused by the accused himself. The fight was not reasonable 10 because after the accused received the service of the transport with his family he had a duty to pay the fare of 750/= but he did not do so causing the said quarrel. Honourable judge also looking on the gist of this incidence it was not wise for the accused to use excessive force in beating the accused with a harmer especially because the accused was not armed with such heavy weapon. Also honourable Judge, the deceased was beaten on the head near the left ear, this is a dangerous spot which if affected could easily cause death. Honourable Judge, if the accused could have been w ise and he was 1 innocently attacked he could have reported to the police station for the law to take its course and not using excessive force he used causing the death of the deceased. Honourable Judge the late Ayoub Abdalah was as young as 23 years which is a responsible age for the family, community and nation at large. And his death has resulted in the loss of workforce to the nation. On those ground it is opinion of prosecution side in order to stand as a lesson to accused and others who do not want to follow the rule of law. MITIGATION. 11 I ,., • Honourable Judge the accused has been convicted of the offence of ' manslaughter, we find it difficult as to know who caused the death . of Ayoub Abdala as during the fight a. lot of people came who were l throwing stones and what weapon kille,d him. • He was not expecting to fight as h~ was travelling with his kids heading home in peace. • He is a first offender and he is "not habitual fighter'. In fight sometimes one does not act wisely a$ he was supposed to as in our case. ' ' • It is our prayer that in the whole pro'ceeding of a case he has spent already more than four years in prison, this is sufficient punishment already. i . • He has a family of kids of bellow ten years and he is a bread earner of his family. • We pray that your honourable court exercise some leniency in ' sentencing him given the mitigation we have advanced. ' SENTENCE. I have keenly considered the mitigation'I as per the defence counsel that accused is a first offender and he never intended to engage in the ' unfortunate fight leading to the death of the deceased. Also that he had I already spent more than four years in jail which would form a sufficient punishment for him and youngness of :his family to which he is a bread I · earner, I feel inclined to exercise some lenience in sentencing him. l' I .1 I 12 I I I I I ,I I I ,ii I ·~ However looking at the circumstances of this case that the fight originated from accused irresponsibly picking an argument with someone on his duty (of collecting bus fare as usual). Also ,the fact that the accused used unnecessary excessive force towards unarmed youth who still had I prospects of raising his own family and being useful to his nation, as noted by the prosecution, the accused deserves some lessons from his act. Given the fact that the aim of sentencing one is not to retaliate but rather to give accused sometime to reform his unwanted habits away from vulnerable society I sentence accused person to only seven years imprisonment. 67?CTd~ ...:::.,Z::::.-t-f_..... ~• DR. M. OPIYO JUDGE 22/4/2015 I Right of appeal explained. I ' ~ \ DR. M. OPIYO JUDGE 22/4/2Q15 ' 13