20191203 TZHC Dar es Salaam

,i' IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 66 OF 2012 REPUBLIC ............. ~ /~ ................................... PROSECUTOR Versus LEONTINE ANGELO ........................................ ACCUSED ' JUDGEMENT Date of Last Order: November 29, 2019 Date ofJudgement: December 3, 2019 Masara, J The accused stands charged of the offence of Murder, contrary to section 196 of the Penal Code, Cap. 16 of the Laws of Tanzania (herein the Penal Code). The charge against the accused is to the effect that on 24th day of April, 2011 at Mbezi Jogoo area, within Kinondoni District, Dar es Salaam Region, the accused, Leontine Angelo, murdered one DEUS MICHAEL I MALIMA. In order to prove the case against the accused, seven witnesses were summoned to testify by the Prosecution. These are: Dr Robert Malima (PWl); Mastidia Angelo Rwechungura '(PW2); A/Inspector Mfaume Abdallah (PW3); WP 2771 DC Kulwa (PW4); Oswald Thomas Sinkala (PWS); D 8214 D/SGT Emmanuel (PW6) and Dr. Sosteus Jofu Hongo (PW7). Four (4) exhibits were also tendered by the Prosecution; namely, Exhibit Pl (Sketch Plan), Exhibit P2 (Post-Mortem Examination Report), Exhibit P3 (Caution 1 Statement of the accused) and Exhibit-P4 (Witness Statement of Linda- Benezeth). The first two exhibits were tendered during the Preliminary hearing. In compliance with the law for the admission of medical evidence, however, the Republic summoned PW6 to testify on the Post mortem Examination report. The Prosecution was required to prove that the accused caused the death of , the deceased and that he did so with malice aforethought. It is imperative to note that the law lays the burden of proving a criminal case upon the Prosecution. It is upon the prosecution to prove that the accused committed the offence charged. The standard of proof is beyond reasonable doubts. In this case therefore, it was the duty of the prosecution to prove that the accused committed the offence charged beyond reasonable doubts. The accused does not bear the burden to prove his innocence. His duty is just to raise doubts on the case against him. In Mohamed Said Matumla Vs. R I [1995] TLR 3 the Court of Appeal held as follows: "Upon a charge of murder being preferre~ the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the I prosecution and no duty is cast on the appellant to establish his innocence. " I should note at the outset that the trial of this case commenced on 2nd September, 2013 before Bongole, J, when the accused was called to plead to the charge. After the preliminary hearing, the trial of the case was mistakenly assigned to Lema, PRM (Extended Jurisdiction). Four witnesses testified. On 10th December 2014, the trial was adjourned for continuation 2 I ' in the following criminal sessions. That could not materialise until 28 th April, 2017 when the case was reassigned to one A. Kalli, PRM (Ext. Jur). It is at that stage that the Prosecution informed the trial Court that the hearing was proceeding illegally as a subordinate court with extended jurisdiction could not try a case that had commenced trial at the High Court. The matter was then assigned to my predecessor Matogolo, J, for a fresh trial. The trial then commenced on 12/12/2018. Two witnesses testified before Matogolo, J but he could not finalise the case. The trial was taken over by Mr. I. Mugeta, J on February 20, 2019. The hearing of the prosecution case proceeded ' whereby three more witnesses testified. Incidentally, the hearing before Mugeta, J, ended when an order for a trial within a trial had been ordered whilst PWS was giving evidence. Mugeta, J was subsequently transferred from Dar es salaam and the case reassigned to me for continuation of hearing. On 14th June, 2019, I addressed parties in terms of Section 299 of the Criminal Procedure Act. None of them objected for me to take over hearing of the case from where it had ended. The trial then proceeded before me to finality. Before me, the Republic was represented by Ms. Salome Assey and Ms. Janeth Magoho, learned State Attorneys while the accused I was represented by Mr. Hassan Yassin, learned Advocate. Mr. Said Itowela and Ms. Kuruthum Ally served as assessors. Briefly, the prosecution evidence ran as follows: PWl informed the court that he is a young brother of the deceased. On the fateful night, that is early 25/04/2011, he received a call at around midnight to about 0100 hours from his local leader, Abdallah Likongite, who was with their street chairperson, 3 Juma Mnanka. The two informed him his brother, Deus Malima had been killed. They went with him to the house of one Mastidia Angelo (PW2) where the deceased was. At that house, he witnessed the deceased lying on his stomach surrounded with blood. He inquired from Mastidia what had happened. She told him that the deceased went at her house while they were fetching water from outside and was inquiring where his children were. That a quarrel ensued whereby Mastidia and a young lady by the name of Linda entered inside the house and they locked themselves in, leaving the deceased outside. Later they heard a loud bang outside the house. On ' getting out, she found the deceased lying in front of the door already dead. Sensing that she was not telling the whole truth, PWl took Linda aside and interrogated her. Linda informed him that the deceased found them fetching water and started inquiring for his children. A misunderstanding arose between the deceased and Mastidia. They went inside the house where Mastidia switched off the outside lights. She made a call to the accused asking him to come there as the deceased, was there making trouble. Later she heard two men quarrelling outside. Then she heard a loud bang (kishindo) which was followed by silence. The accused then knocked the I door of Mastidia asking her to open for him. They got out only to find the deceased lying down already dead. Mastidia and the accused then discussed about the accused fleeing as death had occurred. PWl further testified that after getting that information they started to look for the accused. They went to his house that very moment but he was not there. They only found a young boy who was staying with him. He informed -~ 4 them that the accused had left for Ganga la Mboto. They went with the young boy to Ganga la Mboto where the accused's sister lived. They did not find him there. They also tried to search for him at his pork selling room, but he was not there. About a week later PWl, in cooperation with Police investigators, managed to get information that the accused had fled to Kidaboga, Kilolo Iringa. They informed the OCD of Kilolo about the accused and sent photos of the accused. Later he was informed that the accused had been arrested. Arrangements were made to bring him to Dar es Salaam. This witness further informed the Court that before the event he had met the ' accused on 24/4/2011 at about 2pm to 4pm when he went to buy pork from him. On Cross examination, the witness informed the Court that whereas the deceased used to drink alcohol, he had passed at his house at around 10pm on 24/4/2011 while sober. He further stated that after the event, the accused vanished until he was arrested at Kilolo. Mastidia Angelo Rwechungura was PW2 for the Prosecution. She is the accused's blood sister and was the deceased's co-parent (Mzazi mwenzie). She lives at Mbezi Jogoo. She testified that she had three children with the I deceased but at the time of the incident their relationship had broken down. On the fateful night, the deceased came at her house and started threatening her while she was fetching water from the tap outside. She was with one Linda, her relative. The deceased was querying her to tell him where his children were. She ran and managed to get inside the house and they locked themselves in and put all the lights off. The deceased was pulling the door grills, something that worried her. She tried to call her neighbours ~ 5 but none responded. She therefore called her brother, the accused, who also lived at Mbezi Jogoo. The accused responded. She started praying. Later on, she heard a complete silence as the grill was no longer been pulled. She opened the door whereby she saw the deceased lying outside. She went to call a Mjumbe, Baba Tecla. They went back whereupon she discovered that Deus, the deceased, was no longer alive as there was a pool of blood around him and a big wound at his face. The Mjumbe informed other people including the Street Chairman. According to her, she only met PWl at the Police station. During cross examination, she informed the Court that on the ' fateful night the deceased went to her house at around 21.00 to 22.00 hours and that he appeared drunk. She also said she did not hear any other sound other than the door grills being shaken. She further stated that for the 10 days that she was in jail, the accused never visited her but that she had met him two days before the incident. A/Inspector Mfaume Abdallah testified as PW3. He was assigned to investigate the incident. He managed to visit the scene of crime, drew a sketch map (Exhibit Pl) and interviewed some witnesses. He was guided by I the Street Chairman and Mjumbe. At the scene of the crime, he saw some blood stains at the door of PW2. He was later transferred before finalising the investigation. Later he was informed that the accused had been arrested in connection with the murder of the deceased. He was followed by PW4, WP 2771 DC Kulwa, who took over from PW3 as the investigator of the case. She took over the case before the accused was arrested. She received the accused who had been arrested at Kilolo on 1/8/2011 at about 6 1230hours. She conducted a brief interview with the accused who admitted to have been at the scene of the crime following a call he received from PW2, his sister. PW4 then locked up the accused after registering him. She then asked DC Oswald (PWS) to record the statement of the accused. After the interview the accused was sent back to the lock up. On cross examination, this witness stated that she did not record the brief interview with the accused but that such interview is standard procedure. The sth Witness for the Prosecution was Oswald Thomas Sinkala (PWS). He informed the court that he was a retired police investigator who was working at Kawe Police station until he retired in 2013. On 1/8/2011 at about 15.00hours, he interviewed and recorded the confession ( cautioned) statement of the accused person on the request of PW4. The cautioned statement was dully admitted in court after a trial within a trial as exhibit P3. His evidence was followed by that of D8214 D/SGT Emmanuel, PW6. PW6 testified that he recorded the statement of on Linda Benezeth on 25 th April, 2011. He tendered Linda's statement as she could not be traced to testify. It was admitted as Exhibit P4. He also informed the court that when the I accused was eventually arrested, he is the one who was sent to bring him back from Kilolo police station, Iringa. He arrived there on 31/7/2011 and was handed over the accused. They left for Dar es Salaam at around 04.00hours on 1/8/2011 and arrived at Kawe Police Station the same day at around 12.30hours. The accused was then handed over to PW4, WP Kulwa. 7 The last Prosecution witness (PW7) was a Dr. Sosteus Jofu Hongo, from Mwananyamala Referral Hospital, Dar es Salaam. He informed the court that he performed a post-mortem examination of the body of the deceased, Deus Malima, on 26/4/2011. The body of the deceased had cut wounds at the front and back of the head and that some parts of the head parts were protruding signifying that the deceased was hit by a heavy object and that such injury cannot be sustained from accidental falling. His report (Exhibit , P2) which had been tendered during the preliminary hearing was to the effect that the cause of death was severe head injury coupled with severe blood haemorrhage. That marked the end of the prosecution case. After the closure of the prosecution case and after it was ruled that the Prosecution had made a case that required the accused to defend himself and call evidence thereof if he so desired, the accused opted to testify on oath and did not call any witness or tender any exhibit. In his sworn evidence, the accused denied to have committed the offence he stands charged for. He informed the Court that he was a petty businessman (selling Mitumba clothes) and that on 19th April 2011 he left for Iringa where there I was a Market (mnada) at a place known as Lukosi, within Kilolo District. He traded on 22 nd and 23 rd and rested on 24th April, which was Easter day. On 25th April at around 2.30PM he saw three policemen who found him in the process of buying items. They were looking at him and looking at their phones. He was arrested by these policemen and taken to Kilolo Police Station where he stayed for a week without knowing of the offence he was accused of. After a week he was told that he was arrested in connection of 8 a murder case that happened in Dar es Salaam. He stayed in the lock up for about three months until PW6, CPL Emmanuel, came on 31 st July, 2011. They left the same day and arrived in Dar es Salaam at around 8.30pm. The accused denied receiving a call from PW2 on the fateful day. He admitted to k~ow Linda, who. is a daughter of his sister by the name of Dolfina Angelo, and that Linda was staying with Mastidia (PW2). He testified that he last saw PW2 on 15/4/2011. He denied the statement that was tendered and that he , did not commit the offence, as the same was fabricated against him by the Prosecution whose witnesses were mainly police officers. On cross examination, the accused stated that he knew of the quarrels between the deceased and his sister and that he was not happy with those quarrels but he had nothing to do. He also stated that he had not indicated to anyone that he was going to rely on alibi as a defence. After closure of the defence case, in line with section 294 of the CPA, the counsel for the accused summed up the defence case by filing final submissions. In the said submissions, the counsel reiterated that the accused did not commit the offence he stands charged with and that the prosecution I evidence was not sufficient to convict the accused of the offence of murder. He branded the prosecution witness as hearsay and that no witness saw the accused committing the offence. He also faulted the Prosecution for not bringing independent witnesses and instead relied heavily on police witnesses. Furthermore, the submission faulted the prosecution for not bringing some key witnesses, including the arresting officer and evidence as to the alleged call between him and PW2. 9 After the evidence from both parties was concluded, I summed up the case to the Gentleman and Lady Assessors. Both of them were of the view that the prosecution did not prove the offence of murder beyond reasonable doubts. They, however, were of the view that the accused killed the deceased. The question for consideration is whether the Republic proved the charge of murder against the accused beyond reasonable doubts. To do so, it is essential to determine whether the deceased is dead; that it is the accused who killed the deceased; and that he did so with malice aforethought. This is the position of law as was held in Andrea Ngura Vs. R, Criminal Appeal No. 15 of 2013 (unreported) where the Court of Appeal held as follows: "We take it as settled law, that for the offence ofmurder to the proved; it must be established that; a person is dead; that it was the accused who killed him/her; and that he did so/ with malice aforethought " There is no doubt from the evidence tendered at the trial that the deceased is dead and that his death was unnatural. That is gathered from Exhibit P2 which was tendered by the Prosecution, augmented by the evidence of PW7, I a medical Doctor, and the evidence of PWl and PW2 who witnessed the body of the deceased a few minutes after he died. The remaining question is whether it is the accused who killed him. The evidence adduced by the Prosecution to prove the charge against the accused is circumstantial. There is no eye witness who was summoned to testify as to who killed the deceased. The best evidence rule requires that 10 evidence be direct. Circumstantial evidence can be used to prove a fact under certain conditions. We say the evidence against the accused in this case is circumstantial as there is no eye witness who was summoned to testify that they saw the accused hitting and killing the deceased. The Prosecution rely on the cautioned statement by the accused person, the statement of Linda Benezeth (Exhibit P4), the evidence of PW1, who is said to have interrogated Linda and PW2, to conclude that it was the accused person who killed the deceased. In court however, apart from the cautioned statement of the accused person (Exhibit P3), no direct evidence was tendered to prove that ' the accused did actually kill the deceased. It is an established practice in our courts that when circumstantial evidence is to be relied upon, the court must be sure that there are no other co-existing circumstances which would weaken or destroy the inference. The law on circumstantial evidence is that it must irresistibly lead to the conclusion that it is the accused and no one else who committed the crime. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is I always on the prosecution and never shifts to the accused. This position has been repeated in a number of decisions of this Court and the Court of Appeal. See for example August Mahiyo Vs. R [1993] TLR 117 and Hassan Fadhili Vs. R [1994] TLR 89, among others. The Court of Appeal in the case of Jimmy Runangaza Vs. R, Criminal Appeal No. 159 of 2017 (unreported) held, inter alia, that: ''In order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilty. (See Simon Musoke v. 11 Republic, {1958} EA 715). Sarkar on Evidence, lsth Ed 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidence, such evidence must satisfy the following three tests which are: 1) The circumstances from which an inference ofguilty is sought to be drawn, must be cogently and firmly established; 2) Those circumstances should be of a definite tendency unerringly pointing towards the guilty of the accused; and · 3) The circumstances taken cumulatively should form a chain so compete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. " · ' The same principle can be gathered from the Court of Appeal decisions in Julius Justine and Others Vs. R, Criminal Appeal No 155 of 2005; and Obedi Andrea Vs. R, Criminal Appeal No. 231 of 2005 (both unreported). It is incumbent upon me to decide whether the circumstance of the case points irresistibly to the accused as the person who killed the deceased. The circumstantial evidence available come from the information that the accused told the Prosecution witnesses, PW4 and PW5. If that evidence is taken to be true, then the fact that the accused decided to vanish after the I death of the deceased and was traced in Kilolo, Iringa more than three months later, may be taken as suggestive of his guilty conscious. In the cautioned statement, the accused alleges that he participated in beating the deceased but that he did not have any weapon. The post-mortem examination report and the evidence of PW7 suggest that apart from the fatal blows in the head, the deceased was not injured anywhere else. This is also gathered from the statement of Linda Benezeth, exhibit P4. According to this evidence, Linda heard exchange of words between the deceased and 12 the assailant and then heard a big bang followed by complete silence. This piece of evidence disproves the version that the deceased was fighting with three persons as stated in the cautioned statement. In his sworn evidence, the accused person informed the Court that he was not at the scene of the crime when it occurred. This is a defence of alibi. The law requires prior notice to be given if such defence would be relied upon by an accused person. This is per the requirements under section 194 of the CPA. Section 194(6) of the CPA provides that: ' ''If the accused raises a defence of alibi without having first furnished the prosecution (with notice) pursuant with this section, the court may in its discretion accord no weight of any kind to the defence. " The purpose for such requirement is to enable the Prosecution to prepare themselves and where possible to get a witness(es) to prove the alibiwrong. In the final submission on behalf of the accused, the defence counsel also pointed out that in light of decided cases, it is the obligation of the defence counsel both in duty to his client and an officer of the court, to indicate in cross examination the theme of his client's defence so as to give the I prosecution an opportunity to deal with that theme. That is the holding in Mohammed Katindi Vs. R [1986] TLR 134. Ironically, it is debatable whether this was done by the defence counsel, especially with relation to the alibi. In his defence, the accused indicated that he was not at the scene of crime on the night of 24th April, 2011 as he was at Kilolo selling mitumba. That he had left Dar es Salaam on 19th April, 2011. At least three pieces of evidence suggestthat this defence may not be true. The first one is his own 13 ',, caution statement (which he retracted). Second, is the evidence of PWl, who testified that on the date of the incident the accused, who had a Pork meat selling kiosk, did actually sell to him pork meat in the afternoon. This witness also said that during the night they did go to the accused's home and the young boy who was found there informed them. that the accused had left that night heading to Gongo la Mboto. Third is the evidence of PW2 who said she called him over phone and that he responded and that before that night she had seen him two days before. Two days before the 24 th April would place it on 22 nd April, 2011 which is three days after the date that the ' accused alleged to have left for Kilolo. I have no reasons to doubt such evidence, and coupled with the fact that there was no prior notice regarding the alibi, I accord no weight to it. As stated, the prosecution relies on the cautioned statement of the accused. This statement, although admitted, was repudiated. I need to point out that the cautioned statement of the accused, Exhibit P3, contains express confession of the accused's participation in the commission of the offence. In the said statement, the accused does not say that he killed the deceased I himself as he negates carrying any heavy object but that he was only using his hands. According to the statement, he was one of the four persons who were fighting with the deceased. He therefore admits to be a particeps criminis. In law such evidence can be acted upon to found a conviction against the maker. However, the accused retracted that confession in his sworn evidence. A retracted confession, though as a matter of law may support a conviction, generally requires as a matter of prudence 14 corroboration as is normally the case where a confession is repudiated. Section 27 of the Evidence Act, Cap.6 provides: "(1} A confession voluntarily made to a Police Officer by a person accused of an offence may be proved as against that person. (2) The onus ofproving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution. (3) A confession shall be held to be involuntarily if the court believes that it was not induced by any threat premise or other prejudice held out by the police officer to whom it was made or by any member of the police force or by any other person in authority." The law in relation to confessions is settled. In Hemed Abdallah Vs R, ' [1995] TLR 172, the Court of Appeal while affirming the erstwhile Court of Appeal for East Africa decision in Tuwamoi Vs. Uganda (1967) EA 84 held as follows: ''It is trite law that generally it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particular or unless the court after full consideration of the circumstances is satisfied that the confession cannot but be true. " The accused's statement was admitted after a trial within a trial was held. I have no doubts that the same was voluntarily made given that the contents I thereon could not be in the knowledge of a person other than the accused himself. The Court of Appeal in the case of Ibrahim Yusuph Kalist @Bonge & 3 Others Vs. R, Criminal Appeal No. 204 of 2011 (unreported) did lay conditions to determine reliability of the confession. It stated: "There are several ways in which a court can determine whether or not what is contained in a_ statement is true. First, if the confession leads to the discovery of some other incriminating evidence. (See PETER MFALAMAGOHA v R, Criminal Appeal No. 11 of 1979 (unreported} Second, if the confession contains a detailed, 15 elaborate relevant and thorough account of the crime in . question, that no other person would have known.su_c_h details but the maker (See WILLIAM MWAKA TOBE V R, CriminalAppeqf_ No. 65 of 1995 (unreported}. Third, since it is part of the prosecution~---------- case, it must be coherent and consistent with the testimony of other -- prosecution witnesses, and evidence generally. (SHABAN DAUDI v R, Criminal Appeal No. 28 of 2001 (unreported} - especially with regard to the central story(and not in every detail} and the chronology of events. And, lastly, the facts narrated in the confession; must be plausible. "(Emphasis added) It is trite principle that confe~sional statement which has bee_n retracted or repudiated can be acted upon to found conviction but would as a matter of practice need to· be corroborated by independent evidence. That is the position of the law and has been followed by this Court and the Court of Appeal. See Asia Iddi Vs. R [1989] TLR 174 and also Thadei Mlomo and Others Vs. R [1995] TLR 187. The question is whether there is corroborative evidence from the Prosecution. Corroborative evidence in law is· evidence that confirms, augments or supports a statement in issue. Corroborative evidence of the cautioned statement can be found in the evidence of PW2, who testified that he made a call to the accused that night I complaining that the deceased was making trouble and that the accused was in Dar es Salaam having seen him two days before the event. The other piece of evidence is from the statement of Linda Benezeth, Exhibit P4. Linda is said to have heard the fracas and the bang that led to the death of the deceased. These two pieces of evidence coupled with the evidence of PWl . who testified to have seen the accused at his pork selling kiosk the same day when the deceased died, constitute corroboration of the cautioned 16 statement. I therefore hold that the accused killed the deceased, or at least participated in his killing as stated in the cautioned statement, Exhibit P3. Having concluded that the accused killed or participated in killing of the deceased, the next question is whether the accused's act was done with malice aforethought. In law, malice aforethought does not have to arise only when an intention to kill is established. It may fall in any of the categories stated in section 200 of the Penal Code. One may ask whether the accused intended to cause the death of the deceased or to cause grievous harm to ' him. Unfortunately, none of the witnesses from the prosecution gave direct evidence in this regard. Next, we may wish to ask whether death of the deceased occurred in the process of the accused committing another offence. Where death is caused by an unlawful act in the furtherance of an intention to commit an offence, malice aforethought is deemed to be established in terms of section 200 (c) of the Penal Code, Cap 16. If it is proved that the accused killed the deceased, the next issue for determination will be whether accused intended to cause the death of the deceased or to cause grievous harm to him. Intention or malice aforethought as is regularly I referred to is the mens rea of the offence of murder. There is no direct evidence in this regard. It is therefore up to the Court to decide whether death of the deceased occurred in the process of the accused committing another offence. Where death is caused by an unlawful act in the furtherance of an intention to commit an offence, malice aforethought is deemed to be established in terms of section 200 ( c) of the Penal Code, Cap 16. In the instant case, serve for the extenuating matter discussed later, malice ~ 17 aforethought is established in that the death occurred in an assault that was directed into vulnerable parts of the body of the deceased. It is not evident from the evidence tendered what instrument was used to hit the deceased and eventually caused his death. One cannot also say with certainty that the accused prepared himself to beat the deceased to death or cause grievous harm. What is obvious is that the deceased was hit by heavy object at his forehead and that the blow seriously injured him and caused his death. The accused says that four people were fighting with the ' deceased. If as stated by the PW2 the deceased was drunk, was he capable of offering a resistance that warranted hitting him that hard, and hitting him at a vulnerable part of his body? The truth remains uncertain and a?. the accused did not offer more details about the fight, the truth will remain buried. Given that the burden to prove that the accused killed with malice aforethought lies with the prosecution, I will not hesitate to give the accused the benefit of doubts. The benefit relates to what he states in his cautioned statement, that death resulted from a fight. Where death occurs as a result of a fight, the accused will not be found guilty of the offence of murder. He I will be convicted of a lesser offence of Manslaughter. In the case of Andrea Ngura (Supra) the Court of Appeal confirmed this principle when it said: "When death occurs as a result of a fight, an accused person would be found guilty of the lesser offence of manslaughter" See also Moses Chichi Vs. R. [1984] TLR 222. The evidence of a fight comes from Exhibit P3, the cautioned statement, and to some extent Exhibit P4, the witness statement of Linda Benezeth. Consequently, it is my finding 18 . ... I . 1 t~ --~ - --"------------------------- - - - that as the death of the deceased was as--a--res-ulfof-~f fight, the--accused--- ______________ _ cannot be held to have caused the death of the deceased with malice aforethought. IncidentaUy the Accused did not raise self defence or defence of person as justification for what he did. I also do not gather such evidence from the testimony of all the witnesses. It is therefore safe to conclude that the accused killed the deceased but without the requisite malice aforethought. I _therefore find the accused guilty of the offence of Manslaughter, contrary to Section 195 of the Penal Code, Cap. 16. I convict him accordi ' December 3, 2019 19