IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A., And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 180 OF 2005
VERSUS
THE
REPUBLIC …………………………………….… RESPONDENT
(Appeal
from the Conviction and Order of the
High
Court of Tanzania
(Massati,
J.)
dated
the 30th day of June, 2005
in
HC Criminal Sessions Case
No. 36 of 1999
------------
JUDGMENT
OF THE COURT
26 October & 30
November 2007
RUTAKANGWA,
J.A.:
The
appellant was convicted as charged of the offence of murder contrary to section
196 of the Penal Code, by the High Court sitting at Arusha. He was sentenced to suffer death by
hanging. Dissatisfied with the
conviction and sentence, he has lodged this appeal.
Acting
through Mr. Kimomogoro, learned advocate, the appellant has filed three grounds
of complaint against the entire High Court decision. They are as follows:-
“1. The learned trial judge erred in law in his
summing up of the case, in failing to bring to the attention of the gentlemen
assessors the question of intoxication.
2.
The
learned trial judge erred in law in holding that the previous misunderstanding
between the accused and the deceased was the probable motive for the attack.
3.
The
learned trial judge erred in law in failing to hold that the prosecution failed
to establish malice aforethought beyond reasonable doubt”.
To
facilitate an easy appreciation of the inherent force in these grounds of
appeal we have found it necessary to set out briefly the facts of the case as
presented in the High Court.
The
prosecution called five witnesses at the appellant’s trial. Their evidence was to the effect that the
deceased, one Emmanuel Solomoni Ijengo, who was the husband of Beatrice E. Solomoni,
(PW2) was the landlord of the appellant.
The three lived in one house at Mbauda area of Arusha Municipality
On
2nd October, 1998, shortly after midnight, PW2 and her husband were
rudely awakened by noises emanating from the appellant’s room. The couple got out of bed. They both went out of their room, and PW2
went to the toilet leaving the deceased urging the appellant to stop
shouting. Then PW2 decided to go and
call her brother in law, one Obedi Solomoni Ijengo (PW3) who was living
nearby. By the time PW2 and PW3 got to
the deceased house, they found the deceased lying down. The appellant was standing nearby holding a piece
of spring. PW3 snatched the said spring
from the accused. PW2 raised an alarm
and some people, including PW1 assembled.
The deceased, who had bruises and a swelling on the head, was taken to
hospital while the appellant was surrendered to the police. The deceased told No. E 8178 P.C. Sezari
(PW4) that he had been hit with a spring by the appellant.
The
deceased was treated and discharged the same night. However, the deceased’s condition worsened at
dawn. He was rushed back to hospital
where he was admitted but died later in the afternoon. Dr. Wasia Moshi of Mount Meru Government
hospital conducted a postmortem examination on the deceased body. He opined that the cause of death was “assault
leading to head injury”. The
report on postmortem examination was tendered in evidence as exhibit P2.
In
his defence, the appellant disputed neither the death of Emmanuel Solomoni
Ijengo nor its cause. He told the trial
High Court that on the material night he lacked sleep. Then he heard a knock on his bedroom door
which was instantly forced open to let in two people. He struggled with them, holding firmly one of
them. They fell down. Some people gathered including PW2. PW2 got hold of an iron bar with which she
accidentally hit the deceased as she was aiming at him. He accordingly denied causing the death of
Emmanuel S. Ijengo.
The
three assessors who assisted the learned judge in trying the case were not
unanimous. While two of them returned a
guilty verdict, the third one advised that the appellant be acquitted.
In
his judgment the learned judge rejected the appellant’s explanation on how the
fatal injury was inflicted on the deceased.
Having been impressed by PW2 as a truthful witness he exonerated her,
and with good reasons, from the liability the appellant had attempted to
transfer to her. We are satisfied that
he was entirely justified in doing so.
Having
rejected the appellant’s defence the learned trial judge, on the basis of the
evidence of PW2 and particularly PW3 (which was not disputed by the appellant)
and the dying declaration of the deceased to PW4, held that the prosecution had
proved the case beyond a reasonable doubt.
Hence the conviction.
Mr.
Kimomogoro argued that from the evidence of PW1 it was clear that the appellant
was an habitual drunkard. Proceeding on
this premise he impressed upon us that judging by his conduct as gathered from
the evidence of PW2 (making unusual noises) and PW3 (who found him standing
near the deceased holding the piece of spring), it could be reasonably inferred
that the appellant was drunk on the material night. Mr. Kimomogoro further informed us that the
appellant was no longer denying causing the death of the deceased.
With
this concession in mind, Mr. Kimomogoro pressed us to hold that it was an error
for the learned trial judge not to direct the assessors on the probability of
the appellant having been drunk on that night.
That the appellant was proved to have lied, did not absolve the trial
judge from ascertaining from the entire evidence that the appellant might have
had a legal defence which would have reduced the offence of murder to that of
manslaughter, he maintained. To support
his argument he referred us to the case of Tunutu
s/o Mnyasule v R [1980] TLR 204.
On
the second ground of appeal, Mr. Kimomogoro submitted that it was wrong for the
learned trial judge to impute ill motive in the particular circumstances of
this case. The appellant was in his own room shouting and had the deceased not
followed him there, he would not have met his death through that assault, he
maintained.
On
the basis of these arguments Mr. Kimomogoro urged us to hold that the appellant
caused the death of the deceased without malice aforethought. He accordingly prayed that the conviction for
murder be quashed and the death sentence be set aside, and substitute therefore
a conviction for manslaughter contrary to section 195 of the Penal Code.
Mr.
Juma, learned State Attorney, who represented the respondent Republic did not
resist the appeal. He outrightly conceded
that it was not proved that the appellant killed the deceased with malice
aforethought.
For
Mr. Juma, the element of malice aforethought in the killing of the deceased was
negatived by the appellant’s defence which led to an inescapable inference that
there was a fight or a struggle between
the deceased and the appellant prior to the infliction of the fatal
injury. If that was the case, he
submitted, the appellant ought to have been convicted of the lesser offence of
manslaughter. He cited the case of Moses s/o Chichi v R [1994] TLR 222 to bolster up his argument.
We
have carefully scrutinized the entire evidence on record with a judicial
mind. We cannot convince ourselves that
the appellant in this appeal is hoping against hope. Evidence that the appellant was an habitual
drunkard who used to get home late after his drinking sprees was let in by the
prosecution. It was also the prosecution
which led evidence to prove that on the material night, at late hours, the
appellant was conducting himself abnormally in his room. There was evidence that after the appellant
had hit the deceased he neither ran away nor made attempt to hide the assault
weapon. He remained there alone with the
weapon in his hands and his injured landlord until the prosecution witnesses
arrived at the scene. Since nobody
witnessed the appellant hit the deceased, if he had any ill motive he would
have disposed of the spring and returned to his room.
We
are aware that it is a settled principle of law that motive can be considered
when weighing the prosecution case [see, for instance, R v K. Tindikawe (1940)
7 EACA 67]. However, we are settled in
our minds that going by the reasons given by Mr. Kimomogoro, motive was not
appropriately invoked in this case. We
are increasingly of the view that the established facts are not consistent with
the existence of malice aforethought.
The appellant might have been drunk as usual. It does not add up that a person in full
control of his mental faculties would wake up in the dead of night and alone in
his room begin to make noises disturbing other peoples’ tranquility.
In
the case of R v D. H. Retief (1941) 8 EACA 71 it was held that as a general
proposition drunkenness is no excuse for a crime and that insanity whether
produced by drunkenness or otherwise is a defence to the crime charged. It was further held therein that if insanity
is not established, killing by a drunken person is either murder or
manslaughter. It will be murder if an
intent to cause death or grievous harm is established. But if it be found that by reason of
intoxication the accused was incapable of forming such intent the offence is
manslaughter. Retief’s case was cited and followed by this Court in Saidi Kipanga Pole v R. Criminal Appeal No. 28 of
1991. Having considered the entire
evidence and all the circumstances in this case we are persuaded to believe
that the appellant might have been somehow drunk and did not have the necessary
intent to murder or cause grievous harm.
This aspect of the case, then, ought to have been considered by the
learned trial judge and a direction to that effect given to the assessors.
Even
if the appellant was not drunk, he had another probable good defence to the
charge of murder, which was never considered by the learned trial judge. We agree with Mr. Juma on his submission that
from the evidence on record it is more than probable that a fight between the
deceased and the appellant preceded the infliction of the fatal blow. This is evident from the evidence of the
appellant. He categorically stated that
he was fighting with two invaders who had burst into his room. That the deceased went to the appellant’s
room and might have knocked on the door is obvious from the evidence of PW2.
PW2
testified, in an evasive manner in our view, that when they were awakened by
noises of the appellant she requested the deceased to escort her to the
toilet. Then she went on to say:-
“….. As we were going out
my husband urged Stanley Stanley
The
evidence of PW2 is silent on what prompted her to go and call PW3. Mere noises of the appellant could not have
been the cause. If she could not go to
the toilet alone unless accompanied by the deceased, what happened to give her
courage to go out and cover a distance of over 60 meters to enlist the help of
PW3? It was something more than the
appellant’s noises. The appellant and
the deceased were actually engaged in a fight.
In the course of the fight the appellant hit the deceased on the head
causing him to suffer injury on the head which at first sight appeared to be
superficial. That is why the deceased
was treated and discharged immediately.
If
the appellant inflicted the fatal blow in the course of a fight, as we honestly
believe, then as correctly argued by Mr. Juma, he ought to have been found
guilty of the offence of manslaughter.
See the decisions of this Court in Juma
G. Timbulu v R, Criminal Appeal
No. 27 of 1991 and Moses Chichi v R, [1994] TLR 222 on the issue. In the case of Juma Timbulu (supra) this Court said:
“Given the possibility that
the death occurred in the course of a fight, along with the fact that the
appellant was then in drink, we are a bit uncertain that the appellant’s
assault was accompanied by a murderous intent …..”
In Tunutu’s
case (supra) the Court was more unequivocal. It held that 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.
We
reaffirm what was stated by this Court in the above two cases. Had the learned trial judge directed the
assessors and himself on this fact he definitely would have held that the assault
on the deceased “was not accompanied by a murderous intent”, i.e. malice aforethought. We accordingly allow this appeal by
substituting the conviction for murder with one for manslaughter. The sentence of death is set aside. Considering the fact that the appellant has
been in custody for exactly nine years now, we impose a sentence of three (3)
years imprisonment from the date of conviction, i.e. from 30th June,
2005. It is so ordered.
DATED at ARUSHA this 8th day
of November, 2007.
J. A.
MROSO
JUSTICE OF APPEAL
S. N.
KAJI
JUSTICE OF APPEAL
E.M.K.
RUTAKANGWA
JUSTICE OF APPEAL
I certify that this
is a true copy of the original.
(I. P.
KITUSI)
DEPUTY REGISTRAR
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