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R. v. Stephano Alois, Crim. Sass. 24-LINDI-72, 18/5/72.

 


R. v. Stephano Alois, Crim. Sass. 24-LINDI-72, 18/5/72.

            ONYIUKE, J. – The accused, Stephano Alois, stands charged with the murder of Mohamed s/o Rashidi alias Kionjo.  The case of the prosecution was that the accused fatally stabbed the deceased with a dagger on Sunday the 17th October, 1971 in the premises of on Mohamed Chorogo …… There was a mass circumcision of the boys in the village and many people gathered at the house of Mohamed Chorogo to celebrate the occasion. As is usual on such occasions there was plenty of free drink and people helped themselves liberally to the pombe. Among the guests were the deceased and the accused …… The revelry affected many people including such responsible persons as the Rural Medical Aid of Nanguru Joseph Ndunguru (P.W. 1) and a teacher by the name of Blasius Makota who in a sense set in motion a chain of events that culminated in the tragedy. These two gentlemen embarked on a childish prank, snatching the bowl of pombe one from the other, which started as a joke but which was fast developing into a quarrel until P.W. 4 intervened to stop it. This incident apparently attracted the attention of the deceased and he moved forward to inquire into the cause of the quarrel. By this time the accused was leaning on the outside of the wall of the house. He confronted the deceased and asked him what was his concern with the quarrel. The deceased replied that where people quarreled it was not out of place to ask the cause. The accused became aggressive and abused the deceased and threatened to beat him up. The deceased moved nearer to him and asked him what was the reason for his wanting to beat him. (The deceased). Thereupon the accused drew his dagger from its scabbard and fatally stabbed the deceased. The dagger was tendered in evidence and was a vicious looking piece of sharp and pointed metal encased in a scabbard that (P.W. 2.) this lethal weapon must have penetrated 4 inches into the deceased’s body. It went through the ribs and ruptured part of the left lung. The deceased died of shock and severe hemorrhage as a result of this injury on the 4th day of the incident.  

            The accused in his unsworn statement denied that the dagger belonged to him or that he had anything to do with it and further stated that he was so drunk on that Sunday afternoon that he had no recollection of what happened and was unaware that he stabbed anyone. It was only when he became sober the following day that he found himself in custody in the office of the ward Executive Officer and on inquiry was informed he was being held for stabbing the deceased.

            I have no hesitation whatsoever in accepting the evidence of the eye-witnesses to this incident and I hold as a fact that the dagger belonged to the accused and that he used that dagger to stab the deceased and that the deceased died from that stab wound. The only possible defence in this case is intoxication…… Although the accused did not give evidence on oath it was clear that he drank a lot of pombe at this ceremony and that he was drunk. The witnesses for the prosecution said almost as much. The evidence showed that the accused had no previous ill will against the deceased. There was nothing in the deceased’s conduct to provoke him that day. There was no motive for the killing. Motive is of course not an ingredient of the offence of murder. Its presence however tends to strengthen the prosecution case just as its absence tends to weaken it. Why then did the accused behave in such reckless and senseless manner. I am satisfied that he took more pombe than he could cope with and that he acted in such reckless and wanton manner because he was acting under the influence of intoxication and that he did not intend to kill or cause grievous bodily harm to the deceased ……

            I feel I must dispose of an argument which was advanced by the counsel for the defence in this case. It has been suggested in this case that if the deceased had been rushed to Lindi hospital his life might have been saved. It is unfortunate that the Rural Medical Aid of Nangaru dispensary, Joseph Ndunguru, who found it difficult to regard himself other than as a doctor and behaved as such was guilty of an error of judgment, to say the least, in not sending the case to Lindi Government hospital for treatment and in not allowing the relatives of the deceased who pressed for it to send the case to that hospital. As it turned our the nature of the injury was such that that the Lindi Government hospital did not appear to have had the equipment for lung operation which the case required ….Be that as it may, the legal position is clear, the fact that the life of the deceased might have been saved if he had received good medical attention cannot affect the legal responsibility of the accused for the death of the deceased. It was the wound he inflicted on the deceased that caused his death. He cannot shift the responsibility to another person whose connection with the deceased was that he endeavored to save his life which was put in peril by the accused. That the deceased’s life could have been saved if the case were handled by a more competent person cannot be a defence in law or snap the chain of causation. The death of the deceased remains the responsibility of the accused.

            In the final result I will find the accused not guilty of murder but guilty of manslaughter and I hereby convict him accordingly.” [Accused sentenced to 14 years’ imprisonment].

            Ed. Note: The court’s ruling on causation in this case appears to illustrate the application of Section 203, Penal Code, where “causing death” is defined. It may usefully be compared to R. v. Atupelye d/o Lividiko, (1`967) H.C.D. n. 389.

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