REPUBLIC v CHEKA ANTHONY 1985 TLR 75 (HC)

REPUBLIC v CHEKA ANTHONY 1985 TLR 75 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

18 May 1984

CRIMINAL CASE 32 OF 1982 B

Flynote

Criminal Law - Murder - Deceased killed in the course of a fight - Not easy to

establish malice afore thought - Manslaughter.

-Headnote

The accused killed the deceased in the course of a fight. No conclusive evidence

could be established that the accused had formed the intent to kill the deceased

because things happened fast. C

Held: When death occurs as a result of a fight, unless there are exceptional

circumstances, persons who cause death are guilty of manslaughter and not murder.

D

Case Information

Guilty of manslaughter

Cases referred to:

1. R v John Wimaana [1968] H.C.D. n. 49 E

Kyaruzi, for the prosecution.

C. Rutagatina, for the defence.

Judgment

Bahati, J.: Cheka Anthony the accused in this case is charged with the offence of

murder F contrary to section 196 of the Penal Code in that on or about 14th August,

1979 at Kongowe village he murdered one Rashid Salum.

The case for the Prosecution is that Rashid Salum the deceased in this case was living

at Kongowe with Maimuna G Salahe, PW.4 and Juma Rashidi, PW.5 The deceased

was not married to Maimuna but he lived with her as man and wife. Then on the

fateful day of 14th August, 1979 the accused who also lived in Kongowe village and

who once had Maimuna as his woman friend came to the house of Maimuna while

the deceased and Juma his H son had gone to the shops to buy a lamp. It was at

night. When the deceased came back he found the accused talking to Maimuna.

Then a fight ensued and the accused beat and kicked the deceased and eventually he

beat the deceased on the head using a stick (gongo). Then the deceased was left lying

in a ditch dead and the I accused went to his home which was just next to where the

deceased lived with Maimuna and Juma.

1985 TLR p76

BAHATI J

Juma Rashid ran to Albert Kivamba PW.2 who was known to Juma. Juma told Albert

that his father was dead A and that he had been killed by Cheka. Albert went to his

neighbour one Francis Magai with Juma to tell him what Juma had reported. Then

the three of them went to Selemani Omari the cell leader, PW.1. Eventually they B

all came to the house of the deceased. They knocked at the door of the house of the

deceased to wake up Maimuna. When Maimuna opened the door, they asked her

where her husband was. She replied that she had left him outside sleeping. Maimuna

then came out with a lamp and she saw the deceased lying in a ditch. C Maimuna

called out, "Rashid, get up, let us go to sleep inside." But Rashid the deceased was

dead and did not wake up. From there the group went to the house of Cheka and

woke him up. Cheka was very nervous and they arrested him. They took both Cheka

and Maimuna to Chang'ombe Police Station. The Police at D Chang'ombe then

visited the scene of crime. Police Superintendent Alfred Gewe, PW.3 went to the

scene of crime with the people who had taken Cheka to the Police Station. At the

scene of crime Maimuna told Superintendent Gewe that Cheka had killed the

deceased. Superintendent Gewe found the body of the deceased lying in a ditch near

the house of the deceased. Near the body was a piece of wood which was used E to

kill the deceased (exhibit P.1). Also Superintendent Gewe drew a sketch plan of the

area (exhibit P.2). Superintendent Gewe was told by Maimuna that the deceased used

to be her husband. After she left him she got another man, the accused.

Maimuna's version of the case was that she lived with the deceased in Kongowe for 3

years and then the F deceased left her. By then Maimuna had built her own house

in the plot of the deceased. The deceased rented a house when he left Maimuna and

he was living there. On 14th August, 1979 the deceased came to Maimuna's house

and said "hodi". Maimuna remained silent as she was with Cheka Anthony in the

house. Cheka Antony G opened the door and came out and fought with the

deceased. Then Maimuna ran out of the house and went to hide in the bush.

Eventually Maimuna came back and slept in her house. Soon afterwards a cell leader

and many people came there and asked her where her husband the deceased was. She

told them that she did not know as he had his own home. Then she came out and

they told her that her husband was dead. She was then H taken to the Police

station.

The report of the doctor on the post mortem examination of the deceased was

tendered as an exhibit in terms of section 275 of the Criminal Procedure Code

because the doctor could not be found. The post mortem examination report (exhibit

P.3) shows that cause of death was due to head injury - contusion. The summary of

the report reads as follows: I

1985 TLR p77

BAHATI J

cut wound on occipital region 3 x 5 x 7 cm. extending have big mydrocelc -

Big subdural haematoma found - brain A laceration at base of skull.

In defence the accused gave a sworn statement. He said that he used to live at

Kongowe before he was B arrested. On 14th August, 1979 he was at Kongowe.

Maimuna was his girl friend for almost a year and then accused left her and she got

the deceased as her man. On 14th August, 1979 Maimuna called the accused to her

house. Accused went there and Maimuna told him that she wanted him again. Then

the deceased came C there and there was a fight. The deceased strangled the

accused and the accused struggled to set himself free and in the process he pushed the

deceased who fell down. The accused left for his home running. People came to

arrest him at night.

In cross-examination the accused said that the deceased could not have fallen in the

ditch when he pushed him as D the ditch was at the back of the house. He also said

that the deceased died due to a beating and that he beat him. But the accused went

on to claim again that he simply pushed him. At another stage in cross-examination

the accused seemed to admit that he did the killing jointly with Maimuna. He then

changed his story to say that he E simply pushed the deceased.

After summing up to the assessors, both assessors found the accused guilty of murder.

The assessors found PW.5 to be possessed of sufficient intelligence and to be a witness

of truth despite his tender years. The F assessors found that the deceased must have

been beaten by the accused and possibly by Maimuna also jointly with the accused.

This is a tragic death no doubt. The evidence clearly shows that the accused beat the

deceased till he died. The post mortem examination report findings are more

consistent with the deceased being beaten than just being G pushed. There is clear

evidence from PW.5 Juma Rashid who witnessed the fight. Juma narrated how he

saw his father being beaten and kicked by the accused and eventually the accused hit

him with a piece of wood. Juma does not mention Maimuna to have been involved in

the fight. I, like the gentleman assessors, do find Juma H to be a witness of truth.

Although Juma was unable to understand the meaning of an oath he certainly knew

the duty to tell the truth. I am satisfied that he is possessed of sufficient intelligence

to know the duty to tell the truth and that what he said was the truth. The claim by

the accused that Juma was asleep cannot be true because it is Juma who reported the

death of his father to the cell leader and other people. If Juma had been asleep I

during

1985 TLR p78

BAHATI J

the fight he could not have reported anything. As I have said above, the post mortem

examination report A corroborates to a great extent what Juma said in court. The

accused himself has admitted having a scuffle with deceased. He however puts it that

he simply pushed the deceased away. But there is the evidence of Juma that B the

accused actually assaulted the deceased till he died and there is the post mortem

examination report showing that there was heavy beating of the deceased rather than

a mere simple fall. In view of this I find that the accused fought with the deceased

and beat the deceased till he died.

We cannot vouch for the identity of the stick or piece of wood which was used to

beat the deceased. There is C no way in which it can be shown that exhibit P.1 was

the stick or piece of wood which was used to kill the deceased. But this is not a

necessary factor here, for what is important here is that the deceased was severely D

assaulted on his head leading to head injury and contusion, brain laceration at the

base of the skull and a big subdural haematoma. These injuries could not have been

self inflicted nor could they be inflicted by mere hands. The accused must have used

some blunt weapon like a stick to cause these injuries and I so find. Whether exhibit

p.1 was used or not is therefore not important. E

Having found that the accused assaulted the deceased causing his death, what are the

possible defences for the accused in this case? The only defence which accused has

suggested in this case against his act is that of self F defence. I will therefore

examine whether self defence is available here. It will be recalled that the accused

himself admitted that the woman Maimuna was living with the deceased to the

accused's knowledge, after leaving the accused. The evidence of Juma also shows that

Maimuna was living with the deceased when this incident happened. Although

Maimuna has claimed otherwise, I am satisfied that the position is as presented by the

G accused and Juma. Now the accused went to talk to a woman of another person at

night in the absence of the person who was living with the woman, namely, the

deceased. When he was surprised he fought the deceased until he killed him. The

accused did not attempt even to run away until he had finished off the deceased. The

H accused certainly had an opportunity to run away and in any case he was at fault

to come to the home of the deceased to talk with deceased's woman at night. The

fight took place outside the house and the accused had every opportunity to run away

to avoid further confrontation with the deceased. I am satisfied that the defence of I

self defence in terms of section 18 to 18 C of Penal Code is not available to the

accused here. What other possible defence is there for the accused? Here was a fight.

Everything done was done in the course of a struggle where there was hardly any

time for the

1985 TLr p79

accused to form the intent to kill. I would agree with the defence counsel that the

case of R. v John Wimaana A [1968] H.C.D. 49 is applicable here. In Wimaana's case

there was a fight and in the course of the fight the deceased was killed. Mustafa, J, as

he then was said thus: "when death occurs as a result of a fight as in this B case,

unless there are very exceptional circumstances, persons who cause death are guilty of

manslaughter and not murder. In this case the offence disclosed is on the

borderline... and I will give the benefit of the doubt to the accused persons and find

them guilty of Manslaughter."

To summarize the position here, I have found the accused as the person who fought

and killed the deceased C possibly with a stick. I have also considered the danger of

acting on the evidence of a child of tender years and I have warned myself of the

danger of doing so but I am satisfied the child is telling the truth. Moreover the

evidence of the child (PW.5) had been corroborated to an extent by that of PW.4, the

post mortem examination D report and even the sworn statement of the accused

himself. The death occurred in the course of a fight and as such it is not easy to find

malice aforethought as was held in Wimaana's case cited above. I therefore differ

from the views of assessors who find accused guilty of murder. Consequently I find

accused guilty of manslaughter contrary to section 195 of the Penal Code and I

convict him accordingly. E

Guilty of manslaughter

1985 TLR p79

G