Professional Documents
Culture Documents
Guilty of Manslaughter
Guilty of Manslaughter
Guilty of Manslaughter
AT DAR ES SALAAM
(Shangali, J.)
MROSO, J.A.:
The appellant who was convicted for murder and was sentenced to
death by the High Court has appealed to this Court against conviction and
sentence. At the hearing of the appeal he was represented by Mr. Nyange,
learned advocate, and the respondent Republic was represented by Ms
Eveta Mushi, learned State Attorney.
The appellant had filed six grounds of appeal but at the hearing Mr.
Nyange abandoned the first, the second and fifth grounds of appeal and so,
only grounds 3, 4 and 6 were argued.
In the third ground of appeal the complaint is that the learned trial
judge had disregarded the appellant’s defence of self-defence. As for the
fourth ground of appeal it is claimed that the trial High Court convicted the
appellant on the basis of a repudiated/retracted confession. Finally, in the
2
sixth ground the complaint is that the appellant was wrongly convicted
because the trial court had relied on irregular caution statement, confession
and proceedings.
Before considering the grounds of appeal it may be helpful to give a
summary of the case which led to the appellant being convicted for murder.
At one time the appellant worked for the deceased Paschal Chilangazi
Kasanga in Kilosa District. However, the deceased suspected him of theft
and dismissed him from employment. At the time of dismissal the
deceased owed him Shs. 6,000/=, being unpaid wages.
On 17th January, 1999 at about noon the appellant and the deceased
met at a “pombe” shop where the wife of the deceased (PW1) Paulina
Kasanga was selling “pombe” and was being assisted by their son PW2 –
Damas Pascal. The appellant ordered “pombe” and was served by the wife
of the deceased. But the deceased was against his wife selling “pombe” to
the appellant and protested openly. The appellant took exception to the
protestations of the deceased and a quarrel between the two ensued.
Eventually the appellant went to participate in a dance in the same locality
until night time. At about 10:00 pm the deceased and his family left to go
home.
During that same night the appellant visited the home of the
deceased. He got into the house in which the deceased together with his
wife (PW1) and his son (PW2) slept. He obtained a wooden pestle from
inside the house and assaulted the deceased with it once on the head. The
deceased succumbed from the assault and died on the same night and the
appellant was arrested also on the same night.
On 21st January, 1999 D/CPL Raymond – PW3 – took a caution
statement from the appellant. In the statement which was tendered in
evidence without objection at the trial the appellant is recorded to have
admitted causing the death of the deceased when he assaulted him with
the pestle. On the same day the appellant made an extra-judicial
statement to a justice of the peace – PW4 – Fundi Ramadhani Mangila who
was a Primary Court Magistrate. The statement was also tendered in
evidence without objection and in that statement the appellant is recorded
as saying he assaulted the deceased on the head with a pestle while the
deceased was sleeping in his house.
In his defence the appellant admitted meeting with the deceased at
the “pombe” shop and that at night he went to the home of the deceased
to demand for his money. The deceased took a pestle with which to hit
3
him but he grabbed it and hit the deceased with it in self-defence. The
deceased died as a result. We think it is now appropriate to discuss the
grounds of appeal.
Was the appellant acting in self-defence? The claim by the appellant
when giving evidence that when he dealt the fatal blow with a pestle on the
deceased he was acting in self-defence would appear to be a contradiction
to his caution statement in which he said that on the fateful night, when he
left the “pombe” shop, he went straight to the home of the deceased with a
view to assaulting him, to avenge himself for being cheated of his money,
chicken and a hoe by the deceased. His own words go as follows –
“Sikwenda moja kwa moja (nyumbani) bali nilipitia kwa marehemu Pascal
nikiwa na lengo la kumpiga kwani nilikuwa na hasira ya kudhulumiwa pesa
zangu, kuku pamoja na jembe langu.”
And then he is recorded to have said –
Baada ya kuingia ndani na kumkuta amelala nilichukua mwichi (sic) wa
kutwangia uliokuwa sebuleni na kumpiga nao kichwani. Hakuweza kupiga
kelele.”
In the extra-judicial statement, he is recorded as having said –
“Usiku nilipofika nyumbani kwake (marehemu) na kumpiga marehemu na
mchi kichwani marehemu akiwa amelala ndani kwake …..”
It is plain that if the quoted words are believed, the appellant’s defence at
the trial was an afterthought.
Mr. Nyange was fully aware of the devastating effect of the quoted
words and spiritedly advanced a two pronged approach with regard to them
in dealing with grounds 3 and 4 together. First he criticized the advocate
who appeared for the appellant at the trial for not objecting to the
admission into evidence of the caution statement and the extra-judicial
statement. In his view, it should have been clear to the defence counsel
that as soon as the appellant made a plea of not guilty to the charge, he
had disputed all the prosecution evidence in anticipation. With due respect
to Mr. Nyange, we do not accept that argument as correct in law. When an
accused person is called upon to plead to a charge which is read over to
him, he merely pleads to the truthfulness or otherwise of the charge. He
does not thereby anticipate the evidence to be adduced later and accept it
or dispute it in advance. This is also the view of the learned State Attorney.
It is conceivable, of course, that an accused person who pleads not guilty
to a charge may, subsequently after hearing all or part of the prosecution
evidence against him, change heart and accept the charge as true.
4
Under section 200 of the Penal Code “an intention to cause death of, or to
do grievous harm to any person …..” is an essential element in a charge of
murder.
The learned trial judge in agreeing with Mr. Mapinduzi, the learned
State Attorney, that appellant’s state of intoxication should be disregarded
said –
“I agree with Mr. Mapinduzi that ….. the accused was not intoxicated
sufficient (sic) to blow off the faculty of reasoning.”
It may be true that the appellant’s ability to reason might not have been
completely wiped out by intoxication but it is our considered opinion that
for a person who was so drunk, he danced like a mad man, his reasoning
may have been impaired so that he could not form the specific intention
either to cause the death of the deceased or to cause him grievous bodily
harm. One may be reading too much into his threat earlier in the day that
he would teach the deceased a lesson. Those words did not necessarily
mean that he would kill the deceased or even cause him grievous harm.
Furthermore, his conduct of going to the home of the deceased during the
night may have been irresponsible but, again, for a drunken man, it was not
surprising and one must not infer that he necessarily went there to kill or to
cause the deceased grievous harm.
The learned judge in her judgment used words which were not
justified by the evidence to infer mens rea from the conduct of the
appellant. She said, for example, that the appellant used
“a huge pounding pestle” and
“mercilessly (sic) aimed on the vulnerable part of the body, to wit the head
of the deceased.”
Now, there was no evidence that the pestle was “huge” and, in the
absence of evidence that there was sufficient light in the room which
enabled the appellant to see the head of the deceased and “aim” at it, that
language was emotive and prejudicial against the appellant. It does not
give the assurance that the learned judge was assessing the evidence
dispassionately.
Having reached the decision that the appellant might not have been in
a condition to form a specific intention to cause death or grievous harm on
the appellant, it must follow that the charge of murder was not proved to
the required standard and the appellant should have been given the benefit
of the doubt. We therefore quash the conviction for murder and set aside
the sentence of death which was meted on him. We, however, find him
8
J. A. MROSO
JUSTICE OF APPEAL
J. H. MSOFFE
JUSTICE OF APPEAL
S. N. KAJI
JUSTICE OF APPEAL
(F. L. K. WAMBALI)
SENIOR DEPUTY REGISTRAR