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IN THE HIGH COURT OF TANZANIA AT NJOMBE ORIGINAL JURISDICTION (IRINGA DISTRICT REGISTRY) CRIMINAL SESSION CASE NO. 57 OF 2016 THE REPUBLIC VERSUS 1. CRISPIN S/O MLUWILU 2. GODFREY S/O MTITU JUDGMENT KENTE. J The accused persons namely Crispin Mluwili and Godfrey Mtitu are jointly and together charged with the murder of Hilimary Kayombo contrary to sections 196 and 197 of the Penal Code. The particulars given in support of this charge are to the effect that on the 7th day of March 2015, the accused's murdered the deceased. The murder incident is said to have occurred at Lugalawa Village in Ludewa District, Njombe Region. Needless to say, the accused persons have denied these charges in no ambiguous terms. The deceased who until the day of his violent death was married to two wives, lived at the village of Lugalawa in Ludewa District, Njombe Region. On the fateful in the evening, he was informed by his senior wife one Leticia Mwinuka that one of their children was sick. He then went to the senior matrimonial home to see his sick child. On the way back but immediately before he reached home, he met the accused persons who were driving two heads of cattle from Ndindi Village to Mlangali. As the undisputed evidence goes, the deceased suspected the accuseds to have stolen the said cattle. To that end, he asked them to show him a written permit authorizing them to move the said cattle from one place to another. As it turned out, the demands by the deceased which could not be met resulting into a heated argument with the first accused which escalated into a full-scale scuffle between the first accused and deceased. In the course of their arguments and confrontation, the accused's second wife one Osmunda Mhagama (PW1) whose house was not far from the crime scene, heard some unusual movements and talks as she looked through the window and saw two cows. Suspecting that the said cows would probably go into her corn field and consume her corn plants, she got out and saw someone running and driving away the said cattle. PW1 told the court that, she went home and took a solar powered torch with a view to chasing away the remaining one cow. As she moved forward looking for the said cow, she heard someone emitting some groaning sounds. She moved towards that place only to find her husband laying facedown. He was then unconscious and bleeding profusely. In the confusion that ensued she rushed to the home of her husband's relative one Kanisius Tweve to seek assistance. Sometimes thereafter they phoned the deceased's senior wife who sent a motorcyclist to pick the deceased and rush him to Hospital. The deceased was taken to St. John Hospital - Lugalawa where he was pronounced dead on the following day. According to the post mortem report (exhibit P1A) his death was due to severe blood loss and cerebral injury. The post mortem report also indicated that the deceased's body had one oozing wound on the right eye, a depressed skull and hematoma on the left shoulder. Both sides of the nostrils were bleeding. Having considered the above stated expert evidence of the pathologist who carried out the postmortem examination, I am satisfied that the deceased died of acute haemorrhage as stated in the said report and that he met his death in a violent way. Essentially, the case for the prosecution is that the accused persons were in a joint mission of cattle-theft and that, jointly and together, they assaulted the deceased inflicting on him serious injuries which led to his death on the following day. Moreover, it seems to be the prosecutions' stance that the assault was still in the perpetration of the cattle theft. The case for the prosecution appears to rest mainly if not wholly on the accused's confessional statements which they respectively made to Detective Corporal Mnata (PW3) and Anzigary Oddo Mlowe (PW4) who were respectively a Police Officer and Ward Executive Officer based at Lugalawa. PW3 testified that he interviewed and recorded the accuseds' caution statement in which, according to him, they confessed to have been involved in the deceased's murder. For his part PW4's evidence was briefly to the effect that he recorded the first accused's extra-judicial statement in which the first accused further implicated himself along with his co­ accused. Happily, while the second accused denied any involvement in the serious assault resulting into the death of the deceased, the first accused readily conceded to have attacked the deceased in the assault incident occasioning his death. He however told the court that, he did so in self- defence and not in the furtherance of the cattle theft. He told the court that the deceased had sought to attack him using a club after he had irrationally accused them of cattle theft. He said it is the same club which he snatched from him and hit him with. He thus urged this court to find that the killing was not intentional as he was defending himself from the deceased who had become unreasonably confrontational. Before this court, the prosecution case was advocated for by Ms. Mpagama and Mr. Nyangero learned State Attorneys while the accuseds were represented by Ms. Angumbwike learned advocate. It is also pertinent at this juncture to state that, upon summing up to the two ladies and one gentleman assessors who sat with me, they returned a verdict of not guilty against the second accused and a verdict of guilty but for a lesser offence of manslaughter against the first accused. For my part and without hesitation, I entirely agree with them as I will hereinafter demonstrate. As it will be noted in the first place, there was no positive evidence from the prosecution side showing that indeed the accused had stolen the said two heads of cattle. Not only that but also there were no formal charge that was leveled against the accused for cattle theft. What is more is that even the owner of the allegedly stolen cattle was not called to testify as witness in the present case. This implies that the prosecution having led no evidence on cattle theft would probably want to establish the truth of cattle-theft by the accused persons not by leading positive evidence but by asking this court to make a finding to that effect relying on a mere presumption. In the absence of even a few bits of positive evidence proving beyond doubt that the accused had stolen the said cattle, it cannot be held that their confrontation with the deceased was in the furtherance of the offence of cattle-theft and therefore, the explanation by the first accused that he had bought the said cattle from one Aloyce Mgimba remains materially uncontroverted. The next question that falls for consideration is whether or not the first accused had intended to kill the deceased or cause him grievous harm. Section 200 (c) of the Penal Code (Cap 16 RE 2019) which is relevant to the circumstances of the instant case provides thus:- 200 "Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances. (a ) ........ NA (b ) ........ NA (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three y e a rs ." It follows therefore that in order to bring the first accused under the purview of the above-quoted provisions of the law, the prosecution was bound to prove the following, beyond reasonable doubt:- i). That at the time which is material to the occurrence of this incident, the first accused had intended to commit or was in the process of committing an offence. ii).That the said offence is punishable with a penalty which is graver than imprisonment for three years. Now, as can be seen from the evidence on record and as stated before, there was no positive evidence showing that indeed the first accused or both of the accused persons had stolen cattle before they came into encounter with the deceased. It follows therefore that, in the absence of such evidence, the court is left with the first accused's version that he had bought the said cattle and therefore the accusations and confrontation by the deceased were, with due respect, without any basis. Another shortcoming in the prosecution case which appears to negate malice aforethought in this case, assuming for the sake of argument that in attacking the deceased, the first accused had at least intended to cause him grievous bodily harm, is the fact that this court is unable to judge by the size of the club which the first accused had used to hit the deceased as the same was not exhibited in court. I may also add here that, as the uncontroverted evidence goes, it is the deceased who had wanted in the first place, to attack the first accused using the same club accusing him of cattle theft. While the seemingly excessive force used by the first accused in retaliation may form the basis for this court to infer malice, the evidence on record which was not materially contradicted suggests that the first accused's retaliation was, in the circumstances, relatively proportional to the force deployed by the deceased. For the above-stated reasons, I am in agreement with the two ladies and one gentleman assessors that in attacking the deceased, the first accused might have intended to defend himself rather than kill him.

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