Saturday, February 23, 2013
R. v. MUSSA S/O GUNGACHUMA PANGA MASASI (1968) HCD 508
Crim. Sass. 159-D-68, 21/10/68, Georges C. J.
Accused was charged with murder and he pleaded guilty
to manslaughter, which plea was accepted. Returning from a pombe party one
night, the accused met on the path his elder brother, with whom he was on bad
terms. The brother apparently abused him, using the word “nyoka”, and attacked
him with an axe. The accused snatched the axe away from him, and following him,
beat him with a billhook. The brother died from the blows.
Held:
Accused was convicted on his own plea and sentenced to 6 years imprisonment.
The court stated before sentencing; “I do not think in this case you were
defending yourself at all. If a man throws an axe at you and runs away, then
you can let him go, because he is running away, and he no longer has an axe, so
he is incapable of any longer launching an attack on you. And I find it
difficult to see how one can hope to hit another human being with a billhook
and not run the risk of seriously injuring him or killing him. It is a deadly
instrument … The only reason why I can accept a plea of guilty to manslaughter
in this case is the fact that in throwing an axe at you and lying in wait for you,
he was acting in a provocative manner, especially in circumstances where you
must have had a considerable amount of drink.”
R.v. JAPHET FUNGAMEZA (1968) HCD 462
Crim. Sass. 163 BUKOBA-67, 3/10/68, Bramble J.
Accused and three other Field Force Unit members were
on duty at Murongo Ferry, each armed with a rifle. On the night in question
they all talked around the camp-fire before returning to their tent. The
accused testified that on of them, Elias, had brought the pombe, “Moshi”, to
drink. A series of quarrels broke out between accused and Elias. In the first
of these, accused called Elias a “Muha”, and Elias replied that accused “had a
cut finger,” after which there was some mutual pushing, broken
Held:
Accused is guilty of murder. The pushing and the swear-words used during the
quarrel and the snatching of the lamp were not sufficient provocation to “bring
it within the definition so as to reduce the charge of murder to manslaughter”.
If any provocation existed “It was not such as to warrant the accused using a
lethal weapon like a gun nor was it such as to arouse the passion of an
ordinary man. The accused himself being a policeman would be expected to act
with more discretion than any citizen can be expected.
R. v. MAHUMUDU S/O KIBWANA (1968) HCD 186
, Crim. Sass. 230-D-67, 15/2/68, Hamlyn J.
Accused ’s only possible defence to a murder charge
was that shortly before the killing he heard deceased say to someone else that
he (deceased) had signed a paper
authorizing the police to beat accused.
Held:
“As a general rule … spoken words alone cannot be the basis for provocation…
but variations of (the rule) may arise by virtue of the application of section
200 of the Penal Code in special instances among particular communities. Where
spoken words are accepted in customary view as constituting provocation, the
words must be of so devastating a character, of such over-bearing force, as to
shatter the self-control of a normal person of that community.” Accused was
convicted of murder and sentenced to suffer death by hanging.
R. v. HORRY (1952) N.Z.L.R. 111
Death-Instances under which it may be said to have be proven by circumstantial evidence, notwithstanding the fact that neither the body nor any trace thereof has ever been found, and that accused has not confessed to any wrongdoing.
*Cited in R. v. Amani Zephania Kimweri (1968) HCD 50
R. v. ONUFREJCZYK [1955] ALL E. R. 247
Death-Circumstances under which it may be said to have be proven by circumstantial evidence, notwithstanding the fact that
neither the body nor any trace thereof has ever been found, and that accused
has not confessed to any wrongdoing.
*Cited in R. v. Amani Zephania Kimweri (1968) HCD 50
*Cited in R. v. Amani Zephania Kimweri (1968) HCD 50
R. v. AMANI ZEPHANIA KIMWERI (1968) HCD 50
Crim. Sass. 7-A-67, 18/10/67 Platt J.
Accused was charged with murder. The alleged victim
had been unaccounted for, and to the best of anybody’s knowledge, absent from
this world for the last three years. She was seen with accused, her husband
from whom she was separated, shortly before her disappearance. There was very
strong circumstantial evidence that accused had murdered his wife, but the body
had never been found, and he denied killing her.
Held:
(1) The fact of death is provable by circumstantial evidence, notwithstanding
the fact that neither the body nor any trace thereof has ever been found, and
that accused has not confessed to any wrongdoing. [Citing R. v. Onufrejczyk
(1955) All E. R. 247; R. v. Horry (1952) N.Z.L.R. 111.] The circumstantial evidence
must be “cogent and compelling.”
(2) Despite the contrary view of one assessor,
accused was convicted of murder and sentenced to death by hanging.
R. v. RUKONDO S/O KAMANO (1968) HCD 48
Crim. Sass. 165-M-67, 17/11/67, Mustafa J
Accused was charged with attempted murder. [P.C. s.
211(1).] There was evidence that accused and several others shot a shower of
arrows at complainant and his companions in an attempt to recover meat which
they believed complainant and his companions had taken from them. They shot
from about 40 paces away. One of the arrows hit complainant in the buttock,
causing a wound tow inches deep.
Held:
(1) It was not satisfactorily proved that the arrow which hit complainant was
shot by accused.
(2)In view of the distance
from which the arrows were shot and the other circumstances of the case,
accused was guilty of the offence of an act intended to cause grievous harm [
P.C. s. 222(2)] rather than attempted murder.
Accused convicted of the former
offence.
R. v. SANGI MANYENYI (1968) HCD 47
Crim. Sass. 59-M-67, 23/11/67, Mustafa J.
Complainant was shot with an arrow, whereupon he
turned around and saw only the two accused. No evidence was adduced to show
which one had shot the arrow. Just before this, the accused had attached
complainant and taken the bow and arrow with which he was shot.
Held:
(1) In the absence of evidence as to which accused fired the arrow, they both
can be convicted of attempted murder only if the prosecution could show a
common intention.
(2) The prosecution sought to find the requisite common
intention intent in the joint attack on the complainant moments before he was
wounded. When the arrow was shot, the assault on complainant had already been
terminated, and there was no evidence adduced to show that accused were still
acting in concert.[Citing Dracaku Afia and Another v. R., (1963) E. A. 363.]
(3) As no prima facie case was made out against accused they were acquitted.
R. v. KAKENGELE MSAGIKWA (1968) HCD 43
Crim. Sass. 91-M-67, 9/10/67, Cross J.
Accused and two others were charged with murder.
There was evidence that a fight started between the other two accused and
deceased in a house. Accused then entered the house without a weapon and told
the others to leave. A witness testified that accused hit deceased twice and
said he would not leave without beating deceased. However, on cross-examination
he admitted that he had seen only hands and could not be sure the blows were
inflicted by accused. At the close of the prosecution case, accused moved that
he not be called upon to make a defence since the prosecution had not made out
a prima facie case. The prosecution argued that a prima facie case had at least
been made that accused had assaulted deceased.
Held:
(1) A prima facie case at least must be one on which a reasonable tribunal
could convict if no evidence is offered by the defence. [Citing Ramanlal Ttrambaklal Batt v. R., (1957) E.A.C.A
332, 335.] The onus is on the prosecution to prove its case beyond a reasonable
doubt; and a prima facie case is not made out if it is one which on full
consideration might possibly be thought sufficient to sustain a conviction.
Still less is a prima facie case established by part of the testimony of a
witness considered in isolation and without reference to other parts of the
witness’s testimony.
(2) The evidence of the prosecution did not establish a
prima facie case. Accused acquitted.
OKETHI OKALE & OTHERS v. R. [1965] E.A. 555
HELD: It is a rule of practice that there must be
corroboration of a dying declaration.
*Cited in R. v. Rutema Nzungu (1967) HCD 445
*Cited in R. v. Rutema Nzungu (1967) HCD 445
LEONARD ANISETH v. R. (1963) E.A. 206
Alibi-no onus on the accused to prove an
alibi. All he need do is raise a reasonable doubt.
*Cited in R. v. Rutema Nzungu (1967) HCD 445
*Cited in R. v. Rutema Nzungu (1967) HCD 445
R. v. RUTEMA NZUNGU (1967) HCD 445
Crim. Sass. 87-M-67, 1/11/67, Mustafa J
Accused was charged with murder. The deceased was
stabbed about midnight in an unlit room. Another person who was sleeping in the
room and deceased’s mother, who lived nearby, both testified that they were
awakened by the cry of the deceased that “It is Rutema Nzungu who has killed
me.” Both witnesses also testified that they recognized accused as he was
running away. Accused presented witnesses who supported his alibi, that he was
in a drunken sleep in his own house on the night of the killing.
Held:
(1) It is a rule of practice that there must be corroboration of a dying
declaration. [Citing Okethi Okale & others v. R., (1965) E.A. 555, 558.] In
the present case it seems unlikely that either the deceased or the other
witnesses had adequate opportunity to recognize accused and there is no
adequate corroboration.
(3) There is no onus on the accused to prove an alibi.
All he need do is raise a reasonable doubt. [Citing Leonard Aniseth v. R.,
(1963) E.A. 206]. Here accused has raised more than a reasonable doubt. Accused
acquitted.
R. v. MULENGELA S/O BAHOMBE (1967) HCD 391
Crim. Sass. 95-Bukoba-67, Mustafa J.
Complainant was abducted in Tanzania and taken to Burundi Burundi
Ruled:
The case is cognizable under Tanzanian law because the alleged attempted murder
was part of a transaction which began in Tanzania
R. v. USUMAU S/O MPANGANI (1967) HCD 390
Crim. Sass. 124-M-67, 18/10/67, Cross J.
Accused was charged with murder. There was evidence
that accused and many others responded to an alarm and found that deceased had
assaulted a woman and possibly also harmed her child. The crowd followed
deceased to another house where accused and others beat him. Accused was armed
with a large stick. It was not clear who had inflicted the fatal injury.
Held:
(1) Since death or grievous bodily harm was a probable consequence of the
attack upon deceased and the attackers acted with a common purpose, accused is
liable for the death even though he may not himself have struck the fatal blow.
(2) Although the defence of provocation was not raised by accused, the burden
was on the prosecution to prove malice aforethought and negative a defence of
provocation.
(3) It is reasonable to assume that the crowd included relatives
of the woman assaulted. If so, not only is accused liable for the probable
consequences of the common intention which he shared but he would also be
entitled to the benefit of any diminution of responsibility of the others provided
by law. Thus, accused has sustained his onus of raising a reasonable doubt as
to the existence of provocation. Accused convicted of manslaughter.
R. v. ATUPELYE D/O LWIDIKO (1967) HCD 389
Crim. Sass. 24-D-67, 17/10/67
Georges C. J.
Accused was charged with murder. She claimed the
death was accidental, but her story was contradicted by a nine-year old child,
the only witness to the events in question. After the victim was stabbed she
was taken to a hospital where she died later. No medical evidence was presented
at the trial.
Held:
(1) The court believed the nine – year-old child and disbelieved the accused as
to what happened, and rejected accused ‘s claim that the wound was inflicted
accidentally.
(2) In view of the absence of medical evidence as to the treatment
received at the hospital, the cause of death cannot be attributed to the stab
wound beyond a reasonable doubt be attributed to the stab wound beyond a
reasonable doubt. The court refused to presume in the absence of contrary evidence
“…… that the treatment must have been what it ought to have been, that is,
treatment in good faith and according to the common knowledge current at the
time. Accused was convicted of unlawfully doing grievous harm contrary to Penal
Code, sec. 225
R. v. CHRISTOPHER S/O NGAMBILO (1967) HCD 388
Crim. Sass. 150-Iringa-67, 7/10/67, Georges C. J.
Accused was charged with attempted murder of one
William Mhuma. There was evidence that accused came to William’s house and
while aiming a gun in the general direction of William’s knee, he said, “Today
you will die.” He then shot William in the knee.
Held:
Where the charge is murder, the intention to kill or to do grievous bodily harm
will suffice to establish malice aforethought, but where the charge is
attempted murder, the actual intention to kill must be proved. Accused could easily
have aimed at a vulnerable part of William’s body, and his action in aiming at
the knee did not confirm his threat to kill.
Accused convicted of unlawful wounding.
R. v. ALISTALIKI S/O MASUMBUKU (1967) HCD 342
Crim. Sass. 4-A-67, 31/7/67, Platt J
Accused was charged with murdering the woman with
whom he had lived for several months. There was evidence that they had quarreled during the day, that deceased had
threatened to return to her mother and had refused to obey accused ’s demand
that she wash his clothes. She also refused to give him Shs. 20/- which he
demanded, but finally relinquished it. Shortly thereafter, accused dragged
deceased from a house into a plantation a short distance away and fatally
wounded her with a panga. Deceases was 16 week’s pregnant at the time of her
death.
Held:
(1) An issue is
“whether the situation which faced accused as a whole, could be seen as
provocation, which could cause a man of his [accused ’s] position in life to
lose control of himself and act in a heat of passion in this way.”
(2)The
burden of proof is on the prosecution to disprove provocation.
(3) The acts of
deceased during the quarrel would merely give rise to annoyance and did not
constitute provocation. Accused convicted of murder and sentenced to death
R. v. GWEMPASI s/oMUKONZHO (1943) E.A.C.A. 101
HELD: Only a specific intention to cause death will
suffice to support a charge of attempted murder
*Cited in R. v. Mley s/oKinyamali (1967) HCD 342
R. v. EVADI S/O SYLIVESTER (1967) HCD 130
Crim. Sass. 91-M-66; -/-67; ----------------, J.
Accused was convicted of murder (P. C. s. 196). There
was evidence that accused and the deceased had quarreled in a pombe shop and
accused had threatened to set fire to the deceased’s house. Later that night
the deceased’s house burned. A body was found inside but was burned beyond
recognition. At the close of the prosecution case, the accused moved that no
case had been made out for him to answer.
Held:
(1) Death is provable by circumstantial evidence notwithstanding that neither
the body nor any trace of a body is found. Citing Regina v. Onufrejezyk, 1965
1, QB 388. Although the body could not be identified, there was sufficient
circumstantial evidence that deceased died in the fire.
(2) The only evidence
connecting accused with the death was the threat he made the evening before the
fire. This evidence was insufficient to require accused to present his defence
case. Citing R. v. Sipirian (1947) 14 E.A.C.A. 72.
The accused was found not
guilty.
R. v. DANSON S/O SIMBACUNGILE (1967) HCD 1
Crim. Sass. 167-Mbeya-66; 3/2/67
Otto, J.
Accused killed his mother-in-law during an argument,
after spending some time drinking in a pombe shop.
Held:
(1) The evidence showed sufficient provocation to vitiate the malice
aforethought required for a conviction of murder, in view of the accused ’s evident
intoxication:’….. one must consider that because of the liquor that he had
consumed he was more easily provoked, and under these circumstances one must
not apply the test of the ordinary man.”
(2) “One must consider the effect of
liquor in coming to a conclusion as to whether or not the accused person was
able to form the necessary intent.”
Accused was convicted of manslaughter.
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