Republic vs Kashanyi Hichiri (Criminal Sessions Case No. 122 of 1972) [1973] TZHC 171 (10 April 1973)

j- 14),U IN THE HICH COURT OF T.NZU-L iT DODONA A C_ _ a_ ~ N-CK&AA1 ORIG-INAL JHEIDICTION (DODOJiA REG-IGiRY) CRIk1IiAI, :LFJSIONS CASE NO. 122 OF 1972 THE REPUBLIC 1, 11 1 :U T 1T rrr T(TT .L Cha:e: MANSL.JIGHTER C/F 195 OF THE PENAL COUE J U D G- U 111 U N T ifZAVAS J. The accused KaShanyi sb Hichiri stands charied with mucs 196 of the Penal Code. It is alleed by the Aepublic that on or about the 1 4th day of Dece:::oer 1971 the accused murdered one Philipo s/o Niata. It is not at all in dispute -Ghat it was the accused's acts that caused the death of the deceased. It is ocually not disputed that the accused T s acts were unlawful. hat is in dispute is whether the J::illint; amounts to murder as arued by the prosecution. In a charge of murder the prosecution has to prows ti-iree thin2's: First that it cTas the act or acts of the accused that caused the death of the deceased. Secondly that th:. act or acts were mlawful and thrldiy i;hat the tatal act/s weis inflicted with malice aforetho ujhi. Talice aforethought is deemed to have been csabli hod if i t is $oved that at the ti c of infln uhe £tal blows the accused had formed an intetion to kill the deceasod or to cause him grievous bodily harm. As I have already mentioned there is no dispute in this case reiardin the first two ingredients of murder. As to the quostion of rmlice aforthought the defence argued that the ac;used inflicted the fatal injuries on the deceased as a result of grave :rovocation by the deceased. The learned state attorney on the other hand araued that the attack of the deceased by the accused could not be the result of provocation as the alleged provocative acts by the deceased lacked the element of suddenness. Both in a free and voluntary statement to a nm:istrate (P.'tJ.1 ) and in his sworn defence the accused admitted assaulting aid killing the deceased and from the manner the blows were inflicted and their location, together with the rtable presumption that a man inierds the natural and urobable conequences of his acts the only reasonable acceptable conclusin is that, at the time he in- flicted the fatal blows the accused rrobably intended to kill the deceased or he at least intended to do him grievous harm, No question of intoxication arises in this case. The question of self—defence is equally outside the evidence. . . . . ./2 . . . P -

This being the position the only defence available to tT.e accused is whether notwithstanding that the accur ed killed the d.eceased with relice-aforethouglat, he did so while mctirvg under grave and sudden provocation; in the heat of passion while derived of his self- control. It is con'on ground in this case that about two nOi'rGhiJ before the killing of the deceased by the accused, the later had his cattle-bo:aa broken into. His 59 head of cattle were stolen and he was thoroughly attacked with sticks and simoe. giso attacked were his mother and his daw:hter who from the evidence, received less serious lnjuries. The accused was sent to iodorea hosprcal in a motor vehicJe where he was hospitalised for eight cLays. Accord- ing to the accused's extra-judicial statement (ext.) the robbers were twelve in number and that he identified five of the robbers on the mat eial night. One of the five robbers he claimed to have recoanised is Philpo Tflati, the deceased, ccorcL1ng to hi ocra- judicial statement and his evidence before this court the deceased WaS one of the people who acinrally attacked him with sines and sticks. Some of the robber s were eventually aim etcd and charged but :aosc of 'heu remained at large, .:.UOUG GWo months ai'or the robbery the accused received information that the deceased who had since been hiding from the police was at Nijili village. He contacthd his cell-leader, one, .ntony (P.7.5) and asked for assis- tance to arrest the deceased. i.tony contacted one, Potro (P07.4) a secretary of Mpareantwo ujariaa village at Bahi and theee other ueoplc nd the group proceeded to Nijili village in search of the deceased, j:aioflg the group of five people was one, Esuranuel Iiashanyi, son of the accused. The, group managed to arrest the deceased and they brought hire to -the accused's house from where they were to move on to Bahi primary court accompanied by the acoiised who was bhe complainant. They did not find the accused at home. He had gone to his shauba neor-by. Accused's wife sent a boy to call the accused In the meantime the group sat outside the accusedTs house sating grou-nuts offered to -them by the accused's wife. The deceased was also given some ground-nuts and sat about 3 paces from the group. According to the evidence of Tetro and Antony (P.7.4 and P.7.5) as they were busy eating ground-nuts they suddenly saw the accused asaultingr the deceased with a stick. ,Petro'e evidence is to the effect that the ac' -.used first assaulted the deceased in his abdomen then he hit him on his head and again in his abdomen. ntony intervened and asked the accused •to s

• top beating the deceased but that tl'ic accused d±d not listen to Pntony'o advice and, according to Petro's testimony the accused kicked the deceased in the abdomen as he was lring on the ground helpless. Petro also x'elated to the court that he heard the accused saying to the deceased - You are the people ho tortured me. He is alleaed to have uttered these words as he was assaulting the deceased. Petro fu:ther told ties court that the accused asked the deceased to show hire where he had hidden his (accused's) cattle and that the deceased admitted stealing' accused's cathie and i:ientionecl. the place where he had mia.den then. nItO11y' C evJaenOC regarding the heating of the deceased by the accused is similar to Petro's testimony. Both witnesses related to the court that as a result of the assaults the deceased fell on the .:round and that soon after he succumbed to his wounds. Dr. Leniono (P .W .8) performed post-mortem exanination on the deceased's body. According to his evidence the deceased's body had multiple lacerations and that there wai bleeding from the nose, mouth and from the urethra. Ele told ti -ia court that the deceased's spleen was raptured and so was his bladder. The doctor formed the opinion that the deceased died :ron haemorrha ; 'e and shock. Post- morto!.a report was produced as an exhxbt. It was ad:.umxed and marked as exhibit B. The doctor also told the court that he examined the accused and found him to be suffering from. four wounds on his head and multiple scars and bruises. /3

He also observed that the accused was suffering from post-trausaatic black-eye. He assessed the head injuries collectively as dangerous harm and he was of the opinion that a sharp instrument was used in causing the head injuries. The other injuries wore put in the category of "harm and that a blunt instrument must have been used in causing the injuries. As for the head injuries the doctor noted in the PF 3 (exhibit C) that, and I quote. • 11 T1,iou h mentally sound he will have long standing head complaints. The accused who elected to give evidence on oath admitted attacking and icillini the deceased. He in his defence argued that on the day he assaulted the deceased he was still in an.r,er as the deceased was one of the robbers who had earlier attacked 1 'aill and robbed him of his 59 head of cattle. He argued that he assaulted the deceased in o:'der to warn him not to indulge in stealing cattle again, and that he did not intend to kill him. flaen cross-exacined the accused said that a -b the time he assaulted the deceased he was still suffering rom head-ache and that he was still mentally confused as a result of the injuries he had received on the night his cattle were stolen. From the evidence there can be no doubt that the accused was, on the night his cattle were stolen, brutally attached with sharp instruments, (according to his testimony his attackers used simcs end sticks) and left in a critical state. Indeed according to his defemce, supported as it is by the Justice of the Peace (P.'J.i) and the doctor (P.i.6) he was still nursing his wounds on the day he attacked the deceased. That the deceased was one of the gang of robbers who attacked and robbed the accused of his cat:tle is evident from the evidence of Petro and ih.tony (P,J.4 and P,1.5) who related to the court that the deceased con fessed to have been one of the robbers. Indeed •bhe deceased went further and said that he had hidden some of the cattle at one, Roganits place, The vital question this court has to decide is whether the accused who had received such serious injuries and who had his cattle stolen 9 snd,ras 51111 nursing his wounds, usuld have been provoked on seeing onhis assailants two months later. iffter sunning up to the gentlemen, assessors they were both of the unanimous view that an ordinary iogo would have been provoked. They therefore found that the accused acted under provocation when he inflicted the fatal blows on the deceased. It was the learned state attorney's argument that the defence of provocation lacked the ele::ient of suddenness as the attack of the accused and the • stealing of his cattle by the deceased and his companions happened two months prior to the attack. It was the iepublic 's case that on the evidence the accused could only be said to have acted in revenge and not by reason of provocation. Uhen we talk o: provocation as a defeuce in a chaSe of murder what we actually rican is that an accused as an ordinary person did the act/s which caused death in the heat of passion caused by sudaen provocalion as defined in section 202 of Ihe Penal Code? and beiore there was time for passion to cool. section 02 of the Penal Code requires the court when deciding whether a wrongful act or insult is sufficiently grave to constitute provocation, to consider the effect of the alleged provocation on an ordinary person. !n ordinary person is defined as an ordinary person of the comri- nity to which the accused belongs, The vital question therefore this court has to dec±de is whether an Ordinary iJgogo who is thoro- nghly beaten up by thieves using sines and sti,ks and .has his callle stolen would have been ssudaenl \oi' söeirig one 01 the thieves and at -backers two months later and resort to attacking him while deprived of his self control. Both assessors who are of the tribe as the accused did not at all hesitô±ô:to tell the court that an ordinary Ilgogo would have loot his temper and resort to assaulting a thief of his cattle when he sees him two months after the theft, , . • . . /4 . • .

-.4- 4 From the evidence there can be no doubt that an ordinar iogo attaches a lot of value to his cattle. In the present c-se tIie accused did not only have his 59 head of cattle stolen ibut the deceased and his comiDanions mercilessly and brutally attacked him, his mother and his daughter with lethal weapons. The adcuseds wounds were so serious that he had to be admitted to hothpital and what is more he was still nu - sing his wounds and suffering from headache two months later when ho saw the deceased and 6.ttacked him. Taking into account tile definition of the phrase n ordinary person' in oction 202 of the Penal Code as well as. the assessors opinion; and since the issue of provocation is predominantly an issue of fact, I find it difficult to disagree with the1 unanimous opinion of the assessors that an ordinary Mgogo in the circu.mçtances of this case would have behaved the way the accused behaved. Like the unanimous opinion of the ger1tlCsc:i:it assessors 1 find the accused not guilty of murder and I accordingly acquit him of this charge - But on the evidence I find him guilty of nanslughter cJs 1.95 of the Penal Code. / N. S. IIZ.AS JUDC-E.

• The accused is a first offender. In I iti:ation - I have a wife and seven children. Ny mother is very old, ± only attacked the aeceased because I was provoked by what he did to me I ask for your leniency. Fentence - The accused has to thank his sters in that the assessors view regarding the question of provocation is what it is. Had it not been for the assesso::s view that an ordinary fl'ogo would have been provoked anI act the way the accused acted I would have no altrnativo but to find the accused guilty of murder. Th question of sentence in this case is not very orsy. ilere is a person who was brutally attacked by the deco•• ased and his companions and had his cattle stolen. I He has been in remand since December 1971 with the sciious charge of iu::der ilanglnr.> over nim. 1-le is as far las it s knom . a first o:?fonder. These factors speak in his favour, 2gainst him however is the fact that ho took the law in his hands and continued assaultin. the deceased oven after he had been adviced not to do so by .1aatony and Pecro. Ta;ng all the iactors, :oth for a.nd against the accused into account I fel that the Justice of the case would be riot if the aôcused is sentenced to 5 yercs imprisonment. He is! so sentonced. R. 0. P. to E. A. C. . explained. IL DODOMA. N. 10/4/73 ,:..