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.
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
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
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  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