R. v.

Madirisha s/o Kitikiti, (1969) HCD 233

Crim. Sass. 163-Iringa-68, 23/2/69, Duff J.

The deceased Ephraim s/o Robert, was a young man who lived with his uncle Amani s/o Salim, at Nyamahove Village in Nyombe District. Early in the morning on 28 January 1968 he left home to go to church. He never returned. On the following day, the deceaseds uncle, Amrani, set out to look for him. His search took him to Makoga, from whence he was led by the village executive officer to the village of Iholo. There they met the second accused, Besen, who admitted that a boy had been tied and taken to the home of the third accused, Mwakilima. When Mwakilima was questioned by the village executive officer, he admitted that he and the two other accused had killed the boy. Mwakilima and Besen then led the officer to the ravine where the body had been thrown. The court found that the death had occurred in the following way. The first accused, Madirisha, encountered the deceased, and noting him to be a stranger, offered him food and drink. Ephraim, however, would not or could not reply, where-upon Madirisha seized him and tied him up, suspecting him to be a hooligan (mhuni). He took him to the third accused, Mwakilima, who was also of the opinion that Ephraim was a hooligan and should be bound. Later, after Ephraim had been beaten, it was decided to main him. Besen and Mwakilima held him down on the ground, while Madirisha pricked his eyes with a pin. Mwakilima claimed that he suggested only one eye should be pricked, but Madirisha insisted that both be pricked so that he would be blind and be obliged to live as a beggar. It appears that Ephraims ears were also damaged at this time. The three accused then left Ephraim at the scene of the maiming. The following morning, Mwakilima returned to the scene and found Ephraim apparently dead. Returning again that afternoon, he found Ephraim standing up, which fact he reported to the other two. The following day, he again went back and found Ephraim finally dead, or so he thought. He then disposed of the body by throwing it into a ravine. Medical evidence established that death occurred, not as a result of the blinding or the damage to the ears but following a skull fracture which must have been sustained when the deceased, apparently dead, was thrown into the ravine. The three accused were charged with murder.

Held: (1) A preliminary question arose as to the admissibility of the admission made by the third accused, Mwakilima, to the village executive officer, to the effect that he and the others had killed Ephraim. After some indecision, the court finally held: Having regard to the ruling of Biron J., in Athumani s/o Kasim v. R. [1968 H.C.D. n. 143], it would appear that my misgivings on this point were ill founded, the learned Judge holding in that case that a confession to a divisional executive officer was admissible having regard to

(1969) H.C.D - 210 the provisions of Section 29 of the Evidence Act, 1967. I deliberately refrained from referring to the admission to the village executive officer in my summing-up to the Assessors but I think it proper to mention it now to indicate the readiness and willingness of all accused to confess to the parts they had played in their dastardly venture. This desire to confess may also be gleaned from the pleas of the accused when the information was read over to them by the Chief Justice on the 28 th October, 1968, the same attitude being adopted by them when pleading before this Court on the 19th February, 1969. whether regard can be had to what an accused person says in answer to a charge has at times, being doubted but recently Biron J., in Issa s/o Mohamed v. R. Criminal Appeal No. 108 (P.C.) of 1968 (unreported) was of the view that what was stated in a plea could be taken into consideration and I believe the decision in R. v. Hazeline 1967 2Q. B. 857 would appear to lend force to the opinion of Biron J., with whose view I respectfully agree. (2) The picture therefore that emerges .. indicates that after the three accused had inflicted the injuries to the eyes and ears of the deceased. only the third accused participated in what followed, the deceased dying tin the ravine in consequence of head injuries he sustained when discarded there. The first and second accused were not a party to the fatal injury and

it cannot be said that the original wounds at the time to death were still an operating and substantial cause of death. If the original wounding was merely the setting in which another cause operated, and I accept that this was the situation death would not be said to result from the wounding (Vide R. v. Smith 43 Cr. App. R. 121) There is no doubt that these two accused intended to main the deceased and did in fact main him, this being an offence c/s 222(1) of the Penal Code . This offence . Has been amply established and having regard to the provisions of Section 181 of the Criminal Procedure Code I think it proper to conviction them of this offence and I do so accordingly. (R. v. Muhoja s/o Manyenye, 9E.A.C.A. 70. is relevant on this aspect of the case). (3) The third accused was the only one who displayed an interest in what was happening to the stranger after he had been maimed. His first belief that death had occurred was shattered on his next visit to the scene when he found the victim standing. His final visit led him to believe that death had finally come, he then endeavoring to conceal the body by throwing it into the pit. Notwithstanding that he believed Ephraim to be dead when he disposed of the body the accuseds behaviour cannot be considered save as a series of acts designed to cause death or grievous bodily harm and it is impossible in his case, to divide up what was really one transaction. In this view I am strengthened by the decisions in R. v. Church 49 Criminal Appeal R. 206 and Thabo Meli & Other v. R. 1954 I. A. E.R 373. Accused convicted of murder. (4) Sentence: I have had the accused examined as to their ages by a medical officer, the first accused being in his mid thirties, the second in his late fifties and the third accused is in his early fifties. The age factor as far as the first two accused are concerned has influenced me greatly in determining what punishment should be meted out to them for their part in this shocking crime. I sentence the first accused to twelve years imprisonment and the second accused to six years imprisonment. As regards the third accused there is only one sentence in law which the court can and does pass and that is that he shall suffer death by hanging.