The accused was charged with murder. He was alleged to have murdered Atifa, wife of Abdulla, by stabbing her number of times. The deceased, accompanied by her friends, had visited the house of Mshamba where there was a pombe party. While they were drinking pombe outside the house the accused also visited Mshamba. He appears to have been in a strange mood in that according to these women he simply drank some pombe, looked around and left. Shortly afterwards the women left the party. It was still light as the walked home. On the way, the accused was seen approaching. At this stage the deceased was about 12 paces away in front of the others approaching a crossroad. She was about
Held: (1) “I find that it was the accused who killed the deceased and with this conclusion the assessors were also in clear agreement”.
“I pass on then to what is really the crux of the case namely whether the accused killed the deceased with malice aforethought. The prosecution failed to establish any motive for the accused’s actions. I should perhaps say that this was not so much due to lack of investigation as due to the misfortune that certain evidence could not be tendered due to the absence from this country of a vital witness ….. As the evidence stands no motive was put forward, and while that is not fatal to the prosecution in the circumstances of this case, it did leave open the accused’s state of mind. He said in his defence that he did not know what had happened. This was taken up by the defence as being at least possibly indicative of drunk ness …. It was the prosecution’s case that the manner in which the accused acted, showed that he was quite able to understand what he was doing, ad that he must be presumed at least to have intended to cause the deceased grievous harm. In summing up to the assessors, both arguments were explained and
the evidence upon which they depended. It was observed that the burden of proof lay upon the persecution to prove beyond reasonable doubt that the accused was clearly in a position to form the intention and did form the intention to cause at least grievous harm. If there was doubt that the prosecution had failed to discharge the burden of proof then the accused must be given the benefit of the doubt and the result would be that he was guilty of manslaughter and not murder. The assessors took a short while to consider their verdict and when the Court resumed they both expressed the clear opinion that the accused could not have been in control of his senses and that he was quality of manslaughter. I have given careful consideration to the evidence in the light of the opinions of the assessors and on the whole I agree with them. It is clear that the accused had been drinking and that he was not in normal frame of mind when he visited Mshamba. While his actions do not readily suggest that of an intoxicated person, nevertheless, as the witnesses for the prosecution were not prepared t state that the accused was not drunk, I can only conclude that there must be some doubt as to his state of mind. The absence of motive seems to me to aggravate that doubt. Accordingly I hold that the prosecution failed to prove beyond reasonable doubt that the accused had formed the intention to cause grievous harm. It follows then that I acquit the
Accused sentenced to seven years imprisonment.
