R. v. Anyambilile Crim. Sass. 21-Tukuyu-70; 20/3/70; Saidi, J.

R. v. Anyambilile Crim. Sass. 21-Tukuyu-70; 20/3/70; Saidi, J.

The accused was convicted of murder. The deceased was a notorious thief and on the material night had employed tricks to create opportunity so that he could steal from the accused’s shop. He first set fire to a kitchen of one Loti, accused’s neighbour. Whereupon the accused was hurried out to help his neighbour. Meanwhile the deceased stole number of things from the accused’s shop. Later the deceased was caught by the accused and was tied by the hands and legs with a piece of wire. The accused and others then gave a good amount of beating to the deceased. The accused then placed the deceased’s right arm on the ground and tried to cut it with the how. As the accused did not succeed in cutting off the deceased’s arm he brought the stone, placed the arm of the deceased on the stone, and cut it off with the Hoe. After this the accused went into the shop and brought out bread and soda water and ate and drank. Thereafter he said he would go to report to the police, and went on his bicycle. The decease was left lying down bleeding, and he bleed to death that same night. The accused returned at about sunrise with police, to find that the deceased had died. The Counsel for the accuse submitted (a) that the accused had acted under provocation that he did not intend to kill the deceased but merely wanted to punish him, and that he had by mistake cut the deceased’s right arm with the hoe

While he was aiming a blow at him with a stick after he was incensed by finding his radio damaged….. that the acts of the deceased in firing the kitchen, luring the deceased from his shop, stealing his radio and other articles, running away with these articles, and damaging the aerial of the new radio the accused had bought that same day, were all provocative acts and (b) that the facts establish the offence of manslaughter and not murder. Although four assessors were of the view that the accused could not be found guilty of murder as it appeared to them that he had been seriously provoked by the deceased in the way the deceased came to his shop, lured him out after setting fire to a nearby kitchen, stole his radio and other articles, ran away with them and had to be chased and caught, and dropped the radio and damaged it.

            Held: (1) “In Tanzania as in many other African countries there is a deep-rooted prejudice and contempt in the minds of the people against thieves, so that serious beating or even killing of thieves is not taken as an offence. It is with this outlook the assessors have approached the case. They blame the deceased who was a thief, and can see nothing wrong with what the accused did in cutting off the arm of a thief who had been overpowered, arrested, tied by both hands and legs and thrown on the ground like an animal for slaughter. It is true that thieves are a nuisance to society and do so often cause trouble and inconvenience to their victims. But we must not forget that they are human beings and cannot be treated like animals. Cruelty to animals also is forbidden and punishable at law.” (2) “If the accused had only wanted to punish the deceased he would have tied the arm to stop the bleeding as soon as he saw the bleeding, if it s true that he had aimed a stick blow at him but found that he had seriously injured him with the hoe …. It is obvious that the accused had cut off the deceased’s arm deliberately and was quite happy with having done so. He clearly knew what would happen to the deceased, i.e. he would bleed to death from the cut wound … “I regret I am unable to agree with (the assessors on the issue of provocation)”. The provocation is alleged to have been given by the damage to the aerial of the accused’s new radio. In Yusuf v. R. (1952) 19 E.A.C.A. 249 it was held that the question of provocation does not raise in the case of wrongful acts done to property. The main ground of provocation alleged by the accused is the damage to the aerial of his new radio. Quite frankly, the damage to the aerial of the radio could not give the accused such provocation as would constitute legal provocation under section 202 of the Penal Code. Here legal provocation would be a wrongful act or insult done to a person and not to property …..” (4) Accused convicted as charged.