19850801 TZHC Mbeya

44

IN TI HIGH COURT OF TANZAPA

AT MBEYA • ORIGINA. JISDICION (Mbeya Reistry) CRIMINAL sórs •p.ASE NO. 51 . OF 1981 . •.•

THE REFJELIC versus 1. MOSES s/o LrVACANYArYLE 2ELIZE D/O icus • ..... 3 HIDA D/O, MDflBILE .•.. I. Charr Murder c/s 196 of the 2enal Code, Cap.16 Vol.1 of the Laws. MJ1OSO 9 J. The four accused persons LIOSESMWAKANYAMALE, ELIZE KIUSA, HIRDA NDIMBILE. and. MODP. ..SELEMANI, who, hencefor€h will he refered to in this judgment as the first, scond, third and fifth accused persons respectively, are among give persons who are charged with murder contrary to section 196 Of the Penal noticed Code, Cap16' of the Laws. It will bethat the person who ought to have been the fourth accused - one VICTORIA MGENGE did not'è'tand ti'ial 0 As the tri,i was.about. to begin the court received unconfirmed reports that this particular accuSed person died.-hi1e she was out on bail. This case being over five years oid it was conidereJ more aprorite to proceed with the trial of the present four accused persons rather than adjourn the hearing in order to ascertain the death or otherwi of the fourth accused. Learned State Attorny for the Republic therefore enterd Nolle Fro..equi:in respect. of that accused. These four accused persons .iofpre the court are aileged to have jointly murdered one WiLI 2VERE on 25th Iarch, 1980 at i:ipungut.i village, Mãsoko area in Rungwe Distric± The first ccised is a solfconfessod witchdoctor who claims lie is --)ossessea or .. . . /occLlt owers to identify wibco sand.

wizards. He also - 2 - claims that he had medicine for cleansing witches of their witchcraft. The rest of the accused persons are women. The second and fifth accused....aid.thy were,..ptients suffering from stomach pains and had een the first accused only two days before the date they ai'e,allegedtohave. acted in concert in killing the deceased. The tIird''abcused said she had met the first accused about a month prior to the fateful day and that he took her or a wifei Oia the23rd IVIarch,l980he took those three women togethbr with the one now alleged to be dead to Mpunguti village.wher e he. was to practice his magical. art. The women companiong were to singt&;him in order to arouse in him the OCQU powErs•....... . or t1kupandisha mashetani" . .: ... ... as he put it.. In Mpunguti village he talked of his abiWit.y. .to,:detect witches and witchcraft and. that he could i-id thèviliage Of all evil medicines which maJo woien fail to conceive.. The villagers apeared impressed and therefore, in the morning of 25th March, 1980 there was a large gathering of villagers. The f4rst ac.cued and the other accused persons wentto the gathering. The first aceLsod mcked up several people from the crowd and made theiuj.sit seperately from the rest of the crowd. Those presumably haa been icieatiiie1 by him to be witches and wizards. The deceased Ri1i Pwore and her deaghter Ruth Kasambo (PIN1)

were comingfrom a.burial and passed nearthe gathering on their wa,r home. The fi1 .rst. accused called them and ordered the Jcceasea o sit among tnose suspected or supposed to be witches0 After sitting there for some time deceased decided to leave and proceed. home... Some time later, .he first accused realised that the deceased had left 0 He ordered....the women accused persons to go with...him to get the deceased back to the 'a -bhering. TheSr run after her until they caught up with.her and brought her back to the gathering. The evidenc.e of the prosecution witnesses who were present at the gathering varies regarding how t'hed.ecease.d was .treated.whon she was being brought back to the gathering. . .. Ruth Kasambo (PW1) said she aw 'tI first accused beat up - 3 - S.) the deceased with fistb on the head and chest while the women accus.d persons also beat her all over the body-s they all pushed her along to the gathering. - Aseri Piwamakula whom the iirst accused had identified as a wizard at the gatheringsaid he saw the first and third accused persons assault decased on the face', c hest and buttocks using bare hands as they brought )aer baCk 0 He did not see the second and fifth, accused per'sons assau],t. dec-eased when she was being brought back. Another witness who was' present at .thoi'acene and. was also suspected to be 'a izard - PW3 icwabekeJwakiiesile said he saw all

the accused slaping the deceased.:.'.when they were bringing her back. P W5 Ayubu Hwakita'lena was also present at the gathering, said only the fi•rst-.-accused -assaulted the deceased when she was being brought "hack, PVI6 - Hams ore Lianyitu, an uncle of the first acCused.- -whC- waa...iresent at the gathering said. he saw only the first a-cdLsc -d -slap the deceased when he was bringing her back. ., After doceasei was brought back the first accused fell her to tha ground, according to Ruth - Pil' but the rest of the prosacuton witnesos said. the first accused merely forcibly nide the deceased sit down. All the nrosecution'vitnCsses saidthe,fir.st 'accused attacket deceased when she was •down TheCe witnesses except the P16 Hamsore said the first acctt'sëd kicked and-trampled ... on the chest, stimaCh . ..and at the 'ribs and beat her with fists on the head 0 The uncle of the first accused (pW6 -- - Hmsore) said thC first acCusaI only kicked deceased once' at the waist 0 As regards the womdn.:acusedi-.per's-cns only Ruth (PWl) 'said she edw them beat up the decedsed when she was -' -. dowh All the proseCution withesees who were p±esent at the gathering said that eventually the first accused gave deceased certaiii md.icine to drink which she vomited several times and. that thereafter she Lsft, Decoased died'befoe she oould get home. The evidence of FW4Kasamho iIWakalasha, her

huCband, t13.dt of Ruth, her daughte and a postmortem ekamthtion report left-iddt13t-thtR'a'ili Pwere in fact died. on'25/3/80, ri Accordiig to':the pOst morioni eat.ination report the death of Raili was due to shock and 1aaeorrha'e. The doctor who performed the post mortem said. in hirsort which was: produced in evidence under section 275 of the Criminal Procedure Code, Car, 20 that he observed hao stona on the face and that the liver was ruptured and there was collection of blood in the perltoneLm cavity 0 The prosecution Laorefore attribute those injuries on the deceased and the rosu.Ltant death to the attaged physical attack by the accused. person All the accused persons gavo their ftofence on oath and did not call witnesses. The a 1 denied that they assaulted the deceased in any way. The .1ro no clue why she died or who caused her death. T..ao ecece cocisel when addressing the assessors said all the pro vacub j n 'tsified on seeing the accused persons phyicallj ack t cc.coased lied out of sheer spite because they ha eon ia ntified before the gathering to be witches or wizards. The gentlemen assessors SaicL they believed allt'heacused persons assaulted the d.ecsed as. : aileged. by the ro.secution witnesses. I have reservations .my.sG1f whether the womenaccused pr.ons assaulted: the decoased, As can 'be seen from the..,.. summary of the evidence of the witnesses their

versions differ ,substantially, some saying that the women accused did not at all assault the deceased, J cannot kiow with certainty which group of these witness. recollects bettor than the other and, for that .,,'eason I shall gi,a the three women accused persons present in court the 'beiefit of doubt by holding that there is no reliable evidence that the second, thirdand fifth accused persons assaulted the deceased. Since the dethth of the deceased is attributed solely to physical attack there is nothing else to link those accused persons with the charge of murder. I would therefore respectively differ with the gentlenient assessors, the first who said. the 7, eon accused should be found guiltr of assault and the seco.id who said they should be convictel of murder. I acuit tem an0 they are now free. I do not think all the witnesses' who. Baid the first accused'assaultedthe.deCeasCd.... beang her..with fists on, the head and face and kicking her and trampling on her on the 5 chest, stomach and liver were 2eing merely revengeful on the first accused. The pos -bmrtem reort as to the injuries found on the deceased and as tthe. cause. of her..aea .this quite consistent With the tind of assault on the deceased attributed to the first a'CC:ueeC. 0 I therefore. find, as a fact that the fir± .àbcused attacked the deceased in the manner described by the first, second, third and

fifth prosecution witnesses. The PT!6 - Hamsore said the first accused had kicked deceased only once at the waist but later, claimed he may have mised.ther acts of asaulty the first-ased on the deceased. He is an uncle of the accused and I believe he was trying what he could not to implicate him too far. I proceed to find as a fct aLs.. that it was the first accused who. caused the dàth of 'ic deceased 6 The next, question for . me to consider 'I' s whethb 'th i.cciised porsdr'had malI. aforethought, that is to cay, did he intend to kill, :or.CuSe deceased grievous harm or if _`Lo did udither, did he at least know that his acts cjuld ca.se either death or grievous harm of the deceased 9 Both gentor ca asessors found him guilty of murdar as c1iarged The manner in which the first accused is said to ha, kicked the deoased and ràthilod on her using guri boots while she was dovn ug'ests that he should have known that he would at least cause her grievous hm But the acusëd may...have ben s anxious to show off to.the 'crowd that he cou'ld.ava. attacked the deceased.fari7iiorp severelj than he. realised. I consider this a borderlineOas and I aii giving himth,e benefit of doubt. The resultis I would ac' ,uit him of the charge. of murder and since 'the acts'c,Ung the death of deceased were obviously unlawful I find him gu..i.l:t.and convict .hijai, of the lesser offence of manslaughter contrary'to section 195 of the Penal Code., ' S J.A. MR)SO

JUDGE Previous records Nil. Inmition: Accused is aged. 39 years, He Has 'heen in custody ______0.,C - rP ?J '-' ----- r - - - AP - - r - - - 6 - for'five'yers and-'4months0 He has 3 wives -and. 6 children who'depônd on hIm. He -ha an-old mother.: who depends on him0 Accused suffx frb- stomach ulcers and h'undergoné n operatioi twice,. '. He is very :sorry for caung the death of deceased0 Allocutus Nil0 SU.N.TENCE . .. T1ere have always been problems wi-th. -pesons. who cl1 thnselves wit chdctors. ' Not infrequently they have been a cause fo'. the deah of innocent poop] -and-'.the present case is typical..- I thiik bourts should play a useful role: of disQouraging this practicc by irposing fairly detrent.- sent,&nces in apropri'ate &ases. The deceased pid lady :. ' met her death at the" hths of this-accised who; in showiflg off his magial powers attackod so. he.b taLLy She di:e.d a few minutss later 0 . . . ... After considei'irg.the 'itiating factors pleaded by counsel for the accused.. - I sentence him to seven years - ixprisonment. J0A0.OSO-- JUDGE - ' Right- of appeal .explaid.. J.A0 MROSO - At I.ibeya . - ' JUDGE 1/3/85 JA1Vi/ATi\lima.