1971051 TZHC Bukoba

IN THE HIGH COURT OF TfNZMIIi' AT BUKOBL et fls- Original Jurisdiction. CRIMINI\L SbSSIONS CISE NO.29 OF 1971, THE REPUBLIC. ,, vs. , . . . KPMLGIIJU d/o MPUIJBUJE CH!RGE Mansi ughter contrary to section 195 of the Penal Code. JUDGI'JENT. EL-KINDY IgU The acused Kamagju d/o Mpumbuje, was charged with manslaughter contrary to section 195 of the Penal Coda, Cap.16. The particulars alleged that he unlawfully killed one Emmanuel s/o Yakobo Petro Clavcr. She denied thq charge. The prdsecution was conducted by the learned State Ittorney hr. Ntahaye, and the defence was conducted by the learned counsel Mr. Buh, Tith the consent of the accused, Itcssrs.Richad Ndyeobora and Prancis Kahabuka sat with me assessors. The accised was the first wife of Yakobo Petro (P.h.4). She had been living with him for 10 years, but they began living apart for the last two yaarsL It would appear that she did not deliver any child with Yakobo. although they separated, the accused still occupied her matri- monial house, and used the bananas from the same plantation. according to Yakobo, the accused was allocated her own part, and Generoza (P.1J,2) his second wif had her own part as well. The two wives were in the same compound end their houses faced each other. Generoza has lived with Yakobo for five years, and she had children by him, one of them was the deceased Emmanuel s/o Yakobo Petro Claver. fccording

to Generoza from the time she began to produce children she had been constantly quarrelling/fig ting with the first wife, who app ars to beconsiderably older than her. It was alleged that the accused took exception to her delivering chil ran as they would inherit while she did not have any children. On t a reatarial evenin, the two wives fought, while their husband was in he house of the second wife, and in the course of that fight the accused aimed a stick blow at Genaroza, but the stick blow missed Generozaand fell on the head of.the months-old Emmanuel who was tied on the back of his mother. The baby was taken to dispensary at Minziro on the same evening, but he died at 10 p.m. on the following day The body was brought to Bukoba Government Hospital where Dr.Othman (P. :.i) examined it. This was on the 2nd of July, 1970. The doctor found that the baby had sufercd compound fracture of the occipital hone, and on opening the skill, a cut wound of 2 -" x l--" deep was seen on the occipital bone. The occiptl bone was also fractured, and there was haif clotted blood in the bran. In his opinion death was due to intracranial haemorrhage caused by the wound on theheed. It was clear, therefore, as to what was the cause of death of the baby Emmanuel. ccordingIto Generoza, she was outside her house peeling bananas 4-01 —2- when the accused went to her, armed with a stick, and struck her

on her forehead0 The scar on the forehead was still visible. Pfter thaih, she said, she decided to run away to her elder relative, but,the accused followed her and assaulted her with the stick as she ran along. Ehe said that shb was beaten 4 times. She alleged that as she turned her heed hack, she saw the accused ready to strike again, she avoided the blow, and the blow fell on her baby. She said she became angry and jumped at the accused, abd bit her with her teeth on her, lower lip. Then Joseph Kabuka appeared, and took away the stick the accused was holding. I The aócused on the other hand, gave a different story. She said that she heard Generoza and their husband quarrelling at their house and that she vent to see what was happening. On her arrival, she said, Genaroza turned to attack her and she ran towards her own house and that Generoza 'pursued liar. It was then that she picked up a stick and in striking at Generoza, she accidentally struck the baby who was o:a her backs Both Generoza and Yakobo denied that there had been any previous quarrel between then that evening. But Genaroza told the ard xocutive Officer (P..5), in the following morning, that she had been assaulted by her husband and that their child too was assaulted by her husband. is a result, the ardiixecutive Officer sent his messenger to arrest Yakobo, and Yakobo was in fact arrested and locked up.

However, Yakobo told the iard Hxecutive Officer that he was not the one who assaulted Genaroza and the baby, and hard xc-cutive Officer followed Ganaroza at the dispensary and asked her again. This time she said that she had been asaulted by the accused. Henca the arrest of the accused. The issue, in this case, is simple. It is that of credibility of witnesses. , hhen the fight began only the two women were present, and therefore I, have to go by their evidence. Their husband Jas in the house of the second wife. It does not appar that he took any interest in keeping his Wives from fighting until when he heard alarm that his son was dying. 'Then he came out of the house and picked the deceased from the groundwhare hehad been laid. Kabuka said that he saw the accused strike at Generoza, and that the blow fell on the child. This does not appear to be credible in thelight of what he said himself at the start of his evidence. He said that he went to the scbne after he heard the alarm made by Yakobo that his sonwas dying. If so, then the deceased must have been assaulted already when he arrived at the scene. I cannot, therefore say that I can safely rely on his evidence. Then I am left with the word of Generoza as against that of the accused as to what actua'lly happened until the deceased was hit. The first assessor believed the evidence of Generoza, and found that the

accused deliberately foñowed Generoza, provoked a fight, and strucle with the stick while well knowing that Genaroza was carrying a baby on her hack, as he held that the baby was visible. He rejected the version given by the accused and found her guilty as charged. Howcer, the second assessor was of the view that the accused was not guilty and that the killing was accidental. This wosid indicate that he partly belieVed hat the accused told this court He seened to put the whole blame of what happaaad, and the bad relationship whibh sxistd between the 2 wies, on the husband who, he said, had failed to satisfy his wives. Fox myself, I would say that the explanation given by the accused was not improbable, bearing in mind what Ganeroza herself said inadvertently. I m satisfied that if there had not been any quarrel bGtwGon Generoza and her husband, she would not have told the fard 2xocutivo Officer that it was her husband who had assaulted her and the deceased. Itcould very well he tue that Genaroza and her husband had been quarrellingin their house and when the accused want to sac what was ging on she could have turned against the accused as the adcused alleged Ihatever was the ±rua position, I am not satisfied that the versien given by Generoza was reliable in the circumstances. it is of course not in dispute that the blow the accused gave was the one whiOh led to the death of

the deceased. In the circumstances, the death of Emmaniel could have been accidental as the accused and the second assessort believed, or he could have died when the accused was acting in selfdafence to the attacks of GcnGroza6 These possibilities were not entiraby ruled out. I give the accused the benefit of doubt, and I acquit her of the charge. Deli/eied in Court on 17th iay, 1971- -7 7 (Z:1No EKI1Y.) PCTING JUDGL•. Mr. Ntabayc, Sta! to fttorney for the Republic. Mr. Buh Cornsal for the Defanca.