19760806 TZHC Singida

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IN THE HIGH COURT OF TLNZNIA iT SINGIDL. ORIGINLL JuRISDICTION • "•. 't . •(DOmWREGIsTRy) . CRIMINi.L SESSIONS CfSE NO 47 OF 1974 THE REPUBLIC .

VERSUS UHOTILS/O NTLDU• ... .. CH.RGE: Murder. c/s 1.96 of the Penal Codo.

JU DGENENT &PIGANO 0 J The accused UXHOTIA SIO NTJTDU s.ands charged, in this • i :..j.p5t an with ianlaughter, contrary,, to sectio.195 o±:th Penal°CodO, namely that,on or about March 1,1973, at Guru .ir.Nanyoni district he unlawfully caused the death of dne. Mwarnbura d/o Kit iku :....... ,':.• 'The Republic has brought eight witi.esscs, in its ende.vour to prOve the charge, and its obvious that. its case..wiIl ; stand or collapse on the. evidenqo of D42 Sita .d/oKia4a thq wife of the accuse. Tt.is therefore necessary to'oiew andssoss • •. her ovidn:co . thoroughly0. . But before I proce:ed to o, tiat .1 'th±iki will be. convenient to point put several salient • . facts. which are: not in controversy0. • First, it 'is comuoi ground that a wian 'alled Iwambura d/o Kitiku is dofinitely'.ded. She died in Kilimatin.e:hpspital on o, about thö 16th 'day of March,' 1973.:.'. She had be.n in- •disposed.. bad-ridden for a nimbor'of claysboforoho was admitted i..n-hospital. The lay-man'!.s opinion is that she had been srickonrith hook worm. Be that as it may, a post- morom oxam'i'hatiofl was carried out on her body :on :16/3/73 '.by..PW.8 Dr. and thi brings mô to the next point.:. The doctor bservd that shehad a' bruise beh±ñ th •Jfl ear. He also 'observed",' intôrnàlly, a haemat'di on the i'owdr abdome. on th e rn ar' an 'on1arged-iiver, adjacent tb' the hàtoma,' w1±bh had i'aptuëd

thbreby gvThg riâe°'to.' 'fj Internal bleodir±g;:Thedbato±. oiiëd that-'bbththe haematon and the rapture of thc lver were consistent with 2 2 - a blit weapon. He said that the enlargment of the liver had nothing t o do with the rapture. It was his view that the cause of death was the haemorrhagic shock fo14owing the administratiozi of that blow. By and large, the findings and opinions of the doctor were not challoriged and on my part, I can see no good ground for questioning those expert's observations and views. Let it, therofore, be accepted that Mwanbura did not dio of any natural disease, lot alone hook- worm, but of an assault by ablU,nt object. Thirdly, it is not in dispute that Mwathura found her way to the hospital from the house of the accused. She was a married woman but her husband was then serving a tern of imprisonment for a certain offonbe. She had arrived at the house of the accused four or five days prior to her, being . taken to the hospital. One of the questions which, on the evidence, still begs. an answer is why she went to the house of the accused. Not that the. answer to that question would have any material value as regards the outcome of this ease. Now, as I have pointed out herein above, the only evidence which implicates the accused in this matter Is that of his wife PW2. She ielatcd how Mwanbura came to their house. She said that Nwanbura was sickly

and that most of the time Mwa,tthura was bed-ridden. Sho said that her piecoof ghee disappeärbd and that when the adusod learned bbut it he loudly suspected Mwambura. She said..that the accused called Mwatthifrä aMaked her aboutthgh•oe and that Mwahura Professed ingnoranc.ebout Atthat, she said the accused picked up a stick. and repeatedly stck.Iwarbura with it on the thigh and stomach.. She said she saw:iand h.erd: -tho beating as she stood at the door of her house Shoaid that later on in the niit, Mwabura's condition deteriorated. She observed that she had vonitted and bled from the nose. She went on to say that she escorted Nwanbura to a herbalist and thence to 2W.1 ShabaniNughanga who advised that Iwambura should be take•i to the hospital. She said that Nughanga's advisewas accepted and Mwafliura was sent to the hospital:.where she died about one week 1at .or.... It would seeth thatMwambura was reputed to have an itching palm. Net , assuming that the testimony of PW2 .Sita is true, that thi.availedth'C accused an excuse or liconce.to whip..,her for the ghoowh±chaijshed. It would also appear. that never, until she died, :did.S,e uention.that the accused had ha.thrashod her. However, the fact remains that by the time she was hospi- ;i 4 3 talizod she had sustained injürio5•.onand inside theabdomen which ir, the course of time ormintod her lifo. The accused denied, on

affirmation, that he assaulted the deceased.. That has throughout bcon his case His explanation or his srmdse as towhyPWwIao Isbeen his wife since. he was in her teens could have been induced to implicate him in this serious matter is, to say the least, stzrtling It is that their son, apparently in or, spproaching his twenies, heppened to disappear in very mysterious cirumstncs.. 3 Ie sa.id that he believed and still believs that it was PW2 who had., for her own evil purposes hiddcn the bo He said that he pointedly took her to task for that and that ever since there has. :been a serious discord btweer' them e ., His persistent accusation that she was wickedly responible for thoir son's disáppeamnce, he claimed, was possibi: - the motive .1' or her faking up this case. Noydless to say o ,­- tho idea of a mother hiding her own son foi some evi.1' oes strikes a iango note. No. vibdal.mat every one in court, including the learned counsel for accused, turned to the accused iniible bowiire.nt.Unfo- tunatoly, PW2 was doned the opportunity of saying any word about this allegation, tl"o accused raised the point for the first time when he w in the witnoss boxad''I.:hano douDt that the allegation was not part of the cdüedth story to hi. counsel. But the two assessors who sat with me appear to hyo favmrably entertained this story0 In likencr they have also entertained his contention that,

she was a woman wIcóiild be glad to see her husband land in grave 'trouble. They are entitled to their views, But I would, with duo respect, differ with them. It seems to me that the story of the accused about his wife is too incredible to be ccorded any credibility. What is more, I find that the dctor's j3vidence affds the evidence of PW2 some corroboration. He identified some injuries in the iegion of the deceased's body on which PW2 said the deceased was beaten by the accused. True it is that the deceased reticence as regards her having been recently beaten up is quite striking. It may be, as the learned counsel for the Republic has ventured to suggest, that she simply did not see the point of embarrassing herself by disclosing that she had receive'iating in connection th stolen ghee. Whatever the case, it is patently obvious that she had been beaten up and it is my consi cored opinion tl:.at she received the boating from the accused porson I have no doubt that it is . . . .4 - 4 that partithiar assault which brought about her doäth. If the accused honestly bolievoc that it was th. deceased who had 1 stolen the ghoo, tht bolie,was, in the clrQunstances, unreasonable.. But n allowing, that it wareaonablo, the accused was not permitted, in law, to punish her as he did. What he did was clearly unlawful In consequence, I find him guilty of manslaughter and convict him for

that Pronounced in court'Y D. P. Napigano Judge Mr. Alirawiko: Accused is first of fender.' Deceased was a sick person. Accuse knew tha t. Accuf,od had no respect for'human life. Deterrent sentence call c(I for, Mr. Mbezi Purpose of accused lawful. Only thb means were unlawful., First offender. Jas family to look after.. Submit that accusecl'D desorves loniency, SENTENCE: One (1) year imprisonment. D. P. Mapiganc 6tho August, 1976. JUD G E Cer;tifiod true copy of tho Original. 17

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