Sarah Silvery Ghati

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY ATTARIME CRIMINAL SESSIONS CASE NO. 33 OF 2023 CASE REFERENCE NO 20230608000503910 REPUBLIC VERSUS SARAH SILVERY GHATI JUDGMENT 11th & 18th February, 2025 M. L, KOMBA, J,: Am accused ofmurder here in court. They said I killed Monica. It was not planned ni bahati mbaya na hasira tu. I was angry. She put her foot on my back. I slapped her and she slapped me back then I was furious. I had no grievances with Monica she was a child. It was bad lack. Her mother is my friend. Am a person of good behavior. I pray to this court for mercy. I pray to the father of Monica for mercy and I pray to the mother of Monica for mercy. I did not intend to kill Monica. Page 1 of 10 This is what accused testified when was given time to defend herself. Sara Silvery Ghati, a lady of 40 years admitted to kill a child. It was night and both were sleeping in one room sharing a sleeping mate. I am aware that that the duty of accused is only to shade doubt to prosecution case as was in Lack s/o Kilingani vs Republic ^Criminal Appeal No, 402 of 2015) F20161 TZCA 688 (29 July 2016) and the burden to prove it was accused who killed deceased was to prosecution. In circumstance of this case, apart from the truth that prosecution had witnesses, accused admit to commit a crime and explained what happened as we shall see in next paragraphs. Republic was represented by learned minds of Mr. Lusako Mwaiseke and Ms. Dotto Banga both State Attorneys and marshaled six (6) witnesses and four (4) exhibits. According to PW6 (Helena Were) the crime took place at night. She was awakened by her son (Thobias) around 03:00am and was informed that there was an incident in the house of Mr. Cosmas. Helena decided to go and witness what was not happening at the home of Cosmas. She found Cosmas and family members awake. When asked what happened, she was told to enter in a room where Monica was sleep, she saw blood on the floor. She testified further that they started to look for Monica, they made alarm and people responded. Page 2 of 10 In due cause of searching, people suspected accused as she slept with Monica. Upon inspection they saw blood in hands of Sara who then admitted to commit crime and show where she put the body, in the maize farm. There after Sara was under restraint till when police arrived at the scene. PW5 (Denis Selestine Kimario) is one of the police officers who arrested Sara and investigator, he informed this court that when he received information on commission of crime, together with other police went to the scene, took Accused to Panyakoo Police post, While at Panyakoo this court was informed that Accused record caution statement, Exh P3 in assistance of PW3 (H.4747 D/Cpl Amos) and was taken to Shirati Police. While at Shirati police Station PW5 testified that accused asked and was allowed to go to justice of peace, PW2 (Mkami Wambura Mirumbe) a Ward Executive officer in Koryo ward whom she records extra judicial statement which was admitted as exh P2. Both exh P2 and P3 was admitted without objection. I had time to read both Exh P2 and Exh P3 and found the story of Anna, the only accused in this court. What I got from the two exhibits is that, in material day accused slept with Monica as they usually did. In the cause of sleeping, Monica put her legs at the back of the accused who was not Page 3 of 10 amused and decided to slap Monica, after that slap accused started to strangulate Monica while inserting her hand in Monicas' mouth. After a while she removed her hands and Monica was not moving. Accused called Monica three times without response and she decide to hide the body in the maize farm around their home. Accused decided to inform her mother that Monica was not in her room, then relatives were informed and started to look for Monica. In cause of looking for Monica, relatives interrogated accused and noted she had blood stains in her legs and hands. From there, relatives hold accused liable of killing who confessed before relatives that she did that. In her defence, while led by her counsel, accused gave the same story by her word of mouth and repent. When cross examined by State Attorney, she informed this court that she decided to hide the body of Monica in fear of police and his father and informed this court that she never did anything wrong in the community. The body of Monica was examined by Clinical Officer Jumanne Mihayo (PW1) whose post mortem examination report was admitted as exhibit Pl. In his testimony he explained the body of Monica was found with blood Page 4 of 10 clots in mouth and nose and had scratches on her neck. According to his examination, severe bleeding caused hemorrhagic shock and caused the death of the Deceased. The story of accused is collaborated by exh Pl in which it was recorded the deceased had scratches on her neck. Basing on the whole story, Prosecution charge the accused on murder contrary to section 196 of Penal Code, Cap 16 | R. E 2022] (Cap 16) The section provides; >1/7/ person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder'. In the case at hand, Monica the deceased died due to hemorrhagic shock. That being settled, it is the duty of the prosecution to prove the case against the accused person herein at two stages; first that it is the accused person who killed the deceased and secondly, that accused did commit the killing with malice aforethought as stipulated under section 200 of the Penal Code, Cap 16. Basing on life history of the accused while in custody and record which was available for preparation of the hearing of the case, during preliminary hearing, defense counsel prayed the accused to undergo mental Page 5 of 10 examination. This court made short interview with the accused and accepted the prayer. On 11 August, 2023 under section 219 and 220 of Criminal Procedure Act, Cap 20 this committed accused to Mental Hospital for mental examination. Accused was sent to Mirembe National Mental Health Hospital (Isanga Institution) whereby on 09th November, 2023 this court received a report that there were no features of mental disorder to accused person. The expert report clears the doubt created in Exhibit P3 that, when found blood in the room which Monica sleeps, one James Ochuod said accused is insane she might kill Monica and they started to inspect accused by a torch flash and they find blood in accused feet. In Republic vs. Kerstin Cameron [2003] T. L. R. 85 it was held that the duty of an expert is to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the court to form its own independent judgment by application of these criteria to the facts proven in evidence. From the report of Mirembe National Mental Healrth Hospital, this court is certain that at the time of commission of the offence the accuse was in clear state of mind. Page 6 of 10 Reading the testimony, there is no doubt that it is the accused who killed the deceased. Accused explain while sleeping, deceased put her leg on accused' back. Accused slapped deceased and deceased slapped back accused. From then accused started to strangulate deceased. She explained in court that when Monica slapped her, accused was furious and did what she did. In life, there are action appear to be normal but when looked at hindsight of what transpires, action is powerful dynamite sufficient to blow off the faculty of reasoning of human minds. The Court in Benjanin Mwansi vs Republic [1992] TLR 85 had this to say in relation to provocation; '...thus in killing on provocation circumstances which constitute murder are proved and established. But that is not the end. There is something extra and that is sudden provocation, if we were to be mathematical and devise a formula we would say: killing by provocation is equal to circumstances which constitute murder plus sudden provocation without time for cooling down.... Now, those words in themselves appears very innocent. But if they are looked at with the hindsight of what had transpired, they are a powerful dynamite sufficient to blow off the faculty of reasoning of the appellant,...Did he have time to coo! down? No, obviously not ...We, therefore, find the appellant not guilty of murder but of manslaughter. So, we quash the conviction for murder' Page 7 of 10 That position has been precedents of the Court itself and this court without reservations see for instance: Republic vs Godfrey Francis Mwesige, Criminal Sessions Case No. 58 of 2017; Said Hemed vs Republic [1987] TLR 117; Shabani Rashid vs Republic [1995] TLR 259; and Damiana Ferdinand Kiula & Charles vs Republic [1992] TLR 16. It is now certain and settled law that provocation as enacted in section 201 of Cap 16 and defined in section 202 (1) of the same code and interpreted in the precedent of Benjanin Mwansi vs Republic (supra) that: it must be a abrupt provocation without time for cooling down. In my considered opinion, in cases where a defence of provocation is produced, the key question is whether accused had time to cool down? In the case at hand, accused testified that when she felt legs of deceased on her back, she slapped Monica and Monica slapped back accused and she was furious. She used her hands to strangulate deceased and insert her fingers in mouth. According to PW3 and Exhibits P2 and P3 that action was immediately. There is nowhere accused testified that she wakes up and look for anything. She used her hands and were in the same room which they both slept. I find there was no preparation and there was no time to cool. When Monica fails to respond from her name is when accused Page 8 of 10 noted that Monica is dead. Circumstance of this case suggest there was provocation and the accused had no time to cool from the slap from a child of 10 years. Can she still face the charge of murder, the answer is no just as was in precedent of Benjanin Mwansi vs Republic (supra), the accused had no time to cool and therefore she acted under provocation. Let's see what Cap 16 provides; 201. When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as defined in section 202, and before there is time for his passion to cool, he is guilty of manslaughter only. To this end, so far as accused testified on angry status caused by the action of the deceased, I find she did that under provocation and I hereby convict accused SARAH SILVERY GHATI to lesser offence of manslaughter contrary to section 195 of the Penal Code, Cap 16 R.E 2022. SENTENCE After considering aggravated factors and mitigating factors submitted by both side, accused is hereby sentenced to four (4) years imprisonment. So Page 9 of 10 far she has been in custody for two years she has to serve the remaining two (2) years in prison. Right of appeal is fully explained. K M. L. Komba JUDGE 18th February, 2025 Page 10 of 10