na TZHC Iringa

IN SUP HIG-H COURT OF ThNZAI'TIA 1 V AT IRINCA 7. ORIGINAL JURISDICTION T4.FL; -- (DOD0N11, PAGISTRY) CIJNIPAL r;pssioI:s CASF 110, 214 OP 1971 IUTJ iflPLiBLIC N]L3 SUS G-URVAS CIITJSU AFl IJOTIiJdR, Charge: NtJRDER; Contrary to Section 196 of the Penal Code, J U D C- B N E N T The two accused stand charged with the murder of the I'Iodestus Psia nof'u at Ubugani village in the Nufindi District of Iringa region. The deceased was the husband of the second accused. The accused have both denied the charge The doctor who conducted the )ost mortem on the deceased concluded that the deceased lost his life when his skull was frac- tured by a blow dealt with a blunt instrument such as a heavy stick. It is in evidence that a heavy stick was indeed found lying besides the deceased. In the opinion of the doctor, the deceased was dealt only one blow. This court has seen the stick LXII P4 which is thick and rough. By its aearance and weipht it can safely Ne taken to be the object that could crack the skull of a :erson, ith only one blow. The court therefore concludes that the deceased who was found groaning in the house of his wife (the 2nd accused) was struck one fatal blow on his head. The doctor found death to have occured at least thirty-six h(urs before the ost mortem. This is sufficient evidence to enable the a ourt to conclude as it in fact does that the deceased died on the 5th of October 1 971 , There is undisputed evidence that he met his death inside the house of his wife who was then living separately. The witness who first heard the deceased groaning said that he was at that tine going to report for work. He then went to tell his brother about the groans he had heard from his sisterts house. Together they enter:d the oen house and found their brother - in - law covered with blood. Ilis condition was so critical that he could not speak. Their sister the second accused was nowhere to he seen. It was still dark when the deceased was found inside his wi±'e 1 s house. This evidence, coming as it does frou the second accused's own brother whose demeanour left nothing toesired compels the court to conclude that event occured as related by the two witneesses Stoingen Sanga and Daudi Hahenge. The second accused herself admits in her unsworn statement a:c.d in her extra judicial statement that she deserted her home th.t night.. Her two brothers found her putting up with a neighbour. She cannot therefore be telling the truth if she says that she ran off into the bush. . . . ./2. .- 7. - . - - '1 - - - --- -.-------.S - ---# , r--- - 4-. - 2 - At any rate by so saying she contradicts her own extra judicial statel.1.ent wherein she alleged to have rui off to her brother. iihere the two witnesses differ is as to what the accused Lusina said when she was asked what had hppoo to her husband. P.W. 2 Fitoken Sanga heard his sister say that the deáeased was injured in the course of a fight with the first accused @ervas Chusu. Her brother P.W.3 Daudi Hahencze heard the accused Lusina deny any knowledge as to how her husband was injured, that Lusina actually said in reply to the cell-leader Yohana Kalangula is quite controversial. The cell-leader told the court that Lusina said the deceased fought with ervas Chusu. In his statenent at the Prelininary Inquiry, the cell-leader told the Police that Lusina claineci to have assaulted her husband in the course of a far.ily fight. She did not nention G-ervas at all. Another prosecution witness, P.W.5 Josea Kulorea told the court that Lusina naned G-ervas Chusu as the person who injured her husband. This was different fron what he told the Police earlier on. The defence counsel cross-exanined hire and put in evidence his earlier stateri.ent wherein Lusina was alleged to have adreitted jointly assaulting her husband with the 1st accused - Gervas Chusu. There can, however be little doubt that Lusina rist have nareed Gervas, or else the lat:er would not have been brought into this case at all. Apart frori Lusinats word there was no evidence point- ing towards hire. I are therefore satisfied and so hold that the accused Lusina nentioned the accused G-ervas to the cell-leader and - che ward executive officer who went to arrest hire. The contradictions On the evidence of the witnesses nay he due to a lase in nerlory owing to the very long tine that has elapsed since the horaicide cane to fight. There was nothing fran the deneanour of the four witnesses suggest that they were tellinr falsehood, or had reason to tell falsehood. As far as this case is concerned they are independent witnesses with no interest in either of the accused. In fact it would he in the interests of the two brothers of Lusina not to mph- cate her in any way. It is therefore renarkable and coaaendable that they should tell the court the truth as they reraenber it with- ot in any way trying to exenorate their sister. In their unsworn statenent both accused adreit being inside Lusina's house at the raterial tine, c-ervas told the court how, after having taken liquor, he left at 5.00 p.re. to go hone, On his way he passed by Lusina's house and hea rd then quarrelling. •ihen he asked then why they were quarrelling the deceased hit and throt- tled hire, accusing hire of seducin, ,7, his wife. The accused then freed inself and ran away. Lusina on her part confirped that the deceased aught Gervas. She did not, however confirre Gervas in his allegation that he freed hiraself and ran off, leaving the docosed and his wife quarelhing. According to Lusina, it was she who ran away after being stabbed by the deceased, leaving hire still fighting Gervas. In other words neither accused saw the fatal blow being struck. And -yet it was struck inside the very house where the accused were attacked by the deceased. When he was nedically exanined Gervas was found with bruises on his neck. This injury is consistent with his allegation that the deceased throttled him. Lusina alleged being stabbed by the deceased. Yet she ran away and never returned to her house that night. The evideuce points to the conclusion that the deceased stabbed his wife in anger deliberately. The cause of his anger nust have had been the presence of G-ervas in the house at night. That was the reason why he attacked and throttled G-ervas as well. The deceased had cause to get annoyed with the accused whore he found together at night under very con ronising circumstances indeed. They were closeted in a house with notiTing to stop there coareitting adultery. The allegation by G-ervas that he happened upon the deceased quarrelling with his wife does not stand to reason. Lusina's version that the deceased foun 7 then together in her house is the more cceptable in as much as it is so reasonable. It explains whyeceased should attack G-ervas. The court does not therefore hesitate to find that the deceased was struck the fatal blow when he surprised his wife and the Gervas in very suspicious circumstances if not acutally in delicto. . .. . / :-- 0 - 4 Mitigation: The accused have been in custody for over one year. T'hoy both have dopendants. G-ervas has three brothers whose school fees he pays. Ills i-i;arents are 1 oth dead. The second accused has lost her husband and is without any inQ_OT1q to support the children.. I-Icr .riother is old... TakIng into account their stay in custody and the background, the court ShOUld take a lenient view.. The accused have no records. The killing was done in the heat of passion. 1st accused Mothing to add. 2ncL accused: Ilothing to add. Sentence: Apart from drinking, adultery is the chief cause of kllhins. It is an imroral practice in which men should not indulge particularly when there are so r.'any -lfolqon rrornd what with the modern tends to nonogany. The accused have found themselves in this position just because they could not resist temptation. It is not easy to tell whether the deceased would have spared them had he succeeded to over power then. The killing is very, serious because it has overtones of adultery. The court therefore takes a grave view and.. sentence the accused as follows: 1t accused who went oit:bS his way;.t..odco the 2nd.. accused - 7. years imprisonment... 2nd accused - 5 years imprisonment'.. / "T Ii A . IPIKIT! AG. JIJDG-E Appeal rights' explained.. - L-.(- 0 " •" K . .1-I. A. IQ'-JIKIM At - i- L. jUJJUj..