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IT ji iLF UL 0 :T 3IIGID.[.. • ORTG J17. JRi DIC TIOi JODOi1 CRIIIINIJj ::sIoN: CJ.S io. 113 OF 1976 TH3 RiFUBLIC .. • " Coon • RGE. IIurcicr c/ 196 of 1 ( • - JT; • • ) U . • •,: • •• • • • .• 0 • • • , • • • The accus9cI, Gri.cita /o $iaija 3taS chard with It the iS • • scriousoffanco of udor c/s 196 of the Pna the LbiiC c so tht th rcccc on, or about tn 6th dry of twk diviSion,, in tio, July, 1975 at ia1iJs1 vi1ai rered one icylc dirira. ditric ici of Sia ± , • The CCUSEd leadcd iot giilty tO the ãhaO the • On no uvidoi?Oe as nar ,ed by he doctor, (Pw.1), cn b no distC tht r 1dOrG1Cri{ wa me e, (B T 6) h c diod Lqu lly L}rc can r1ra by 'dn ar o2 h y le be no arnont free the o:Ldcnce of the doctor and tho post—' ha •;lle (Locoased, hayaia Mmira, norcon report - oxiibit ! died a viOlJflt te be answered, by this court is: • 'The, crncial iiOSU011 who was tth; orDetrtOr cf thJs odious crinc? In support Of the allegation that it was the accused who ' dcco.er3ed on flee' naterial day th: RopubliC fatally hck4 t in th I j] — coo predccd c it, is ii ny viOw, evidence on hotheidos. Before I do so on flint th foi1,ojng facts wro, in the relovan' to nrin not in dispLtO Thc accusod and a wonna by fl; OC üf I±O± d/o 1!ngO11 lived tc o i i r con nuo'l en n I fr r inot five jii JiiUiY 2 1 975 there arose a nisuflclor, years. OflOt- in separation. standing ID twoan than and cons uóntly ti:io lived Whi] at Limi wont to live uith her ft cr, TIngc.nga, (Pw.6) her father's place and about three riouths after the had' left a ccusodt s hone, riho ot nnri'ied stofather he deceased who paid as dowry. thi±tcen head. of cattle to Lini nd 'b er new husband lived at Bulung'i village. In July 1975 Lini, 'ecconpaniod by the deceased, viiited her parents and the' stayed with her 1:'erents for eerie dns. fc' slcp in a During their tn LirrL and the deceased UCCd separate' hut fran that occupied by iior parents. The hut tili under cnstrUcti0n cfi was only half was a ;o'erentJ LiTli seed the deceased thotôhCl, with en jLCviSOd deer.. is wore sleeping in the house an infnidor entered the hous end he doccee sod uns so grioVouslY injured that ho attckod thorn. succured to his :exjuries on the following: day at Kie'nboi 0idnCi of Lir (Pw.8) , the Govorn:eont h o spital. Fran tIe ', .ri''It was a dark night. • attack took piece at ebcuf TIi: p'.- I.Li.X. ai'gu; :aTa; ua. TrSCr. who atta ckoc3- and ki11.d thJ LOCOaS..1I :.s tli. ccu :d c4riita Shijo., and rcught ti'oo wilL . iid ytuong othor things), regarding id:it: f thc OCUi;d.5 tIlO LlSSailOflt. Star ing wi L ;i. oiJ ac ngn, (Pw. 8) sho re- a Iini Na. latcd t' thc crurt thn; a. h w.toria1 niuht Fiiw ras 9 •1• . slac hos,rd or ckig :h ha: hi: ho tc:ck tile die 1rorLo'h T.i n :c•awii; ;h: hous bui: that nO soonor hd :ho uih; :, eoii honi o crch on thomas they Get 1 l7 i 11 (u hr torCh J C lo r 1 911011 u aa TL' i.LlI1lh11'. She tol fi cc ;c:. ;•: c' -. i Co LO ila:r or struck her torch whie: :iI un t}i gr.uiwi ho 'iii .d that ho had with th ir wi U. y ;i' I t_f l OS her frraor jarriIailL :JI IaO The witn:was t: . th.: c:u± that ti'io 1r!ruc or said as ho was tacking ;hor. .ft(;_ n..aiaey.: will die tc day It woe r etir. nr :hat th V.):C0 which sho rocognizod as tilTtt of exigitr. OOII' trn;d her earlier ontIficotion all the nOro ThiU tI 5 lciccr. o from tho- r on and ran 1 crying to th o hut ha Tihi hr par J. were sic: ;j)flg and woke then. She :OoIIti th: d as the person ITho had attacked tho:o Li c mcther CIL,r r..]eIt:td to the couat how sh. h..ord her dci. ga i h we th c cr r h r 11u hw she, accopan od a her hushe:icl, Pw. 6) ran to theE. cone of crirw. C 02 •:cidc IC: he idontift ccl a person running ou'y £r c- shone nis torch an tL I . reon E 000UIi wi.. G-rigita She that the aecue wan cc. a wiwt T-ehirt and. a pair of short troro ' s h -e - c was hcc ijU., in his rJ.ghe i0!C and a torch in hir. other hnd. , Lini c; father inr 6 goare :oc:mj or lss sinler ovide.nco as that of his utfo I?r. 2. reg:eydirg identification of the accused cu to: I ateriei :iegt iccordir:• to hio :iiny es ho was fJ.ashin his torch dirocti:ag'ito to hut i: -. o1ech i:U aLL th docoasod were 3lep1l1 no an - c' r ci 'v tao uo 1 ro in ge sing n 'T - , acirg boa Cour p cs fro th accoocr ama ehan; a.: ceo.xl, -eie1 0 the aid o lois torch cloarj.y see ac crsod!s fan . ieecc e:ia mc ellis witness saie ehat the accused iran i ariag a aLto .L T-shirt ond a pair of short trousers. Th.s iTi ia-s ic i±i:d thY: ho caiCt to the ccusüd tlYou G-rg.ta, why ar-c Ca. ]Y.to Lag :I 1 ciadrGil, wart have they done to you'? Thy; that th acousod did not reei:r, Cno 9 Solomor. Mge]ww. (ii,3) r -'. cell-leader of the area, told th COir-" £ 3 cL c ei f criL r i h scue ni 'not and interrogated :..imi •Pw..3) as to Yeat had hee•.rcnod. According to his evidence Ijtoi nontionel ig:ha her fomar hus•ejad, cs the r.an wno hew. ne UnCIT d e Before coming to oY C ftOI ;nce r:gardi the ovicleiace f Jr 1 onoif C1C11 ± W,k L riatioi Gh 'ha Lii's parmats, u i alru uoa- wicugia tho accused and Ijai hed l:hrto tc.h;h u' man rnl wife for at five yorr the accused hi cLot ccii dowryLcoeriind: to Sukuris customary -c51, The parents regarded the eocia;ion .e nero concubinage ..s it had not be regu.laisod by payment of dowry. The accused on the other hend argued that he was lawilly married to Limi unthr ukuma customary law and that ho had. a]ready paid tá Lim:T.s fathe' 600/- on account towrds a dowry of shs, 1 20C'- whom iimi cccorcEng to the accused, absconded from the uaGrrnoniaI hone Limits testimony, to the effect that the accused forced her out of his hous3 saying that âho w.s barren ond lazy and therefore useless tO hir' ill in the course of my judgoent, discuss th3 legal .' ition regarding the relationship between the accused and. 'Limi at the tue the ceased r.et his death. Turning toaccusods defence rogerding -the irosecutiofl .cvide eVidence that he- was idntif:1d as th': person who on the night of 6/7/75 attackOd• o,nd killed the deceased; the accused advanced alibi as his def'nOe. He told the 'Ourt that o?'i. 6/7/7 ho was in his houso all day and ni-it Likense ie sm h d' not L.ovc his houce on 7/7/75. ikccording to his dofonoe he only left his house on 8/7/75 to Igunga... The. la- regad.ing identification of an accused as the one who con:1'tted an alleged offenee has repeatedly been pronounoed by this 'ourt arL the dofLnce :n:t of L.ppeal. .D.oaling with th$qucst:Lon of ,tdentificaticn the Court of Appeal hod this c aoy in t3 5 hefi ENDOandAnother — 20 E.L.0 E.A.C.L.. at page ' "Subioct .t certain ll-knc'i ecoptions it is trio-la' that a..fac;t may Oil proved,, by the .tOStJ.flQfl3 'c•.x a singic wJ:GnsE but ithis rule does not laor tho ne.d' for tost:ng wi h the greatest, care the ieideñcc ci' a ingL; WJG1IOSS respecting' idonfific'-,joja sp i - lly ircn it is known that the condrL- o'' i' oi u r rrcct idoiitific t,ion were Sfi LJ J'l oh ciutcncos whet is n,edod is oth er cic .oc wi thor it DC circutantiJ ...is or dire ct'' pointing to guil - from which a judge or jury can rcasóhahiy' .coneiu(o• that tho evidence of idontificatioii,. ' .a:';hoih ba'ed on the testimony of a single witnosc: ; 'ann oa:'cly be accepted as free . f.ron the pee S_bility of I In tho iresent case Li,m:. (w,fl) said 'that she flashod her torch on the inrod ' - e. -'aci dcnifiod him ' the .., acQusod, .Grigita"-b.ija, her former huEb and. She also said that she heard and rocoizOd accusod'.s øice. Lini appeared to no to boa taci:urñ witnss and iuprossbd me in her testimony. Her doioonour ... i the witness-box and, the way the replied questions ut to hc by the defence loft me in nc doubt regarding her d:hility. She had livod with the ceusd for, at '-least, fiiTc yCaTS before thu incideIT; hc iin'niatolj and without anr hesitation mentioned the accused to his parents ':Pw ,2 and Pw,6) , end the cell loadcr, (iPT) as peron who had a'Gackod her and the deceased. 'h indod rent Dir -thor and described accuod attire On the f eful'nigh1, -b - was. as rightly argued 'by the dofonc o, a- dark nit. but ,s the ovi.denc o ajo ply demonstration Lthi"s torch conplteiy che ..god ?that would have otherwise been difficult cond itic'ns favouring idontification of the intruder. 4. 'a In Ibthila Woios easo (abov. ciuo;':;d) tho trial - court. i iivico tliO accus1 on ._vidnc c.f one. idoaitifyin •3aLtnos1. In t}I prosont so th. vid.no of Li i'3 aWflY)rtod to Itho hilt by two o;h.r eyo witossi n o (Pw2 an w.6). Thoo witnssos d± not onLy su'5porG Limo o cVih:nc ;i1. 1iO aCCUSOd was th -:Io'a sho saw atacking h.r ai tIi- Locoasod but -bhoy also conf•i:nod Lirai s doscrpbion• of accucd on tho orialfligiT, As to tho uf:aic. of alili i.,r was tlio Ji1.0 Of azinoto, (Pw07) W1O tasif - ha acouoo L;i; £15 house on 5/7/75 S1Ll, ha cLLbro bicnr o 'L h n,-, - a l ra oll K 71i rto b s oVJI a c c -a t.TO t ar ii s rt nd. a pair of khaki shorts roaeors thn IL lof;. JpP.ront 1y Id aS: t1O OV.ilO3 •S1OWO 2 j).00 tI:o xon nd later outsid as h was inin-; a:C.y fron ini scone wa clad in a white T—shirt a pair c. sLcrtt rousors. -- lTh,1 f3 wasp in ny corisideroo. OT too r.ch of L.CCU;d'S doiooanrur and boaring in t1 witness boo lft :uch t •h r' '3 ( fl e s Ja qu c t. an s 1 or th : - C )iTl aL 51 ' 'fl Cl r,flOO SL - Yi r.fl2C4 to h c rrn lflt,(1 r r]flb 5:1 J- r re U o Lj o C3 '3 i :ns. - - That ho was an UnreLla )le W1flO5 was arply r:uat out wh whon, in answer to a question by the only asecssJ-) the othor. ass esor having. bo Jn disonso1 with under soctin:a 27k) of the Criminal Prcodixo Cod.c), nc,n;ion:d nones of two. oldors ho said whero r ihon 'a ; -'i' a C wry .' Ion 'e foth r L. minute.. or so late:: whon .:oekod by the; court to :nnticn the nn es of the two o.iers again he or evaricat .d. Ho f:org:t one of older'a names an7 nonti'nod a dift' rent on Taking inc acc.ant the idonce of Lini (:8) hat of Liri's pa 'ents, (2w 2 'xi' ±ri,6) 'ic' r 'ricnc 'f vzimoto (Pw.7),, I an fully satisfiacl fl; rj 0W1 uin thi the qaest±On o± uiet -":n ic'ontJf1c' - tin 't fl- C(US d by -a-'- -~ nO h e r parents as the person who, in tho tful nig:.o aY: .cin.d the deceased can safely be eicludcd. On the tctaiii;y of tI'iooaridonoe an satsfted th: accusoJ dofthac of alibi has iio. log to stoa.c. en and is c o:L..y an aftor thought. His dofunc that all tlao fou rrc S 3L Ca w (Pw.2, Pw.6, w7 nd Ew.8) gaire fsc 3t riCE Th crrto causo him his undoing is on the evidac ..haVa ?.c ao truthful a clumsy attcrapt to escaptthaçuonc :CCC5.. Liks the LKentlenan assessor, and taking into aecount J c s eyidaCe. I CY' Set1F'C ihu i' 5Oct511 S C ' - chE o" ie ccoc. thai; .caisod deceaeod death. .ccuercI's a cto w3r..oJ.early imlat As to the cuostion of nalie ,fc'r:thoiaaht Th. learned statc attorney argoI in hi subniseiot.. that aocuood o uee f such a lethal weapon ao Q panga and th uarner ho - inflicted the . injur:s on the doocasod prved acouoc.d' s intention to kill at the tine he was attacking the deceased. Lruing as to whtthor, on th. evidence, h'rc were mitigating factors that could rocT.uOo what woulo apotr to be cao' of rIu2cL.r cc l'cr o.frnc ,, I' nnl'u 1 tilO d sv4C at G my was f' lb Va. w GhL acithor s' ' ec±' 11 0 o nr — drunkness wore available to the accused. 5 - As towhethcr there was, provocation of th aCCUSed by the deceased when the former killed the later the learned state attorney. argued that the accusd and Limi lived in .concubimage and that. at the time of .th:. kifling the accused had terminated • the,asseciation by forcing Limi out f his house saying that she was barren and therefcre of no UE.0 to him, it was submitted that as the accused had. himself eiadod the association it could ndt be said that he was Drovokod whom on the material night he found Limi and th; deceased in hod. The learied counsel submitted that the kifling of the deceased was an act of revenge 'and that :u te. erefc.re anouned to nurdor. In rbuttal tho loarnd defence counsdl argued that the accused 'rLd Liui L .d s -i aox w'i a for ab five yors. Thisbeing the. o.ridence it. was arg-ud the accused and Limi were, •under the.i aw Q.f Marriage Ac presumed to have be married. '. It was the learned counei aarunent that even if the court was to find it a a fac - t}aat it was the acóused who inflicted the faicl wounds on 1ao deceased, he was, it was aihuitted, prvoked whai h- saw hi wife, Limi, in hed with the deceased.' On the argument by ,the :rosecuticn that the' accusod had not • . id •d'o'ay. t o Lmis father. G was "Ghe loarnec aefonce counol's subñisOibi. that oven LZ that uaa. so ' .±paym.;nt of dowry does not it was arguzd, invalidate an otierwis lawfri marriage. As I have already mentioned ab eve there was no dispute iiathis ctse that the acdused and Limi lived togcther as rn and wife at. least five years. Acco)tlng for e moment th- pros c ci'tion csc that the accused did not pay dowry to Limits father., did the non—payment of dowry moan that the acouod could not say Iiini was his wife md the- -c their iss - clatioa should l aJong be bt.anc1 ed by hac .around them as merely one bf .èonctthiiiage? The gontlrin aasesa'hr who is o: the saie tribe as the accused told the. court that accordin tc $uhma and. Nyanwezi customs, '"if one lives with P. girl wi:;hout aying dowry the marriage is recoguized as valid provided the parents a,.rovo the Astb 'he question of Liri lea: :'Tr acc uso d? s house to her parents, the assessor said that Liu T s parents should have returned hr to the accused and nquire as to what was the cause • of their differences. • • The .asseaor was'of 'the opinica that the accused inflicted the fatal blows on the 'deceased s,s a result hf rrovocation, after seeing, the deceased and Lini in bod' • Thare can be no doubt that the long cohabitation between the accusód and Limi entitled those' arau.nd then to presume that they were married. Our law rogerding such a situation is very clear; ' cion 160 of the Law a Marria'o Act —Act_No. of 19 71 • C.(i ) ° Where it is eroved that a mpn and woman hv lived tcr;ether for two years or upwards, in • '- • such circumetaneos ac to i.: - ve acquired the reitation of bein{: husband, nd wife. there shall he a. rebuttable presumeon cmaG they 'ree duly narriod." In the present case it is agro. d th's:b th, accused and Limi lived ogcthcr for at leas -G five years, L This beinr the potiait is nore t.ixi 1O1) •iC that pC'O7lQ around then tooktheir a ociation as that of a husband and wifo. There wasp under our, :LT a unptid11 cfrriae botween hal and the accu5ec. • r.GJTh 1965L the facto - In the aso f 0 ,\1j) o± uriich are, :e. sons rcpec' in oil fours with the prc-sellt caso, the accused and. WOtlOñ' had liTed ;egethor as rii • and wife for about two yc2:n but no arriage recognized by their aCtULJ_y aken olce as hu accus ed had cu;oflnry jr h hod paid flOG 1C t2 1 )L )L p ee cou ali shs • 1 30/-. on acoun;. The wonan was ordered Ly her relatives to rturn hoe acdsodt u e failure to ay thh bride e n bcause e, the pr ce in full, and he did so. Eih; days J,cr the accusod went to the house in ieh the sean was living •aad found her together with a rsai ia cirunstaficC indicating that they had had , nor were about tc have seaiai intercours •he socusod- ar1od1atOly stracl: sr. a Ii y olow an h:;ad and caused t his death On b::iiC ch.sgcd with iaurdcr Jie trial uJge fornd that the cirCUrioanco: iii which the accused found the woman and the deceased tog tior oouJd. hse ben s-uffidsnt to afford thô accueoci a do moo () a ch.±go LTLUd.Cr, had -to accused and the woman eeen 1:: i:ig oge].i:: Dul he hold a:at as tier concu- lJ.l decor e as an ct f bine go h d ncLc murder and not r,:saughtei' Onogpea tie Court of LpptL hr), d th: a to say - (i) "The rolationshia between the iellalit and the woman: 1eaaiatOly prior the killing of the deceased wa that of hsbaild and ii6, ait12oui they were not rogularly married, and the w omant q, temporary a:sencs had not brought that roj_ati'nE;hip to an end. T1 die c.ThvOry o± ta.; woman end the doc eased n in circoanCeS which would ii - a ;aauatoa t" adultery, .ad' the a:'pcllsnt and the women been rp ; ulariiliarrisd, was such as to raise tho rssuaetiOfl the J'j 1-1• ws done uit on. 1rov cation having regard to the long 1Dsisting conoet)iflag betwocfl • the aa I iat end tIewonoa ., Th( convc;:icn. of nuad:r was :uacd and. conviction of nns1augito:. eii stitat The Coure •f eppee. 111 an o licr case - KLL1ThLJL TTJ1J gave samiln.r reasoning. In the prooent case there can ho io dcubt, on the OV: 01105, ishp 5oiven Li -a anI t ccused inudi ely bnt the r1 prio± to the kiwino of the decea sod ws that of hushrfld and wifo, lthong 1 z y wr no r J-rLr na$r1d. Even if L sako of gunane Iacc-afi th Repuolic submieoicn that -iFaS • on the grcuid ' the accused who had forced mi oa o.-c ais aousa, that eli was w e ce ct cnn t by any 1rctch of he said to 1iav brcuiat their long standing relationshiP of husband and wiXo to n end0 Threis no evidence at all in tis case that the cce:,d know or had reason to believe th Limi had airandy been rgu]rly rrriid to the d.ec ed ror to ts t bed on th. material ovon:rg 6 There being no suh eiridonco the learned state attonaoy's argument that the accused killed the deceased in revenge has, with due reoect. to the loarriod counsel, no lg to stand on, ffter consiaoahlo reflection I tend to aroe with th gentleman a ossorhat the discovery of Lini and the deceased by the accused in ci:cunstanccs whiCh would have amounted to adultery had the accused and Lini boon regul1y married was such as to entitle this ci.txto find it as a fact that the accused attacked and killed the deceased under provocation Inving regard to the long cohabitation between the accused and Lini which by all intents and rpc)s( had acquired the reputation of being husband nd wife,. From the totality Of the. vidonce Ian satisfied as the gentleman assessor is, that "az ordinary parson" of the cowunity to which the accused, belongs would have bcn provoked under th circumstances. Invoking my powers under section 181 (2) of the Criminal Procedure Code I find the accused guilty , not of murder, but of manslaughter c/s 195 of the Penal Code; and ho is SO convicted. N. S. Nnzavas Judge Pros: The accused is a first offender but I would like to be hoard r.c•garding sontonce. In aeeing sent enca I would' ask the court to 'take into acOoun -t the jjannor inwhich the accused infl±ctcd the brutal blows on the d.oceased. I ask this honourable court to impose a detorrat sentence. In Iiation - Mr. Mbezi: My Lord in xioing sentence this court should not 'only take into account the nature of injuries inflictod on the deceased but also +Ji6 surrounding circumstances leading to tho ° cotission of the offonco. Pt'.8 did not leave accusàd' s hone peacefully. This fact added to the fact that the accused found hot in bed with another man onountod to grave provccation The accused' had the panga with him when ho entered t o house. The accused is mrried.to two wives end three childron. He has two sisters and two brothers uho depend on him. Ho is a first offender and ho has b c.n in remand for 31 months. In view of these mitigating factors we pray for leniency. iccused: Nil. Sntcnccg Thoxo con be no doubt from th ovidcncO especially 'that of doctor, that the accused, using a panga inflicted grievous fatal injuries on the deceased. That ho inflicted those injuris while acting under provocation there can be no doubt. - But as rightly submitted by the learned state attorney -the manner in which the accused attacked the deceased amply shaws that he was actuated by ma3 ice. Ho savagely out the deceased with apanga notonco but four twices - Each tine directing he lethal oapon to such VulflorJ)lO parts of the 'body as the head, the chest and óack. Had the accusod inflicted only ona cut wound with his penra the learned defence ounool' s plea for leniency would have had the blessing of this court That he sobrutally attacked the deceased amply shows that the accused has littic regard for hunan:lifo. ' 4'' 7