na TZHC Dodoma 2

I o a'— H-c D IN THE HIci-H COUItT OF TAItANIA AT_DODOMA 0RIGI11TIAL JURISDIc:T ION (DOD0iin TJTPLY) CRITIIdAL ChtIONO CA3i NO. 140 OF 1972 The Republic vsus iropboisjQa1arioeGa Charge: Manslaughter c/s 195 of the Penal Code. JUDG-EIIENT In this case thu accused stands charged with the murder of his father between the 1st and 11th days of ;epteiber 1970. He has denied the charge. The evidence as regards the corpus delicti as well as the evidence implicating the accused is purely circumstancial. In my suuaing up to the assoesors, 1 put to them the :ollowing questions specifically: Is Ewanyer eta dead and if so did he die through foul play? If he died through foul play, is the accused the culprit in the litht of the evidence adduced? Two of, the three assessors answered these questions in the affirnative. The third one, however, agreed that Jwanyegeta died foully,, but he had doubts whether, in the light of the evidence adduced by the prosecution, it was the accused who killed his father. I will attempt an exhaustive exarajnatiQn of the evidence to see which of these two opinions is the more teaijle. Circumstancial evidence as learned defence counoel rightly pointed out, rust he explicable upon no other hypothesis except the guilt of the accused. It must in addition he inconsistent with his innocence. I emphasised this point to the assessors in my summing up. There are several strands of evidence in this case which must be examined to see what they add up to, cumulatively. Firstly there is the fact, deposed to by the witness Ernest Nwaluko who saw the accused leaving the pombe shop together with the deceased that it was the last time the deceased was seen alive. That the accused and his father sat and drank together just before his disappearance was also witnessed by Esteri Mwaluki and Nzali Nalaka. Ernest Nwaluko cannot thus be lying or mistaken when he days that he saw Bwanyegeta and the accused leave the po:ibe shop together at 7.00 p.m. having been there since two oclock (2.00 p.m.) that day. The accusedt s denial that he left with his father cannot therefore be reasonable. Like the gentleran assessors, I accept this evidence and hold it to have been proved that the accused was drinking with his father at Ernest Mwaluko' s after which they left together at 7.00 p.m. The fact that they were only two provided the accused opporimlity to aseault him in darkness without likelihood of intervention or detection. 9 ..../2 -2- According to Ernest Mwaluko, the accused and his father arrived at his pombe shop drunk and quarelling. Although the other witnesses did not depose to this fact, I am in no doubt that Ernest whose duty it was to keep the peace within the precincts of his pombe shop, was in a better position to notice and did in fact notice the accused quarelling with his father. I saw rnest giving evidence in court and his deneanour and understanding left nothing to be desired. It was the memory of witnesses like Nzalj which gave cause for. concern. It is not surprising therefore, that Nzali should fail to notice accused who sat close to her quarrelling with his father. I am satisfied and find it to have been proved that the accused arrived with his father at Mwaluko's drunk and while thsre he quarrelled with his father, He was, for this reason, the only person with a motive to assault Bwanyegeta. The witness steri who has been in the village all her life said that she has never been seen Bwanyegeta since that day, and that Bwanvegeta is the only person missing todate in their village. The witness was emphatic that if there was any other person missing in her villae, she would know. That is in fact the theme in the evidence of all villagers there. I am satisfied therefore that Bwanyegeta is missing and the accused has not disputed this. He has 4n fact said that he was himself looking for his father before the Police arrested him on suspicion. At the same time only one set of human remains were found in that village. The Government chemist has confirmed that the bones were indeed human as Were the blood stains on a shuka, a maize leaf and sand collected where the bones where exhumed. The witness Jalakoje, a brother of Bwanyeeta, identified the hair found at the scene to be that of Bwanyegeta. He also claims to have picked up at the scene a bangle which he identified to be that which Bwanyegeta used to wear on his hand. Although the bones were exhumed from an ant-eater burrow, some of them were found lying on the surface. There was found close to the scene, in fact only 25 paces from the burrow, the shika which Salakoje, Masanga ilkama and Masasu Chiwaza identified to be Bwanyegeta's. The Government Chemist found the shuka to have the same blood grouping as that found on the maize leaf and the sand. The only reasonable inference which could be drawn from this evidence is that the deceased is indeed dead and that the bones, hair and cloth came from his body. The blood stains scattered round the scene are evidence of his having died through violence. His body could not have hidden itself in the burrow. It must have been hidden thQre by his assailant who by so doing wanted to cover up his crime. Like all the assessors therefore, I am satisfied and I hold, that the man Bwangegeta who was last seen in the company of his son the accused is dead and that he was killed by an assailant. It is the law that ahomicide cannot normally be proved without showing the corpus delicti, but, as was laid down in R.v. i''1.JXiIEL J•;iJLA (1931) 13 K.L.R. 58 7 'the circumstances may be sufficiently strong to show the fact of murder although the body of the deceased was never found • In the case just cited, some human bones were found at the place where the murder was said to have taken place. The corpus delicti was by this evidence held to have been establis'ed. -i-n another case, (NG-ITNJIRI MUG-I (1939) 6 EACA 90) the facts of which were not entirely dissimilar either to the current case or to Mwande:.iere's the corpus was held to have been proved when after the deceaad vanished, a skeleton, his necklace, part of his belt as well as his beads were dug up from a dunghill. From these authorities I cannot but accept the unanimous opinion of the assessors that l3wanyegota is dead. I have already found him to have been killed by an assailant, and that the reaains are his. The police officer who investigated this case told the court and the assessors accepted his evidence that it was the accused who led him to the scene, showed him the ant-eater burrow and pointed out the deceased's shuka from under a thicket 25 paces from the burrow. I have no doubt that in so saying the investigatin officer was telling the truth. The accused's act of leaLng to the burrow and to the ijhWfa wag nt .a:;.cOnfessi because by so doiug the accused . . . ./ --._)3 - cannot be said to have assumed responsibility for the homicide. And even if he could be taken to have admitted to very inciminating circumstances, the investigating officer's evidence would still be admissible in as much as it led to the discovery of the deceased's bones and could therefore be nothing but the truth. And it is settled law that an induced confession leading to the discovery of a fact in issue is admissible as in this case, if circumstances show that it must have been a confession of the truth. I am satisfied from the foregoing that it was the accused who led to the burrow in which his late fator's bones were found and that the admission of this evidence was proper. I hold it to have been established further that the deceased's shuka was pointed out from its hiding place by the accused. I would therefore find no cause to refrain from the inference that either it was the accused himself who hid the body in the burrow and the shuka in the thicket where these items were with his help recovered or that knew who hid them there. I will show later on that the latter possibility is out of question. For one thing the accused did not controvert the investigating officer. When the deceased could not be found at home, his brother Salakoje and his nephew Masonga Mkoma in their om time questioned the accused. When Masanga first questioned him, the accused said the deceased had gone to Ipande. On his return from Manyoni some days later, Masanga again inquired from the accused about his uncle. The accused this time said that the deceased had gone to Isenefu to drink. Nasanga went to check there in vain. Nasanga had thus but to report to the cell—leader who summoned and arrange a search when the search party gathered and went out searchng i, they found the accusqd in the bush. He told them he was looking for his father. 1 his was after he had disappeared from home. That the accused should be changing on this point can in the context of all the evidence in this case, only mean that he was trying to conceal the fact that his father was at that time dead and that he himself knew this. Taken together, the circumstancs adduced in this ease are incapable of any other explanation except the guilt of the accused. The evidence is incompatible with his innocence. I would therefore disagree with the one assessor who was skeptical about the acccused's complicity in this homicide for reasons which I need not repeat here. I would side with the two assessors who held the accused responsible for the violent death of his fater, for the very same reasons. All the witnesses who saw the accused and his father at Mwaluko's said the two of them were drinking. It is the law that malice aforethought is less readily inferrable where the culprit is shown to have taken liquor immediately before he committed the offence. There can be no doubt end I hold it to have been shown that the accused took a considerable amount of liquor at Mwaluko's and before he arrived there, lie spent some five hours there, drinking with his father, quarrelling as they caroused. There is no evidence to show that he planned or premeditated his father's demise, hike the assessors, I would fool constrained to rule that no malice has been proved on the part of the accused. And especially when there is no evidence to show that the attack was a deliberate and sustained act designed to cause death or grievous harm s I cannot but hold that the accused is likely to have killed his father as usual, in a drunken brawl. I would therefore give the accused the benefit of the doubt and hold with the assessors that he killed without malice aforethought. I would in the result find him not guilty of the charge but guilty of the lesser offence of manslaughter. With that offence I accordingly convict him. i. H. A. IIKINA AG- . JUDGE. -4- Record: Accused 1st offender.. iitigation: The accused is a ft:st offender and looks quite young. he has lost a father his step mother has absconded. The home is math dead. The deceased's estate is perishing. Accused has been in custody since September 1970 In view of this the accused should be treated with leniency. The Offen ce was committed in drunkenness. Deceased may have been to blame. Th at possibility cannot be ruled at. The accused be considered in th is light. Accused has nothing to add. $en.tence: I suppose we have to accept the ugly fact that drinking is part of our lives. Those of us who believe that it is wrong to drink cannot, in moral indignation and self—rightecus*ness impose our will on the drinking majoirty. But the idea of curbing the manufacture of liquor should certainly be looked into by society. Beer drinking is the source of most tragedies .......... It is in addition a humidrance to progress. People sit to drink and leave the work to the women It is time the party directed its attention to the problem of drinking and its sister evil—alcoholism. darsh sentence have. over the years failed to curb killings at pombe parties. ut occassionally the court is tempted to administer shock tfeatment where circumstances warrant it. In this case however, the youthhof the accused, the loss of his father long time he has been in remand cry for leniency. The accused is therefore sentenced to four years imprisonment. N. ii • A. 1Vi 1KI1A AG- • JUDGE Appeal rights explained. N • UI .A • KIKII -h. AG-. JUDGE.