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IN TIED hG-H COUNT OF TANZANIA AT SING-IDA : U7c 1 ORIG INAL JUN ISDICT ION (DoDOrJ RJiGISTRY) CRIINAL SESSIONS CASE NO. 161 OF 1972 TEl REPUBLIC •VBRSUS S.IDI lABIA Chrge Murder: c/s 196 of The Penal Code. J U D G- E II E N T KWIKIMA AG-. J. The accused s -bands charged with the murder of his wife Pungi Kutiku on the 25th day of March 1972. He has denied the charge. The evidence against the accused is, on the whole, circum- stancial in that no witness has come foreard to say that he saw the accused inflict the injuries which caused her to die. The nearest witness to this was P..1 Tausi Nianga who claims to have seen the deceased lying dead with the accused uttering threats to Tausi for witnessing the spectacle. One of the gentlemen assessors advised that by the words 11utapaa juu 11 (you will ascend the heavens) the accused was threatening Tausi with death should she give him away. I saw the witness giving evidence in court and found no cause to question her credibility. Like the gentlemen assessor I accept er evidence and find that she failed to report the demise of the J eceased immediately because she was herselt threatened with •death. 17n accepting Tausi's evidence without reserve I would recall the - passage in WANJA KM1IU v F 1965 BA 501 which goes thus "A person who merely acquiesces in what is happening or fails to report a crime is not normally an accomplice, but the weight to be given to suh persons evidence will vary according to the reason for the acquiescence; if it was based on difference, the evidence will be treated with considerable caution, but if, for example, it was the result of fear, there is no reason why the evidence should not be relied on." • The two assessors who based their opinion on the evidence of Tausi said openly that they believed her.. To this advise I respectfully defer. Like the two gentlemen assessors I am satipied that the witness Tausi delayed to divulge the news of the deceasd's demise on account of fear. I would thus accept her word and fii4 that when she went to the house of the accused to collect flour fihich the deceased had promised her, she found the deceased dead and was herself threatened into silence. The learned defence counsel objected to the admission of Tausi's evidence that the accused used to beat his wife the deceased prior to this incident. He felt that the ' - character of the accused was being brought in. When I admittedthis evidence, I was satisfied in my mind that the witness was giving • evidence tending to prove how the mysterious demise of the deceased came about and why. - -2 - This, in my opinion renders the evidence of the previous beatings of his wife by the accused legitimately admissible. I exercised my discretion and admitted that evidence because it tended to prove the charge in accordance with 5.9 of the Evidence, Act. Indeed in JOHN NAIINDI V. H. 1961 IA 327 O'Connor P. cited with apparent approval the following passage from HARRIS D.FP. (1952) A.C. 694 "In all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted if, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distiction is plain, but cases must ocóur in which it would be unjust to admit evidence of a character g'avely prejudicial to the accused even though there may be some tenuous ground for holding it technically adrissible The decision must then be left to the discretion and the sense of fairness of the judge. il That the accused used to boat his wife is in my opinion relevant to the question why the accused should assault and drag his wife on the ground as the doctor found to have been done to her. According to Tausi she had been to the well to fetch water with the deceased shortly before she went to collect the promised flour. It cannot be a nero coincidence that the accused should threaten her with death just because she saw the dead body of his wife whom he used to beat prior to this occasion. The deceased must have reached home andfound the accused there because Tausi saw the vegetables and gourdwhich the deceased carried om the well. The accused's search for the deceased carried from the well. The accused's search for his wife musthavètheroforo been a stratagem to divert suspicion from himself. The accused must have known that his wife was dead when he was putting up this act,, for, when he threatened Tausi, his wife's body was lying in the bedroom for him to see. How could he then go out and pretend to be looking for his wife? He wanted to mislead people into thinking that his wife was in fact missing when he knew she was already dead. His stratagem as well as his threat to Tausi is evidence that he must himself have killed the deceased or else he knew ' the killer. The evidence is on the whole incapable of any other hypothesis and wildly inconsistent with his innocence, like the two gentlemen assessors I an satisfied as i so find, that no one would have killed and left deceased standing there, that the accused killed his wife just before Tausi came 5 that to seal her lips he threatened her with death and that to cover up his cime he hid the body in the millet shanba close to his house. Thereafter he mounted a search for the deceased whora he knew to be dead when he was going through this make-believe. His alibi cannot thus be reasonable and I reject it for the reasons I have just given. On to question of malice, as well as the actus, there were as many views as the asnessors in this case, One assessor held a doubt whether Tausi, having been drinking that day, could have been in a position to appraise things properly. 1ith fufl respect to this gentleman, I think he was too cautious in his approach. Reesons are not far to find why his opinion should be unacceptable. Tausi's demeanour in the witness box left nothing to be desired. She stood quite well to her cross-examination. Her evidence is corroborated in material particulars. For instance the deceased's mother who lived with the couple joined her in reporting the way the accused used to boat the deceased frequently. I would therefore accept the view by the two other assessors that it was the accused who killed the deceased as Tausi's evidence tends to show, .13 -3-- One of the two other assessors who held the accused responsible (' for the deceaseds death found him to have killed her deliberately. His reasons for such view were largely speculative. He felt that the accused chose the moment when his mother in law was away to kill the deceased. It cannot be said that there is evidence on the record to justify such opinion The doctor caid that the bruises which he found on the deceased were consistent with dragging, and that the wound piercing the left temple was caused by a spike like object. Such woundm cannot be said to have been inflicted with deliberation. It is my considered view that the accused who used to beat his wife went on the rampage this time and in his tantrums overeached and found himself in this predicament. After all, he had himself, like the deceased and Tausi, been to drink liquor before this incident. I am thus constrained to differ with the assessor who fund the accused guilty as charged in as much as the evidence tends to show that the accused could as well have killed without intending or deliberating to do so. It is doubful would thus agree with the second assessor and give the accused the benefit of my doubt. I would accordingly find the accused guilty of manslaughter. I would say in conclusion that the accused finds himself in the happy position of being convicted of manslaughter just because evidence was admitted to show that he was a cantankerous, and bullying husband to the deceased. This evidence enabled this court to conclude as it has that the accused killed his wife in one of the beatings he usually administered to her. This crime is otherwise enexplicable. I would conclude by pointing out that any evidence of conduct that would benefit the accused could be admitted even if it helps the prosecution to prove facts at issue. And when it is a matter for the discretion of the judge as it is to decide whether to admit the evidence or not-, it is my considered view that a judge should also weigh whether that evidence could benefit the accused if admitted. The conduct of the accused has helped me to reach the conclusion that the accused did not deliberately kill his wife. But for this evidence, it would have proved more difficult to convict him as I do, of manslaughter c/s 195 of the Penal Code, WE M. H. A, K- IIMA AR. JUDGE, PLecord Accused let offender. A deterrent sentence should be noted out. People are killing and hiding the bodies of wives after they have drunk, Mitigation The question of wife-beating shows that both parties are wrong. Socialogical inbalnes have wrecked manieges. I am not ieten that beer drinking will be discourage drinking to reduce reclessness, 'Je have lived with drunkness which is the increase. They only wat is to reduce beer-brewing. Accused has suffered by losing a partner. He has been in custody quite long. If the court could be lenient. Allo cutus Accused will rely his advocate submission. /4