N

IN THE HIGH COURT OF TANZANIA AT SIGIJA ORIINAL JURISDICTION (DODOMA 1EGISTRY) CRIMINAL SESSIONS CASE NO 0 53 OF 1974 THE REPUBLIC VERSUS I'ULA S/a LANGA Murder c/s 196 of the Penal Code, J U D G .M E N T ?'flula s/o Lyanga stands charged with the murder of one Zura d/o Shalua. It is not in controversy that the accused caused her death on 6/12/73 at Kiteka in Irarnba district and the main issue in this case is whether the killing amounts to murder under section 196 of the Penal Code. On the evidence it is clear that the accused was the husband of the deceased and that at the time when this incident took place they were living together0 It isriost likely that their marriage was not a happy one0 It was not disputed that the. accused often beat her0 On. 6/12/73 there was pot.e at their home and both of them drank and there is cause to believe that each got drunk. There was then a quarrel between the two during which the accused assaulted her and caused her death. When her body was examined by Dr. Ngwishemi (PW9) he found that the deceased, apparently VF about forty years old and of an apparent previous good general health, had sustained a fracture of the left maxilary bone. The doctor also found that the left side of the skull was depressed and that tier thigh and foot had bruises which indicated that she had been beaten and dragged. And in his opinion the death of this woman was due to trciumatic shock and concussion as a result of the head injuries. That opinion appears to be well founded and I accept it. There was no body else living to day who was present during the quarrel and the assault. So there is only one version as to what took place and this is the 'rersion of the accused himself. Two other women 7 their daughtersnamely Sara Mkurbo (PW2) and Nkese Nkumbo (PW3) were staying at the house. But they were not present at the material time0 They had been sent by the deceased to another place to buy more pombe. They left the deceased at a verandah drinking and the dccused sleeping inside the house. That was about 3 p.m.- They came back with the pombe at about 5 p.m. They found the accused at the cowshed. He had already killed the deceased. But he inquired from PW2 and PW3 about the whereabouts of the deceased and the two whmen replied that they had left her at the house and would not know where she had goneo Lyenga Nbogo (Pw4) arrived at the house shortly thereafter. He is the father of the accused. He sat with the acUsd at the verandah where they were served with the pombe which the two women had brought. PW4 stated that he inqiired about the deceased and that the accused told him that she had gore to the pombe shop. The accused was lying and he admitted that before this ccut. The fact is that the deceased was discovered dead-th the house by Sarah almost at the same 0• . . 12 1- . e 0 . • • .72 time and she appeared to have been severely battered. Naturally the accused was questioned about it and he is said to have replied that perhaps.. she hd.been bitten by a snake. Having regard to the injuries she had sustained, Lyariga Nbogo (PW5) and the ten cell leader Martin Mkoma (PW6) who was called there did not believe the story0 They strongly suspected that the deceased had been beaten by the accused and they caught him and tied him up witi. a rope. When he was further questioned the accused admitted to have kiled ocr. At a later stage a fresh pit was seen in the goatsi shelter. It was about 5 ft long, 2 ft wide and 2 ft deep0 The prosecution contend' that it was dug b y the occusod and that his intention was to dispose of the dead body by buryingit in there unnoticed. The accused did not seek to refute this allegation and it is in the circumstances reasonable to think that there is 4credence in that proposition. The accused irarrated to a J.P. Mr. Nangale (Pw1) what allegedly happened and he repeated the same story when he gave his unsworn evidence in this court. The substance of his account runs as follows. The deceased wanted to buy more pombe. She took some millet in order to exchange it for the pombe. Je did not like it, firstly because she appeared already drunk and, secondly, because there was shortage of grain at their house 0 He pleaded with her to stop it. She would not listen. She remarked that she did not ponsider him as a husband, He seized the millet from her. She went into a room only to come back to him half :ed. 3he..was furious and prepared for a fight6 She charged towards him and he pushed her0 She swore that she was going to take the millet come what may, She then grabbed him and he punched her hard on the neck. She reeled backwards. But she would not be deterred. She charged again towards him apparently intending to grab his vital organs, the testiclese He gave her a kick. She staggered back and fell on the mafig3 (the stonas, normally three, used to support a cooking pot). She got fatallyinjured. He becaie teribly shaken. His two daughters Sarah and Nkese arrived back soon thereafter. That is his account and as I have stated there is no direct evidence which contradicts it. If his evidence is capable of being believed then it is not unfair to say that he was justifiably excited into fighting the deceased as he did. The assessors find, and I agree with them, that the acts allegedly done and thu words allegedly spoken by the deceased to the accused, would have caused in any reasonable husband a sudden andmoruentary loss of self control, and to react in the manner the accused did in consequence of the provocation he received Again, if his story is believable, then it would not be obvious that he caused the death of his wife of malice aforethought i.e. that he had an intention to kill her o:' to do grievous harm to her; or that he knew that the •ct of kickitg her would likely cause death or grievous harm to her. However, it has been the prosecution contention throughout that the deceased must have been battered with an instrument like a stick. The prosecution sought to prove that the accused beat the deceased on the head and kicked her on the stomach until she died. The only basis which might support this argument can be read from the sort of injuries which the deceased sustained and which brought about her death. Dr6 Ngwishemi thought that a blunt weapon was used to strike the deceased and that at least two blows must have been delivered on the head and this with considerable force. But the accused alleged that she fell on mafiga. There were more than one such stones and in my opinion a falling on two such stones wouLd inflict, necessarily, two wounds or two blows, chen he was asked whethEr falling on mafiga could have brought about the kind of head injuries he observed, the doctor replied that it could, provided that the impact was of great magnitude e.g. falling from a high altitude. I would readily find, if the accused dealt the deceased with stick blows, that the assault was both intensive and excessive, that it did not bear a reasonable proportion to the provocation he received. ., , . o • 0 •, 0 ./3 aoo.o.'000. /3 In which case it would be inevitable to conclude that the crime he committed is nothing else but murder0 However, assessing the evidence of Dr. Ngwishemi which is crucial, I am of the view that basically it cannot be considered to be conclusive on the question whether or not there was in fact an assault Ly means of a stick or any object of that kind0 I am in agreement with the uranimous opinion of the assessors that the accused's account of what happened is plausible, that is, the deceased sustaining the head injuries in the circumstances related by the accused is a possibility. This as shown, would tend to negate the mental element which must he established in order to sustain the charge of murder. While therefore I agree, as does the defence, that it was the accused act which directly caused the death of his wife, I am not satisfied however that he had the necessary intent to cause her death. Consequently, I find that the accused did not commit murder but manslaughter contra section 195 of the Penal Code. I find him guilty of manslaughter and convict him for that offence. Judgment Oelivered in court at Singida. D,P. MAPIGANO AG, JUDGE Mr0 Kinabo — Nothing known. Allocutus — NU Mr. Mbezi - Deèased cause of her own predicament. 1esortd to violene — unneessarily. Retaliation reasonable only that had fatal ±esuAt. Circes call for leniency. Accused first ofender, Has been in remand for eleven months. Sentence. There is substance in what Mr. Mbezl submitted, and I take it into consideration, Accused is sentenced to five years imprisonment. — D.P. MAPIGANO AG4 JUDGE -q