19720612 TZHC Singida2

IN T1fl3 HIG-H COURT OF TMZ3.NIA. ORIGINAL J[JRISDICTION. (DODOMA ;LC-ISTRY) Criminal Sessions Case No, 26 of 1972. The Republic versus :WP_Ja. CL:GE I.URD;R c/s 196 OF TE: ?E1.aL CODE. J U D G E 11 E N T. The accused stands charged with the murder of one Nassoro 5/0 Salim, a person whom for a long time he suspected of having an illicit affair with his wife. The doctor who conducted the post mortem on the deceased Scold the court that the body had a penetrating wound in the chest. The weapon which killed the deceased went through and perforated the right auracle of the heart. The Doctor who is German-trained termed the auracle as the atrium and it was only after some qie'stioriingthat the court discovered and was satisfied that by atrium' he meant ilauracle.71 . In the octors opinion, which he did not record on the report of his post mortem, death was due to the stoppage of the heart when the right auracle was perforated. The blood then ran out of the perforated auracle and went to congest the lungs which could not for that reason take in air. This was another factor contrubuting to the deceased's demise0 All this is technical evidence which no one has pretended to dispute. I therefore take it to have been proved that 1'assoro Hamisi is dead and that he died of the causes described by the Doctor. The Doctor told the Court that the wound was an arrow- shot because that was what the Police told him. In his opinion he felt that an arrow was capable of causing such wounds as he found on the body. The people who first saw the deceased's body found an arrow ying besides it. All this evidence points to the conclusion that the eceased was killed by being shot with an arrow in the chest. I have ' no hesitation in holding that that was indeed the case. I further hold this to be evidence of the fact that the death of the deceased was homicidal. The accused confessed to have killed the deceased and then retracted at his trial,. When a trial within trial was conducted I. was satisfied that the confession was mad voluntarily and that its subsequent retraction was an afterthough. I therefore admitted his confession and the assessors have not doubted its voluntary character when they came to give their opinion. In his submission, the learned state .. attorney urged the court to convict on the basis of this confession by saying that a court could convict on a retracted confe- ssion by saying that a court could convict on a retracted confession even if it was not corroborated. He relied in his submission on TUJPJiO V. UGAWDA 1967 E.. 84. With all respect to the learned gentleman I doubt if that case means anything of the sort. That case is a follow up of a list of cases including R.T. KISi-LiIiLI D 7. .A.C.A. 277 I have come to understand the rule in TU)ihOI'S case to mean that;- "It is unsafe to convict on a retracted confession if there is no independent evidence to support the confession. That was what I said in JV.L.LA]YI 1971 H.C.D. 398 and I still say so. I am therefore unable to hold that by confessing the accused has helped the prosecution to discharge its burden of proving -...../2 2 - his guilty beyond reasonable doubt. In so saying, however, I should not he taken to mean that corroboration is lacking in this case. Far from it P.4.4 Ramadhani Hassani the cell leader at 'ayaha where the homicide occurred told the court that he picked the a row Exh.P.4 besides the body. I have already held that he picked the ai'row which killed the deceased. Even Ramadhani reported it to have been Bloodstained, he same arrow was identified by P,14.5 Tumbi Labia to he his own which together with a bow and three others the accused had borrowed the evening prior to the discovery of the homicide. Tumbi went on to tell the court that the borrowed gear was clandestinely returned at night when he was asleep Two arrows were missing when the returned gear was inspected. From this evidence I have no doubt in y mind that it was Tumbi's arrow which shot and killed the deceased. I have no cause to doiht that the accused borrowed it and did not return it to the owner to whom it has not been restored because it is still a court exhibit. I further hold that the accused returned the bow and arrows stealthily so that the owner could not have quesbioned him about the two missing arrows. There can be no doubt that the accused shot the deceased with one of the missing arrows which was found lying besided the dead body. I am reinforced in iy view y the accused's own confession which is corrobo- 'ated by the fact just outlined. Furthermore the accused's cap was ound in the vicinity of the deceaseds home in which the homicide was cOnmütted. Other items were also foimd in similar circumstances but I will not take them into account because no one has come forward to identify them. The cap has been identified by Ramadhani who said that the accused habitually wore it and that it was in rags and tatters. On inspection it turned out to be the case. I dismiss as unreasonable the accused's denial that the cap is his. The accused further denied borrowing umbi ' s bow and arrows but he could not explain why Tumbi should choose to frame him up. Indeed imbi stood up to his cross—examination q,uite well. I am satisfied that Tumbi was a witness of truth and the accused's denial of his evidence is a skin—saving attempt. In his submis;ion the learned defence counsel argued that the prosecution had not shown any motive on the party of the accused. Perhaps the learned coLulsol overlooked the confession in which the accused says that he was suspecting the deceased of running with his ife. In shooting the deceased, the accused was punishing him for his isdeed. That would suffice for motive. I am not satisfied however Jhat the accused. went to punish the deceased that night and my reasons f or this opinion will become clear in the course of this judgement. The accused has related in his extra judicial statement how his wife left him to go to Sepuka inspite of his having refused her permission. The accused later heard that she was putting up with the deceased. The sketch plan drawn by the investigating officer shows that it is three miles from the accused's house to the deceased's. In going to the deceased armed with a bow and rrows the accused may not have been going to kill him necessarily. t should be conceded from the outset that the accused suspected that the deceased was cucko- iding him. But even if he has not been shown to have lrnown, the courts have repeatedly held that; "Prior 1,7,iowledge by a husband of his wife 's adultery with a paramour does :oot necessarily and in all cases disable the husband from pleading provocation and reducing the offence to manslaughter, if the killing was done upon finding his wife and her paramour in the act of adultery..... Each case must depend on its own facts, and the question in..........each case is whether ot not, upon the facts of the particular case, the killing was done(or there is a reasonable doubt that it may have been done), in the heat of passion caused by sudden provocation ......... and before there was time for the passion to cool(YOKOLADI OMER V.R. 1960 LA. 323)" ........ . - 3 - This proposition has been put more succinetly by Lutta J.A. in I\TYA.DUPDO V.k. 1971 H.C.D. 280 when he said; If the killing; WdS done when the husband found his wife with her paramour in the act of adultery, the husband would act be preclude I from setting up provocation as a defence, notwitthsanding his prior knowledge of adultery between th em .1 In the current case, the accused simply suspected the deceased. A fortiori, his plea to have been provoked would be justified. In YQLiiU .iIJJA v,R, 1960 ,A. 146 it was held; "suspicion is not knowledge, and to find his wife,....... in an act of adultery might well, not withstanding' prior suspicion, engender ungovernable rage and constitute grave and sudden provocation sufficient to reduce the killing to manslaughter. In the case the appellant had threatened to kill his suspects and when eventually he found him in compromissing circumstances with his elder wife, he fought and killed him. It I. be pointed out however, that unlike the accused in the present case Yolamu did not carru any weapon. The stick with which he struck and killed the decea- ed was picked at the scene of the fight. But I am not persuaded that in this case the accused is precluded from plea...iig provocation simply because he carried a bow and arrows to the scene. For had he not heard his wife speaking with the deceased at night in his house, I cannot say that he would certainly have killed him. I am unable to rule out the possibility of the accused being enraged beyond control on finding the deceased and his wife in very comproolissing circumsta- nces indeed. There was the deceased in his house at night with the accused's wife holding a conversation which could have led any reason- able man to conclude that they were committing, had committed or were going to commit adultery 0 The prosecution have not shown that the accused had no reason to belicoe that his wife was closeted with the deceased in his house that night ot that he knew so when he set out I would therefore be reluctant to hold that the accused is precluded from pleading provocation Accordingly I would agree with the assessors and find, the accused not guilty of murder. Th accused is found guilty of manslaughter c/s 195 P.C. for which offence I convict him. .:H1. K1II'MA / AJUDGki. Judgement read and delivered in open court at Singida this 12th day of June 1972. j : M.ILA. .IITIMA / J1JDCci, Accused 1 st offender. Although the accused might have been provoked the shooting with an a;row was too brutal. Accused did not see his wife. Accused should be dealt without leniency. M i t iat Lqn; Accused happened to have the ar:cow with him. Accused could not have calculated its. use. The assessors said deceased's act constituted gross provocation, This should be a mitigating factor. Accused has four children has clean record at his age of 60. Accused has been in remand for almost a year. Ac cused should be treated lenie- nt ly. - Ni... I• •• 0 '00 C I ' S •. .'./4 . ...... -. . . 4.. - Sent encQ- This is a bordeline case. The accused is lucky to have escaped the death sentence on technical grounds. I do not therefore find it meet to extend any leniency to him, hitherto clean record nothwithstanding. In view of his age I sentence the accused to nine years imprisonment. iI.LA. Kwikima Appeal rights explained. Kwikima ud DODOMA