19720810 TZHC Mbeya

07~ I' IN THE HIGH COURT OP TMTZANIA AT T.EYA ORIGINAL JURISDICTION (DOD(M REGISTRY) CRIMINAL SESIONS CASE NO .22 OF 1972 THE. REPUBLIC Vemus WILSON 5/0 MSY1.ANE CHARGE: MURDER - c/s 196 of the Penal Code. NVAS. J, In this case the acttsed stands charged with murder c/s 196 of the Penal Cod, It is the Republc'.s case that the accused, on or about • the 10th doy.of October:, 1971, at Utengule village, in the • dist±'ic.t and region of Nbeya murdered one, TUSAJEGE D/0 . AEDOLILE. The accused pleaded not guiity to the afle.ge4 offen ce. The evidence in this case is clear and there is not the slightest dispute that .AndolileVs hut was, on the • • night: of 1 0th October., 1 971, set on fire with the. result that dolile '.s daughter., ..Tusajege, was burnt to death. Thoth Tusajege's body was badly burnt, Tusajegé's father .ad mother .(P.W... 6 and P..... 7) amply recognized the body tb the doctor as -that of their daughter. The prosecution brought forward evidence to prove • that it was the accused who burnt the hut and that at the time he set the hut on fire he had resonable. ground for believing that there were human beings in it. Narta and Wankis. (P.W. I and:P.W. 2respec.tively) gave eidénce to the effect that on the night of 10th October., 1971, they, in response to an alarm, ran towards .Andoliies hut which as fire. As they were rushing • to the burning house they met the accused.. • . According to their testimonies they talked to the aar used and asked him where he weB comin from. The accused - is reported by -these witnesses to have :replied that he was coming from escorting, his brother.. The two witnesses further told the Gourt that they drew , to the attention of the accused that there was a hut: burning in hi$village The accused., according to -these witnesses, did not reply..- instead he ran away. According t.o Wankisa (P.W. 2) the accusea was coming from: the •dli'ection of the hut which was on fire.. Narta on the:othor hand, was not so sure as to which direction the accused came from when she met him Because, she - said, it was dark and that the : meeting was sudden. .. :: • -2- Richard (P.w. 3)', Katolika (P.W. 4.), Jotam(P.W. 5) and Andolile (P.W.6) testified to the coi.r't that they interrogated the accused as to his movements on the night the hut was set on fire and that the accused replied that he had gone to fetch snuff in a neighbouring village. According to their testimony, after further interrogation the accu;ed admitted that it was he who burnt down Andolile 'S hut. Elizabeth (P.W. 8) related to the court the.t how, on the material night, she saw a person entering the hut soon after her mother had left the hut. According to her testimony, she thought the person was her mother. She called "mother' but there was no response and the person disappeared. According to her evidence, soon after she saw the house on fire. She managed to run out. of the house but unfortunately was unable to carry her younger sister with her and the younger sister was burnt to death. The accused in a sworn statement told the court that, , he was at one, Chafukoge's house at about 8 p.m. on the material night. According to his dcence it was when he was coming back from Chafukoge's house that he saw .Andolile's hut on fire. He testified to the court that he rushed to the burning house and participated in extinguishing the fire and that while doing so he sustained burns on his left arm aiid' left. knee. He denied meeting Marta (P.W. 1) and Wankisa (P.W. 2) on the material night. He also denied the prosecution's evidence that he admitted burning .Andolile's hut. Dr. Nicholson (D, 1 2) gave evidence to the effect ,,,-.!. that he examined the accused on 3rd December, 1971,and found him to have two scars, one on his left elbow, and the other on his left knee. kccording to his evidence the scars could have been burns.as suggested to him by the accused but that he could not he sure. After summing up to the gentlemen assessors, they were all of the unanimous opinion that it was the accused who burnt the hut. They were alio of the view that the accused knewthat there were people in the house at the time he, set it'on fire. They, therefore, found the ac'öused guilty of murder. from the evidence of Marta (P.W. 1) and that of Wankisa , (P.W. 2), I. am fully, satisfied that they, , 011 the material nIght, met the accused as they were running fo the direction of the burning house. Both these witnesses told the court that they have knoii the accused since his childhood. They said that they talked with him for a while that night and that the accused took to his heels when they told him that a house was burning in his village. When asked as to where he was coming from the accused replied that he was coming, from his brother. Wankisa seemed to have no doubt that the accused was coming tunning from the direction of the burning house. The accused when confronted by these witnesses' evidence he totally denied meeting them. According to his defence he was at Chafukoge's house whenthe house was set on fire. ' -3- I fail to say why Marta and •Tankisa who appeared quite responsible villagers should have decided to join forces and tell lies againe the accused. The accused himself agreed that relations between the two witnesses and him have always beeniénd1y. If so why then should they suddenly decide to condemn him At this juncture I would like to mention that the accused gave yet another different story as to his movements that night when interrogated by the village elders. To them he said that he had gone to a neighbourin; village to fetch for snuff when .Andolile's hut was set on fire. There is evideii.ce that it was rather od f or him to go f Or snuff at another village while he could get it fron his neighbours like RiOhard, (Ph. 3), the cell-loader. Like the gentlemen assessors, I do not at all accept any of the accused's three dif:erent stories as to hi movements on that night. The accused was most contradictory when crossexarnined by the learned state attorney regarding his alleged visit to Chafukoga. He answered that he did not meet Che!iikoga at home. :Toi' did he meet his wife. Then asked whether he tried to look for Ghafukoga in the neighbouring houses, he replied that all Chafukoga's neighbours had gone to their shembas in Ultinga that night. Then asked whether he actually v±sited Chafukoga's neighbours he replied that he did not but that he only presuried that they were not in their homes. Airther more there is the admission of the accused to no lesser than five people that it was he who had. set fire to Iidolile's house. Two of these elders (P.U, 3 and P.]. 4) are more than ordinary villagers. They are cell- leaders of the village. One, Jotam (P.h.5), is accused's brother-in-law; and according to Jotam's evidence, the accuCed and him are great friends. I fail to see any reason why the two cell-leaders and the accused's brother-in-law and great friend should have decided to cook up a story against the accused. I agree there were a few incosistencies here auti. there in the prosecution case. One of such inconsistencies is when Richard; (Ps. 3) says that when the accused was interrogated as to his movements that night he replied I. that he had escorted his brother. This evidence is not consistent Hith that of the other witnesses who said that the accused's reply was that he had gone to fetch snuff in a neighbouring village. These minor inconsistenôies are to be epected in any testimony depending on human memory. It would, in my view, be wrong to make too much of the minor inconsistencies. There is the defence that the accused was at the burning hut end that he actually particiated in extinguishin the fire and that he suetained burns while so doing. It is raost probable that he was there. Indeed a number of prosecution witnesses testified that they saw the accused there. But, what i odd is that the accused, thoug1a a close heighbour, arrived at the scene when the house had already completely burnt down. The accused's late arrival and participation in extinguishing the fire was, in my view, an attempt to divert suspicion against him. With respect, I agree with the unanimous opinion of the assessors that to hold that no credible evidence has b.:en given against, the accused regarding the burninC of the hut would be ignoring the testimony of karta, that of 'Iankisa and that of the five elders. The evidence of these witnesses .14 -4- corroborate and are consistent with one another. For testimony to be so compartiblo, the common-'denominator, save perjury, must be truth. I am convinced that it is the accu::ed who burst down And olile 's hut with the result that Andolile s daught er, the deceased, was burnt to death. The vital question, however, is whether the ac cusedt.s burning of the house which led to the death of the deceased amounts to the offence of Murder. To hold the accused guilty of murder 2 the prosecution must prove that the accused had formed the necessary malice- aforethought at the time he set fire to the house. Section 200 of the Penal Code says:- "Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances" as (a) An intention t: cause the .eath o:T ............... (b) (A subsection which is more relevant in this case) I..nowledSre that the act or omiselon causing death will probably cause the death of or grivous harm to some person, whether such person is the person actually killed or not, although such lcnowlodge is accompanied by in- difference whether death or grivous bodily harm is caused or not, or by a wish that It may not be caused;" The question to be decided by this court is whether the accused h?d hnowled ; .e that his act of burning down the house would probably cause death or grivous harm to some person or persons. If this court is to accept the testimony of Elizabeth ____ (P.i. 8) a girl of 10 years of ae, that she saw someone coming into the house and that soon after she saw the house was on fire; and if this evidence is added to the fact that soon after the accued was s en by Marta and ankisa running away from the direction of the burning house, one coul.,.:_ infer that the ierson the young lady saw in the house is the accused. If such an inferrence is drasm, the oly reasonable conclusion is that the accused inew that there were people in the hut when he set it on fire.. Llizabth, thoiich a girl of tender age, gave her evidence inteligently and I would say she was in full comand of her facts. But as it was held in IrANGAMSIGRA Vs R 1 ) thouh swoni evidence of a child, as it is in this case), does not as a matter of la need corroboration, corroboration is, as a mattei' of practice,de±rabio. It is, for example, not in dispute that the nighi was a dark night. This loiñg the position, it is not clear from the prosecution evidehcè how Elizabeth could have seen a prson inside a room where it was even darker. Nor is there evidence to explain hOw the person alleged to have been seen inside the houe got into the house. Elizabeth's evidence on this point is, to say the least, not very convincing. •. . S S S 5 •• /5 5 j -5- The learned state attorney argued that mer1y because the accused engaged himself in the felony of aison and that bec,use felony resulted in the death of the deceased, then the court ha to find the accused gilty of murder. it1i respect, I fully agree with the learned counsel that it was accused's felonious act that caused the death of the deceased, but with even greater respect, I do not agree with the learned state attorney that every felonious act that causes death must, of necessity, be murder. As it was held in KIi0A(IPTJIVsREj9j E,A.00A._188 and followed' b the Court of Appeal in RE)Vs TU IllBYA1TTThB Lt94JjC A, 44 — 1f is wrong to' hold that any felonious at done as an e n d in itself and without any intention to cause death or grivous hsrm imports of necessity malice aforethoug1r . There is no evidence that the 'ccuse,d wished th,e death of .Andollle'or of any member of Andolile's family..' The only evidence to sug';est some mistmderetsnding between the accused and Andolile is when Andolile refused to lend the accused two shillings. The prosecution is not, of course, reQuired to prove motive but the complete absence of motive is relevant to the question of intent. This,' , as I tolC the assessors, is a difficult, case. It is with reluctance arfionly after considerable reflection that I dif1er from the unanimous opinion of the assessors. There is some doubt in my mind as to malice aforethought said the accused is entitled to the benefit of the doubt. I find that the accused' is the person who burnt 1ndolile 's hut. The act was unlawful and it was the cause of the deceased 'S death. I accordingly find the accused not guilty of mrdcr but guilty of the lesser of±enäe of manslaughter c/s 195 of the Penal Code. A• . MBEYA, N. ,,rzitv IG 11 AuJ 72 . RQECUTIO: Nothing knovn ag..int the accused.. In my view the circumstances of this case need a deterrent sentence. IN I' IG lOwo 1 IBAR) May it please your lordship. The accused is married with two children. He has been in custody for 10 months. I ask your lordship to take these mitigating factors into' consideration. COUSED: I have nothing to say. NJ;LTJ: This is, I agree with the learned state attorney, bad case of kalislaughter. The accused is extremely lucky that malice aforethOught has not very clearly been rovec1 against him; otherwise he would have been found guilty of Murder. YOU ARr ENTLNcED TO 10 'YEkRS ThIIS0Ni'NT, RIGIT OF .P:e0I.j1 TO :.A.C.A, TXPLAINED / "A.',f' NBEYA, N./S.1IWAS 10th .Anusj972, Chambakere for' the Republic; . Dehebar for the accused.