19720811 TZHC Mbeya

'. •#4 I )$i9 IN THE HIGH COURT OF TANZANIA AT BEYA ORIGINAL JURISDICTION (Dod oma Registry) CRIMINAL SESIONS CASE NO. 24 OP 1972 THE REPUBLIC Versus JACKSON SIO WEGA & NSENDO D/O WEGA CH.RGE: MURDER - c/s 196 of the Penal Code. JUDGNT DMIZAVAS A - The two accused, Jackson s/c Wega and Nsendo d/o Wega, are jointly charged with murder c/s 196 of the Penal Code. The Republic allege that the two accused on the 29th day of August, 1971, at Iporoto village, in Chunya district, Nbe3ra region, with malice-aforethought killed one, Shivanda d/o Hassani. Both accused pleaded not guilty to the charge.. On 29th August, 1971, the two accused, their sister-in-law Mitereni, their sister Mwambushi (P.W. 2) and their brother Hassani (P.W. 3) went to quench their thirst at a pombe-shop.. According to the prosecution evidence Nsendo and her brother Jackson were the first to leave the pombe-shop. lvlitereni, her husband Hassani and her sister-in-law Nwambushi followed behind soon after the departure of the accused. •Mitereni related to the court that as she wao passing through Nsendo's hut accompanied with Nwambushi, Nsendo ' called Mwambushi and asked her who was accompanying her? Mwanbushi roplied that she was accompanied by Mitereni. Thereupon according to Miterenits testimony Nsendo (the ad accused) followed them scolded Mitereni with the vulgar abuses - "Your mother s vagiirn". "Your family are all fools". "We wasted our money to marry you".. It is alleged by Miterni that Nsendo followed these abuses by assaulting Nitereni, first with her hands and then with a stick.. Mitereni testified that the blow with a stick missed her and stnick her daughter Shivanda d/o Hassani, the deceased,, on the head.. She further related to the court: that as she w,s being attacked by Nsendo, Jackson (1st accused) came along and boxed her on her face and that the blow sent her to the ground and that she lost two teeth. Mwambushi (P.w. 2) gave similar evidence as that of .:Njtereni; so did Hassani (P.W. 3) the husband of Mitereni•. According to the three witnesses they reported to their cell-leader what had happened and the two accused were arrested on the sane evening. / t - 2 - Tusine s/a Mtwale (P.i. 4) the cell-leader told the court how he received a report about the assault of Nsendo and her child and how he arrested the accused. According to hs testimony as he was bending the two accusecLs to a ward executive officer Jackson, the first accused, escaped from his custody. Shivanda d/o Hassani died on 22nd September, 1971, and on 23rd September, 1971, Dr. Mandani (P.. 5) examined her body. According to the doctor he found one lacerated wound 1 11 xon the head near the right ear. On opening the skull he found laceration of the dura matter over the right sinoid sinus. In his opinion the wound was fresh and that the deceased died of intra-crenial haemorrhage. He told the court that the injury he found on the head could have been caused by a blunt instrument such as a stick. On being cross-examined by the learned defence counsel he replied that a fall could also have caused such an injury. Gibson Mwasoti (POW. 8) a primary court magistrate testified to the court that on 1st september, 1971, Nitereni (P.W. 1) complained to him that she had been assaulted by Jackson. According to 4io evidence Mitereni did not complain against Nsendb, nor did she say anything about her child. In his unaworn statement Jackson (1st accused) denied assaulting the deceased, leave alone killing her. According to his defence he saw Mitereni fighting with Nsendo and that ho intervened the fight and led sendo to her house. ackson further related to the court that as he was sepexating Nsendo from Nitereni, Mitereni told him that she had fallen on a stone and that she had lost two teeth. Nsendo gavd her defence on oath. She denied killing the deceased. According to her defence it was Mitereni who for no reason abused and assaulted her. She told the court that a struggle started betwee.n herself and Nitereni and that as they were wrestling Mitereni 's husband Haoc.ani removed Nitereni's child from her back. She related ' to the court that it was when Hassani was taking the child from litereni's hack that the child (the deceased) fell down and landed on a stone. After summing u-D to the gentlemen assessors, both assessors were of the unanimous opinion that the prosecution had failed to prove its case against Na mdo and they accordingly found her not guilty of any of±ence. Both assessors found Jackson not guilty of murder but guilty of common assault. This is an interestin( case. Mitereni told th court that Nsendo and ackson (her sister and irothar-in--1aws respectively) assaulted her for no reason at all.. She said that she all the time remained completely passive as Mitereni abused and beat her first with ier fists and later with a stick which missed her and landed on her child, the deceased. According to her, Jackson hit her around her mouth and that she lost two teeth as a result. It is, however ,/surprising that I'Iitereni did not think it necessary to lodge a complaint against Nsendo on 18t September, 1971, the day she complained against Jackson. Indeed the primary court magistrate (P.w. 8) told the court that Mitereni did not say anything about her child although the child was on her back on that day. . . . . . . . /3 -3- Like the unanimous o:inion of the, assessors, I find it very difficult to believe that Niterei 9 who ppearod a strong and robust lacy, would have remained passive while Nsendo abused and assaulted her and her child. As for the wound on the deceased's head the doctor said that it was a fresh wound. When cross-examined by the learned defence counsel he replied that the wound on the decased's head could not have been caused on 29th August, 1971, because iJ: it was it would not have looked so fresh. This being the medical evidence, I fail to see how this court can say that the alleged assault of the decesed on 29th August, 1971, by Nsendo was the cause of death of the dec eased. Nsendo was subjected to heavy cross-examination by the learned state attorney but she stood firm that she did not assault the deceased or Mitereni on the material night. She may not have told the whole truth to the court but in a criminal case an accused is not required to prove hip or her innocence. The burden of proof is always on the prosecution to prove its case against an accused beyo: ad all reasonable doubt • Like the unanimous opinion of the assessors, I am convinced that the lO5ecutiofl has failed to prove its case against Nsondo. I accordingly order that she be acc.uitted. As for Jackson, I fail to understand his story that Mitereni lost her teeth by falling on a stone. The only evidence available is that Nitereni fell 4W on her back. Such a fall could certainly not have made her lose her teeth. The evidence of Tusiwe (P.w. 4) the cell-leader, which evidence I have no reason to doubt, is that tackson tool: to his heels as he was being escorted to the ward executive officer. This behaviour is certainly inconsistent with innocence. On the evidence, I en sure and certain that ackson assaulted Nitereni on the material evening. There is, however, not the slightest evidence that the ass ault was the cause of death of Mitereni' s child, the deceased. I an fully in agreement with the assessors' verdict that the evidence against Jackson is only consistent with assault causing actual bodily harm. In the event I find Jackson not guilty of murder but guilty of assault causing actual bodily harm c/s 241 of the ±enal Code. MBEYA, N. li th t CTtJDGE OSECUTI ON: Nothing known. IN NITIGATION (I.DI The assault originates from a family quarrel. The accused is married with 2 children and has been in remand f or 11 months. I ask your lordship to take these mitigatin', factors into accoimt. ACCUSED: NothiinE, t a add. . .. . . — 4 — S E N T E N C E: Taking 'all he mitigating factors into account I feel that the justice of the case would be met if the accused is sentenced to twelve (12) months imprisonment. BE IS SO SENTENCED RIGHT OF APPEAL TO E.A.00A. EPL.kINED MBEYA, N. S1ZA' 11thuust 2 19.72. JUDGE Chambakare for the Republic Dhebar for both accused.