19720906 TZHC Singida

• ., '• - .•. .'.-' _-4 - .. .•4 4 • -.'--. IN THE HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO, 86 OF .1972 THE REPUBLIC Versus YINDI 5/0 M11ENDO Charge: Murder - c/s 196 of the Penal Code. J U D G E N E N T. KWIKIMA, AG. J. The accused stands charged with the murder of his wife Mwanyi Nsengi on 15th August, 1971. He has denied the charge. The doctor who performed the post-mortem examination noted in his report that the body was identified to him by two relt1ves of the deceased. One of them P. W. 2 - Nsafiri Puma give evidence to the same effect. From what he observed in the course of the post-mortem, the doctor concluded that the deceased died of asphyxia due to her having inhaled stomach contents. These contents filled up of her lungs thereby making it impossible for her to breath in air. The doctor's expert evidence has not been disputed. It is so clear and straight-forward that there can be no doubt that the person Nnyanyi Msingi is dead. Both her demise and identity cannot be disputed. Accordingly, the court holds it to have been proved that the deceased is indeed dead. The only questions J are firstly whether it was the accused who caused her death and if so whether in killing her he acted with malice aforethought To prove that it was the accused who killed her, the prosecution has adduced circumstancial evidence only. The deceasedts declaration that it was the accused who had beaten her has been the rallying point for the case against him, No less than three witnesses have come forward. 'to ay that when she was in a critical condition the deceased told them that she had been beaten by her husband Yindi Nwendo'. One of those witnesses who heard her accuse her husband as her on sister P.W.3 Halima Kitundu who had gone to v-isist her at the time. The others were P.W.5 Samson Nginbi and P. W. 6 Npenda Gunda a cell-leader 'in the village. All these witnesses were very consistent in their evidence that the deceased told them that herhusband had beaten her. Indeed Samson went further to say that the deceasC'Ild accused her husband to his face. -The.äc.cused did not, however,ftëny this accusation. All he did was to a sk 'her if she was still drunk. The court is satisfied that the deceased told her sister and other people on separate occasions.that she had been beaten by her husband. The court is satisfied further that she made her accusation to the accused.ts fcé.. The denial that 'she did so cannot be reasonable because she is reported to have made the accusation to the crowd which had gathered to take her to hospital. If the accuse,d had indeed not been ? .-..- -..-.-.-- .----.----- _ I - - -c - accused to his face he would have called witnesses to contradic.t Samson and Npanda the cell-leader. The court. infers from his failure to do so that the accusation was indeed made to his face because there is no reason to suppose that the witnesses Samson and Mpanda wouldek .t6.cu1pate the accused by telling lies 1 For the same. reasons the court accepts Samson's evidence that the accused did not protest to the accusation. It is settled law that it is unsafe to convict on the strength of a dying declaration unless either the court warns. itself of the danger and still reaches the conclusion that the declaration was correct or unless the declaration is corroborated. The court accepts the accused's failure to protest when he was accused by his wife to his face as corro- boration of the dying declaration which the deceased repeated on separate occasions. The court finds further support for the declaration of the deceased from the evidence of P.W. 4 Kilima Pyuza who saw the accused fighting his wife at Makala Dondoro's place where Kilima and the rouple were drinking the day before the deceased died. KiU..' 4 old the court that I, she left Makala's place.with her husand at nightfall and as. she did so she saw the accused and his wifepushing h other,. .. in the fields surrounding Makala's home, It £s not oversight on the part of the accused that he omitted to confirm or deny Kilima's evidence in his defence. The court unhesitatingly accepts Kilima's evidence and from that evidence it draws the conclusion that the accused fought and fatally injured his wife on the night prior to the day she died. This conclusion fully corroborates the deceased's allegation that the accused beat her.. In his defence the accused admitted that on that day he accompanied his wife home. He went further to tell the court that he spent the night with his wife in their house. Having accepted the evidence that the accused was seen fighting his wife just before it grew dark, the court holds that the. accused was the only person who could have inflicted the inurty which caused the deceased 1 s death, namely, the fracture of the lowe jaw which the doctor described as the cause of . her regurgitating her stomach contents and inhaling them into her lungs. The only person who had reason said apportunity to injure her was the acáused who was seen fighting her before it grew dark and who has himself admitted accompanying her home and passiug the night with her in the same house. The court therofore holds the dying declaration of the deceased to have been corroborated. Being fully satisfied with the circumstances adduced by the p±'osecution, the court dtf ers with the gentlemen assessors and accepts the deceased's declaration that she was injured by her husband the accused when he beat her, In accepting the deceased 1 s accusation the court disagrees with the gentlemen assessors who advised that being drunk, the deceased could have been mistaken as to the identity of her assailant. The othel' assessor did not even care to explain why he chose to disregard the declaration of the deceased. When her husband complained against her husband, the deceased must have been telling the truth, as the circumstqnces reviewed herein show. It was for the same reason that the accused was unable to deny the accusation when he was confronted with it, The court is left in no' doubt that it was the accused who beat and fatally injured the deceased. In his submission the learned counsel for the Republic did not even try to argue that he had sought to prove malice. Had he triedto do so,he would have found the task impossible because there are all indications that the killing was the out-cone of a drunken brawl between the accused ............. ..-I--- - -.---.--'---- -3- the accused and his wife. Both had been drinking at Makala 'Dondoro's place. . The prosecution has not suggested any motive for the killing. The court therefore concludes that the accused killed his wife without malice aforethought. There cannot therefore he reason or rhyme to find the accused guilty as charged. Instead, the court finds the accused guilty of manslaughter and convicts him accordingly. / 14. H. A. Ewii,a, Ag. Judge.. Accused first offender. j ALICUTU; I an so.. I have three wives and four children. They are now lookig after themselves. I have been in remand since 1971, EhTTNCB: The accused has alrady suffered the loss of his wife. His drunken act. has proved very costly. It would therefore be adding insult to injury if he was to be treated harshly. Taking into account all these circumstance of his case, the court sentences the accused. to four (4) years imprisonment. ., •• M. H. A. Kwikjma Ag. Judge, I, Appeal rights explained. / 4C SINGIDA N. H. . J(TIKII/jA. 6th September,. 1972. Ag. Judge.