19730921 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 29 OF 1973 THE REPUBLIC versus ONAR MANSUR CHARGE: Murder Contrary to section 196 of the Penal Code. JUDGMENT MWAKIBETE, AG. J. - The accused in this case is ' charged with murder contrary to section 196 of the Penal Code. The particulars stated that on or about the 6th day of August, 1972 he murdered one MBARAK AWADH. It is not disputed that on the alleged date accused inflicted three stab wounds on the person of tL.. said MBARAK AWADH, which resulted in Mbarak's death. One BENEDICT LEKULE (P.W.2) and IDI SALUM (P.W.3) • claimed to be eye witnesses to the assault. There was also the evidence of IDI RAJAB (P.Wl) who said he saW MBARAK AWADH come out from a house where the alle assault took place, wounded. According to P.W.l he asked Mbarak (deceased) as to who had wounded him and that deceased pointed to accused who was then wielding a knife in his hands to indicate that he was the one who had wounded him. The text of the evidence of P.W was that he first saw accused and deceased quarrel outside the house of P.W.3. He then saw them enter the house of P.W.3, and finally saw the actual assault by accused on the deceased. It was he who arrested the accused who had earlier surrendered the knife to him. P.W.3 simply said accused and deceased went to his room to ask him to witness their argument /ailegedly regarding the money accusedLwanted from deceased. When P.W.3 turned down the request accused allegedly tarted to assault P.W.3 and deceased. Accused gave his statement before the Justice of the Peace (P.W.6) and he gave evidence on his own behalf in Court. In either case he admitted to have inflicted the wounds. All the other witnesses mentioner earlier testified to the effect that deceased sustains three cut wounds at the hands of accused. Of the cut wounds one was at the back of the right shoulder • while two were on the stomach. Dr. S.S. RAJ (P.W.5) of Muhimbili Hospital. who performed the post-mortem examination on the body of the deceased said she observod the three cut wounds and formed the opinion that death was due to massive haemorrhage and shock from the wounds 2 According to her the body had been identified to her by one MOHAIVJED MBARAK, the child of the deceased, who appeared as P.W.8 0 The doctor went on to say that the injuries were located at the delicate parts of the body so that not much force can be said to have been used by the assailant.. She gave her qualifications as Bachelor of Me.icine.and Bachelor of Su.rgery - USMANIA UNIVERSITY, India. She said she was also Doctor of Medicine in the same University. It is therefore apparent from the above account that MB.ARAK AWADH is d and that he died as a result of the wounds inflicted on his person by accused. Accused said he was gravely provoked when he killed the deceased. As already mentioned he gave two stories of the events that led to the death of MBARAK AWADH • One of such stories was given before the Justice of the Peace while the other was given in CoLirt on oath. The two accounts were materially the same He said some time in July, 1972 he was at .Amana Hotel with other people. Deceased was also there They had been chatting for some time when allegedly deceased, addressing the proprietor of the Hotel, said they should be helping their son - meaning accused. Accused who was apparently not their son enquired from the deceased what he meant by that remark of 'helping their son It seems the reaction did not please dëceasG-L who retorted that accused wou.ld therefore see him - and then left soon thereafter. From that time deceased and accused stopped greeting or talking to each other. . On the night of 5/8/72 a group of people gathered at the window of the room of accused. They shouted, taunted, and hurled insults at accused. According to accused, they taunted him with impotence and sodomy. They were saying accused was a 'msenge' a Swahili word meaning impotent, and that he was being sodomized. There were street lights outsid.e the house and inside accused room the lights ceere on. ' The windoi to his room was open. He could see the group clearly atQ( was able to identify almost all of them. He claimed to have immediately identified P.W.3, his neighbour and later identified the rest who allegedly belonged to a local 'ngoma' known as 'Gombe 3ugul. Accused said as far as he knew P.W.3 was a friend of deceased who also happened to be a neighbour of accused and, was either the leader or an active member of 'Gombe Sagu'. Deceased was an elderly man. And because of deceased friendship with P.W.3 and his close associati' with theGQmbe Su.ga'dancin troupe,, including deceasedij earlier threat that accused would see him, accused was conv.nced deceased was the author of the incident of that night. The., folowing morning accused went to Ama Hotel for breakfast. Accused was greeted there with 'poles' from several people who happened to be at the HOtLl.' Accused enquired why they gave him 'pole'. Allegedly they replied it was because of the incident of'the night before, When accused left Amana Hotel anJ met other 'persons of the Arab Community they too gave him 'pole'. Accused finally returned, to his house and sat at the verandah:reading 'Mzalendo' - a local newspaper. ' That was around 10.00 a.m. While at the verandah, seated, accused saw deceased who was at his shop with his brother—in—law - 11)1 RAJAB (P.W.l) , point at him and laugh while at the same time deceased u.ttered"that is the one' - orwords to that effect. Then one .HASHIM , a driver of deceased who lived with -f'hr l-'-.--- ---- 1)) gave him 'pole' and asked why accused was rare those days. Hashim allegedly left immediately thereafter. According to accused Hashim was sarcastic when he talked to him. Then came deceased. He too greeted • accu.sed and gave him 'pole'. And when accused enquired why deceased gave him 'poie deceased is reported to have replied he just ga him 'pole' notwithstanding that accu.sed was ill or well. At that juncture accused said he asked deceased to leave his place because he was convinced deceased was the person who was behind the incident of the nrevious night. On hearing that deceased challenged accused to go with him to P.W.3 to check on the allegation It would appear accused had indicated that P.W.3 was also in the group that went to insult him the previous night. There was an argument because accused allegedly declined to go to P.W.3. Instead accused insisted that decease left his place forhis house and let bygones be bygonc He said he asked deceased to leave his place several times but deceasedpressed that they went to check the allegation from P.W.3. Finally deceased grabbed accusc& hand, pulled him up and led him to the house of P.W.3. Accused obliged and off they went. Inside P.W.3's room accused allegedly questioned P,W.3 on the events the previous night. Allegedly P.W.3 answered it was 4 deceased and deceased retorted it was P.W.3 - so that ) position was that the two were shifting blame upon each other. It occurred to accused that such a behaviour on the part of P.W.3 and deceased was tantamount to fooling, him. And with the earlier events still fresh in his mind accused lost control of nis temper and from that moment accused was not a master of his senses. H realized he had vounded deceased 9 only after he got SLit of the room and met people who shouted he had wounded deceased with the knife he was holding. He decided to go to the Police Station, to report. But he was stopped after a short distance and was allegedly order by a person who had allegedly identified himself as a Police Officer, to surrender the knife he was still holding. He surrendered the knife as ordered. The people who were following him then pounced upon him anot assaulted him until he became unconscious. He was later taken to the Police Station. All along acci maintained he acted under grave provocation. He vigorU denied the allegations of impotence and sodomy. One AHMED MEHDI (D.W.2) informed the Court that on the morning of 6/8/72 he heard people who happened to be ethic shop talk of an incident at accused house the night before. He also heard them say that P.W.3 had bei telling the people that deceased had been sa.y'. that accused was being sodomized and that the said accused was an impotent. The witne-is was an elderly Arab. He went on to say that after a while accused appeared. Allegedly accused looked miserable. And because the witness was aware of the events of the previous night the witness gave him 'pole'. As a persofr' belonging to the ordinary person group of the Arab Community, the witness was asked how an ordinary person s of the Arab Community would react to insults or allegatWi.- that the person was being sodomized or that he was an impotent. He replied, an allegation of 'sodomy' was a serious insult and that the victim of such insult might even kill the person hurling the insult at him. He went on, no one in the Arab Community could dare marry his daughter to a person allaedto be homosexual or tent. There was an indication from Con.q fry -h 1. 4. Republic that the testimony of the witness relating to he alleged to have heard people talk at his shop was hearsay. I allowed it as being admissible evidence under section 62(b) of the Evidence Act. B885 P.C. MOHAMED was called as D.W.3. He is the person who recorded the statement of the deceased at Muhimbili Hospital. The statement recorded was to the effect that there was an allegation that deceased had abused accused and that accused got the information, from P.W.3. Accused and deceased had gone to P.W.3 to check on the allegation. Deceased asked P.W.3 about the allegation. P.W.3 had scarcely begun to reply when accused started to assault deceased with a knife. There are two important issues to be considered in this case. The first one is whether accused was provoked when he knifed the deceased. The 2nd one is whether deceased was the author of or at least whether he was connected in some way with the incident at accused's house on the night of 5/8/72. It is on.this night that a group of people is alleged to have gone to accused's house and hurled nasty insults at accused. I intend to start with the latter0 Accused gave a detailed account whyhe thDught deceased was the author of the incident at his house on the night of 5/8/72. He said some time in July, 1972 deceased threatened accused with a remark that accused would see him. The remark left accused wondering what deceased was going to do to him. The two then stopped greeting or talking to each other. Accused said he knew that deceased who was his neighbour, was a friend of P.W.3. He also said he knew that deceased was either the leader or an active member of 'Gombe Sugu' dancing troupe. In addition, accused said on the morning following.the restless night 2 deceased was seen by accused himself, pointing at accused and laughing while he uttered 'that is the one' or words to that effect. Deceased was allegedly with his brother- in-law (P.W.l) when he pointed at accused and uttered the words. It was again the same deceased who reportedly' had gone to accused's house to give him 'pole' saying that he gave him 'pole' notwithstanding that accused was ill or well. Accused said deceased was sarcastic. Hashim, the driver of deceased, who lived with deceased in the same house is alleged to have just left the place of accused when deceased arrived. Accused said Hashim was also sarcastic when he gave him 'pole' and when he allegedly enquired why accused was rare those days. Unfortunately the Prosectuion never called Hashim as a witness. Hashim could have afforded the Court an opportunity to check on the veracity of accused story. But even without the evidence of Hashim - one thing is clear. This is that deceased went to accused's house as alleged by accused. In his statement deceased said 'Nilifika mahala alipokuws amekaa iii kumjulia haliyake'. The sentence means that deceased went to where accused was seated in order to greet him (accused). Then there is the story of the events in the room of P.W.3. Accused said when he asked P.W.3 on the incident of the night before, P.W.3 and deceased started to shift the blame upon each other. On the other hand, P.W.3's story was that deceased and accused had gone to his room to ask him to witness their argument regarding money which accused allegedly ivanted from the deceased0 It is obvious P.W.3 was telling lies because the abatement of deceased also mentions the fact of accused and deceased having gone toF.W.3 to chebk on the allegation that P.W,3 was aware - deceased had insulted accused.. It seems therefore that the more credible story was that of accused. Accused believed deceased was the author of tde incident of the night of..5/8/72. He had in mind the remarks uttered by deceased in July 1972 that accused would see him. He linked the remarks with the subsequent events and behaviour of deceased. Both the gentlemen Assessors were unanimous in the view that deceased was the author of the incident of the night in question i.e. 5/8/72— at the house of accu.sed I agree with the gentlemen Assessors that deceased was the author of the incident of the riigh'6f 5/8/72 at the house of accused. Such conclusion is suppprted by evidence. The remarks of deceased that accused would see him indicate that deceased was going to do something bad to accused. The behaviour of deceased on the morning after 'the incident was of a person who knew of what had taken place. Deceased appeared to rejoice and remind accused of his remark that accused would see him. A riunou.r was also circulating on the very morning after the incident at accused's house - involving decesued. AHMED MEHDI heard people say P.W.3 had been telling people thataccused was impotent and homosexual and that the author of the story was deceased. Finally when F.W.3 was confronted by accused on the events of the previous night at accused's house PW.3 replied -- it was deceased. All these happenings leave no doubt in my mind that deceased was the man behind the incid.nt at accused's house on the night of 5/8/72. I accept the story of accused that deceased was a friend of P.W.3. I again accept accused's story that deceased was either the leader or an active member of the'Gombe Sugu' dancing troupe. Deceased was thus in a position where he could manipulate P.W.3 and other members of Gambe Suga to his advantage. I now turn to the question whether accused was provoked when he inflicted the fatal wounds on the person of the deceased. I Evidence is available that on the night of 5/8/72,P.w.3 and others taunted accused with sodomy and impotence. Opinion was expressed by one AHMED MEHDI 2 an ordinary person of the Arab Community, that such were very serious insults - that the victim of the insults might even kill the perpetrator' of the insults. Theie was then the allegation that deceaseed and uis driver went to where accused was sitting, gave him 'pole' and asked him why he was rare those days. Accused realized they were sarcastic. Earlier, deceased is allegd to have been pointing and laughing at accused while he uttered words 'that is the one'. All the taunts were u.rdoubtedly intended to prolong or arouse the agoir in accused - created bythe wound of the night'of.578/72. Accused spoke openly that he had been seribusly injured by the ihoults of the preiou night and that the taunts that followed and which were perpetrated by deceased simply wounded him further. According to accused the fooling of him by P.W.3 and deQCased.in the room of FeW.3 was but the last straw to his:'paticnce. The Assessors were unnis.ous in the 'viëw that accused was gravely provbked and tha the fooling of accused in the room of P.1,3 was the last straw to his patience. They were also of the view that the±"e was no time for accused anger to 6. hurled insults at him on the night of 5/8/72. Further taunting of accused by the deceased on the following day simply aggravated the passion and reduced the chances of accu.sed cooling down. It should be rernembe: 21 that the tau.ntig and fooling of accused by the deceas2d on the morning of 6/8/72 were mere follow-u.p of the major operation that had been launched the previou.s night. It seems to me such activities as were perpetrated by decea.;ed on the fateful day cannot justifiaiLly be considered independently of the incident of the night of 5/8/72 at the accuseds house. I agree that the behaviour of deceased and that of P.W.3 in the room of P.W.3 in fooling accused was the last straw to accused 9 spatience The assessors were of the view that the offence of murder was not proved and that accused is guilty of manslaughter. Theiropinion is supported by evidence. Accused killed under grave provocetion. Accordingly I acquit him of the offence of murder and find him guilty and convict him of manslaughter cpñtr'y to sections 195 and 198 of the Penal Code, (MOJO MTAT.ETE) AG. JUDGE 21/9/73 Previous Convictions Nil. Plea in thitigation: This is the 1st conviction in my life. All my parents are very old. I am also married with one child. They are all dependant on me. I pray f or leniency. 'I SENTENCE: Accused is aged 30. He has anunblemis4ed r6r apart from this unfortunate incident. He has been in remand now for a year. He looks contrite. But he committed a very serious offence. I accordingly sentence him to imprisonment for 5 years and order that 4 years be suspended for a period o' 2 years conditional on the accused being of '6od behaviour and committing no offence involvinny violence. _ (lvi. J. TPI it~K-!Bt TE) AG. JUDGE