19730629 TZHC Dodoma

/1 IN THE HIGH COURT OF TANZANIA AT IRAMBA ORIGINAL JURISDICTION -. (DODOMIi REGISTRY) 1 5 JU 1974 j CRIMINAL SESSIONS CASE NO.48/23 - ' 1 kLAAM THE REPUBLIC VERSUS SHUKA SIO JUMBE Charge: Murder c/s 196 of the Penal Code. JUDGME NT MAPIGANO AG. J. The accused, Shuka s/o Jumbe stand s. charged with the murder of Mkaka s/a Mpundi, on 18th day of Oc bober, 1972. It is not in dispute that Mkaka s/o Mpundi died shortly afte' the accused had inflicted on him a stab wound in the chest by means of a apear.' Accord- ing to Dr. Shabbay who performed the autopsy, death was due to internal. haernorrhage on account of this stab wound. Apart from the accused, there is only one witness who was present at the scene and this is Mwelu d/o Kitundu (Pw4), who is the wife of the accused. According to her testimony the accused speared the deceased when he, the accused, found the deceased walking with her .a short while after sunset. She had gone to a pombe party at the house of one Maulidi Kiula which was about two miles from her house. She went there in the afternoon of that fateful day. She admitted that the deceased had been her perqniour and that the accused had had occasion to ask her about that adulterous relationship and that she had told him that she was going to stop that affair. She saw the deceased at the party but she denies speaking to him. She left the party to return to her house shortly after sunset, t twilight. The deceased, apparently with an eye on her, also left the party to follow her. She pleaded with him to go back, and it appears that the deceased's house was in another direction, but the deceased would not heed her words. The two therefore' proceeded walking towards her house. At one stage the deceased suggested to her that they take another route and accordingly they diverted to a cattle path 0 There is no dispute that there were neither people nor cattle on or about that route, She explained that she agreed to take the cattle path in order that she would be able to explain to the deceased about her h usb an d feelings and exhortation regarding their infedility, Walking slowly and abreast, the deceased smoking a cigaratte and carrying a lighted dry piece of cowdux2g, they wereabout three hundred paces from her house when this tragedy took place. The deceased suddenly remarked "that is a person coming" Then she confirmed with her own eyes, she recognised the man to be the accused. She told the deceased that it was her husband and upon this she darted and went to the back of the deceased. In another moment she saw the deceased being struck by a spear and she took to heels. The accused's account shows that he killed the decesed in different circumstances. He related that he had been away from his home for two days and when he caine back on that day he did not find his wife at home. He was told that she had gone to drink pombe. He decided to proceed to the, place and since it was dark he took a spear and a club. He went towards the direction of the pombe place. On the way he happened to see a small fire in the bush and he thought that grass.was burning e He weht to see what was happening, and as he • . approached the fire, he heard human voices which he recognised to be that of his wife and the deceased, He observed that they were sitting down. No sooner as they had seen him thn they sprang up and started to flee. He was incensed and he hurled a spear which hit the deceased - 2 - in the chest and then let loose his club which smashed the wife. The deceased died shortly after but not before he had the opportunity to !-relate to three persons who passed by as who had speared him. It is 'clear from the statement the accused made before the committing magistrate, that he had known that his wife had an amorous association with the deceased. I put to the assessors as to whether the accused knew that his hitting the deceased with the spear would cause death or griev- ous harmr • The first assessor appeared evasive and could only say that the accused threw the spear, in anger when he found the deceased in the company of his wife.. The send.assessor gave, an affirmative reply. Considering the lethal weapon tised thd the shdrt distance between the accused and the' deceased and that the accused threw the spear with somewhat considerable force to the extent that the weapon penetrated and injured the lungs, and also considering the fact that the deceased was struck when he had not offered any resistance whatever I am satisfied beyond reasonable doubt that the accused knew that his blow would cause death or at least grievous ha'm to the deceased. There is no evidence before 'me t and it has not been suggested, and there is no reason to suppose 1 that the accused was in drinkb The only line of defence which the learned advocate for defence has urged this court to consider is that of legal provocation, serving to reduce the crime of murder to one of manslaughter. This in my own considered opinion, is the only defence which could possibly be put foward. The accused is entitled to raise this defence through an act of adultery by his wife 0 Prosecution contention is that the accused intended to do mischief when he set out from his house to look for his wife 0 He knew that his wife was unchaste and that he suspected that she was flirting with a man who was most probably, the deceased, He was brooding with rago.as it were* and anticipating trouble he took a spear and a club. When he found the wife and the deceased walking abreast he rationally and deliberately chose a more lethal weapon and dealt the deceased with it on a dilicate part of his body, the chest, and not on the legs for that matter. Accuseds frame of mind as he set out from his house, it is argued, was such that he had formed an intent to k ill or to inflict a grievous harm 'the deceased 0 There is no doubt that if this contention is believed',then legal provocation on the accused's part would be negatived and the externuation of the crime from murder to manslaughter would not be availing him. On the other hand the defence argue on these lines: when the accused took the spear and the club it was purely for his own protection since it was already dark. When he saw fire in the bush he thought grass was burning and curiously he went to see what was happening 0 When he found his wife sitting in the bush with deceased, it was shocking and unexpectedly 0 When they sprang up to run away, he believed that they had been perfoming or about to perform an act of sexual intercouse. He being in a state of anger, his manhood being gravely insutted, he struck in the heat of passion. The question which now arises for consideration is whether or not the accused found his wife in an act of adultery. Finding in the act of adultery is not limited to finding the wife and the adulterer during the actual period of intercourse, but that if they are found together in circumstances from which immediately recent intercourse is and can be correctly infered, then they may be found in the act of adultery within the meaning of the rule. Per Chacha sb Wambura .v R (1953) EACA 339, and per Bramble J. in R V Fita sÃo Mihay (1970) HOCODO no. 58. And a husband's prior knowledge of his wife's adultery does not necessar.ly disable him from setting up provocation as a defence. Each case must depend upon its facts; per Luttc* J.A. in Nyandundo,v R (1971) HOC.DO no 280 and Si'r,Kenneth O 1 Connor, P (as he then was) in Yokdhadi Lakora sb, Oman v R (1960). EA. 325. As clearly shown,, prosecution case is that the wife and the deceased were U - 3 - found walking on a path and not sitting down in the bush as contended by the defence0 In this connection the prosecution attacked the credibility of the accused on the basis of certain contradinctions which appear in his three statements Before the Justice of the Peace he stated that he found the deceased with his wife sitting in the bush while the deceased was smcking a cigaratte while in his statement which he made before the committing magistrate' he said he saw a fire and that he found his wife sleeping and having sexual intercourse with the deceased. I put this contradictions to the assessors and asked them to consider whether, there were material enough .to discredit the accused's testimony, or whether they were more exaggeration and that perhaps the accused could have been basically not a liar 0 I also asked them to assess pw4 1 s credibility and to bear in mind her disposition in the witness box, where she appeared unbalanced, evasive and possible inconclusive r and further that it might be/from revealing the whole tru- that she th. I further enlighted then as to the burden of proof confronting fond both the prosecution and the defence with regard to this aspect of the the going caseS. hard and embarrasing I also put to the assessors as to whether they were so as to satisfied beyond a reasonable doubt that the accused had found the re: £fl.' deceased with PT4 walking on a cattle path and whether it might be true that ha found deceased and Pw4 sitting in the bush during that night 0 The first assessor appeared hesitant andunsure. He ended up by saying that accused was lying and that he believed that accused found them walking on the path and that he lost his temper and struck the deceased€, The second assessor believed the prosecution case and he advised that the accused speared deceased in extreme anger when he found him walking with his wife. Both the assessors despite my clear advice to the contrary, thought that the deceased was provoked and the crime he committed should be mitigated to one of manslaugher only 0 That with respect was certainly a perverse advice on the part of the assessors because if it was established beyond reasonable doubt that the accused found them walking on the path 2 this cannot possibly amount to finding them in the act of adultery 2 and this in turn would negate legal provocation on the accused's part. I have anxiously considered the evidence of P144 as well as that of the accused on this point and I am left in a reasonable doubt whether PW4 was a witness of truth 0 She did not impress me as such 0 Her testimony has to be pitted against the evidence of the accused. The prosecution, as pointed out earler, did lively canvass that the accused was a man worth of no credit on account of the contradictions which I mentioned 0 However, I am not completely satisfied that he wasi.an out right liar and prolabi'L.ty 1s ,,not withstanding the contradictions, which could be regarded as mere exaggerations, that the accused might basically be a credible w:.tness. I therefore am constrained to differ with the views of the assessors and give the accused's version the benefit of my doubt 0 It may be,, therefore, that he surprised his wife with the deceased in the bush 0 With regard to the allegation that the accused had a pre—intent to kill or do grievous harm I am also not certain that this was his frame of mind 0 While it is true that he took a spear and a club, he has explained that he took these weapons because it was dark and impliedly, for his own protection e I think his taking of the weapons is Gs open to an interpretation compatible with this explanation as it is consistent with his being in a frame of mind of anticipating trouble and a determination to kill or do grievous harm 0 This has also to be resolved in his favour. The question now arises: whether or not his finding his wife in the ragrente delicto, is sufficient in law to justify a reduction of the offence to manslaughter in accordance with the provision of s..201 of the Penal Code. I am of the view that the incid- ent was gravely insulting 0 It can be hardly imagined a wife and another man sitting in the bush during the night without the context of sexual intercourse 0 I am satisfied that the accused as a man of ordinary character, was driven to commit this assault in the heat of passion. . ••.. . . . . - 4 He was p it appears to me, legally proVbed.. Accordingly,. I find the accused not guilty of the offence of murder and I acquit him of this charge 0 I find him guilty of the offence of manslaughter and I convict him for that. Delivered in court of Sirigida this 29th.' day of June, 1973 D 0 P 0 MAPIGAN AG0 JUDGE Lusha2ara 0 No previous conviction 0 Allocutus 0 Accused married with three children. One of them schooling others still to go to school. Parents dead. Future of children depend on him 0 Has led peaceful and honourable life up to this tragedy. Tragedy brought by dishonest wife. Prays court to show leniency. Sentence: Bearing the above plea in mind, I sentence accused to six (6) years i'mprisonment. Right of appeal explained.. 71 D.P. MAPIGANO AG0 JUDGE 2 9/6/73 - • .- -- - - '