19730811 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA 4 AT IRINGA ORIGINAL JURISDICTION P (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 26 OF 1973 THE REPUBLIC VERSUS MODESTUS 5/0 NDEMELA Charge: Murder c/s 196 of the Penal Code. J U D G M E N T MNZAVAS J. The accused Modestus Ndemela stands ehargdd with murder cTs 196 of the Penal Code. It is alleged by the Republic that the accused on or about the 18/12/71, at Kiwere village in the district and region of Iringa murdered one, Mkonongo s/o Melita. The accused pleaded not guilty. It is not in dispute in this case that the deceased died from a gun—shot wound. Equally it is not dispuLeci that the bullet that killed the deceased caine from the barrel of the accused'! "i 5 shot—gun. The Republic argud that the accused intentionally and with malice-aforethought shot the deceased. The defence on the other hand argued that the shooting of the deceased was accidental. On 18/12/71 Asha Hassan (Pw7) brewed pobe for cu1tivaton of her shamba. Many people responded end cultivated her shamba up to • about mid..day. At about 1 p.m. they started, drinking pornbe. Among the people who participated in the cultivation and in the drinking are Rashid (Pw3), and Martin (Pw5). The accused and the deceased, though not among the people who cultivated Asha's shamba, visited Ashas house and were offered pornbe. In this category was a1, one, Chogo (Pw4). According to the evidence of Martin (Pw3) who is no doubt the star prosecution witiess, on that day the accused arrived carrying a shot—gun and an umbrella and asked him to keep the gun and the umbrella in a safe place. ''He testified to the court that he took the gun and the umbrella and kept them in a room in which he and Masal ladies were drinking.pombe. The withess also related to the court that before he took the gun he had asked the accused whether it was loaded and that the accused replied that the gun was not loaded. The accused was offered pornbe and sat at a verandah of the house After the accused had finished drinking his pombe he approached Martin and asked for his gun and umbrella ready to go home. Martin went for the gun and umbrella but to his surprise found the u"brella • missing from where he had kept it. He brought the gun to the accused and told him that his umbrella had disappeared.. At this juncture the • 'Masaj ladies who were in the room in which the gun and the umbrella were kept had left the room. One of them had entered anotherbut in which the deceased was drinking pombe. Martin, accompanied by the accused, approached this Masa.i lady and asked her whether she had seen someone taking the umbrella from the room in whichhe was previosly seated. According to his evidence, the deceased who was at that time drinking pombe with the Masal lady took strong exception to Martin's question to the lady and said "Why are you interrogating this lady about the umbrella whereas she has never left this room."? At this juncture, the accused who was .. ... . . ./2 :4..._t. ..,.. I. _Ii99J'. •I /4 (9 • ,• '•bc; ; : bc:c r•. - .: V' :s'_ 'c. :9: ' -: -.' • 4... • . . .. - jt • fl LL.; •., ' - i. t 6 ' • - 4J • ._, L.'.:; - .. -•. • •• ..C) J ,C) .__ • •• i :r-:Lo);.3 • J' ,•- • - . : r .-. I •• . . t:4 4948-9 t\ .. - .. . * ' .r • r. .I;vLjI.:1 :. -, . - •:.-< . 4_, ,' s -- 'i.J.t • - c-., -.. 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'/. • •,. •• 't: ......... r'tr - tp 1 L .i;: 9 - -.-, - .---- i•..._j8.•c;. •.'..9 .,'•. 9•j -.,-:-: r •.'' . . . .' dCc ' - ', t , . 0 . . . . . . . ./2 4 to have an7red: "Why are you defending this lady while she admits seeing the umbr3ia? Then, according to Martin's testimony the deceased started abusing the accused in English, The accused retaliated and also abused ii the deceased. The deceased then stood up and followed the accused out. side. According to his evidence the deceased was armed with a stick and a sime as he was following the accused. The accused walked away from the deceased in an attempt to avoid fighting with the deceased and y that as he was avoiding him the deceased said to him: "If you are a man beat me. You are proud of your gun." Then the accused who was now about 4 paces from the hut asked the people present to stop the deceased from following him and warned that if he continued followirig him he would beat hi. Martin then approached the deceased and asked him to stop following the accused but that the deceased who was in a truculent mood turned round and attempted to assault Martin with the stick he was carrying. Fearing that the deceased would assault him Martin retreated and went c .loside the hut leaving the deceased and the accused outside. As he was inside the hut he heard sound of a gun. According to his evidence he hurriedly went outside to see what had happened and that as he was doing so he met the deceased at the door returning to the hut. He noticed that the deceased was bleeding from his chest and was still carrying his sticks and his "Sime". Martin got out and asked the accused what had hap:ened and that the accused replied that he had shot the deceased with his gun. The accused is also reported to have told Martin that he would be in his hoüsë and that the police should be told of his where- abouts when they arrived. According to Martin's evidence the deceasd died a few minutes later. The dootor (Pwl) gave evidence to the effect that the deceased died from bleeding in his left thoracic cavity as a result of rapture of the aorta and other big blood vessels, He was of the opinion that the wound he found in the deceased's chest could have been caused by a bullet. Post-mortem repozt was produced and marked as "exhibit A". One, Surgent Idi (PW8) also gave evidence. He told the court how he sent the shot-gun and used cartridges to the Government chemist and to the ballistic expert for examination0 He produced the ballistic expert's report as well as the chemist's findings to the court as exhibits Fl and F2" respectively. Both reports show that the accused's shot-gun was fired. Detectiv.Corporal Michael (PW9) related to the court how he investigated the case and.produced to the court sketch-map of the scene of crime. The sketch-plan was admitted and mar- ked as "exhibit 1 11 . In his sworn defence the accused related to the court that on the material day he left his house at about 11 a.m for a hunting expedition, He failed to get any game and decide to eeturn home. As he was returning home he decided to pass at Martin's house to collect his radio which Martin had borrowed sometime ago. According to his testimony on arrival at Martin's.hous, Martin offered him pombe in a cup. Before he drank the pombe he asked him to keep his gun and umbrella in a safe place and that Martin took and kept them in a room. After he had finished drinking his pombe he asked Martin to give him his gun and umbrella but that Martin brought only the gun to him and told him that the umbrella had been stolen and that he suspected Masais who were in the room where he had kept the gun and the umbrella as the people who had stolen the umbrella, The accused told the court how he accompanied Martin to the hut in which a Masi ladywas sitting with the deceased and how the deceased intervened ,vthen Martin asked the masai lady whether she had seen the umbrella. AccQrd- ing .to his evidence the deceased abused him and followed him outside armed with a "sime" and two sticks. He told the court that seeing that the deceased was about to attack him he took to his heels and that at the same time he asked people. to stop the deceased from chasing him. According to his defence as he was running away he tumbled over a piece of wood and fell down; and that suddenly.his gun fired. He, according to his testimony, left the gun on the ground and contin- ......./3 • a a a a a e • • uedunin,g away ssing through a shamba and stopped. He then looked behind and saw the deceased standing and returning his sime in its scabbard and returning to the hut. He then returned, picked his gun and left to his house. He told the court that while he was at his houe soueone told him that a Nasal had died at a pombe-shop after quarreling with another person0 Next morning he decided to go to the pombe place and he was "surprized" to see that the deceased had died. According to his defence he did not know that he had shot him. He told the court that he went to the scene carrying his gun and his fire-arm licence and that he told Martin's father that he may have accidentally shot the deceased. The accused further related to the court that he has been owning and using a gun for over 30 years without incident. He told the court that his gun had some defects and related to the court of two incidents in which his gun back fired and injured him — Once in his right hand and a second time on the bridge of his nose. He told the court that he always fastened the trigger of his shot-gun with a rubber-band inorder to stop it from firing on its own. In support of the Republic's case Mr. Mwipopo argued that even if the court was to accept the accused's defence the killing of the deceased was due to the accused's gross negligence and that his defence of accident could not avail him. The learned state attorney referred the court to the decision in R V ABVASALI KABULA S/O DODO EAC4 42 and ANDREA AWORI SIO YOWANA (1947) EACA 540 On the strength of the above-quotted decisions it was the Republic's argument that the facts in the defence case, if accepted by the court ; would amount to no lesset an offence than the offence of manslaughter. The learned state attorney. however was of the view that Martin's evidence, if believed would tend to show that the shooting was deliberate as, it was argued, the accused told Martin that he had shot the deceased. It was further submitted that as the deceased's abuses to the accused would not amount to legal provocation to an ordinary man of the accused community the shooting of the deceased by the accused amounted to murder. In support of this argument the court was referred to the recent decision by my brother ONYIUKE J. in SAID MWAMWIND (1972) H.C.D. 212. Mr. Mbezi on the other hand was of the view that the facts were consistent with killing by accident. The learned defence counsel also argued that even if the court rejects the accused's defence of accident it is still the duty of the court to consider also the possib- ility of manslaughter. In support of this argument the decision in ZAKAYO LWABIJJAWO (1947) EACA 128 was quotted: After summing up to the gentlement and lady assessors, they were both of the view that the killing was accidental and found the accused not guilty of any offence. As I have already mentioned the star prosecution witness in this case is Martin (Pw5). He appeared to be a simple villager without guile. His conduct in the witness-box and his demeanour left me in no doubt that his account of what happened on the material day could not but be true, I agree with his evidence that when he got out of the hut and asked the accused what had happened the accused told him that it was h - '- had shot the deceased. The accused's defence that 0 h' 14 -, '-- - i - tln after the deceased was shot iand tbat.he shot the deceased acc_oantally Is a clumsy attempt to avade the consequences of his acts. If, as argued by the defence, the shooting of the deceased was accidental there was no reason why the accused should not have said so to Martin. Instead he eaid- have shot him" and no more. This being the evidence there can be no doubt at all that the accused deliberately shot the deceased and I so find. The accusedtS: defence that his shot gun was defective and that it accidentally fired after he had fallen down is clearly an afterthought. I therefore. hwe no alternative but to reject the accused defence of accident. But as it was held in ZAKAYO LWhBIJJAWO'S CASE- (1947) EACA 128. •0000 ."Where in a trial for murder, a defence is put forward and reJected by the cou- rt, it is still the duty of the court to consider also the possibility of manslaughter if there is some evidence .to support it." As I. have ..0 alrey mentioned the Repubic argued that on the facts of this case the accused could not be said to have been legl1y provoked by the deceased so as to reduce the offence of murder to one of manslaughter and referred the court to the decision in MWAMWINDI'S CASE, above- quotted.With respect to the learned state attorney I would agree with his argument that the deceased's abuses to the accused Calling - him a "Ndorobo" and a bloodful, could not have provoked an ordinary Mhehe, (to which tribe the accused belongs) 0 to violence, leave alone extreme violence as it was in this case. If this was the only evidence and no more, the defence of provocation would certainly have n failed. But, as rightly argued by the learned defence counsel there were other features in this case which when added . ito -- . the :,~ iabusive - langua- g6 6f the deceased tend to throw a different light. Over and above the fact that the deceased graitiuitously abused the accused, he, armed with a "sime" (a dagger) and sticks and in a truculent mood followed the accused in order to attack him. When Martin adviced him not to quarrel with the accused the deceased turned round and attempted to assault Martin with his stick. At this juncture Martin retreated into the hut and left the deceased advancing towards the accused. It was while Martin was still inside the hut that the accused shot the deceased. As to what happened outside before the accused shot the deceased we only have the evidence of the accused. According to his evidence the deceased pulled his dagger and chased him. It was argued by the Republic that the fact that the deceased's dagger was found in its scabbard round his waist when he fell down after being shot negatived the accused's evidence that the deceased had drawn his dagger. This is a fair argument but the fact that the deceased did not take heed of Martin's advice to stop quarreling and instead threatened Martin with violence suggests that the deceased was determined to attack the accused with, if not with his dagger, with his stick0 That the deceased was aggrasive by nature is denc8Chog&h 0 on being cross—examined by the court said: "The deceased was a very #¼ ruthless person even when he had not taken pombe. He eften quarreled wi th people in the village for no reason." As to the d:cision in MWAMWINDI'S CASE I would with , respect to the learned state attorney say that the facts in that case were t'ol1y.different from this case. In that case the accuse de after having been poked with a stick by the deceased he quietly walked to his house which was some distance away, took his gun and shot the deceased. Because of this it was held and in my view, rightly so, "that the accused may have acted in the heart of passion but that the heat of passion was not caused by sudden provocation as envisaged by section 201 of the Penal Code." In this case the accused was carrying his gun when his umbrella was reported missing•, while pondering as to the whereabouts of his umbrella, the deceased'without rhyme or reason started abusing him. And, as if this was not enough he, armed with a dagger and sticks started chasing him and., according to the accused's defence, he drew his dagger as he was chasing him. This being the evidence the accused may well have been provoked by the deceased's acts. I t s it was held in CHACHA S,10 WAMBURAVS R (1953) EACA 3390 "The question of provocation is ordinarily one of fact and it is only in the clearest cases that it should be withdrawn from consider 'tion on that basis. All elements of provocation should be considered together in assessing their effect". Although the accused's life was not in peril when he shot and killed the deceased as he was about 16 paces from the deceased when he shot him, the totality of the deceased's acts to the accused did, in my view amount to legal provocation as defined under section 202 of the Penal Code. I find that the accused shot the deceased in the heat of passion caused by sudden provocation, and before there was time for his passion to cool and reason to interpose. I accordinglj find the accused not guilty of murder and I acquit him of this charge, but on. the evidence, I find him guilty of the lesser offence of ma:slaughterc/s 195 of the Penal Code. N.S. INZAVAS.— 'JUDGE, 00000a000000_f5 S Mr0 ChambakarLe — The accused is a tirt offender 0 ThMition — I have nothing to say 0 ) Sentence — The use of such a lethal weapon as a gun should always be vigorously, discouraged. Had it not been for the fact that the accu- sed is a first\offender I would not have hesitated to send him to prison for along time. You are snenced to 5 yearg ithprisonment. Right of Appeal to EACA explaineth A ' R:%• / D000MA N0S0 MN,ZJWAS 11/8/73 JUDGE Mwipopo for the Republic Mbezi for the acciised0