19730803 TZHC Dodoma

Nc. * /25 IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODONA REGISTRY) CRIMINAL SESSIONS CASE NO. 179 OF 1972 TIlE REPUBLIC S • -------.- VERSUS / JUL 1974 AGATA D/O SENIKtJ JUDGEMENT 1'1NZAVAS. - The accused Jata d/O enziku stands charged with e murder c/s 196 of the Penal Code. It is alleged that the accused on or about the 20th day o± February 1972 at Kilelole village in Mafindi district Iringa region, murdered one, Valentiono s/o Mdemu. Theaôcused pleaded not guilty to the charge. 2 Sometime in 1969 accused's child alldYusta disappeamd from the village. A search was mounted1ae whole distiict was combed. but Yusta remains missing up to'this day. On 20/2/72 a child of accused's brother—in—law also disappeared from the village. The child's name was Valentine 1"Idemu. The villagers mounted a search and Valentiwas found lying dead in Ruaha river. It is the Republic's argument that it is the accused who killed Valentine' in revenge. From the evidence of the doctor (PW1) and that of 0astorj do Mdemu (PW2) there can be no doubt that Valentino s/o Ndemu has died and that he died a violent death. Castorj related to thë,court that on the day Valentino, disappeared he had gene to drink pombe with his wife (PW3) and that wken they returned at about 7 p.m. they found him not at home. This did not surprise them as Valentinosometimes used to sleep at his grandfather's place. According to his evidence next morning he sent his wife to hiC father's house to collect Valentino. His wife went for the child but she was told that Valentino had not spent the previous nigh -c there. They got worried, alerted their neighbours and a searbh."tarted. Castori testified to the court that before they started looking for Valentino three children - Thrnia, Nzalu and Aida had told them that on the day Valentino disappeared the accused had called them and Valentino to her house and gave thorn peaches, and that after, giving them peaches the accused told Valentine to follow a fool- path leading to his house and that she told the other children to return to their house through another foot—path. The witness told the coutt that when the accused was interrogated about the children's story she admitted giving peaches to the three children but not to Valentine whom she denied seeing that day. . . . .1 6 - _2 - He told the court that Valentino's body was later found in Ruaha River. According to his evidence when, the accused was arrested and tied as a suspect she said: "Nt child also disappearedJ' The court also heard evidence from .nisia (PW3), mother of the deceased. She told the court that her huband, Castori, and the accued's husband are brothers and that they ar neighbours in the same village. Like her husband she told the court the story given by the three children about their being given peache by the accused and that they left accused's house following a different foot-path from that followed by the deceased. Anisia also related to the court that as they were looking for Valentino the accused adviced them tolook for the deceased in the direction she (the witness) used to cultivate her shamba as it wab possible that he may have followed her there. The witness finally said that she suspected the accused because foot-prints matching her feet were seen leading to the place where the body was found. Two children, (Dunia P1i14) and Nzalo (P 1115) gave unsworn evidence. Both of them related to the court that before Valentino disappeared the accused had called them in her house and gave them peaches.. They also told the court that after they were given peaches the accused told them to return home through a foot-path going to their house but that she told Valentino to follow a different path leading through bamboo trees. Arnati (PW6) related to the court how he participated in the search. According to his testimony they followed foot- prints which started from accused's shamba of potatoes and that the foot-prints led them to Ruaha river whore the deceased's body was found. The witness also related the story given to them by t. the children. The court was also told that when the accused was interrogated as to why the foot-prints leading to where the body was found resembled her foot-prints he retorted: "My child also disappeared." A cell-leader of the area also gave evidence - (Wi). According to his testimony he interrogated the accused and that she admitted calling the children and giving them peaches but that she told all of them to go back to their grand-father's house. The witness also told the court that as they were going : to the river the accused told them that there was no need for them to go to the river as she had been there but did not find Valentino. He told the court that they ignored accused'd advice and that they went towards the river and found foot-prints which led them to the river where they found Valentino's body. The cell-loader further told the court that they compared accused's foot to the foot-prints on the gorund and that her foot fitted the foot-prints. On being interrogated as to why her foot martched the foot-prints the accused is said to have replied: "It does not matter as my child also got lost.'. The witness also told the court that the foot-print which fitted accused foot was on a foot-path leading to accused's bamboo-trees. Detective Constable Ernest (PW8) related to the court how he investigated the case and produced sketch plan of the sone of crime which was admitted and marked as exhibit "C" He also testified that when he was compering accused's foot t.o the foot prints on the ground the accused said: "Vflay are you examining my feet. My child also got lost." 27 . 0 . ... / - 27 — One Rtshicli Dachi (PW9) a Justice of the peace gave evidence in coiinection with the accused's extra-judicial statement. He told the court that he cautioned the accused and was satisfied that she was a free-agen -t and that her statement would be a voluntary one; and then took her statement through his messenger who acted as an interpreter. Before ho was asked to read the statement to the court, the court asked the learned defence counsel if he had any objection to the contents of the accused's statement being read to the court. The loan-ied counsel replied that he had no objection provided that the prosecution was going to call the messenger as a witness. On asking the learned btate Attorney whether the Republic was calling the messenger as a witness, the state attorney roplãd that the messenger was being called as a witness and that a Notice of Additional witness was being prepared. The defence counsel',s doubt having been dispelled the statement was tread to the court and i there being no objection to its admissi- on as exhibit, it was admitted and marked exhibit D' S The Messenger (P1410) gave evidence. He told the court that he has been employed in Mufincli district officer for 12 years and that he was conversant in Kihehe which is his mother-tongue, as well as in Kiswahili. He told the court that h rembe6cd to have translated accused's statement to Mr. Dchi. According to his evidence he translated to Mr. Dachi into Swahili what the accused related to him in Kihehe. In her unsworn defence the accused tothe could that on the day Valentino got lost he and other children had visited her house and that she ga -e them peaches and they left. According to her defence bho h.d asked the children to wait for food she was cooking but that they declined. She said that she participated in the search of thel deceased and that the deceased's body was found in a river. She further testified to the court that when the police arrived the cell-leader and the deceased's parents told the polideman that they suspected her as the person who had killed Valentino. She told the court that the cell-leader related to the policeman that her feet fitted foot-prints found leading to the place where the body was found; and that after this the policeman ai'rested and took her to John's Corner police post. The accused also related to the court that she told the :police that her child also got lost. In hi address to the court the learned state attorney argued that if the court found that the accused's extra- judicial statement to the justice of the Peace was voluntary then the court would have no alternative but to find the accused guilty of murder as charged. It was further argued that althouh the evidence of the two children (P 1d4 and PW5) and that of the witnesses who participated in tiie thearch could not by iteelf justify a conviction, the factth revealed in their evidence were corroborative of the accused's confession 1 It was further submitted that the details of the accused's confession did not support the defence argument that Mr. Tyson (P'71o) may have given a different inter- pretation to the justice of the peace. The learned defence counsel on the other hand argued that the court should not put any reliance on the children's unsworn evidence as it lacked corroboration. 0 0 a 0 ./28 - 28 - As to the evidence of the foot—prints and the accused's rather extraordinary remark when interrogated about them the defence submitted that this evidence was circumstantial and inconclusive in that the facts were as consistent with innocence as with guilt. In support of this argument the court was referred to the decision in C}fflABILDAS D. SOMAIYAvs. R C19531 EACA 1.44 • It was also argued that Lyon (PW10) appeared to be not very conversant in Swahili language and that it was doubtful whether he gave a correct interpretation in bwahili of what the aócused related in Kihohe. Finally it was the defence case that the accused's unsworn defence was tantnount to retraction of her confession and that as such, corroboration of her retracted confession was necessary to justify a conviction. After summing up to the ladies and gentlemen assessors they were all of the unanimous opinion that there was no sufficient evidence against the accused and found her not guilty of the offence of murder. One of the assessors was of the view that there was no evidence at all implicating the accused with the offence. The remaining two assessors thought that the interpreter was not very conversant in Swahili and that he could have given a different interpretation from what the accused related to him. I agree with the defence arment that the evidence of the two children (PW4 and PW5) lacked corroboration in so far as it relates that the accused told Valentine to follow a different foot—path. As to the other part of their evidence there is corroboration from no lesser a person than the accused herself. The accused admitted in her unsworn defence that she called the children including the deceased and gave them peaches. In so far as the evidence of foot—prints matching accused's feet is concerned I agee that there could be a lot of other people in the village with feat of similar size as those of the accused. But there is also evidence that these foot-.prints were found originating from accuseds potatoes shamba leading to the river where the body was found. When the accused was interrogated as to why the foot—prints fi&±ted her feet she ) remarked "But my child has slso been lost.'1 There is also.thel evidence of the cell—leader (PW7) that the accused told the searching party that there was no need to go towards the river as she had been there but could not find Va.lentino. The searcb4ng party later proved that the very place 4 that the accused told them not to go was the place where Iing dead. All this evidence though insufficient to justidy a conviction, throws a lot of suspicion against the accused. As to the argument that Lyson (Pwto) was not very,: conversant in Swahili and that he may have given a totally different interpretation from what the accused told him; I would say that the way he expressed himself in Swahili when giving evidence left me in no doubt that he had sufficient command of Swahili language. The learned defence counsel's argument that Lyson's Swaliili.was wanting is, to say the least beyond my comprehension. Lyson told the court that he has worked as a messenger in the district office for 12 years. The Area Secretary (2W9) who has worked with him for 5 years told the court that Lyson was conversant in Swahili and that had always been faithful and hardworking.. As rightly argued by the learned state attorney I agree that Lyson correctly interpreted into Swahili what the accused related to him in Kihôhe. The detailed extra—judicial statement is itself proof of this. . 0 0 0 0 /29 - 29, - As to the argument that the accused's confession should be treted as retracted confession because the accused gave an unsworn defence with respect to the learned defence counsel, I would SEY that this is not the law. There is ample evidence that the accused did not make her statement as a result of inducement or duress. Indeed, the defence all along conceded that the statement was made freely and. voluntarily. The only argument which argument I have already dealt with was that of the competency of the interpreter. The question whether an accused's confession should be regarded as retracted when he makes an unsworn defence was decided in REX_vs _ s/Q 71HQ1 1 41 EkC case the Court of Appeal had this to say: In that (1) "That an accused person cannot be said to have retracted a confession freely and voluntarily made merely by making an imsworn statement without ref erring'in any way to his earlier statement confessing his guilt. Corroboration of the confession in shch circumstances is.not essential in law to justify a conviction and direction that corroboration was necessary was wrong. In her unsworn defence the accused does not refer in anyway to her extra—judicial statement to the Justice of the Peace in which she admits killing Castori's son. Indeed in her confession she amply explains why she decided to kill Castori's child. She says that one of Castori's child had told her that Anisia (Pw3), (wife of Castori) had taken lost child of the accused) into a room where she gave her "Ugali" YustaLtiff porridge) She also says in her confession that after this information her husband, her father, her mother and her mther in law consul-ted fortune—tellers and that all the fortune—tellers consulted mehtioned Castori as the personi responsible for the disappearance of her daughter Yusta. She then adds - "Because of this I killed Castori's child." The accused also says in her confession that when villagers were looking for her lost child Castori did not participate and that he remained sleeping in his house. Looking at the accused's free and voluntary confession in the light of the other evidence the only inevitable conclusion is that the accused killed 0astori's son in revenge. The accused has of course no burden to prove his innocence but taking into account her free and voluntary confession I can only say that her unsworn defence is no more than a clumsy attempt to evade the consequences of her crime. As to the unanimous opinion of the assessors there can'be no doubt that the defence succeded in wining their sympathy. But it is one thing to be sympathetic to an accused person and quite another to dispense justice without fear or favour, affection or ill—will. As it was once said - tJUstiCe must indeed be seasoned with mercy but it surely cannot be replaced by it.1 The killing was done in revenge and rtherefore am6unts to murder. The accused might genuinely'e"lieved that astori had, by means of witchcraft, caused hei daughter to disappear. But mere belief founded on something metaphysical as opposed to something phpical does not' constitute in law a circumstance of excuse or mitigation for killing a person when there is no provocative act - R vs. KAA sb MBzilcE 1 19 45J,EAcA 1O4 -30 - On the evidence I am fully satisfied that the prosecution has proved its case against the accused beyond all reasonable doubt and I accordingly find the accused guilty of the murder of Valentjno do I9ldemu as charged. /* N.,. . JDGE . 1' / Allocutus - I have nothing to say. ... .I Sentence - You have been found guilty of murder, an offence for which there is but one sentence, that is death / entence. You are sentenced to death and you shall suffer death by hanging. Right of appeal to E. A. Court of Appeal explained. IR.INGA 3/8/73 / N. . 1vfl{ZAWS JtJDC-E Mwipopo for the Republic lYfbozi for the accused. /31