19731109 TZHC Moshi

IN THE HIGH COURT OF TANZANIA ..Q.ç1. -V~ ORIGINAL JURISDICTION ' (Arusha .Registv) CRIMINAL SESSIONS CASE NO0 48 OF 1973 THE REPUBLIC versuS - WILSON WERANDUMI MUSHI, AGED 30 YEARS, TANZANIAN CHARGE: Murder c/s 196 'of. the Penal Code0 'JUDGMENT Makame,.:Jo The accused WILSON,WERANDUMIMUSHI is on a' charge of'Murder0 He has denied the allegation that, with malice aforethought he stabbed to death ELIFURA ELlA atMasama Lemjra inthe evening of 2nd September, 1972 : The evidende of P0W01 DRORAJPAN KHANIJAN is supported by that of:PoWo,: POCO .FILEMON IVftIAFILASU that the body on which he 'conducted a- post mortem examiiation on 5/9/72 vias identified.:. to him as being that of ELIFtJRA'ELIA in 'the presence of,,PC0PhiIemon, I am persuaded- to believe' that it is true ELIFURA ELlA is dead. and that his was the body the doctor did the post mortem examination0 According to the doctor the deceased h.ad 'thee stab woihds 1 .bn'thé.ctest,' 4 k 26m', 3½x l½cm,:and4 x 2½ cm, as'well as ~ .: a superficial incised wound on the back .of the left hand0 He expressed the view that the deceased died of haemorrhage inside the chest as a resilt of the stab wounds0 I believe the doctor observed the injuries and I accept his opinion as to why the deceased died0 P0W04 ELISA NDESARIO and POWO6 JOSEPHAT ISAYA told this court that in the evening of.the material day.they were present at the village'pub when the accused and the deceased quarrelled0 ,, . •.- Accordingto Ndesaib the quarrel arose as a result of the accused and' 'the deceasedeach wanting topUdhase beer for a woman called MAENGA ATHUM'ANI0 The quarrel. was aheated one, with lots of .. mutual abuse, but eventually it was quelled by the witness and ..' other people who were there0 The witness left beforC'ei'ther the . accused or the deceased had left and at about 630 ai0 the following day he found the deceased's body nea± - the pub0 According. to Isaya itwas only abput four paces away0 •Isaya-say he dd not know how the' quarrel had started butwhen hé':disovered" it the .. two people were actually in, each other's arms posed for a fight : and he h ad to walk between them so as to push them asunder0 The, ' '. deceased went out first and the accused left about half an hour., later0 In court the accused was very. reluctant to adthit that the . deceased and he quarrelled that evening but eventually, he. said it was true, except he did not know what they quarrelled ove0 . 0 A Justice of the Peace., P0'W07 MANASE LEMA said the accused made an extra-ud-icial statement bef Ore him0 In it h6,said the :ieceased was grabbing oth'er people's drinks so he told him to stop the bad practice whereupon the deceased said it was in fact the accused he particularly wanted, and challenged him to come , out0 The accused followed the deceased outside.where the' decease d : seized him' and started throttling him0 'The accused unuccessfuIIy. tried to extricate himSelf so he pulled ou' a knife and stabbed the deceased0' After that he escaped toBoma la Ng'othbe'herehe spent the night in"the bush0' The following'day he-."wetit to A.isha'' and on 28/11/72 he was arrested at Makuyuni and told that Elifura Elia was dead0 - — 2 — In his evidence the accused agreed that he made the extra •'. ' judicial statement but he retracted it The extra-judicial statement was ruled to be admissib,ie-, of course,in a trial within trial, and the accused was told of his right, which he duly exercised, to impugn the statement again and reaffirm his retraction of it, in the presence of the assessors0 The accused says that he told lies tn Mr0 Lemz because he had been told to repeat to him' the sme s':ory he had told the Police0 He says that two Police Officers, RASHIDI and DUNCAN, who brought him from Mto wa Nbu Police Post, assaulted him and threatened him with pistols0 Having forced him to make a statement HIM to the Police Rashidi toldAhe, must rpeat,:it.to the District Magistrate, or he would be assaulted again; so for fear of that he repeated the lies0 '0thP0'W'0 8 :and'pW9 RASHIDI 'ATHUMANI andIJUNCAN DOUGLAS have gién eVdence'in which they completely denied the accused 's allegation0' The' J0P0 ass'u±d the court that he told the accused, who never made any complaint to him, that he need not tell him anything and that he should only do so voluntarily0 He also said that he was satisfied that the accused was a free agent0 Both 'ssessors were of the view that the accused was never ass aul,ted by the 'Police0 I am unhappily' aware that a minoriy Of policemen,, occasionally., ge.t over-zealous in their inv.estigationsr and ;, that. some-times,, in the transport of such zeal,, they may be -, tempted to employ some amount of physical persuasion in order to get an accUsed person 'to "co-operate"0 In the present case I' ani unable to sa' with crtainty that the accused was not 'subjected to some iolence0 But I''sm'cetain that when he'm'de'the extra-judicial stt&nent he knew he was doing so before a 'magi&'sth, a Justice of the Peae who had' nothThg to do with the ihvostigatiori',' • andkave him' all the necessary' fsrmal assuranres 1 found Mr0 Lema a man of transparent honesty in the witnes box and I believe, like he did, that when the accused was making the statement to him he was doing so voluntarily as a free agent0 If there had been an inducement to him iL was ioL operating on his mind at that time0 ,' '' .• . In.court - the accused said he went horde normally, from' the pub and that the following day he left earI,at 700 a0m0, to go back to Arusha'where he wanted a mbtor'veh'icle repaired0' 'I do not' believe 'this ' He"tdld the committing magistrate, in an attempt to steer clear of'tr'd'uble, that he-had not been 'to the village for fiveears'0 Here in court he said .he used to 'go back to the ' vilLage asroften as twice a year, and of ,course he agrees he was there 'as' "recently as only three months befoie the Police picked.him'0 His exit frOm the village was h'asty and devid of ceremony, and in my view,, pregnant with significance0 If it was as he said, his parents with whom he says he was in correspônderce', would have infornied him during the three' months that hisco-vill'a'ger had been tound dead, and stabbed the very morning he left the village0 I ,do not bell'eVe that if he had not visited his parents f or five years he w,oul,d have stayed only over night0 I believe that what heold the Justice of the Peace was not untrue and, considering the drift, and content of the statement, I have- 'no doubt that it was in fact anffort to mimize the criminality of his malefaction0 Hehas of course retracted. his .1.' statement and, as was said in GATHUC4U MIGWE and tnother versus R. (1953.20EAcA'294) as a matter of practice corroboration is necessary0 It would he dangerous to act on a retracted extra judicial statement otherwise, but of course, as DUFFUS Ag0 y0r-0., as i- hen was, observed in TWAMOI : y UGANDA (1967,EA 84) there may he circumstances 'in which the volunt'sry statenent is 'so clearly true that corroboration is -. unnecessary0 In the present case, considering the evidence of quarrel and all the surrounding circumstances, I. 00000saof) - - • 7/ I have no-düb€that the accused did stab the dceeseda i wi1linglydiclosed CQ Nr. Lema0 There' ws , more oVé, corroborative circumstancial evidence th6 haty and surr departure at night and the earlier denial in the committin that he hadnot'been to the village for the past five years0 ...Tl?H accused •decidëdt the eleventh hour to come to terms with reali at least to the extent of owning that he was in the vi1lge afte. hearing the clear evidence of the peop1eho saw him at the pub, including P0W04 NDESARIO, his one-time teacher0 Like both Assessors 1 am satisfied that the youth 1 SHERIA SAFARI, P0W04, told lies when he said he walked with the deceased. for sevn minutes to his own village0 I agree with the lady assessor that there must have been a lot of noise in the pub for the commotion outsidè to be muffled0 I believe thekriifing Was right outside the bar and that the. Prosecution witnesses dp. not hecessarily remethbër the recise sequence of the deprtue0 I am however of the view that several people must have seen the deceased lying dead the same night and merely feigned ignoancé. until the following day0 oth assessors find that the accused did stab the deceased and with great respect I am of the seine view0 The gentleman assessor went further and said that the accused hunted f or an opportunity to stab the deceased: The same'hunch is lurking intmy mind but the evidence on record has failed to transform that hunch into the hard mould of proof beyond reasonable doubt0 I respectfully agree with the lady assessor that malice aforethought has not been established0 As the learned Attorney for the Republic also quite fairly conceded in his final address, there was no evidence to refute the version by the accused in his extra judicial statement that the deceased throttled him0 He must be given the benefit of doubt and be held to have acted in some self-defence0 It is a correct proposition that in defending one's self one cannot reasonably be expected always to weight to a fine nicety exactly how much force he should use0 In the present case, however, the accused stabbed at least thrice0 Assuming that the deceased was throttling him the deceased would have let go of him after the first stab0 He defended himself excessively in the circumstances, beyond the bounds of legitimate self defence0 I find the accused NOT GUILTY of Murder but Guilty of Manslaughter for which I accordingly convict him0 Previous Conviction: Nil Mr0 Mganda: He has no previous conviction but he went too far in defending himself. A stiff sentence is called for0 0 ALLOCUTUS: Mr0 ZAFFER ALl - Accused is a first offender0 Remanded for almost a year0 He has a wife and four young children0 He has six other dependants - parents, sisters, and a brother0 Offence committed in the heat of excitement or in fear for his life, or under provocation0 Or drinking0 We ask the court to consider these factors in support of the prayer for leniency0 Accused: I have nothing to add0 (At the Instance of the Court: - INDANDUMI ELlA - Tanzania, Xtian, sworn states (In Kiswahili):- The deceased was my full brother0 He was my elder brother0 He had four children and a wife0 The children ranged from 2 - 9 years0 He was a peasant and was looking after his family0 S L. M. Makame, J. 9/11/73 0 .... /4 0 kP -4-' used: I was • a business man in. Masailand for over 5 years. as getting aprofit of .áhput 300/- per month I haveno zt=al poper.ty0 SE NT E N C E I sntenc'e the accused to imprisonment for 6 (six) years, three of. :jhjch are susiDended for a period of 120 (One Hundred And Twenty) days, provided that before the period of suspension is over the accused shall pay to INDINDUMI ELlA, the full other of the deceased, on behaW of the deceased's widow and f our children, shs06,000/- (ix Thotsad), in the presence of the Senior RsidentMagitrae, MOSHIO . . .. RIGHT OF APLEiL explained MOSHI: 9th November, 1973 .(L M. J(ANE) JUDGE .. . 9/11/7.3 at 134iprn . . ... . Coram: As Before . . . . . . Judgment delivered0 Assessors thanked and released. MOSHI: 9th November, 1973. (L0 M. MJ<iE) .. /cwm . . . . JUDGE . :