19731011 TZHC Arusha

• IN THE HGH.COURT OF TANZANIA • 1L AT ARUSHA • ORIGINAL URISPICTION CRIMINAL SE3SICNS CASE N0040 OF 1973 - THE REPUBLIC Versus JUMA © NIKO 5/0 SALUM ACCUSED JUDGMENT Makame, J. The accused is charged with the mansiaugiter of Anna Paul, woman whQ was his girlfriend0 He has pleaded not guilty to the alleation'that at Unga Limited .Arusha, on9th,.November, 1972, he unlawfully Jçill.ed. .her . . Accordin.-t'Dr.0,,Jthined Lembauj,ti, P.W01, on 10th November, 1972 Phillipo Disa and Juma S alum in-the presnce -of:etec±iyeSgt.. DicksonJde,ntified the body of a. female pexs-ori as being' -th.a't'of. Anna Paul0 Both Jum&Sa1iim, who is the accused himself, and Phillipa Disa -P 0W05, who says Anne 'Paul ias his ots-in confirm this, which is aiso su.pporteci by P00.6 the Police OfficerDetect±'ve-S.gt. ItKS'ON"GEORGE0I am on the streriqth-of thisevidence,...-pes-uaded.. ...... ±0' find ,aud -do fi-. ..th'a"-AnnaPauio,,i .ined c1aad,.. 0 Dr0 .Lembariii.,toid"thc cóurt'th,at "on"the.JDody"he"found brulslAg—on the left cheEk and t -i upper lip Internally he noticed .that nine ribs we.iZe brocen - four n the left, side and fi ve on the other. The-spleen had ru" cu'ed and ther was a large blood clot in the vee1s supo.lyrrx'r bJood to the zmall n-bes±uies,,0 His Opinion ,,,..--'kias tha.t'the.ieceased..died beause of the haemrrhage.in-.the.-abdomen. He was--aiso of the view that a b.l..int ohect caused the ribs tofracture-_ I beLLeve the aoctor obseiv-ed the Iniurles he says he found durng -1-he post moc-iem pxalrinElt LOfl and 1 accept his opinion as t . , the cause-of de.ath.. S - '••• wi±s.ses-..tOld the...'ourt..that••they saw the-acced. :' assaulting - the deceseJ and each of them says the accu.s-ed threaten -. •' • ' o ..o ....ts---nody who' d,ed try" to prevent 'hi. from 'further ........... ........... asauLting sthe..dece,d, and that he w. - carrying a iarge knife hese wi±res.e.s are a' Special ,cons.table.,.. POW62 HMTSI DEWA, PO4.3' ... •.: SAIDI' HAMISI.,,.who says the--accused was his. .n'ei.ghbour' at the materiaL. .'andanther perso AMINI.EL MARA, P8W04 9 POW.02 s.ays that • •. ,near..,a....s-hop that evening he saw, the. accused, lapping the deceased...... ... twice and.-that'bo'th of theM., appeed to be drunk0 ho.:w'alked ... in 'thO" direcon 'of' P'W3's 'house,. and 'he followed .them'. He ,called.-.out who 'came with sevral 'other 'people, and, h,e warn.edtice accused • -.. not to.assul.t" the deceased any more0 The cc..is.ed would 'pay' no.,.heed--..? • :' Instead he said he, would injure with the sime anyone who. interfered-0 P-0W03 gave clear evidence ofwha -t he says he szw and. suggests'" th'a±'l-te-"-was ablO to observe things ec'aus.e there was electri.c.light • " from .his..own, geneator. • The accused,. a person ..he knew well and a -close nelqhooLr, arrLveft there in the company of, the 4eceased and • ' ..: ,,.,... •P.w20 •P0W02 was pleading with the accused to •discon.inue-the • assault on the dec.aased,i€st 'hE' killed 'ier,but the accused i'hsteed' threatened peopie aith ci pança He draoged and pulled the woman about, ------ ----- ifte her, and knocked her Cfl the., ground0 , The following day he-'hed ar -' • ' 'that'. the woman. was dead 0 - ThiL. evidence is- clo. ly corroborated by - - P-0W4.. -- /2 - - / 1. =2= I P0W06, Detective Sgt0 DICKSON GEORGE told the court that that evening the accused reported to him that his concubine had died at his house after he had taken her home when he found her being assaulted by a group of people who disappeared on seeing him0 The accused took the Police to the spot where he said he had found the deceased being assaulted and the witness noted that it was quite close to people's houses, and none of the people he asked said they had heard any noise0 Investigation satisfied P0W06 that the accused was inf act the person who had assaulted the woman so he went to the accused's house intending to arrest him but there he found that the birds had flown0 He alerted the whole country by. telephone and it was not until 12th December, 1972 that he managed to apprehend the accused after he had traced him to Ngare Mtoni Juu0 The accused made an unsworn statement in which he said that that evening when he was going to make a purchase of cigarettes he heard the deceased voice nearby, about five paces from the road, and then in his own words: "I went there and found that it was the deceased, a person I knew0 Because I knew her I took her home as I know.how she behaves when drunk0 after some time I found that she was not breathing 000000000000 's He says he then went to a cell leader but he was told by his.wife that her husband was on safari0 He then went to the Police to make a report0' I believe that the accused did tell Detective Sgt0 Dickson what the witness said the accused told him0 About this I have no doubt in-my--mind0 1 am .wqre of 'thefact that ii'some circumstances one can tell an unnecessary lie jusE to make sure that' he stays clear of suspicion ,andHrouble0 In the. i.reseht instance, however, I am fully convinced that the accused told a calculated and deliberate lie, knowing that he was respoisible for the death, and hoping that the false information would asist him to escape the consequences of his malefaction0 In his statement i.n court, he said absolutely nothirfg about finding the 'deceased being ass aultod and he also carefully played down the relationship he had with the deceased and referred to her merely, as 'a .perspn I knew0" I have no doubt that he would have repeated in court the story be told P0W06 had it been true, and that he has now avoided repeating it because he felt uncomfortable 'about it0 L. There"Was a faint suggestion by the Defence, which did not impress me, that the Special: Constable testified falsely against the accused because he, the 'constable, had some time previously unsuccessfully asked for a cash loan from the accused-0 There was no suggestion why P0W03 and P0W04 should also want to tell lies, such serious lies, against the accused0 They impressed me as being clearly truthful and I have' no reason to disbelieve them0 The gentlemen assessors accepted their ovidence and I am unable to differ0 Admittedly some of the details of the assault they gave were not supported by the special constable but that is not surprising, considering that the constable's testimony suggests that he did not tarry there once he had reached P0W03 1 s place and warned the acàused0 F0W03 and P4 remained around and saw the progress of the assault0 I am satisfied that the assault was long and sustained for it hd clearly begun before the constable had arrived at the scene 9 that is why the conotable heard the deceased remonstrating that she would not go home with the accused because the accused was beating her too much, to which the accused retorted that hewould take her there by force if she would not go there willingly0 . . .. . . -. / 4., .--... •,. -3- I am satisfied that the injuries the doctor observed, which were the cause of death, the deceased received at the hanìds of the accused0 It must have been a brutal and cruel assault to have caused such serious injuries - nine broken ribs and a ruptured spleen the doctor found to be not enlarged0 The accused denied himself the opportunity of being persuaded to refrain from administering further punishment to the deceased by threatening to slash people with his pangn0 I am satisfied that by the time the deceased reached P0W03's house she was already in a bad state, that is why she was not saying anything, according to both P0W03 and P0'J040 The accused would know why he so violently assaulted the deceased0 Going by Debwa's evidence, it seens possible he was drunk0 There is no doubt, however, that the assault was unlawful0 Both gentlemen assessors found the accused guilty and I am respectfully of the same opinion0 I find the accused Guilty of Manslaughter as charged and accordingly convict him0 (L0 M. Makame) Judge 11th October, 1973 Previous Convictions No previous convictions0 AT1CTJTTJ M .TCT-TT The accused is a youth of 31 He is married, with 2 children0 He is a first offender, In custody since 12th December, 1972 I ask for leniency0 ACCUSED: I have nothing to add except to request that I be given, a lenient sentence as there is no one at home to look after my children0 SE N T E N C E: Taking into account the mitigatig factors, but also bearing in my mind that the deceased met her death as a result of a very violent assault at the accused's hands I sentence the accused to imprisonment for 6 (six) years0 (L0 M. MAKAME) JUDGE 11th October, 1973 RIGHTS OF APPEAL EXPLAINEDO (L0 M. MAKAME) JUD( ç: /cwm 11th °ctober, 1973