19731219 TZHC Dodoma

/29 IN THE HIGH COURT OF TANZANIA Wtc, bf? AT TUKUYU ORIGINAL JURISDICTION (D0DOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 58/73 L.1974 THE REPUBLIC VERSUS APETI MWJ1HUSI Charge: Muz1r Contrary to Section 196 of the Penal Code. J U D G M E N T . MWAKASENDOJO The accused in this case s APETI MWAMAHUSI, has been charged with the murder of VICTORIA D/O IPOPO on the 8th day of July 1972.' It is not disputed that the accused was the person who killed the deceased. At the postmortem, the doctor, David Daniel Magogo found one penetrating stab wound on her body. It was along the right mid-axilary line between the 4th and 5th rib, pointing backwards and measuring 2 inches at its entrance. On dpening up the body the doctor found a collection of blood on the right side of the lung space. When he examined this lung hefound'it pierced for a distance of 1 inch. From these findings the doctor formed the opinion that death of the deceased was due to shock caused by the penetrating wound into the chest cavity. Two accounts of the attack on the deceased have been given to this court, the first by JOYCE D/O IPOPO (PW.12), co-wife but no relation of the deceased who would appear to have been present immediate- ly before accused attacked and fatally injured the deceased, and the other by the accused. Admittedly Joyce d/o Ipopo as the first wife of the accused is a witness whose evidence was received under the provisions of Section 130 of the Evidence Act, 1961, and which in terms of sub- section (4) of the same section requires corroboration if the court has to rely on it and take it into consideration in convicting' the accused person. Sub-section (4) referred to herein provides: "An accused person shall not be liable to be convicted on evidence of his or her spouse admitted under this section unless it is corroborated by other material evidence in support thereof implicating the accused persont". On aproper reading and construction of this particula sub-section, it seems quite clear to me first, that this provision is not mandatory, and secondly, that it makes no pretence to change the existing law with regard to corroboration evidence. In this provision as in all other statutory provisions laying down that a piece of evidence shall not be acted upon to found a conviction of an accused person unless that piece of evidence be corroborated by other materiaip in support thereof, it is open to the trial court to accept such evidence even thought uncorroborated, if the court is completely satisfied that the evidence in question could not be but true. Guided by these general principles, the court has, in the present case, fully directed itself on the necessity and desirability of looking for corroboration of Joyce's evidenceafter carefully qccepkintg considering the whole evidence on record satisfied itself that Joyce's evidence is corroborated in the manner required by the provisions of ancaci_sectjon (4) of section 130 of the Evidence Act, 1967. In any case, ' and 'has'even if I were mistaken in holding this view and there is in fact no deqnecorrobbiation of Joyce's evidence on record, I am satisfied OeOCGSS' -. /30 .......•...a Si that despite such lack of corroboration her evidence should be accepted and acted upon by this court because in the incircumstance of the case, he account is not only the only reasonable and plausible account we have about the killing of the deceased but also, which is more important, it is nothing but th absolute truth about the matter. Now, the prosecution started their case by calling two witnesses whose evidence, as it seemed to me, was to show the relation-. ship between the accused and the deceased Victoria Ipopo immediately before her death. But before dealing with that evidence it will be helpful, for a proper understanding of the principal actors in tnagic drama, if I discribe briefly what sort of people they are: The accused Apeti Nwamahusi is a resident of Bulyambwa and Q jvillage, 0 a farming rural community situated in the slopes of what used to be called the Livingstone mountains./ It is in the pinda area, within r as!jUjangAthe political administrative division of Kycla District. As a rural 1oUrta1n:. community most of its people are engaged in Agriculture and that would appear to have been the pre—occupation of the accused, his two wives and all the other villagers of Bulyambwa who figure in this case. And Bulyambwans like most agricultural communities elsewhere in the world are essentially an honest and hardworking people. The accused Apeti Mwamahusi got married to his first wife in 1967. We are not informed if their marriage has been blessed with any offspring. In 1970 accused, who as a man apparently professing the Christian religion one would have thought would have little desire for a second wife, decided to get married to a fairly young girl by the name of Victoria Ipopo, no relation of Joyce Ipopo, the first wife. Victoria Ipopo according to the doctor's postmortem report was aged about 16 years at the time of her death. This means that at marriage to the accused she was gust a little over 14 years of age - an age at which one cann harly expect a woman to be sufficiently mature and well prepared for the heavy responsibilities of marriage. However, lest we forget with whom we are dealing - we are here dealing with a people of a rural community where the ordinary rules of behaviour applying elsewhere do not always apply. Be that as it may, Joyce heard of her husband's intention to take a second wife and she was not amused. She was in fact annoyed and made her feelings known to her husband, with the result that their marital relations were for a time sored and strained. Slowly however, accused got her around to accept the idea of having a young girl as a co- wife. With a change of heart came a change in their relations and as both accused and Joyce testified, nothing thereafter came between them to disturb the tranquility of tMir matrimonial life. But as regards accused's relations with the deceased we have no material on record to show what these were like until perhaps a weak or so before Victoria's killing, that is, if one believes the evidence of Mnyanya Nwaipopo (PW 2) and Gideon Mwakatuma (PW 6) which I unlestatingly do. I believe both these witnesses were trying to the best of their abilities to tell the court the truth of what happened between accused and deceased four or so days before the killing of the latter. Gideon Nwakatuma a ten cell leader of accused told the court how a few days before the killing of the deceased, one Mnyanya Nwaipopo, the deceases brother went to him to complain against the accused with regard to certain rumours concerning his wife Victoria and the rumour had it that the accused was saying his wife, Victoria, had been unfaithful to him and had contracted some kind of a veneral di- sease. Accused and deceased were both present when Gideon Mwakatuma called a meeting to investigate into the source and the truth ortherwise of these malicious rumours. It appears at the meeting accused readily acknowledged the fact that he was the source of the rumour against his wife The accused is also said to have admitted that he had no proof that his wife was being unfaithful to him or that sahd contracted änynveneral disease. Whatever weight one chooses to place on this incident which occured four or so days before the killing of the deceased, this incident at least throws some light into accused's disposition towards his second wife a few days before her killing, In this court accused /31 unashamedly asserted he was very mucJ.in love with his second wife right - up to the time of her death. I am unable to agree that this claim was sincerely made for if indeed he was in love with his second wife as much as he claims doesn't his conduct in connection with the rumour incident regate there being any affectionate feelings towards his spouse 7 In my opinion, this incident more than anything else unmacks the accused as an unreasonably suspicious and extremely jealous man. And although at the aforesaid meeting, when lassured that his wife had never been unfaithful to him, he seeâed to Nnyanya and Gideon so quick and willing to bury the hatchedi and let bygones be, this was only a subterfuge, as clearly is to be seen in the next succeeding analysis of the evidence for the prosecution. We now turn to the evidence of JOYCE IPOPO (PW 12)0' I found Joyce a very impressive and intelligent witness. She gave her evidence in a frank, clear and logical manner and I had no doubt as to moral conviction and willingness to tell the court the truth of what actually happened on the night when the deceased died. And after observing her demeanour and judging her veracity, I am perfectly satisfied that what she told the court was nothing but the truth, Accordingly I.- can have no reason to doubt her sincerely when she said her motivation in coming forward to give evidence in this case was to tell the truth. She expressed her feelings about the matter even better, if more fervently, in an answer to a question put to' her in cross-examination. Her answer was: "Jhat I have told the court is the absolute truth and when I die I shall testify as to this before the Almighty God." Be that as it may, in all the circumstances of the present case I feel perfectly satisfied that the account given by Joyce regarding the events which led to deceased's death is more plausible than that given by the accused or any other witness. I therefore have no hestation in accepting it in toto and acting on it. Joyce told the court how in the eveining of 7th July, 1972 she returned home from drawing water at the river to find the accused quarrelling with the deceased.. It appeared the cause of the quarrel was partly the fact that Victoria had asked Joyce to byl., her some soap on her way from drawing the water a thing her husband did not want Abs teems.',fbecause he did not want his senior wife used as an erand girl by his very young second wife. Why this perfectly normal thing between wives should have caused so much lye with the accused is hard for me to comprehend0 The quarr1 soon spread to involve Joyce and it was not long after that two women, with all their pots broken by the accused were chased away from the matrimonial home. As it was by then night Victoria and Joyce decided to go and spend the night at the house of their mother-in-law, about ½ mile away. But before proceeding there they did, as it is cotomary in quarrels between spouses, go to a ten cell leader, one Twamajolo Mwangone (Pw4) and reported about the quarrel with their husband to him. As to what action, if any, Twamajolo did or promised to take on the report, .1 found Twamajolo's version quite unr- eliable. He was hesitant and probably could not remember clearly diat action if any he took or promised to take. On the other hand aoyce's account on this matter was given in a crisp and straightforward manner. Though as I believe, Twamajolo is essentially a truthfull witness I have no doubt that he is genuinely mistaken when he says that an recei- ving the report as aforesaid he told the two women to return early the following morning when he would deal with their complaint. On this point I prefer the account given by Joyce which is that on receiving their complaint Twamajolo asked them to see him on Sunday, a day when the accused did not go to work - when he would be able to deal with and look into there complaint;aej-ainst the accused person. - ' Having so reported the matter to Twamajolo Joyce and Victoria left for their mother-in-law's house where they duly spent the night. Joyce then went on to testify as to what happened on Sanday 8th July, 1972. Joyce's. evidence on this phase of the case is of tremendous importance for the determination of this case that I propose to set it out in full here below.. It runs thus: "On Saturday, 8th July, 1972 the accused followed us at his mother's house and was trying to persuade us not to take the matter.- of our quarrel the previous night before the ten cell leader.. I told . . . ... '32 him that I was willing to drop the matter if my co-wifei the deceased, was also willing to drop the matter. The accused spoke to the deceased about dropping the matter but the deceased refued saying "Nitapikia nini? What shall I use for cooking my food? (clearly a reference to the pots the accused had broken). Afterwards the accused left for our home leavin g us at the house of his mother. At about 6.36 p.m. our mother-in-law advised us to go back to our house and collect our blankets and sheets fo r covering ourselves during the night. We went to the house and there found our husband sweeping away pieces of the posts he had broken the previous night. I remained outside while my co-wife entared the house. The deceased came out with her blanket and as soon as the accused saw her with the blanket he began abusing her "Kwa nini unaringa na blanketi yako kuitoa ndani. Na mimi umenikuta nina blaketi na mke wangu, wa hukunikuta vivi hivi. Wewe mtoto unanichokoza sana. Xwanza nilikuküta sio bikira, ulikuwa umeingiliwa na wanaume wengine." On hearing this angry burst by the accused I advised the deceased to return the blanket into the house which deceased did. I then went into the house and collected a bedsheet which I hid in a piece of cloth so that the accused could not see it. We then left but when we were about 50 paces from the house we saw the accused running after us. We stopped and when accused got where we were he said " We Joyce nitakuua usiniingilie na wewe". (It will be noted that when he uttered this threat accused was brandishin g the knife he has admitted using in attacking the deceased). When I heard this threat I threw down the shuka (bedsheet) which the accused picked up and began walking back to his house. We then continued with our journey back to our mother-in-law's house but when we were about 34 paces from our mother-in-law's house I saw the accused rush at us from some place in the banana plantathtion which is on either side of the footpath and seize me by my hands. The accused told me "To-day I will kill one of you.t' While I was struggling with the accused I believe the deceased had run away. I did not know where she had run to. My struggle with the accused ceased when I managed to free myself and escape0 While runing away I was shouting to the accused "Kwa nini unatungojea njiani, tumekukosea nini?" The direction I took was northwards but after runn- ing a while I turned back and began walking to our mother-in-law's house Whild walking back I was calling for the deceased's name but I got no response. (Joyce of course did not know then that Victoria had at that time been stabbed and was in Twamajolo's house). Near the house of our mother-in-law one old man warned me against going to my mother-in-law's house as he had seen the accused with a torch looking for me. I took refuge in this old man's house and shortly after I was informed that Victoria had been seriously assaulted. People came to collect me from the old man's house and accompanied by them I went to Twamajolo's house where my co-wife was lying down injured. The deceased said "Nimekuf a' she was bleeding profusely". Joyce was cross-examined at some lengtb by defence counsel but she stood unshaken in her - testimony. He answers in cross-examination as regards the events of the 8th are of some interest and I think it is appropriate that I set them out in full: "When we went to the house on 8th July 1972 my husband spoke to my co-wife. At the time we left it was already dark. The place where I threw down the shuka and the ac- cused collected it is before you get to the road. There are two possible footpaths leading to our mother-inlaw house. Both footpaths pass through banana plantantions. When th cgusdnpjdedfuptthhshuka he said tt Joyce usiniingilie nitakuua". When walking along the footpath Victoria was ahead of me and I was following two paces behind her. When our husband suddenly waylaid us he was not coming from the direction of his mother's house. It is not possible that when we saw the accused coming out of the banana plantation he had come from his mother's house. When my husband cought my hands I recognized him as my husband. Victoria was just ahead, When I freed myself from my husbands clutches I ran in the direction of Malewale along the motor road. I do not know which way Victoria went, I do not know why my husband waylaid us. While we were trve11i9 to our mother in-law's ObOOc.oeOo// - * •.,..,,,,.../'33 house Victoria did not go off the footpath - she was just ahead of me. If she had left the footpath I would 'definitely have seen her. Victoria never complained to me on anything regarding our husband." And in answer to a question put by second assessor, Joyce said the following: My husband drinks pombe. When he drinks pombe he is very peaceful and goes to bed. The accused was not drunk on 8th July, 1972. We were together from 2.00 p.m. to 5,00 p.m. The accused did not smell of any liquor." To complete the material evidence adduced on behalf of the prosecution suffice here oi-ily to refer to the evidence of Twamajolo Mwarigarno (PW4). His account of how Victoria got to his house is to be found in this extract of his evidence before the court; "About 7.30 p.m., the same day (i.e. the 8th July) the deceased came running into my house. She fell on the entrance of my house. I assisted her into the house. The deceased was in great pain. She had been injured on the back and the wound was bleeding profusely. When I spoke to the deceased, she informed me that she had been stabbed with a knife. She said the accused had followed them from their matrimonial home where they had gone to collect their beddings and when they got near the house of their mother—in—law he had stabbed her. The house of the accused's mother is about % mie away from my house." Deceased's account of how she got stabbed would, in my opinion, appear fully to confirm the truth of Joyce's own account. Furthe'rnore, it would also appear from Victoria's own words that she was stabbed not far from the spot where according to Joyce the accused first fell upon them. The spot is near the house of the accused's mother Joyce put the distance to the house to be about 34 paces, while the Police later found blood stains within 38 paces of the house. This then is the case for the prosecition and now for the defence. The accused's defence is in form of two identically worde d statements - one before the Justice of the Peace on 11th July, 1972 — that is, three days after the commission of the offence and the other a statement made on oath before this court. These statements are in every material particular identical adtthereor sficeronly to describe briefly what account comes out of them. The gist of accused's defence is that nothing described by Joyce rela.ing to the events of 7th July 1972 ever took place which is, to say the least, a near perfect piece of invention. His account of the 8th is shortly this. At about 7.00 p.m. his two wives left the house saying they were going to get some "mboga" relish, from their mother—in—law. Accused waited for them until about 9.00 p.m. and when they did not appear, he decided to follow them. He got to his mother's house but on inquiring for them there he was told that they had not called. Accused then decided to go back to his house. He had hardly walked away 38 paces from his house when beside the footpath in the plantation nearby he heard voices, one of a woman which he identified as that of Victoria and the other of a man whom he could not place. He then sta1ed across to where the voic es were coming and in getting there he got his knife wanting to strike the man who was then on top of his wife but the man got away and he struck his wife the dëcesed instead. He did not know on which part of the body he struck her and as she ran away from the scene he had no time to check up about it. He then decided to proceed to his house with the view to getting a torch and cohiing back to investigate.. Accused it would appear was apprehended by An'angisye as he was going back to the scene to investigate presumably the whereabouts of Joyce. I find accused's account of the events of the 8th July completely unworthy of belief. If it were true that he found his wife.committing adultery within only 38 paces of his mother's house, why, one may ask, did he not give this as the reason for stabbing her on the night of 8th July when Twamajolo, Anangisye and every villager of Bulyambwa was /34 passing him to explain the reason for stabbing his wife. Wouldn't that oo... .Jo 0 0 0a 0 a i // 3L1r be the natural and reasonable thing to do - tell everybody, his trusted neighbours, that the reason that had made him stab his wife was because he found her committing adultery with an unknown man. But the accused never did any such thing. When his neighbours asked him why he had done such a horrid thing all he could say was: " Shetani amenikuta," an expression he elaborately explained in court in these words: "Niliwaambia Shetani amenikuta kwa sababu sikutegemea kuwa nitampiga kisu mke wangu. Sikuwaambia kitu kingine." Well, if it were true that he had found his wife committing adultery, why didn't he tell them that? In answer to a question put by second assessor, accused explained further what he meant by the expression "Shetani amenikuta". "When I was talking to my mother I was doing so im my ordinary voice. When I say "Shetani" I mean bahati mbaya" - "Ninaposema shetani namaanisha bahati mbaya kwa sababu sikutegemea kuwa nitarnpiga kisu mke wangu." That may well be but it sounds so hollow and strange for him to say now that what in fact made him stab his wife to death was because he found her in an act of adultery- a thing he never hinted or even alluded to in passing at the time when he could have had the whole of Bulyambwa village to listen and sympathi ze. I cannot for my part, think much of such a belated story, which, as it seems abundantly clear to me,. is a fabrication and a pure figment of accused's own imagination. Admittedly the mother of the accused attempted to bolster up accused's story by giving support to some of the highlights in it but I think that was to be expected. A mother has p if she must, as I think this one had to, lie for her son s if that could save him from the consequences of his crime. When I saw her in the witness box, I could not help sympathising with her and I think the prosecution were far too optmistic to expect her to testify against her own son. As it turned out, her every word was a damnation of the case the prosecution were putting up., against her son. She was however such a naive and transparent liar that no one who saw her giving evidence, could, even for a moment, be deceived. For these reasons I am unable to accept any piece of her testimony and I accordingly reject it. Accepting the evidence adduced by the prosecution in this case, as I do, as the only true account of the events leading to and resulting into the killing of the deceased and findings I have done,., that the defence put up by the accused is a pure invention and a pal- pable lie, I do not think the conclusion in the case can be in any doubt. It seems clear that this was a case of a calculated and prome- ditated killing of a completely innocent and hardly tnowledgeable young girl. It is not for me to speculate why he had to kill the very woman he has been vigorously protesting of loving intimately but the cause may well be, as suggested by learned State Attorney, attributed to unfounded suspicious and jealous of his pretty young wife. Whatever the reason for killing her, there can be no doubt in my mind that he had no justification in doing that 0 Furthermore, on the evidence as I apprehend it, I cannot see any defence- even a semblance of a defence- to mitigate the gravity of the offence. All that accused has done was to make an attempt, a futile one at that- J3o put up a fancy defence of provocation on account of adultery which, as I have been at pains to show, is a pure concoction and a figment of ?tissimagination. In my opinion, no adultery as he speaks of took place or could ever take place in the circumstances of the present case. Further, this is not a case where drunkerness could be raised as a defence. There is not a scintilla of - evidence in support of it. Accordingly, in the circumstances, the only .-. question that this court has to deal with isa.regards the intention with which the accused killed the deceased. I do not think in the circumstances of this there can be any dispute as to the accused's intention. In summing uo the case to the assessors I dealt with the question of intention, bfollows:- "On the issue of intention, lady and gentlement assessors, I do not think there can be any doubt on the evidence before us, that in assaulting the deceased with a knife /35 in an area of the bod 7 such as the chest, a most vulnerable S •• /.35 part of human anatomy - the accused must have ititended to kill her or cause her serious bodily injury. If that be your opinion, then you will have to find him guilty of murder as chargeth If you think, on the other hand, that his intention was not to kill her or cause her serious bodily injury, you should make your finding accordingly. In the event the accused would be guilty of manslaughter only and not of murder," All the assessors found that the accused in this casw was guilty of mur- der as charged, a view in which I most respectfully concur. There can be no doubt to my mind that when accused set out that night of the 8th day of July 1972, to ambush his wives, his intention was not to scare their wits out.but rather to kill or do them serious injury if he could This intention is made the more obvious by his threats made immediately prior to the stabbing and by the use of a lethal weapon, the knife, on a particularly vulnerable part of the human body - the chest. Therefore, like all the four assessors, I find that the prosecution have proved their case beyond all reasonable doubt and I so hold. Accordingly I find the accused guilty of murder as charged contrary to section 196 of the Penal Code and I convict him accordingly. J.M.M. NWAKASENDO JUDGE 19/12/73 Allocutus: I would like to.ask the court when it conside.'s the punish- • ment in this case that it should be lenient to me because I am really • sorry for what I did. I an the deceased mere/ misunderstandin9. We •. lived in peace but due to bad luck and I am sorry about the killing of deceased. I have three children who depend on me together with r parents who are old and are dependant on me. I would request the court to take all these factors into consideration. That is all. Sentence. I have heard all that you have had to say in your own behalf and I have no doubt that your representations shall be brought to the attention of the appropriate authorities in due course. But at this stage this court has to pass the sentence prescribed by law— which is that you shall suffer death by hanging and it is so directed0 J.M.M. MWAKASENDO JUDGE 19/12/73 Right of Appeal explained - Assessors thanked and discharged.. J.M.M. MWAKASENDO JUDGE 19/12/73 /36