19731217 TZHC Dodoma

/21 r~ IN THE HIGH COURT OF TANZANIA AT IBEYA ORIGINAL JURISDICTION 9' (DOD0MA. REGISTRY) CRININAL SES IONS CASE NO. 74 OF 1973 Ct. THE REPUBLIC VERSUS C ONSTANT Ii\O MRIOPA CHARG-E MtJRD. C/S 196 of the Penal Code. JUDGENENT The accused in this case, CONSTANTINO NOPA, has been charged with the murder of DESIDELIUS FONNA on 1 4th day of January, 1973. The accused has disputed that he is the one who killed the deceased. The question that first arises therefore is who killed the deceased? The prosecution called a number of witnesses, that is Albetina Raphael, Katalina Ndoit, Inyasio Macheleta and Daniel Hateoto establish the fact that the accused in this case is the one who unlawfully killed the deceased and did so with malice aforethought. I saw and observe each of those witnesses give evidence before this court and I can have no doubts whatsoever that each One of then was a witness of truth and on whose evidence this court can rely. Accordingly, I'have not the slightest hesitation in accepting the prosecution evidence and acting on it.. Admittedly there are some slight discrepancies in their accounts as regards the various conversations or dialogues reputed by them to have ten place either between the ,bcusod and the deceased on the one hand, and/or between each of the witnesses and the accused or the deceased. But that, in my judgenent, is nothing strane. Some discrepancies of the nature found in this case is always and reasonably to be expected from witnesses who are attempting honestly to narrate, to the best of their ability, something they have all observed or personally experienced at the sane moment of time. It seems to me unreal and a LLatcor of practical impossibility in a case such as the present to expect each witness for the prosecution to come before the court and to narrate the same story. Be that as it may, I an satisfied in this case that despite the presence of some slight discrepancies in the accounts given by the various witne- sses for the prosecution, these discrepancies in no way detract from the based truthfulness of their accounts. I can therefore see no retsonable ground why I should not accept their evidence and act on it, which I accordingly proceed to do. /22 2la ASSESSORS. OPI1\IIQI'lS Assess Iha e already heard the evidence of both the prosecution and the ac used sides and I have come to the conclusion that the accuse evidence is untrue. I an fully satisfied with the evidence g yen by Albetina who sold beer to the accused and the evidence o Katalina. I also accept the evidence given by Inyasio be ause he sat and drink together with the accused I disagree w th the accused evidence saying that he was stabbed with a kiii e by the deceased and I think he did it himself. There was .0 rasOn for injuring the deceased since he was neither vo nor driinked. After considering this case I have come to th conclusion that the accused is guilty of murder and this is su ported by his statement in which he said I want to finish him completely. In these reasons I think the accued is guilty f murder. 2nd Assess After considering the whole evidence in this case, I agree with the cv: dence given by Albetina when she said that she saw the accused taking a knife and stabbed the deceased. I as well agree with he evidence given by Katalina, Inyasia and Nateo,, because whe; they all said is true. I disagree with the evidence given by th accused saying that he was injured by the deceased. I an sure i: this case the deceased was not under any circumstances angered to he extent whiôh cause him to harm the accused and I an of the view that the accused was not drunk. • In my opinion, th accused had cuased death of the deceased and I find him gu: ity of murder. rd Asses I agre with prosecution evidence as given by A11etina, Inyasio and )aniel Nateo. I further disagree with the evidence given by the accused in view that I believe that he is the one who caused t Le death of the deceased without any ground and that the dec ased did not injur the accused. The accused was not either di. sunk nor angered by the deceased. After S crut mi z ing, the whole evidence I am on opinion that the accused had killed t] .e deceased intentionaly nd consequently I find him guilty o: murder. /22 The case for the prosecution is briefly as follows:- On the day in question, that is, the 14th day of January, 1973, Katalina Ndoti (Pj1.3) brewed some pombeat the house of the deceased's mother, her sister. Sometime that day, most probably in the afternoon, Albetina Raphael (P.,J.2) who is Katalina's grand-daughter, was instructed to take this ponbe to the Maendeleo Porbe Club for sale. Albetina did as instructed. At closing time Albetina took the poube that remained unsold hack to the house of the deceased's mother, apparently with the view to selling it to all corners there. On arrival at the house, she found her grand-mother, Katalina Wdoti, the accused, Inyasio .acheleta (PW4) and the deceased's mother who had then gone to bed. The accused and Inyasio were drinking porabe ordered, as we are told, by the accused. Shortly after Albetina's arrival at the house, the deceased entered the house and without much ado, ordered himself some pombe worth =/50 cts, After consuming this ponbe deceased stood and inquired from Katalina the whereabouts of his mother. On being informed that she was sleeping deceased decided to apeal to the drinkers which he did. What deceased exactly said in his little speech is a matter of some controversy. Albetina told the court that what deceased said was, to quote her, that they should go home so that his mother and other guests of the house could sleep in peace. Inyasio and Katalina on the other hand have given a slightly different version of what was said by the deceased. .Jccording to them what deccasOd said was HNirni nataka kufanya fujo watu wat eke iii mama alale. Fcw- ever, I do not think we need unduly worry over what exact words the deceased used on the iarticular occasion. What is important is to note that whatever were the actual words used they were nothing- as offensive or provocative as accused's reaction to them seems to suggest. As it appears to me, the message the deceased wanted to convey to -those drinking in his mother's house at that hour of ni(:ht cannot be. much in doubt. It was meant to impress upon those drinking that it was rather late and therefore the need for them to finish up drinking their pombe and go home. There was, in ray view, nothing in what deceased said or the message he meant to convey, that could have so unnerved the accused that he could have thought of resorting to the kind, of violence that the witnesses for the prosecution have testifed about. Strangely enough that is what we are told accused in fact did 0 After the deceased had addressed the drinkers as stated above, accused was seen standing up, walk to the door, stop at the entrance and then demand .f or his bowl (baimli) of pombe. Inyasio gave him his bakuli of porniDe but as it appears, this did not satisfy his ego, for no sooner had he received his bakuli of porahe, he put it down, and uttered words TLich were un undisguised threat to who- ever wanted him to leave the house before the hour of his own choosing. The threat was couched in these words Mimi Siogopi kit-u chochote- 'I do not fear anything.? Threatening an inno- cent man in his own mother's house is bad enough but to go further and translate into an actual physical assault is an unpurdonable thing for a visitor to do. But that, it seems, is exactly what accused did in this case. Soon after uttering the threat, accused walked across the room to the place where deceased was standing and seizing him by the waist, began grap- pling with him until he threw him down. He then came on top of him pressing him down. Deceased try as he might could not free himself from accused's tight clutches. It was in the course of this life and death stnggle that the deceased was fatally inju- red. Both Albetina and Inyasio have emphatically stated in evidence that the accused stabbed the deceased with the knife which they had seen him take from his trouser pocket. From their description of the knife, followed by a most satisfactory identification of it in court, there can be no doubt in my mind that the accused stabbed the deceased in the manner described by the prosecution witnesses. According to the evidence of Albetina and Inyasio, the accused stabbed the deceased on the abdomen, chest and left upper a'rn injuries which correspond exactly with theT 0undS -that the doctor found on carrying out the autopsy on the deceaseds body. /23 /23 The injury to the abdomen was the most serious as it completely cut through the abdomen, exposing the intestines to the atmos- phere. The doctor was of the opinion that death was due to acute paralysis of the intestines arising from the injuries inflicted to the abdomen. Perhaps before I end this consideration of the evidence adduced by the state I should deal briefly with accused's sub- sequent conduct which shows a callous and complete disregard fo:. the life of the deceased. After accused had stopped stabbing the deceased, the latter managed to stand up, with his intestines protruding, stagger out and then fall a few paces from the door. No sooner had this happened accused was once again upon him kicking and treading on him. All eforts by Inyasio to remonstra te with him on the danger of killing the deceased if he continued kicking and treading on the deceased got hardly any response from him. And it was only with the appearance of aniel Wateo (PW5) on the scene that the unjustified and brutal assault of the deceased stopped. He is also the man who handed him over to the police and eventually got him arrested for this offence. Accused in his defence has merely denied having anything to do with the assault and hence the killing of the deceased. Briefly he contended that far from being the assaillat of the deceased, he was his victim, for as he claims deceased is the one who assaulted him with a knife on the index of his finger. In support of this intention he produced a P.F.3 medical report. The accused further contended that he was never taken to the Police Station as alleged by Nateo for he went there on his own his object being to report the deceased for assaulting as afore- sid, While I agree that the ?.F.3 form shows that accused was exhibiting a recently inflicted lacerated wound on the index of one of his fingers immediately after his arrest, I am unable to accept his explanation of the origin of this particular wound. He seems to me accused has entirely hir.iself to blame for the infliction of this would on his person, which, as I believe, was self-inflicted and so inflicted in the course of his struggle with the deceased. And suffice only to add that after considoing accused's defence inthis case, which is so transparently false I can find no difficulty in rejecting it in toto, which I accordingly do. For the foregoing reasons, it is my considered opinion in this case, that the prosecution have established beyond any shadow of doubt that the accused was responsible for causing the death of the deceased. Now, it may be noted, accused has not in this case assrted that, he had any right in or justification whatsoever for assaulting the deceased in this iñanner. He has certainly not said he was jrovoked, which plea in any case has no scintilla of evidence in support in the instant case. He was definitely not drunk on the evidence on record and he himself in his defence statement has quite propeily and correctly attempted to put such a plea. is it apears to me, to hold in this case the accused was either provoked or drunk when comitting the present offence would amount to no less than a travestT': of justice. Accordingly I find and hold that when he assaulted the deceased he was neither provoked nor drunk. Having so found, the only issue that re:1ains to be considered is as to the intention, with which the accused committed this offence. In directing the assessors on this matter I said, I quote: "I think there is no doubt on the evidence in this case that whoever used a knife on the deceased's abdomen - a vulnerable part of the body, with force that the doctor assured us must have been considerable - could have had no other intention than that of killing his victim or at leas t of causing him serious bodily injury. J24 /24 If rou accept the evidence of the prosecution. you ma well think that such an intention could be in no douibt from accusedts oni declaration that he should he let alone so that he could finish off the deceased - T'Tgoja nimmalize kalilSa'. If you think his intention in stabbing the deceased was no other than to kill him or cause him serious bodily injury, it will be your duty to find the accused guilty of murder as charged. All the assessors felt so satisfied and found the accused guilty of murder as charged. Mith the utmost respect, I am of the sane opibion. AccIordinly, I an perfectly satisfied in this case that the proecution has proved its case beyond all reasonable doubt and I [therefore find the accused guilty of murder contrary to section 196 of the Penal Code and convict him accordingly. J. IiI. M. IvT\'!AKASE]DO JIJDGE Allocutus: inayo ya kusema. Mini sikui;ifuata mareher:iu nje ama wanavyodai mashahidi wa upande wa mashitaka - 'I have something to say. I did not follow the .eceased outside as alleged by the witnesses or the prosecution. Sentence: C istantino Mkopa you have been convicted of the 'der of Desidelius Fonka and the sentence of the C rt is that you shall suffer death by hanging as ascribed by law and it is so directed. J. M. M. iJIASIiNDO JUDGE 17/12/73. Rights of Apfpeal explained. Assessors d and discharged. J. M. N. IJAKASI;TDO /25 JUDGE 17/12/73