19731208 TZHC Mbeya

26, IN THE HIGH COURT OF TANZANIA AT IVflRTYI' I • 4 4 rrn w11 INAL APFEiL NO. 2 OF 1974 i.,a. cii. ORIGINAL JtJRISDICTION (DODOMI REGI S TRY) S CRININAL SESSIONS OASE NO. 97 OF 1973 T REPUBLIC VERSUS J U D U- E N E N T The accused in this case, JULIUS NSYUXiE, stai.ds charged on information.f or the murde' of TABIA D/O SINDANO, on .he 5th day of September, 1972, The accused does not dispute the fact that he killed Tabia d/o Sindano but he denies that the offence is murder. The doctor, Dr. Mined Rashid Salun carried out a p stuorten examination of the body at the scene of crime on 7th September, 1972. The pot mortem examination revealed the folJ owing wounds: (1) a wound imraediately.behind the right ear, measuring 2 inches long, 4 inch wide and deep to the bone; (2) a wound across the front of the neck, ticasurinG 2 inches long, -- inch wide and - inch deep; (3) a superficial stab wound above the left hrost which was 1 inch long and - inch wide (4) a siabwound below the left breast,1 inch long,--- inch wide,. im':ing deep into the left lower side of the heart; (5) a stab wourd, 2 inches long, -- inch wide •- running deep into the liver,, pie3ing it; (6) a superficial large stab wound situated below the naval (umbilicus) measuring 5 inches long and 1 inch wide; (7) a cut wound across the left side of the chest measuring 4 incb9s long and 4- inch wide and finally (8) there was a cut wound on ache inner aspect of the right arm which measured 4 inches long, 1 inch wide and 2 inches deep. It was the opinion of the doct3r that death was due to ,oxcessive bleeding and body shock.. It this cae there are no eye witnesses tO-the kil1ng of the deceased and the prosecution rest their case on a julicial statement made on affimation at the tine accused was being committed foi' trial by this court.. That was on 23rd Janury, 1 973, approxivately five months after his arrest and detc-ition for this offence. According to the prosecution, the accu3ed is 'a distant relative of the deceased and because this was 3o , hccused used to address the deceased as "Bibi which mean ctgrand..noth e r and the deceased addressed him as Mjukuu" that is, grand-son... The husband of'tho deceased, Habari Ngawo (P,W,6) described the accused as 1Iju1rnu wangu wa nbali - that is a distant grand-son of nine. It is iuporant that we shou'd bear in nind the nature of relationship that existed betwuen the accused and the deceased if we art to be in a better posi;ion to understand and appreciate the circumstances in 'fnich the killing Of the deceased took place... /4 •, t27 tv - 27. Now to turn to the evidence which the prosecution has adduced in this case. The accused, the deceased, like every witness in the case resided at the material time at Liapogoro village, Chunya. On 5th September, 1972, one Tanilia Nwaulezi (P,W,2) requested many of the villagers of I4apogoro, including the doceased and accused, to go to his home-stead to assit hi-n in harvesting sorghum (ulozi) and carrying the sane from the shanba to his house. After their labours, all those who had participated in this task - about 20 of them, were treated to an lulezil pombe party. Tangulia had brewed two fair sized pots of the local liquor for the purpose and both man and woman who participated in the harvest :artook of the local brew. Although it is not quite clear at what time the drinking started, it would appear on a fair view of the evidence that the drinking started .sometiue after mid-day and ended before sunsent. Tangulia in his evidence was not quite certain as to the time when the accused and deceased left his premises for their respective homes but I think it fair to assume that they like everyoxie else at that pombe party, left for their homes before six. Again, Tangulia could not say with any dgree of certainty whether deceased and accused left together following the same foot-path or if each left separately, whether each took the foot-path leading to his or her respective hone. However, these points of sane doubt appear to be dispefled by what accused has had to say about this part of the case, which is that he and the deceased left separa- tely - the deceased leaving before the accused - but following the sane foot-path. As already stated there was no eye witness to the killing of the deceased and the prosecution not surprisingly has rested its case on the statement made by the accused pursuant to the provisions of Section 219 of the Criminal Procedure Code. The material part of this statement runs:- "I an a peasant farmer, What I want to say in uy defence is that I alone killed the deceased because of my Shs. 10/= I gave to her. I seduced her f or sexual intercourse and she accepted fly request. I then gave her Shs. 101=, After I had given her my money she never cane to have sexual intercourse with me until three weeks elapsed. One day during the fourth week I went to drink ponbe. At about 8.00 p.m. I was return- ing home. When I was so goiiag hone that even- ing I had a knife as my defence weapon. On the way I saw the deceased walking alone. I told her that she should agree to have intercourse with no that evening and if she did not love no she had better return my Shs.. 10/=. When I told her such a thing she started abusing me calling me by my racther's vagina and added that I am impotent. That if I wanted women I should go to sleep with my mother first. She was drunJ. and I was drunk. When she was abusing me I was holding the knife in my hand but, when she was abusing no I forgot that I was holding a knife in ray hand and when I pushed her I used the hand that was holding the knife and stabbed her. I did not intend to kill her and I an now very sorry for what I have done. After I had stabbed her with the knife I started going home. When I got hone I found the second accused who is my elder brother drinking ponhe with our father. I then asked for water from my wife who was then talking with my sister replied that there was no water. I went into the house to see if there was no water. I was satisiod that there was no water in the watorpot. I then wont to bed with the second accused and ny' brother.-jn-law, /28 - • In the next morning I killed two chickons. At about 3 p.m. a report came to .me that a dead body was found lying on the way.,.............. The accused also undo another statement on affimation before this Court,. In this statement the accused has made great play about his drinking on thonatc*.al day and. about the many importunate sexual approaches he had macic to the decoased prior to the 5th September, 1972. The latter statement is remarkable in several respects. If contains what appears on first sight very important and vital details which if accepted would found a defence of drunkenness and provocation in respect of the charge laid so as to reduce the charge from murder to manslaughter. How- ever 9 on consideration of the contents of this statement, I an, like all the three assessors, satisfied that this statement is an improbable account of the events leading to the death of the deceased. And as it seem s to me his account here is a recent invention, hatched up by the accused in an effort to explain away the brutal and vicious assault upon the deceased. If what accused now says in his defence were true, why one nay ask, he did not give this most vital and colourful description of what took place on the material night when he made his first judicial state'.ent on 23rd January, 1973? He did not do so in my view because none of the detailed incidents he now describes ever took place. In all the circumstances of the case I find myself, like all the assessors, unable to accept the statement made by the accused before this court as a satisfactory explanation for the death of the deceased because it is so transparently false as to amount to an insult to the intellect. In the event as all the assessors have done, I reject it and decline to act on it,. I now turn to consider his statement of 23rd January, 1 973, and any possible defences that he raises in it In this statement accused narrates how at 8.00p.m. on the 5th September, 1 972, he left the premises of Tangulia (P13) following a foot- ath going to his house. Somewhere along ngthe foot-path about mile away from Tanguiia 1 s house the accused says he found the deceased and without any preliminaries asked her to have sexual intercourse with him which as it apears in the statement the deceased vehemently refused. Deceased's reaction to his request for sexual intercourse is in ray view the pith and substance of accused's statement for it is here that he gives his reasons for viciously attacking her. The dialogue between accused and deceased on this subject is to be found in this extract of his statement, I quote, "I told her that she should agree to the intercourse with me ±hat evening and if she did not love me she had better return my Shs. 10/=, When I told her such a thing she started abusing no calling me by my mother' s vagina and added that I am impotent. That if I wanted women I should go to sloop with my mother first. She was drunk and I was drunk. When she was abusing me I was holding the knife in my hand but when she was abusing me I forgot that I was holding the knife and stabbed her. I did not intend to kill her and I am now very sorry for what I have done." In considering this alleged dialogue all the three assessors were unanimous in rejecting accused's account of the conver- sation alle g ed to have taken place between him and the deceased, ;/ith good reason, each of the assessors found it most improbable and highly unlikely that the deceased whom the accused respect- fully addressed as ]3ihi" * grand-mother' could have used the words of abuse attributed, to her, however much she may have been annoyed by accused's immoral and indecent sexual approaches. It was the view of all the assessors that the accused made up this incident in order to cover up the abhorrent deed of seducing and on his approaches being adamantly refused, viciously attack- ing the decoased /29 29. The assessors also rejected accused's story in which he says he had previously seduced the deceased and had been accept- ed by her. They found this a highly improbable thing for no self-respecting African Bihi would accoed to such a solicitation from her i'ijukuu'. As accused himself made it clear in his evidence such a thing is unheard of. He called it Mwiko", that is, an African social taboo. The assessors also rojected the tale that accused gave the deceased Shs. 10/= in consideration of her acceptance of his sexual solicitations. With the utmost respect, I find myself in entire agreement with the assessor's views on the matter and like them I reject accused's attempt to besmirch deceased's good name in the maimer he had tried to do in the extract set out above. According to the assessors what most robably happened on that lonely country foot-path on the night of 5th September 1972 is that accused quite unexpectedly came upon the deceased who, as it happened, was also going home - following the same foot-path and for reasons best known to him, he did a most abominable thing in that he dared break a social taboo by seducing his 'Bibi. This incident must have come as a complete shock to the deceased who naturally, as one would expect her to do in the circumstances reacted to this insult in the strongest terms possible. We can at this hour only surmise the maimer of speech in which she couched her rebuke to the accused for his indecent eexula approach. Whatever is the nature of her rebuke, it seems to me highly unlikely that she would have used the language attributed to her by the accused. What happened threafter can I think best be inferred from the dood itself and the surrounding circumstances.' Accused must have panicked for he, being familiar with his community's taboos on this particular subject, know, as I am sure, he must have known, that what he had done was un utterly stupid and abhorrent thing to dO to ones 'Bibi and his natural reaction to this would have boon, as I think it was, to get rid of her in order to prevent any likelihood of his attempt but not the dead, being exposed to the entire public of Piapogoro village. The vicious nature, of the wounds found on the deceased's body would tend to support this view as by the location and nature of the wounds it seems abundantly clear to me that whoever inflicted then was all out to make sure that the victim had no likely chance of survival. Accused's conduct immediately following the killing' is one of complete and callous disogard f or the life of the woman. He left the scene and walked nonchalantly home where the first thing he did was to look for water, most probably aimed at cleansing himself of the innocent blood of the deceased. That is not all, as one assessor observed, even the following day the most paramount concern of the accused was not about the fate of the deceased whom he had left in a pool of blood by the wayside but rather how best he could evade detection and exposure. It is I think in this same mental attitude that accused set out to slaughter the chicken the following day as an offering - as appropriately put by one assessor - Tambikoll to the spirit of the dead, f or as anyone familiar with African lone knows, it is the usual practice for a parson who has oplit innocent blood to perform a Tambiko in order to exoicise the spirit of the dead and by so doing ensure that it does net rise and cone back to haunt the lives of the living. Be that as it may, all the assessors after considering the case nest carefully, were of the unanimous opinion that the accused assaulted the deceased without any provocation on her part. With respect, I share the sane view. Even if I and all assessors were mistaken in saying that the alleged abusive words attributed to the deceased were never spoken by her and in fact such was the language of the deceased, I would still remain of the firm view that the words alleged to have been used by the deceased to him are not the icnd of words which could have prove- lced any ordinary person in accused's community having regard to the relationship that existed between the deceased and the accused /30 30. that is the relationship of "ibi" and "Njukuu". WouldnIt a respectable lady, a "bibi' at that, who is faced by an obscene and improper approach from someone she considers her "Iijuknu react by rebuking him with such words as "dont you know I am your "bibi, how can you do such a thing to tie? If you are so desperately in need of a woman why don' t you start with the seduction of your mother? "I cannot for ray part see how any such words would be considered insulting to the importuning seducer. AU that the lady would he doing would be to try to impress upon the erring young man the horrid nature of his suggestion that she, a "Bibi" of the accused, shOuld have sexual intercourse with him.:. To put it another way, what the lady would be saying is that as it is horrid and considered nwiko to seduce ones mother so it is with atteripting to or seducing ones Bibil or grand-riother.t It seems to me, a matter beyond comprehension, that the person so addressed should concider such a rebuke an insult. In any case, I am satisfied on a proper consideration of accused! s statement that the accused at no stage of the alleged dialogue considered the deceased's rebuke as an insult, let alone a gross insult, to him. lb where in that statement is there any word, suggestion or even a hint that anything said or done by the deceased so unnerved him and made his reason prisoner to passion of so ungovernable a nature so as to deprive him of self- control and to induce him to assault the deceased the way he did. The only excuse, a bad one § he gives for this brutal attack on the deceased is to be found in this extract taken from his state- ment - "She was druiik and I was drunk & when she was abusing me I was holding a knife in my hand but when she was abusing me I forgot that I was holding a knife in my hand and when I pushed her I sued the hand that was holding the J.:nife and stabbed her. I did not intend to kill her and I an sorry for what I have done." That as can clearly he noted is not the same thing as saying that he was labouring under any kind of grave provocation. Jhen he stabbed her. All that accused is saying is that he was annoyed by what deceased said as a result of which he pushed her with the hand holding an apparently stretched knife, the presence of which he had completely forgotten. This, in my view, is a typical and classical plea of accident, if oven there was one - a plea no reasonable tribunal in the Present case could entertain having regard to the muLtiplicity and seriousness of the wounds observed by the doctor on carrying out the postmortem. For the reasons fully outlined herein, I have, like all the assessors come to the conclusion that this is not a case where accused can avail himself of the defence of provocation or accident. It now remains to consider whether the accused could avail himself of the defence of drunkenness. C'early on the evidence this is not a case whore the facts could be brought to fit within the anbit of either paragraih (a) or (b) of sub- section (2) of Section 14 of the Penal Coda. There is admittedly credible evidence which this court accepts, indicating that the accused in the company of other villagers had consuned some quantitiec of local liquor sometime before the killing of the deceased but as I directed the assessors, the mere taking of liquor of whatever kind or descrition cannot be a defence to the killing unless the degree of intoxication was such as to make the accused incapable of forming the necessary intent required to constitute the offence of murder. All the assessors who acOepted the evidence of PAIDIJHA (PiJ,3) and apparently acted on it,. were of the opinion that the accused was not drunk when he killed the deceased. Pandisha in his evidence spoke about accused's state of intoxication. In answer to a question by the court he said:- /31 31 ie bogan drinking the poube at 2.00 p.m. The pom'oe was r from "ulezi. The poribo was kali. I was not drunks I did not see the accused leave Tanguliass house for his hone. I observed the accused as being quite normal. He was behaving quite normally. And in reily to a question by the 1st assessor he said: "The accused and the deceased drank pombe but in my opinion they were not drunk. If a person is drunk he would walk unsteadil y and fall down. I did not see the d.coused quarrel with the deceased." Pandisha, who is a ten cell leader, gave his evidence in a forth- right and frank manner and the court has no hesitation, after observing his demeanour and judging his veracity, in accepting his evidence, on this aspect of the case, which I accordingly do and irocoed to act on it. Carefully considering Pandisha's evidence in the light of all the circumstances of the case, one can have no doubt in coming to the conclusion whiôh in ray opinion is the only reason- able conclusion in this case, that the accused was on the material night not drunk and therefore not incapable on account of drink of forning the necessary intent esential to constitute the offence of murder. I an accordingly satisfied that not with- standing the fact that a fair amount of local liquor was Con- suned by the accused prior to the commission of the offence, the accused's nind was not affected to the extent that he was inca- pable of forming an intent to cause the death of the deceased or do her serious bodily injury and I so find. As I have found that the accused in this case cannot avail himself of either drunkonnos or jrovocation as a defence, the only question that remains is as to the intention with which the accused fatally struck the docoased. From accused's own admission, it seems undisputable that a knife raised and wieldod by him was responsible for causing all the serious wounds found by the doctor who carried out the autopsy. \Jhen accused wielded the raised knife in the way he did and proceeded to inflict the aforesaid injuries on the deceased, he must have known that what he was doing could only result into the death of the deceased or cause her serious bodily injury. I therefore find and hold that when accused assaulted TABTh. D/O SINDIA17,0 he intended to kill her or cause her serious bodily injury. Accordingly, I find the accused guilty of murder as charged contrary to section 196 of the Penal Code, a decision in which all three assessors concur and I convict him accordingly. J. M. I.I. Ifl:LI.KASBI'iD0 JTJDG-E 8/12/73 Allocutus: Ny father is very old and he depends on rae. Ny mother also depends on mc for support. My wife also depends on me. I have a son who also depends on me. I have nothing more to say. /32 * 32. • . 4 . • Sentence • I have 1ied all thatyou had to say ancl I have no doubt that the points raised wi!ll be' passed on to the appropfiate ai4horities in due cotirse but at this • stage all this court can do and is by law bound to do is to pass thesentence prescribed by law. Accordingly the sentence of the Court is that you shall suffer death by hanging. '4 4 • J. N. N. MWATASENDO flJDGE 8/12/73 Right of Appeal explained. Assesoors thanked and discharged. .4 41 'I /33