19730910 TZHC Dodoma

'V IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO 4 115/72 • THE REPUBLIC VERSUS MKOTYA MLUKO t . I. .Char Murder c/s 196 bf.the Penal Code. J U D G M E N T • MNZAVAS J. The accused Mkotya Mwaluko stands charged with murder c/s 196 of the Penal Code. It is alleged that the accused on Or' ab the, 1st day of November in 1971 at Lamaiti, in the district and regin o Dodoma murdered one s Machenje s/o Machela. The accused pleaded not guilty to the charge. From the evidence of the doctor (PW9) and that of Jthdrea (PW4) the identifying withess, there can be no doubt that Machenje s/o Machela has died. There can also be no doubt that Macheje died a violent' death. It is the Republic's case that it is t 'ciHi with malice aforethought as6aulted and killed the deceas • From the evidence the following facts are not at all in dispute: The deceased was married to the daughter of the accused by the name of Sona Motya (Pwl). The deceased and his wife Sona lived ... a cat and dog life. . On the material day at about 7 p.m. the deceased returned home from a pornbe party and asked his wife (PW1) whether she had found their one head of cattle which had strayed. His wife told him.that the cow had strayed to her father's herd of cattle. The deceased left to his father—in—law's kraal (the accused's kraal) and he found the cow there. He came back to his house, and picked a stick and started assaulting his wife who was seated outside her house holding her newly born baby..' She raised an alarm and her father, the accused, responded and came to her aid. In her evidence in chief Sona (Pwl) told the court that the accused found her fighting with the deceased and that he inter- vened by holding the deceased and slapping him with the palm:of his hand. She also told the courtthat the accused snatched the stick the deceasad was assaulting her with and assaulted the deceased ith it. The witness further reiaed to the court that as the acused äs assaulting the c1eeasedwher aunt '(Pw3) cathe and intervened by pulling the accused outside the house and that after this the deceased ran from the accused and leaned at the wall of their house. According to her testimony she was soon after sent to the house of their cell—leader (Pw5) who adviced her to spend. the night at. her father's place which she did. She told the court thall3ext morning she returned" to her house and to her greatstonishment she found her husband lying dead in a catt1e—boma,only about eight pace's from where he was assaulted by her father., the, accused. Nzige (Pw2), son of the accused told the court that he -arrived tt the scene after his father had intervened the fight between .,. the deceased and .his wife. According to his evidence he saw the dcêas,d .-. 0 d 0 0 6 0 a a sitting inside his cattle boma0 Mirulya (PW8 T sister of the accused told the cou$ thahe responded to Sona's alarm, She however said that she did not see tle accused fighting with the deceased, Andrea (PW4) also answered Sona's alarm 0 According to' his evidence on arrival at the scene he found the accused in angry mood. He asked him why he was so angry and that the accused replied that he was angry be,cause1he deceased had assaulted his (accused's) daughter who had onli?en ?irth. He told the court that as there was no more querrel he left to his house. Next morning he heard an alarm from the deceased's house and on going there he saw the deceased lying dead in his cattle- bomaa Chasi (PW5), a cell-leader also gave evidence, According to his testimony the fight between the deceased and his wife was reported to him at about fl.pm on the material night by one, Chizenga and the accused, He related to the court that the ac used told him that his son--ifi'-law (deceased) had been very rude to him in that he had drawn a knife and attempted to stab him but that he managed to snatch the lthife from him and threw it away 0 According to his evidence the accused asked him to go and order the deceased tb send his wife to hospital for treatment of her injuries, but that he told him that he could not do so as it was already very late and it had started raining 9 Next morning he visited the deceased's house and found him lying dead in his catt1e-mal. According to his evidence he saw a knife in a sheath hanging from a leather strap arround the deceased's neck0 In his unsworn defence the accused told the court how he answered his daughter's alarm and how he intervened the fight between bis daughter and her husband, the deceased. i-ccording to his defence after he had intervened he left to his house. He told the court that her daughter (wi) was the person who found the deceased Lying dead in his cattle- boma0 The accused related to the court that he saw the deceased 1 s body and that there were signs suggesting that the deceased had vomitted before he died; and that because of this people thought that the deceased may have been poisoned while drinking pombe. According to his defence he was arrested and charged with murder simply because the deceasedrs relatives OP alleged that it was he who had assaulted the deceased. •ft.r my After my summing up to the gentlemen assessors they were both of the opinion that there was no evidence implicating the accused with the' death of the deceased and they accordingly found him not guilty of the pffence charged. In his address to the court the learned state attorney argued that the evidence of Sona (Pwl) and the statement of Nrulya to the police (exhibit G) proved beyond doubt that the accused assaulted the / deceased with a stick. It was further argued that although there was no direct evidence that the accused used a knife in attacking the deceased there was, according to the learned state attorney, sufficient circumstantial evidence that the accused used the deceased's knife in attacking him with it. In support of this argument the court was referred to the evidence of, the cell-leader regarding what the accused had related to him about the knife and the finding of the knife hanging from the deceased's neck. The learned defence counsel on the other hand argued that there was no direct evidence o thow that the accused attacked the de.àsëd with a knife. According to the defene argument the e.ircumstantial evidence was no: such that would entitle the court to come to the conlusion .that the accused attacked the deceased with a knife ori the material night. It was' argued that the Republic had failed to prove a: to who among the people who visited the scene inflicted the wound that killed the deceased. From the evidence of Sona (pWl) and the satement of Nrulya to the police (exhibit G) there can be no doubt at all that accused assaulted the deceased with a stick when he intervened the fight between the deceased and his wife Sona. There is also evidence that Nzige (PW2) a. the .on of the accused told the police in his rtatement that when he uisi:ed the scene he saw the accused wres1ing with the deceased.. As to the question whether the accused used the deceased's knife (exhibit D) in attacking the deceased I with respect agree with the defence argumert that there is no direct evidence in support of the Republic's argument that the knife was used by the accused in attacking the deceased... But with eren greater respect to the '.earned defence counsel, I would say that t::ee was in this case suff: cient circumstantial evidence to entitle .: :ourt to come to the cnclusion that the stab wound :found in the dr....'aseds left axila cou.: not have been caused by a person other than .ccused There is s.J.s ...ufficient circumstantial evidence entitling court tc conclude that S - ho accused used the deceased's knife in inf nq the fatal stab—wound I come to this conclusion by the evidence: First when Sona was cross—examined abcut the knife she replied: "The deceased un:tened his knife from his waist and was holding it when the accused too': it from him".. When cross—examined by the court the same withess said that the deceased unfantened his knife from his. Waist . after he had bee:- assailted by the accused. There is the evidence of the cell—leader According to his e:idence the accused told him that he had snatched a knife from the deceased who wanted to stab him witli it and' thrc'i it away,. This evidence confirms Sona's testimony that the accused the knife from the deceased0 There is also the evidence of Sofia e effect that when she saw the deceased lying in the cattle—kraal and --1 his father, the accused, the accused asked —"Is he or alive?" .iat the accused asked this remarkable question is to my :'iind indicative of what was going on in his mind regarding the deceased's fate.. nd what is :;sore if th cell—leaders evidence that the accused had told him that "atched the knife from the deceased and threw it away how come that the same knife was found next morning hanging from the neck All this evidence taken together and the accusedmost unusual heha7iour that night when he was relating to the cell—leader what had hap'-'ned; leave me in no doubt that it was the accuse4who inflicted the fat-.l wound on the deceased using the deceased's knife.. :t is not irre- iev'nt to mention at this stage that the accused has in his unsworn def.nce not only denied stabbing the deceased but he also denied even assaulting him.. His denial :Ji clearly of no consequence rebutted as f it is by the evidence of his daughter,. Sona, (Pwl) and that of. Mirulya his sister, (PW3).. I find a fact that it is the accused who stabbed the deceased in the axilla with the knife (exhibit D).. This stab—wound was, as :hown by the doctor (Pw9 the cause of the deceased's death. I now the question whether the killing of the deceased by the accused amc':nts to murder. As I have already mentioned there was wrestling be - "een the accused and the deceased. The accused 'shatched a Stick - dceased and starbed heating him. . . At that juncture, according to the. evidence of Sona, the deceased unfastened his knife and he was holding it when the accused snatched it from him 0 Though it is not clear from the evidence what was he deceased's intention when he drew his knife I thinV that it can safe).\' be inferred that he resOrted to his knife in order to attack the accused with it. Instead the accused snatched it from him and stabbed hi.m.. There was in this case the question as to whether the assaulting of the accused's daughter (who had recently given birth) by the deceased p.:e*ed the accused and hence his assaulting and stabbing the deceased 0 I endevoured to put this question to the assessors but they were unfortun- atel" of no much help to the court. But there is some light as to how ñr "c'linary Mgogo father would have reacted if his son—in—law assaulted his daughter who had recently given birth. This light is Prom the evidence of Andrea (Pw4), himself a Mgogo. He replied when cross—examined by the court:- "I would not be hap'y if my son—in—law beats my daughter only two weeks aftei.5 e had delivered a child." / As I have already mentioned fighting between the deceased and 0000000 t - • daughter was commonplace. According to Sona's testimony her father s the accused, af ten intervened fights between her and the deceased. These J frequent beatings of her daughter by the deceased may have reached a climax ''': on the material night when the deceased assaulted the accusedIs daughter who had recently given birth and may therefore have caused the accused to attack the deceased first with the stick and later with a knife which the deceased had apparently drawi in order to attack him. It is on the evidence difficult to say with certainty that the killing of the deceased by the accused was with miice—aforethought. The use of the knife was clearly unjustified but thai: does not by itself amount to killing with malice—aforthought. Ther2 is some doubt to the questicn of malice—aforethought. I resolve the doubt in favour of the accused. I accordingly find him not guilty of murder but guilty of the lesser offence of manslaughter c/s 195 of the Penal Code. N.S. MNZAVAS JUDGE PROSECUTION - The accused is a first offender, IN MITIGATION - I have nothing to say. SENTENCE - I take into account that the açcused's life is without blemish but his first offence is unfortunateLy for him a swrious one. The use of a knife in a fight is always an aggravating factor and cou'ts would be failing in their duty if they did not impose adequate punishiment if only to serve as a deterrent to would be offenders. Taking into account that the accused has been in reman for about 2 years, it is my view that the justice of the case would be met if the accused is sentenced to 7 years imprisonjnen. He is so senteric2d Right of Appeal to E.1.00A. :.plained. / / 4 DODONA N. S. MNZJ4VJ - 10/9/73 I JUDGE - Mr. Mwipopo for the Republic Mr. El—Geith for the Accused. A 1