19740226 TZHC Dodoma

IN THE HIGH COURT OF T1%NZANIAI/C AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO0 75 OF 1973 THE REPUBLIC versus ARAFA D/O DOTO & ANOTHER Charge: Murder c/s 196 of the Penal Code0 J U D G M E N T MNAVAS J. The two accused persons, Araf a d/o Doto and. Musa 5/0 Oman are jointly charged with murder 0/s 196 of the Penal Code0 It is alleged that the two accuseds on or about the 27th day of December 1972 they jointly murdered one, MWANAIDI D/O SINTO. Both.accused pleaded not guilty to the offence0 On 27/12/72 the two accuseds, one, Ikimbia (pW4) and the deceased Mwanaidi left their village to attend a mourning in another village. The mourning was in respect of Arafa's deceased brother0 Araf a is married to Musa (2nd accused) and in that respect the deceased was Musa's brother—in—law0 According to the evidence of Ik±mbi.a (Pw4) as they were going to the bereaved family Muse remained behind with the deceased and that he (PW4) and his step daughter (1st Accused) proceeded on their way0 The witness told the court that after they had gone for some distance Arafa (1st accused) decided to follow her husband (2nd accused) leaving the witness (PW4) with her (Arafa's) child. According to Ikimbia's testimony after some time Araf a returned and that she was in an angry mood0 Soon after Musa (2nd accused) joined them and they resumed their journey. Ikirnbia further related to the court that on arrival Musa handed to them some native roots and asked them to chew. They complied. On their way they reached a river and Musa is said to have removed his shirt and washed it. They enventually reached their destination (without the deceased) and spent the night there. Next morning the three started their journey home. The witness (Pw4) testified that when they reached the place he and Araf a had left Mwanaidi and Musa, both Araf a and Musa started looking for a knife. They found a knife and that Musa rubbed the blade of the knife on the ground. A day later (29/12/72) Mwanaidi's brother, one Sughu (PW5) asked Araf a and Muse the whereabouts of Mwanaidi. Bothaccuseds replied that they did not know where Mwanaidi was0 Ikimbia (PW4) related to Sughu (PW5) that he (PW4) and Arafa had left Mwanaidi and * Musa behind on the day they were going to tne mourning0 Later Ikimbia led the local cell—leader and other villagers to the place where Musa was left with Mwanaidi. The cell—leader and the other villagers combed ithecarea and found remains of a deadi human body. Also found near the remains of the body were clothes which were amply identified as those of Mwanaidi. A khanqa belonging to Mwanaidi was also found spread on the ground a few paces from where the body was found. Immediately after the discovery of the body Muse (2nd accused) related to the cell—leader (PW6) and the local chairman of TANU (PWB) and other villagers that it was his wife Araf a (1st accused) who had killed the deceased by stabbing her with a knife after she had found I 0 000 00 00 ,,/2 p - ........ him (2nd accused) committing adultery with the dec&ased. According to the evidence of Oman (PW8), Athuman (PW6) and Sughu (PW5) Arafa denied the statement by her husband that it was she who had stabbed and killed the deceased. She, on the contrary told the villagers that it was her husband, Musa, who had killed the deceased. Later the second accused gave a statement to a Justice of the peace (PW3) in which he insisted that it was his wife who had killed the deceased after finding him committing adultery with her e The statement was produced and admitted as exhibit I. After the court had explained to the accuseds their rights they both chose to choose to give their defence on affirmation. In her defence Araf a told the court that she did not know who killed the deceased. She said that she was in Kondoa when she heard that Mwanaidi had been murdered. She denied the allegation by her husband that it was she who had killed Mwanaidi after she had caught her committing adultery with her husband. It was her defence that she for a very long time knew that Mwanaidi was her husband's concubine and that. she was not worried or in any way pertubed by the fact that her husband used to commit adultery with Mwanaidi. It was her argument that even if she had found her husband sleeping with the deceased she ould not have killed the deceased as their illicit association did not in the least worry her.. The second accused kept to his story to the villagers afld his statement to the Justice of the Peace that it was his wife Arafa, who had killed the deceased after she had surpr±ed them in adultery. According to his defence she had removed his trousers and kept it on the side as well as his knife when he was committing adultery with Mwanaidi. She told the court that while he was on top of Mwanaidi his wife Arafa suddenly came and picked the knife and stabbed Mwanaidi in the neck and ran away carrying the knife with her. He testified that Arafa also injured him on the, ehin as she was stabbing the deceased. Musa also told the court that it was Araf a who showed him where she had thrown hhe knife in the bush. After summing up to the gentlemen assessors, the first assessor was of the opinion that it was Arafa (1st accused) who killed the deceased after finding her committing adultery with her husband. He said that Arafa killed the deceased as a result of provocation and accordingly found her guilty of .manslaughter. As to the second accused the first assessor was of the view that he failed to report what his wife had done and found him guilty as an accessory after the fact to murder. The second assessor was of the view that Araf a deliberately killed the deci.ased and that she could not have been provoked on that day as she already knew that her husband used to sleep with Mwanaidi. He therefore found her guilty as charged He, like the first assessor found Musa guilty as an accessory after the fact to Murder. The learned state attorney in his submission argued that Nusats defence that it was Araf a who had killed the deceased should be accepted as truthful as therwas other evidence in support to it. As to the evidence against Musa it was submitted that there was ample evidence that Musa tried to cover and shield his wife's offence and that because of this Musa was guilty as an accessory after the fact to murder. In rebuttal the learned defence counsel for the' 1st accused argued that as Musa was an accomplice his defence that it was Araf a who had killed the deceased should be received with caution and that it should only be acted upon if the court was satisfied that there was sufficient independent evidence corroborating Musa's allegation that it was Arafa who stabbed and killed the deceased. The learned defence counsel for the second accused on the other hand argued that Musa's failure to report to authorities what his wife had done Is because Araf a and her step-father, Ikimbia (PW4) had threatened him that if he divulged what had happened they, (Arafa and Ikimbia) would tell the police that it was he who had killed the decoa..ed. Because of these threats, it was argued, Musa could not properly be •Oe 0 00/3 r wr •* 0 - branded as an accessory after the fact to murder or to any other offence. With respect to the learned Counsel for the first accused, I fully I agree with the Republic's submission and the verdict of both assessors that there is in this case ample evidence that it is Arafa t the first accused, who on the material evening stabbed and killed the deceased4 There is first Nusa's defence before this court and his state- ment to the Justice of the Peace that it was his wife, Araf a, who attacked and killed the deceased by stabbing her with a knife after she had found her committing adultery with him (Musa). In corroboration of Nusa's defence we have the evidence of no lesser a person that Araf a's own step—father Ikimbia, (PW4)0 As I have already mentioned Ikimbia told the court that Araf a left him with her child and followed Musa and Mwanaidi, After sometime Araf a returned and was, according to Ikimbia's testimony, in angry mood. A relevant question at this stage is: What did Arafa see that made her so angry 2 Arafa has not told the court why she so suddenly was in angry mood. Muse has told the court why she became so angered. According to the evidence of Athuman (PW6) Muse related to them and demonstrated how Arafa killed the deceesed. Arafa is said only to have insisted that it was Musa who had killed the deceased. According to detective surgent Elia (PW2) Arafa told him that she on that day found the deceased committing adultery with Nusa. In this court the accused denied seeing Muse committing adultery with the deceased. Three witnesses (PW4, PW6, and PW8) told the court that Araf a told them that it was Musa who had killed the deceased. These witnesses gave their evidence in a straight forward cogent manner and I have not the slightest hesitation in accepting their evidence as truthful. But, having told these witnesses that it was Musa who had killed the deceased; Arafa told the court in her defence that she did not know who killed the deceased. At this juncture I would like to mention that Araf a's defence was most unsatisfactory and unconvincing 0 There is also the evidence of Araf a's step—father (PW4) about the knife, He told the court that both Arafa and Muse started looking for the knife. This evidence tends to support Musa's defence that it is Araf a who showed him where she had thrown the knife. And, what is more there is evidence that Araf a kept quiet all the time and indeed told the villagers that she did not know the whereabout of Mwanaidi - She only alleged that it was Musa who had killed the deceased after Muse had mentioned her as the killer. On the evidence I am fully convinced that it is the first accused, Araf a who stabbed and killed Mwanaidi d/o Sinto after she found her committing adultery with her husband - Musa. As to the question whether the killing amounts to murder I would say that the finding by a man or woman of his wife or husband in the act of adultery with another person has always been accepted as offering grave provocation to the finder. As there can be no doubt that Araf a found Mwanaidi in the act of adultery with her husband the kilLLng which would otherwise have amounted to murder is in this. circumstances only amounting the lesser offence of manslaughter c/s 195 of the Penal Code. As for the second accused I, with respect agree with the learned state attorney as well as the learned counsel for the second accused that in normal circumstances Musa would have been found guilty as an accessory after the fact to the offence of manslaughter u/s 387 of the Penal Code. But, with even greater respect I would like to mention to the learned counsels that Nusa being the husband of Araf a he cannot be an accessory after the fact to his wife's offence of manslaughter simply because he assisted her by failing to report her to authorities. See para two of Section 387 of the Penal Code., This being the law I have no alternative but to find Musa the second accused, not guilty of any offence— And I accordingly acquit him., / N. S' MNZAVl JUDGE - ......... 1 Mr0 Kinabo - No previous conviction In Miqi2ation - May it please your lordship the accused suffered grave provocation which has reduced the offence to manslaughter. She was a victim of circumstances. created by her husband. The accused is a mother of four children 0 Ever since the arrest of the accused these children have been deprived of parental love 0 My lord any further punishment to the accused would be tantamount to punishing the children who would continue to be deprived of parental care. The accused stabbed the deceased only once I am of the opinion that 1 day imprisonment would be sufficient in this case. Accused - I have nothing to add. Sentence— Sentencing in offences of this nature is always, .s - very difficult. As rightly submitted by the learned defence counsel the accused found herself in this predicament because of her husband's unfaithfulness. She was clearly a victim of circumstances. Taking into account the fact that the accused has been in remand for a one year with the serious charge ofmurder hanging on her and taking the whole circumstances of the caI ñ'ully convinced that this is one of those cases calling for more 'compassion than condemnation It is my view that the justice of the case would be served if the accused is absolutely discharged u/s 38 of the Penal Code. She is so discharged. DODOMA N. 9', MNZAVA 26/2/74 JUDGE Kinabo for the Republic. Mangat for 1st accused0 Elmamy for 2nd accused.