19740322 TZHC Mbeya

• IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (DODOMA REGISTRY) - CRIMINAL SESSIONS CASE NO.9/74 1. THE REPUBLIC VERSUS JESORON MBEMBELA Charge: Murder ct/s 196 of the Penal Code. T. PG Err MNZAVAS J. The accused Jeoron Mbembelà stands charged with murder c/s 196 of the Penal Code. It is the prosecution dase that the accused on or about the 3rd day of March 1973 murdered one s Bajobege sb Kapange, The accused pleaded not guilty to the charge. From the evidence of Sikalina (Pw2), the identifying witness and that of the doctor (PwlO) there can be no doubt that Bajobege s/c Kapange has died and that he died a violent death. Ten witnesses gave evidence i* support of the prosecution case. Of these witnesses Eran (PW3) and Issack (PW5) are the most important witnesses for the prosecut4on. Eran was once married to the accused and has five children with him. She later divorced the accused and two months after their divorce she started a liaison with the deceased. On 3/3/73 Eran had pombe for sale at her mother's house where she was at the time living. According to her testimony the accused visited the house where he drank pombe from about 12 noon up to sun—set when he left. Eoon after accused's departure the deceased arrived at Eran's house. According to her evidence the deceased told her that he had come to take her to his house as a second wife. Eran collected her clothes, packed them and left with the deceased, She testified that as they were heading to the deceased's house they met the accused who asked them who they were but that they did not reply. Thereupon the accused is said to have retorted: "I snow you are my wife Where are you going? The accused then held Eran by her neck and pushed her back to her mother's place. There she entered the house locked the door and left the accused.outs.ide. According to her evidence sometime later in the night she dicided to go to deceased's house, She got out and found that the accused whom she had left standing outside had left, She testified that as she was going to house she met the accused who was coming from the direction of the decease house towards his (accuseds) house. The accused is said to have again asked her where she was going and on telling him that she was not going anywhere the accused held her by her neck and again pushed her to her mothe plac.. The witness testified that the accused was carryi.ng a bill hook and a rain—coat. It was her evidence that she identified the rain—coat as the same one the deceased was wearing when they left him and that the bill—hook was also the one the deceased was carrying when they left himl She told the court that theasked the accused about the rain—coat and that he replied that the rain—coat belonged to him. The witness went home and slept. According to her testimony next morning she decided to visit d ecease 'dhouse to see if he had arrived safely and that as she was going1ere she met someone who told her that there was a dead body lying on the road side. Hearing, this she returned home. Sikalina (Pw2), deceased's wife related to the court that on the evening of 3/3/73 the deceased left the house and told her that he was going to bring to the house a second wife by the name A - 2 - of Swila (another name of Eran, PW3) She testified that the deceased did not return hOme that night and that next morning she, to her great astonishment, learnt that he had died. She told the court that the dceased left the house armed with a bill—hook and that he was wearing a nylon shirts a black trousers a yellowish rain—coat and shoes4 S he visited the place where the deceased was lying dead and, according to her evidende she found the rain—doat missing as well as the deceased's shirt 0 The deceased was now wearing óhly his long trousers and shoes. It was the prosecution argument that as the accused was seen by Eran coming from the direction of the deceased's house carrying the deceased's bill—hook and rain—coat and the fact that the deceased was next morning found fatally injured there was an irresistable inference that it was the accused who attacked and killed the deceased. It was also argued that there was sufficient evidence of motive implicating the accused with the death of the deceased 0 On this evidence the court was asked to find the accused guilty of murder as charged. There was another version of the prosecution case. Evidence was adduced regarding accused extra—judicial statement to the justice of the Peace —(PW5), The defence argued against admission of the statement - alleging that the statement was not voluntarily made0 It was the defence argument that the accused made the statement after he had been assaulted by the police. After a trial within a trial the court came to the conclusion that on the evidence the extra—judicial statement could not have been other than voluntary. The trial resumed and the accused's extra—judica 1 statement was admitted as exhibit C. In the statement the accused told the justice of the Peace how he found the deceased eloping with his wife Eran how ttey exchanged hot words and how they started fighting. According to his statement the deceased, using his bill—hook injured him on his chest. He also says in his statement that the deceased injured him on his abdomen but that he did not know with what weapon this injury was inflicted. He also mentions that they fought each other with stones and that he hit the daceased with a stone, fell him down s and returned to his house. The accused also says in his statement that on his way home he met Eran and that he also picked accused's clothes which he took and threw into a river. In his unsworn defence the acc used said that he has never % quarreled with anyone since he was born. He said that on the night in question he was in his house sleeping. He said he told the Justice of the Peace lies because they were about to kill him. It was his defence that the police forced him in the presence of the Justice of the Peace to repeat to the Justice of the Peace what he had earlier told the police under duress, After summing up to the gentlemen assessors the first assessor was of the view that the accused deliberately killed the deceased becaise the deceased was about to get married to Eran his (accusedis) divorcee. He found him guilty of murder as charged. The second assessor was of the opinion that there was actuel fight between the accused and the deceased over Eran and that It was during the fight that the accused inflicted mortal blows on the deceased. He was of the view that the accused was only guilty of manslaughter. Arguing about extra—jUdicial statement the learned state attorney submitted that even if the court found that the accused inflicted the fatal blows in self—defence such a defence, it was argued 1 was not available to the accused as he in inflicting the fatal wounds used excessive and unreasonable force, In support of this argument the court was referred to the decision by the Court of Appeal in MARWA 5/0 ROBI VS R (1959) EA 660 Itwas the Republicrs argument that the fact that thedoctor's report showed that the wound that caused deceaseds death penetrated four inches deep proved that the accused 3 used excessive and unreasonable force. I would.first like to deal with accused's extra-judicial statement to the justice of the peace which statement the accused retracted in his defence. As I have already mentioned after the trial within a trial the court was fully cönvinced that the accused gave his statement to the Justice of the Peace voluntarily 0 There is however .a long and unbroken chain of authorities that it is dangerous to act upon a retracted confession unless it is corroborated in material particulars. Is there in the evidence of the prosecution anything to corroborate accused's state-a ment to the justice'of the peace? There is in my view sufficient independent evidence in support of accused's extrajudicial statement.. Firstthere is the risputed evidence that at the time of the commission of the offence Eràn had divorced the accused but Eran's father had not refunded dowry to the accused 0 There is also undisputed evidence that at the material time the deceased was making preparations to marry Eran as a second wife... This evidence corroborates accused's extra-judicial statement in which he says he told the deceased that he eould not marry Eran before he refunded him his dowry. There is evidence of Eran to the effect that she was on the material night with the deceasedT This evidence corroborateG accused's extra-judicial statement in which he says that he saw the deceased eloping with Eran, There is the éridence of the doctor (Pw1O) and that of the justice of the peace that the accused had a recent wound on his abdomen 0 This corroborates accused's statement that the deceased injured him on his abdomen. According to the evidence of Eran she saw the accused carrying deceased's clothes. This evidence corroborates cuse d s extra-judicial statement in which he says that he took deceased's clothes and threw them into a river. As held in the case of R vs OKITUI SIO EDEKE (1941) EACA 40 1 To corroborate a retracted confession all that is required is some evidence aliunde which implicates the accused in some material particular and which tends to show that what is said in the confession is probably true." In the present case I am fully satisfied that accuseds retracted extra-judicial statement is fully corroborated in material particulars andit is therefore safe to act on it. As to the evidence of Eran, I would say that some aspects of her evidence tends to be an exageration of what she actually saw. It is ror example S difficult to believe how she could identify deceased's rain-coat from its yellowish colour from light of lightingl given that it was a dark night this piece of evidence is clearly an exageration. All that can be accepted is that she saw accused carrying clothes an& that she thought that the clothes belonged to the deceased 0 Accused's extra-judicial statement tends to support her evidence that she saw him carrying deceased's clothes. As relations between the accused and his former wife Erari were already strained and as the deceased was about to be Eran's second husband, evidence could very well have been tainted in favour of the deceased to the detriment of the. accused. For this reason I find it necessary to treat her testimony with caution. Accepting as I do that accused's extra-judicial statement is to a great extent a true account of what happened, I am inclined to say that Eran's evidence could not be wholly truthful 0 It would appear from accused's statement that Eran was in the vicinity when the deceased was struggling with the accused but she does not say so in her evidence, On the contrary her testimony gives the impression that the accused followed the deceased for no reason and killed him. As observed by the second, gentleman assessor, and in my view rightly so, Eran was far from being a truthful witness. She appeared to exagerate her testimony to the detriment of the accused. On the contents of the extra-judicial statement as supported by other evidence I am fully convinced that there was a quarrel between the accused and the deceased which: quarrel led to a fight and •o.00,/4 — 4 - the accused inflicting fatal blows on the deceased. In coining to this conclusion I am fully aware of the doctorts evidence that the bill- hook could not have caused the injuries he observed on the deceased because, he said, it was too blunt to have caused such wounds 0 He also said that te bill-hook could not have caused the injury he found on accused's abdomen. He was of the opinion that both wounds could have been caused by a knife, By magailoe an oversight by the investigat.. ing officers the bill-hook was, not sent to the governmeht chemist for examination for blood on it. But, when all is said and done, I. am on the evidence convinced that it' is the accused who inflicted the fatal blows on the deceased. Accused's unsworn defenceihat he did not know the deceased at all is inconsistent with his statement to the justice of the peace in which he mentions deceased's name in full, I now come to the question as to whether the killing amounts,, to murder. It was as I have above-mentioned the Republic's argument that even if the court found that the accused inflicted the fatal wounds in self-defence such a defence could not be available to him because (it was argued), the accusedinflicting the mortal wounds used excessive and tnreasonable foi±ce. The case of MARWA S/O ROBI was quotted as authority 0 With respect to the learned state attorney the facts in the above quotted case can easily be distinguished from the facts in the present case 0 First in that case the accused attacked the deceased with a spear and killed him simply because the later drove the former's cattle claiming that they belonged to him 0 , Secondly it was found as a fact that the deceased did not "at any time use force on the accused although he was carrying a stick. The Court of Appeal held interalia that: (1) "In driving the cattle the deceased was no doubt commiting a trespass, but the means adopted by the appellant to resist the taking of the cattle were utterly out of proportion to the tort which was being committed.!' In the present case the facts show that the deceased was armed with such a lethal weapon as a bill-hook. There is no evidence that the accused was armed with any weapon 0 The evidence as I have mentioned above shows that there was a quarrel which led to a fight between the accused and the deceased, And what is more there is the otor evidence that the accused had a cut wound on his abdomen which wound was said to have been caused by a. sharp instrument such as a knife. On the evidence I have no doubt in my mind that the accused inflicted the fatal wounds in self-defence'e Section 18 of our Penal Code is to the effect that: "Criminal responsibility for the S use of force in the defence of person or property shall be determined according to the principles of English law". AncfIt was said in the case of 1-IAU S-10 AKONAAY (1954) EACA 276 paragraph3 of page 277, it is c. well established proposition in common law that: "If two persons quarrel and afterwards fight, and one of them kills the other — in such case s if there intervened between the quarrel and the fight a sufficient cjg time for passion to subside and reason to interpose, the killing will be murder; but if such time had not intervened — if the parties, in their passion, f'ought immediately, or even if immediately upon the quarrel, they went out and fQtt2t in a field (for this is deemed to be a continued act of passion) the killing in such case would be manslaughter only, whether the party killing struck the first blow or not 0 " ARCH BOLD, 33Ed. p 933. On the evidence there can be no doubt that the deceased and the accused quarreled and immediately fought. In a home decision Mustafa J.' (as he then was) said in' R vs JOHN WIMAANA (1968) HOCO D4, 49: •0.000..0...06When death occurs as a result of a fight 0000.oee•00000060 unless there are very exceptional circumstances, persons who cause death ae guilty of manslaughter not murder. 1' This being the law I am convinced, as the second assessor is that the facts in this case only amount to the offence of manslaughter and not murder 0 I accordingly acquit the accus'ed of the offence of murder ) but on the facts I 'find him guilty of the lesser offence of manslaughter c/s 195 of the Penal Code 0 N S0 MN AVAS ,\JUDGE../5 - --S.. Prosecution - The accused is a first offender. In Mitigation Mr.0 Dhebar May it please your lordship. The accused is 35 years old. He has four children. He has been in remand for one year. In this case the killing aroe because of the fault of his wife. He is a first offender 0 I ask for your leniency when sentenciig him. Accused:— I.:have nothing to say. Sentence: You have been under the mistaken impression that Eran was still your wife because your dowry had not been refunded 0 I also take into account that you have becn in remand for 1 year and that you are a first offender 0 You are sentenced to 5 years imprisonment. R.O.A. to EACA explained 0 N., Wks MBEYA JUDGE N. 22/3/74 . Mwipopo for the Republic Dhebar for the accused. S