19740612 TZHC Singida

S••'• IN THE HIGH COURT OF TANZANIA ATSINGIDA OREGINAL JURISDICTION 0 (DODOMA REGISTRY) CIMINAL SESSIONS CASE N011/73 THE REPUBLIC b VERSUS 1 !'IPINGA.S/O MWENDO' - 'Charge: Nurde- 96 of the Penal COde. JUDGMENT MNZAVASJ. The accused, MPINGA S/O MWENDO $tands charged. with murder 7s 196 of the Penal Code0 • It is the Repubiic'scase thatthe accused on or about the 10th day of December 1972 at Kihisuga v.ilage, N8uguti division, Within the district of Iramba,.in Singida region; murdered one s MSUA D/0 MWENDO his wife. The accused pleaded not guilty to the charge. That a woman by the name of Msua d/o flwendo has died,, is evident from the doctor (PW1) who examined the body and Thrahim (PW6, son of the deceased, who identified the body to the do±or as that of Msua d/o Mwendo, his mother. In this case the follouing facts are not seriously in dispute: On the 10th day of December 197;: 1 at about 4 •pm, the accused was in a happy mood and decided to take his three wies to a pombe shop where they had a drink of millet pombe. The deceased was among the three wives. They drank up to abcut sun—set (according to the evidence it was getting dark) when they decided to , return home — The accused being in front and his wives followingimthediately behind him. As they were bn their way home the three ladies had to a1end the call of nature and as a result the accused left them far behind and arrived home first. When the ladies ev€ntually arrived home they found their husband, the accused, sitttng at: the verandah of his house. f No sooner had they arrived the accused asked them: "Why have you come late"? And that before any of them. replied, the accused picked a stick on the ground and assaulted the deceased (who was apparently nearer him than the other two wives) and fell her down. In this case the issues to be determined arè— a: - Did the accused unlawfully a3sau1t the deceased on the material evCning? .) If the answer to the above i in the affirmative the next ogthS1-questiorlfltQ be: red is:- Was the unlawful assault the cause of death of the deceased?. If the answer to this question is agaixr in the affirmatiVe • the next and last question to he answered before the accused is found guilty of the serious offence of murder (ili)Didthe accused if1ict the u1awfu1 blows with malice • aforethought? • To prove that the accused assaulted the decea3ed on the materia]. night • '.....ó/2 - 2 - the Republic brought three witnesses. One of the withesses is Kitundu slo Sango (PW2). In his examination in chief this witness told the court that on the material night he was sleeping in his housewhen accused's son woke him up and told him that some•thihg "dangerous" had happened in their house0 According to his evidence he got up and went to house where he found a dead body lying outside accused's house. When'his statement to the police was read to him he changed. his story and said that he, with own eyes, saw the accused assaulting the deceased on the material night. When he was cross-examined by the defence he again changed his story - This time he said that he was called by accused's son at about, 1 a.m. and proceeded to accused's house where he found the deceased lying on the ground dea,. On cross-examination by the court. the witness said that he saw the accused assaulting the deceased as he was standing outside his house. He said he asked the accused why he was beating his wife and that the accused threatened to kill him as well 0 When asked by the court why he was so contradictory in his testimony he said that he Yias confused as it was his first time to stand in court. From my examination of the wjthess demeanour in court and the manner he conducted himself I was left in no doubt at all that this witness was either deliberately telling lies to the court or he did not.know what he was talking about. His testimony was hopelessly discreditted by the learned defence counsel and I attach no importance whatsoever in his evidence. Two other witnesses were called and gave evidence as to what they saw on the material night. d/o Shukia (PW3), wife of the accused was explained • that she was not a compellabe witness. She however elected to give evidence. She told the court that soon after they had arrived to their • house their husband asked them why they were late and that before they arawered the accused assaulted the deceased with a, stick and fell her on the ground. It was her testimony that as the deceased was lying on the ground the accused assaulted her again with the same stick, and that soon after the deceased died.. According to her evidence the accused stopped them from raising an alarm and threatened to kill them if they did 0 When cross-examined by the defence she replied that the accused assaulted the deceased with great force. When she was re- examined she gaii that they drank shs. 4/ worth f pombe and that they were not drunk 0 bn being cross-examined by the court the witness said that Kitundu Shango (PW2) was not present when the accused was assaulting the deceased. Another wife of the accused, Kilima d/o Yindi also elected to give evidence. Like her co-wife (PW3) She told the court that she saw the accused assaulting the deceased soon after they had returned home frcm,a pombe shop. She said that she could not tell how big the stick the accused used in assaulting the deceased as it was a dark night. The doctor (PW1) gave evidene to the effect that on the 12th of December 1972 (2 days after the death of the deceased), he examined deceased's body and came to the opinion that the deceased died of shock and aspiration of Vomitus into her lungs. According to his evidence he observed a bruise on deceased's left side of the face and a lacerated wound on her left shin. He observed no other of violence on the deceased's body. It was also his evidence that th"e deceased had foul smelling material oozing from her nostrils and mouth and that this made him come to the conclusion that the deceased must have vomitted before she died. On being questioned by the learned state attorney as to what may have happened just before the deceased died the doctor said: "The probability is that the deceased may have been drinking and she may have fallen down, and as ehe may have been in a drunken state she may have vomitted and part of the vomitus might have gone thro-. ugh the wincpipe. The bruised on her face could have been as a result of fall.....0.,,, 1 cannot say with certainty what may havecaused her • ø•0• falling down. The bruises on her face could not have caused her death- Nor could the lacerated wound on the shin 0 " On being cross—examIned by the learned defence counsel the doctor said: "Even the combination of the two wounds could not have caused her death. The bruise and the lacerated wound could not have caused shock. The aspiration could have been the cause of shock. I did not see any signs suggestive of the deceased having been assaulted with a stick," On re—examination the doctor said: "A blunt stick if used would have left wheals on the body. for • a wheal to appear it must be a severe blow." When cross—examined by the court the doctor sJ.d inter alia: it As the two wounds were on the same side of the body I come to the conclUsioh that she may have received the injuries as a result of a fall! The.shock followed aspiration of vomitu. I cannot completely beating with a. blunt inatrumt espially about the injury on her shin.. These injuries could not have caused her deathe" After the accused was explained his rights in defence he elected to offer no defence. After my summing up to the gentlemen assessors the first assessor was of the view that asthere were no signs on the deceased's body to suggest that aácüsed used excessive force in assaulting the deceased, he concluded that the beating of the deceased by the accused could not have caused er death.:. He therefore found the accused guilty of common assault and not'murder as charged. The second assessor was of the opinion that if the accused had assaulted the deceased with as much force as demonstrated by Jima (PW3) and Kilima Ylndi (PW4) there would be found marks of violence on the deceased's body. He thought that Jima and Yindi were not truthful witnesses. He therefore found the accused not guilty of any offence. Jima and Yindi are simple and ordinary peasants in the village. They said of the accused that he has always been a loving husband and that he always shared his love equally to them; although at times he used to be fierce when he had taken a drink. Their demeanour and conduct in court left me with the impression that their testimony was nothing but a true account of what happened on the material night. Accepting, as I do, their testimony that,the accused assaulted the deceased on the material night I am convinced on the totality of the evidence that these assaults were unlawful. As to the question whether the unlawful assaults were the cause of the deceased's death it is f on the evidence of the doctor, impossible to say with any amount of certainty that the blows were the cause of deceased's death. The doctor told the court that in his opinion the nature of the injuries he observed on the deceased's body and their location and the oozing matter from deceased's nostrils and mouth, suggested that the deceased had fallen down as a result of her drunkness. As to the cause of death it was his opinion that the deceased must have vomitted and that some of the vomitus must have found their way to the respiratory passages intb her lungs thereby causing shock and death 3 The doctor added that he could not completely exclude the possibility of the injuries he found on the deceased to have been caused by a beating but added that the injuries could not have caused deceased's death. This being the position it is impossible to say with that certainty required in a criminal trial that the beating of the deceased by the accused was the cause of death of the deceased 0 Even. if for the sake of argument it is accepted tbat the beaUng of the deceased by the accused was the cause of her death there is the difficult question of malice aforethought to be decided, In the case of_RA vs TTJBERE SICHEN (1945) EOA O C.A. 63 the Court of Aooeal had this to say: (2) "In arriving at a cdnclusion as to whether malice .. . . 0 C • =4 - aforethought has been established the court must consider the weapon. used,the manner in which it is used and the part of the body injured." In the present case the accused used a stick in assaulting the deceased0 Unfortunately the stick could not be produced as exhibit - But we have the evidence of the court clerk who received it. Ie said /that it was as thick as the thickness of his two thumbs combined0 Jima (PW2) estimated the thickness of the stick as about two inches0 This shows that the stick used was only a small one. As to the manner in which it was used we have the evidence of the doctor'that if severe blows were inflicted on the deceased with a stick he would have seen wheal- marks on deceased's body0 He did not see any0 As to the kart of the body injured even if we accept that it is the accused'who inflicted the bruise and the lacerated wound found on the deceased's body, the zhizk and face cannot by any stretch of argument be said to be vulnerable parts.of the body. If the accused had intended to kill his wife or cause her grievous harm he would have directed the blows on head, a more vulnerable part of her body. Indeed the doctor told the court that none of the two injuries nor the combination of them cOul have caused eceasedts death. This being the evidence I tend to agree with the first assessor that all that the prosecution has managed to prove in this case is that the.accused unlawfully assaulted his wife, the deceasedon the material night. I accordingly find the accused not guilty of murder but guilty of assault causing actual bodily harm c/s 241 of the Penal Code0 He is so convicted. N. MNZAVAS Jue- Prosecution - On 2/5152 the accused was convicted of assault causing actual bodily harm c/s 241 in Cr. Case No. 204/1952 of the District Court of Singida and was sentenced to 2months imprisonment. Accused— I have never been. imprioned. All I can remember is that I was,many years ago,fined shs. 1001= or 2 months iaprisonment in default for assauiting a personI paid the fine. In Mitiaation Mr0 Mbezi, drunkene $ S. My lord this is an assault committed in a state of The accused did not use much force in beating his wife, The previos similar conviction was 22 'ears ago - This shows that the accused had all these years reformed. The accused is an elderly man of 70 years old el He has already been in remand for the past 19 months. In view of this I pray for leniency for the accused. Accused - I have nothing to add. Sentence - Assault causing actual bodily harm is a five year misdemeanour o t Taking into account the mitigating factors; I feel that a sentence of 3 years imprisonment would meet the Justice of the case. The accused is so sentenced. R000A. to EQAQ,C O A Q explained. SINGIDA N/ . MNZAVNS\ 12/6/74 . JUDC Lushagara for the Republic.. Mr. Iezi for the accused0 f