19740610 TZHC Singida

IN THE HIGH COURT OF TANZANIA J.T SINGIDA ORIGINAL JURISDICTION (DOD OMf. REG-I ST}2Y) CRIMINAL SESSICNS CASE NO.144/72 16 THE REPUBLIC VERSUS I. MAGALAWA 5/0 LP0NO NCHINJO 2. JOHN NCHNJO Charge: Murder c/s 196 of the Penal Code, JU.D GMEN.T ZAVAS J. The two accused persons, Maga1awa Nchinjo and John chi.jo are jointly charged with murder c/s 196 of the Penal Code. It is the prosecution case that the two accueds on or about the 13th day of Soptenbor 1970 at Kisalusalu village,. Manyoni district in Singida region murdered one, Mlanji 5/0 Mganga. When the charge was road to the accuseds the first accused admitted that he killed the deceased un1awfu1ly,biit not intentionally. The second accused denied killing the deceaed. As the Republic was not prepared to accept a lesser plea in respect either of the accusods the case went on trial. The main and mot important prosecution witness in this case is Maleo d/o Sinka, (Pw2). She related to the court that one day in 1970 she attended a circumcision ceremony at the house of one, Mangwela.' While she was there she met the deceased Mlanji s/o Mganga who, according to her evidence was her pranour.. This witness is apparently married to one, Manyanga, who is a nephew of the accused persons. She also told the court that the two accused persons (who are brothers) were also at the circumcision ceremony. It was her evidence that after some time the deceased decided to leave the place and that she escotted. him. She related to the court that while she was standing with the deceased talking about 100 paces from the place of ceremony the two accusods went to where they were standing and that the first accused (Magalawa) asked the deceasôd"With whose wife are you standing?". And that before the deceased had time to reply Magalawa assaulted him on the head with a stick arid the deceased fell down. She also told the cdurt that when the decased fell down John (second accused) went forward and held decesed's legs. The witness ran to her cell—leader and reported what hd happened. She cane back to where the deceased was assaulted: accompanied by the cell—leadorbut that they neither found the deceased nor the two accused persons, Yohana Chikalasi (PW4) told the court that he was at the material time TANU chairman of Kisalusalu village. He related to tho court how one night Maleo (Pw2) visited his house and reported that Mlanji the deceased had been assaulted by the two accuseds. According to his testimony the lady (PW2) fur—c ther told him that since the assault Mianji wasaissing from the village. According to his evidence after the report he went to accused's home and arrested them. It was his evidence that . . . . . . 1 - 2 - after he had interrogated them they both admitted killing IVil anji and that they led him and other villagers'to a cave in a boabab tree where they sowed anji's body to 'hi. As they were removing the body from the cave John2nd accused took to his heels. Magalawa was later handed to the police. This witness also told the court that on the very day (in the morning) the deceased not his death, Magalawa's wife accompanied by John (2nd accused) went to him and complained that the decoasod had stolen their clothes. Hocontactod the deceased who denied stealing Magalawa's clbthes, He told the court that as there was no evidence against th deceased that he was the thief he did not take any action. Robert (Pw6) a TLMJ Youth Leage member told the court. that one day Magalawa's wife complained to aim that the deceased had stolen her huCband's cattle-syringe and clothes. The witnes$ testified that he, accompanied by the local coil-leader, searched deceased's house but that they did not find the alleged stolen things belonging to Magalawa. Vioet Antony (PwlO), a Justice of the peace related to the court how the two accuseds were brought to him and how he interrogated them before they voluntarily gave their extra- judicial statements to him. After the learned defence counsel havig told the court that he had no objection to reading of the statements to the court, the statements were read and admitted as..exhibis "J" and "K". In his defence given unsworn, the first accused told the court that he fought with the deceased because thedeceased used to make love with his nephew's wife. He also told the' court that on the day of the incident he had attended a circumcision ceremony accompaniod by his nephew's wife (2W2). He said that as they were there the deceased emerged and started talking to Maleo (2W2) and that he heard the deceased telling his paramour (PW2): "They cannot do anything to me. I will also steal their cattle and then marry you". Soon after the deceased left with Maleo. The accused said that he decided to follow tiEm becau- se he was afraid that if his nephew came to the ceremony he would ask about his wife. The accued'said that he overtook thorn as they were spreading a cloth on the ground ready to make lovè He asked the deceased: "Where are you taking my sister-in-law? And S that the deceased retorted: "Do you think this is your wife"? According to his defence the deceased then raised his stick in an attempt to assault him but that he (accused) held the stick and assaulted the deceased on the head with a stick. He told the court that his brother (2nd accused) intervened and that the deceased assaulted the second accused with a stick. The first accused again assaulted the deceased and the deceased fell down. The' first accused concluded his defence that after this he did not know what happened again as they were all drunk. The second accuod also in unsworn statement related to the court how the deceased took their sister-in-law (PW2) with whom they were drinking pombe. According to his defence his brother Ivlagalawa followed theu,and that he soon after followed' Magalawa behind. It was his defence that he saw Magalawa fight- ing with the deceased and that they, were on the ground, the deceased pinning Magalawa dohi. He told the court that he tried to separate them by pulling the doceased but that as he was doing so the deceased assaulted him with a stick. He lost his temper and that he retaliated by assaulting the deceased with a stick. Then Magalawa assaulted the deceased and fell him down. After sunning up to the gentlemen assessors they were .13 I . both of the view that an ordinary Mgogo would have been provoked. by what the deceased said to his paramour, Maleo (PW2) at the circumoision ceremony. They on the evidence found that both accuseds assaulted the deceased on the material night and that the deceased died from the assanits. They however found that the accused persons assaulted the deceased as a result of their being provoked by him. They therefore found both accuseds only guilty of manslaughter. With respect I agree with the gentlemen assessors that thccusods' voluntary statements to the Justice of the Peace which were given only a few days after the incident is a tnie account of what happened just before they assaulted and killed the deceased. Their defences in court given about 4 years after the incident is clearly a clumsy attempt to evade the consequencies of their acts. In their free and voluntary extra-judicial statements to the Justice of the Peace, the contents of which were not disputed by the learned defence counsel, both accuseds admitted having assaulted and killed the deceased. They also admitted in their statements that they carried the deceased's body and hid it in boabab cave. From the nature and location of the injuries inflicted, together with the rebuttable presumption that a man intends the natural and probable consequences of his acts, the only reasonably acceptable conclusion is that, at the time they caused the fatal injuries the accused persons probably intended to kill the deceased or they at least intended to cause him grievous harm. From the evidence I would rule out any question of intoxication or self-defence. The only defence available to the accusodto the charge of murder is only that, nQtwiths±anding that they killed the deceased with malice aforethought, they did so while acting under grave and sudden provocation, in the heat of passion and while deprived of self-control. It is common ground in this case that the deceased was a morally loose ?erson. He was at the time openly making love with IVIaleo (PW2) wife of accusods' nephew. This did not please the accused persons very much, There is also undisputed evidence that Magalawa's cattle syringe and nine pieces of S clothes wore stolen and the deceased was suspected as the thief. He was infact arre.ote but for lack of evidence he was later released. It was when hewas set free when he met the two accused persons and Maleo, his paramour,at the circumcision ceremony. According to the extra-judicial statements the deceased started boasting to his concubine that he in±'act sthle Magalawa's clothes and that they could do nothing to him. He also boasted that he was going to steal their cattle. According to their.extra-judicial statements A sudden confession by the deceased to his paramour that he hain fact stolen Magalawa's clothes and syringe and that he was also going to steal their cattle, and the further fact that the deceased was going away with their nephew's wife, angered them and they decided to beat the deceased. Both assessors were of the opinion that such utterances by the decased were sufficient to provoke an ordinary Mgogo to the extent of resorting to violence even to the killing of the person who utters such language. I see no valid reason to differ from the assessors who are of the sane community as the accused that deceased's utterances were provocative to the accused persons within the definition of legal provocation u/s'202 of the Penal Code. I therefore find, as the assessors do, that -by reason of provocation of the accused persons by the deceased the killing of the deceased by the accusods, amounts only to manslaughter and not . .•. ../4 -4- murder. I accordingly find both accused persons not guilty of murder and I accordingly acquit them of this charge. But on the evidence, I convict them of manslaughter c/s 195 of the Penal Code. N. S.MNZA JUDGE Prosecution - There is no record against them. Mr. Mbezi in Mitigation - My lord this is a killing arising from grave provocon, There was an element of drink. Both accuseds have already been in custody for over three years. They are both first offenders. In view of this I pray for leniency on accused persons. Tht Accused - I have nothing to add. 2nd Accused - I have nothing to add. Sentence - There can be no doubt that the two accutheds have been in'emand for over three years. This period is, with • remission of sentence for good conduct equivalent to about 9 years imprisonment. They are both first offenders and they are, in a way, in this predicament because of the deceased's unbecoming behaviour. In view of these mitigating circumstances it is my view that both accusods qualify for some leniency. Each accused is sentenced to 3 years imprisonment. •• R.O.A. to E.A.C.A. oxplained. - U SINGI 10/6/74 • JUDGE 0 Lushagara for the Republic. Mbezi for the Accused. It t a •, I , ,