19740914 TZHC Iringa

I IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION •/ .(DODOMA REGISTRY) &z CRININP1L SESSIONS CASE NOeGO OF 1974 THE REPUBLIC 0) VERSUS .i fA?IISI Sb Murder c/s 19 of the Penal Code. JU D G N E N T MNZAVAS J, The accused, Hamisi Ilamata, stands charged with murde.:, He, on the 24/3/73 stabbed his wife. Galirnutabu d/o Selugull, with a knife puncturing the spleen, stomach and liver; death resulting from haemorrhage and shock, from these wounds. Both inhis voluntary extra—judicial statement to a Justice of the peace (exhibit A) and his certified statement to the committing magistrate (exhibit F) the accused has admitted having stabbed his wife and so caused her death; and, from the nature and location of the injury inflicted, together with the rebuttable presumption that a man intends the natural and probable consequences of his acts, the only reasonable acceptable conclusion is that at the time he stabbed his wife he intended either to kill her or he at least intended to cause her grievous harm. No question of intoxication or of self—defence arises in this case, The only defence put forward by the defence is that at the time the accused stabbed and killed his wife he was acting under grave and sudden provocation, in the heat of passion, and while deprived of his self-.control. The defence argued that there was legal provocation entitling the court to find the accused not guilty of murder but guilty * of the lesser offence of manslaughter c/s 195 of the Penal Code. The facts in this case are simple and straightforward; and, if I may add, not seriously in dispute. Sometime in 1972 there *rose a matrimonial friction between the accused and his wife, the deceased. This friction culminated in accused forcing the deceased out of the matrimonial home. According to the evidence of Jacob Mtafya (PW3), a primary court magistrate in whose court the deceased later filed divorce proceedings, and the contents of the letter from the local marriage Conciliatory Board (exhibit D) the accused forced the deceased out of the matrimonial home because "she did not know how to play he loin during sexual congress." The deceased went and lived with her brother, one, Stephano Seleguli. She decided to petition for a divorce - And, in compliance with section 101 of the Law of Marriage Act (Act No. 5 of 1971) she lodged her complaint to the local Marriage Conciliatory Board. The Board; tried to recoile them but failed; and consequently referred the matter to Ies _ni primary court. The magistrate (PW3) opened a case—file Ismani Civil Case No, 7 of 1973 (Exhibit C) and fixed the 27/3/73 as the date of hearing deceased's petition. Both the accused and the deceased were informed to appear with their witnesses on that day. Three days before the date set for hearing of the petition the accused followed the deceased at her brother's place and stabbed her to death, According to the evidence of Fdikana d/o Sekisumbe, (PW1) sister in-1aw of the deceased, she was grinding millet in a room where the deceased was having a nap when the accused suddenly entered the 00.0 0 0 room and stabbed the deceased. asd she was sleeping. She testified that she ran out of the room an alarm and neighbours came and chased the accused; but that they failed to catch him. This witness also related to the court that some days before the stabbing the accused had visited her house and demanded refund of his dowry from deceased's brother 2 and that the accused threatened that he would pour someones blood if he was not refunded his dowry 0 In connection with this incident, Criminal Case file No. 60 of 1573 in which the accused was charged (but acquitted) with threatening violence c/s 89(l)(1a) of the Penal Code was produced. The case-file was admitted u/ss 9 and fl9 of the Evidence Act, 1967 9 and marked-exhibit B. Police constable Rashidi (PW4) related to the court that on 26/3/73 he received police messege from Iringa asking the police in Gairo to investigate accUes whereabouts in Gairo as it was believed that he had left Iringa soon after the incident s , to his sister residthg at Gairo in Kilosa district. According to Rashidis evidence he 2 or the 29/3/73 at about 7 p.m. v arrested the accused at his sister's house in Gairo. The court also heard the evidence of Augustino Madembwe (PW6) a Justice of the Peace0 He told the court that on 11/4/73 the accused was brought to him by the police who informed him that the accused was being charged wit, murder and that he wanted to make a statement After interrogating him he was satisfied that he was a free agent and that he voluntarily . ti. shed to make a statement. He then took down accused's statement. The Justice of the Peace told the court that accused's original (hand-written) extra-judicial statement has unfortuna. tely been lost and that efforts to find it have totally faIled. The Republic applied to the court for permission to produce a certified typed copy of accused's handwritten extra-judicial statement and as the learned defence counsel had no objection to production of a typed copy; a certified typed copy of accused's, extra-judicial statement was admitted u/s 67/(1)(c) of the Evidence Act and marked as "exhibit Al. Doctor's post mortem report was produced u/s 275 of the Criminal Procedure Code and marked as exhibit E a And finally the learned state attorney produced acuse5 statement to the committing magistrate u/s 277 of the Criminal Procedure Code0 The statement was admitted and marked as "exhibit F". In his defence, given unsworn, the accused told the court that on the day he stabbed and killed his wife he and the deceased wet to their ce:L1-leader for reconciliation.so that the deceased would return to the matrimonial home. He said that the cell-leader tried his best to reconcile them but that the deceased refused to return to him. Then the celL-leader referred them to the local Conciliatory Bozrd. According to his defence he left his wife at the cell-leader's house and went to see if the 'oard was sitting. He said that he failed to find the members of the oard and decided to return to the cell-leader where he had left his wife. It was his defence that when he returned the cell-leader told him that his wife had returned to her brother's place. He then decided to return to his house. As he was going home he met the deceased 'talking to one 2 Rashidi, When the deceased and Rashidi saw him they started running away. He said that he chased Rashidi but that Reshicli was too fast for him and failed to catch him. The accused further told the court that having failed to catch Rashidi he followed his wife at her 'rother's place and stabbed her; "as she was refusing to return to him because of her boy-friend Rashidi' The accused also told the court that after he had stabbed the deceased he left to Gairo where his ;3ister livese It was his defence that this was the second time to meet Rashidi talking to his wife, and that the first time he met Rashidi talking to his wife, he reported to his cell-leader and that they were reconciled. He also told the court that during the colonial days he twice caught the deceased committing I .. 0 0 • 0 0 0 0 0 0 .1 0 0 0 • ./ 20 '"-1 - 20. adultery and that the matter was settled in a primary court. The accused finally related to the court the amount of dowry he paid when he married the deceased 0 In support of the Republic's case the learned state attorney argued that accused•s extra.-.judicial statement (exhibit A) and his statement u/s 277 of the Criminal Procedure Code (exhibit ?) showed that the accused stabbed and killed the deceased because the deceased refused to return to the matrimonaial home. It was submitted that if the court found that this was the only reason that caused the accused to stab and kill his Wife,the kil1ing it was argued, amounted to no lesser offence than murde"0 As to the accused's defence that he was provoked when he saw the deceased talking with Rashidi, a person he suspected to have an adulterous association with his wife, the deceased, it was argued that accUSS knowledge merely amounted to suspicion that Rashidi was deceased's paramour and that in these circumstances there could he no provocation in law to reduce the killing from murde' to one of manslaughter. The learned state attorney finally argued that accused's defence that he stabbed the deceased when he saw her talking to Rashidi was an afterthought as, it was argued, he did not mention Rashidi to the Justice of the Peace - Nor to the magistrate. The Republic invited ihe co.rt to find the accused guilty of murder as charged. On the other hand the learned defence counsel argued that the accused!s finding the deceased talking to Rashidi a person he suspected to have amorous association with the deceased added to the fact that he, on a previous date, had also found the deceased talking with Rashidill added to the other two incidents during the colonial days when he caught thm deceased committing adultery, cumulatively provoked him and killed the deceased In support of this argument the decision of this court in LANECK SIO KITEKA V R (1972) H.C.D. 207 was quotted. In that case this court held: "Whether an act can be said to constitute sufficiently grave and sudden aprovocatiori for the purposes of section 201 and 202 of the Penal Code should always be considered in the light of antecedent aggravating circumstances over a period, if such exist, so that a culminating "last straw" may be considered as provocation sufficiently grave, which might not have been if it had been the first act of its kind 0 " It was the learned defence counsel's submission that the accused's seeing the deceased talking with Rashidi was a culminati0 i3l "last straw" which, added to deceased's previous adulterous life, was provocation, sufficiently grave as to reduce the killing from murder to one of manslaughter. As to the Republics argument that accused's defence was an afterthought it was argued that even if the court found that the accused had told lies to the court that should not be taken as a basis of convicting him of murder as it was argued, the Republic had the burden to prove that the killing amounted to murder and not manslaughte-. After my summing up to the gentlemen assessors, they were both of the opinion that the killing of the deceased by the accused amounted to murder and they accordingly found the accused guilty of murder as charged0 I, with respect to the learned defence counsel, do not agree that the facts in KITEKA's case (above quotted) are simi1.ar to the present case. In that case there was clear and undispute4 evidence of antecedent aggravating circumstances. One such aggravating circumstance was that prior to the killing the wife had assaulted her husband so seriously that she was sentenced to six months imprisonment. The culminating "last straw" was that the deceased had pushed the accused who as a result got his head injured . It was at this stage that Kiteka stabbed and killed his wife. In the present case the accused said, in his unsworn statement s that prior to the day he stabbed and killed his wife he had ./21 - 21 during the colonial days, caught her committing adultery. He also said that prior to the killing he had also, on another occassion, fcurtd the deceased talking to the same Rashidi a person he had always suspected the deceased to be in amorous association with. His finding the deceased again speaking to Rashidi was said to be the culminating "last straw" which so gravely provoked him as to cause him kill the deceased. Unlike in KITEKA's case where the accused gave a similar story in his defence as in his extra—judicial statement to the justice of the Peace, in this case the acuseds unsworn defence as to why he killed the deceased is dimmetrically apposed to his free and voluntary extra—judicial stathmen€ (exhibit A) to the Justice of the Peace which statement he gave only two weeks after he had killed btè wife. He clearly says in his statement that he killed the deceased because the deceased was refusing to return to hii. He also says in his extra- judicial statement that his cell—leader, one, Jafaeli 3/0 Mkwambe tried to reconcile them and asked the deceased to return to the matrimonial home but that the deceased refused. He says that he went home and that on 23/3/73 (here he meant 24/3/73) he followed her at her parents' place and stabbed her. He further, says that on the day he went with the deceased to their cell—leader he had met the deceased coming from Izazi village. No where in his extra—judicial statement does he mention that he, on the day he stabbed and killed the deceased, he had met her talking tith one s Rashidi 3 He also did not mention deceased's alleged adultery during the colonial days. The accused also gave a statement (exhibit F) to the committing magistrate. In this statement he inter alia says: "When I went to the magistrate I did also claim my dowry and the magistrate locked me up. I was therefore very angry as I was locked up when I claimed my dowry ------ Japhet tried to reconcile us. Then deceased began going to our home 0 When I got home I did not find her there as she had not yet arrived. I followed her at her brothers home. I stabbed her and then I went away up to Gairo to see my sister and hand her my children." Here again it would appear that bhe accused was saying that he followed the deceased at her brothers home and stabbed her because she refused to return to him. Again the accused did not tell the committing magistrate that he stabbed the deceased after he had eeen her talking with one s Rashidi6 Nor did he mention in this statement (exhibit F) about deceased's alleged previous adultery. Human recollection is not infallible. It is quite possible for one to forget , minute details of a past event when retelling it. But it is to my mend impossible for an accused to forget such important matters as to what made him kill his wife. If the accused had killed the deceased because he found her talking to one s Rashidi; a person he says he suspected to be deceased's paramour, he would certainly have said so in his extra—judicial statement to the Justice of the Peace. He gave his extra—judicial statement only two weeks after the incident when the facts were still fresh in his memory. He at that time, said that he killed his wife because she was refusing to return to him. About four months later he repeated similar story to the committing magistrate. That the accused neither told the Justice of the Peace nor the magistrate that he killed his wife after he had seen her talking with one, Rashidi, does in my view, show that acu3eds unsworn defence is a tissue of lies. I agree with the learned state attorney and the assessors opinon that accused's defence is an afterthought and has not even a grain of truth in it. If his unsworn statement of defence was a true account of what happened just before the incident there was no reason why he should not have said so to the Justice of Peace and to the' committing magistrate. On the contrary he in his both statements said that he stabbed his wife because she was refusing to return to the matrimonial home. One is not, 'in law, entitled to assault his wife, leave alone stab her, if she insists living with her parents, or relatives, 00 0 22 - pending determination of a divorce petition 0 The killing was clearly unlawful. The accused says in his statement to the dommitting magistrate (exhibit F) that he was very ang±y because the primary court magistrate (PW3) locked him up when he claimed his dowry 0 This allegation is not supported by the evidence0 The evidence shows that the accused was put in lock—up on 30/1/13 (exhibit B) when he was charged with threte- fling violence c/s 89(l)(2) of the Penal Code0 His wife, the deceased being the complainant 0 The killihg was comrnited on 24/3/74 0 He was put in lock.-up in connection with the criminal charge of which he was later acquitted and not because he claimed his dowry. Having found that the killing of the deceased by the accused was unlawful, and, if I may add, there was no dispute about this; I will now examine the question,of malice aforethought. Intent is rarely proved by direct evidence 1 it can often be inferred from the circumstances viewed as a whole. The nature of the weapon used, the manner in which the blow is inflicted and the part of the body the blow is directed are factors to be considered. So is the motive if any motive is known0 In the present case the accused armed himself with a knife, followed his wife at her brother's place and inflicted the fatal stab wotthd on her as she was sleeping. The weapon used, a.k4fe, was no doubt a deadly one The stabbing was obviously s truck 1 l . + and brutally and was directed to a most vulnerable part of the body. Doctors post—mortem report (exhibit E) is to the effect that the stabbing punctured the spleen, the liver and the stomach; death resulting from haemorrhage and shock. As to the question of motive it is in my view amply demonstrated from accused's free and voluntary extra—judicial statemen 1 : to the justice of the peace - (exhibit A) and his statement to the • committing magistrate (exhibit F) l that he J..L1lod hi.s wife because she was refusing to return to him. This beitlg the position I am convinced that at the time the accused stabbed his wife he had already formed an intention to kill her; or if he had not formed Such intention / hariu he must have at least intended to cause grievousto her. In a criminal charge the burden of proof is always on the prosecution to prove the charge beyond all reasonable doubt. An accused person has no burden whatsoever to prove his innocence.. If there is any doubt as to the guilt of an accused person the law requires that the doubt be resolved in favour of the accused. In the present case I have not the slightest doubt that the killing was deliberate, calculated and in cold blood. I am fully satisfied as the assessors are, that the Republic has proved its case against the accused beyond all reasonable doubt 0 I accordingly find the accused guilty of murdering his wife, Galimutabu d/o Seluguli, c/s 196 of the Penal Codeas charged.. N.e. MN JUDGE Pros: - No record my lord. AJ.locutus - I have nothing to say. Sentence - You have been convicted of the serious offence of murder fr which there is but only one sentence, that isp death sentence 0 You are sentenced to death and shall suffer dQath by hanging. Right of appeal explained, IRINGA N.S. MNZA(AS 14/9/74 . JUD€ Lushagara for the Republic Mwakingwe for the accused.