19750408 TZHC Singinda

- - 4. C. IN THE HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL JURISDICTION (DODONA REGISTRY) CRIMINAL SESSIONS CASE NO. 168 OF 1974 THE REPUBLIC VERSUS U DAUDI s/a NLSIGAZWA CH/.RGE: MURDER c/s 196 of the Penal Code. J U D GENENT 1 IY1JZAV4S - J. The accused, Daudi s/o Msiganza, stands charged with murder c/s 196 of the -renal Code. It is the prosecution case that the accused on or about the 5th day of Juno 1973 at Mliche village, in NanyOni district, Singida region, nurdored one, Nwale d/o Mfaume, his wife. The accused admitted killing the deceased with his shot-gun (exhibit G) but pleaded provocation in his defenco. in his short imsworn statement the accused admitted that he levelled his gun at the deceased, pulled the trigger and shot her dead. Taking into account the nature of the weapon used and the location of the fatal injury, together with the rebu- ttable presumption that a man intends the natural and probable consequences of his acts, the only reasonably acceptable conclu- sion is that, at the mouent when accused aimed his gun at and shot the deceased he intended probably to kill his wife or he at least intended to cause her grievous harm. No quetion of intoxication or of self-defence arises in this case. The only defence put forward by the accused to the charge of murder is that notwithstanding that he killed his wife with malice aforthought, he did so while acting under grave and sudden provocation, in the heat of passion and while deprived of his self-control 0 It was the learned defence counsel's argument that on the evidence accused's conduct could be brought within section 201 of the Penal Code and reduce to manslaughter what would otherwise have been a case of murder. The learned state attorney on the other hand argued that there was no legal provocation of the accused by the deceasod that would under section 201 of the Penal Code extenuate the offence which is otherwise murder to one of manslaughter. The following facts preded the killing of the deceased by the accused, and if I iiay add, they were : no t seriously in dispute: On 5/6/73 the accused visited one, PIhechela (PW2) and invited him to accompany him to a pombe iarty. Iccording to the evidence of Ithechela the accused was accompanied by his brother one, Nguia s/a Msigazwa. thecheia told the accused to proceed to the pombe party and he promised to join him after he (Pw2) had taken his lunch., The accused then left to his house0 Liter he had finished his lunch iechela went tc accused)s house and from there they proceeded to a pombe party. The accused carried his gun (exhibit G) with him to the pombe party.. I would like to mention at this juncture that there is some inconisbence between the evidence of Ivthechela (P'J2) and that of Nagawa (PW3) as to the number of people that accompanied the accused to the poubo plac(- -., . Lccording to Miechela four men (including himself) and one lady, the deceased 2 accompanied the accused to the ponbo party Magava PW3), on the other hand told the court that they were five men (including the accued) and four ladies. He nen- tioned the ladies as Sona, Pilimo, Ngwale (the deceased) and one, Iyegule. This contradiction is not however material in the determination of the question uhether the killing of the decoa: by the accused. amounted or did not amount to murder, Both witnesses PW2 and PW3) are in agreement that the deceased was one of the people who accompanied the accused to the drinking party, To return to ivthechela's evidence he related to the court that the deceased did not particularly want to accompany them to the pombe party and that it was after her husband, the accused, had insisted that she joins them that she did so, It was hi eridence that at th - pombe party tiey net accused!s secid wife Sona (PW4),with whom the:r drank pomb together. I.thechela further told the court that at about 5 or 6 p.m. he noticed that the accused was not wih them., They continued drinking pombe in the absence of the accused up to sunset when they started going home ccording to his testimony as they were going to their respectiv homes Maawa (2W3), was in front followed immediate].:' behind him by one Izulamga. The witness, the deceased, Sona (PW4) and another Jady called ?ilimo were about 70 paces behind 1'Iagawa (pr3) The witness (I12) testified that as they were approaching accusedts house he heard someone asking Who are you". J.ccording to his evidence he saw the man and recognized him as the accused. The accused was holding his gun. The witness replied and identified hmself to the accused as Ifliechela, 1'thechela testified that as he was going towards the accused the accused fired his gun. The witnees tried to restrain the accused but the accused, according to the evidence of ffiechela, hid behind a tree and fired hie •un again., Miechela then ran away towards his house. Magwa (Pw3) also told the court that the accused le the drink i:.i place without their imowlodge. It was his evidenco that he and. Iv&ulanga (who did not give evidence) were far ahead ric-chela (2w2) and the deceased and the other ladies. He testi- fied that while he was at his house he twice heard scund of a gun 0 He did not bother to get out of his house and see what was the matter0 Eh told the court that on the same night Sona (PW4) reportcd to him that Mgwalc had died, Sona (Pw4), second wife of the accused, related to the Court that she and one Puma were behind Iaechela and the deco- ased when she heard sound. e e gun, - 0000an. i..G - 1 - 16 - She then saw the deceased lying dead on the ground near their house. Dr. Mruasha (Pw6) performed post mortem examination of deceased's body and observed one punctured wound on left side of the neck. It was his evidence that the deceased died from haemorrhage and shock as a result of a raptured left carotid artery. Doceased's post mortem report was produced and marked as exhibit B. Inspector Herman (PW7) testified to the court 'how he investigated the case. He sent two spent cartridges (exhibit Fl and P2) and accused's gun (exhibit .G) to the Government Chemist and to the Ballistic expert for examination and report. The Government Chemist's report (exhibit D) is to the effect that there was ash inside the barrel of the gun ('exhibit G) which on chemical tests showed residue of gunpowder inside the barrel. Ballist expert's report (exhibit E) is to the 'effect that the two cartri- dges exhibits (Fl and P2) were fired from accused's shot gun (exhibit G). Mr. Mpamanga (Pwi), a Justice of the Peace, related to the Court how the accused was brought to him for purposes of making a statement. It was his evidence that after he was satisfied that the accused was a free agent and that his statement would be voluntary he proceeded and recorded his statement. As the learned defence counsel had no objection to production of accused's statement to the Justice of the Peace as exhibit; Accused's extra-judicial statement was produced, admitted and marked as exhibit. A. In his short unsworn statement from the dock the accused gave his reasons for killing his wife. He said: "Because the deceased abused me by saying - "Your mother's vagina" and because she attempted to pull my private parts I lost my temper and shot her. I was annoyed because she abused me gratuitously. This is all I have to say in my defence. I have no witnesses to call." After my sunning up to the gentlemen assessors they were both of the opinion that accused's story in his unsworn defence was incredible and rejected it. The first assessor went further and said that even if accused's story that the deceased had uttered vulgar abuses at him and had attempted to pull his private parts such abuses and acts would not have provoked a Mgogo husband so much as to resort to killing his wife. On the evidence I tend to agree with the opinion of the judges of fact that accused's story that he shot and killed his wife because she had gratuitously abused him and had attempted to pull his person is not credible. The case for the prosecution apart from accused's extra- judicial statement (exhibit A) which, as I have al±'eady mentioned, was not objected to by the learned defence counsel, turns on the evidence of ItIhechela (Pw2). Nhechela whom I regarded as a very truthful witness related'to the court (when cross-examined by the learned defence counsel), that the deceased was about six paces behind him when the accused fired the first bullet. On further cross-examination the witness said "the deceased did not go near the accused when he fired the first shot." . 0 .,. 0 0 . 17 17 - From the evidence it would appear that it was the first shooting that caused the death of the deceased. Nhechela also told the court in his evidence-in-chief that the deceased and himself were standing about 19 paces from the accused when he fired the first bullet. Taking into account iechela's evidence it is amply clear that accused's story that the deceased was attempting to pull his person when he shot her has no leg to stand on. She could not have attempted to do so as she was 19 paces from the accused when the accused released the deadly bullet. - At this juncture it is appropriate to mention that accused's defence of provocation is diametrically opposed to his extra judicial statement (exhibit A) to the Justice of the Peace on 7/6/73; only two days after the incident. Relating to the Justice of the Peace how he shot his wife he said inter alia: •........."Nilikutana na huyo cke wangu marehemu wako na thechela hapo niliiiliza ninyi wakina nani, kuuliza hivyo huyo Mhechela akaanza lmtaka kukimbia hapo huyc marehemu cke wangu alini 2tukana kuwa kur2a ya maca yarigu. Nilimsogelea nimshike huyo rike wangii, aliingiza rtkono wake akitaka anivute kwenye uuie wangu (uboro) hapo nilirudi nyuna kidogo hapo niliamua kunpiga bunduki huyo uwanaume Nhechela. Niipokuwa nafyatua huyo mke wangu alikimbia upande wa yule uwanarime risasi ikampitia yeyo rike wangu akoanguka Translated into English is: ..........I met my deceased's wife accompanied by ivihochela, I asked who are you? Then 'flaochela attempted to run away and my deceased wife abused me saying "Your mother's vagina." I attempted to catch her but she advanced her hand and attempted to pull my penis, I retracted and decided to shoot the man, Nhcchela. As I was pulling the triggor my wife ran towards thechela's direction and she was shot and fell down...................... From the above statement of the accused what the accused is saying if only by implication, is that he killed his wife acci- dentally because he had aimed the lethal bullet at Ithechela but shot the deceased instead. Here the accused does not say that he shot and killed his wife because he was provoked by the vulgar abuses she uttered at him and her attempt to pull his person. Indeed it would appear, as rightly argued by the learned state attorney, that such abuses and acts, (if there were such abuses and acts), did not in the least provoke the accused. Accused's defence (about two years after the killing) that he killed the deceased because he was provoked by her vulgar abuses and her acts is, I agree with both assessors, bogus and clearly an afterthought. Even if accused's defence is to be taken at its face value the deceased's behaviour could not have justified such a brutal retaliation by the accused. If the accused had slapped the deceased for "her unbecoming behaviour" such a retaliation would have been understandable. His retaliation by using his gun was clearly uncalled for. I wholly agree with the first assessor when he says that "such abuses and acts of the deceased" would not he.ve pro- voked a Ngogo husband of accused's community to such extent as to resort to killing his wife. • • • • 18 - 18 The facts in this case are in some respects in all f•urs with the facts in ABDULLLH fill. H.Y..0GfD 0R V. R. (1958) D2, 725 • In that case the accused had attackedhis wifé with a knife and killed her. .fmong his defences, was his extra- judicial statement to the Justice of the Peace, (which he later repudiated), that he had stabbed his wife and killed her because his wife had struck him with a piece of wood. In rejecting the defence of provocation the Court of Appeal had this to say:- ........'...."We would add that we agree with the learned judge that, even if the appellant's statement were to be taken at its face value, the provocation received could not have justified so brutal a retaliation by the appellant." In that case the accused had used a knife; in the present case, the accused used a gun, a more deadly woapon. On the facts I am inclined to come to the conclusion that the accused's conduct on the fateful night cannot be brought within the provisions of $ection 201 of the Penal Code to reduce the charge of nurdor to one of manslaughter oven if his defence of provocation was to be accepted. Having rejected accused's defence of legal provocation I now proceed and examine accused's extra- judicial statement to the Justice of the Peace as a whole. Accused's statement ought to be weighed notwithstanding the fact that the learned defence counsel did not seriously argue it. The effect of accused's statement to the Justice of the Peace is that on the material day he was drinking poribe with his two wives and DRiechela (PW2). At about 4 p.m.. when they had consumed shilling three worth of pombe he told his two wives that they should now accom1:y him home. Mhechela intervened and said that the two wives were dtill drinking pombo. The accused repeated to his wives that they should accompany him home. There- upon according to his statement, his wives replied him that he should go home alone'. He again insisted to them that they should accompany him but they said that they were still drinking pombe. He then decided to leave to his house alone leaving his wive.s at the pombe place with Mhechela. He stayed at his houe up to about 10 p.m. when he decided to follow his wives. As he was following them he met the deceased accompanied by Mhechela (Pw2). Ithechela attempted to run away and the deceased uttered the vulgar abuses to him and attempted to pull his private parts. He retreated and decided to shoot lVthochela'. As he was shooting Pechela the deceased ran towards Iiechela and was shot with the bullet he had aimed at Mhe chela. looking at accused's voluntary extra-judicial statement to the Justice of the Peace in the light of the evidence of JYihechela (Pw2), Nagawa (Pw3) and accused's second wife Sona, (PW4), accused's story that his wives had refused to acconpy him home from the pombe party, and that JYlliechola endorsed their refusal, cannot be true. According to Mhechola's evidence the accused left the pombe party without notifying them. It was his evidence that he discovered that the accused was not with them at about 5 p.m. That the accused left the pombe place without noti- fication is also evident from the evidence of Nagawa (PW3). Accused's second wife, Sona, (PW4), supports echela and Magawa that the accused "secretly" left the drinking place. As to the accused's story that he had intended to shoot JYlliochela with the bullet that killed his wife, the question for determination is whether the accused had any justification to shoot at Nhechela. •.. 19 If there is evidence that at the time of.killing his wife the accused was acting under legal provocation by Mhechela whom he believed he was killing, the doôtiine of transferred provocation will apply and the accused will have to be found not guilty of murder but of manslaughter. From the evidence of 1'Thechela the accused is his best friend. That this was so is confirmed by both Magawa (PW3) and accused's second wife Sona, (PW4), Why then, if accused's extra-judicial statement is to be believed, did he shoot at Mhechela on the material night? If accused's extra-judicial statement is to be accepted in toto, I can only speculate that he may have been annoyed by 1'thechola's endorsement that his wives should not accompany him home. But such annoyance, if there was such annoyance, did not in law entitle him to resort to attacking 1'thechela with such a lethal weapon as a gun. here again if the bullet had killed echela accused's conduct could not be brought within Section 291 of the Penal Code and extenuate the killing fronirder to mans- laughter as there was no legal provocation of the accused by IVihechela... If anything accused's act was in revenge. It would have been murder if the bullet had killed Mhechela. Uncir the doctrine of transferred malice it makes no difference that the deadly bullet missed Dthechela and killed the deceased instead. It is possible, and from the evidence most probable, that the accused is an excitable and pugnacious person, but unfortunately for the accused the law does not give indulgence to such human weakness. In a criminal case the prosecution always has the burden to prove the charge beyond all reasonable doubt. An accused has no burden whatsoever to prove his innocence. In the present case I an satisfied, as the assessois are, that the killing of the deceased by the accused was without 1 egal provocation. I have no alternative but to agree with the gentlemen assessors that the prosecution has proved the charge beyond all reasonable doubt, I á.ccordinly find the accused guilty of the murder of his wife, Mgwale, d/o Mfaune as charged. N. S. 1VINZAVLS JUDGE Pros - Nothing known about him my lord. Allocutus As I have said I killed in provocation when she abused me. I have 14 children and I take care of my old mother. 0 0.20 S .. .51 - 20 - Sentence You, Daudi Msigazwa, has been convicted of the serious offence of murder for which there is but only one sentence, that is, death sentence. You are sentenced to death and shall suffer death by Hanqing SINGIDA. S N. A 8th April., 1975, JUDGE II