19750514 TZHC Mbeya

/f(.. )fJcG_'. IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (*R---sA*M-REGISTRY) - RIMINAL SESSIONS CASE NO, 28 OF 1974 THE REPUBLIC ,-- -- - versus - CLEMENCE S/o NGOMBOLWA CHARGE: Murder c/s 196 of the Penal Code0 JU D G M E N T MAPIGANO, J. Accused CLEMENCE 5/0 NGOMBOLWA stands charged with the murder of one ADEL!' D/O MUNYEMA, contrary to section 196 of the Penal Code. The accused admits that he caused her death. His defence is simply that. he killed her by accident in that he had intended to administer the blow which killed her into someone else who had provoked him. The events that led to her death were these: On Sunday the 3rd February, 1974 the accused went to the house of PW.6 Maria ?angu, his aunt, in order to roast his fish. He found both PW.6 Maria and his grandmother Adela the mother of Maria present. Either PW.6 Maria or the deceased objected to his roasting the fish, and this suddenly flared up into a fracas during which the deceased was clobbered on the head by means of a firewood, exhibit P2. Medical evidence shows that she sustained a compound fracture of the skull which resulted into subdural haemrrhage and shock. The doctor's opinion as to the cause of death, with which I agree, is that she died of the head injury and shock. There were only two persons who were present in the hçuse in which this incident took place namely PW.6 Maria and the accused person. But their accounts as to what led the accused to attack his deceased grandmother do not hang together. Maria's version is that the accused came into the house and found her sitting in the dark in the sebule and the deceased in an inner room in which there was a small fire. Accused remarked that he was looking for a fire on which to roast his fish. He entered the inner room and met the deceased who told him that the fire wasnot big enought for roasting his fish. The accused replied "unagombea moto kama chakula" and followed this with an assault. He hit the deceased with a piece of fire log on the head. She, deceased, screeched in agony and the accu:_. left the room. She, Maria, sprang upon him but he extricated himself by striking her on her left palm with the piece of wood and fled, leaving the deceased lying down unconscious and bleeding from the right ear. She died a short while thereafter. She, Maria denied the proposition that she had quarrelled with the accused over a piece of shamba prior to this incident and that essentially the assault involved only the accused and herself. But according to the testimony of PW.2 Petro Malambo to whom she immediately reported about the incident, she had told him that the accused had wanted to beat her but that the blow had accidentally landed on the deceased. ,....2 I -, 2 - The sworn version of the accused which in all material essentials is a repeat of his extra-judicial statement, exh2.bit• P4, which he made to PW.5 9 Hezron, a Justice of the Peace at Chunya, shows that the deceased obliged to his roasting the fish and that it was PW,6 Maria who resented it. He alleged that he had put the fish on the fire when he heard her (Maria) speaking from another room. She inquired "who is there?" and the accused replied by announcing his name. She came out of the room and charged forward to grab his shirt remarking "wewe ulininyang'anya shamba sasa nyumba yangu imekuwa nzuri". He replied that he did not know about that and that he had only come there to reast his fish. She then pulled him and felled him down. He stood up but she caught his trousers and tore them. He was angered and he slapped her. But she could not be subdued, she got hold of his left hand and bit it. He retaliated by picking up piece of log, exhibit P2, and struck. She ducked and the blow landed on the deceased who had apparently moved close to the scene of confrontation. He heard the decaased crying in distress "you have killed me". Realising that he had injured her, he rushed to some one's place to ask for transport for taking her to a hospital. It is common ground that the assault took place in the dark and that there has been nothing unpleasant between the accused and the deceased. The accuseds contention that they mutually held each other in profound affection stands unchallanged. The assessors were not impressed by PW.6 Maria largely on two grounds. First, that it was unbelievable that the accused would have deliberately attacked his grandmother on the petty ground of being refused to roast a fish. And secondly because of her inconsistency which I have pointed above. They have accepted the evidence of the accused that he quarrelled with PWO6 Maria and that he hit and killed the deceased accidentally. I have given serious consideration to the opinins of the assessors and I respectifully think that they are sound. I also do not think that a mere refusal to allow the accused to roast his fish on the fire would have excited him into attacing his grandmother whom he greatly loved in the manner he did. It is almost unbelievable. I have observed the accused in the witness box and I feel that he was genuinely sorry for what befell his grandmother. As indicated, the prosecution case largely hinges on the testimony of this woman Maria. I think therafore that the assessors are justified in their opinions that her inconsistent story as to whether the fatal blow was aimed at herself or at the deceased tends to detract from the veracity of the prosecution case. What she told PW.2 Petro Malambo appears to be in agreement with the accused's account. I think that it could be the truth. I would therefore, prefer the accused's account to that of PWO6 Maria. The accused pleaded provocation0 In fine, his contention is that PW.6 offered him provocation when she suddenly flung into him and attacked him by pulling him down, tearing his trousers and biting him. And that he lost his self control and retaliated in a fit of temper. I did address the assessors on law on the issue of sufficient provocation and told them that should they find that the provocation was insufficient and that the accused struck with malice aforethought, then on the basis of the doctrine of transferred malice as expressed under section 200(b) of the Penal Code, they would have to advise that the accused committed murder. They were of the view that PW06 Maria offered him considerable and sudden provocation and that he lost his self control and delivered the fatal blow in the heat of passion engendered by that provocation, and that an ordinary man of his community similar circumstances would have lost his self control also and behaved in like manner. Taking into consideration the weapon he used to inflict the fatal injury and the force, according to undisputed medical evidence, 0 0 0 0 0 0 3 p 0 3 considerable, with whidh he struck, I haVe, no doubt that he must have intended to do grievous harm to PWOG Maria who fortuhately dogded the blow0 I would, howeverp agree with the assessors, on the strength of the accused's evidence that he was irtipelled into this violence Wheh he had. been deprived of his Self doritrol foilowing and as a result of a sudden and weighty provodation from PW.6 Maria0 Unfortunately' nd beyond his control he misdirected his blow and killed someone other than his provoker0 However ? I think that the defence of provoca- tioh is available where as in this case the accused by Sdcident kills a third party intending to kill or do grievous harm to his proroker0 I would think that section 201 of the Penal Code is sufficiently general to include this concept of misdirected retaliation0 In the event, I would agree wi'h the assessors and irid the accused not guilty of murder0 He is found guilty of manslaughter, contrary to section 195 of the Penal Code, for which offence I convict him D. P. Mapigano Judge Judgm9rr .ponounced this 14th day of May, 1975. Mr0 Mwakilasa: No record0 Mr0 Dhe.bar: Unfortunate incident0 Accused loved his grandmother0 Accused 25 years0 Has been in cust3dy for the last sixteen months0 Sentence: Two years imprisonment0 D0 P. Mapigarlo JUDGE