19750915 TZHC Iringa

- 18 - / IN THE' HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 135 OF 1974 THE REPUBLIC VERSUS GOODNESS JALISI AND STAINI SIO JALISI CHARGE: Murder c/s 196 of the Penal Code. 10 J U D G M E N T MNZAVAS, J. The two accuSed persons, Goodness Jalisi and Staini Jalisi are jointly charged with murder c/s 196 of the Penal Code. It is alleged by the Republic that the accused on or about the 2nd day of February, 1972 at Somoka village, Bulongwa Division, in Njombe district, Iringa region, jointly and together murdered one Jalisi s/a Mwenevanu. Both accused pleaded not guilty to the zharge. From the evidence of the doctor (PW3) and that of deceased's 20 son and his wife (Pwl and PW2 respectively) there can be no dis- pute that a person by the name of Jalisi Mwenevanu has died. Equally there can be no doubt from the doctor's post-mortem report (exhibit A) and his evidence in court that the -deceased Jalisi Mrenevanu died a violent death. The only question to be answered by this court is - who was the perpetrator of this odious crime? The following undisputed • facts were narrated to the court: The deceased who is father of the two accused disappeared from the village in the first week of February, 1972. On learning 30 of deceased's disappearance two cell-leaders, Samson (PW5) and Sukari (pw6) called a village meeting and deceased's wife (PW2) was interrogated as to the whereabouts of her husband. According to the two cell-leaders deceased's wife said that the deceased had been missing for six days and that she had sent her sons (the two accused) to look for him at Kipengele village. The two accused did not attend the meeting. When the deceased disappeared one of his sons, Charies (PW1) was not at home. He told the court that he was on safari at the time. Charles.. (PW1) related to the court that when he 40 returned he asked his brothers (the two adcused) the whereabouts of their father and they replied that he had gone to see his friends. It was his evidence that after days had passed without seeing the deceased he insisted on the accused to tell him where their father was and, that they finally told him that they had killed him because he was a wizard. The witness also testified that he asked the accused to show him where they had buried the deceased and that they showed to him the grave. 0 - 19 - Tuhangile (PW2) mother of Goodness Jalisi (1st accused) and step-mother of Staini (2nd accused) testifie.d to the court that he was with her husband, the deceased, when the first accused suddenly came and assaulted the deceased twice on the back of his head with a club0 According to her evidence Staini, the 2nd accused did, not assault the deceased but helped in burying him. Dr. Kyendesya (PW3)'gave evidence to the effect that he per- formed post-mortem examination on deceased's body and came to the conclusion that the deceased died from shock as a result of head Injury. It was his testimony that the 'deceased had a dep.- 10 ressed fracture of the occipital hone_(The bone at the back of the skull), It was doctor's opinion that a blunt instrument must have been used in inflicting the injury and that the location of the injury was such that it could not have been self-inflicted. Benson Mwamfupi (PW4) a Justice of the Peace, gave evidence as to how the two accused persons were brought to him for purposes of recording their statements0 He testified to the court that he interrogated the accused and from their answers he was satis- fied that they. were free agents and that their statements would 20 be voluntaty. He proceeded and recorded accused's statements. As the learned defence counsel had no objection to the read- ing of the statements to the court the statements were read and admitted as exhibits B and C. Samson Kilawagosi (Pw5) a cell-leader related to the court how a village:zcating was summoned in connection with deceased's disappearance from the village0 It was his testimony that the two accused,were suspected and arrested and that they later showed the villagers where the deceased was buried. The witness is uncle of 30 the d&ceased. The court also heard evidence of Sukari Nhalali, (PW6) another cell-leader and, apparently, son-in-law of the deceased. ACCording to his testimony Goodness (1st accused) confessed that he had killed the deceased and that his brother Staini (2nd accused) helped him burying the deceased. Sergent Thomas (PW7) told the court that he received murder report from Isomoka village in Bulongwa on 20/2/72, apparently 18 days after the death of the deceased. After a protracted delay due to lack of transport to the area he eventually proceeded to the 40 village on 4/4/72 accompanied by the doctor (Pw3).' Deceased's body was exhumed and post-mortem examination was done on the spot. He drew a sketch map of the scene and the map was produced and marked as 'exhibit E'. Both accused gave their defences from the dock0 Goodness (the 1st accused) related to the court how on 16/2/72 he returned home from Njombe where he had been since 14/2/72. According to his defence he did not find anyone at home. He went to his brother's house (2nd accused's house) he again did not find anyone. He decided to go to a neighbour's house. There he met a 50 child and asked him whether he had seen his brother Staini (2nd accused). According to his defence the child told him that Staini had been arrested by their cell-leader and tied with a rope. On asking the child as to whether he knew why Staini had been arrested the child answered in the negat!ve. The accused said that he followed Staini at the cell-leader's house and he found him there with his arms tied with a rope. Then - 20 - according to his defence, the cell-leader proceeded und tied him with a rope as well saying that he (1st accused) had killed his father because he (1st accused) used to say his father was a wizard 0 In his short statement Staini (2nd accused) related to the court that one day as he was at his house his young brother (1st accused) called him to his (1st aàcused"s) house. He went to first accused' s house and according to his defence, he found that Goodness had killed their father0 It was his defence that Goodness asked him to help in burying their father and that they buried 10 the deceased. On being asked by the court whether he had witnesses to call on his behalf he said that he wanted to call Tuhangile (PW2) as his withess but that because Tuhangile had already told the court what he wanted her to say he did not want to call her any more. Arguing in support of the charge the learned State Attorney referred the court to the evidence of Richard (Pw1) Tuhangile (PW2) and that of the two cell-leaders (PW5 and PW6) which evidence, it was argued proved motive on the part of the two accused. It was argued that the evidence of accused's brother(PWI), 20 that of the cell-leader (PW6) and first accused's extra-judicial statement (exhibIt B) implicated the first accused with the offence of murder as charged. The Republic urged the court not to accept Goodness's defence of alibi that he was away in Njombe when the deceased met his death. It was the learned State Attorney's submission that on the evidence the court should accept Goodness's ccnfession to the Justice of the Peace that it was he who killed his father and reject his repudiation of his confession0 In support of this argument the court was referred to the 30 decision by the Court of Appeal in TUWAMOI VS. UGANDA (1967) E.A.84. As regards Staini, the second accused, the Republic argued that even if the court was to find that there was insufficient evidence in support of the charge of murder against himi there wasp it was submitted, evidence implicating him with the offence of being an accessory after the fact to murder and that he could be found guilty of such offence under "section 387of the Penal Code In rebuttal the learned counsel for the accused persons argued that even if the court was to accept Goodness 9 s confession to the cell-leader and to the Justice of the Peace as a true account of 40 what happened, there were, it was argued, circumstances which brought Goodness's act within the provisions of section 201 of the Penal Code to reduce the charge of murder to one of manslaughter. It was submitted that deceased's witchcraft amounted to provocation of the accused under section 202 of the Penal Code and that because of this the court should find Goodness not guilty of murder but guilty of manslaughter. To fortify his argument the decision in R. VS. FABIANO KINENE SIO MUKYE and others (1941) EOA.COA. 96 was It was argued on behalf of Staini (2nd accused) that there was 50 no evidence to show that he participated in the killing of the deceased. It was the defence argument that even if there was evidence that Staini was present when the deceased was being kjlled, mere presence without participation, it was submitted, would he insufficient to constitute him a principal in the murder of the deceased u/s 22 of the Pea1 Code. In support of this argument the court was referred - 21 - to the decision in REX. VS0 KRNGORO WA CAKUHA and another (1946) E.AOC,.A. 98 9 It was also argued that on the evidence Staini could not be found guilty of murder under the doctrine of common intention (section 23 of the Penal Code) and, in support of his sUbmission the learned Counsel quotted the decision in the case of REX V MASABO SIO MWNDABANTU and another (1946) E.A0C.A. 172. After my summing up to the gentlemen and laady assessors, the first and fourth assessors were of the opinion that the evidence implicated both accüed perton3- with the death of their father and 10 they found both of them guilty of murder as charged0 The third assesor also found that the evidence connected Goodness, the first accused, with the murder of the deceased. He however, was of the opinion that there was no evidence implicating Staini with the killing of the deceased0 He said that Staini was 'only guilhy of helping in burying the deceased'., From the evidence tendered before this court it is clear that the deceased was known by both his family and the villagers to be a reputed wizard0 The family's belief that the deceased was a wizard was apparently confirmed by a local medicine-'man who, after -20 consulting his ciarms, told the second accused (who wa& aci.ompanied by Charles (PW1))that the deceased was the person who had killed his 2nd accused's) four children by means of witchcraft. Accordihg to the evidence of Charles (PW1) the witchdoctor also Eold them that it was the deceased who had bewitched his son Goodness (1st accused) and made him impotent. The case for the prosecution in so far as the- first accused, Goodness Jalisi, is concerned tu: -ns on the evidene of accused's mother (PW2), his brother (PW1) and his brother in law (PW6)0 All these witnesses related to the court that Goodness confessed tIia€ 30 it was he who had killed his father the deceased. There was also accused's extra-jUdicial statement to the Justice of the Peace which, as I have already mentioned, was not objocted to by the learned defence counsel. -- It is however, clear from Goodness's unsworn statement that he repudiates having given a statement to the Justice of the Peace. As rightly argued by the learned counsel for the Republic the question whether a court is to accept or not to accept a repudibed confession as a true account of what happened was fully dealt with - by the Court of Appeal in TUWAMOI V UGANDA (1967) In that 40 case the Court of Appeal had this to say at page 91: "The main essential for the validity of a confession is that it is vclunary if the Court is satisfied that the statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and in doing so will consider the weight to be placed on any confession that has been admitted. In assessing the confession the main consideration at this stage will be, is it true? And if the confession is the only evidence against 50 an accused then the court must decide whether the accused has correctly related what happened and whether the statement established his guilt with that degree of certainty required in a criminal case. This applies in all confessions whether they have been retracted or repudiated". -I In faIthess to the first accused I would like to mention that had it not been for the other evidence against him, I would not have accepted his mother's evidence that it was the accused who assaulted and killed the deceased. She was most contradictory in her evidence and, as it is amply clear from the evidence of the two cell-leaders (PW5 and PW6), she told lies about the disappearance of the deceased0 At the time she was interrogated by the cell-leaders she knew what had happened to her husband but she pretended not to know0 She could, on the evidence, ha'r been charged as an Feeessory after the fact as her failure to report what had happened was tarita- 10 mount to assisting her sons to escape justice0 Her evidence against the first accused is of no consequence unless it is corroborated by other independan evidence in material particulars0 There is apparently ample evidence corroborating her testimony that it is the first accused who assaulted and killed the deceased0 There is first the evidence of Richard, brother of the accused persons, that the accused confessed killing the deceased0 This wit- ness (PW1) is info way connected with the death of the deceased0 Indeed he was not at home when the deceased was killed 0 The accused also showed the witness where they had buried the deceased0 20 From Richard's demeanour and his conduct in the witness box, I was left in no doubt that he was a credible witness0 There is also the evidence of Sukari (PW6) the celL-leader; also to the effect that the first accused confessed that it was he who had killed the deceased0 There was not the slightest suggestion, leave alone evidence, that the cell-leader (PW6) had reason to tell lies against the first accused who as I have already mentioned is his brother-in-law, As to first accused's defence that he had gone to Njombe on 14/2/72 and returned back home o 16/2/72. This :annot, strictly 30 speaking, be said to be a defence oi auibì. He is charged with the murder of the deceased on 2/2/72. His defence of alibi does not cover the material day - the 2nd February, 1972, the day he is said to have attacked and killed the deceased I now come to accuseds repudiation of his extra-judicial statement to the Justice of the Peace. That the accused correctly and voluntarily related to the magistrate what he did on the material day is evident from the doctor's evidence who told the court that the deceased had the back of his head fractured. This evidence tallies with accused's confession to the Justice of the Peace in 40 which he says inter-alia: " ..o..o Nilimpiga na Limbo kisogoni akafa pale pale...." Translated into English is: "I assaulted him at the back of his head and he died on the spot". Again accused's confession to the Justice of the Peace about the assault is compatible with the evidence of his mother (Pw2) that the ecused assaulted the deceased on the back of his head. As to the reason why the first accused assaulted and killed his father he told the Justice of the Peace inter-àlia: 50 "Nàkumbuka tarehe 2/1/72 saa tatu ya usiku nilirnuuwa baba yangu marehemu Jalisi s/o 1wenevanu sababu aliniloga mimi ili niwe hanithi mpaka sasa ni hanithi." The literal interpretation into English is: 23 "i remember on 2/1/72 at about 9 p.m. I killed my deceased father Jalisi s/o Mwenevanu because he made me impotent by means of witchcraft; I am still impotent". This part of accused's confession to the Justice of the Peace also tallies with Richard evidence :hat the witchdoctor had told him and the second accused that the deceased was responsible for first accused 2 s impotence. Taking into account the evidence of Richard (PW1), Sukari and the evidence of the doctor, and considering the surrounding cir- cumstances of the case? I hre no doubt at all that the first 10 accused voluntarily gave his extra-judicial statement to the Justice of the Peace and that he was not in any way induced to do so. He voluntarily confessed to the magistrate that he attacked and killed his father because the deceased had, by means of witchcraft, made him impotent. From the doctor's evidence there can be no doubt that it is the assault of the deceased by the first accused that caused deceased's death. On the evidence the killing was clearly unlawful. As to the learned defence counsel's argument that the first accused had at the time he killed the deceased, been provoked by the 20 deceased who he believed to have made him impotent by means of witchcraft; I agree that there may be cases where a defence of 'itchcrft. could reduce a charge of murder to one of manslaughter by reason of provocation under section 201 ofthe Penal Code0 KINENE's case quottod above by the learned counsel is a good example. But, with due respect to the learned defence counsel the facts in KINENEs case are clearly distinguishable from the facts in the present case, In KINENE's case the ac used caught the deceased performing sorcery and he believed that the deceased was performing the acts 30 of witchcraf.t against him. In the present case the first accused merely believed that his father, the deceased was a wizard and that he had, by witchcraft, made him impotent0 The facts in this case do not come within the principle laid down in KINENE's case - supra, as the alleged act of bewitching of the first accused had not been performed in his presence0 As it was held by the Court of Appeal "The doctrine of legal provocation which reduces a killing which would otherwise be murder to one of manslaughter finds no application when the provocative MN act was not committed in the presenc of the accused. Thus there the accused believed that the deceased had performed an act of witch- craft or an act of poisoning on his child such a belief does not constitute legal provocation where the act was not performed in his presence". R V EMILIO LUMU (1946)_E,AOCOA. 144. The decision in RV KAJUNA S/OMBAKE (1945) EOAOCOA. 104 is also to the same effect. In view of the above decisions by the Court of Appeal I would, with respect to the learned defence counsel, say that his argument that the provisions of section 201 of the Penal Code can be called 50 to the aid of the first accused so as to reduce the killing which would otherwise be murder to manslaughter has no eg to stand on. As to the question of malice-afothought the stick used by the accused in assaulting the deceased (exhibit D) is a formidable one 0 It was estimated to be abot 3 feet long aI i 2 k" thick. The dodto said In his evidence triatco uaa6u injuries he observed on the deceased considerable force must have been used0 The acdused assaulted the deceased not once but twice on a vulner- able part of the body0 As to the motive this is clearly brought out by the accused in his extra-jud:.cial statement when he says: .0OOb"Nilimuu babayangu sababu aliniloga iii niwe hanithi, ntpaka sasa n: hanithi' 10 Translated into English is: 6 1t1 killed my fathcr c'.uo he bewitched me so that I r.;y become impotent; up to now I am impotent". This in my view proves beyond all reasonable doubt that when the first accused was attackin.I the deceased he had already formed an intention to kill hm In a criminal charge the burden of proof is always on the proDecution. An accused has no burden whatsoever to prove his innocence On the evidence I am fully satisfied, as the assessors are, 20 that the prosecution has proved the charge of murder against the first accused. Goodness s/o Jalisi beyond all reasonable doubt, I therefore find the first accused, Goodness s/o Jalisi, guilty of the offence of murder as charged, and I so convict him. I will now examine the cvi'ence adduced in support of the charge of murder against cifl 1.s the ;econd accused. The only evidence tending to connect the secOnd accused with the death of the deceased is the evidence of Richard (PW1) which is to the effect that both accused persons confessed to have killed the deceased0 30 Against this evidence is the evidence of Tuhatigile (PW2) who told the court that Staini did not attack the deceased0 Acdording to her testimony as I have already mentioned, Staini only assisted the first adcused in burying the deceased0 And, what is more, the first accused says in his confession to the Justice of the Peace that after he had killed the deceased he called Staini from his house and they dug a grave and buried the deceased0 This evidence again shows that Staini did not participate in the actual :eating of the deceased.. One of the assessors argued 40 that the killing of the deceased was hatched in Staini's house where the two accused had been drinking pombe just before Goodness returned to his mothers house and killed the deceased0 It is, I agree with the gentlemen assessor, possible that the killing of the deceased was planned in Stainis house during the drinking session0 But there is not the slightest evidence to support this hypothesis. Where two or more persons are jointly charged with an offence the guilt of each accused must be proved or it must be proved that the accused persons were acting in pursuance of a common purpose 50 when one of them committed th rca0 That Steini believed that the deceased had bewitched and killed his children there can be no doubt. It is also quite possible that he wished the death of the - 25 - deceasedi. But as rightly argued by the learhed defence counsel and in my view rightly so, there is no evidence connecting Staini with the murder of the deceased as a principle offender under section 22 of the Penal Code. Nor Is there evidence to support the charge of murder against him under the doctrine of common intention 0 There is, I .qee with the prosecution, a lot of suspicion agains Staini that he may have conspired in the killing of his father; but suspicion, no matter how gravefl cannot be the basis of a conviction in a criminal charge0 10 However although the prosecution has failed to prove the charge of murder against Staini his taking part in burying the deceased and his failure to r.eport the murder to authorities were clearly calculated to enable Goodness to escape detection and punishment. I therefore find the second accused Staini slo Jalisi not guilty of murder and I acquit him of this charge, but on the evidence he is guilty of the minor offence of being an accessory after the fact to murder c/s 213 of the Penal Code and I so con- vict him0 20 N. S. Mnzas Prosecution: The second accused is a first offender. In miti9ofl Mr. Bwesha: My lord the second accused has been in prison since March, 1972 He has three hildren and an elderly mother to look after. H is a first offender. I ask your lordnip to treat him with leniency. Accused: I have been put in my present ptedicäment by my young brother, Goodness Sentehce: You.:de serve condign sentence your unblemished record 30 notwithstandin. You are sentened to five years imprisonment. Right of appr:al to E.AOCOAO explained. N . JLga_.J. Prosecution: Nothing known against the first accused. Allocutus: I have nothing to say. S E N T E NCE You Goodness Jalisi, you have been found guilty 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 hanging. /\ DODOMA N. S. '*0 Mnvas 15th September, 1975.