19750920 TZHC Iringa

IN THE HIGH COURT OF TANZANIA t _c_ AT IRINGA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE No. 133 OF 1974 THE REPUBLIC versus MALIYATABU MBENA CHARGE: Murder c/S 196 of the Penal Code. J U D G N S MNZAVAS, J. The accused Maliyatabu Mbena sfanls charged with murder cls 196 of the Penal Code. It is the prosecution case that the accused on or about the 3rd day of August, 1971 he of malice aforethought, killed one TUMUNINILE t'O SEKIPAPI. The accused admitted killing the deceased but pleaded that he killed her in self-defence0 The following facts were not at all in dispute: The deceased, Tumuninile c'/o Sekipapi was r'.arried to one, Daud Mangula (Pw8) but at tbc ti-mu she met her death they were living in separation,. According to Daud's testimony their matrimonial friction was caused by.deceased's infidelity0 at The deceased went to live with her parents/Mtwango 0 While there she met the accused with whom she lived in concubinage0 News reached Daud (Pw.8) that the deceased was living with the accused and he complained to a cell-leader and later to the local conciliation boardbefore Which he demanded th the eccused be ordered to refund him his dowry0 The conciliation board ordered the deceased and Daud to attend the board on the following Saturday with their parents0. The accused was also ordered to be in attendance on that day. It is also not in dispute that on 3/8/71, a Tuesday three days before the appointed day, the accused and the deceased went to drink pombe at the house of their cell-leader. They went to drink pombe at about 10 a.m. and they returned hofne at about 5 p.m. According to the evidence of deceased's two children Ernest (w.1) and Samwel (Pw.7) when the accused and the deceased returned they (the children) were outside the house. Ernest was cz--ping firewood while Samwel was playing. ./2 • 2 These two witnesses testified :o the court that about half an hour after their mother and the accused had entered the house the accused came out holding a blood-.stained panga and told them -"Go :ind call the cell-leader as a I hve ileU your mother 0 t Sipilinjunrju (P'm,7) s o: :tated to the court how deceased's chilron (Psi1 r- ) to'd l ier wha`_- had happened and how she, accompanined by thei: i.leader, visited accused's house0 Acccr i.i.:q to her testimony on entering the house she saw her sister lying on the ground dead with a cut wound on the jaw which exposed the tongue 0 It was her testimony that near deceased's body was a hammer and a club 0 The ceLLleade: Pw0 3 gave similar evidence as Sipilinjungu (Pw02)., He also told the court that the deceased had a cut wound on the jaw and that there was a hammer lying near the dead body 0 Both withesses (Pw02 and Pw, 3) told the court that there were no sings of a struggle in the room, The d-"cto:: (Pw09) told the court that the deceased died from severe loss of blood and shock Ac.ordinj to his evidence the deceased had her occipital bone chopped off E.s wel' as her left mastoid and the atlas0 The deceased had also a transverse cut wound on the left mandible and that the cervical spinc was almost severed 0 It was his view that these wourds must have been caused by a sharp instrument and that considerable force was used in inflicting the wounds 0 The doctor also told the court that he also observed a small roundish swelling on deceased's face and, on being cross-examined by the court, he said that this wound could have been caused by a blunt instrument like a hammer0 Obel Nwamfupe (Pw010) a Justice of the Peace recorded accused's extra-judicial statement0 As there was no objection by the defence for its production as exhibit; the statement was admitted as "exhIbit F"O Both in his extra.-judical statement and his unsworn defence the - accused has admitted having attacked and killed his "wife". According to his defence when he met the deceased and decided to live with her , he bought her house-hold utensils, clothing and two bags of maize0 He also ploughed an acre of land for. her0 It was his defence that after two months the deceased started telling him that prior to her meeting him. she had another boyfriend0 The accused asked the deceased why she had made him spend a lot of money on her while she knew that she had another man0 He, according to his deence, all the sanie continued to live with the deceased in concubinage. The accused told the cour€ that on another day the deceased told him that she had decIded to returti to her former husband.. It was his defence that on the day of the incident he and the dec3ased returned home at about 5 from a cell-leade.rs house where p0m0 they had been drinking pombe from 10,am. According to his story when they g.t into their house the dceased said to him: "You my husband, you always complain that you have lost your property because of me0 To whom did you give the property? If you gave it to my parents you ask them to pay you0 We have seen many property getting lost not only yourS" (s f) It was his defence that because/this language by the deceased it showed that she despi.zed him and that he lost his temper and pushed the deceased who fell down0 The deceased collected herself up and, according to accused's defence, she picked a hammer and tried to strike / 3 - him with it but that he snatched the hammer from her and struck her on the head and the deceased fell down and died on the spot. He then got out of the house and told the children (Pw.1. and Pw.7) to go and report to the cell leader that he had killed their mother. After my summing up to tho geitiemen and lady assessors, the first and thi±d assessors were of the v that the accused killed the deceased after the later had provcVd him. The second assessor was of the opinion that the accused was guilty of murder as charged. The learned state attorney argued that accused's story that the deceased was about to strike him with the hammer (exhibit C) when he attacked and killed her was an afterthought. It was argued that the accused had decided to kill the deceased because he was annoyed by her decision to leave her after he had spent so much money on her. It was also argued that accused's defence that he hit the deceased once with a hammer was lies. In support of this arçumntthe evidence of the two children (Pw.1 and Pw,2) and that of the doctor were referred to the court. It was the Republic submission that the accused killed the deceased in revenge and that there was no provocation within the provisions of section 202 of the Penal Code to reduce the offence charged to one of manslaughter. V In rebuttal the learnd defence counsel urged the court to accept accused's defence of provocation cum self—defence. The decisions in SELEMAN S/0 USSI v REPUBLIC (1963) E A 442 and CHACHA s/o WAMBURA v R (1953) EACA 339 were quottei, V In this case there is no evidence, apart from accused's defence as to what happened while the accused and the deceased were in the house prior to accused's attack on the deceased. The first and third assessors believed accused's defence that the deceased uttered to him what he said she uttered and that such utterances of the deceased/accused would haie provoked an ordinary Lto the Mhehe, V V The question of provocation is ) aE rightly argued by the learned defence counsel, ordinarily one of fact. The two judges of facts were the opinion that the accused was provoked by deceased's utterances. Speaking for myself I found it very difficult to sy whether accused's defenc of provocation was or was not credible. Had it not been for the fact that his defence of provocation was not V effectively challenged by the prosecution,. I would have been inclined to accept the second assessor's conclusion that accused's defence of provocation was unreliable. Dealing with the question of burden of proof where an accused had raised a defence of provocation the Court of Appeal had thud to say in R vs LORENTI OKELLO s/0TANGILE, (1937) EACA 33; V "Where a plea of provocation is set up the onus upon an. accused is no more than to create in the mind of the cotr€ a reasonable doubt as to the truth of his story." In a later cas,2 the Court Leld: "An accused does not have to prove provocation but only to raise a reasonable doubt" - R v JUMA MAFABI s/o WABISINA, (1945) EACA 45. V . . , , .14 - 4 - .Ta1ing into account the above decisions by the Court of Appeal and the two assessor's opinion that there was provocation of the accused by the deceased when the former killed the later I agree with the learned defenee counsol that the serious charge of murder against ife accused has not bee proved beyond zasonable doUbt ' Even if, for the sko of argi - this Court was to hold that there was no provocation of ccued by the deceased, there is L -the question of seldefence to be Considered . Accused defence that the deceased was about to strike hirii with a hammer when he r4 etaliated by snatching the hammer from her and .strikiñg her to death was only effectively rebitted to the extent that the adcused attacked the deeased not with a hammer as he alleged, but with a pahga0 Accuseds defence that the deceased was about to strike him with a hammer when he attacked and killed her , was in no way challenged by the prosccution. Indeed the fact that a hamhter (exhibit C) was found lyin; near deceased' s body tends to support accuseds defencC, - - if acCused's story of self-defence that the deceased was about to attack him with a hamn-.: - 'n h. ~ zi11ec1 he: is to be accepted as truthful D and as I have already monion we only have his story In cOnnetion with what happened in the house this court cannot, without doing an injustice to the accused find him guilty of the serious offence of murder0 On the facts the court is satinfied, as the two assessors are, that the killing of the deceased by the accused cannot amount to the serious offence of murder0 He is accordingly acquitted if the offence of murder, but on the evidenco, he is convicted of the lesser offende of manslaughter. (./s 195 of :he Penal Code0 Yt / Ni. Nnzavs Judge. Pros: The accused is a first offender. In Mitition Mr0 Bwesha: My lord the accused has nineteen children. He has three wives and he has been ia remand since December, 1972. Accused: I have nothing to add. 4 ntence: This is a bad case of manslaughter. Accused deserves condign sentence his previous unh].emished record notwithstanding. 4 ., He is sentenced to 7 years imprisonment0 -\ NO Mnz'vas JuUgc.. I RI NGA 20/9/75.