19761008 TZHC Iringa

ii • -•33 - IN THE HIGH COURT OF TANZANIA AT IRINGA LrCS ( A. C. A. CRIMINAL APPEAL NO. 100 OF 1976 ORIGINAL JURISDICTION (DOD0iiA REGISTRY) CRIMINAL SESSIONS CASE NO. 15 OF 1976 I THE REPUBLIC VERSUS EVARISTO S/O KIKOTI M U R D E R c/s 196 of the Penal Code. JUDGM E NT MWESIUMO, JUDGE. In this case the accused person, Evaristo s/o Kikoti, stands charge, on information with murder contrary to section 196 of the Penal Code, it being strongly contended by the prosecution that the accused person on or about the 27th day of March 1975, in Iringa Region, murdered one Kassian s/o Chura, Before this court the prosecution produced ra withesses. I have reviewed the evidence at some considere able length .' when summing-up to the two gentlemen assessors and therefore' I shall not in the course of this judgement dwell at length io on the facts of the case except as is necessary and relevant for the decision of the case. R The fact that Kassian s/o Chura is dead and that he died .a violent death there is no dispute as concededly pointed out by both, the learned State Attorney and the defence counsel and indeed as admitted by the accused person himself in his sworn statement before this court. This is also supported by the Doctor (P.W.1) one Michael Menard Mwakajila who conducted a post-mortem examination on the deceased and who later on testified before this court. • 20 to the effect thatthe de.ceased • • .. sustained his death due to shock following haemorrhage, caused, .posibly by a sharp instrument such as a knifei , spear or.arrow e In fact it turned to bea fact that the deceased died due to a stab-wound caused by the accused person who admittedly used a 3aiife in so doing. The post-mortem examination report was tendered as- Ec 1, I. - 34 -. According to the Doctor's further evidence he also had examined the accused pers?n a fw days after his arrest and he had found him mentally normal and he tendered the P.F..3 in respect of the accused person as "P. Ex. 2" The only question that calls for any serious discusiori and determination in the instant case is whether the admitted killing of the deceased by the accused person amounts to murder as charged or to a lesser offence such as manslaughter or the said acts amounts to no offence at all. The prosecution vigorously contended and submitted Me that the act by the accused person that led to the demise of the deceased person in those circumstances, amounted to murder as charged0 It therefore becomes apparently necessary to review the law on murder and then relevant evidence in this case to see what decision this court should arrive at. As I pointed out to the two gentlemen assessors murder can be defined as the ithlawful killing of a human being, in the peace of the Republic, by a person of sound memory and in other words according to section 196 of our Penal Code: 20 "Any person who of malice aforethout causes the death of another person by an unlawful act or omission is guilty of murder 0 t' In this case it was evidentially deposed that the deceased Kassian s/o Chura and the accused Evaristo s/o Kikoti were neighbours living in the same village of Changarawe in Mfindi District within Iringa Region, Kassian was married to a woman called Catherine d/o Seng'ong'o (P.W.3). S on the 27th March 1975 one Atilio John Chura (P.W.6) who is the nephew of Kassian because Atilio was the real son of Kassian's elder brother one John Chura, paid a visit to the 3° house of Kassian s/o Chura (deceased) at about 2,00 p.m. and found both Kassian and his wife Catherine at home. Then Kassian asked Atilio to accompany him to some place to sell charcoal which they did and then came back to that house together. Thereafter Atilio informed them that he was going out for a walk to visit Burton Chura's (P.W,4 1 s) home. After some short conversation it was agreed that Atilio could take with him a radio of Kassian for that short walk and Kassian instructed his wife to hand over that radio to Atilio. That was done and as a result Atilio walked away with that radio. 40 According to Catherine's evidence which materially is supported by Atillo's admission in his evidence, the said Atilio did not bring back that radio as soon as expected and therefore at about 4.00 p.m. Kassian got imçatient about that delay of the return of his radio and he started following Atilio for it. 35 — After sun-set Kassian met AtiliO who was then in the company of Evaristo s/o Kikoti at a road or route-unctiofl and' the radio was in the hands of AtiliO. js to what happened at that route-junction we have the version of Atilio and another of the accused person. According to AtiliO's version, when Kassian met them he snathcd the radio from Atilio whom he also pushed and asked why he had been late to bring back his radio. In response thereto Atilio assortedly apclogized and told him he was late because he was going around drinking some local liquor commonly known as 10 "ulanzi"(lDernboo taped wine) and then he bid him fare-well and proceeded homewards but while Atilio was still there there was no exchange of words or even greetings between the accused and the deceased. According to his further evidence Atilio understood the words •of Kassian as a justifiable repremand because he (Atilio) was th±staken in delaying to return the radio and as he was Kassian's nephew he being the son of Kassians elder brother the said Kassian had customarily a right to administer a word of repremand on that young relative of his. jti1io further testified that when Kassiafl pushed 20 ktilio the accused just kept quiet and the accused never protested against Kassian's push on Atilio0 According to the accused's version which is in his sworn statement of defence, on 27/3/75 he met Atilio sb chura near the house of one Musa. Atilic had a radio in his hands and while the two talked they walked together from about 5.00 p.m. to 9 p.m e and at one stage during that S period they met the deceased who snatched the radio from Atilio and boxed Atilio who then started running away. The deceased then branded both of them as thieves of his 30 radio and boxed the accused whom he also assertedly insulted. repeatedly saying: "This radio has not come from the vagina of your mother where you come from!" The accused person •then assertedly replied that human beings do not give birth to radios but to human beings. The accused then followed the deceased keeping a distance of about 18 steps behindhim (deceased) who was still insulting him (accused) and after some time the deceased stopped the insultive words and proceed towards his home in 40 silence. The accused person followed him up to his (deceased's) home where on arrival he knocked at the door of the house of the deceased who asked who that person who was knocking the door was and the acused person identified himself and when further asked why he went to that place he replied that he wanted to be told the reason why the deceased had beaten and insulted him. - 36 -. Then the deceased asked wheth r the accused still wanted him and still wanted to grab his property and then the deceased opened the door and went out where he immedi a tely: hit the accused with his fist. Then Catherine, the wife of the deceased took a club and.hit the accused with it when the accused was already down as a result of the blow with a fist allegedly administered on him by the deceased when he, the accused, got up he stabbed the deceased with a knife and then the deceased ran' and accused went to his home where the villagers caught him and took him to the police station where he was 10 ar. The accused denied to have taken any' "pombe" on that day and that according to him that was his first time to walk along with Atilio. When cross—examined by the learned State Attorney the accused replied that the deceased had not said why the radio was still with Atilio and he attributed this change of his story to an alleged slip of the tongue and then he said that what actually the deceased said was branding them thieves of that radio and he further disclosed to the court that he does 20 not know the meaning of oath0 The accused person attributes his act of stabbing the deceased with a knife to anger arising from the alleged insults right from the scene at the road—junction and the feeling that he was in danger of being killed at the home of the deceased.. In short the accused person is advancing the defen'ce of provocation, sef.defence and a killing arising from a fight0 At one stage in the course of answering questions in 30 cross—examination the accused person stated:: "we drank pombe though I said,,we had not drunk pombe" And then at another stage he stated::' "At first I was mistaken. , I j,ust spoke recklessly.' I have not told lies here in court." Another witness whose evidence is also very important for the determination of this case is Catherine d/o Seng'dng"o (P.W.3) who materially testified to the effect that on the date in question, 27th March 1975,. soon after the arrival of her husband (deceased) from where he had gone to retrive his radio from Atilio, then the accused called at their house '40 and knocked the door at about '.00 p0rn, and the deceased asked who it Was and accused identified himself by mentioning his name and when further asked why he was calling at their home the accused replied he was following the radio which the - 37 - deceased had snatched from the boy, Atilio. To that the deceased assertedly (by P.tq.3) replied he had taken the radio from his son, meaning his elder brother's son, and added that accused had no concern with that matter. Then suddenly the accused went in when the door was already opened by the deceased and he, the accused, stabbed Kassian with a knife while both were inside the house in the presence of P.W.3. He stabbed him on the right side of the neck at an angular position. P.W.3 immediately raised an alarm to which neighbours including Barton s/o Chura (P.W.4 deceased's brother) and 10 William S/o Kikoti responded by rushing towards the direction from which the alarm was heard and they met the accused who was running towards them and they got hold of him 3 The accused was subsequently taken to police officers who preferred the charge against him and ultimately they took him to the temple of justice (court of law) where he is now standing to receive justice. It is on this evidence that the Republic is strongly contending that the accused is guilty of murder and has ruled out any defence of provocation, self-defence, or a killing 20 arising out of a fight. On the other hand the defence is contending that either all the three advanced defences are available to the accused, or at least one or two of them can. be availed by him. I outlined the necessary elements of murder to the Gentlemen assessors and posed a number of question in the light of the defences raised by the defence in this case. At the end of my summing-up to the two Gentlemen assessors each of them voiced his opinion on the case. They concurred in their opinion in that both of them found the accused 30 person guilty of murder and they clearly stated that the accused had no cause to be concerned over that radio and on the evidence they found it as a fact that the deceased did not insult or beat the accused at all. In other words both Gentlemen assessors were of the opinion that none of the three defences raised by the defence were available to the accused person. The issue in the instant case, as I pointed out to the two Gentlemen assessors in my summing-up is purely that of fact and it rests squarely on the question of credibility of the 40 witnesses who have testified before this court including the accused person himself. 1 1 as did the two gentlemen assessors, do find the accused person as a shrewd liar and indeed in his version he \ - 38 •' was shifty and inconsistent so much so that what he has advanced in court is a pack of obvious, blatant and naked lies. However, it must be remembered that it is not upon the accused to advance let alone to prove his innocence but throughout in a case of this nature it is upon the prosecution to prove the guilt of the accused person beyond all reasonable doubts. I found Atillo (P0W66) and Catherine d/o Seng'ong'o very credible and consistent witnesses and indeed there is no 10 substrntiated reason why both of them should in a concerted action frame up the accused against Whom they had no grudge at all0 As regards the three defences raised by the defence I shall first deal with provocation which is a statutory defence provided under sections 201 and 202 of our Penal Code0 Section 201 which creates the defence to the charge of murder provides: 11 201: When a person who unlawfully kills another Under circumstances which, but for the provisions of this section would constitute murder, doe.s the act which 20 causes death in the heat of passiori caused by sudden provocation as hereinafter defined, and before there is time for his passIon to cool, he is guilty of manslaughter only. 202: The term (provocation) means and includes except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or In the presence of an ordinary person who is under his immediate care, or to whom 30 he stands in a conjugal, parental fiiio or fraternal relation, or in. the relation of master oz.etvant, to deprive hIm of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult by whom the act or insult.is done or offered.' In the instant case the accused person alleges that the deceased repeatedly insulted him from the road-junction by words: . 40 ftThjs radio has not come from the vagina of your mother where you come £rc' The accused then steadly followed the deceased keeping a distance of 18 steps behind him up to his home (deceased's:home) and the deceased allegedly stopped the insultive language after a distance of 150 steps and for the remaining 200 steps up to his home the deceased, according to the versiQn of the accused walked in silence. If that be taken to be what actually transpired and believing for a moment for argument's sake that the accused who admittedly had that knife with him all that 50 39 time then one wonders, if at all he was provoked, why he did not strike at the sour of the mement. Instead he steadily walked behind the allegedly insulting man till the latter safely reached his home. Then much later on the accused thought of going to confront him for an explanation as to why the deceased had boxed him and insulted him. To me, as was to the two Gentlemen assessors who come from the community from which the accused hails, that act was more consistent with an act of revenge, if at all he had been insulted and boxed, than an act arising from loss of one's self-control due to provocation0 10 Indeed as far as the issue over the radio was concerned the accused had no justifiable cause to he concerned with it. The main element in provocation is the sudden reaction which causes such an .overpowering emotion ..as to deprive- the 'ac-cused..person .of self-control. which itselfimust. be judged by...the standard... of an ordinary person of the community to. which, the accused person, belongs. - ' .....On this defence of provocation the.learned State 'Attorney, Mr. Alimwikc, referred thi.scourt.. to"two"cases Doto S/0 Mtaki v€ R (959) E.A. 860. 1. and Yovanv. Ugand.a (1970) . E.A. 405, and 20 this court has gone through them and desires to register its -. gratitude for the great güidence - this-court 'has derived from the contents of those, two decisions, both of waich are...by the .Court of Appeal for. .Eas.t Africa, On the facts of. this case" this.. Cou'rt respectfully agrees with' the concurrent..'opinjonvjced by the two.Gentlemen.assessors that. the.def.ence of. provocation is not-available. to.the.,accused person.... •. . . .Now to' the defence -of self-defence. --Again to resolve 'this isue'the . Court has .tolook 5to the evidence-in its totality. ' 30 and. as. I had pointed herein earlier I found P.W3, the only eye- witness to the,,incjdentcrecjjble and on her 'evidence I find it as a fact that the accused was not attacked at,.,the home -of th..deceased. Medical, evidence as per P.F.3 tendered as ' .' . "P EX. 2" tends to,.lend support to. this finding,,ie.was the, aggressor having come the whole way, torcvenge upon the-deceased for..having deprived him and Atilio of that-radio. Under the circumstances- .of the, case the revenge was unjustified. i he was not attacked what. was. he., defending himself from? - Tc .me this - defence clearly .seems,.to be.an'afterthought. '40 .1 thus also 'find that the defence of self-defence is not available to the accused person,- On the. strength of the evidence.I also find, it as a .... fact that there was no. fight between the deceasad and' 'accused before. the latter stabbed the former to death with aife. 40- There being no other defence •available'* to the accused person, I q as did the two Gentlemen Assessors, do find the accused person guilty of murder and resultantly I convict him of murder contrary to section 196 of the Penal Code as charged, • Delivered in open court at Iringa this 7th day of October,. 1976. E. A. MWESIUMO JUDGE 10 Order: Sentence reserved till to-morrow at 9.00 a.m. 8/10/76 Corum: All present as before 0 Mr0 Alimwike, S. A. My Lord according to the record the accused is a first offender 0 yamaD.C. 20 My Lord the accused has been convicted of an offence for which I do not have much to say. I have only one comment that he is a young man and could have served this nation0 Sentence: Evaristo s/o Kikoti, you have been found guilty and convicted of this serious offence of murder for which there is but only one sentence and that is you will suffer death by hanging. May God have mercy on your soul. R/A to Court of Appeal expained. 30 E. A. MWESIUMO JUDGE 8/10/76 Assc-ssors thanked. and discharged. For. Republic: Mr. Alimwike, State Attorney, For Accused: Mr. Manyama, D. C. from T.L.C.