19761112 TZHC Iringa

IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGI MAlI JURISDICTION CHITMIBI S/O NOSES CHARGE Murder c/s 196 of the Penal Code. J UD G. E N T MA°IGAJQ.,, J The accused Chitamb. s/o Noses is charged with murder under section 1 96 of the: Penal. Code.. The, allegation is that he : throttled one woman called' Anadiad/o Walasi to death back in .1971. He has flatly denied that allegation throughout. The accused is a Zambian national and at the material period he was an employee of TAZAA and was stationed at a camp in Njombe district. On 29/11/71 he ogether with his four fellow employees left the camp and went o a nearby village to drink pombe. It is alleged that on. his way back to t. camp he chased the wothan; 'caught her and then'111. ottled her to death. He was arrested on the same day and afte the police investigations he was brought to court on the C rge. Several witnesses have given evidence foi the prosecution0 It may be convenient to start with the testimony of PW.5 Salome • "• .. ' . Petro. She was in the comny of Aàdia when this incident started. Sho said that they were proceeding to a well to draw water in the afternoon when she saw five men standing at a distance. In another moment she saw one of them coming running towards them. Apprehending danger, she and Anadia ran away in different directions at the same time raising the alarm. She herself ran towards a house belonging to PM 2 Vu.milia while .lu-iadia ran towards the bush That man whom she later recognised as the present accused person pursued Anada. She then went to inform PW4 Petro Upamba, the husbarfi of Anadia, as to what was happening She later saw Petro chasing the accused from the bush. PW.2 Vumilia oonfirmed that she saw ,. man chasing the two women in that afte'rnoôn. She aJ.s'o confirmed that ,PW.5 .Salome rra., towards her house th'ile Anadia ran rt owar d & , ;tho; bu9 h. She said she saw the man following Anadia and thai1 at that stage 2 - she also raisd-n alarm0 She said she saw and observed the àn and claimed that ho was none other than the accused. The evidenceo T4Petro also tallies with that of PW5 Salme,;:H sbäted that he had gone to work in his shamba lavinghisiifAnadi. in the company of Salome. Later Salome ce•-telate to him the unsettling news that a stranger was chas>nadia towards the bush0 Together they rushed towards the drec -t -'on where Aj3clia had. fled to He said he happened to Thee aman lying on top.of a woman and he approached them stea- lithly0: 2But when he v -as about six paces from them the man saw him and quickly sto.pd up and started, to flee. He chased that man and aiigh•t'i with him beor-hereached his colleagues. He grabbed him while raising alarm, ther villagers came and took him tj. thor.e:e woman was lying, They found the woman Anadia alrac1y dead, They then tied the man, the. accused, with a rope and sent fo Ic police PW.3 1Igute who answcrerlthe alarm and cald at the scene fbund the accused in the custody of Petro and bther villagers. He also went to see the dead body of Anadia in the bush. He Said that he observed that her cloths were still intact. And .PW.6 constableEdward who visited.the scene also.confirmed that •.the dead body :vas lying in. the hush0 He drew a sketch plan ef the arc ama io.ud appear "it he culprit started chasing ..the.two women in a built.up area. The constable took the dead body to Kihona. Goveramnt hospital where after thd usual iden- tifIcation it ias examined: by Doctor L. . sa 'i 1/12/71. The doctor oborved that; the deceased thad bled from the nose and .,iputa and, that tho.oycs were black and. the..tongue protruding. He also observed bruises on .the neck and: afracti,red cartilage .d±' .aryn0 He sta', that ho.. cUd not deloct any sign-of rapee Ho attributed the . death to asphyxia0 As .memtionedat thebeginning, theàccused has consistently completoly.,..denied. iiat he was involved ft the crime .- He has given evidence on oathdenying.thathc:chased any womafl, let aLQno the deceasGd and cJaimin that he did not 1 know the cir- o.ustanco.s und.er whichthe wOman died0 He stated that he was .proceoding.to the camp from the' pombe shbpwith his colleagues who.n..-a group pe,plocemé to themard set uponthem with stick. They accused him of haviiigkilled a woman and he ws very sur- prsed...Ha denibd'theacctistion. The..crowd.tiod.him with a rope and t1 en led him to the place where the dead woman was lying Later, he aLd, police came to the scene and after some inter- rogetion took him to Nj ombe police station. He contended that 4 . he,waQ arrested on mere. suspicion and that tae.prosecution wit- o... - - ness who implicated him were all..Jying... It is doubtless that Anadia died an unnatural death on 29/11/71. I would agree with the -evidOnco of Dr. Kyendoya that she was throttled in the bush aiil th at she died of asphyxia caused by violent pressure on the neck affd throat. The main questions in this case is what led to her death i.e. in what circumstances dId she dIe, and who in fact attacked her and caused her-death. - The prosocutionJevidence which connects the accuèed vith this deathis,..inrny'bpinion, quite formidable.. As shown, there is first the tostimohy of PW.5 Salome. Her evidence points to the accused as being the deceased' s assailant.. Her evidence as it were .cOrrd oatea.or is corrobo.ated by that 0±' Vumilia and most importantly by that of Petro. Tt the evidence of these three witnesses is true, then in, rily opinion the issue of identi- fication cannot arise, it being not n daspute that the incident took place in broad day light. As I have emphasised to the aesesors the question wItheF or not taccused was the assailant boils dbwn to a question of cr.bility of the witnesses. The two assessors are in effect of the view that the three prosecution witnesses, Salome, Vumilia and Potro, were truthful on tIt point. WrLh duropect, I think they are right. I would believe thoa ,. :andreodt the ,accu's vehement contention tha-t he was appro- on more suzpcion. I satisfied and I find that i uas none but the accused person who inflicted the iurie which caused tho death of the deceased woman. The difficulty whith I feel in this case is.vith regard to the question of ma]ice aforethought. Ordinarily malice af ore -thought I would be inferred from a proved intention to cause death or gric- • vous harm and that normally entails the ascertaining of the events which led to the assault and the nature and degroc of the force used by -tho ssatlant to inflict the injuries under question. The prosecution has hower present6d this case as one falling under section 20 (c) of the Penal Code uhich provides • that:maJ4ce aiorethbught hll be deemed tobe establi.shed by evidøne pDoving an intnt to commit a felony. It has beenargeed by - th..prosecutioii, .in. substance, that the evidence as a whole shows that the acusd caused the death of the woman.in the caurso of attempted rape;and that in so far as atteptéd rape :-.is not . only a felon.y but a felony Involving, i-nvariab1y some , violence, • the accused . must, undôr The -irovisions of the Penal Code referred to above, be deethed to have killed.the deceased: wOmanof malice aforethought. I 'ouid agree that if -the--accused- caused the death in those circumstances, then under the law he will have to go in for murder, and nothing will afford him a defence in this case. . . . .4 - / 4 The prosecution' 8.1 asaertion that the death was perpebrat_d n the course of attempted rape is, in my opinion, quite force:Ll and attractive. Little wonder that it has found favour with 1h asëssors. There is need, however, to reflect more profoundly over tha question whether the evidence is consistent only with the accused having wanted to rape the deceased woman. It ..trüe t1t the fact that the accused chased the woman •àndthe .fct that he was found lying ontop of her in the bush tthids to. uggest that he wanted to ravage her sexually. And it is quite. tempting to think that the prèsure on the neck and • . throat which Oau.sed the asphyxia was primarily meant to stifle I.cr cries pid ove'come whatever resistence she put up. mus±, however, conidor the other circumstances of the case to see thether they. raise an .irresisibië inference that the accused was Engaged in committing 'the.. felonydf attempted rape' Thereisno doubt that the circumstancesebizarre. Accord.g to.Salome, the accuseda1l of a sudden started chasing them and from : the sketch maphthwas later::drawn byConstable Edward it would appear that - he deceased woman coiered a distance of at least 500 yards beforeshe was caought by theaccused. As pointed out, the whole thingstarted in a built up area and thei'e were at least three pe.olo raising the alaim. Salome later went to alert the husband of thedceasd who ran to the bush to rescue her. He found the accused lyion top of her. No intercourse had taken place. Indeed,it would appear that the accused had not even • . started to takeoff or tear her clothes and he himself was still as fully dressed. as he was before he started to chase the woman. Yet, by all indications there was an appreciable lapse of time between:his grabbing the deceased woman and the arrival of her husband.. . The wholeideathat the accused pursuedthe deceased woman in order to have a forced sexual intercourse with her to me • appears to be somewhat incredible, given the circumstances described above. In other words, Ifind it inherently risky to believe that a normal person like the accused intending to do sexual outrage upon a woman wuld go about it ':âo opxily and, what's more, when not only the intended victim buttwo. other persons are alerting the whole village bymaking aJarm erie a. On top of that there is also the fact that the accused had net made the obvious final preparation to commit rpe, thoigh, as observed, he had sufficient opportunity n.pdJiat Ôf time to dc that I am therefore far fron certain tlii he was in the, cdurse of prosecuting rape. • . •. . 5 - I think that maybe ±horo was another reason thich drove the accused to chase the doceased ç.nd to assault her as ho did. It is not impossible io imsgine th.t SaLome,or one roason or another, has deliberately refrained from divulging what actu 1] preceded the chase it i' also not impossible to imain that wilUngly IC1 gj accused. choc,e not to discioso what had transpired immadiatelr before the chace. The chances arc. that the ihace and the assault, uitawful as it vtas, might have been bronght about by ah angry exchange of words between the accused and the deceased. I am th tr,e,.,.irc1nód to hold the charitable view that the evidence does not eliminate 4s a roasonaiTL. hypothesis that the accused killed the deceased woman by an unlawful assault which had nothing to do with rape. . The medical evidence is insufficient as regards the degree of force used in. thro - .tling th deceasod woman. The assessors of the same view and it i principally for that reason that tho have advised that the offence committed was not murder but manslaughter - though they had found that the accused the death in the course of committing attempted rape. Like theth I am, on the evidence bfore.rne, unable to say that the ±orco used was so extreme as to be consistent only, with an intent to do grievous harra, "... ., In conseonco, I find the accused not guilty of murder but guilty of,nia1aughter under section 195 of the Penal Code, for whic,h he is convicted. Proiioihcd court 0 Mr. Lyimo for the Republic. Mr. Mwakingwo for t-he acused. Accused in cart. D. P. Mapigano 12th November, 1976 Judge Mr, Lyimo: First offender.. Mr. Mwakin Accused is Zembian Tation. Away from his country and family for five years. For all those years he has C".rr'tances been in remand prison. L attending the offence do not call 1or severe sentence. I ask court to pass light sentence. Accused: Nothing to add. Sentence: Surely the despatch of justice in this case evokes anxiety and sympathy in favour of the accused. But it must be noted that the apparent inordinate delay in trying the accused was . . . .6