19770716 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (Dodorna Registry) CRIMINAL SESSIONS CASE NO. 111 OF 1976 THE REPUBLIC ye r su S ItBOALLA H MiAKA3tUMBULA CHARGE: Murder - contrary to section 196 of the Penal Code. J U D G M E N T PATEL, J. - The accused Abdallah Mwakatumbula is charged with Murder - contrary to section 196 of the Penal Code0 Particulars of the offence allege that the accused on orout the 14th day of September, 1975, in Mbeya Township within Nbeya Region murdered one Enasent s/o Ngalawa. This is yet another case of Porbe Club killing. The incident took place within Mbeya Township on a Sunday evening in the vicinity of Maende].eo Bar,Mama Sadiki's Bar and Mama Daudi's Bar. According to the sketch plan all three bars are within distance of 100 fet from each other. The accused, the deceased, one Emanuel Mpayo (P.VJ.1) and one Siboninke (P.W02) were among the many people who had gathered to drink pombe on Sunda the 14th September, 1975 2 in the evening. Emanuel Npayo was drinking at Mandeleo Bar Whereas the deceased and Sibonike were drinking pombe at Mama Sadiki's Bar. It was 6.15 p.m. when the deceased saw the accused from whom he demanded 'i tch. There vJas struggle between L'- ­­ iRprl Pnd the deceased when Sibonike took a stick and hit the accused with it and the accused ran away. From hereon there are two different versionz as to what happened. According to the Republic at about 6.30 p.m. the deceased and Emanuel Mpayo left Sibonike behind at Mama Sadiki's Bar and went 2- to Mama :Daudi's Bar nearby when the accused suddenly confronted them with a kniife. Oji the way the deceased and Emanuel ran away but the accused chased them and stabbed the deceased with his knife in the back just above his buttocks0 The deceased was taken to Mbeya Hospital for treatment and was admitted in hospital. He stayed there till 30/10/75 and on i/li/IS his father took him to the hospital at Iringa where he died in the night of 6/11/75. The accused in his statement to the police made on 3/1/76 said after he was beaten With a stick by Sibonike at Mandeleo Bar on 14/9/75 he went away and was arrested on 11/10/75. In his statement tothe police the accused denied having stabbed the deceased with a knife. The most important witness for the Republic is Emanuel Mpayo (P.W.1) who is the eyewitness,. He said on 14/9/75 he was driflking pombe. at Naendeleo Pome Club in the ev.ering wben he saw the accused and the deceased struggling with each other0. He saw Sibonike hit the accused with a stick and the accused run away. After a while both he. and the deceased left Sibonike went at Mama Sadiki's bar. and /to get pome stronger,pombeat Maia $ Daudis.pombe club nearby0 When they were about 10 paces. away. from '1ama, Daudi's Bar the accused sudnly confronted them and asked "Are you SibonikeV' Emanuel. shouted 'he has a knife' an&,both.he and the deceased ran away each in different direction towards Mama Daudi's Bar. While running the deceased fell on a log and the accused stabbed him with a knife on the back. above left buttock and ran away. Emanuel raised alarm, people gathered and took the deceased to the hospi.tal.at Mbeya., It was then 7.15 p.m. Sibonike (P.W.2) said while he. and the deceased were drinking pombe at Mama Sadiki's pombe bar the deceased saw the accused and demarided.from him a watch, and laterboth struggled. - . .. -3- I Sibonike said he tried to separate them but the accused slapped him so he took a stick and hit the accused on his back and the accused went away0 Later both the deceased and Emanuel went to Mama Daudi's pombe club to bring stronger pombe while p .m0 he stayed behind at Mama Sadiki's. At about 6.45/or 6.50 p.m0 Emanuel alone came back to him and told him that the accused Abdallah Mwakatumbula stabbed the deceased with a knife near Mama Daudi's pombe bar0 He then ran and saw the deceased walking away with much difficult and his hand on the wound on the back. He asked the deceased what happened and the deceased said Abdallab Mwakatumbula stabbed him with a knife. Sibonike then went ahead to look for a car to take the deceased to the hospital for treatment but by the time he came with a car he found that Emanuel had managed to find a motor car earlier and had taken the deceased to the hospital0 Leonard Ngaiawa ( P.W.5) the father of the deceased said he heard his son Enosent was stabbed with a knife and was in hospital at Mbeya so he went and asked the deceased what had happened and who stabbed him. The deceased replied Abdallah Mwakatumbula stabbed him with a knife. One Edward Mwakisambwe (P.W.7) who is a filing clerk with the Government hospital at Mbeya produced copy of a 1etter written by Dr. Matuja to the Zonal Surgeon at Iringa when the deceased was sent to Iringa and dated 29/10/75 in which Dr. Mutuja said the deceased was improving but due to lack of Radiopague the wound could not be X-Rayed and Dr. Paulov, the newly arrIved Surgeon at Mbeya only did digital exploration of the wound but did not operate on the deceased. Dr. Mutuja has now left the country for overseas and was not available for cross-examination, The Post-Mortem was done by a doctor at Iringa - whose name is not on record but he too has gone back to Holland and he too was not a'a1lable to give evidence. - 4 - Most important is that neither Dr0 Matuja nor the doctor who diá post-mortem were available for cross-examinatici and this was a most serious handcap for the defence and also to the court and assessors. However, one Dr. Nicholson gave his vie>s on the Dr. Matuja's letter (Exhibit P5) and Post Mortem Report though he had not seen the deceased nor treated him, but he did say that had the patient :een operated in time at Mbeya, the deceased would not.haye died. The accused in his sworn evidence s?id on 14/9/75 hc went to Maendeleo Club and he saw Sibonike (P.W.2) come with a stick and without any reason hit him in the chest and he ran away, and stayed at home for the rest of the night and did not go out. He said he did not report to Police nor to a leader of.ten houses because Sibonike was drunk and he thought they would talk if over later on. He was arrested a month later and his P..F,3 showeJ tha the blow of stick hit by Sibonike had broken his 6th rib on left sie of his chest. Mr. Mwakilasa for the defence ii. his address said evidence of Emanuel Mpayo should be treated with caution and the identity of the person who stabbed the deceased is not established. Mr. Mchona in reply said Emanuel Mpayo should be believ'd and it was etablished that the person who stabbed the deceased was the accused and none else and that the deceased died of injuries so received. He referred to section 203 of the Penal Code and Archibold on Criminal Pleadings, Evidence and Practice and also Russel on Crime and said that the medical treatment was given in good faith. He co;iceded that if it was thought that the accused was provoked by Sibonike who hit him with a stick earlier and was still under provocation when he stabbed the deceased then it would amount to manslaughter. - I have carefully considered the evidence on record and in my view both Emanuel Mpayo (P.W.1) ani Sibonike (7.J,2) were first 00 • 0 0/5 5- class witnesses and they gave clear, consistent and cohesive evidence even though they were severelly cross-examined by learned defence counsel. They were refreshincily truthful witnesses and the Court was much impressed with their demeanour. On the other hand, the accused when he gave his evidence was evasive, inconsistent and contradicted his own evidence at times. He first said he was hit by Sibonike once, then he said he was hit twice though only one mark was left - that is - broken nib on his chest and no mark left though he said he was also hit on the head and left forearm. Surely, if the one stroke of stick by Sibonike on chest resulted in fracture of 6th rib, the other two blows would have resulted in some injuries but P.F.3 of the accused showed only fracture of rib and nothing else. Again he was asked by learned State Attorney and both assessors as to why he did not report to police or a leader of ten cells that he wa hit so hard by Sibonike that it fractured his rib. He replied that he knew that Sibonike was a drunkard so he did not repeat it but went straight to his home and stayed there the whole night. He reported this to police after pne month when he was arrested. This explanation is ridiculous and naive that it cannot be accepted as logical and it is not accepted by this Court. Thus the Court accepts the evidence of Emanuel Npayo and Sibonike as truthful and credible witnesses. The evidence of the accused that after he was hit by Sibonike he went straight home and stayed there the rest of the evening is not accepted. by thi. Court and is rejected as a bundle of lies. This Court is satisfied that it was the accused who 3tabbed the deceased while he together with Emanuel Mpayo was on his way to Mama Daudi's bar to fetch stronger pombe. It is also proved that the deceased Enosent died as a result of injuries received by him due to the stab wound inflicted by the accused. The question now arises is that did the accused cause the death of th deceased . , , . . . /6 -6- with the intention of causing his death or is the defence of provocation is' open to him? For this the time which elapsed between the accused being hit by Sibonike with a stick and his running away and the time at which ie stabbed the deceased is important0 Also the distance from the place where he was hit by Sibonike and the place where he stabbed the deceased is important0 Here Sibonike's evidence is very important0 He said both he and the deceased were drinking pombe at Mama Sadiki's bar at about 6 p.m. And after a while the deceased left for Mama Daudi's bar to fetch stronger pombe and then he saw the accused and a fight ensued0 After the accused ran away Sibonike stayed behind at Mama Sadiki's bar' and both the deceased and Emanuel went to Mama Daudi's bar, to a distance of 100 feet away - to fetch stronger pombe, and at about 6.45 p.m. or 6.50 p.m. accused told him that Enosent was stabbed by Abdallah Mwakatumbula. So no more than half an hour elapsed. However, most important are the words uttered by the accused when he confrontd Emanuel and ,the deceased while they were on their way to Mama Daudi' s Bar. Emanuel Mpayo said the accused confronted them with a knife and asked "Are you Sibonike?". This presupposes that the accused havina been hit by Sibonike with a stick which resulted in fracture of his rib was still dazed, and was under much pain and was looking for Sibonike, and he reacted near the path leading to Mama Daudi's Bar, and he then chased them and stabbed the deceased as he fell down. ' Can it be said that when he stabbed the deceased he was still under provocation or had the time elapsed for anger, pain and confusion to pass away and he was normal? The learned first assessor said after the accused was hit by Sibonike he was dazed and lost control, took out a knife and asked "Are you Sibonike"? and after saying so he stabbed the deceased without' any intention to cause death. , . 0 0/7 -7- 1 In other words he said the accused was provoked by Sibonike and was still under provocation when he stabbed the deceased0 In legal terms what the 1st assessor said means that though the accused stabbed the deceased with a knife, he did so under provocation and had no intention to cause death of the deceased, meaning it was not a case of murder but a case of manslaughter0 Learned second assessor was a little bit confusech He said the accused was provoked as he was beaten by Sibonike and so he asked "Are you Sibonike"0 He then went on to say that it was dark and it was not the accused who stabbed the deceased0 The The later point can be explained .away if one remembers that it was the accused who was hit by a stick by Sibonike earlier and no one except the accused had any reason to be provoked and ask "Are you Sibonike"0 No body had any reason to await Sibonike on the, roadside that evening except the accused0 I have carefully considered all evidence on record including defence, time element, and all circumstances surrounding the incident and in my view the accused was provoked by Sibonike when he hit the accused with a stick and the accused was as a result It dazed, angry and hurt and under provocation when he asked "Are you Sihonike" and chased and stabbed the deceased0 In my view the defence of provocation is successfully open to the defence and it has been so established0 For these reasons, the accused is found not guilty of 'Murder' contrary to section 196 of the Penal Code, and is acquitted hereof but is found guilty of the lesser offence of 'Manslaughter' contrary to section 195 of the Penal Code and is convicted accordingly for 'Manslaughter' contrary to section 195 of the Penal Code0 N J. B. PATEL JIJD GE 0 0 0 0 0/8 0 0 -8- Delivered in Court this 16th day of July, 1977, in Mbeya in presence of the accused, assessors, the State Atorney and defence counsel. J. B. PATEL JUDGE Mr. Mchana: The accused is a first offender, but this is a very brutal case. Court should pass a stiff sentence - he should not take law in his own hands0 Mr0 Mwakilasa in mitigation: Accused is a first offender0 He has children to support0 He lost his father during childhood0 He has got an aged mother to support. He broke his rib - He has been in remand for 18 months; Let Court be lenient to him. COURT: The accuscd is a first offender and has been in remand for eighteen months. However,, it was a lethal weapon he used and with much force and a man died as a result. It was much too in excess of what the circumstances could justify. After considering all factors, following •sentence is passed. S E N T E N C E: Accused to be imprisoned for six (6) years. J. B. PATEL JUDGE 16th July, 1977