19780517 TZHC Dodoma

IN TEE HIGB COURT OF TANZANIA •' AT KO11DOA ORIGINJ.L JURISDICTION (D0D0IVIA RGISTRY) * CRIMINAL SESSIO1'iS CASE No. 115 OF 177 THE REItmLIc versus ISDORI S.10 AI,PONCE CHJRG: MURD2R c/s 196 of the Penal Code. * J.0 D GM E NT ' 10 ITHMT; J , ISDORI s/o ALFONCE is charged trith murder. c/s 196 of th Penal Code, t10 'particulars of which allege .t1at on' November 8. 1976 he mur,dorecl'oho'GENESIA S/OKIMOLO.' This Information' is denied. The womanJSUA'd/o K1MOLO is'in fact dead. Doctor • SEMPINDU both in his report of. post mortem exminat ion and in his oral testimony 'gives the cause of the death as asphZtia as the rsult of a large ciot of' blood prOSSiflg against, the brain. As the basis for this,' opinion, he obsorod a 2' 1cratd wound measuring 1+ x" 'on the vault of the head, underlying which was a 'fracture of the skuJ.I about 4+" long. •: Below this fracture was a subdural 'haoma'oma iros sing against the brain tissue. The lua:s.word, found to be blue, to suggest the Injury to the brain, had. resulted in suffocation. We have no reason to disoroo with hi opinion and, according'l'y, that the death resulted from a' blow aplied to the vnult of the head, thereby giving rico to a' fracture of the underlying bone and a rupture of blood vsscls in the kull.ard the ultimate damage to the brair. Apart from.thc fatal injury, it is 30 pertinent to. add," there wore bruies around the loft eye and face and abrasiois on both knees. About the only issue in this case is: who caus the fatal injury? The prosecution has 1 blened it solely on thO accued. The accused was the husband of the deceased and they had had very many years of such union, and I learn from the accused it had been blessed with both children and grandchildren. On the morning of November 8, 1976 the deceased was found in their native village having the injuries described by the doctor and taon to hospital whore she died on thc sono day.'Tho prose— 40 cution case that the accused was the person rcspone±blo for her I death rests almost wholly on a dying declaration reportedly made by the decoased and on'an admission tllogodly made by the accused. - - How did it all happen? According to 1A'i.2 ALBERT SYLVESTER, a neighbour of the accused who had only recently come to live in that village with the deceased, he was awakened. in the smll hours by the young child of the accused reporting his mother was being killed by his fa her. Incidentally, this child when bronght into court appeared barely five or six years old obviously too young to be clear what he is talking about especially as he appeared nervous. Accordingly, I allowed him to go oven without, undergoing any examination., Suffice to say, then, that the child reported 10 to Pw.2 there was no 1caco at home. The witness then proceeded to wake up .3 HL.MISI RL1'LHANI, and together they cat.e to the accusods house. Both the witnesses re clear they found the deceased lying on the floor at the door—way crying and writhing with pain. She was bleeding from the head. Her explanation when asked was that she had been beaten by the accused for not cooking 'ugali' . The accused who had eon standing by admitted ho had beaten her and for that reason. There is however disagro::nont in one or two rospocts in their evidence. Firstly, accor.ing to PN.2 he did not hoar any weapon20 being mentioned by the deceased b - : . 3 says she mentioned a hoe as having boon used by the accused. Secondly, while 1:w.2 says 4 kc. they then took the deceased to the house ofLcoll loader leaving the accused at his house Pv.3 says they took him along with them as well. Shelving those aparont conflicts for the time being, B7.4 JUI'iL RL1VIILDHMTI, the cell loader, bears out Pw.2 and I.i.3 when they say they that night took the deceased to his house. To him also the deceased replied she bad boon beaten by the -ccusod and the witness, like 1-7 .3, says in addition 30 that the deceased mentioned a hoe as having been used on her. )?w.4 then went for Pw.5 MARK SIMON, the militirman of that area. Ho, too, rospondod immediately to the cell loader and accompanied Pw.4 to the lattorts house. There, he found the deceased who told him she had boon beaten by the accused on account of not having cook 'ugali'. In an Qff art to vindicate herself, She appears to have told Pw, , 5 that she and her husband had that Sunday gone to cln.irch and she had returned home too late to cook. She appears to have earlier on been :40 heard by P.3 to give the same excuse. • - - 2P: it is attributed to this witness as well that the accused told him, that the accused, explaining away the beating, allogod the deceased had not cooked for him for the previous two or three days either. Lccording to Pw'.5 he found the accused at t12.c house of -&w.4, but the latter, inagreoment with as noted above, says Pw.5 had to follow the accused at his house to arrest him. -Pw.5, like Pw.2, says that night the deceased did not mention any weapon. ? day—break, however, upon a hoe beimg mentioned to him by the young child he revisited the accused's house whore that child showed him a. hoe • It is 10 about 8" wide and 5" or 6" lonr with a wooden handle about two feet in longth. 1-W.5 appears to have observed at the back of the hoe what looked as blood and pieces of hair. Consistent with the view that it might have been used to inflict the fatal blow, the doctor opined tiiat, the hack part of that hoe could have caused the fatal blow. It is however pertinent to point out that the Government Chemist in his report has stated he did not detect any blood on the exhibit. Js suggested by the learned state r attornoy,bhe hoe seems to have ohanged hands. ftOrcral times ad intho long chain before reaching the Ohomit any stains on it might ]ave2O been washed away or bocono too stale to be an4sod. Tu.9 Corporal THOMLS when he consigned the oxhihit' observed red stains on the oxhibit• , but for which, I would have thow:ht, he would not have dospatchod it to the Chemist. The deceased, according to Pi.6, her nephew, could not spook at about 7.00 a.m. whom the witness upon the mows boin broken to him got to the house of Pw.4. It was not until later in the day at about 2.00 p.m. that a motor vehicle was found to take the deceased to Kondoa Government Hospital whore she however died shortly aftorwards. 30 The accused in his evidence donyiniç responsibility for the death has said that , on the relevant Sunday, he cnd his wife went to church and. that when he rcturnod at about 5.00 p.m. he found her present at home. Just then, ho says, I\. 4 came to their house to call the deceased to administer native medicine to bis sick child • That she was a herbalist would appear supported by the evionco of Dw.2 when he says she had once urod his wife with native herbs. The deceased, to taJ:o on the accused's story further, then accompanied Ptr.4 to his houso.. To the accused's surprise, how however,sho did not return and on the next morning at botti; seven 40 o'clock he followed her there. She was present, but having the fatal injury. Her dying declaration to him was that she had been beaten by Pw.4 on an allegation that she had bowitchod his child. - 29 - The accused is, in effect, complaining that Pi.2, Pw.3, P.4 and Pw. 5 have all testified falsely against him. As regas 1- w- .4, the reason would seem obvious. Ho has attributed the stand taken by w.2 to an old grudge between thorn in that ) the witness had killed the accused's sister and they had had to fight over the incident. It is tJ.on the submisSiOn of the learned defence counsel that Pw.3, boing rolatod to w.2, would naturally side with him in this case. No reason has however been sugcstod for Ew.5, too, takin': sides. The accused's story that the deceased told him that morning 10 that she had boon beaten by Pw.4 is refuted not only by these witnesses but also by 1%q.6 who said when he arrived there his aunt oould not speak, which is to say, therefore, that she could not have s-ken those words totho accusod. Pi.5, like the witness who testified earlier, soorns clear he arrested him not lone after 2.00 a.m. Ho has no reason whatever falsely to implicate the accused and I accept his evidence supported, as it is, by that of 1Aw.2, Pw.3 and A.4 that he arrested him that sane night. In this smo vein the question may also be asked: why did the accused not follow his wifo that sane ni.'-ht after 20 he failed t o rern within a reasonable tine? He had become worried as he candidly admits, and the house of 1:w.4 being that near the natural urge would have boon for him to follow her that night. He has claimed he told those who arrested him that his wife had been beaten by Pw.4. -- .5 woulA.appear to be the most notable of those who arrested him. It has not however boon sugectod to him that the accused made this accusation to him. He appears to no to be a man knowledgeable about his rosponsi- bilitis as a militia and I have no doubt that h would not 3 have failed to take due stps against 1w.4 if the accused had hnrned him as the assailant. °n the contrary, all the witness heard was an allegation diructd solely aainst the accused. The prosecution case, as already noted, is ric1lod with a number of discrepancies and outright contradictions. One of the main ones is whethcr Pw.2 and Pw.3 took the accused to the house of together with the docoasod. w.2 and Pw.4 on the one hand, say that the accugod ws rrrestod lter at his house by Pw- .3 and Pi.5 say, the other hand, that the accused was taken to ±1,T.41s house by P.2 and Pt'r.3 and it was there that 40 Pw.5 arrested him. It Seems to no that Iw.5 as the arresting person could not have boon mistaken about this and that P'r.2 and Pw.4 are confused about it which is not surprisi::.g considoring the considerable lapse of tine since the incident occurred. — 30 - Be that as it nay, the contracU.cticn would be inconsequential, relating asit does only to a matter of detail, while I am satisfied the witnesses have otherwise boon truthful. There is also the c ontradiction whether the deceased said the accused had botn her with a hoe. Lw. 2 does not appear to have hoard her say so, but both I.3 and ?w.4 say hoard her 0ay when he spoke to her did not hoar any rcfcronoe of a hoc being made. However, when he revisited the house of the accused, folio- wing.the tip-off from the young child, ho found the exhibit hoe. Hero, I would think that the memory of P.2 has again failed 10 him and that the deceased did in fact may a hoe hadbcen used to inflict the fatal blow. That she was not mistaken, the exhibit hoe was found having what seemed to be blood and pieces of hair. I formed the impression, as both the lady and gentleman assessors had done, that notwithstandJng the contradctio.ns, the prosecution witnesses wore basically truthful and it would be safe to act on thoir evidenco. 0r, their evidence, the ruforo, I have . not the slightest hesitation in rejecting the accusecPs defence as a cock-and-bull story given desparatoly at the eleventh 20 hour to save his skin. We accordingly find that the deceased made a dying declaration repeatedly and consitcfltlY to the effoct that, she had been attacked by the accused using a hoe for the reason that she had not cooked is11' and that, bho accused adnittod to have beaten her and for that reason, too. It may also be reminded that, according to 41.3, the. accused had also said that he had not eaten for three days. On the foregoing ovic 1..enco 2 there con be no doubt that the deceased net her death at the hands of a person none other than the accused. There is no evidence from which to intention 30 on the part of the accused to kill his wife, but the accused when he held that hoe presumably by the wooden handle, and directed it at the deceased's head using great force, as the doctor rightly opined ought to hwe knona that act would occasion at least grievous harm to her, and there cannot in ray judcciient he any surprise that she sustained such a -, ~ ravc injury. Accordingly, barring provocation, to which attention may now be turned, the accused would be guiiy of murder.. The act of the accused cannot have been without cause, and I wcild tbink it was probably sparked off by failure on the 40 ixtrt of the deceased to prepare uali as the accused first alleged. - - 31 - I put the question of provocation to the assessors and they havo duly advisod on it. It however now seems to mc that such course was not .necossary. The c; 'od and the deceased, as already stated,, wont to church. According to the accused, he returned hone at about 5.00 P.m. to find she had already arrived back. Now, the incident occurred after mid—night.. The deceased trying to e±plain away her failure to cook ugali told t1 witnesses that after she cane from church that Sunday she attended some ceremonies and that is what delayed her in preparing u.gali..10 It would seem, therefore, that the accused was asking her about her failtro to prepare food many hours previously. Such failure having occurred so long previously, the accused carnot be said to have boon suddenly provoked wit1ifl the caning of Section 201 of the Ienal Code and for this reason the defence of provocation would not be open to tiaccused. B0 that as it may, oven assuming that the accused had sufficient cause to fool wronged by his wife 'S failuro to prepare food and that this remiss had persisted for sometime 1roviously that would still not mitiato the gravity of his The quarrel, as I have said, was about an act of omission on the part of the deceased many hours previously. It was in fact an act the accused had of late become used to. Not only wait not that sudden but it would clearly also soon that there had boon plenty of time' for his temper to co.l off... I respectfully share the view of both the lady and gentleman assessors that, the wrong committed by the accused was not of such a nature as was likely to deprive an ordinary man in the community of the accused of his power of self control and to induce him to pick up a hoe such as the one we have soon and,.usinggroat force, 30 to hit his wife on the head with it. Accordinly,f we find that such provocation as there may have boon would not reduce the offence to manslaughter. In the result, .wo hereby convict the accused as charged. P.M. Jonathan Judge Judgment delivered in open court this 17th day of May, 1978.. P.M. . Jonathan Judge. ir. Alinwiko: The accused is a first offender.. 40 ccusod:My children have no one to look after.: urt: For this offence there is only one sentence this court can impose. Lccordingly, it is directed t) at you shall suffer death by hang ini. P.M. Jonatha\. Judge Riaht of appeal oxplainod • The assossnrs are thanked and discharged. • .• P.M. Jonathan\ Judc. *