19791210 TZHC Tabora

—21- IN THE HIGH COURT OF TANZANIA AT TABORA. ORIGINAL JURISDICTION TABORA REGISTRY CRIMINAL SESSIONS CASE NOe 50 OF 1977 THE REPUBLIC versus RAI1ADHANI HAMISI CHARGE Murder c/s. 196. of. the Penal Code. JUDGMENT 10 MUSHI. J: A The accused person, RMADHANI HAMISI; stand charged with the offence of Murder C/s 196 of the Penal Code. The particulars are that on or about 19th of January, 1977, in the Region of Tabora, murdered one ASHURA D/0 SHABANI. . • . In this case the prosecution has to prove three things. The first the prosecution must prove that the deceased is actually dead. Secondly the prosecution must prove that the deceasedts death was not due to natural causes but through the hands of someone. Thirdly the 20 prosecution must prove that the accused in this case is the one who caused such death. . Regarding the first and second points which the prosecution have to prove, they are not disputed. It is agreed by both the defence and the prosecution that the deceased is.infact dead and that she died a violent death through the hands of someone. Evidence on these points is abundant. Among the first person to arrive at the scene of the incident were Chausiku Salum - P.W05 30 and Salum Shija - P,W. 7, These witnesses told the court that they found the deceased lying in the house already dead. According to their evidence, the deceased had several wourids.and the intestines were out, Further, the 'postmortem report which was produced in court as an exhibit, the cause of death was stated as being due to severe haemorrhage. The report further stated that the . body had cut wounds on both brests perforating into the left ventricle. 'here were two deep wounds in the abdomen with perforation of ilium. The 4th, 5th arid"6th ribs were 40 fractured. Arart from these severe njuries, there were many other superficial cut wounds on several parts of the body. 22 - ' •1 • 22 - % The report further states that the dead body was identified as. tht of.ASHURA D/0 SHABANI. With ths evidence I find as a fact that the deceased is aätüally • dead and that her death was not at all due to natural causes but was murdered. The third point for consideration is whether the accused person in this. case is the one who murdered the deceased 0 This is of cursé the crux of the matter in the whole of this trial. In dealing with this point I find it more cenvenient to start with the defence 10 evidence before I proceed to theprosecution evidehce. In this case the accused gave evidence on hiw own behalf 0 The accused said that he had lived with the deceased since 1972 and had two children with her. The accused said that he had not paid any dowry and therefore the two were not married as such. According to the accused, the fatber of the deceaed did not wish the accused to stay with the deceased. Somet'imes before the incident, the deceased had gone to live at her father's place. The accused found the deceased alone with her children. The accused 20 told the deceased 'to accompany him to sharnba to which she agreed. The accusedsat down to wait for here The accused said'that while he was waiting for her, he smoked some tobacco. According to the accused, the deceased caine out and went back again and the accused reminded her about going to shamba to which she said she would go. The accused further stated that he started feeling unusual. The accused said that he could not hear or see properly and he was feeling something he could not understand. The accused said that after 2 or 3 hours later he found the 30 deceased lying under his feet dead. The accused decided to go and report to the Police here at T 8bora. According to P.W.6 . Corporal Francis the accused reported at the Police Station on 19/1/77 that he had killed his wife. According to P.W.6 1 the accused's vest was blood stained and he asked him to remove it and it was produced in this case. as an exhibit. P.W.6 further stated that he referred the matter to Inspector Mwakaguo - P.W.4.' This P.W.4 told the dourt that' on 19/1/77 at 40 about 8.00 a.m. the accused reported at the Police Station that he had killed his wife0 This P.W..4 said that he ac- companied the accused to the scene of crime and he was with other Policemen such as P.W.3.— Peter Lukuwi, P.W.8 - Bernard'. - 23 - Inspector Mwakaguo told the court that the accused l ,ed the group to the 'place where the dead body was and pointed out the dead body of the. deceased 0 FUther P.W.4 said that the accused pointed ou.t the knife which he had used to kill the deceased. The knife was abOut 10 paces from where the body was lying 0 The knife was blood stained and its end was broken 0 Several other witnesses saw the knife which was produced in this case as an exhibit. The accused also made an extra judicial statement before the Primary Court Magistrate who is the Justice of the 10 Peace POW,9 - Wallance - The justice of the peace told the court how the accused was sent to him and after informing him about his rights, the accused voluntarily made a statement admitting to have killed the deceased. th) it Will be appropriate to reproduce the accused's statement here which reads:- Nilimuua mke wangu kwa vile nilikuwa nampenda sana naye ananikataa. Nilichunguza kisa na nikakikosa. Kwa sababu ya shetani mbaya nilitenda kama kwa bahati mbaya. ' 20 Ilianzia siku ya Jumapili 0 Wakati nikienda kwenye harusi ya mkubwa wangu. Tuliporudi tulipika chakula na kila mtu alilala churnba chake. Nilimwita mke wangu usiku anitoe nje kwa vile naumwa sana. Alinijibu nàyanaumwa0 Niliona heri nimwite bibi kwa vile alikuwa anaumwa na mashetani. A1'imfuta bibi na huko wakasema mganga Lailemba amekataa mke asirudi kwa bwana. Haya nilielezwa na baba mkwe asubuhi yake0 Tulitenga barazã na akakataa kurudi kwangu mke wangu. Nilimshauri baba mkwe amshauri 30 mwanaye arudi nyumbani naye alipofanya hivyo alijibiwa atakuwa yeye anakuja kupika, kuchota maji na ki'la kitu ila asilale pale 0 Tulifanya inpango tukutane kwenye majani0 Nilimfuata siku hiyo na nilijitayarisha lakini alipoona baba yake ametoka akarudi nyumbani. Mimi nilirudi kwangu na kulala lakini nilikuwa na mawazo sana. Siku ya pili nilimfuata kwao na nilimkuta nikiwa na jembe na koleo. Nilipornwona nilianza kutetemeka kwa vile nilisikia wakiniteta eti watanidanganya hivyo hivyo baadaye 40 wanifukuze. Nilifunga miango tukiwa wawili na watoto wangu wadogo nilimpiga kisu sehernu yakifuani na akaanguka. Nilimchoma choma kisu ovyo kwa hasira na akafa. Niliserna potelea mbali narni nitapigwa risasi au l o l ote.t' 0000/ 24 - 24 - Also the accused made a statement to the magistrate who recorded the statement of the witnesses. According to the statement the accused said that he killed the deceased by bad luck because he found her ha.ving love affairs with someone. According to POW O 5_ Chausiku Salum, she was the first to be at the scene of crime She told the court that on the day in question early in the morning, she was passing near the deceased's place0 She heard the dec3sed's 10 child crying, Chausiku decided to go near to see why the child was crying. On arrival she saw the deceased's body lying in a pool of blood and her child next to her. The elder child of the deceased told Chausiku that it was the accused who stabbed the deceased. P.W5 - Chausiku raised an alarm and people came at the scene. Further there is the evidence of P.W. 5 - Shabani Simba, the father of the deceased. This witness told the court that the accused had lived with the deceased for four 20 years. P.W.I. said that the accused wanted to have sexual intercourse with the deceased but the deceased refused because the child was very young. The witness continued to state that in the night of 16/1/77 and 17/1/77, the deceased went to his place at 3,00 a.rn. and told him that she had ran away because the accused wanted to have sexual intercourse by force. In the morning elders meeting was held in which it was decided that the deceased should o back home but the accused should 30 desist from demanding sexual intercourse. However the de- ceased saia that her 'jini' was refusing her to go back to the accus'd's house. The deceased further said that she would go and cook food but she would remain at her father's place, and accordingly she remained. P.WI. said that on 19/1/77, he left his house at 5.45 a.m. After few minutes he received information that the deceased had been killed and on arrival back home he found the deceasedad as already described above. As it would appear from the accused's defence, he seems to say that he was momentarily out of his mind when he committed the offence. The defence counsel • urged the court to give the accused the benefit of the doubt even though it has not been proved that the accused was out of his mind when the act was committed. The Counsel said one cannot rule out such possibility. If the the accused claims that he was out of his mind when the act was committed, it is for him to adduce such evidence 25 • -25- to.prove the allegations 0 The accused will have proved the fact if he has produced evidence sufficient, to raise the probability of his mind been out of his control at the time the act was committed. However with \ greatest respect there is not the slightest evidence • suggesting that the accused was at anytime out of his mind. Even though there is no such evidence from the accused, it is my duty to examine the evidence to see if there is any possibility that at the time the accused comiijtted the offence there is likelihood that 10 he was not in his sober mind or that he did not commit the act voluntarily. First it is in evidence that the accused went to the deceased's place early in the morning ostensibly with an intention of asking her to accompany him to shamba. While the accused was waiting for her, he found himself in a condition which he did ,. not understand and when he came out of it he found the deceased under his feet dead. According to the accused he had gone at the place at 7.00 a.m. and at 8,00 a.m. he had already reported the incident to the police. I have 20 stated the evidence of the Police to whom the accused had reported that he had killed his wife and led the Police to the scene and pointed out the knife he had used. According to the Police eiddnce the accused appeared quite normal when he reported the incident. If the accused was not in his full senses when the act was committed he would not have told the Police that he had killed the deceased nor would he know the knife which had been used and its whereabouts as clearly stated by the Police in their evidence which 30 respectfully I believe to be:a true.stbry. I find it difficult to believe that thec.accused could go out of his mind for so short a tithe,- jut enough time to slaughter the deceased, and immediately atet that be very normalS I think the whole truth is as sthted in the extajudidal statement which I have fully repouced above and am fully satisfied was voluntarily made by the accused. In fact the extra—judicial statement is similar to the evidence of P.W.I. Shabani in respect with the moving away of the deceased from - 40 the accused's house ,to the home of the witness P.W.I. In the statement the accused has given the reasons for his action and how he did it. - •...e/ 26 - 26 - The statement was recorded a day after the incident. From the statement, the accused has given a history df the misunderstanding between him and the deceased and how he had been disappointed by the deceased failure to honour an agreed arrangement to have sexual intercourse. This incident greatly disturbed him and as a result he followed her and when he saw her he started trembling. The accused then closed the door and started to stab her all over the body untiL she died. Surely this is not a statement of someone wio was out of his mind when the 10 act was committed. From the evidence as I have analysed Above4 I have not the slightest doubt in my own mind, that the accused did the act voluntarily and in his full senses after a careful plan to do away with the life of the deceased for the reasons the accused gave in his extra—judicial statement. The Genglemen Asseors were of similar views that the accused committed the act while very conscious of what he was doing and he planned it. I have no doubt, and I so find, that the evidence in this case has established beyond any reasonable doubt that 20 the accused is guilty for the offence as charged. Like the Gentlemen. Assessors, I find the accused guilty as charged and I convict him for the offence of Murder c/s 196 of the Penal Code, (Sgd,) N. M. MUSHI, JUDGE 10/12/79 10/12/79 Coram: N. M. Mushi, J. Mr. Chaila: State Attorney. 30 Mr. Kwikima - Defence Counsel - Absent Accused: Present Assessors: Both present J1gement read in open court. Mitigation: Accused PersOn. I have nothing to say. State Attorney:. Nothing to say. Sentence: There is only one sentence provided by the law. ':.The accused is sentencedtZedeath by hanging. N. M . , JUDGE. Assessors: Thanked arid discharged. 40 • N. M.' MUSHI,. JUDGE. .10/12/79.