19801127 TZHC Tabora

IN THE HIGH COURT 0iii TZI W AT TABORA. • ORIGINAL JURISDICTION (TABORA REGISTRY) CRIMINAL SESSIQ1S cASE NO.57 OP 1978 THE REPUBLIC VEISUS CHARLES LUHET'TDE PIUS IAIGE PETROL HANG-ILA CHARGE: Murder c/s 196 of'tIc Penal Code. J U N T CHIPETA, J., - The two accused persons in this case, namely, Charles Luhende and Pius Maige, who appeared as the first and second accused, respectively, stood jointly charged with the offence of murder c/s 196 of the Penal Code. The Republic a1eged that: on or about 30th July,1977, in Shinyanga Region, the, two accused persons, jointly and together, murdered one Dida Mitinje. Each of the accused persons pleaded "not guilty ,' - to the charge. After the lady and gentleman assessors had given their • opinions, I acquit -ted and discharged the second accused, Pius Maige, forthwith and ordered his immediste telease from custody un1os otherwise lawfully detainod. I reservedmtteasbhs for doing so, and alsorosered ju.de:it in ±'c-spect of the first accuseth The following are my • reasonè and qd Lop In their endeavohr to p'ove the char'ge, the prosecution adduced the following evidence during the evening of 30th July,1977, one Iddi Hadu (P 5 1) j was roasting meat ~ 4 outside a pombe shop at Muhunze village in Shinyanga District. • On his table, which was facing the front door of the pombe shop, was a hurricane lamp which was lighting as far as four ne_.. Meanwhile, at about 8.00 p.m. that same evening, the first accused, who was a resident of that village and an employee of a ginnery there, wont out with his wife, leaving their guest, one Charles Shigela (P..4) at hone. Ihile P.7.1 was roasting moat, at about 9.15 p.m., he heard noises inside the pombe shop. Shortly after that, he sav the deceased coming out of the pombe shop pursued by a man whom P.W.l identified to be the first accused, Charles Luhende. The first accused then caught the deceased and pressed him against the wall of the pombe shop only 1 metrs away from where P.W,1 was. The first accused then held the deceased against the wall with his left hand and ........./2 OI4. uE1J. O1OSO.IM 09 , PE4JS OJIM s1p99rOo sJ; oi pu UtX put -OJ:Tm s 1 pisnoot qs.rç; otq poque ttetq. OM OSOt.pJO E3UQ U0E[ OM OtI i3t JM E)t. tIJ JE 331tTEttJiI JOJ q- JOT OJIM 8Tt pm- ott ud oL bq Lb .tIOM p osmou qaXTJ EtJJI ''taoT q uom oq tiq. .ioqjr clotts oquod .xo; i.;or tr uew. 009 floqE t3 [çrun Jooq trn.zp ot -oa - ) -Llhk .xca rxI o- WOM eq LL6T'Rtflf to tid 00.'17 J.XOtTtI? Ot j.XOM sTtT D UTqSIUTJ JOqJ qJ-t pius POSnOOE q.SaTJOt UJOMSUO SILT UI eoue;;o srq. LEM pe3.xa A'IttioC uot. 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'opt xoi.xti; 4noT4q T m put 'dots oquod otq jo no ?irçtroo pósrioot pu000s otq. s c:a 'oT Sf UtJO%)14S tIP UTAPMS poss000p ot trç.&tei ooJ UT oqt 3fotq poorr put o;Tu3J 9t41 qiio pottnd pestloot qSJtJ Ot 6p9StOO.p 0t wçqqts .'°-;v ptrnoM qts doop t uTPsrts o pest000p 1T ut5t1PO S11t[. 'sotjo O1. JPOU uauopqt s 1 posP000p otq. OqtIi qt 9AOJ PUP OJTU3T U&[ POtIttT5Ut1 Ot pUPL .tTTJ STtI -- ,, ;•,.. • wiaan before, the LIan rtortod; "Utafanya nini? Mshenzi we! Nawoza ku.kuvunja-vunja na kuLutomba nkunduni huku mice wako anaangaiia," or words to that effect. The man then hit the first accused with a fist and pushed him, and so a fight ensued. In the coarse of the fight, the man u.nshoathOd a sword and. the two men started to struggle for the sword. By then they were near the ponbo shop. Later people cane and separated then and the first accascd wcnt to the police station to ropor.t the matter. o and the police officer in-charge then wont to the scene where they put the deceased in a motor vehicle and ±ook him to I hospital where the deceased died on arrival. They then returned to police station where he was arrested. The first accused does not say how the decoased cane to be wounded. In his unsworn statement, the second accused said that on 30th July, he started drin&ing ponbe at 2.00 p.m. At abo'ut 8.00 p.m. he wont to Lffam Mgore's ponbo shop and entered th poube. shcp .through the rear door. He then bought pombe and settled down to drink. ' After some tine, he went out of the ponbo shcp,;asixg the front door, for a short call of nature. After walking' abbut six paces outside the poLibo shop, ho saw someone swaying and • staggering, and as thc second accaed :1kod past hi;, tho'nan fell down. Believing th:t the man was" just anoth9'drtn'en person like hjn, the second 'accused ignored him, proceeded to make his call of nature and returned into the poube shop. Shortly oft:'r that he heard people saying thit the man h-d been stabbed with a knife. Ihon he went, out, he saw a police off 1cr and many other people, and he hoard people tolling the police officer that it was Charles who'had stabbid the man. The police officer then sent the second accused to go and look for Charles. The second accused went to look for charles • at his house but did not find him there. He then returned to the scene and assiSted in putting the wounded man in a motor • 'vehicle. Later he hoard that the man had died. Jftor my swi.:'ing up to the lady and gontlean assessors, both of them accepted P. - .1 to be a truthful witness and were satisfied that he correctly identified the first accused as the person who sahbed the deceased. They then unanimously advised that the first accused, Oharles Luhonde, be found guilty of murder as charged. They, however, unanimously found that. there was no case agaInst the second accused, ..../4 - I -4- Pius Maige, and accordingly advised that he be acquitted. From the foregoing evidende, there can be no dispute thaw a ntn by the narac of Bida Mitinje is dead and that he died a violent death. Ihat is in dispute is whether the two accused persons or any of then are the people who caused the death of deceased, and whether the killing in the circunstances aLleUfltCd to nurdor or any other offence. The eruolal eridonee against the accused persons is that of P.1.1. Having observed this witness as he gave evidence, I am fully satisfied, as were the lady and gentleman assessors, th.t he is a truthful witness who innocently and clearly described what he believed he saw at the scones But evidônceof identification by a single witness it is necessary to test the evidence of P.V.l with the greatest care, particularly considering that the incident happened at night, for it is well known that oven a truthful witness nay inocently be mistaken as to the identity of persons or objects. I note that although the incideit occurred at night, P.1.l had a hurricane lamp which was lighting as far as four no% away and that those people were less than two metres away from him. 7lhat is more, both accused persons were well known to this witness. 1 110 had known thou for li years prior to the incident. Ho graphically described the conduct of the accused pcxsons and what each of then was wearing. No reson was suggested, nor does one suggest itself, why he would wish to frame any of the accused. I an therefore, satisfied that P.1.1 had ample time and opportunity of observing the culprit who stabbed the deco-aced. The evidence of P.N.l finds corroboration in other circurista- ntial evidence. That is in the ovijonco of P.1.4. P.1.4 was a friend of the first accused. Having seen thiswitness as he gave evidence,. I ara fully satisfid that he is a truthful jtflOSS who had no reason to franc the firt accused. The evidence of this witness is that the first accused having gone out with his wife, came back home alone, changed his red shirt and wont out again, that shortly after that his wie also cane back alone on the verge of tears, and that when he asked her what had happened she said that it was not something to be talked about. P.W.l's evidence also finds corroboration in the testimony of no lcmior persons than the accused persons themselves. On the basis of that evidence, I an satisfied that P.i..l correctly identified the two accused persons. I an further stisfied that this witness correOtly described what the first accused did at the scene, I an accordingly sati$fiLd and find as a fact that it is tho first accuaedl/ r 4, • -5- Charles Luhendo, who stabbed the deceased to death. iith regard t(; the second accused, I note that P.7.1 did not see the two accused persons in the same company before incident, and according to P.W.l, the second accused caus.out of the pon'oe shop after the first accused had already stabbed the deceased. From P..l's description as tc how the second accused assaulted the deceased, and from the story of the second accascd,himself, I would respectfully agree with both learned counsel that it is probable that the second accused did not, infact, touch the deceased at all and that thO second accused night, in his inebriety, have staggered innocently near the deceased just before the wn, and that that night have led P.7.1 into inhocently believing that the second accused'had also assaed the deceased. I an, therefore, inclined to believe ': ' the second accused's story as to what happeiied to be the more probable. It was for theo reasons that I found the second accused, pius Maige, not guilty and so acquitted him and ordered his immediate release from custody unless. ot1eroisq lawfully detained. I now turn to the case a,ainst the: first accused, Charles Luhende. As earlier stated, I an in no: doubt at all that it is the first accused who sabbed the deceased to death, and that although he could not say that he stabbed the deceased', I accept learned defence counsel's submission thtt the first accused merely avoided the shock phrase. I believe that the first accused's defence is one of provocation, as submitteciby his learned counsel. For provocation to be a defence to a charge of nurde, it mast be shown or there mast be evidence showing that the provocativa act was a wrongful act or insult of such a nat.XW@ as to be likely when clone to an ordinary person to deprive him of his power of self-control and to induce him to commit an assault of the kind hich the person charged committed upon his victin (Section 202 of the Criminal Pr:ceduro Co(le)A'nd the phrase 'an ordinary perso.r means 'an ordinary person of the community to which the accused belongs.' However, the assault must be committed in the heat of pssion (5.201 of C.P.a.) On considering the first accusods defence, it is pertinent to remember that P.W.l did not imow the cause of the qarre where the whole thing started. For all we know, the first accused and the deceased might not have come from inside the ponbe sho',p P.W.l might well have been mistaken on this point secondly, there is no evidence that the deceased and the first accused had any grud6.es between them. Indee-d, it would aear that they were total strangers to each other. It is true that the prosecution neOd not prove motive . . ... . . 16 L -6- in a;charge of urder, but the presence of notive inferentially tends to strethen an inference as to the existence of raalice aforethought, just as the absence of native LToy tend to weaken such an inference. The story of the first accused as to the background of the incidelit, therefore, stands unchallenged. His story that he was acconpanied by his wife thatn .ight finds support in the evidence of P.1.4. That hoing' the position, it would be unfair and unwise to totally reject the first accused's story. I, therof ore, incline to the view that what the first accused told this court is probably what happened, and so I will proceed on the basis of his story.. In this case, the allege -i provocation was two - pronged: the first was the seductive conduct of the deceased towards the first accused's wife. The second was the very vulgar abuses uttered by the deceased to the first accusd followed by an assault on his person In her subnission lc'rxiod defence counsel subuitted that in considering the first acb.sedès defonôe of provocation the provocative acts and insults nust be donsidered 'in ho light of the fact that he had been drinking since 4.00 p.n, that day. In her subiaission,a person who is drthik is easily excitable and so reacts quickly to provocative acts or insults. Intoxicaticn is no defence in law unlesssuch intoxication amounts to insanity temporary or otherwise. In the instant case, I do not think I understood the defence as laying, 'claim to teuporary or permanent insanity as a result of in.tcx ication. What I understood the de-f ence to mean is that as a;result of the intoxication, the accused ronlereci himself noreooxcitable and so liable to react quickly to ordin:.ry insults, and • in JetoroLining the issue of provocation account should be taken of the influence of alcohol in deciding ahether the reaction of the accused is in keeping with that of an ordinary person of the conaunity to which, he belongs. 11ith resepct, I d.1- not think that that is any longer, if 1 it ever was, good law. In the recent case. af'ALCNCE PHILIBERT v. THE REPUBLIC, (Court of Appeal. of Tanzania Criminal Appeal No.27 of 1979 - as yet unreported), that view \as canvassed. In rejecting it, the learn d trial Judge said: "LLro drinking does not count in law otherwise many killers would get off by arming themselves with alcohol before they go on their nurderouth uissins." On appeal, the Court of hppeal of Tanzania agree with that view and stated: "In other words, an acdued person who pleads provocation under the influence of alcohol must stand in the shoes of ........./7 1° "an ordinary pc-rson °: the counity to wiich tao aceued belons and bust thus be judged by the standard of such ordinary person. We are of the firm view that such standard can never be that of a drunkard unless the community to which the accused belongs happens to be a ccunity of drunkards - which is act the case here." The Court quoted with approval the English case of Maneini v. D.P.P. (1942) A.C. where it was stated, at page 259: "The test to be applied is that of the effect of the provocation en a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Leshin (1914) 3 K.B111 6 0 so tht an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have lcd an ordinary person to act as he did." The Court also quoted ';ith approval the case of Regina v. Carp]..in,, (1978) Q.B. 254 in which the English Court of Appeal qucted with approval the words used by the trial judge in that case at page 260 where he is recorded as addressing the jury as follows: . "Bear this mmmd, ladies and gentleman, that the definition of provocation is.very important. It is not intended to give a licence to those who take too much .drink; or a licence to those who are quick- tempered; or a licence to those wh are over- sensitive; that would be disastrous and it would not be fair, if you think it for a moment, becausoit would give an advantage to the drunkard, to the quick-teLiperc..i and to the Over- sensitive - an advantage over people who try to exercise proper self - control, as no -st of as do. That is why I say it would he unfair if prOvocation in this content were not strictly defined, and the definitioh strictly applied. It is not intended to give a free reignto the cruel, or the unruly or those who take too much drink." On the basis of those authorities, I an unable to agree with the learned c1lefence counsel that in dcci ding whether the accused in the instant case actd wider provocation, I should take into account the influence of alcohol in deciding whether the reaction of the accused is in keeping with that of an ordinary person of the community of the.accused. The test to. be applied must be the objectivo test. I must, therefore, decide the question of legal provocation in the instant case by considering whether the acts and insults offered to the accused by the deceased in the circunstances revealed by the 6/' t.fl. tiC )qtTC:co pSnooT Ut[q. pWt JC; [ttISSt' L%2 771 CO o uosxBcT icxcuipo u ioriput c, sr; pu U T-1p7no JO OU211M Jt 'UtqI300AOJCT C O pnoT si ti9Ui pu Sq.Ot :TJt1'1M JT UO1.O qt't. pqrs AOU.XOqt 12OUJtT )t{ RTOAJ OM 2Lfq Et UO.IM st ox pes•o39p Jo st put' sosnqt 'soi itq. pe.xeptsuoo Ru ST q-I Op oq. penoo qs.rçj otq.. sm pornoo qXç; uo qt$Si 'oçiRucI 1D tqM tnc Esqq cTn OMOiOJ cioq.s qou PTP esteo flncTrç U13 tors uto bTdood M0 J [[U O3Utti t3 qOU StM p3EflO . o' 0L1q Ct •STJtOtO cT ouoiqxe Oqq. uç OJOM1'E1OOt qSITJ 014 o pzop srniqt G000p o pos000tqxi;ot oq. qt1GU UU pUt 0O j?UO.XM STM ojp poan03t jij oq .JUT0t.ZCjS JO St9OC 914 0SLO Wt4BUI 914 UT Uoo . e'I G3 oocT sou c. soitoo riss oçsitj. o. ucqt;tUqO.x 'tTTuT UJq$ 0 RC[ OEEt t o uoqori,s o Rut JO WtJOTOWT ot o.s put SOATM xTo14 ttST.xeLIO utqs11t.r OJTT JO eouoocTxo put O[Mou uMo . 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UtOt.IOJUOO OU J0J UOst-OJ pon.3 St 0ttfl. q1314 pIrçj 1 JT stiotutc'Io JTOT4 c, uXOJLTCO o p'r.moq qou i:rt I uootp11C Rri 9UTATO tn 'J9A0WC1J tiTOM..911p tIOt. o.&t%? nUU SUC1TUT(O rçotq oq. ucqJno4t RtcI no posnaot 1otq- Jo c -EtrntIOoo 014 Jo oi400d -3SELA S T 'pOStOaL - -)LI9, Rq P09Tt.X UoTqtOOAO.xd JO eou --njup 914 p 09C-0x tICqWOTth.Ei A'q SJ0SSOSS13 utuequo Put Rpt'i 014, Or.LTq. poxo;ut oq qsriu t 'GuoTu -Ecto totq Ra UOISStct Jo .tOt 914 LII peqot:' pesnoot o os 3uiop irr t4oT • put 'pest000p 014 uothi poq4rorcoo posriaot oqq pupj e'qq. Jo • Ut oq tITLI eO'flPUT PU1 TCJLTOO—.fl° 9 JO JOMOCI 314 OS11OO13 914 JO Rqtmroa 914' JO tTOSJO(J eqtuoSt0I £.xtutpxo tnt OATJd8p oq. RIO3TT UOOQ OALLI o. st OXflqtU P. t qons O S[11SUT put SqOS E11J?U0J. cq.. PWt1otI oOUOPTAO. • T': L I; -9- deceased. [iith great respect, I an unable to agree. lould a reasonable man stan.i there as a spectator whilo a stranger tries to ravish his wife, while a strsnger utters abisos suggesting that ho is not a man, and couples that with a physical assault on him? I do nt think so It is true that the first ccused used a lethal weapon and that in proper cases the use of such a weapon ny inferentially suggest that the user of such a weapon had malice afoi'ethought. But that need not necessarily be so. There have been cases where similar woapons hove been used after provocation by a sudden assault and it has been held that legal provocation as establi- shed, the use of a lethal weapon notwithstdding. (SUkwoakindc Mwnako si vL R., (1958) B. . 776). In the instant case I am clearly of the vio that the wrongful acts and insults offered by the deceased were grave enough to afford the first accused the defence of legal • provacation. . . For the forgoing reasons, and•'ith great rospet to both assessors, I an f the considered opinion that malice aforethought h -is not been established against the first accused. In other woras, ] 510 of the opiiion that the pr'secution has failed to prove the charge of murdrbe y ond reasonable doubt. I, therefore, find the first accused not guilty of murder and I duly acquit him on that charo. But :1 am satisfied that the first accused unlawfully killed the deceased as a result of provocation. I, therefore, find him guilty of the lessor offence of ianslauhte r c/s 96 of the Penal Code, and I acco±'digly duly conv±dt him of that offence forthwith. . .. . • JUDGE. Delivered in open c.urt at ShinyDantSa this 27th Nc.vembor,1980. JUDGE. Mr. Chaila: State Attorney for the Republic. Mr. Mnzaa: Counsel for Defence, Coram: As before.. Mr. Chaila: My Lord, accused has no previous recL.rd. Mit igat ion: (Mr . Mnzava): Iccsed, my Lord is aged 35; has 6 children. He was an employee of T.C.J. His mother is dumb. Accused has trouble ............................... of his ribs as a result of an old injury. /10 'VL{dIHO Ctt PtITtT&Xe fl-cTcTr jo qtpj ff1jflf (6) irçu peanoo'e eTeoueques cJIoqq ' eso quesexd et ut st !p utJiE. e..fl CSq CJ-3tTM - OUOqUCS que oqei q.nO, eqotr O. ST os cp c. tq uttoeq JO A& ouo pu 'T[ ulari oodsox oq. u.xte -c sii::eIcTooa uJeop eq 1J 1JTM ttJ OOUOqUCS 1 . pos1100r3 otq, oAT oq. qsi' eq qt oe Wçoq qttp, t1OTOT& icxoA SIM pOSeOOp OLfl UO 3f0t41 ot JTht UC pOJep..IOq. eso si sçtj. tt qncp ou eq uo oJoLfl 'JeAOMOH ULJ 9, CJO JOJ 1cp0SflO UT .UOS St?tI ot Qt 1LT ICpUOJ;O SITJ St 1)E)StlOOE ot qtuq. jO3J O. Uo.S.IePTSU( 3 cqut UO3TUq. OAEtT I Rouoitto .J0 I1OAT3 UI [eSTitT 1000nooU pu TU1IrttTOO açt 0q .?UTUJJM 'C Si? OAXOS 09, Si? uS OrLLSILmd LAtaq C, seiosep poStlooi? .I9T1r[SLTi?U ;o eOuo;jo Yqq. onpe.x0.A1;q 40TTIM e3tXSTtnOJcO OU cqçsçp 1*LI t&t.iCT 't° T i-' 'io'i Ji :Itit[3 JVOUOTUCI J. JViIICT A'TW. J Tptoq. UTIflOU CALtT I :esrioocr OUCTUST IOJ Jd I t .00qo.icI eq.. ip piion i? tq puqent U. pjorI A • SJi?oic XOAO XOJ iVpcqsio PUtCJUT uooq SLt BH qsxt; ST Oj UOL1I TTTq lcTItlJ3Oi?OCI OATT P{ eJTM STET )Ut tSflO3V ItJTqTt UPTOTT Ot •- 01 /