19820208 TZHC Tabora

:. IN THE HIGH COURT OP TANZMIA AT TABQRA -o ORIGINAL JURISDICTION • .(Tabora Registry) CRIMINAL SESSIOt1S CASE NO. 7/1979 THE REPUBLIC 'cTERSUS . ..,. • .. rJIAALP.ZI ICASELE CT-IARGE' Murder c/s 196 of the penal code. JUDGMN T CHIPETA 9 J.. . •. . The accused, Mwagalazi S/0 Kasele, stands charged '-- with the offence of murder c/s 196 ...of the penalCode. The ieric has a11eed that on or about the 18th of July, 1977 0 In iyan.ga Region, the adcused murdered one Nasiziya d/'o o. ICiDika. he accused has denied the charge. . The prosecution's evidence, from a total of nine witnesses, is as follows.- the deceased, Nasiziya d/o Kabika, wa a fe of the accused, and a cotiple of d \ays before her death she 1 as staying at the homestead of one Kase:Le s/o Mkonge (p w.6) who is an uncle of the accu,sed, but whom the cused refers to as father. According to P.W.6, some two days prior to the c.eath of the deceased, Police had requested him to take the coeased to his home because herhuband, the accused, had btbed some people.: . . . . On 18th July, 1977, at about 10.00 a in., a cousin of the accused, w1ci is the daughter of p w.6, one Kiziku (P.i.2) and 1aor daughter, one Sophia (p W.4), arrived at the home of P T6 whe2e they had gone to visit pw,6. On arrival there they fouJ the deceased. ., . . . iile they were in the house, the deceased went out. Shorty fter that, P..W.2 and P.W.4 heard the sound of.a gun soev;her behind thehouse:. Both P.W..2 and P.W.4 went out to i:vetigate...and saw the eceased running towards them.. After a shc'2t distance, she fell dQwn, dead, It is also the evidence of P.W,2 that when she went out, she also saw the accused running away into the bush arid carrying a gun. . P.w,2 and P.7.4 then raised an alarm and several people 0ame to the scene. On examinin& the body of, the deceased, the witfl$ses noticed that she had a gun shot wound O±i.:. the shoulder ......./2 -2- near the baok. The .accu.ed could not be seen. Xext day pollee ,arried" at the scene and took the dead body to Kahaa Government Hospital for an aut.opsy. he octor who conducted the autopsy on the body of the dece.:..d observed that the deceased had two penetrating gun shot wc 11113 on the left upper half of the chest going through the hea id fracturing theleft\scapula. The Doctor found no other inju.rios. He then oiined that the death of the deceased was caud by internal bleeding due to gun shot wounds. Meanwhile, on 22nd July, 1977, on inortion receive4 Dtctive Corporal 4bdulhussein (p w 8) arrested the accused at Kahaina market. On his arrest, the accused told P w 8 that he (the accused) had come lo surrender himself at the police station but that he had found no one there to attend to him. Whon P.W.8 asked him"where the githwas, the accused said he was riy to take the polie that verr day to the bush where the u '3. find the gun. That very day p w 8 and the accused went to t s scene and from there the accused 1d P W.8 and other villagers :i. the bush where he said he had hidden the gun. whey thn started 1ookiig for the gun. Eventually, they found the gum - a goboe, and according to P.V 8 it was the accused himself wiio f ou ' the gun and then handed it to P W .8 27th July, 1977, the accused made an. extra-judicial sate,t toa justice of the peade, one AJAA (P.w.7). In that d'etailcI statement, the accused gave what must be a fuJl ba'kgroud to the death of the deceased. In short, this is what the acc1.sed told the justiöe of the peace.; one day he and-i---' the C3ceased l went to drink pombe at a house -.apparen.tly'his unol'e"s hotise. Before going there, the accused hid his gun - a guhorin some place for fear that it could be stolen ftm his houc which had a make-shift dobr At some stage in the course of drinkig, the accused left the place to go back to his hous.e. After, a short distance, he saw he deceased hide a basket in he bush and, then returned to the p.nibe party. L'he . accused then,, went back to 'the pombe party and told the deceased that they should go back to their house. The 3.eceased refused.,.,He then apped. her and she ran. away. 'hen elders intervened and., asked him' if he was drunki the accused rep1ie that he was not and then revealed that he had seen the deceas:d'hide a basket in,.the bush....When the basket was retrieved. it was fcmd to contain ciothes and other paraphernalia. his apparely L.rqused suspca.on that the deceased was trying to go away tb' sor pLace. . . .,.'. '/3 ( 1 4 . -'--3- 'hThebcused:toQk th gasket to h`9 house, and later he went about ioin .f or'. the deceased. He did not find he.. On c: Lie wayback:tohis.boiise, he passed by the'hóuse of his cousin, one Kusundwa. There he saw the deceased and one Bu.ndala another of his 'On seeing him, both the deceased and the said u,r'aia ran away from the house. The accused:, however, went to his, house and slept. In the small hourso the morning, he went to that house ain.to go and check. When he was near the house,, he overheard a coxversation between, Bunaala and his m,Qther. Bundala was telling his mother that...he was takixLthe deceased to her aunt at a place called Mpunze. ' ThereuPOn the accused decided that he would follow them. After following them fo some distance, he saw the deceased in the company of Bundala and some other man Oi seeing lum, the Three of them ran away and disappeared. , he actised proceeded to the home of deceased's aunt, but he did nøt find, the deceased there. He slept there hoping that he would turn up, but she did not. Next day he went to check in bu.ss, but to no avail Tie then returned to his home and, slept. In the small hours of the noThing he woke up and ai.i w to Rsundwa's house. This time he aw (or heard) a an ar oman sleeping inside the house Believing them to be the Ldc.3edthlat13und4Lia, he opened•the'dôor and flashed a tDrch. '1 hereapon.the manstarted,.raising'an alarm andruhed at the ,acsed. In:the ensuing struggle 9 the accusedp.hed Out"a knife and. stabbed the man twice The nan +hen cried bu.t '1 Kusufldwa' imekufa! As the man ran out of the house, the'ádused'iso ran away into the 'bush. The accused remained in thç bu.sh for two days. On the third day, he went back to his house at night, but there was nobody ; there. He t'hen went to his'uncle's house to find food. On arri.xai there, he heard the voice of the deceased inside the 'ouae However, he could not bring himsejI to ask them tc open for him. So he went back. into the bush and siepb...there for fear that he would,be arrested, Next fllQrning, he decided that he would go , Kaharna and iurrender himself to Police, but before .ddihg sO he went to coli h...s gunfrorn where. he had hidden it, intending to take it.near hi utT.'s house where his uncle would easily find it. On taking the gun, he noticed that it was wet So he deci. t" 5. it first. He then went into the bush behInd his iinôle's t.ous, planning that when it was dry, he would take the,gim near h.a uncle's house in the evening and set off for Kahama at niht . .•. / o atiqncI et .&q ppue.uo si S '.I)pItUtI O!. p unotzrt SeQ )€ttOJIO et UT ?UTTTT3f etq. etqet T oqiJtp sriot.xes UT si IA r1n eptta-erioq tfltM xet u -qoous q ET00p OtI PTTPT OLIPPO etI . ;T tij. eqJUISTp puo.&eq OT c 'ooed biq jo Tq. aq4., oxo.oq pu rnoç srtfl. e.xo;eq JVJ EO s pe sn 0 0 u etfl•.UoxffLfl 2T.PT. E PSTPetTS ETJ pUE pEep T. 'pesnoo Qql, ;b e;i 's s ot tqj czis To anu et. 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'UTOd e - cl q. r tIItTMES PIlE PaUX •e petnOo pornipo 't IS UOtN pOStiOO 9Lfl Duree - OI4TM os PTP eq . e.mqu jo TTEO E OpueE.ots -nq Stfl OtIT - 2utD100 e;p SILT MES S1 r -t7 - 4'. •1 , .• -5- V it iCS::j a reslAlt of provocation, which would make the offence that cf manslaughter, as contended by: the defence' 'Ater my summing u.p to the two gentleman assessors, they were unanimouslr of the view that the accused did the act as a r3sult of provocaion offered by the deceased. • As.'i told the gentlemen asessors,,.the law is that vihere a pex'son ku ther, under circumstances that would otherwise ciaksthe.offence that of murder. 'does the act which caue'Vs death V in the heat of passion caused by, sudden provocation, and before ' 'ther-:is time for his passion toQ9l. he is guilty of maislaughtcr and not murder. (See section 201 C.P.C.). V Section 202 of the Criminal Procedure Code defines 'rovocation as meaning and including any wrongful act or isult fV such: a nature as to be likely, when dOflC' V :tO an ord'irrson of the cOmmunity to which the accused beongs, to deprive him the power of self - control and to induce him to COIDJIIIt • afl asaultof the kind, which the person changed committed upon the rr'i1 by whom the , act or insult is done or offered. But a 1a'ful a'c i-fl0t . Xr0V00ati0n to any persQn for an assault. In her final submission, Miss Bigeye for the defence 3 b;:i"ted'thatcoflSideriflg that the deceased was adulterous; V 'that 1he accused had been in the bush without food or sheltr for -b11reeôr four dr; that when he went home to find food, shor sad .:;: sol.c the deceased, who was the only person to console V'''• I '' 'V V himj&Cnied h±.th love and water and instead raised an alarm; and 'as the accused had reason to believe that the deceased had the meantime reported to Bundala who night come to eliminate him', all these had the cumulative effect of frightening and ,ering I iV the'accused to. such an extent that he lost his powor of self-control and' so shot her in that heat of passion. ' V On the other hand, Mr. Ohailafr the Republic submitted that in the circumstances, the defence of provocation 1-was iiot V available to. the accused. In Mr. Uhailals submission, from his •, statement the ccused was not all that confused: he was cool and they tlked, and since he was in danger of being arrested, the moot ac. thing'for'the accusedta-have done was to run away and o;.tc 'shoot the deceased. In his ,submission, the acctxse ' s act of shoting the deceased was premeditated and planned; V To start with, the detailed statements of 'the accused has not in any way been contradicted, and on my own view of those 5 tatements and the accuseddemeanour before this court, I am imolin.• to believe t ha 'yat he told, this court and the. justice of the pe.aC, is subtauitial1y what happened. " V •V V p. I wi1l therefore, proceed to deal with the matter on the basis o the accused's story. ' Some four or five days prior to her death,the decuased had clearly offered the accused serious provocation she luft the aatrimonial home for no reason at all andfor two consecutive • clays she went about conumitting adultery with the accuse's cousin. .ae continued to commit adultery even aiter she i 1 known that the accused had discovered this fact. ihen,ds i ater must have know4,t1the accused started looking for her, ort '±bo hiding with her. paramour' in the course of which tho occ] oore or less caught her in flagrante dclicto and he wounded her ,aiour ven after that she did iiotgo back to hr matrimonial home On the day she met her death, the'factsdo not reveal the accaced. as. a man who had ilanne.d to kill the deceased, as suge.ted. b 1 learned state attorney. On the contrary, the facts revh the aecsedas a hungry and tired man who, uon seeing his wife, was p spared to forgive her and seek her assistance. He did not eic,i try to remand her about what she had done If he had plaaiied -c kill her and was hiddang there in wait for her surely he could - cve shot her while she, unaware of his presence, attenaecl. to a call • of aature near him. . It is,I conceddi a forc.efulcarg'umeït tay that since • some four days. had passed since the deceased had offered the • nrovocation by her adulterous conduct,, the accused's passion had id time to cool. But, in my considered view, th'ci would be taking the events and looking at them in iscieti. n in my view, the events of th . e previous four days,..which :.:ci .cure'iy have a nightmare to. the accused, and those iihediatcl. ore the deatn of the accused, ought not be considered in isolation, they were a series, .a contining series.. So it is their cumulative effect tIc t 'must be considered.c . There is anothe" possible argument. againt the defence of pac cc tion in this case, the alarm raised by the deceased could beaj,,J. to have been a la*ful act in that jt'wàs intended to have tho acu.se'd.arrested and bring him to book 'for'*ounding a man; and so±he argument would rIua, 'since a lawful act is'no'provocation an assault, the accused cannot claim provocation But the matter is not as simple as that. One must consaci L the last act of 'the deceased — that of raising an alarm - not in o1ation, but in the .li.ght of the earlier evëits, and how, a reasonable man, put JLn jhc position of, the accused under those circUmstances, would have interpreted the deceased's alarm, and hc sLCh a reasonable man would have reacted. ... ...............' . . /7 7 - The accued interpreted the deceasedis act of raising the alarm as having been made on the advice of her paramour (she had been away for two hours), and bearing in mind what the accused. had one through as a rsl eu of: the deceased's om misconduct and also considering her failure to recirrocate the accusci's hafld of reconciliatin, I . wOL1d respectfully ag±ee Wihd.;the:wi3.iOus cinions of the gentlemen assessors, who are ad reasonable men of the community of the accUed, that f :: u'ctivc effect of that series of, events would h3ve excitea Ic man to the pointof doing a rccklesst. 1 can.x t esist recapiti..lating the gentlemen assessor' s rc3s,Onng. The first gentleman assessor said, inter: alia- "She acted badly by going with a cousin. The accused regretted and....decided to coie •home hoping that his wife would recpiy and help yet deceased never saw the point. 11 The s eo ond gen tl eman assessor agreed and added:- "Any man would be very angry and COflISd. She was the guilty party. Anyone would have been provoked She was to blame." Tiere is, I think, yet another argunent agiiñJt the accused?sIe±ence of provocation. The use of a lethal weapon such as agtuand/or the numberof blows i1flictdona deceased erson sometimes inferentially suggests the presence of :ialice orethou.ht and. sometimes goes to negative the dcnce 01 pr vocat±on In my view, howevër each case mast .b L: c id.ed ci the isis of its own pccul]larcircumstances In 1i case, the lethal weapon, the gun, was n o t lying in some o: clace: i t was lying.1iect to hip arid it is common knowledge that a tersen cting in the hear of ~ assion is:not always in a position ic CJ.iOOSO to a nicety thee. of weapon to u s e on his victim. So, thc i:c't that the accued used a deadly weapon is not; erse, proof that he acted i.thout-provocation. how, since the qnue of proof always lies on the prosecution, vr being on he ccesed to establish provocation (Kabaya v (i9 1 )E.A. 580, 84i an d Nyarongo V. R., 22 E.A.C.A. 422) and as the circumstances stio!gly suggest that the accused acted as a result of rovbcatio1,.while •tee is little to netive provoca tion, I am of the considered view thatth e ccusd is entitled to tbi benefit of the doubt. For the foregoing reasons, I hold, in respectful deference to the gentlemanasèsors, that the accused killed. the decascd as result of p±ovàbation,. I accordingly find hi accased not guil: of murder 9 of which offence .1 hereby acquit him; bat I fj..n• him guilty of the lesser offence of manslaughter c/s 195 of :he Penal Code and duly convict him of that offence forthwith. Jh~11ill B.D4 CHIPETA JUDGE. 8/2/82 Coram:- B.D. Chipeta, Judge' Counsel- as before. Accused- resent :Tr. Chaila, .ccused has no p revious convicci . Mitigations: My Lord accused is a first offender. has, thr . children with his other wife. He has no parents., He hs been in custody for over 4 years. ;Je pray f or leniency. Acca:id: Mywife is in Geita ....... -.. I just went to Kahama to visit my relatives. P E N C E The fact that the accused is a first off enã.r, and that hóh.s been in custody for ove± four years are matters that eai lcadiy in faou'of leniency. However 9 there can be no denying that this was a bad case of manslaughter. . .. . I, therefore 9 sentence the accused to ten (10) year iLiprisonment. B.D. CHIPETA . . . JUDGE . Right of Appeal explained. 7 B.D. -CHIPEPA JUDGE Gnt1er Assessors thanked and discharged. Z , B,D,CHIPETA JUDGE 8/2/1982. . . . I .