19831212 TZCA Dar es Salaam

; IN THE COURT OF APPEAL OF TANZANIA AT M\JANZA CRIMINAL APPEAL NO. 30 OF 1982 BETWEEN 1.MWAJUMA ?'IAR'.-'!A G,) o o •. o o - .- o o o APPELLANTS 2 .KWI REN GE BEGA ) ·• • • 0 0 • • 0 O A N D THE REPUBLIC e • 0 0 o • o o e 0 0 0 0 0 o o o e RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mus om a) (Kati ti, J a) dated the 1st day of June, 1982 JUDGMENT OF THE COURT ____..._____ KISANGA, J eAo: The two uppeliants Mwajuma Marwa and Kwirenge Bega were jointly churged with and convicted of murder and were each s·entenced to c1cc1U1. .They are now. appealing. - . Both uppe11ants were the wives of the deceased Mashauri Wang\•;e. The deceased was an elderly man aged about sixty years _and. marri~d to a total of eight wives. The appellants Mwajuma and I<wirenge were the seventh and eighth wives aged twenty-four years. and nineteen years, respectiv.ely. The marriages between the appellants and the deceased had not been hapoy ones. 0:1 -b:10 occasions the appellant Mwajuma had deserted the deceased but the latter traced her and brought her back .. Indeed the deceased 'had fi'led .a--suit_ iri the Primary Court to recover the bride price he had paid in respect of Mwajuma on the . . . the ground that he could not cope with-Mwajuma's conduct of running away from him. The appellant Kwirenge too had. run away. on one .occasion but thi::: deceased traced her and brought her back. 0. 0 .,/2 JI 2 On the night of the incident Matinde Maswc ( PoWo 1), heard the deceased shouting frorn the house of the appellants, her co-wives. On going to see what it was all about, she saw both appellants cu·cting the deceased, Mwajuma using a panga and Kwirr->nc.,re - ~ us1·11cr~ a "si·me". The d ecease d d.ie ct in~~ant · -'- 1 y from the injuries so inflicted by the appellants. The. ap.pellants did not dispute the killing, but put up defences. Mwajuma's defence was ess•'.'!l1tially that she killed the deceased while she was under the influence of drugs, while Kwirenge' s defence was that she was compelled or forced by Mwajuma to participate in the offence. The learned trial judge duly considered the defences but rejected them., In this appeal Mr 0 R.W.Go Rugarabamu appeared for the appellant Mwajuma while Mr. Mwale appeared for the appellant Kwirenge. Both counsel sought to pursue the same defences which were advanced at the trial. Mwajuma's defence was contained in her unsworn stateme,1t of defence which she made at the triala That statement was e;:;~tremely brief and may be reproduced in fu1·1: 0 0n that day I had drunk local medicine and some tablets. I do not k,!OW what I was doing, I must have bee:1 mentally upset. That is all I have to say." .. Earlier on the prosecution had put in evidence an extra-judicial statement made to u justice of the peace in which the appellant had stated, into1~ alia, that she took some tablets just before the incident happened that night. There was other prosecution • ~ evidence also·to the effect that .the appellant had gone to . ' hospital · i11 th,'.'! morning on the day. o·f the incident. Mr. Rugara- bamu, therefore, urged us to find from this that the appellant committed th2 offence while she was under the influence of drugs. 0 .. 0 ./3 '. 3 We arc unable to accept this viewo We think that there is not sufficiei'lt material on which to make the finding as urged by the learned counsel. There is no indication as to the type of medicine or tablets th2.t the appellant tooko Nor is there any indication as to the amount takeno For the defence of this nat_ure to succeed there must be something more than a bare allegation that _the prisoner took some medicL1-::co There should be evidence, for instance, showing or indicating that the type of medicine taken is one that is capable of impairing the: prisoner in the manner it is being alleged by the defence. For, it is not every medicine that is capable of produci'ng such results., But what is more is that the appellant's conduct immediately uftcr the killing does not support the alleged defenceo (- I"Tlmediately after the killing and while the alarm was being raised, th_e appeLl;u nt ,-.1Emt and buried the murder weapon in the garden and hid he:•:- blood-stained clothes in the house of a co-wife.. This can hardly be said to be consistent with a person who is under _the influence of Grugs. It is clearly indicative of a person who is in .. her proper senses, a person who fully realises the wickedness of her own act and is taking appropriate steps to try to prevent being detected. For these reasons we are satisfied that the appellant's -def,2nce cannot succeed. ·Mro Rugar.abamu also raised the defence of provocation but abandoned it, and we think that on the facts of this case that rl.efence could not be raised at all. Mr. Mwalc for the appellant Kwirenge strenuously contended that his client w2s forced by her co-appellant Mwajuma to participate in killing the deceased, and in this 'connection he referred us to the provisions of section 17 of the Penal Code which provides: 17. -.A person is not criminally responsible 11 for an offence, if it is committed by two, or more· offenders, if the act is done, or omitted, only because during the whole of the time, in which it is being done or omitted, the person is compelled to do, or omit to do the act, by threats on the p:'.:lrt of the other offender, or offe- nders instantly to kill him, or to do him grievous·· bodily harm if he refuses; but threats of future injury do not excuse any offence 0 ". 4 Mro Mwale relic?d on two pieces of evidence to establish this def,:_nceo Firstly, there w2s the appellant's unsworn stotement of defence at the trial in which the appellant had claimed that Mwajuma told her that they should k:ill the deceased and threatened to kill he:: if she refused. Sh_-:" bud further alleged that when she tried to refuse, Mwajuma gr,:bbec1 her by the left side of the neck o The second piece of evidcmce was the PoP o 3 in respect of the appellant put in evidence by the prosecution and showing that the appellant had sustained bruises on the left side of the neck. M.to Mwale therefore conL;l"J.dcd that his client was under threat by Mwaj"c:ma to be killed instantly, and so the case came within the four corners of the:: sc~ction quoted above. We have <Ji ven careful consideration to this argument but, with r'""sp·2ct to the leurnect counsel, we think that it cannot be sustained. In thL, first place, while the appellant and Mwajuma were hacking th2 deceased to death, the door to their_h6use was open. If the appellu.nt was not a willing participant what prevented her from dissociu.ting herself from. the murderous act and run away? Again when, during the killing, PoWo1 came and asked the appellant and Mwajumu whc1-t they were doing, and Mwajuma in turn went out and chased P W.1, \•;hat prevented the appellant from running away then? 0 Immediately after the killing, the appellant and Mwajuma falsely told the villagers who answered the alarm that the deceased had been killed by thugs. If the appellant was not a willing particir-=int one would expect her not to join in telling a false story but to contradict Mw.~juma _and to disclose the defenceo It is strange that she did not clo this. Indeed she admitted the killing only after she w,3.s beaten up ·and tied up with u rope. If she had been forced to participote in the offence \</hy did she not readily admit the offence and disclose the defence at the earli~st opportuni·:.-/? In our view, all these points are not consistent with the allegation thnt the appcllnnt committed the offence under compulsiono eooo&/5 5 The f,·:ct that the appellant's P.P. 3 shows that the appellant had sust11ined bruises on the neck does n·ot necessarily support her allegation that Mwajuma grabbed her as she forced her to participv.te in the offence. After all, if Mwajuma only grabbed her, it is most u;1likely for a mere grv.bbing, without rnore, to cause bruiseso Such injuries are consistent with the beatin·g and the tying of the appellant before she had confessed to the killing. For these reasons, we think that the appellant Kwirenge' s defence also must fail .. F. L. NYALALI CHIEF JU STICE A. MUSTAFA JU::.iTICE OF h.PPEAL ) R.H., KISANGA .JU'.:,TICE OF APPEAL true copy of the original. SENIOR DEPUTY REGISTRAR