19831212 TZCA Mwanza1

(JI' — IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: NYALALIC0J,,.MUSTAFA, J.A. &• KISANGA, J. A. ) CRIMINAL APPEAL NO, 30 OF 1982 B E T W E E N 1. MWAJUMA NAR'JA &) , . . APPELLANTS 2.KWIRENGE BEGA ) • • . . . A N D THEREPUBLIC. • . . , RESPONDENT (Appeal from the conviction of the High Court of Tanzania at r-Iusoma) (Katiti, J,.) dated the 1st day of June, 1982 JUDGMENT OF THE COURT KISANGA. J.A.: The two appellants Mwajuma Marwa and Kwirenge Bega were jointly charged with and convicted of murder and were each sentenced to death. They are now appealing0 Both appellants were the wives of the deceased Mashauri Wangwe. The deceased was an elderly man aged about sixty years 'and married to a total of eight wives. The appellants Mwajuma and KWirerige were the seventh and eighth wives aged twenty—four years and nineteen years, respectively. The marriages between the appellants and the deceased had not been hapoy ones.' On bio occasions the appellant Mwajuma had deserted the deceased but the latter traced her and brought her back. Indeed the deceased had filed a suit in 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 the deceased traced her and brought her back. r - .'-.-. --- • -• -2- On the night of the incident Matjnde Maswc (P.W.1), heard the deceased shouting from the house of the appellants, her co-wives. On going to see what it was all about, she saw both appellants cutting the deceased, Mwajuma using a panga and Kwirençje using a ttsi me lt. The deceased died instantly from the injuries so inflicted by the appellants. The appellants did not dispute the killing, but put up defences 0 Mwajuma's defence was essa:itially that she killed the deceased while she was under the influence of drugs, while Kwirenge 1 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 thorn. In this appeal Mr RWG Rügarabamu appeared for the appellant Mwajurna while Mr. Mwale appeared for the appellant Kwirenge. Both counsel sought to pursue the'same defences which were advanced at the trial0 Mwajuma's defence was contained in her unsworn st- atement of defence which she made at the trial. That statement was extremely brief and may be reproduced in full: "On that day I had drunk local medicine and some tablets0 I do not know what I was doing, I must have been mentally upset. That is all I have to say.".. Earlier on the prosecution had put in evidence an extra-judicial statement made to a justice of the peace in which the appellant had stated, inter 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 Id qone to hospital in the morning on the day of the incident0 Mr. Rugara- bamu, therefore, urged us to find from this that the appellant committed the offence while she was under the influence of drugs. • 0 0 0/3 3 - We arc unable to accept this view0 We think that there is not sufficient material on which to make the finding as urged by the learned counsel.0 There is no indication as to the type of medicire or tablets that the appellant took. Nor is there any indication as to the amount token. For the defence of this nature to succeed there must be something more than a bare allegation that the prisoner took some medicine. There should be evidence, for instance, showing or indicating that the type of medicine taken is one that is capable of impairing the iDrisoner in the maer it is being alleged by the defence. For, it is not every medicine that is capable of producing such results. But what is more is that the appellant's conduct immediately of ter the killing does not support the alleged defence, Immediately after the killing and while the alarm was being raised, the appel]ant went 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 drugs. 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 defence cannot succeed. Mr. Rugarabamu also raised the defence of provocation but abandoned it, and we think that on the facts of this case that defence could not be raised at all. Mr. Mwale for the appellant Kwirenge strenuously contended that his client was forced by her co-appellant Mwajuma to participate in killing the deceased, and in this connection he referred us to the provisions o section 17 of the Penal Code which provIdes: 17. - A person is not criminally responsible 11 for anoffence,..if it is committed by two, or more offenders, if the act is done, or omitted, only bc-cau5e 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 pert of the other offender, or of fe- nders instantly to kill him, or to do him, grjvos bodily harm if he refuses; but threats of future injury do not excuse any offence,". •. -4- Mr. Mwale relied on two pieces of evidencC to establish this defence; Firstly, there was the appellant's unsworn statement of defence at the trial in which the appellant had claimed that Nwajuma told her that they should kill the deceased and threatened to kill her , if she refused. She had further alleged that when she tried to refuse, Nwajuma grabbed her by the left side of the neck0 The second piece of evidence was the P.F. 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 neck0 Mr 0 Mwale therefore contended that his client was under threat by Mwajrna -'Co be killed instantly, and so the case came within the four corners of the section quoted above. W have given careful consideration to this argument but, with respect to the learned counsel, we think that it cannot be sustained. In the first place, while the appellant and Mwajurna Were hacking the deceased to death, the door to their house was open If the appellant was not a willing participant what prevented her from dissociating herself from the murderous act and run away? Again when, during the killing, P.W.1 came and asked the appellant and Iviwajuma what they were doing, and Mwajuma in turn went out and p0r4011 chased what prevented the appellant from running away then? 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 participant one would expect her not to join in telling a false story but to contradict MWajuma and to disclose the defence. It is strange that she did not do this. Indeed she admitted the killing only after she was beaten up and tied up with a rope. If she had been forced to participate in the offence why did she not readily admit the offence and disclose the defence at the earlieSt opportunity? In our view, all these points are not consistent with the allegation that the appellant committed the offence under compulsion. - -5- The fact that the appellant's P..F.3 shows. that the ppellant had sustained bruises on the neck does not necessarily support her allegation that Mwajuma grabbed her as:,she forced her to participate in the offence. After all, if Mwajuma only grabbed her, it is most unlikely for a mere grabbing, without more, to cause bruises. Such injuries are consistent with the beating 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. In the result, we are satisfied that the appeal of both ap nd it is accordingly dismissed. -' 1 4TED4:MJA'JZAthis 12th day of December, 1983. / ... // F. L. NYALALI • CHIEF JUSTICE AC JUSTICE OF APPEAL •t '' ... RoHe,KI:SANGA JUS TICE OF APPEAL • 'C' 'I certify chat this is a true copy of the original. / A- .. .KANDO) ''SENIOR DEPUTY REG3TRAR