19840720 TZCA Dar es Salaam4

IN THE COURT OF APPtAL OF TANZANIA AT DAR ES SALAAM (CORAM: Nyalali, CoJe 1 Mustafa, J.A. and Kisanga, J.A. ) ..... --•· CRIMINAL APPEAL NO. 34 OF,_ 1982 BETWEEN MOHAMED! MJELA • •. o ,. • • • • o o • • • • ,. o o APPELLANT· A N D THE REPUBLIC • • • 0 ., Q O .•• •.•.~ •. . RE.SPONDENT (Appeal from i:he conviction of th~ High Court ·of Tanzania at Dodoma) ( Mai na , J.o. ·, ) dated the 27th day of May, 1982 JUDGMENT OF THE COURT NYALALI, C.J.: The appellant Mohamed Mjela was charged and convicted for· the----Gf.f.ence of murder and sentenced to suffer death by; hanging in the High Court at Dodomao - He-wa.s aggrieved by _the ;;. -' conviction and sentenc~, hence/fhis appeal to this Court. His appeal was argued before us by Mr. Rweyemamu, learned counsel from the Tanzania Legal Corporation and the re~~ondent was represented by Mr. Shaidi, learned Senior State Attorney. The proceedings both in this Court and the. co1..1-rt below indic~rte that the followirig primary facts are either comtnon· ground or undi_sputed. betv,een the parties: . On the 7th Marc?, 1980, early at night, one Zainabu Hussein, who.was a former wife of the appellant and a tenant of Egla Mash aka (P .. w. 5) i_n Mpwapwa Township, was hit or'I the head . by the appellant . using a pounding pestleo· ··. Thereafter, the appellapt •,!, . was . . ' arrested on the same day, appare:ntly ";'hil e he wr.1 s on his way to surrender himself at the police station .. ; ~ { .!_ The said •!,"/2 .• .· Zainapu Hussein was taken to hospita,I where she di.ed three ~ days,,l ater. A post~mort~~ examination was performed by a I doctor on the body of the deceased and the cause of death was stated to be "ruptured ileum and subdural haematoma in left femporal +eg.ion". .• Prior to 19i9 the appellant and the said Zainabu Hussein had',•been husband and wife under customary ' marriage, I which, was· bless·ed with· a number of childrE:in;' but the marriage was dissolved by court decree in March 1979. Prior to the inc;:ident on the material day which resti'lted into the appefiant hitting his former wife on the h:ea'd ,. the -n . appellant h'ad gone to his former wife's home, apparently itj conne.ction with arrangements to resume cohabi tat.fem· but the deceas~d 'refused to go along with such arrange_mepts. Accot'chng to , th~ 's3me proceeding S, the fol lo~fng pr!nr1try . . ' and·. secondary facts, Which are material to this casef .are in dispute between th_e parties: It is the prosecution case that when the deceased 'refused to go along with proposals for re~umptidn of cphabitation, the appellant retaliated by hitting her on the head with a pounding pestle, and that her death three days i~ter was a result of j:he inJury inflicted by the appellant. Furthermore, the prosecution asserts that the appellant had malice aforethought in killirtg the·,. ,deceasedo On the other hand, the defence asserts that she., insulted him b,Y telling him, in effect, that he should no. longer ' bother about her as she was prepared to sleep with a man in his presenc~: Such words, in view of the defehc::e~ were so provocative that the appellant iost his sel'f'.:.:co;rtti-o'.l.~ 'I' . , picked up a pounding pestle nearby and hit her wi'th it~ • • o.a/3 / ~ 3 One of 'the most important· points for consideration / ~ and decision in this case is whether the death of the deceased tpree days later was occasioned by the injury inflicted by the appellant. The learned trial judge ~onsidered this point and stated in _ one part of his jud~.ment as follows:- "From the· evidence on record, . . there can be no doubt, . and the accused does not dispute, that the deceased was hit on the head by the accused who used a very heavy pestle. The learned defence counsel submitted that _the post mortem examin_ation report shows that death was due to ruptured ileum and sub~ura+ haematoma and that since the rupture on ilhe ileum· is mentioned first, that was the primary cause· ~f dec'.3tho Lea_rned c·ounsel. went on and said that as it wa·s· not known what caused the rupture c:m the ileum, . the accused dicf not cause the death of the_ deceased. First of all, it mu_st be pointed out that according to. tne. :.:- post mortem examination report, t_he injury· to!the ileum which is a part of the intestine, was only a ':·small :rupture"., But al though the head injury was externally small, the docto~ found on opening the . skull, - that there was -'a _"big subdural haematoma on the parietal area" and that was under that eiternal head_ wound. When one looks· at the heavy pestlf_'wt'lich. the accused used 'to hit the_ deceased, one cai1not fail to conclude th-at that weapon .was· _capable of ~ausing that big subdural haematoma~ - · Furthermore, one blow on the head with ·that pestle was capable 0£ _ sending the deceased to th~ f_loor, 'hence · the _rupture _to the ileum. _But although the rupture on ·the i\~um is mentioned first, the deceased died _ _,. from botp injuries but rriain'iy the big subdural haematomao I say so because having seen that ·heavy pest:).e, I do not hesitate in saying that the head inJury which ~as fc:>l'lo'wed by" instant bleeding and a bi'g subdtiral paerii-atoma caused the death of ·the deceased. r, am s~tisfied that the prosecution, has proved beyond re~son':3ble _doubt that the·_ ~ccu,sed caused ·the · fnj_'uries ,from which."the. de~eased die9-. ,;·• . ,., \\_: •. · • :'¾' .... . Mr. Rweyemarriu, learned counsel for the appellant, repeated before: us the suJ:?missions mad~ on behalf of the appellant at the trial. ; With due respect, we can find no merit in such.submissions.· The post-mortem report stated quitQ categorically-that . ~. . '.. . . .. death was due· to two factors- - ' that is, .i;tfp~ured i~eum and s~dural haematoma in the left ••.••. /41• <j • 4 • ,._,xemporal region.. Whatever c1rnsed the ruptured ileum; there can be_, no doubt that the subdural haematoma in the lef:t temporal iregion was as a result of the injury inflicted -by. ·the appellant by hitting the dec·eased with a pounding pestle on her head. Under the provisions of section 203 of the Penal, Code which deals with causation of deat_h <and paragraphs (p) and (e) are particularly relevant i_n -thi:s case), the appellant cannot' escape responsibility for causi:ng the death of the deceased. We concur"wi th thre fin~ings of the learned trial judge on this point~ The next poil"lt for consideration and decision irl'-thi.~·: case is whether. the appellant had malice aforethought iri k~lling the deceased. The learned trial judge considered this pC>int ,an<,i _stated in another part of his judgment:- "The accused's. defence that the deceased said that she could call a man and sleep with him in the presence of the accused, cannot be true at allo His son P.W.5 Baraka was on-ly four paces away from where the accused and the deceased were and the witness did not hear the deceased utter such words. I am·· satisfied from the evidence, that the accused who had been divorced from the ... deceased f.or ·one year was ...;forcing the deceased to go to his house, and' when the deceased refused the accused hit her on the head with the pestleo The accused had no legal justification in doing thato The deceased was a divorcee and so she was fre·e to live anywhere she wished. Even if, for -the· sake of argument; the· deceased ha,d. said she could call a man and sleep -with him: in::.:the presence of the accused, these words do no't afford the. accused legal provocation. -I say so because the deceased was already divorced· and so she was iao longer the wife of the accused. : · The question of the accu§~d.being· provoked when the·· deceased said that she-. could· sleep with· any mari " in the aceused'.s presence·,: ·does n:ot arise., In any•· case,. there was no man ·present at the house at that time. It is for those reasons that I hold· that · even if the deceased had •spoken the words as· alleged· by the accused, there ·was no justification i·n the· accused hitting her .on• the head with such a heavy· pe-s.tle. The assau::.. ·;: ·,v·as therefore unlawfui'o ". 0 •• /5 • . .· - . 5 _._ I. Mro Rweyetrt-~rnu ·13_ttacked the vi.ews and.-f·-indings of t}:le . ~- learned ~~. ~- . . tri_al j~dge · regardln~ ,,th~· •·i;bse-nce ,of provocation by submitting that ·the· iea·~-ned· itr;i.aJ, judge did not direct his mind to the t:ul'tu·ral" h~ck-ground o-f.~the parties, who were ·-. . ;.,:-~ .c- members of the "Wagbgo 1i.t.t.ibe.:·_•He stibmi·tted that there was evidence that the br-ide · p·tiice had not been refunded insp'ite of the court divorce.. .Such ·a situation, in Mr o Rweyemamu' s view, !)laced the appellant in a position to feel entitled to_ certain -~bnj:uga1 rights towards his former wife whose sexual . re:marks .' would il:hus be provocative. With due respect .. ,l·... r· . tb,.Mro.•. ,Rweyemamu, we are unable to agree with him in the light • 1. . . • of,-t.h-e evidence which shows quite clearly that at the time of ~he .attac:k on his former wife the appellant understood ·that the co't1.rt divorce had severed all marital relations between themo Not surprisingly, one of the gentlemen assessors expressly opined to the trial judge, "I do not believe the accused's defence that he was abused by the deceased.~'-•·' We agree that the. appellant was not in a position t9 ·be abused by such remarkso However, the absence of provocation does not- necessarily meat? that the appellant had malice afore- thoughto The learned trial judge stated in another part of his judgment as. follows:- "In order to prove murder, · the prosecution,, rriust prove malice aforethought: which, under section 200:( a) of· the Penal Code/; i$ an inte·ntion to ,kill or to ca{ise grievous· ·harm..; · I inust say s·tr~ightaway that anyone using a heavy ·pestle l:i,ke the one used in this case and hitting 6"r1 ·the head like the. accused did, must have.,intended to kill or a·t least to caus~ grievous harrn. Th~_ J'lestle (Exhibit P 3·) i,s so heavy that . one·has·to:-use ,.,· . . both'.'•h'ands ·: . ... to. be able to use it• ·-,;ii. to strike- anyone.-.: _So the. accused must have used 8.0th · his hands when ·he held. •th~ pestle and h:i. t the deceas~d · on the head. ···•'.I'he'.:,.i::i,ccused ,, .i.~~\·my 'opi~ion, intended either to kfll the' deceased ,:~~<te:.cause her grievous h<'lrm,.·n., '·"·, :·,,.,.• ,. .• -,;,;../f, .>· I ' .,. . 6 I: ._,, ~ , the · " We agree with / views a·hd, finding of the 'learned tri'al judge .on this aspect of the .case. There can be no doubt· that i~ using such,. a :heavy object to attack the deceased,. th:e appe11·ant intende·d:·. at .least to cause g·rievous· bodily. harm to ·the deceased. _..~_ince_ on the fac-ts o:f ·this o~s·e 1·. • ·no· otl)er defence· is open· to' the app~llan:t, this appea:1 cannot •. .t' succe~d '~hd we are bound· to di~miss it in 1 ts enti-rE:!JY and we .order :accbrdingl.y.o DATED at DAR ES A. MUSTAFA JUSTICE OF,APPEAL