19840726 TZHC Iringa

- .-.. .- H&- 1N T IF H IGH C IR j_T IRINGA • (Griginal Jurisdict n (:yA REGISTRY) • dRIMINAL 5E)SIi'S C.F\ 5' CF 19 THE REPUBLIC VERSUS BITN 3IANKET_MVELA •. CHARGE: MNSLAHER: Cc'ntrary to Secticn 195 • f the Pknide. • JUDGMEN1 MAINA, J.: . ... -• The accu'od, BIT N BL'NKET M\TELA, stnds charged with Murder Crtrary to Secticn 196 of the Penal c.d It is ai1qd by the reecuticn that on r 3heut trie 20th day cf ctcbr, 197, t Uriyangala Vill -ie In Makete District, the accused murdered cr* HESN KIPLE MVELA. Th charge is deniedo C' evide nte that Ne1efl 4p.e There war, undisputed nrsecutin " fr]a is dead and his deth ias due tc head irijury, and abd4&fl4 i amcrrhige du te ruptured liver. That evicence was civen y PW.l i3c'hanes Kang : a 1'vele wlc identiaed the dod bed" and also th ct- Id- tem examinadci rrspert (xhibit p)) whidi hc'wed t"t the d4ceased had sustained several injuies t hese wexe fictured left rtb1 Uptured left liver lc'De fractured right t1pdrl skull As aesUlt of ..nese injurie, th d'ccised a 1 sc' sustained extra dural and intra abdetnlnal haemc'rrage. The cause leath was hypoVo- 1mJcshc'ck f61lwni h - injuiy aid 'ntr Dc1m1a1 haemrge -". due to ruptured liver. I am satisfied, and s held, that the Nelsen Kipele Mvel'a dead and his death'was due to the injtrie4 There haThise been no disput that the accuscd caised the tnju.'ej. The enly diszt is wict the acused kiL ea accoased wits malice afcrethuqh. The prc'se ut± evL"nc on rhc circupsti es 1ecing t' killing if t decseL as .'en by twc trs . Pi 1 .2 Tuhuvi • : • Edw - rd Mvela was a the mite al t im thc wlc c ,th cCUe'5 brc't'er. 'who was st riç t Iringa w r . ne 1uhuvi1ae had been sta" ' t I + 11nye1 a in istr i :, "r rn er s v a meuriing 4 ;••. in te vil]aqe. Purlrlci ie qn -, )O/lO/ 9 at DCUt 11 1D, *e 1 : _________ - - • a, ,. •a4'â - . • p (2) heard sc'meene khkin at her dccr. uhuv•±iga' wc in the hue with an&thr wemari -jnd te children, P) 3 Eri Sar a th n aged seven years and &wthe bey aged a ut eiqrit 'ears. It was a dark night and tnere Wti s cc 1mp in ta'. rccm ecerdriq to Tuhuvilage, the persen who ws knc'ckinq a t the drr, wats the de 1ceased NelsCn Mve.la who wa adking fer c'rne fire. Tuhuviiqe r cegnized him by his veie the deeasd was a rd 1 tive c'f uhuvilage's qaki6father. Because 11hVi1ae reccgnzed the decased's veice, she allewed him tc' gc' inside. The deceased th€n entered the hc'use ard sat near the fire - close t.e whte Tuhuvilage was sleeping It eppeared tiS Tuhuvilade that the dceased was druck as. he would nt moe tit and remained by the.. tireolce. P.3 Erc was awake and he te said that the dded entered the heu.e aid asked fer fife. Then the accused arr vd thcr, oushed open the d.c' 4'r -'-d he entered the house doiandinn to knee who was there. The deceased, instead f saying who he was a nd 'e a was d'inq in th hdse, r -in cut f the heUs. nd the accused picked a. pestle And,fo'llowed 'hi'mi VW.2 Thuj 1,aae rem ii'ide and she heard the S(Ufld made by the pes as it hit the deceased., B c'th, the accused and teced dis ap€red0 ter duiir1q tnt same iight, P .1 Yc4ne' K-inga J 4t'e]. resiknt ef th sair viii t was nferm d by th eceands brther, one pekie1 M l, that th deceased had been asau1tde c'h.aes weit to the dec--ased's hous,2. where he f-u4 th deceased who a1d th f hc' had be d asauttd by the ccusod, The doceaed had suained head and back afjtr's. 1 ne dcasod was sett c thd hOspita'. whe he did the fc'l1enq day he accused was itndiataly arres and he has been in custody ever cir1c. . The accusd'c defLr'tcc was thaL he kn-w t t hid brthe ws away t Tringn and th t hi s brc ther's wite. PJ 2 Tuhuv4age wi4 at her mother's hcus. 'n th haqht of 20/10/1979 0 was on his w hee when he passed n r the icusa wnere Tthuv laqe was stayin The ccused ,.w.as..th•an a primary schOOl boy. He heard nises ef -€Wc pecple inside the ic'u - a nan mI a w-man W-re t-/11ng. 44 teceqnizzd th worn 's voice s U- -Sf us r--thr's wife T3 ) fl.n4ge. Ije could not rrcnc17 I r 'S VC '3 nc'k' in a low v4e nd sometim' whio Led T ccu w s c to the heue as he listened tothe denvorsat±n. The rn•n was asking for sexua intercourse while th wa r .sted suinc t there were chi'dren in a r n I t t. S q uspe ted the obus. 140 (3_ o heard meemehts the mt inside tho, heu4a and helievd that - the nan was h vl.ng sexui1 intLrc ursa wi th Tuj klivil:u . ge. fhe accused said that J-ie lest self-central end f reEd nis way intc the hr Use by pushing the dc''r He dmanded,..kneW. wh fir'ith brcther's wife. The can inside the hcuse gt up and instead f • sying who he was, pushed 4:he accuaed and b: th fell dc'p+ The accused picked a pale near the dccr and he hit the man twice. . As the rnn' 't. out of the heusd, the accused hit him again with the stick. he ácsed said he did net knew WC the man was s the mars disappeared! The accused ent home' and en the fallewing. day he was in'rmed that the Than he hadbeten was Nelsen M#e.La. The accused w a s arrested. arid bsequently charged. h2 said that he did net wish to c1l a witness. The ac.cUsd's defence seems twe-Eeld, Firstly, he relts n prc'vcatin t h a t he lst self central wi2n he Ednd :his hrethe' wife in tha..act of cemeittina adultery. 3c'th ascssers were ef the cpinicr that no ar1ultty h d tkn rlace and th't even if th ha& be e n aU1tery cc'mmitted, the addused wcüld have 'eperted to auth'- rities. There was eldno that the: deceased had gene to the h'use tc' ask for some fire. Tht3s w:itUhuViiage 'J3 ric Saa sid. I feund Erie's evLdeic difficult to c'ilw. 1 - 12 said he had blodm asleep and Uid net knc - W whet had happenad ?ut ] ater ha dlt eti that the detea6ed went tric to , ask far a fite. It Eric who 14 S tert aged seven years, was aslea he cculd net psi1ly have seen ' ~Fh nk he Jl ead b t si aw . It was t abUL 11 P.M. -nd it is Mhly prcbale that Eric ws al ap and he did net Ic: aw what tack pe as he. said in his eideflce There remaine the evidence of Tuhuvilga. She sid chat sh- dd net c ln,*t idultery with 1 he deceased. Certain.iy, n-rne . an expect h tt admit tht' sh had c ommitted adult ry. t 1 aiw ys dfticut to preve dutey by direct evidence, ahet the c'dit has te ccns:der is wheth acued .ceuld reascnably sus -dt, under the circumstances, that adultery was abeut to take place or whether adultery was i n being committed'. The accused knew that his b :-ther's wife., Tuhuvilage, was alc'he in the he- usc as her nether ard her husar were awa'. He heard a man trkiaq ta 1 Uhuvillco i:side the It was night timt ind there were no liqhts fn:ide. The reascn to believe that the man was in the heuse fçr immc'ral . . . /4 Thte' was e,vtdnce .th.,under: the .cusnr.cf 'th•' Wakjn ., if a man fitds his hrther' s' .wifE. h weld be very. annc'yed. I 8CdeOt that evidc?nce. which' was g.ien by. l th villAge Ch.aiz'man, PW.4 Kihate Likat'e' and "P".'1 Ychanes Mvie. Sc:t-he accu.sd was aifting_ i ...-. -' .' . .. ITke a reasc'nable ma of his cc'mmuruty- when he became anneyed and fCrced his way intc t ie hc use. :The 1 P.2 TuhU%Pilage sh'w that the accused ided to kn w wh. was , ini, the hc'use. Mat is exactly what accused ninseif saidhe d3d. New, instead c'f, th deceased saving whc' he was, he stdrted to run . C'U cf theheuse. 'iátfliade the adUsd ....eliee tha1u1tery was tacij. :.e when.. he Went i'iside. T ths. 'ccusd was tn my 'puUcn, -cti t?tde pr'vo- catiii. flc'wever, he auc'ed c-hly struck the dceaSed when the decsedpushed hthen.his'wev eu' of the hc'use. -.. . now brih me to te ñ t limb of the accUsed's defence. He id he WCS c-..eeina himselfi A person is enticltd t Use reaNThblc f ccc W ei ht is ttaked, as pcc'vidcd in s€ieri of the Penal Cede. the deceased and the accted' brrthe's 'wife Pw.2 were ih a dar 1 hcuse. at night nd the adcu&ed wen,thete tin thideut who tkt man A1tic'uqh Tuj3.ge laid thata e'ed did nct asault the acdUsed, she dmitted that it was dark inside end c-utsidc the hc'use. She wa n o ah.le tc' see whet the ecsea did a he attempted te r '%tt of the uSe. The accu-ed's cvi LFce tht the deeised pushed him and th t1 'ell dewni reinunchallengèd. it was nt posib1e for the acej to knew Wile that ma'-' was ci wheth'r he aarried ar' wpcits Thq pc'l.e W.hic.h was near the' dcci and.he hi.t thei. That Weapen ha' nct been prc'duced in ceurt is net pessible the cc'urt t say hew bin ft was. There ws no tiniie f o r th e acci..sed to chec's whet weapon te usc. or whert: hit4 e "ed was i dri'der thee circünstances, actibg in wheh "e 8.tttik th ddased. with::gre.'t respect t(' :tha'. tdy ASsessorsi t find the cy -- rge of mUrder net 1.Jrevod. to Altheuqh the accused was entitled to use reaS('flable f 6tcie defend himself, the amount ci ferce h used was excessive. , POM the postmortem exan'inaticn rapert, the dedeci susain.ed $evea iericus in'uri€.s. There wetc a frctua'• of skui1 ancthr fracture of the rLj, .a r'cptui: :- liver. 'and :. Lrad'Liral haemta. The accused hit the dcc aSed inside the house and followed htm outside the house where he hit him acein. Ta decëase died I'-- I, fellewing d:y frem du to had injury and Intra. abdCminal haemo rehAcia due t: the ruptur::d iiv'r. Then was no justificaien in e.usiq SC many injUries to , the deed peci- ally when daed had decided tc run away. ThedcUs€d eXceeded his tigHt tt self.defencé. In the 'esU1t, I find the accused not quilty of murder, but f or the ivon# I cchvlcthith c'f 4 st-iUqhtei Cc'nrar 4c Sein 19: the 'enal• .26th tUlv 1984 . . .'• Mt. tindU1 t'k 'rd of prv1cu ccriiicti'tis, M1ti1j1 igwet Th- -icused ij a first c4 ffendeti He has been in ,reinn. cut far abc'Ut threp Vears, Re :, WaS .tmary schce'1 pupti when he ammi€ted the cfence. The Cffehce..wà4 ccmmitd at nihL when acciéd ntr~ d tHe .hcuse tt fjrd Who was in his s tein1aw's hcuse. h eceaedè s act of pt&i4 accused ihsteed f suy.in who he w c-au*ed his deh. Pa tr leniency. - SefltflCt The accU d s fii.sL c-ffender I h v'-' ccrpzer 41 ,11t as heo S Lcl in his £ vC'4a I sentcnce h14 t o Nin e (s?) years 1!flprisrrlmento 26/7/94 .,.. . ASSeS sers are h.n1ed ud disc:harged Rights of •A2p.. l aXol 1n / 1) iI • ., t - . • 4*