19840813 TZHC Iringa

- -. IN THE HIGH CURT OF TANZANIA • AT IRINGA t)RIGZNLJURISDICTI N - (M€YA RGISTRY) CRIMINAL 58SINS CASF; N(. 8 OF 1980 THE EPUBLIC VERSUS • . -SEPHMLALINGMBE CHARGE: .&UL.R-.M.I;R Contrary to Section 196 of the Penal Code. J U D GN E IAINA, J: • The accused, JOSEPH MLALINGOMBE .stnds charged with murder contrary to section 196 of the Penal Code. The prosecution alleges • that on or about the 28th day c-f February, 1979 at Kidegembye village in Njombe District, the accused murdered one MLALING'OMBE NYATO who • was the accuseds father. The accused denied the charge. It was established by the prosecution evidence, and not'disputed' • by the defence, that Mlaling'c'mbe Nyate is dead and that his death was due to the he1d injuries inflIcted upon him by the accused. The • .pesecution evidence to that effect is as follows. The accused and his father, the deceased Mlaling'ornbe Nyato, were residents of Kidegembye Village in Njc'-mbe District0 There were thisunderstandinrs between them because, acdording to the accused's half—brother, PW.1 Patrick Nyat', the deceased was suspected to be a wizard, and the accused believed that the deceased had killed relatives including the accused's son by witchcraft. When the accused's mother, brother and aunt died, the accused suspected that their deaths were caused b' 'deceased's witchcraft. They contacted a witchdoctor who told them that tile deceased 'had klfled them by witchcr.afto Then the accused's on was struck by lightning and he died0 The accused suspected his fath2r, the deceased as being responsible for the death. He cc'mplired to a reccnciliaticn tribunal in the village and it was decided tht they should go 'tr a witchdecter. The accused, the deceased and two other 'pecple went to a witchdotc-r who allegedly told them that the :ceesed was a wizard and that he had caused the death of the accused's sc-n by witchcraft by sending lightning which- • struck the accused's son. They reported to th -reconciliation tribunal and the deceased was crdered tc''pây cemoerjsatien to accused. The deceased paid the mn'ey. - • -. - •./2 On 28.2.1979 PW6,1 Patrick t.yate saw the dead bedy of the deceased in a hut belenging to Patrick. The ville autheritles were infermed and when they Went to the scene accc'mpanied by the village chairman and a ten-cells leader P 1 .2 Ella Kihrnbc, ir was found that the deceased had sustained head injuries. The accused tcc visited the scene and all stayed the night there while awaiting fer Plice to arrive. The accused was interrc'gated and he admitted that he had killed the deceased. Accerding to PW.1 Patrick Nyate and Pw.2 Elia Kihcmbe, the accused explained that he had killed the deceased because the deceased had killed the accused's sen by witchcraft. Even when Pelice arrived at the scene cri 3.3.1979 the accused teld PW.3 Assistant Superintenshant Julius Kadege that he hd killed the .' deceased because the deceased was a wizard and had killed the accused's sen by witchcr-aft. The ccused was arrested and later charged.. The dead bcd f the iaceesed was earnined by a dccter and it was identified by F.',l Prick :ytc the accused's half brc'ther. The pcstm:rtem examinaticn rencrt which was tendered in cc'urt as Exhibit P2 as the dcctcr wnc cx-mii the bcdy was n t available to testify, shc'ws ,thzt the deceas&e h .d sustind three big head injuries.; two were fractures and ne was a trauma to the cerebrum. The cerebral spinal fluid, mjxed with bleed, was feund in the cranial cavity. In the cic'cter.!s epiaicn, death was due to hypc'vela- emic and neuregenic shcck as a result of haernerrhage and pain. On 5.3.1979 the accused made an extra-judicial statement to a justice of the peace, Pw.4 Pancres Grcqc'ry Mtega, who is also a Primary Ceurt Magistrate. In that statement (Exh. P.1) which was tendered as an exhit witheut any c'bjecticn from the defence, the accused admitted that he had killed the deceased. He said that he believed that th(- deceased was a wizard and had killed accused's mether, brc'ther, •:urit and even accUsed:'s sen, by withhcraft. The accused said that he centated a witch-dc'cter in the preserce of the deceased and th witchd'cter tcld them that the deceased was a wizard and had caused the deaths of the accused's relatives by witchcraft.. The deceased admitted this and he was crdered to pay cempensatien to the accused, )n the day of the killing, the accused teld the justice cf the peace that they were in a hut when the deceased threatened that he wuld kill c'cused by his witchcraft and Se the accused kllleJ the deceased by h.ittin• hIm three times on the head with a tc'nc. a stick and a club accused's half-hrc'ther said in his c-vidence that it was avery gc'cd thing that th' accused killed the deceased because the deceased was a wIzard who had killed sc' many relatives and that he wc'uld have k 2.1led all ether relatives had he survived. That shews hew deep-reeted witchcraft i,s in that cemmunity. Sc', when the deceased threatened that he weuld kill the accused by witchcraft, and cc'nsidering all the circumstances, that was, as Mr. Mwâkingwe, learned Cc'unsel said, the last straw. The accused lest sel 1f-contrc'i and killed the deceased on the spet using the weapens he ceuld find on the scene, a stene, a stick and a club. The accused lest self-cehtrc'l as a result of the threats. It is or these reasens, that 1 agree with the unanimcus epinic'ns of thelady andgentleman assessers that the accu'sed killed the deceased uhdr prr'vccatien and sc' he is net guilty of murder. The accused is cc'nvicted of mansluhter ccntrary to Sectien 195 of the Penal Cede AT IRINGA W. J. MAINI, 13th August, 1984 JUDGE Mr. Lundu: No rederd of previcus cenvictiens. MitiQatic'L -. Mr. MWakinqwe The accused is a firt c'ffender and he has been in remand custody fer five and a half years He is very serry for having killed his father. The deceséd's threats caused his death0 I ask for leniency 0 Accused States: I have nc'thing to add. S.ENT.NC S The accused is a first effender but I çrnsider this te be a very bad case of ma.rsl - uhLer. Thc accuseds belief In witchcraft and a threat from decea.c h.ve c-used th death of tha deceaaed The accused brutally ki.ld t c.asad by hittinq on the head. Such brutality sheul be isCcur;e It is the dUty of the Ceurt to impese severe and deterrent. sennce a lessen to c'thrs. I sextence the accused to fifteen (15) years4,nprisenmert. / AT IRINGA .. W. J. MAINA, 13th August, 1984 . ....i' JUDGE. Rights of Appeal explained. Assessers ire thankei and discharged. • . , J. MAINA, 9.1984 I *- \ -6- I sentence t accused f if t*,--en (15) year's irnprjsrnment. AT IRINGA, W. J0 MAINA, 13th August, 1984 JUDGEO Rights of Apoeal exp1ained Assessc'rs are thanked and dischrged. W. J. MAIN/,, JUDGEO 13th August, 1984