19850816 TZHC Mbeya

. . ( 1 { • •: ~, ;~~.,. ·-t~;:-~• -: •..:· t· ..,..,i·'!•"'f ••. ~/{i ~ 2. ~ ·-:~ .l . ~ ·tc /, :t .. ,. l."i ., ,I ·-, ... , -TAITZA:HA IN THE. HIGH COUR·~ OF .. AT NBSYA '_;,;t•. -'}•; .: ,. ~- , '.' ORIGINAL JURISDICTION (M:Beya .Re{;istry) CfffMINAL SESSIONS C'.\S:S ·TTO. 21 OF 198-2.::. T:FfE} RE:->U.;JLI C ye-rsus , .. -,' f I • CHAmIA :l\''.UITDUKENGE KILEMBE ' ' .... ,i':'. . Charge: Murder ~/s 196 of the Penal.Code _Cap. 16 Vol.I of the Lawso -~~oso 2 Jo One lWJ\1J)UKENG~<~ILEi11BE rn~t with cJ,·violent death·on 14th November 9 ,,1980 at Ilonga Villa,7,e, Mboz°f Dist.rict. His son ' CHACHA MUNDUKENGE KILEL:3:C wlD . is charc;ec:':. vii th hiw .murder admits in ,,.. his unsworn s.tatement of dofe2.1ce at th3 trial that he caused the death of the deceased but s21s he c.id not mean ·,-. to kill him . but Irierely t6 disarm ri.ir:1 ir..d. that in the c0urse of OCoing so idcidenially killeA him.- . The dead body of ·the .leco3,sod wns exami:ped by D:r •. 1Totham rtrwabulanga -- --~ .- . ~-•- . . (PW3 )o Inju:i;-ie3 w::;ro found ,)n his head. as fallows. •l" There·was a wound . .meam.i.ring _six inches long and which was bone ,· . ; : ' deep on the ri;ht .,occipital-:-?o,riqtal region and another wound ·- i ~ - . . . measuring 2 inches long and, aJ._.:3,) bone deep on the frontal regiono The slcull was fo_und t J. hnve been fractured on the occ;ipital.~pa:i;-.i,.etal_ areaso . -J:he c3.use of death was found to hay~- o~en ,du,~, to the fracture on the skull and haemo~rhage·o Amoi,;_g the peo;~le who identified the dead; body· to the doct'.)r who performed the post-rurte~ exaEiinatibn 'was the accused himself in the presence of PWl :tfo te cti v-e Stati'dn- Sergeant Athanaso It is certain thercfo::."e :that l'lillldukege · Kilembe died anl died at the hand·s · of the· accused •. • J . •. .- . -· •• :.J. ·.··.:•" .•·!'.. The accused has said in his unswcrn statement in court that a we Gk before the- fa·~eful. . d,ay . .c, )-~l1eEL . .of \,,' his children had . . ' ., disappeared . but he later traced ; them in tho house of deceased ··:.. , .,_ ·:,.:..,• and that deceased confessed to hij1 t~) have stolen them. On 14th November 9 1980. he a:iscovere& ac2,ir1<that · clbthes of his children was missing. He went tiJ deceased whose house was about 230 paces from his ovvn. . . -r ···.•· . Ho found deceased in the .. ' company of PW2 Baltmde·ke Sinkonde- 9 F.V4 Srk'Wilile Nakayuni and. another woman who did not testify in this case. He asked his father - th~ ~eased - where he had,:pµ~ th~- clothes of his children. This suggests. t~iat ho $~ 9 pe c1Jed f'.( was the deceased v:ho stole them ac;ain. PW4 told this court that the deceased re1)lied that he had not gone to the home of the accusedo PW2; PW4 .and tho accv.scd ,3,ll said in court that the de ceased wont into his, h.Juse nenrby and came out holding .::,..... · a biii-hook and. t1i.eraccuscd· hacl· to--run:away'~- ''From tlus·'stage there are 'three""diffJre:rit versions of-what subsequently· PW? Sinkp?de. said,. tl~a accused who wa~ theBr;p..olding a bill hook, ret;ur:q.ed . ho,me and then. came "i:L.ck to., the home of the deoeased, this time carrying three hoe handles 9 :;.P. ra.xe handle 1 a 0ri:.11;1gu; · but and a. spear. r He found deceased stancUng/not - hoidirig his bill-hook any. more• Re quickiy hit decc2.sed four times on the shoulders with the a:X:e handle and then hit hiir1- a fifth time on the back of his head 1vhereupon deceased dropped c1ovvno The accused rained other blows on the deceased coimtless times using the handles. Deceased diedo The deceased diu not in any way retaliateo PW4 - Sikwilile said that the accused who had a bill-hook with -him. after being chased away by the dec_ea.sed cani.e back wi_th the same bill-book and used its handle to assault deceased twice on the head -killing himo The deceased· himself W8.'S-.hold:ing · his bill-hook when -the ac~used cal'ife- back' and' t-ha:t he confronted the accused but accused was quic:c en6ugh to hi"\; deceased first and the bill-hook-•,in -the .hands· of de ceas-eiJ. dropp~q. down. Deceased was not able t<r ·:Jick, i·t up.--:-:-'-~ •· In his version of what tr2nspired the accused said that after de ceased chased him away he (accused) stop 1Jed about 100 paces away and then went back to cloceasocl to ask hiiJ why he ..... f 3 J' ,. chased. hi.m away using a bi'lJ!~h::. dk.>r-,The. ,depeas.~d -confrqnted him wieldihg:•a::frr~{1..:.tw·ok' aria. Wl'::en die Jta_c.;µse9''')::.vvas<trying to disa;rn' deceased he' ~:fortunately hit hirri :9n,ft'h~C'... :Sid~ .· ·of t.he ... · . ; head using~ piece of wood he was carrJting an<;l ._decease_d .. :... drQpped, down dead. I arn satisfied that ·t·he;-story. by.;-the ·accuseQ.;:•that he had •. / i . • , • • .. p_reviously found his father with missipg· clothe.s vf.. his children i~~;;~ and that·explains why on 14th r-Iove_mber,.·:·J.980:when hi.s 6h:l-:ld;r~n vs· clothes were acain ;~1is;3in3. he _immedia.t_e_ly suspected the dcce 9Jl(;:)d._ ..: ~hat also explains the kind of question he, asked (de.c.easeq. .. 0 Where did y'ou, ke-~p · the ciothes· of my children; 1:. :";1_:: J.·: Tb.flt _explains too~ in \~y. ;ricyzl w};l.y 11.l'~'~ather ,::.;_ the decease'd ..... ·:· cr:-eaQ;t~~- .as.. hG. d.id 7 . -~eg;es-~i vc1y ~ by 3:0ing :into his house t:o collect 1 .•: the bili-:--h~l)_k 1~~:· d~ub·:r with a' v-iew to a ~-_(o:ient confro:ntat'ion .. I am also satisfied . that. when . the accused went to the deceased to ask him about the clothes of his childreri he took·with.him :-. . a bi.11-:_l).ook as s.ta ted by both .F.V2 - Sinkonde and PW4 - Sikwilile c~ . .-·-· · and not with ~- rn,ere piece · of v;ood:_ :as cl-aimed by the -;accused~ .,,.,. · ·· While I t:hinl-c ·it was lawful fo.r tho acc1.rned ,.. ~n view. of the : kno.~m. background 9 t? go t) his . fa_ther·- to ask him if he again took his children clothes~ he had 110 ri'ght 9 however 9 to· carry along any _kind o°f- ,weapon 9 be it a .:bill-hook or a piece of woodo :-The :·· . . fact that he did, so· suggests that- he' intended to=·:take: the, ·law ·.._into his own hands by using t.i1e we·iitlo:ri~ -- Since he went· t·u· the deceased armed and _mos,t. cer:-:tairily in .an a'n'gry-° i'f not· a,:;gressi v-e r.:.oo,l t:10 :deceased quite un_~~_rst~ndably suspected• 'dan.:;er to hii:ise·lf 2ncl thG:t:efore • ,. 1 • • ' went •:, to -get, his .... 0 • : -~ h • •• 0 • ' 0 •• bill-hook 9 ready for any eventu:xli ty;; He appears to,., hav:e . I. .. • frightened away the accu~ecl who retreated.·, a3:-bei t. terapcrr;arj,.ly • . I do not bcli~ve ·pw2 · Si~kondti when he . said the· accused. went f f. f:' ; . ,. .... . ·back, home and .,then r~turnecl. to . th~ h,.)m~ of the de ceased carrying a heap of wea12_011s which incluC::.ecl ·a spear. Nor "do. I beii~ve him when he said the iccused beat up deceased countless times'all over the body. :· ·Th~ doctor sai::'.. he observed injuries only an the ' ' ' he~ct;.;<5:f-~d\fc·e-aseffrand there appear.ea,: t,:::> .:be, -no marks of violence is,.-.. on ::·the} ;re's\ ··of; th1:f bod,y.. : J?\l'/2. ,,:Sink:onde,, ~,i~en to a _lot o:f exa\ggerati-~ri' anff 'he'· pl1o411ed ;.it very:;Vi·vJqly whe~'. giyin~, hi,~, evidenc·e af ,this; t:ria-1. •. · I do not believe the accused ai ther when he said he .,hit dece- '· a'.sed -· onlf once' accj.dentally inz;-an attempt tq. q.isann him. The . ,.r .A:, • ,. • : ""medical :evide:ricif:rshbwed: two wounds on: rt;he head 9 .• one at .. the· .back of 0 the' head and-the other one at ,t·he· front't •.of _.. ,.t;e h~~cl~ .' Th~-:t .. : . r:\ .t J.:~ ·.:. . • . . .: ,.- .,. s1.i'ggests tl1at at least· two., blows W.ere infli;ct.Q.d, on the .deceased. Apart fr9m minor and innocuuu's flaws i~ th'.e eviUence •of: PW4 Sikwilile 1 her evJdence 9f llow the deceased sustatneci the fatal injuries i~~-the most crd~ible •. I· beli~~-e the accused had used the handle of the bill-ho.ok he had with him to strike deceased twice on the ~ad. ?his cvi°dence 'tallies·quite · wel,.l with ~the medical evig.cnce of . two -\~~t vif'~unds on tlte'; head· . of decoasedo I also believe. that the acc'used after-'ctetrea'·b:ng returned to the deceased not :qurely to qu~stion 'lum bu:t' to punish :_;' _; :..' .. . .. :· : '. ~ . ·. hini 9 .having believed that he must.have again stolen his childrenV S, clothes: He C,)nfrontecl tho c.lefeased who was ''still . - .·. wielding the bill-hook. Tho two were p,JisedfDr a fight. It was then the accused inflictod. the fatal w'.::>u.nds 0n.. .... the deaeased • ,.' GJnsider+ng t~1ap JhG skull of the dece~sed was fractured rather extensively, accused r.iust havo used quite consfderable force in dealin0 the blows ... But like the', first assessor I · do not believe the accuse ct intended to kill de ceased or, cause him t~rievous ha~1. He had a bill-h)ok with him and could have used· the cutting edge instead of the handle _if he had _intended to kill or cause him grievous . harm,·• I find that .the ,kil)_ing was unlawful but· there was no ;;w,lice, aforethought •.. I am therefore una1ble to agree 'with the lady assessor ~_hat the accused shoula. be ~convicted of nurder as chargq9-. · For the foregoing reasons.I . ' . . ' acquit the accused of the ~ charce of murder e I find· him guilty -and convict him 6f manslaughter contrary to section 195 of the· .Penal Code, Cap .16 of tho Laws • · ·;_ --:-·~~' ·' .- : · -- ' . -~ -' ~<:-:: \.~..J,t\:~. :~:~ ·:; ..J.A._:.l)lIIt0SO •.. JTIDS-E 5 Previous record: Accused has no previot·.s record •. In Mitigation: We ask for leniency for the following reasons. Accused is now aged 42 years. Accused was married and had two children with her but since his 8.rrsst the wife has disappeared and left the children without careo The children are now being looked after by a non-relative. If accused is given a light sentence he will go to l0ok after the childreno Accused has been in custody now for 4 years 9 9 months and two days. Accused is a first offendor t.r:J is sorry for causing the death of his fathero s· E N -2_..]_Ji_C _li I have taken into consideratiJn the factors stated in mitigation by counsel for accusedo In the circumstances I sentence him to five years i-.1priconment. J .A. r.moso At rfoeya JUD;}E 16/8/850 Right of a:;i)e-:il explained and the~ assessors are thanked and dischargedo _ ..... ' , ,..,-~· . ··.!:.,i--<..J ·.. it ,.).__,.__AJJ ·"""\ J .1\ o I':TROSO JTDGE J Ai'J/ATI:I9 lima. ~ ~r_;:~?· ' . ~: