19850205 TZHC Mbeya

•• IN THE HIGH COURT OF TANZANIA TI17GA ORIGINAL JURISDICTION (1Tbeya Registry) CRIMINAL SESSIONS CJiZE NO. 17 OF 1981 THE RtLIC VERSUS S IP CHARGE: Murder c/s 196 of the Penal Code. JUGMET IN The accused man Hamidu s/o Nilumi is charod under section 196 of the Penal Code with the murder of his father, Kasyardi s/o Mangula Nzulumi by cutting him with a bill hook on the neck as the deceaasd was escaping from the hut of Pascal s/o Sazida (PW.2).where some bamboo juice commonly known as "u1wizill drinking had been going onk Drunkeness is not, i ovrever, a relevant element in the case, as the evidence does not suggest that the accused was in ary decree intoxicated. Before the court s prosecution produced four witnesses whose evidence mvei1cd tic following facts:— that the accused was the son of the KE deceased and that on the date in quest ion the accused's clan members went to clean the graves of the dead relatives belonging to their clan but the accused together with his, deceased father did not go to do the job. After cleaning the graves t the clan, members retired to the hut of Pascal (P42) to dx'ink banboo juice where the deceased was also talcing part in tnc drinking. Soon or later, the accused arrived at the scene but when he was offered some bamboo juice to drink he eusad to accept its He' enquired from his deceased father as to whether he the 'deceased cleaned the graves of tho accused's dead children but the decoasad answered him that he did not do so for he did not go to the clan grave yard on that dar 'instead he took his EN oattle for grasiug for them was no' one to help him to take care of his cattle. The accused, got ez2noyed and told his fatbD the deceased that he the deceased was a notoriouavizaxd who killed his (the accused's) three cLldron He rrahbed him ana pi3.1eL1 bun outside the htxt and fought with hi;n They 1)0th f1l doim ancl peoplo inaluding Baani s/o Nzuiumi (PW.l) Pass. c.l s/c Sanda (i'2 uSufu. (Pw,3) came to the scene and separated )nd r000Aciled thU two 1 The acod then left the place only to emerge back within a tow mies time of his departura 1fl.e1dUIg a bill hook threatoningly while the poxty—that they were going to see. 16 By then his deceased father was inside the hut drinking. The accused then started cutting the poles of the hut where his father and others were drinking, with his bill bOokd On teeing that his father did not get out of the hut, he threatened to set the hut on fire0 Seeing, that there was such a great danger, his father got out of the hut trying to escape from the danger of being: burnt alive in the hut, As the deceased was outside the hub, the accused hit him with a stick on the neck and the deceased fell down whereupon the accused cut him at the back of his nec with his bill hook resulting his instant death, The accused then ran to the local village authorities and reported that he had killed his father. He was duly arrested 10 and taken to the police station. At the police station, he confessed before D/Sgt. Raphasi (PW.4) that he had killed his father and he did so because the said father was a wizard who had killed his children, He took D/Sg -t. Raphael up to the place where he hid the bill h.ok with which he killed, his father. The bill hook had been tendered in court as Exh. Fl, The dead body of the deceased was teJccn to the hosiDital and post mortem examination was conducted on it. Acoordin7 Vo the ronort Ea. P2 ±in dannnnpa rHr1 11+ r big out wound around his neck cLosing haemorrhage. Thus the fact that ICasyaredi s/o Mangula Nzulumi is Ioad there is no controvesy at all For this was clearly established bocnd any reasonable doubt of the evidence of DEM O Hassani s/o Nzulumi (P.tl) the deccased? s brother wh saw him being killed and who identified the dead body of the deceased before the doctor who perfoned the post—mortem examination on it; the evulence of (Pw.2) Pascal and Yusufu (F3) who both witnessed the incident and the doctor's report .. P2; and the evidence of the accused himself who almitted to have killed him. It is not in dispute that the deceased died a violent death as evidenced by the accused himself; the uoctor's report; PW.1; PW,2; P.3. The only question which causes argument from both the Prosecution and the defence is uhether such a killing amounted to murder or not. The defence put forward by the, accused in his unoworn defence is that KKZ he acted under provocation. The circumstances of the alleged provocation as stated by the accused are that on 2nd day of April, 1980, at about 3 p.m. he went to Pascalts hut (PW.2) where there was a drinking party and there he saw his father the deceased and encjuired from him as to why he did not go to clean the clan grave yax1 with the other clan members. He alleged that he himself wont to clean the graves with the other clan meibers. In response his dcooaoJ father told him that he was busy grazing cattle. He then told him that his absence made the graves of his children not to be Be furthor 'told hia deceased, father thnt Ids children together - 17 with his grand children were dying and at this juncture his deceased father told him that if he kept on arnoylag him, he was going to kill him as he did to the rest of his brothers throngh witchcraft. tith that he got annoyed and killed him. He further added that 'the previous day prior :Q this incideir his child died but his deceased father did not come to attend the burial ceremony. I must point straight away that the accused was telling F. pack of lies for P.l; PW.2; 1`14,3 clearly 'told the court that the deceased never uttered words to the effect that ho was a wizard and that he hnd killed the accused's children. They also told the court that the last child of the accused who 10 died, died two years ago prior to the accused killing his father. PW.l, PW.2 clearly told the courb that the accused together with the deceased did not on that particular day, go to clean the graves of their dead clan members. I find no reason why they should tell lies against him. I observed his bearing and oovcrsation and general demeanour in court and I find it obvious that the accused is very capable of telling lies of any degree. He is an optimistic crook But even if it he accepted that the accused is telling the exact truth as regards the happening and the subject of this alleged conversation with his deceased father, the question has still to be decided whether it 20 constitutes a cod dofence I am prepared to accept that accused is a. person who believes in the potency of witchcraft for his bearing and general demeanour in court make it obrious that he is a simple minded, primitive peasant of a typo not intellectually likely to reject the traditional exis- tence and potency of the witch craft. It is therefore necessary to examine and inuire into the law relating to witchcraft as a possible provocation 'to homicide 0 The law on the subject has 'been re—stated fairly recently by Mwesiurno g. J. as he then was in the case of Republic vs, Sita d/o Joseph and 2 others (1977) L.R,T No, 62 where he held, that to avail himself of the 30 defence of witchcraft so that the crime is minim.zed from murder to mansughter two conditions must he fulfilled or , happen: the deceased must have claimed responaibility for the killing the mentioned victims by witchcraft, whether such claim xas believed and oven if believed., the confession by the. deceased/wizard, must cooe as a shock to the person who hears it, 6O/18 - 18 - / I may here add the concurrent rule that provocation must be not only grave but sudden 0 I addressed to the assessors exactly on the same lines stated above on the law relating to witchcraft as a possible provocation to homicide Application to the present case of the rule in the case quoted above in so far as it relies on the deceased's alleged confession to the accused of hc-witchren-t of accused's children the defence is rejected for the last child died two years ago prior to the accused killing the deceased and this provocation can not be said to be sudden and came as a shock to the accused, Even if one accepts the accused statement which statement I do not believe to 10 be true that his idet child died on 1/4/80 one day prior to the present incidb and this spece of time can not be held that the accused was induced.to such a doreo of fear and sudden shock as to deprive him of self—control and induced him to assault the deceased his provokor for a lot of hours he passed between the death of his child and the killing of his father. As to whether the alleged threat of bewitchment of accused himself by his father, put him in such fear of immediate danger to his own lif9 that he can be held to have been gravely and suddenly provoked, I have 7 after careful consideration, decided that it did not. There is nothing in the circumstances to show that accused's fear of it was such as to rouse in him sudden anger or to cause him to lose his self control. On the contrary, he appears according to the evidence of Pf,l; PW.2; PW.3; to have acted with remaric'oio ceimness and deliberation for after being separated from the fight with the deceased and reconciled with him, he decided to go home. In all this there are, I fear no signs whatever of sudden provocation. The killing when it came was clearly an act of vengeance for the deceased did not ro to clean the graves of the accused's children.. Both the assessors find, the cclied guily of murder and I am in total agreement with them beoanse of the aforesaid coupled with the fact that all that the accused has told thea, oot.rt is a pack of lies which lies I comple— 30 tely rejec -t - According1y, I find, the accused guilty of the offence of murder c/s J 96 of the Penal Cod.a aa tharged and witbout hesitation, I convict him. Sgd. C.G. Ntenga, Judge. 29.1 .1985 ..../19 - -, C- 19 - Delivered in open court in the presence of the accused and his advocate Mr, iekingie; Mr, Kapinga - learned state Attorney and both assessors, this 29th day of January, 1985. / Sgd. C.G.Mtenga, Judge 0 29.1.85 Mr. Kapin My Lord the accused has no record of previous conviction. Mr. My Lord, I have nothing to say only that my client is 30 years of age. • Accused: I have nothing to say. Sent ence 10 The accused is convicted of the offence of murder c/s 196 of the Penal Code and this offence carries a mandatory sentence of death by -hanging, this being the -position, I have no a1terntive but to pass the sentence. Accordingly I sentence the accused to suffer deth by hanging. 0 Sgd. C 4 G. i-itega1 Judge. 29.1.85. Right of appeal is explalned to the accused, Sgd C G, Mt eng a, Judge. •. - 1 'r y.--.8 ). Assessors are thanked and d-ischargocL 20 - AT IRIGA C .G. MTIGA, 29TH JA1iJtRY, 19854 JUDGE. I 20 FORM — B: NOTICE OF APPEAL IN TEE HIGH COURT OF TANZANIA AT IRENGA CRIMINAL SESSIOi' CASE NO, 17 OP 1981 IN THE DISTiICT COURT OP IRINGA ORIGINAL CRIMINAL CASE io, 146/80 REPUBLIC K6NZUiUI Take notice that Hamidu s/o K. Nzulunhi wishes to aDpeai to the Tanzania Court of Appeal against the decissionof the flonourable Judge Mr. C.G. Mteriga given at Irina on 29/1/856 Whereby the appellant was convicted on the charge of murder contrary to section 196 of the Tanzia Laws and was sentenced to doath. '0 The appeal is a:ainet both conviction and e:otenco 6 The appellant do not ;rish to be pr000nt at the hearzng of his appea1 PRISON ACCU I6 The Address of the above named is • C 0 0 0 0 0 0 0 0 6 0 0 • S 0 0 C 0 b 0 '0 0 0 0 0 • C • • ORPICRA I/C PRISON ISANGA 0X DO M Copy -to The Cof.1mjss,onei' of Prison DSalaarn. U 6i1S. The Reiona1 Prison Officer Irjnae U U Prison Isanga — Dodorna for Information, In the Prisoners Recorcl, Lodged in the Sub—Registry at Mbeya this 5th clay of Februa.tj, 1985 DISTRICT REGISPRR