19860306 TZHC Mbeya

• 'o - 27 IN THS 1t11.1 COtTE2 OF TANZANIA AT L3FitA ORIGINAL JURISDICTION \ç\ Q\ (Ivibeya ieistry) CRII'iINAL SES3I0NS CAS' N328 OF 19?1 THS 1152U:31Ic versus EITAAF.BURA TTT•nr1T T,3 U UJJU1,L. s0 .4 10 The accused I':JITA WABURA is charged with the murder of one BENDICTO LIDENU, an army inan There Is clear ev.idonco. that Benedito met with a violent death on about the 11th Julyl 1979 His dead body was seen and identitiod by LieUtenants Yohane Jimmy (P'vi) and Yusuf Hussein Lfagori (P73) and Staff Sergeant hakari Athumani (pw8), all who knew him an'-:1 were his senior oficcrs at Kapwili army detacrnent cam in Kyela *here he was stationed in 1979. Dr iukeha 1:ukame.(p75) rJo on 12/7/79 rerformed. an autopsy on the body after it was identified to him by Ijoth Staff Sergeant Bakari and police Serceant Dvarist (PY 14) 'reported 20 that death was due to internal bleeding from a bullet womnd in the chest. There is no dispute on who caused the death of the deceased. The accusedadniits to have done it. Apart from ' 0 his admission, ,thee is irrësistable circumstantial evidence from pW6 - Priyate Cbacha Sila and PW7 Ismail Dadi Busiiiri, a security guard who was attached to 'the army detatcbment ca-.ip at Kapwiri. These two people sid. they witnessed th " 0 circumstances Wnieh led to the 'death o:L the deceased. It is now necessary to consider all the evidence relating to the death of 30 deceastcl in order to know whether or 'not the offence charged was commjttea by the accused, for it is not e.nouh that 'accused caused that death. It has to be estahlished that the killing was unlawful and was done with malice aforethought in terms of sections 196 and 200 of the Penal Code, 0ap. 16 of the Laws. 0 /28 • I 28 It is co.uion gramd from the evidence of P,76 - Chacha, PW7 - shiMi and the accused tha in the eveniig of 11th July, 1979 a meeting was convened at -Kopwiri army 'ietatchment base at which they and the d.eceasd att enc1ed A . section commander, one Mjenga4 addressed them on discipline. He e:häsized on the • need for the soldiers to be on duty and not to sleep away from the base duiring duty time. According to P76 Chcha, the remarks by i\jenga were impersonal. P77 Bushiri said that at • one time Chacha (?76) commented that it was not good fr them aQ soldiers to sleep out and that just as ie said so the accused 10 suddenly went to a nearby dormitory and ca-,,,.'e out holdihg a ub- machine gun.. I-Ic sbood nine paces away from where his, colleagues • wereeated. He put a magazine inposition and cocked his gun, On seeing what the accused was doing every one at the meeting took a flight to escape from what seemed to he imminent danger. Chaha and the deôeased run in the same direction but parallel to each other. This was said so by both Chacha and Bushiri.. As søon az those pt'esent at the meeting started to run away a gun shot was heard4 Then followed seveThl other gun as the adued pursued Chacha. Chcha managed to gain distance from the 20 accused until, on looking 'back, neither he accused nor the deceased could be seen. Chacha began to feel pains in hiC foot and later realised that he had been shot in the foot which bled. prbfusly into the. boot. The dead body of -the deceased was found on the following morning about 10 paces away from a building which was used by the soldiers at Kapwiri, according to PIN8 Bokari. It is not quite cear if the building referred to by Bakari is the same one from which the accused obtained the gun. The story of the incident as given by the accused is that when Mjenga was speaking generally about 'cUsoipline Chacha 30 cut in and said the following word4. which he. (accuzed) JJid . refered to him - "Mwache huyuu, mpumbavu, atatufanya nini sasa". He said that .earller.on that day when he was guard commander Bushiri' (PW7) who was Qn guard duties asked him for permission to visit his girlfriend in Kyela town. He refused. him permission but then Bushirj abused him. The aused did not rebount the abusive words uttered by Bu.shiri, When 9 at the meeting, Chacha also abused him (using the words pited above.) he. felt he had been 40 made the object of persistent abuses on that day. He therefore used the gun he had with him at the meeting and fired in confusion. He did not realise that he had shot and killod. any one until on 000/29 -- 29 - the following day after he was arrested and was informed that he had killed a person. After the shooting incident the accused took the gun along and spent thenight in the roofn of his gLrlf±iend Eda PVV2) in Kyela town. At the time he arrived there Ed.a was not in. He, however, entered her room and hid the gun under a matreSS. when Eda returned home they spent the nigh's gether and he did not tell her any thing about what had happened at the camp or that he brought a gun into her room, Acording to da the accused on previous occassions usually returned to the camp before it 10 was down. ihen on this oçoasion she asked him why he would not retürn to the camp before daybreak he said he just wanted: to relax. Eda also said on previous occasions accused never visited her Qarrying a gun and that £n.the morning of 12/7/79 she learnt that accused had brought a gun into her room when after doing some washing outside she found him holding the gun in the ready position J.ike some One oxpeting an encounter. This was after people Qut;jidei in1uding a militianian, ere saying to her that an armed mad soldier had killed other soldiers and was imown to be hiding in her houses 20 Couse1 for the açued when making his final address to the court submitted that none of the things which transpired at the meeting would have provoked the accuse to shoot and kill any one. He said the only rational explandtion for what the accused did is that he wa,5 mentally wound so that he did not lmow what he was doing. In other words, learned ounsel waspleading the de±enQe of inanjty for the accused, Earliei during the trial the defence counsel asked the court to order that the accused boe, examined by a Psychiatrist as to his state of mind at the time he did the killing. The 30 court order?d as requeted The accused was sent to the Isanga Institution s Dodoma and af ter he waq duJ.y examined a report was received in court and a copy each wa5 received by the learned defence counsel and by the office of the Attorney General here at Mbeya, However, for onvious reasons, I think, learned defence counsel did not wish to refer to it either when the accused was giving his defence on oath or when making hia final address to cot.rt. I assume, therefore, that counsel did not wish the report to be troted as evidence in this txial and I refrained from disclosing' its contentq to the assessor. 40 ./3o I - 30- The accused himself has not claimed that he was mentally Uuiad on the fateful occassion or at any other time in his life 1 The witnesses wha had known liiio and testified at the trial said they had not known the acused to haVe problems of insanity. The aocused, of course, althouh not specifical1y pleading insanity at the time he kjlled deceased said he became confused (nilichanga- nyi.kjwa) and fired his aun without realiing he had killed any - one, It could possibly be said that he was indirectly pleading the defence of a sudden and temoorary insanity at the iiterial time he was firing his gunj But if that was the case, why would 10 he go with the gui to hide it in the room of his girlfriend until he WaQ arrested by PW3 - Lt, Magori who led the arresting party? And why did he hide the gu±i under a rnatress in Eda's room and did not dsc1ose the fact to nda until he overheard pcople outside talking about a soldier who icjlled other soldiers and presumably • thought he was about to be ambushed and consequently retrieved his gun from under the matress and prepared himself for a violent encounter? It seems to to very clear that accused knev/ quite well what he had done the previous evening and that what he had done wae wrong, His whole conduct, therefore, is not consistent 20 with his claim that he was Oo cnfused as tobo unable to know what he was doing when he shot at deceased killing him or to know that what he was doing was wrong. The defence of the accused can also be unArstood to mean that he had been so intensely provoked that he: fired his gan to kill. The question then is whether anything had been done or said to provoke him to such a degree, Provocation has been defined in section 202 of the Penal Code as follows: 1 202, The term provooation means andincludes, 30' e1cepj as hereinafter stated, any wrg1'ul act or insult of such a nature as to be likiy when done to an ordinary person, or in th' presence of onrordinary person to another person who is under his immediate care, or to whom he stands in conjugal, parental, filial or lbaternal relation, or in the relation of masc-r and servant, to, deprive him of the power of èlf-control 'and to induce him to commit an assault of the kind which the person charged 40 committed upon the persori.by whom the act or • iflslt is done or offered. When such an aQt or insult is done or offenod • by one person to another, or in the presence of another person who is under the immediate care of that other, ot to whom the latter stands in any such relation as afesaid the former is tn -. 3.1 - said to give the latter provocation for the assault. A lawful act is not provcation foD an assault. . . . Par the puiposes of this section the expressioh an ordinary pei'son shall mean an ordinary person of the community to Which the accused belongs If i is found that the defence of provocation is avilab1e to the accused the killing will still be unlawful but malice afoi'e— 10 thOuht would be missing so that the offence of mU±'der will be reduced to the lesser offence of manslaughter. I now give thought to the question whether an ordinanry perori would have been provoked in the manner.-the accused said he was The views Of Viscount. Simn, L.C. in the case. of MANCINI v4 DIR7MTOR OP PULtC PROSECUTIONS (1942) A.C. I at page 259 of the Law Report regarding the effect of provocation on an ordinary person whom the English call a 'reasonable person 8 have been much qued with approval by the High Court and the Tanzania Court of Appeal. The clebrated word.s ares— 20 "The test to be applied iQ that of the effot of the provocation on a reasonable man, as laid doi by the Court by Criminal Appeal in Rex v, Lesbin (1914) tJ 16, so that an unusually excitable 3 K.B,. or puacious individual is not entitled to rely on provocation which would not have led an ordinary e-rson to at as he did.". The trial judge in the MANCINIçasewhen ad4ressing the had said the equally ôelebrated word- "Bear this in mind, ladies and aentlemen, that the definition qf provocation is very important, .Lt is not intended to give a liQene to those who take too muQh • drink, or a licence to those who are quick temiered; or a lioene to those who are over—sensitive; that would be disastrous and it would not be fair, iyQU think it for a moment, because it w?uld give an advane to the drunkard, to the quick tempered and . 40 • to the oversensitive - an advantage over people who try to exercise. proper self- control, as most of us do, - That is why I say it would be unfair if provocation in 1S content were not trjtly defined, and the definition.stritly applied4 It is no intended to give a free rein to the rue3., or to the wirully or those who take too / much drink"- 32. • 4 I adopt all those wise words As I said earlier iii thi. judiient the accused did not spell out the abusive wo which Bushiri uttered to him when he alleedly abused him4 I think either Bushiri neve really abused or the words were so slightly insulting the accused, did not fInd it worth meñtiohing thëm when he was giving his defence. A d for the words which Chaôha is alleged to have utteredw1-iich the aôcusedlaims were meant t; refer to him, they were indeed abusive but no reasonable p0Thon wuld have felt them o be so stingin. as to drive him 'to go for a gun and shoot the person who spoke them4 A person 10 likF6 the accused who find such wards unbearable mt certainly be ove4sensitive and th'edefncë of provocatirn is not available to such a person. I find, therefore, like the gentleman assessor, thai the eeueed was not su1je41ed to -'cation wit.h44' t in of the law 1 I now broQeed to consider whether the accused had acted with maliQe Mforethought, From the evidence of P116 CJhaha, PW7 Bushiri and that of the ac.toa hmsolf it is quite tlear there had not ben any known misunderstatig between the acoused, and the docease'd4 So, in ordinary parlance one could say that the deceased waa killed 20 accidentally, But equally clearl?,r, the accused had intended to shoot at Qhacha intending either to kill him or cause him grievous bodily harm. Unfortunately the deceased run in the same direction as Chacha and parallel with him. The bullet which wa intetided for Chacha got him and terminated his life. That amounted to transferred malice and the law proswcies ;he atcused to have intended to kill him with maiice aforethoug'it. For all the above reasons I onor with the views of the gentleman asscsFor that the accused ia guilty of murder as charged and accordingly I convict him, 30 I think I should explain briefly why only one assessor gave me his opinion. On 24/7/85 when this case cathe up for continuation of hearing the second assessor was nissing and after much effort to get him failed it was decided to continue the trial with the remaining assessor under section 270 (1) of the Criminal Procedure Code, Cap. 20 which was then the operative law. So evidence from all the remaining prosecution wi±nesseS wa,s her /with the aid of only one assessor upto the close of the prosecuticia ce. Unfortunately the trial could not be completed before 40 1st November, 1985 when the new Criminal Procedure Act, 1985 camc• 4 j-1 -b3 effect, 33 - I am aware that under section 286 of the Criminal Procedure Act, 1985 a trial cannot continue with less than 2 assessors, But as part of the trial in this case had already proceeded .withthe aid of only one assessor I decided to complete it with himi J.A Mroo 6/3/8 JtJGE /3/8.6 Coram Mros Judge Mr, Lundu, State Attorney fcir RC1ublic 10 Mr. Bateyun'ga-ij holding brief for M Mwakilasa Counsel for Accused. Aôcused - present and under cutbdy. Asses$or - present. A11ocutus It is true I killed but I did not iteiidto kill deceased. As said by the withess 'I w a1way well behaved, I reg'et I. spilled the blOOd of • man of Godi I do not krOw why such a misfortune befell me oj that daY4 I 1eae it to this court • to docie what to do with me. F N T E TT C F 20 Mwita Wambura you have toiay been found guilty and convicted for murder. The law 'rovis only one sentence •wih I niust impose on you, I 3enence you to suffer Ieatby •' hangings J,A, Mroso JUDGE Rights of appeal explained0 Assessor thanked and discharged JA, Mroso 30 At Mbeya JUDGE 6/3/86 JAM/ATL'I jima.