19861129 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT NBEYA ORIGINAL JURISDiCTION (Nbeya Registry) "CR1MIN SONS CASE N0.93 OF 1981 TI REPUBLIC versus CLEMEICE iGiYTI i . Charge: Murder cls 196 o' the cr.e1 Code. ' RQSO, J. . CLEMNCE NGONYANI ic facing s i:'i'der charge. The allegation against him is that he iurdered erie Jsckson Upeete on 30th June, 1980 at tMombere Village, Rujewa. He has clenied,the. charge. " There is clear eviclonQô''that one Jackson Upcete died a su4en violent death on 30th Juno, 190 There is the evidence of PWJ. Rhae1Iibutà"ko s'f4iib same vi11ao as the deceased that 1i saw the dad bddy o"doeasd"iiii not..ar from his hou.e • r,,, and that it was bleeding p1'ot.soIy from a stab-,wound in the uppe chest.' Tber/ts well the oridoncc •i ?W2 AThn Kulanga. He witnessed the deceased boing stabbod t6 death, P73 —"Station sergeant Eapliacl testified à±'1 'takin a dead body of a person who was idøntifiod to iim6i "; a -6. Jcson Upoote. A Postmortem Report which was ad6itoc1.' iii cvidcnc under section 291 of the Criminal Procedure Act, I98 t ttd 'that the doctor performed the postmortem oxamthatioh oil a body of one' Jackson tJpeete after'it was identified to hIm by Charles Upooto apparently a relative'äf' the deceased. According to the rort Jackson tjpebte died from a penetrating stab wound in the lefi upper i chest resÜltng in injury to the heart. How and from whom did the deceased get such a mortal injury?' We have the evidence of PW1 and PW2. There is imdisputed evidence that the accused cohabited with a certain woman QaUed Christina. On 30th Juno, 1980 Christina and the deceased were in the house of P11 Raphael Kibuta and were drinking porn . . . 0/2 - 2 - togethor There were also other people present. The accused wJhn wasLfish monger had returned home o1lyto find his sixty shillings and Christina missing. He also foadthings in his house had been thrown about, He suspected. Christina was at the home of PW1 which was reputed to be a pombe. selling plaCe. He went there and indeed Christina was around. He questioned her about his missing money. Christina admitted she had taken the money but elaied she had aright to take it bocause she had previously loaned the accused sixty shillings. There is no doubt thcre.was a some what lengthy quarrel between the accused end Christina over the money. The accused had oven to call in a ten cell leader to help settle the dispute, After the ton call leader had come the and was trying to resolve the dispute the deceased askedjf tiie woman he had said stole his money was really his wife. The deceased further asked the accused that if the woman was his wife, how much dowry had he paid to marrhor. According to P. the accused retorted by asking the doosod what intbrost he had inas1dig hIm (the accused) such questions and whether he (the de&ased) was Christ1nas lovor, Those verbal exchanges were taking place in a hots Again, according to PW1 the àccued boeamo angry and told tlao deceased to go out. The deceased did so and th ccusod follood him. The deceased run and the accusod purouOd i'iim. PW2 who was not himsO'lf in the house said he saw the accused chasing "thor doeo.ascd and thS' the accused was holding high a knife saw the accusd catch up with the deceased and stbbodL*i' h3 knife bzthc left upper part of the chest. He saw the dedoased dró down only five paces away from where PW2 was, PW2 alIod out for help and the accused immediately tooc to flight, PWJ. and 14 Adam Luhimbo were ai1ong the people who said they chased the accused until they arrested him quite a distance away. In the meantime the dcceas3d died from the stab wthnd. A folding knife with a cuttiflg blade measuring about 4 inches long was produced in court as an exhibit, P911 and PW4 said the accused threw it into a thicket just before he was arres- ted. After intensive search the knife was recovered from the thicket on the following day in the presence of PW3 - Station Sargeant Raphael. In his defence on oath the accused said that durthg his quarrel with Christina over the shillings s4.xty the deceased slapped him twico, butted him with his head, making him drop to .1.13 3 the ground..; HcmanagecI to stand up and tried to escape but the decàsed £ollowcd hixnand kikod him in the somach felling Iüm down a sce.qrid tirno. ..Duz'irig tI2.osocand fall the ccusod saw a knife on the grond..near him. : lic, pame•.•ceifueç.i, and does not know if he cvon..uspd the knife, Ho ..w1kcd sway from thd scene butwas.arrostcd.:by a crowd whiok told him he had stolen cattle. He was t.akon to Police Station and it was then he was t.d he had killed 801110 0. He did not knov; who killod the deceased. but as he had bcen confused he may have done it. The lady and gentleman assessors who st with me had no difficulty to ±'ind that it was the accucod who stabbed the dccc-, ased withtho folding knife anl the deceased died from that stab wound. With respect, I shae the views of the asessors. I found the evidence of PW2 - Aron KulanLa fully credible He in fact saw the accused stab the dcoisôd with a knife and then run away to eseapo.... from the scene. The accusoci himself did not really make a serious aenial of having caused the eat.i of deceased. He knew he had done i1 but cld not 6arit,in term.9 and r .rnere.ly aaici said he might have done it. . . . Tho.auod said that after he had boenassulted by the deceased h 1bcio conf•us'd. Ho didnotölaborate on the kind of confusion'ho allo8edly experienced. What I know for certain is that thë•docoathd did not assault the accused as claimed by him. 1 771 i:id not see the deceased assault the accused while they were st1ll1n thehouso.: After both ±ho deceased and the ácoused got out of the hot.tso ho,oz&O soon by PW2. This ,itness did not alsOsoe ddcosod suJi the accused. Instead he saw' the deceaso'unhing and ti aèôod was pursuing him until he caught up ih.Mm and mortally wounded him. So, the accused could not hay bnconfusoö. because of any assault on him by the deceased andthorowas no question of killing in self- dofonce. The accused said he had drunk pombe. It is quite possible he had drunk a substantial amount of pombe on that day. When PW1 was answering ciuostions under cross—examination he said "the accused's conduct and words seoiicd to be those of a drunkardY. Was the accused so drunk that he had stabbed the deceased with a knife without roalising what he was doing? I do io. Ho know he had wounded the deceased very gravely and he feared for the wbrst. That was the reason he run - .../4 - 4 when sway andLhe was about to be arrested he sought to throw away the incriminating knife. have killed But could the accuseclLthe deceased because of any provocation given by the deceased? Both lady anci•gentleman assessors are of that opinion - The accused said in his evidence that he had gone to his home only to find things in the house in total disa y He.. found his money missing. He went to P71 2 s home where he suspectad his mistress Christina might be. Sure enoughahe was there and she was sitting with the deceased and others taking pombe. We know that the anwers*hichO1stina gave the accused in connection with the missing mney did not satisfy him and that explains why he took the trouible to go for the ten cell leader. This act by the accused suggests that he did not want to make himself the complainant and judge in his dispute with Ch±itin4 He did not then wish to talçe•tho law into his own, hands. Unfortunately, while the ton cell leader was trying to resolve the dispute the deceased shot in by asking him - the accused - some highly irritating questions of which I made mention earlier in this judnent. The accused appeared to have been enraged and it was then he 'told the d.ocea'dd to go out. The deceased did so and the accused wont after him. The deceased most proba 1,ly realised that the accuod was in a. dangerous mood, so he tricd.to run' away. Yes, tha accused was indeed in a rare. He ciasod the deceased, Qaught up with him and stabbed him once on a vulnarablo part of the body with a folding kiife which he must have had in hio pocket. He saw the deceased drop down. He attoriiptqd an bscapo Could the questions which tle decoas?d asked the accusod person pokO a reasonable rage? No, if taken in isolation. But when those.. question,s are considered in the whole background as already narrated in tüs juclaient, I rospoctifully agree with the lady and gentleman assessors that it is possible for a Tanzanian reasonable man to react in the way the accused did, The accused does not appear to have intended to kill the do6eased, n that fit of extreme anger he took out the folding knife 'rom his.pockot and struck d.ocesed with it just once without reflecting on the possible harm it could have caused. The accused had killed while in a state of provocation. 0 - 5 - Whene a person kills becwme of provocation, such killing id unlawful6 But there would be no malice aforethought, which is the essential ingredient for murder 0 In this case I and - • the assessors who sat with me are of the view that the accused • might not have had malice aforethough So he is not guilty of murder 1 However, since the killing was unlawful take the advice of the assessors and find the accusod guilty of • manslaughter, contrary to section 195 of the Penal Coda and I convict him accordingly 6 J.A. 1MOSO JtJDGE Previous Rocord: No record of previous convictions. In mitiraoi of sentence: Accused has boon in custody for 51 years awaiting to be judged. That was a very anxious time for him o The aoettsod stabbed deceased only once, he is a first offenclor. We ask for leniency. SENTENgE I take Into cnsidoration all the mitigating eircwnst.aiwea which 7i.avo boon p1cded by learned counsel on behalf of the accusaL. On the other hand I take into consideration the seriousnosø of the offence. With all that ithid-, I the accused to five years iiprieonmont. Itis soorded1: tAJ - O J.A. tflW$O At Mbova JUDG 29/11/1986 Right of appeal oxpaincd1 Assessors thanked and discharged. JAM/ATh1 I lima,