19860127 TZHC Dar es Salaam

. ', .. ·' >'-, '··-- ---- ,,_· . 1,_HE. UNITED REPOJ3L!C OF '11,ANZANIA IN THE HrGH COURT OF T.AlifZ.A...1\JIA #X, D.AR ES. Sli.LAAI~I (ORIGINAL JURISDIC'rIOK) (DAR ES S.ALA1Ui1 rux}ISTRY) CRil\illif.AL SESSIONS CASE. NO. 15 OF 1981 The Republic versus SELil'I.ANI 13.AKARI l'!iKIWA Chargp: M.lrder c /s·. 196 of the Penal Code. J U D G E M R N T: MTENGA 1 J • The accused in this case Selemani Bakari is cha:rged with the ,!fence of Murder of his wile zuena :M\vincha.nde, on the 17th day of July, 19t . On the evidence,received in this cases there is no doubt that the accused. , etabbed his wife with a knife thereby causing her death. From the evidence •f Dr. :Michael Alois (P.V.17) who perfor;ned post mortem examination of the .. , ..... ',. . dfrd body of the ·dee eased, it c ~eax ly show.~ that the deceased died from : 1. •'stab wounds,, six in all which had been inflicted on her on the back and Q th hands. The accused in his extra-judicial statement exhibit P.6 admits; 1-..bb~ the deceased a.!fd killine; her but he contends that he was provoked· by the adulterous behaviour of the deceased. The evidence adduced in this case is not much in dispute. It is in·.· e"llidence that the accused and the deceased were husband a'1d wife respectiveq• SQJnetime in 1979, the accused purported to divorce his wife the deceased by g i ~ her ntalak 11 · and before doing so, he suspected .Alli Ibrahim (Pi!v:.5) oir·- ha.'W18 a.ffairs with his wife - The deceasedo The deceased then went to · ~Y with her mother .Rukia d/o Hassaz1 (PllalJ) in her home stead. Ch several_ -~1111'.lSif the accused tried to persuade the deceased to come.back home but ¥ did· not manage! to reconcile with her. Oi· 17th July, 1980 at about 7!30p.m,· ~ ~ - ,,. ·. lAI accused went to check up the deceased and to his dismey he found .Alli ~~ (PN.5) the deceased• s paramour with her. J3y then the accused was. . '• J. •t~ with a Jmife and a12tdlre't.., Cn seeil:ti;' Alli Ib:1;:-ahim (P.v.5) with his .... _, .( . ~ ~~ ~- . '! .. ~ the._ deceased, he hit him on 'the head with the rntrt..tJ-mt ha was. holding· ...... - ·.• ., ~J!' iv I l l ~ Jt: 1111!1' "~'"' -';..,..~'.:""'•.,..~.,_........_(•-~J•n.,.• •1otoi111~111(~ . .•• ...,.,.., .'' ....,~,.,. ....... -· :,; r ·•• - 2 - ...__ ,._ and Alli feli dovm unconsciously f he then proceeded to stab the deceased with his lmife all over the body~ The two cried for help resulting RUkia (Piv 13,) the deceased' s mother and other neighbours coming to their 0 rescue. The accu.ced was seen coming out of the deceased's housa wielding a matchet and with it he threatened those who cazne to the aid of his two victims and then va'Ylished away. Neighbours then prepared tw-. hammocks and took the two injurreds to the hospital but on the way the deceased died. (h 18/7/80 at about 7.15 apm. the accused surrendered himself before Miss Dona Salwa (F.W.1) who was the Word Secretary of the area and he confes3ed before her that he had either killed or seriously wowided.two persons. He was accordingly arrested and taken to the Police S.tation. From the Police Station, the accusedaccor.iponiea. P/C Katiri (P.w.4:) to the scene of the crimee Cb the way, the accused handed over a: knife exhibit P.l which he took from a sand.hip and which he claimed to have used in stabbing the doceaoed. He toos took a pair of trousers, hidden in a bush and it v1as full of blood stain.s ,-,hich he claimed to ~ve: had :put on when he conmittcd the offence and it was tendered as exhibit F.2;. When the accuecd and. P.W.4 arrived at the scene of the crime, they saw a lot of people and some pol.ice officers conducting investigation 6f the same case. PPW,,4 also. seized a sweater full of blo9d stains that the accused was putting on. The sc.ene c1.s found by Fw..4, was,:full of blood stains. The accused was then ta.ken back to the Police Station where the pre~ent charge was preferred against him., In his defence, the accused denied to have killed the deceased. He too denied to have had a wife by the nai.110 of Zuena !Jwichande but that he ad.mi tted to have had a wife who was cc,lled l.;fariamu Mwinchande but that he did not know the whereabouts of this Mariamu Mwichande. The first question.to be ressolved is whether the deceased was called Zuena Mwichande or Mariamu Mwichande who wa8 the accused's wife? We hav.e heard the evidence of Abbas Mwichande (P.v .11) the deceased' s brother and Miss Rukia Hassani (P?!~13) the deceased' s mother who told the court that the deceased uas called Zuena Hwichande and that he was married to the accused and she vras the one who vms stabbed to death by the accused~ Cln careful considere:'cion of their evidence having regard 1-> their demeanour in the \7i tness box 1 I a..n :tm.cJ.ine·c1 · to agree.with their 1vidence that the deceased v,as called .Z'.1.flna.1'Iwicha.nde. and not Maria.mu Mwic.ha.nd.e as co11tended ·by the accused., - 3 - The second question to be aaswerecl is that whether the deceased was still legally the accu.sed rs v:rife after &iving her ntalak 11 ·! Under the raw of ija;rriage Act 1971 11 talak 11 · is no lon:::;er recocnized as a legal w2.:y of divocing a wife but it ohly shows an intention to divorc·e., Marriage can •n1y be.dissolved in a court of law~ The 11 talak 11 : given by the accused in 1979 to his deceased wife is not therE;3fore recognized by this court. When the accused killed his wife in 1980, she was still legally his wife~ Ni,w the questi1n arises is whether or not the Republic is right 1n· oentending that the facts as briefly a.11.alysed above disclvee an offence 0£ murd~- having been conuni. tted by the 2,ccu.sed .person. Mr .. Si1uba.kalia, lGarned State Attorney submitted that al!lhough the accused may have found the deceaseu a..n.<1 her paramour Alli Ibrahim (JW.5) in the situation 2vS described above, still the accused was guilty 1£ murder because the accused had prior knowledge of his wifels adulterous association \7ith illi (PNe5)f thus tbe acci:,sed could not be said in the eircumstances to have stabbed t1:w decer-:i,sed tUll1G:.cf:lheat of i:e,ssion caused by sudden :provocation and befO):-e: tho:c0 W8-S -ti1;10 for. h:i.s passion to cool. With great respect to the learn0d State Attorn0y, I do not think that this is the. position in lavr; and I quite %'Teo with L'i.iss Mchalo loa:t'ied cousel for the 8S0~4l vrho re:turred nie fo th0 ce.~Je of ite:public Vs. Ernest l\tihumba · (1976) ZRT N. 27 where The L;,;~e MwaJr..aoendo J • ' 1 as He then was 1' Held that, prior knowloc:.ge by tho s.c; o~ed of his wife• s aaul ter.flus association did not, disab+e him from setting up provocation and reduoingthe offence to, manslaughter. 0.1 coimsia.e:cation of the eiri.dwn.co in t:-,0 present case and ha.Ying refard to all -thec1l;'oµostan0f3e surroundir.r; the killing of the deceased, I am satisfied that the accused ldlled his i7:Lfe ln the heat of p,_si,n ~. ~aused by sudden :provocation as defined by section 202 of the Penal 'code and before there was time for the passion to cool aE provided for under seotion 201 of the Penal Code. The second assessor shares ·thio vie\'/ vrhereas the first assessor is of the opinion that the accused I s killing of, the deceased vras preme.di tated and therefore murder. :Seoause of the aforesaid, I do not agree with him and aooord.ingly I diSl!.egard his opinion, .-,:: • ..; - 4 ... In conclusion therefore, for the reasons stated above, I.find the accused not guilty of murder but. guilty of manslauehter only. In the result the accused is aoqui ttod of murcler a.."ld convicted of mansliughtel?: c/s 195 of the Penal C6doo It; is so orderecl. /---- ./~- C. G. MTEi:JGA J11]GE Delivered in couxt in tho presence of.tho accused; Mr. Simbakalia State .Attorney, Mr. Mbilinyi for acc1..1sedQ Tbis 27th day of January, 1986. C• G. MTEi:~GA JUDGE 27/1/1986 The accused has no previons convictions. . ,>---·· .~ ___ __::,-,-- O. G/IvTI'EHGA JUDGE Mr. Mbil.in.yi for accusedg W.iy Lorcl, in consiclorini the sentence 1 I ask the cou.rt to consider: the following:- (a) The accused is a first offendora. (b) Since ho was arrested up to date, the accused has been in c:t1stody -for six years now.• (c) The accused killed when he was deeply provoked. More and above the accused is an old man of 60 year.s: of age with 11 child.rem who all depend on him. I ask the court to be lenient nith him. C• G. :MJ:ENGA JUDGE· 27/1/86 .•.'-- "f Accused: I am an old man and I ask for lcnienc;v. C. G. MTENGA JUroE 27/1/1986 S; E N T. E. N C ~: I sentencing the accused person, I have in mind that the accused .has been langµishing in custody for well over six years and also he.is. 8 very old man who was provoked by the dec:easod Yri th her paramour. (PWt.5i) when he cornmi tted the offence. I accordingly sentence him to two .years; jail but that the sentence is suspended for a period of 12: months. He is accordingly to be released~ c. G. MTENGA .nnpE, 27/1/86 Court: Assessors are thanked and discharged. J C. Go MTENGA JUDGE AT D.AR ES. SALAAM DATE: 27th day of January, 1986