19860408 TZHC Mbeya

L'. COLCrLtLc1! I T-E HIGH CURT QP TtNZANIA ?T IRCNGA URIJ&L JURiSDICTW (MBE\ RG.LSTR?) CRIMINAL S - c.-S CASE i)8 Of 11 T: R 'tJBLC VERSUS ACCUSED EXAVERY JAN85 rJcA:LU fHARGa utdr Cort±ary tosectin1of the Penal Codel Ca4 16 . JUDGEMENT AISSUJ. 10 IV OnsOifwMsnga m4t with a Violent death at his Som,4 on 12th Piri1 1984- at 8 in the morningi A inn had visited himi greeted him .1itely y enuflettr befor. himi The man said a few words to deceased S md then used a panga h had broueh{ with him to iLflict two serious cut -. rsoh hhe.d and also cut his two iet PingOrsi singoifwe died nst8h-1y His wife schoiaika U nd4•(W3) and his grand duhter Claudia. Msanga witnessed the attaIk a they wee Present ahd near the deased just before he was killed. The dead body of deceased was tkeh to a go4ernmen'E hospital for postmortem oxaminatio an was indentified to the. doctor by Lenar Msenga(Pt'l.4),.his son., A doctor Nyeremba who performed the post. 20 .\ mojtem ex&mination. on the dead body and who later rxepared the poøtmortem repo't—exhiit P,1 - was of the opinion that death was due to nwtiple head injuries which resulted in ck ciue of loss of blood. Scholastika (r•:.3) said that the per, killed her husband was a strager as she had not sc?n him before bt at he had said he was from Lupade villane. on that m5rning she had ft met him on the road near her ,Q Anna Nyamaloftdp (PW.I), hoine. The man greeted her then went to speal her daughter in law. Suuent to that she went home and sat n,r her husband outside when the man came to the home, Mter greeting her husband the stranger asked d,cea'zd to elve him Jo4qck his chicken and money. nefore 36 / the deceased cu1d sav v 1 inq the ster attacked him with the nga he .; - was carrying w3 was tcrrifLed and took toa flight to the maize s hamba. Her grandd.auhter, Claudia (Pw.2), who was .alao present eiilar1y run away in terror. ScholastikA teld her daughter in law Anna (Pw.l) and her son LeonArd (.4) both of whom had come isresponse to alarm she had raised that it was te sohof Jas who had ki.led her husband. Later she also told the police - PW.5 —StatiO*-rgeant ?i*ivnbileqe that it was a-man from Lupande,. the s*of Ja*s, that i4d tille# her h.jsan#. Shexplaied that on a previous ocession one James Boia Npairo had brought chicken to her husband and she believed that was the chicken the killer dem5ndethat it be given heck 40 tohim. . 5 • _r - - -- S I 97 The accused xavery Jare Tga±r as acrested Iy - e poo cPr_5& apr.ren1y :rt t'r inforati of PT..3 s12tjka, On. 24/4/19E0 e was ta.1e to a Ltice of the peace — - 'TestOn rTgurle ihO recordeu ext judicial statereft.t. In a ruflig after tr trial te ctateent was ' •.esjd@redadmis1l e.e'ca. In the extra-judicial s awrient accused adritted to have killed the deceased. TTh said th,a as soon.as he rarried. his wife his parents in law told hiii that throughout their life they used to take medicine from Gi.noifwe ?saiga, the deceased, and that he accused) sou1d a1s take redicine fror' Sigoif'we, particularly before having sexual relations with '-io wife. The accused said in his statement that at first he iiored the advice because he did not be)..ieve in traditjoal nedjcji(, , s. 7Te aad love relations with his newly married wife without taking si gifwets med1cie Fjs wife cnceved a c'-'ild but it died within a week of its birth, It was tl-er he yielded and a goat was taken to E'ingoifcie. 11 Siifwo cønfirmed that the child died because the accused had consumated his marriage wtbout first seeing h.ir' After Singcifwe Tiad received the gat this accused got anoter chij.d. itb his wife and the child survived. Fe pr.ceeded to have aoxm.l relations with his wife and they got another child. 1-11lia third child began to fan 111 and hospital treatment helped. But then both his chiUren became criticall' ±11. The parents of the accused leai,± from soothsayers th.a the children wern ill because he aocused) had ignored his tr3,dit1onaI doctor, Jingifwe. Teritg that t 1ie accused obtained a Cb±CC ,I, cash i1li • 20/ ad otev things and fatr took to i'goife 1 ' be given otbertbings such, a fjh The fjh had to be Thud and taken t FJingoife who agreed ti give ut more of is ridioine. Despite the r'edicine another child died. It was tiiem hAnt to deceased (injoifwe) and deranded te be tld 1hy. )ija hid cntinued to die deipite the medicine lie Tlaa gt from hiD. S•ingifwe eplied tIat his redioi ha4 betn seed f'or him by villagers who considered him a mere. bluff. The accused, however, deranded to he given back all the things he had got from hiii. .ingoifwe did not say anything and the accused =t hinh twice with a panga ad thefl took'tm a flight. That, .n substance, was the sateet whi 4 the aocuso4, gave to he Justice of the Peace. . — During the trial the accwod retraced his extra udi aying it aa c rnbted and u:hi to him by Station Sergeant 'umwibi1ege (215) about six Jr s before he rpe'ted it, to the Justice of the 2ace e ten hanged his sory slightty and sai.d that part of tho statemeht was true and tht was the one i which he said he -Lk hi sick child to hospita, axtd that the child ipro.tod. He a ; : rosd that the Justice of the Pae had cautioned him that he dii nOt have to thke a statement aikd that if he made onb it would be procced in evidence at his 10 tra1 and that he did not tell the Jutice of the Peace that he had 'eën induced to make the statement. He insisted,however, that he hd not killed deceased. S'tatiQn 3e'geant Tuniwi: nbilege said in his evidence that it vne not at all true that he had taught the accused what to say to the Juse of the Peace, Th Justice of the Peace' on Iüs part gaid that he had 'taken all the necessary precautions to ensure that the aQOused, was a free ar:ent and that ho took his atatement after the accused free.1,y agreed, to do so. The lad and gentlemen aasessorswho sat with me said ther 2Q were a'tisfied that the extra—judicial statement of the accused was volwrary .xid that it had not been taught to him bg the poliç?, I on my art I have given keen att tior to t'iecircu- ms'tance in which tue accused made the statinent and, 'with resPect \ I share the view of the seosors that the s'atement was made vlimtarily and that it was his own statethent. I alaQ cQnsider that what is stated in it is true, It. rioted foremple J'64 that in the taterent it is said that the accued demanded fm the doceased to get back what the deceased got from him and that the deceased ias quite nd he ttackec1 him 'by cuttini 30 him twice with a iana. Also, it is said'in the aatememt that a chioken and money had been sent to the deeaed. AU this is t18taAtia1ly ifirmed by the evidence of PW3 SChlastika. - PW3 had said that the strangqX demand4 rin the deceased tobe given back hi- c:iikn and money and that before deeasd could say anything the str2'ner ct him with a panga. It is also reme'bered that 1c ceased waa ThuM to have two cute on the heod The fingers were cut, aording t Pw whe af'e' he first cut with the Dana on the head the deceased :ield his head With his hand and the man cut the head again with the pangs, this time 40 also cutting the fingers. It is ao krio'rn. from the evidenc of PW3 Scnolastika that her late husband w.s a traditional medicine man. I do not believe it was a mere àoincidenCe that the accused would have montinad these oetterg whieh turn out to be true. U, Having found the statemeiit to be voluntary a n d brue ac ha aoote dniits in it tht'i kilj~p rl bh thought iüm to be a eheat it becomes plain that it is a ioor.Lci OLQ for either murder or manslaughter,, depending on whether defences f o r reduaing the charge of murder to manslaughter exist. howsver, although there are ituatiohs in wLi.ch a c aurt Qan o on v i o t an accused person solely on the basis of a corifossin the practice of the courts in the country, a practice which .js based n prudence, i that orroborative eidene ah ould . be sought In this easet -ie rrobomtive eidene o è ough ehbuld.be I'. whe'her, in f4t, Lt was t ak*usd who killed the deased Singoifwe Msanga, PW1 m Anna told the court that she had talked for twenty. Minutes with the atranger before the latter went to the horn.e o f Ihe deceased and killed him. 1t was during day time and I lieve thee was. ample time for 11cr to look at the man well enough, When giving evidence she said positively that the man he saw on in her village was the accused although she added that the aeused n o w appears to have put on weight. PW2 Claudia who was 9 years old when she gave evidence 20 in-1985 must have been about four years old in 1979. She candidly qajd that she Qould not identify the inan if she saw hi.m again, That s understandab1e PW3 Shlastika said in - court after lQgking around that ehe could not be sure if the stranger was in oourt. When accused was made to stand up she said the ?tTa:was a sh o rt as the aused but that the açusod is fater and darker than the man who killed her husbands P83 had lee time with the etranger than PW1 had ai, in anj she jo an elderly lady poaibly with diminished mcmor.y pwe:t - PW3 however told PW1 Anna and P4 Leonard that the mar - said he wa fQm Lipande e knQw that the accused is from Lipand 1 AQ fr the fact - ha he said the man was the son of Jame (Boimanda Ngaro) that, I think was riere surmise. It was unfortunate t hat the police after arresting the accused did not otagre an identif:Cation parade which would have been a much more reliable manner of identification tha the aock jdentificatjgn which -took pla.e However, I am satisfied that PW1 Anna correetly identified the accused as the person . she saw with a panga in her village and who asked to be shown Singoifwe"s 40 home w1ujh he Glaimed he had forgotten. There is no dolit t..t - 30 jt w& that man who heVt2:r thGrafter 1dlld. Iccased Tim ft that the man said. he was from Lipande and demanded, to be given back his chicken and money, all this, to my mind and also in the views of the as ss.ors pzoviies the necessary orrortion for the extrad.jial atatoment gf the accused onfiming that he was the one who hilled deceased I have said earlier that the oircumstancbs of the killing will be murder Unless legal defences arc available to the accused o reduce the àharge to one of rnanslaughte It seems.ohvious to me that the accused indeed çdnsidereci that thedecased was a cheat, a bogus d.otor who obtained d dvantagos from people knowing only 10 toQ well that he was not in a position to really help them out of their problems He therefore set out carrying a pangs with him with the full intention to have his own back, as it wore. He had made up his mind to kill the deceased, to revenge himself. I am sajsfied that waQ murd.e*, The asseszorg were of tho came Qpinion• I the'efcre find him guilty of murda hared and convjt hime J.A. MROSO JLTDGE ALLOCJTU: I have not been well inc I was aent to remand 20 o.on 1 I have heart problems and although I have boeea reociving / treatment it was nt satisfactory, S E N T E N C E The aeused EXAVERY JAMES NGAIRO you have been found guilty and Co2avigVed of murde- contrary to scQtion 3,96 of the Penal Code and the Qnly lawful 4en4enQe I am emper to impoe on yu je that yu will &iffo' doth 1,Vr hangin ia so direçted Righ of appeal explained. yc 1\'iPOSQ 30 At Hbeya JTJD 8/4/86 Assessors thanked and di.sQharged JAM/ATM' lima,