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4I wv 41 T MBT.YA ) ORIGINAL JtJRIDICTION (Mbeya Registry) . CRIMINAL SESSIONS CASE NO.28 OF 1980 THEREEJJ3LIC .-,.VERTt3: 1 .'A1'YLWISYE MV.AKISIMBA 2 /'J®NAS M!IKISIMBA ' Charg: Murd c/s 196 of the IPenal Code. DGEN.T. CHUA, J S brother Anyelwisye Mwakisimba and-his 1dLJ3nas Mwakisimba were jointly charged with the murder of Isara Mwarnaku.la c/s 196 of the Penal Code 0 When the case cameup for trial learned State Attorney informed the court that Jonas iViwakisimba had died in remand prioon whio awaiting trial 0 Accordingly the case against Jonas Mwakisi;rba abated and this trial proceeded against the surviving accusod Anyelwisye Mwakisimba, In the particulars of the charge it is allc•goJ that on the 27/2/79 at Mpanda viilae K;rela Djstrict t ao'u. murdered Isaiya Mwarnakula, • That Isaiya Lv ilaiz doad i a fa that is not disputed in this case Sara abaga (P5) informed this court that the :asewac her undo sri tha hsving learned of his death on 28/2/79, she idenified hic body to a Medical Doctor who.carriad out a Poot Mortem Exami:stion, A report of the Post Morte:: examino•tin ha been teaered in court • showing that the aeeoased had sustained a sat wotthd 4 cm x 5 cm x 10 cm, on the right,capular region, a second stab wound 4 cm. x0.5 cm. ovor the 9th intercta1 space inf1itd anteriorly on the left side and laceration cf the spleen. About 4 pints of non—clotted, blood was foand in the abdominal caiity and death was attri:uted to haemorrhagic shock. There being nothing in the case 6o suggest that the deceased could have died because of other causes, I make a finding that the deceased died in the manner, described by the learned Medical officer. S S AA • - Tt is the duty of the prosecution to prove beyond reasonable doubt that the accused is the one who caused the death of the C- deceased 0 In this case the prosecution relied on the evidence of four witnesses to connect the accused with ta death of the deceased 0 These were Añyegllhle Mwaikamila (Pwl), 'Mwa.ndumbula Mwangunga (pw2),. Abiaham Mwakyandi le (PW3) and Mwakyorna Mwaki binga (PW4).'Accordin9 to Anyeul'le Mwaikamila on the 27/2/79 he had been at the house of the accused drinking pombe known as kimpumu from about 4.00 p.m. to 8.00 p.m. Persons drinking 3 were three only - the witness, acOused and his wife. At 8.00 p.m. the brother of the accused, Jonas Mwakisiñi9 and the deceased, visited the house, The accused welcomed, his brother and the deceased to sit down. He t$eñ angrily asked his brother: I lKwa nini un.amleta adui yarig::himtndàni?,. He then without further ado slapped the de-ôeasèd and juiriped on him. At that juncture knyegtflule Mtaikamila said hat he got sQared and decidcd to go home leaing the debeaa to h1 fate. .Mwandumbula Mwangunga (PW2) deposed that on the same day at about 9.00 p.m. at night he heard the deceased crying 'Anyelwisye kwa nini unrjiva?. He came out of his house and saw the accused person and his brother Jonas surrounding and assaulting the deceased. He pleaded with the accused to spare the life of the deceased but the accused did not heed. The accused is repor ed ' have told the deooas d: 'nitakuua kwa kuwa unatongoza mice Than the accused used a 'spear to pierce the dcceasedon the bek Having done that he tcnl the spear and buried it i:a the grund near his toilets While all this was taking place Mwandumbula Lk;an gunga sates that there was briht moon light which enabled him to see. Immediately after 'the kiilin the accused ailagedli gave Mwandumbula iwangunga 50 shs, a a bribe so that he would not divulge what he had soon but the later refused to accept it and 1oDorted the killing to his Ten Cell Loader one rIwakibinga in the samc night0 While under cross exaaination the witness added that on the following day in the mornin, the accused brought him 70 shs. but he also refused to accept it. The evidence of Abraham. JrJwakyandile (P''3) cnd Mwakyoma Mwakibinga (PW4) was similar. They beth deosod having heard a voice crying Anyelwisye kwa niniunoniva on' the material C night at about the same time mentioned by Mwandumbula Mwangunga but that they did not go to the scene because the cry was only once All the prosecution witnesses whoheard the cry that night said that in that village there is only one persoi called Anyelwisye - the accused person0 The accused elected to make an unaworn st:.tement and had no witnesses to call. He said that on the day in question he had been herding his cattle in the evening aftor which he went home,: ate his supper and slept. He was surprised to find himself arrested and charged. He attributes his having been arrested and charged to grudges which the prosecution witnesses who testified in this case had against him 0 He however, did not elaborate on the nature of the grudges.. It is clear that the accused was relying on the defence of alibi. - The whole case depend.s mainly on the creditility of Mwanduinbula Mwangunga. Mr. Tukunoba learned counsel for the accused submitted that Mwandumbula Mwangunga was not a credible witness 0 He pointed out the manner the witness hesitated in describing the dress of the accused at the scene of crime, the fact that the witness said that he raised an alarm while the other witnesses said that they did not hear any alarm other than the cry of a person mentioning the accused, and the fact that he failed to explain how he knew that the accused was ef:ering him 50 shs, while he donie.s hvirig countod tbp. rnmiir w}iich ho alleges to have consisted of coins4 In my JbsorvatiLn of tl he i: rcb impress re as being particularlj irtellint and that may explain his inability tQ grep the meanin of questions posed by the defence counsel and giving neat and concise answers on the dress the accused wore on tho iatful night and how he imew that he was offered 50 shs. On the question of alarm since the other witnesses said that they did not hea' it, 1 - have doubts whether there was any. The qussttcn then is if iviwandumbula Pwangtnga has lied in saying that ho raised an alarm can his evidence be relied on? My approach to the problem is that the evidence of Mwandumbula Mwangunga should be weighed with care since ho did not appear intelligent and apeared to have lied on the qoestion of alarm. In other worciC there is a need to look for corroboration before the evidence of the Nitnoss can be acted upor In this case the evidence of the witness was corroborated. Li the following /4 - -: -. C.- 4 - I ways Firstly his evid&ne that ho heard the deceased cry outAnyelwisye kwa nini unapival Was öorrobora -bed by the evidence of the other witnesses who deiDosed havi07 heard the same cry and words in that night. His ovidonce that he saw the accused spearing the deceased at the back i.s:.comfirmed by the medical ei: denc sh6wing that deceased did-sustain a. sab wound at the back 0 His evidence that he saw ohs accused the spear and that ne ehoweci tfle.?o±ice bha spot the spear was buried was corrbborated by -the evidence of Deteptive Sgt. Abel who admite.d having been shwn. tho, spot the spear was hidden, All the above factors Thdlttdiig the fact that the accused had been seer., by PW1 to be asâulti.iig the deceased and that. he is the only persoh called Aiyelwisye in the village show that PW2 had told. a S1..bsto%tially true story, for those reasons that I hold that the alibi raised by the accused does not raise a reasonable d-ubt about him having killed the deceased 0 I accorringly make a f±ndiig thah the accused did kill the deceased. The next oatThn to.b considered iñ'the cse is whetr the accused intonaod to oill or cause grievous bodily harm or put in -other words whetIx maiic af3rohr'1.ht Vaq been proved. Although bTo accusocl did. not raise tho'd.efene. of intoxication I have to sonsidor whether that dofonco is available to him 0 Factors which show that the defence of intoxication is not available to the accused are 'irstly the accused., his wife and PW1 are aid- '.o hald-take, only one bowl of kimpumu from 4.00 p.m. to 8.00 pro. Thotigh the bowl was said to have been of such v copocity that two and a half of them could have filled up A tinsiiiC the pombo was shared between 3 ,persoiC and taken oier a Period of 4 hours it appears that the aCcused could not have been drunk to an extent of becoming- legally means or becoming incapable of forming the specific intent to kill. I am reinforced in this view by the evidence that showed that the accused stated that he was kjlljncr the deceased because he had seduced his wife, he chose a spear which is a lethal weapon and stabbed the deceased in two very vuluerable parts of the body,, he was able to hide the socer and irmediately after the killing tried to bribe PVJ2 so that ho WOUld not divulge what he had soon. 11 - / 5 a r f - I Finally if the defeice of intoxication were Available to the accused it is unlikely that he *ould have 'elected to say no thing about it0 I have considered. whether the defence of provocation, is. available to the accused 0 If the accused had feund the deceased in flagrcDto delicto with his wife then defence would automatically have beccme available to hire 0 Furthermore if the deceased by woids or conduct had abused the accused then the court woulc haiyë to consider whether those words or conduct in law amounted to provocation. In this case the defence did not allege that the deceased had abused the accused and there was no effort to establish whether in the post the doceased had seduôed the wife of the accused as he seems to have bclivecl I therefore have no hesitation in holding that the defënë of provocation is not available to the accused 0 Accoiñg to the lady assessor in this case the accused is höt guil o. any offence because she cUd not believe all thep±eeutiori witnessee0 With groat respect I dioate myself from those views in view of what I have stated in this udnent. . Like the gentleman assessor I are satisfied beyond reasonable doubt that the accused killed the deceased with palice afohougb. I accorinily find him guilty of murder as charged0 L.J.R. CHUA tj 4_ ;• .J Al1ocotus I am very sad. I pray for lineancy. All the children depend on mc, Sentence There is onlyone punishment oresôribed...bylaw for ;:iurd.er. The accused is sentenced to death by hanging. - • L.J,1. CHJA JJDGE Right of Appeal ecplained. I?