19870227 TZHC Tabora 1

ORIGD'UL JURISDICTION ( TABORA Registry) versus PHILTPO l~UI30 "·:,1 ~HARGE: LLrA)i. I,~urder c/s 196 of the Penal Code Cap. 16 Vol. 1 of the revised tia.ws. JUDGMEHT CHIPETA,J • • • cc The accused~ fhillipo 'l''rubona 11 stands charged with the offence of manslaughter· c/s 195 of th,~ Penal Code. The Republic has alleged that on .or about 10th July, 1984, at ~',1"' Ulyenkulu Refugees SettleI'lent 11 in Urambo District, Tabora Region, the aceused unlawfully killed one Ndi bagaziza At;g .rntino. The accused . lenied the charge·. The Rept.1blic C81led 9. tote.I of four 'Nitnesses whose evidence is as follows: on or about the !lig.ct:t of 9th/10th July, 1984,: one Sanzelube::c. C-erald (p.W.l), who is the accused's ten'""."cell leader along Road 5C in U1yankulu Refugees Settlement, returned home late in the night and found the accused's wife at his home. Because he had had a mite too much to drink, P.W.l did not brother to ask the accused's wife why sLc was there. :larly next morning, the accllsed went to P. w.1 • s house and told 1'.W.l that there was a problem at his (acct1sed 1 s) house. The· accuse<::; told p. 7/.l that the previol,l.s night he had found ·the deceased inside his (accused• s) house,, and that the deceased, in a bitrd~<toEi!lia~ 2 stumbled on the bottom part of tJ:.e acct1sed 1 s door a!ld fell over a stone. p.w.1 then proc~eaea to t'.li.e acct1s~a• s hot1se where he fowic the deceased had fractures of the left leg ·~na left aJ;'ID with. bones, protruding out. p. 7/ .1 did not believe that the deceased coulf' have sustained those in.juries in ·thr:::- mai'1ner d\s~ribed by the a.cc used. P.W.l then asked tl}e (l;ec~asea how he sustained those injuries, to which the deoeasea ry·plied ih;.1t he. had been assaul t~a by the accused who had QSed a pestle i.n assaLU ting him. The deceased vvas taken to Ulyankulll Police Station. Yip.en asked by a PoliqG officer _(P. 1.V.3) how b.e st1stainea tho.se injuries, t_he deeeased again said that it was the accuse(3 who had a.ssaul ted ~hi.ID intront of the door of the acct1ssd' s holls_e after· the accused had\ suspected that the decec1s~a had been J.Uaking love w"i th his wif i,. The deceased was tl1en taJcen to hosri tal where he died before he coulc be treated. On i)th July, 1984, Station Sergsant Daniel Lazaro (p.w.3) vi_s.it<.:.d· ~he s~ene and saw blood stains in ths grocmds o! the accl.lsed' s house.• -J.,w, 3 also saw a ston·3 or rock SO.El8 three pa~es from the door of thG a.coused •_e house. That rock, however, had ho blood stains. .Acting on .. the deeeased 1 s statement. that the accused used a pestle in assaulting+ the deceased, P.W.3 lookrqd for the pestle a'1d founr one in a grass- Illade hut wi thL'1 t 1:2 9cco.:;ccJ' s ho:r0st(-y:ia. js the pestle had blood st~ins, P.w. 3 seized it and treated it ::in an eYJ1ibit. The wife of the accused told p.w. 3 that ths pestle was their property. That pestle was tendered in evidence as 3:xhibit p.1·. n the same day, that is, 13th JulY.v 1984, Dr. Reibert Kalumuna ,~.w.4} Qonductea a post-mortem ex?.mina.tion on the bod)[ of the deceased~ · Ext.ernally 1 P.,w.4 observed that th€ deceased had wowids on the upper an:' .lower extremities wi t 1.1 compound anc perforated frai;:ture.s of the l~ft femu.:-, left tibia. and left fi bl.ll2 as well as the left hllmerus., -,9•W• • also observed that the femur artery was severed by a bone, ,{thus causing exQessive bleedinc. In 1-:lis opinion, the cause of death pf thiJ deceased was s.hock as a resu.l t of exce:::isive bleeding. +, ;·.,1 3 It was also the dector' s opinion that those injuries were ca.used b,y externally inflicted m.oJ_ tiple blows and that tremendously severe force was used. 'Nhen shown Exhibit P.lg p. 1v.4 said that it was likely to be the weapon used in causing the fracture 9 • P .w. ·4 discounted the theory that the fractures whic.h the deceased :~mstained could have been s~stained by falling on a rock. 1.n his defence on oathg t!1e accused said that on the material night 1 he retu.rned home from a short safari within the Settlement at about 10.00p.m. On ·finding his door closed 9 he knocked· so that his ' wife could open for llim. .!tt that point he decided: to attend to a cal::'._ o! natureg and just t.:.1en_ he heard the c.ecease~ saying that he had sustained a fracture. The deceasedjl he said jJ fell over a rock some three pa.ces from the doorway. The accused's Wife then told him that she and the deceased I1aa been making love 9 an(] that when going out of the· house, the deceasea stumlltefl on the door a.nd_ fell over the rock. !he accused deni ea havi~12, assa!JJ_ tea the deceasea. He called no witness~. At the close of t':1e defence, nei tl1er counsel wished to make a'1y. final submi·ssions • •~fter my summing-up to the lady and gent_lman assessors~ both of -them were of the view that the accused lrilled the deceased after findi:··, ~he tatter in his house. The prosecuti.on' s -~vic::,:ncE El t.'.:is case is almost entirely 9ircur.c- stantiel,. Apart froL the deceased' s dying declaration 1 there is no one who testified to having seen the accused assa.LU t t.he deceased. t1t, as t told the lad:; and gentleman assessors,. it is no derogation of eviC,en;e to say that it is circu.m.stantial. 1.1 conviction can be base.d on purely circumstantial evidence. TJowever~ before basing a conviction on gircumstantial evidence, the court must be fl.lily satisfied that the . ~ulpatory facts lead irresistibl.Y, to an inference of gUil t and are tBitapab1e of explanation upon· any other reasonable hypotheses than that of the a'vused's guilt. (See ~~asanja Omari ~'llewa v. Republic, (1979) 1'T 9' \3 and cases ci tea th~reir~). - 4 - It is for t 11is reason tha.t circumstantial evidence must always be .narrowly exarr.·ined because 9 a:rrong other t.:1ings, such evidence, as with direct evidence, may be fabricated in order to ca.st su_~picion on another. In the present case 9 although the cause of death of the deceased is not in dispute, the manner in whic11 the deceased sustained the injuries which led to l1isdeath is SGriou.sly disputed~ I now turn to tl1e ~vid ence. rt is not in dispute that the ·aeceased was· founc:1 lyine outside tl1e a.ccu.sed' s house e~rly on the morning of 10th Jt.lly, 1984 with the serious injuries described earlier. The accused hims.elf said tha.t the deceased sustained those injuries at the accused's house at a.bout 10.00 p.m. the previous night. P.W.l, p.V{.2 and p_.w.3 did not believe the accused's story that the deceased sustained those injuries after falline over a rock. The disbelief of these witnesses. in the accused's story is confirmed by the deceased I s dying declaration that it was the accused who assaulted him with a. pestle, and the presence of a pestle in the accused I s ~-rh:omestead with blood stains, vvhich pestle is said to have belonged to the ace used' s ho:oestead. J:he ace used' s story is even more severely shuttered by Dr. Kalumuna' s findings and opinions. From the doctors findings, opinions and conclusions ii wbich I find to be. solid.13, based.I' a:id upon which iE.ehaV.BGllOEhBsi.'tatJio.m.r1.inctx~i:y.;t.;igJ k1amF.£ill.Jzly satisfi-ed, as werG the:- l~dy And ge:1.tleman assessors, that the injuri e:-: sus.tained by the deceased were not caused by a fall over a. rock but were the· rest.ll t of severe and :r.wJ. tiple blows inflicted on the deceased with a blunt object by some person. Now, who is that person? According to the deceased 1 s dying declaration, which was made in the presence of the ace use:d ii those injuries 'Were inflicted upon him by the accused using a pestle; and as .pointed out ~arlier,. a pestle, admitted to be the property of the accused's homestead, was fou.nd, within that homestead. Besides, bJ the accused's own evidence, and as remarked by tl1e lady. assessor~ there was no other person at the accused's house other tl1an the accused, h,j_s 'Nife and the deceased. - 5 rt is quite clear, therefore, that the accused lied to the prosecution witnesses ann in this court as to the manner in which the deceased sustained those injuries. From the evidence on record, thareforej I am fully satisfied that .the person who assaul tea the dec.Gased ant caused his injuries which led to the deat~1 of the deceased is nonG other than the accusedj Phillipe Vubona. Since those injuries led to the death of the deceasee, it follows, as day follows niBht, that it is the accused who killed the deceased. I The final ~1:i.estion is whether the killing was unlawful_. From the dece13.sed 1 s dying dc::claration and the acct1sed is eviflence, it is quite clear that the accused found the deceased inside the accused's ho use in circumstances suggesting that the c ~ceased and the accused I s wife had been making love. This must have ·provoked the accused- into assaulting the deceased. As there is no evidenc€ to suggest that the accused aqted .in self - defence so as to justify the homicid~, the killing ~~aer provocation amowited to Q11J.awful killing as a resvit of the provocation offered to the ace used by the deceased. In all the circumstances, therefore, I am satisfied t.hat ,,th~ prosecution has proved its case beyond reason~ble doubt against the accused• I accordingl.Y find the ace trned Phillipe l' 1 L1bona, ~Ui.l ty of manslaµ.ghter as c·ha.rged, and duly convict him of that offence ' forthwith. B. D, C!IIP3T1t , 2'14'(~7 :,ram: As Before 1'ccusea present under custoday Judgment delivered in open Court at Tabora this 27th day of Febru.ary, 1987. f/}itGl/-· 1 . I@· ';:;_ ;l/fni ._ 1/ve(Ji ....... B. D ;·crTIPETA , JUDGE. , , . .• #i!I' 6 - Record: (lrrr. Rutenge). No previous record 7 Uy Lord. :Mitigation: ( Mr. Kwikima) }fy Lord 1 the ace US Gd: is agcC;d about 34 years. ne never completed primary education. T-'{e is a first off ender. .An ordinary person would have reacted as the accused did. ·.11:~cu.sed rnist have acted under great strain and heat of passion. He has been in custody for over two years. His wife has run aw.a.; We pray for leniency. JUDG-"3. 27 /2/87. In favour of leniency, I have taken into account the fact tha.t accused is a first offender, that he has been in custody for over tv,;t years; that he has landed into trouble as a r~sul t of a di shone st \vi and that his matrimonial home has now hr.ck.en up. However 9 I cannot lose sight of the fact that the accused inf'lj very brutal injuries on the deceased~ anc~ this is .a.ugg:ss.tiv-e of the fact that the a,:::cusedj who hardly looked repent.ant., is a man of viol propensities. I accordingly sentencB the. accused to seven (7) years imprisom f; 1h1,J t[dlt B.D. ~ETAi JUDGE, R/AppeaJ. explainea ~ c·