19890907 TZCA Arusha2 1

IN TIT] COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM~ ICTSANGA 2 J.A. 2 Rii.MJJ)IJANI, J.Ji.. 9 And MFJ. . LIIJ;., J.1.i..) CRIMINi~L :..PPEI. .L NO. 82 OF 1989 Bfi.RN.f:..BiJ3 MLL.3lilU Mrll::Mi1 • . . • • APPELLANT v:msus TEE REPUBLIC. • • • • • • • • • RDSPONDENT (Appeal from the conviction of the High Court of Tanzania at l~rusha (Munuo 2 J.) / dated the 7th day of December~ 1988 I in Criminal Sessions Case No. 70 of 1987 JUDm.EJNT OF THE COURT RL.MADHANI 2J.A.: The appellant 9 J3r¢nabas Mlasani Mrema 9 was convicted of murder of his mother, Matesha w/o Nlasani, contrary to section 196 of the Penal Code. He was sentenced to death by ~he Hon. Nunuo, J. ·He has appealed against both conviction and sentence• On the material dayp 7th May, 1985, the appellant went to his mother at Shimbwe Uru. The h0use of the deceased was about 400 paces from that of Victoria i:i.loyce Mrema (P.W.1). Suddenly_ P. W. 1 heard an alarm., She left cutting banana leaves in her shamba and went to attend to the alarm. She found the deceased already slashed and was lying outside the door of her (P.W.:i) house. The witness asked tho appellant what had transpired. The ~ppcllant "simply raised the panga up and wont away with it"• P.W.1 raised an alarm and neighbours came to take tho deceased to hospital. Meanwhile the appellant surrondercd himself and the panga to Sgt. Haji (P.W.2) • ••••• /2 2 At the trial ti was agreed ihat tho only issue was prowcation. Mr. Shayo (Junior) appearing for tho appellant, has reiterated that issue. He questioned the adequacy of the summing---up of the learned. trial, judge to tho assessors regarding t~ai defence~ Jie subrni.t-ied th.a) "i;:10 assessors ought to have specifically rejoctcd:thc defence i of provocation but that they merely kept quiet aboui it. On behalf of ~ae rospondent 1 the Republic, was Mr. Mono, :fue Senior S~ate Attorney. He argued that ~ho defence of provocation was a.d.equatoly considered by the learned judge bo1h in her summing-up and judgment. The case depends exclusively on what the appellant himself had said taking ~P)~ consideration certain circumstances. ~ . . There are three accotmts of what he had said. · First, there is what P.W.2 alleges to have been told by the appellant. Then "ihere is his extra-judicial statement (Exh.P.3). Lasily, there is his sworn evidence in court. P.w,2, Sgt. Haji~ said that "The accused told me ho killed his mother because she was preven-ting his younger brother from repaying the accused's money. 11 , In his extra-judicial statemon~ (Exh.P.3) iho appellan1 had said :tvia.rchemu ali t,ema mate akasema rntakuf a mniache, 11 Niliclmkua panga nikamka ta kichwani :r.;ia. mkononi alianguka, nami nj_kaenda kujisalirnisha ••• 11 In court in his sworn evidenc0 the appellan~ deposed as follows:. "My mother said that I was bewitching her so that I would kill my uncle and herself so 'lhat I would inherit the shamba. I then lost my .temper and. head, picked up the panga and slashed my mother ••• Before I cut the deceased, my mother eput •n·the ground and cursed me saying that I ·would sec what would happen. I then got provoked, picked up the :panga and cut the doc cased twi•.c• I do not know what devil made me kill my mother. I simply lost my tompor. 11 ••••.. /3 - 3 Upon cr~ss-cxamination tho appcllani gave 1he ·following answersi- nI g-ot provoked when my rother alleged "ihat I wanted to kill her and my uncle· SQ that I would inheri "i. her shampai••• I ldsi iny head when my mother alleged that I wanird io kill my uncle and ~erself so 1ha1 I inhorii tho shamba. • • I got enraged wl1cn ny mo~!lcr sput on the grounds it amounted to disowning and cursing me~ That action provoked me. I did not intend to kill my mo1her ••• ii.ft.er my mo1her foll down, I realized tha'i I had 1 commitcd a grave offence so I surrendered muself to the :pcJioe. 11 • I Let us look at the evidence of P.W-2 -.o star-.·with. He admitted when cross-examined by tho dcfcnco that he had not recorded in the Police Statement the reason given by the appellani for killing his mother. Tho police ,statement was admi 'ited as Exh. D.1 -.o oontra.di9t his testimony. On ihc o-.her hand tho appellant when cross-examined agreed that his younger broi~er owed him some money. However, ho deniGd having -.:=,ld -that to.P.w.2. One wonders how did P.u.g k'now that unless it was narrated io him by the appollant himself. Mr. Shayo vonturod a suggestion that P .. W.2 was coached to say so by ' tho state attorney who was prosecuting. Upon reflection tha~ could not possibly bo so. Tho sta~o attorney would no1 have known of that. The extra-judicial statcoent (IDxluP.3) had re'rorence to a debt but wi1h.regard to a paternal uncle and a sister and not a younger bro~her. . ' Thus we can safely take that the appellant must have given 1hai reason to P.W.2 but for som0 oversig11t P.W.2 did not record that in his Police Stateinont. So on record.than there are three reasons given by the appellant for tho killing. Firs-., -.!10 deceased was preventing the younger bro'ihcr ~. from paying tho .appellant his money. Second, the deceased accused tho appellant of wanting to kill her so 1hat he.inherited. Las~ly.9 -.~c.dacoasod. sput down and ~hereby disowning and cursing the appellant •. · , ....;· 1 \ . ,. - 4 - Tho reason of spit-iing has boon 1-:>ld both in tho extra-judicial sta~omon;.a.na. in his sworn cvidonco in cour"i. Ono wonders why he did not givo that reason to P.W.l. Tho appellant was not cross-examined on that so we do not !mow. Likewise the appellant was not asked wby ho had no"i.gi.v~n that explanation to P.w.2. I"i,1 could bo argued that if tho appellant was enrag-od by tho spitting then ho would have said so on i:he first available occasions i.e. to P.W.l and P.W.2. Must the failure to do so only be taken as evidence "ib.at -.l1is reason is a concoction? We think no"J~ We have conceded to tho oversight on tho part of P.W.2, a poltce officer, to record "i~c reason given by tho appcllan"i. - , We are prepared to concede that in tho confused mental state tho appellant made an oversight in not giving fuller account of what transpired as ho has done later. In fac"i. the appellan"i in cross-examination said~ 1V1y ex-.ra-ju.d.icial statement is correci. bu-.,when 11 I narrated tho story I was si:ill suffering from "ihe confusion because I had killed my mo-.J:ier. 11 • _ The extra-judicial sta"i0ment was recorded a day aft.er the incident. If ho was thus confused then, how 1uUch so was ho just a li ttlc while af tcr tho act. In absence of· specific evidence to the contrary t)lo appellant has to be givon tho bonofi t of doubt that ho could have boon so confused as not -.o· mention tho spi_"iting as another reason for hin being provoked. We have ~o determno whether the three reasons given are probable. Tho appellant himself, despite "Iha money claim, said ho never had a quarrel wi "ill his younger brother. Ro also said. thai that was "ihe first ~imo "\ho deceased made the allegation concerning inheritance. Ho added that "I trusted my mother until her dea1h." P.W.l in cross- examination replied that as neighbours tho deceased and herself used to visi~ each other. Earlier on in c.x.a.r;unation-in-chief she bad saidg 11 I !mow of no quarrels botween tho accused and his mother during -\he )ime I lived wi"lh "ihom as a neighbour." This cas"is doubts to any suggestion i . - 5- that the appellant went to his mo"i~or with the intention to kill her. Then tho appellant had said, and ho was not contradicted 9 that the panga he had used was one of the "iwo pangas belonging to "iho husband of P.W.l which wore at ~he si"ie. Thus ho did not go 1hero armed. Ro merely picked-up the panga upon bGing provoked. P.W.l·had. said that she would not havo heard any conversation between tho appellant and the deceased which might have "iranspired before "ihe slashing. In the absence of any evidence 1o suggest "iha; ho won; there wi"ih an in"i3ntion to kill, thoro might have been an exchange which procipit~ted tho spitting and tho fatal a"i"t.,di-• It is a fundaraontal principle of our law that this doubt be ·resolved in favour of the appellant. The question· is could any or all of the thre'= reaso1ts constitute provocation. • Provocc1tion must be judged by the standard of an or-dinary person of the community to which the accused belongs (Yoran v. Uganda [f.9707 E .A. 405), That was to be decided by the assessors here. Unfortunately the third assessor did not say anything regarding · pr.evocation in his opinion. The fir.st assessor stated: 11 Hud he inflicted only one panga cut, the defence of provocation would !'lave been probable". The assessor misunderstood the law. In th~ <lef~nce of provocation murder is established but mi t.igat'=d by th~ fact that the acr.used was provoked (Section 201 of the Penal Code)o So the number of custs is immaterial. Thus this assessor in effect found that there was provocation. The second 2ssessor saict "Acr.us~d· 1 s de.fence of provocation is not probable, he ha1, as he r?r.0~1~1 in his extra- judicial stv.tGment, Exh. P.3,. had misunderstandings and strained r.elations with hi.s. mother and youn~r broth'=r." eo'Cl•411••/6 6 rt cannot bo said that the assessors ruled out p.-ovocation. The doubt h:::s to be resolved in f2.vour of the al_)pellant. Apart- from provocation there is another ground~ All the three assessors, as well as the 1 ::i"lrned trial juiige, put much 1 emphasis on c. matter which is not suppd.-ted 1Jy the evidence on reco,:-d. Th2 first 2ssessor s2id: "He intended to kill his mother which was why he wo.ylaid her on the way when she went to fetch water o 11 The second assessor opined that: 11 The a.ccused waylaid the deceased on her way to fetch watero" Yet the third assessor repeated that: The accused started· pre-meditating th-2 murder 11 of his mother then. The accused left his home at R2.U and went to way lay his mothe!'.' at PoW.l 1s home. He therefore had set his mind to kill the deceased which effectively ambush~d hero • .," The l~arned judge in her judgment said:- "• •• the accused got fed up with the sti:-ained relations between himself and his deceased mother so he decided to way lay her on her way from the furrow du,,.ing which successful ambush the accused fatally ••• 11 Elsewhere she said:- "The conduct of ambushing his victim, the deceased, establishes beyond all reasonable doubt that the killing was premedi t2ted." With all the due respect to the learned trial judg~ the~e is no eviden¢e on record that the appellant ambushed or waylaid his . deceased mother. It is our well considered view that the conviction of murder is based on that m,isconceived finding. According to the appellant himself, which is the only account of what happened, he had gone to ~ee his mothe~ at her house • • .... 0 ..... /7 . I'" 7 There is where the conversation started. However, the killing happened at the house of PoW.l. If the appellant had gone intending to kill the deceased in all probability he would have done it in the privacy of her house. Then the appellant was not armed when he went to his mother. He had picked-up the panga· at the house of P.W.l ~fter the verbal exchange leading to the spitting and slasheq the deceased. We are satisfied on this account that there was no waylaying at all. We therefore allow the appeal, find the appellant not guilty of murder but manslaughter cont,..ary to section 201 of the Penal Code. We set aside the sentence of death and order that the appellant be imprisoned for u term of seven yea,..s. DATED at ,"\.RUSHii'. this 7th day of September-, 19~9. R■ H. KISANGA JUSTICE OF APPEAL Ao RAMADHANI JUSTICE OF APPEAL Lo M. MFALILA \ JUSTICE OF i>.PPEAL \ \ \ '1 \ I certify that this is a true copy of the orlgi•na1. \ (So~ DEPUTY REGISTRAR. I l. •