19950823 TZCA Mbeya

.., / IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: B£~ADHANI 1 _J.Ao 1 MFA.LILA, J.A., And LUBUVA, J.A.) CRIMil\iAL APPEAL NO. 154 OF 1993 BETltJEEN NG'WALU MAKONDE • • • • • • • • • APPELLANT I AND THE REPUBLIC. • • • • • • RESPONDENT (Appeal from theConviction and Sentence of the High Court' of Tanzania at Mbeya) (MwipoEo, J.) dated the 8th day of October, 1993 in Criminal sessions g§_Se No. 128 of 1993 JUDGEJ\'.1ENT OF THE COURT LUBUVA, J.A.: The appellant, NG'WALU MAKONDE was charged with and convicted of murdering J\l'.ALOLO MASANJA s/o MWAWILA. She was sentenced by the High Court sitting at Mbeya (Mwipopo, J.) to death. From the conviction and sentence, she has appealed. This is a pathetic case. It involves the death of the deceased, the husband of the appellant. The appellant, a frail elderly womar. who has lost her sight from the time she .., was in remand prison, lived with her husband, the deceased at the village of Simike within the District of Mbeya. The deceased was also a sickly old man owning a large number of cattle. At the trial, the appellant, who was referred to as the first accused was charged together with her daughter KWANGU .. d/o MASANJA who was referred to as the second accused. She had •••• /2 i 2 her house near her ·parents, the deceased and the appellant. As the deceased was a sickly person who had previously undergone an operation in hospital due to hernia, the accused was thus charged with the task of grazing the cattle in the fields. The prosecution case was that on 13.2.1990, at 10~00 a.m., the appellant assisted by her daughter KWANGU d/o ~~SANJA, ~illed the deceased who was sleeping in his house. On 16.2.1990, (, . that is, three days after the incident, the appellant and her daughter, the second accused at the trial made cautioned statements to the police. In the statements, a detailed account was given as to how the deceased was killed. That as the deceased was asleep in his hut, the appellant stabbed him with a knife in the neck and the head. The second accused, the daughter, assisted by firmly pressing down and holding the deceased by the legs. The deceased died. The secohd accused hid the knife in her house. The appellant then went to graze the cattle in the fields leaving the dead body ih the hut. In the ~vening, at about 7o00 p.m., the appeilant brought back the cattle home. She J went to inform the ten-cell ieader (PW.5) that the deceased had died from the illness that had been troubling him. Fellow villagers came to the deceased's house for moaoning. Preparations were made for th~. burial1 of the deceased. The grave was prepared. Leading the mourning villagers to carry the dead body to the grave, PW.4 and PW.~ noticed blood stains on the skin on which the aeceas~d was lying. Four stab wounds were observed in the neck and the head of the deceased. Foul play was suspected and the bu.rial process was stopped .. Upon interrogation by PW.4 • ••. /3 ✓ :__; 3 and PWoS, the deceased .admitted to have killed the deceased. The second accused also confessed to have assisted the appellant in the cruel act of killing of the deceased. She produced the knife, Exhibit P1 which w~s used. The appellant and the second accused were arrested and charged with the murder of the deceased. At the trial, in her defence, the appellant while adopdng what she had stated 'in the extra judicial statement, she firmly maintained that the deceased rebuked and assaulted her. That as a result of the quarrel and fight~ she stabbed the deceased four times with a knife. Believing in the evidence of PW.4 and Pw.s, the learned trial judge held that the deceased being of ill health, there was no quarrel and fight between the deceased and the appellant. The defehce of provocation was also disbelieved. The appella~t was accordingly, convicted of murder. The second accused was convicted as an accessory after the fact to murder and was sentenced to a suspended sentence of 3 years imprisonment. One ground of appeal has been raised in this appeal. Mr. Mwangole; learned Counsel for the appellant~ attacked the learned trial judge's finding that there was no provocation established. He submitted that had the learned judge properly evaluated the evidence, he would have found that the appellant was provoked.. Thus, the appellant should have been convict.ed of manslaughter and not murder, Mr. Mwangole urged. What is more, Mr. Mwangole referred to the extra judicial statement, Exhibit D1 to support his submission that.the appeilaht was beaten and provoked b)li the deceased's utterances - "mimi mpumbavu sina akili". 4 Mr. Mwangole als~ made a determined attempt to convince us that . the appellant as . did not know Kiswahili properly, it.was possible that she was not properly understood by those who took her statements as no interpreter was used to assist her. And so, the issue of provocation was not brought out clearly, Mr •. Mwangole argued. Mr. Mbise, learned Senior State Attorney, for the respondent Republic, strongly took the view that in the circumst3nces of the case, there was no provocation or quarrel involved. In his argument, he stated that since at the time of the incident, it was only the appellant and the second accused who were present, the word of the appellant had to be relied on. In that case Mr. Mbise stressed, when the appellant was asked by PW. 2, she categorically replied' that she ha.d not quarrelled with the deceased. Even to PW.4 and PW.5 1 Mr. Mbise insisted; the appellant did not mention of any provocation on the part of the deceased. And so, Mr. Mbise concluded, on the appellant's own statement, the issue of provocation does not arise, the appellant killed the deceased ~ith malice aforethought. We have exercised our minds extensively "n provocation, the only issue raised in 'this appeal ~y Mr. Mwangole, learned Counsel. That is, whether -the defence of provocation was available to t~e appellant. In the first pla~e, we·propose to deal with the claim that the appellant did not know Kiswahili properly in which case she probably was not understood well in her confessional statements. With respect, we are unable to •••• /5 ./ 5 accept this point. It was raised at the tria-1 and the learned trial judge, correctly, in our view, addressed himself on it. The judge was convinced that the appellant knew Kiswahili because, when .the trial started, an interpreter was made avqilable to" the appellant. But as the trial proceeded, the learned judge noted, the appellant spoke good Kiswahili without the aid of an interpreter. In that case, as was held by the trial judge, we see no cause for the complaint that the appellant was not understood _in what she stated in har statements. From the record, we are convinced that her words in the statements are clear and should be taken of what they stand for. Secondly, we intend next to examine closely whether there was any provocation as claimed by Mr. Mwangole. We agree with Mr. Mbise, learned senior State-Attorney that apart from the app3llant and her daughter, the second accused, there was no other person who witnessed the incident. In th;;it situation, Mr. Mbise is correct in his· assertion that the appellant's own words in describing the incident leading to the death of the deceased are to be accepted for what they ar~ worth. As analysed by the learned trial judge in his judgment, the appellant had made various statements since the day of the incident on 13.2.1990. In all these_ statements; she admitted killing the deceased but as regards the detailed circumstances, there were some variations which we think are not material. On 16.2.1990, as already observed, the appellant gave a detailed cautioned statement Exhibit P3. The statement was believed and acceptea by the trial ju~ge,.as t.J!outhful. In that statement, the appellant gives a 6 detailed account of the history preceeding the day of the incident. She states that the deceased quarrelled with her over the inadequate way she was herding the cattle. That she had got fed up with such quarrels by the deceased. And so, according to her statement, on the fateful day, when the deceased was sleeping in his hut, she killed the deceased by stabbing him with a knife four times in the neck and head. The postmortem examination on the body of the deceased bears this out. On the I basi~ of this statement of the appellant, the question of J: provocation, quarrel and fight does not arise. Furthermore, as found by the trial judge,"the d~ceased Wes a sickly old man, a fact which was also supported by PW.4 and PW.S, the neighbours in 'the village. He had recently undergone an operation in which case, we think, as correctly submitted by Mr. Mbise, the deceased was not in a position to fight or quarrel with the deceased as Mr. Mwangole claimed • . It is also significant to note that even PW.4 and PW.s to whom the appellant had admitted· to have killed the deceased, did not see any sign of commotion or dragging marks or blood stain around the hut in which the dead body was found. This to our'minds is indicative that the deceased died in the hut while sleeping. There could not therefore be any quarrel or fight taking. place between the appellant and the deceased wh~ was sleeping. Thi~jt~? the clandistine manner in which the appellant had set aluf to have the deceased buried is not insignificant either. . e. had almost succeeded in convincing the villagers in believinf thct he had died of a natural illness. If it were ••• • /·7 h / I 1 7 not for the blood stains seen in the skin in which the dead body was wrapped, the burial would have been effected and h~r involvement in the killing would pass unnoticed. This to our ,- minds 1 showed nothing but a conscienciously planned murder.•. In the final analysis; when all is said and considered, we are satisfied that in the circumstances of this case, the defence of provocation was properly rejected by thd trial Courto I It is our view that provocation within the meaning ~scribed under Section 201 of the Penal Code was not available to the appellant. The appellant•s conviction was justified. For these reasons, we_ di,$miss the appeal in its entirety. ' • 1• . .,"""~- ·oil.TED at MEE.YA this 23i~d_·:-'· clay of August, 1995 • . . _ _.' •/ .· ·l A. S.L;i R;\iV1l\DHANI JUSTICE OF APPEAL L.M. MFALILh JUSTICE OF APPEAL D.Z. LUBUVA JUSTICE OF APPEAL I ce~tify that this is a true copy of the original. ( M.S. DEPUTY I ..