republic vs bilva makanyaga 2000 tzhc 22 11 march 2000

T HE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MOROGORO CRIMINAL SESSION N O .63/98 REPUBLIC versus S I L V A MAKANYAGA C H A R G E I- MURDER C/S. 196 OF TH« PENAL CODE The accused p e rson n o w before us, namely, S I LVA MA KAN Y A G A stands charged with the offence of murd e r contrary to section 196 of the Penal Code,, It is alleged b y the prosecution that on or about August. ;-13» 199? at Mbasa, Ifakara within Kilombero District, Morogoro R e g i o n the accused murdered his wife, namely, one ALPHINCIANA S I M O N „ The accused has denied kill i n g the aforesaid deceased. It is not irrelevant to mention that the case for the prosecution was advocated by Mr. Ntwina, learned State Attorney, whereas that of the accused was advocated U p o n by Mr* Masati, learned counsel. I should also state right from the outset that by the counsel had addressed me with great deligence. and industry, j say, I am grateful to both of them. The evidence in this case is brief and simple and m a y intelligibly be stated as follows: At the material time the accused and the deceased were husband and wife. Their union was graced with seven siblings. PW1 TERESIA who at the material period was of an apparent age of nine (9) years old is one amoung their seven children. It is the case for the prosecution that I-V1 eye-witnessed the incident. It is also not irrelevant to mention that Pv/1 d i d not give her evidence on oath as she did not unders t a n d the nature of oath as is palpa b l y evident or amply d e monstrated in m y nvqir~dire't! examination. Her evidence, if I m a y put it in a narr o w compass, is to the effect that on the material date shortly after day break, she heard - 2 - the deceased and the accused bickering* It is in her evidence tbat at the material period the deceased was l a boriously pac k i n g their paddy produce into bags* It is also in her evidence that both of them splattered with rage, whereupon she heard the deceased demanding divorce from her father (the accused)* The accused on his side was beard saying incensedly that be was going to kill some one that day* Dbortly later, the accused fished out from his trouser pocket a pocket-knife and f e rociously struck the deceased with it on her stomach. "10 The b l o w sent the deceased sprawling on the ground with her guts jutting out* Thereupon, the accused took to his heels. There was also the testimony of ,P W ;5 ROMANUS LIwlSflBi* who at the material period was the neighbour of the accused and his spouse, namely, the deceased* His testimony, if I m a y briefly state it, was to the effect that on that fateful morning be met with the accused. According to bis account, it is in evidence that he greated the knife-wielding accused who, however, 20 declined to answer him. The dumb-founded accused, if m a y say so, simply went past him and hurriedly headed towards the ruins of his other house which was recently gutted by fire. It is further in his testimony that he immediately thereafter, heard hues and cries eminating from the a c c u s e d ’s house. It was then, when he rushed to the scene whereupon he found the brutally murdered accused's wife sprawling on the floor. It is common ground, as is p a l p a b l y evident from the testi m o n y of Fi2 Detective sergent JOSEPH and the 30 p o s t-mortem report (Exh.P.I), which was tendered in evidence during the Preliminary Hearing, tbat the deceased had sustained a long cut wound (18 cm) across the abdomen d i v i d i n g the small intestines and transverse colon. The p e r p e trator had also inflicted a cut wound tbat had the effect of par tially cutting the lower part of the stomach. A c c ording to the report, the deceased's death was essentially due to haeiaorbagic shock* - 3 - It is also common ground that the accused was arrested on or about 9*>30 p*.m on the same d a y of the incident* A c c o r d i n g to Pw2 the accused, was arrested outside his house, apprently as he s t e althly and i n c o n c e i v a b l y wanted to G a i n access into it. Against the aforegoing evidence the accused testified, if I m a y put it in a nar r o w compass, to the exfect that he was at home on that fateful morning* It is in his evidence that as he sat on a bed in his sons' bedroom he suddenly learnt that there was a m a n 10 h i d i n g u n d e r the bed. The accused has in his defence v e r s i o n de s c r i b e d this man as a suspected thief* For ease of reference, and for the purposes of this judgment, I shall r e t a i n and use the same description* The accused has in his narrative told this court that he grappled for quite some time with the so-called s u s pected thief# He f urther asserted that as the tw^ g r a p p l e d with each other, the deceased, inconceivably s prang up, seized his (accused's) genitals, namely, thg testicles f o r c e f u l l y pul l e d them. In the course of 20 this en c o u n t e r the so-called suspected thief, who was a p p a rently armed with a knife, stabbed the deceased,, s h o r t l y thereafter, the aforesaid p e r p e t r a t o r m anaged to free hi m s e l f from his grip and chickened away;, l e a v i n g the d e ceased sprawling on the floor with her guts j utting out. It is further in the accused's te s t i m o n y that he f r a n t i c a l l y attempted to return the guts onto their position* U pon realising that his efforts bore no fruits Le was m e n tally confused.* Thereupon, he walked a way from 30 the scene and hid himself u n der a palm tree which was s u rrounded b y several ban a n a trees,, It is f urther in the accused's defence version that he came out of hiding after dark and sought sanctuary, so to speak, in the house of his neighbour, one A NTHONY LI./i'jMIuie The latter, if I m a y recapitulate the accused's _ 4 n a r a t i v e , comforted him and prepared tea for him as he was very hungry* 'Thereafter, his last and two other persons led him to the Police Station. In the process, they met with an angry mob that was in search of him. The mob swarmed and pounced upon him and almost him to death., only to be served rescued by the policemen who came to his immediate and timely rescue* In essence, the foregoing is the case for both parties in this case* if I may i ntelligibly p u £ it in a nutshell a "TO It is abundantly clear from the foregoing, that this case depends entirely on the credibility of the witnesses. The case of the prosecution, as amply demonstrated in my foregone analysis, is based primarily, though not solely, on the evidence of PWI who is their only eye-witness to the ghastly incident. On the other hand, the accused has denied k i l ling the deceased. He has asserted that the killing was done by a person who he had described in his testimony as the suspected thief# In the light of the foregoing, the basic ore pivota l 2.0 q u estion for consideration and decis i o n is who should be believed? Is it the prosecution side or the defence side? Having assessed the demenour of all the witnesses, let me n o w b s g i n with P w 1 . I venture to say that her c r edibility was not at all shaken during the fiery cross- ex amination led by Mr. Masati, the learned counsel, for the accused and also during the examination by this court (honourable assessors) Needless to say, she has left me with a lasting impression of a competent and credible 30 witness* I find it pertinent, however, to mention that the few pockets of contradictions or discrepancies in hex; evidence, as argued by Mr* Masati, Learned Counsel for the accused, can safely be explained b y the fact that she was testifying on events which took place more than four vears ago* It is also not in significant to m e n tio n V <•.J w that she is r a w from the village and was required to t e s t i f y against her ora p a r e n t „ It is on the basis of the f o r e g o i n g that I accept her evidence (See M U S A v.R (1970) H*CoD® no„ 278. It is also irnportpnt to m e n t i o n that there has b e e n no suggestion, leave alone evidence, as to why w o uld P i l invent incriminating evidence against her own father. In other words, w h y should she lie against him? I m ust f u r t h e r point out, as p a l p a b l y ob s e r v e d b y all the as sessors who had sat with m e , that I was i n t rigued b y the accused's own conduct both sh o r t l y before the d eceased's death and s u bsequently after her death* I can h a r d l y perceive of any reason w h y the accused had all along r e m a i n e d dumb—founded* The normal re a c t i o n x o r a p e r s o n faced with such, a si t u a t i o n was to raise an alarm and also report the incident to the neighbours and even to the village elders at the earliest* This was n o t the case here* It is in evidence, and inf a c t not controverted b y the defence, that the accused had on that m a t e r i a l morning, n a m e l y after the deceased's death met with P W 3 « The accused ne i t h e r r e s ponded to his greetings n o r d i d he inzorm him of the tragic incident; instead the accused was d u m b - f o u n d e d and preferred to eo into hiding ms callous b e h aviour is inconsistant or Incompatible with i nnocence* To m y mind, all these pieces of evidence lend an impressive body of corroborative evidence, albeit circumstantial^. to Pv/I's evidence which was not given u n der oath. (See; A R C H B O L D C R IMINAL P L E A DINGS aND P R A C T I C E 40th Edition paras 1431 to 1433, LEWTON v.R (1963) J3.A. 9, M S v R (1965) E.A. 193 and B H D Z I vR (1987) ToLoR 68 at pg 70)» The f o r e g o i n g pieces of evidence support the truth of P W 1 's story* If I m a y f u r t h e r add, t hey are ne c e s s a r y corroborative evidence a 0 it is trite law that evidence given u n s w o r n must be c o r r o b o r a t e d as a m a t t e r of law. O x t i^> ciloO i n obo l i g h t o f thG £01*6 g o in g i n c r i m i n a t i n g / i n c u l p a t o r y facts that I find the accused' d e f e n c e v e r s i o n not co n v i n c i n g at all, let alone b e i n g u n reaso n a b l e , in the circum s t a n c e s of the case. It is, in m y c a n d i d view, hig h l y suspect and a c l u m s y attempt (xool-hardy) f o r o n eself to extricate from a p r e d i c a m e n t or‘ hope l e s s situation. The a c c used's defence is, in m y c a n d i d view,p/lain, p o p p y cocks not worth of an y serious consideration* After- giving aue c o n s i d e r a t i o n to the available 10 ev i dence as a whole, I am satisfied, as u n a n i m o u s l y d i d the assessors, b e y o n d all r e a s o n a b l e d o u b t that the d e c _ a o e d v.ac, m u r d e r s a by tne accused,, I, therefore, r e s p e c t f u l l y decline to accede to the argum e n t of' Mnoo-f-n t *Con s e q u e n t l y C:J J ° •*^oin fie l a(ly and g e n t l e m e n assessors in f - n d i n 0 th<_ a ^ u U o e d g u i l t y as charged* I accordingly c o n vict him as c b a r g e d » I X b L i a t MO;;OGORO on this 11th d a y of March, 2002 in the p r e s e n c e of all the parties. ■ Jod o r‘ iIi.WiiVvii, 20 JUD G E .An t e credent M y Lord, I have n o t h i n g to s a y as the p u n i s h , e n t f o r the offence is one. Alloc u t u s : M r . M a s ati; ^As the only p u n i s h m e n t is dea t h b y hanging, I pr a y ^ lnc: sho u l d be c o n s i d e r e d when the report is made to the his E x c e l l e n c y the P r e s i d e n t . The a c c u s e d is a fii-.i oixfender, aged 55 and Is n o w r e m o r s e f u l for the ~$o dea t h of his wife* The a c c u s e d has left seven c h i l d r e n who are no w orp h ans 0 no a l j r r ! . i3 °nS S “tanoe for « * offence and X have ternative an The matter. X must also say that I - * * * * » What I should ^ t0 irjls ^ c e x l e n c y The Fppqido-i- -i^ 4-v, * - • , x, t . x L j i a t u L ) ^ th i s d e c i s i o n i a u p h e l d oy the Court of A p peal. , Wi t h t h a t rer^rk, I raust n 0 H p r o n o l m c e t „ sel)tA * * aCCUS6d 1S *0 • » * « death by hanging! v/7-/ o Jo M K w a ^j L? JDLGxi 11/ 3/2002 °£ H E t - s i ght of eppeal is e x p la in s d i Tt/ / Jo Jo i ® r ^ r ; ■ J U D G jj} 11/ 3/2002 The asses.Borp o.xe are th-rnVrH ooanxCLa aijci-■di£chappred« a ■ -u \ / r* / MKW& JUDi 11/ 3/2002