republic vs silva makanyaga 2002 tzhc 2038 11 march 2002

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MOROGORO CRIMINAL SESSION N O .63/98 REPUBLIC versus SILVA MAKANYAGA CHARGEI- MURDER C/S. 196 OF TH« PENAL CODE The accused person now before us, namely, SILVA MAKANYAGA stands charged with the offence of murder contrary to section 196 of the Penal Code,, It is alleged by the prosecution that on or about August. ;-13» 199? at Mbasa, Ifakara within Kilombero District, Morogoro Region the accused murdered his wife, namely, one ALPHINCIANA SIMON„ The accused has denied killing 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 Upon 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 may 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 did not give her evidence on oath as she did not understand the nature of oath as is palpably evident or amply demonstrated in my nvqir~dire't! examination. Her evidence, if I may put it in a narrow 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 laboriously packing 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 he was going to kill some one that day* Dbortly later, the accused fished out from his trouser pocket a pocket-knife and ferociously struck the deceased with it on her stomach. The blow 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 ,PW;5 ROMAN'US LIwlSflBA who at the material period was the neighbour of the accused and his spouse, namely, the deceased* His testimony, if I may briefly state it, was to the effect that on that fateful morning be met with the accused. According to his account, it is in evidence that he greated the knife-wielding accused who, however, declined to answer him. The dumb-founded accused, if may 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 accused’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 palpably evident from the testimony of Fi2 Detective sergent JOSEPH and the post-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 dividing the small intestines and transverse colon. The perpetrator had also inflicted a cut wound that had the effect of partially cutting the lower part of the stomach, According to the report, the deceased's death was essentis due to haemorbagic shock* - 3 - It is also common ground that the accused was arrested on or about 9*>30 p*.m on the same day of the incident* According to Pw2 the accused, was arrested outside his house, apprently as he stealthly and inconceivably wanted to Gain access into it. Against the aforegoing evidence the accused testified, If I may put it in a narrow compass, to the exfecl 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 man hiding under the bed. The accused has in his defence version described this man as a suspected thief* For ease of reference, and for the purposes of this judgment, I shall retain 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 suspected, thief# He further asserted that as the tw^ grappled with each other, the deceased, inconceivably sprang up, seized his (accused's) genitals, namely, thg testicles forcefully pulled tfeem. In the course of this encounter the so-called suspected thief, who was apparently armed with a knife, stabbed the deceased,, shortly thereafter, the aforesaid perpetrator managed to free himself from his grip and chickened away;, leaving the deceased sprawling on the floor with her guts jutting out. It is further in the accused's testimony that he frantically attempted to return the guts onto their position* Upon realising that his efforts bore no fruits he was mentally confused.* Thereupon, he walked away from the scene and hid himself under a palm tree which was surrounded by several banana trees,, It is further 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 ANTHONY LI./i'jMIuie The latter, if I may recapitulate the accused's _ 4 narative, comforted him and prepared tea for him as he was very hungry* 'Thereafter, his last and two other persons led him tc 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 intelligibly pu£ it in a nutshell a 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 killing 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 pivotal question for consideration and decision is who should be believed? Is it the prosecution side or the defence side? Having assessed the demenour of all the witnesses, let me now bsgin with Pw1. I venture to say that her credibility was not at all shaken during the fiery cross- examination 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 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 by the fact that she was testifying on events which took place more than four vears ago* V w <•.J It is also not in significant to mention that she is raw from the village and was required to testify against her ora parent„ It is on the basis of the foregoing that I accept her evidence (See MUSA v.R (1970) H*CoD® no„ 278. It is also irnportpnt to mention that there has been no suggestion, leave alone evidence, as to why would Pil invent incriminating evidence against her own father. In other words, why should she lie against him? I must further point out, as palpably observed by all the assessors who had sat with m e } that I was intrigued by the accused's own conduct both shortly before the deceased's death and subsequently after her death* I can hardly perceive of any reason why the accused had all along remained dumb—founded* The normal reaction xor a person faced with such, a situation was to raise an alarm and also report the incident to the neighbours and even to the village elders at the earliest* This was not the case here* It is in evidence, and infact not controverted by the defence, that the accused had on that material morning, namely after the deceased's death met with PW3« The accused neither responded to his greetings nor did he iniorm him of the tragic incident; instead the accused was dumb-founded and preferred to eo into hidinp ms callous behaviour is inconsistant or Incompatible with innocence* To my mind, all these pieces of evidence lend an impressive body of corroborative evidence, albeit circumstantial^. to Pv/I's evidence which was not given under oath. (See; ARCHBOLD CRIMINAL PLEADINGS a ND PRACTICE 40th Edition paras 1431 to 1433, LEWTON v.R (1963) J3.A. 9, M S vR (1965) E.A. 193 and BHDZI vR (1987) ToLoR 68 at pg 70)» The foregoing pieces of evidence support the truth of PW 1 's story* If I may further add, they are necessary corroborative evidence a0 it is trite law that evidence given unsworn must be corroborated as a matter of law. O xt i^> ciloO in obo light of thG £ 01*6going incriminating/inculpatory facts that I find the accused', defence version not convincing at all, let alone being unreasonable, in the circumstances of the case. It is, in my candid view, highly suspect and a clumsy attempt (xool-hardy) for oneself to extricate from a predicament o r ‘hopeless situation. The accused's defence is, in my candid view,p/lain, poppy cocks not worth of any serious consideration. After- giving aue consideration to the available evidence as a whole, I am satisfied, as unanimously did the assessors, beyond all reasonable doubt that the dec_aoed wac,- murders a by tne accused. X, therefore respectfully decline to accede to the argument of' Mnoo-f-n t *Consequently ■J ° -,^om tne lady and gentlemen assessor^ m f-^ndin0 th<_ a^uUoed guilty as charged. I accordingly convict him as charged. I X b L i a t MO;;OGORO on this 11th day of March, 2002 in the presence of all the parties. ■Jod o r‘ iIi.WiiVvii, JUDGE .Ante credent My Lord, I have nothing to say as the punish,ent for the offence is one« Allocutus; M r . Masati; ^As the only punishment is death by hanging, I pray ^ lnc: should be considered when the report is made to the his Excellency the President. The accused is a fij-.^c ofitnder, aged 55 and is now .remorseful for the death of his wife. The accused has left seven children who are now orphans. 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 . xLjiatuL) ^ this decision ia upheld oy the Court of Appeal. , With th at rer^rk , I raust n0H pronolmce t „ sel)tA ** aCCUS6d 1S *0 • » * « death by hanging! v/7-/ o Jo MK w a ^j L? JDLGxi 11/3/2002 °£HEt - s i ght of eppeal is expla i n s d i T t/ / Jo Jo i ® r ^ r ; ■ JUDGjj} 11/3/2002 J^urtj^ The asses.Borp are th-rnVrH -■ a ■ -u o.xe ooanxCLa aijci di£chappred« \ / r* / MKW& JUDi 11/3/2002