republic vs evarist ngwizye hulichingha 2007 tzhc 295 27 february 2007

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT SUMBAWANGA CRIMINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 42/2000. THE REPUBLIC VERSUS EVARIST NGWIZYE @ IIU L IC H IN G H ’A (Dated: 05.02.2007 And 27.02.2007) JUDGMENT Before: B.M.Mmilla, J. Evarist s/o Ngwizye @ H ulichingh’ha is charged of m urder c/s 196 of the Penal Code Cap. 16 of the Revised Edition, 2002. It is alleged th a t on or a b o u t 19th day of October, 1998 a t Utint a village within Nkasi District in Rukw a Region he murdered one H a lim a d/o Ally. He pleaded not guilty to the charge. It is not in dispute th a t a person by the name TTalima d/o Ally is dead, and that she died a violent death. 'This is on the basis of the evidence of PW1 No. D 6863 D/Cpl. Mousa who, in the c o m p an y of a doctor visited the scene of crime and medical examination in that regard was performed in his presence. The Post Mortem Examination Report indicated th a t death was due to “ (1) Shock, (2) H aem orrhage (External) ■ and (3) Destruction of the Brains.” T h a t is also on the basis of the evidence of the accused himself who adm its causing the death of the said Halima d/o Ally, though he contends t h a t he did not intend to kill her. The back ground facts of this case are not complicated. The accused purports to have been deceased’s husband, [t has been alleged t h a t in 1998, they lived together for a period of a b o u t four (4) m onths before they separated. T he accused said th a t during the period of separation rumour had it t h a t the deceased had developed an intim ate relation with another man. He decided to make a follow up. On the night of 21.10.1998, P eter s/o P a n t a found the accused a t a local pub where he was drinking local brew and told him t h a t he had seen his wife and one m a n known as Hamisi s/o Kazila in a cassava farm. Suspecting t h a t they were having an affair, the accused and his friend went to th a t place and surprised them. The man ran a w a y leaving the woman behind. While Peter s/o P a n t a held the deceased, the accused chased the man. Unfortunately, he did not succeed to catch him. He went back to where Peter s/o P a n ta was holding the deceased, picked a slick and beat her thereby causing her in stan t death. Upon th a t, his friend advised him to run away, as a result of which he decided to go to Kirando where he boarded a bus bound for Suinbaw anga c? via N am anyire. - 2 - During the a tta c k , t.lie deceased raised an alarm which was answered by her daughter one F a lm n a d/o Kharnis. It is s ta led in the la tte r’s s ta tem en t t h a t on hearing her m o th e r calling from a distance, she rushed in t h a t direction. On arrival at a cassava farm, she saw Evarist Ngwizye, a person she had known before as her m o t h e r ’s p a ra m o u r holding her. She added th a t on going closer to where th e y were, the said Evarist Ngwizye released her m othe r and ran aw ay. Her m other fell down. On examining her, she found t h a t she was dead. The evidence of this person was an eye opener and gave the police a lead t h a t made it possible to know the killer. T he accused was arrested on 21.10.1998 by policemen at Ufili area in Nkasi District when travelling in Lupila bus bound for S u m b aw an g a via N am a nyere. He was taken to Nkasi Police station. On 23.10.1998, the accused was sent before P W l for interrogation. He made a cautioned s ta te m e n t which constitutes exhibit P4. The accused adm itte d in t h a t sta tem ent th a t he was the one who caused the dea th of the deceased, but t h a t th a t happened because of sudden loss of self control on finding her having an affair w ith a n o th e r man. The accused told P W l t h a t he ran aw ay on the advice of his friend P eter s/o Panta, and another implied reason is th a t he feared his fellow villagers would have killed him in revenge. The accused was also taken before PW3 one Simon Kibona, a justice of the peace who recorded his extra judicial sta te m e n t. This docum ent was adm itted in court and marked exhibit P6. Once again, he adm itted - J - th a t he was the one who caused the d e a th of the deceased, repeating the same reason th a t it happened so because of sudden loss of self cont rol on finding her having an affair with another man. I t cannot be over emphasised t h a t the d u t y of proving the charge of this nature against the accused person lies squarely on the shoulders of the prosecution, it never shifts. They are required to prove beyond reasonable d o u b t t h a t the person charged is indeed the one who killed the deceased, also t h a t the killing was a c tu a te d by malice. I t m u st be pointed out t h a t the accused person has no d u t y of proving his innocence. T he case of Moliamcd Saidi Matula v. Republic (1995) T.L.K. 3 is amongst the m any authorities on the point, [n t h a t case, the Court of Appeal held th a t: “ Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death b u t also the link between the said death and the accused; the onus never shifts away from the prosecution arid no d u ty is cast on the appellant to establish his innocence.” In an endeavour to discharge this duty, the prosecution side has called three witnesses to prove their case namely; P W l No.D6863 D/Cpl. Mousa, P\V2 No.D68.13 D/Cpl.Abdalla and PW3 Simon Kibona. As already pointed out above, P W l is the police officer who recorded the accused's cautioned s ta te m e n t while PW3 recorded the accused's extra judicial sta te m e n t. In both instances he ad m itte d commission of the charged offence. As aforesaid however, he contends that it was so - 4 - because of sudden loss of self control on finding her having an affair with anoth er man. Initially, the accused made a t t e m p t s to retract both these sta te m e n ts in the course of trial although he later on conceded in his defence th a t he freely offered to make them. T he court had of necessity to conduct trials within trial in respect of both instances. At the end it ruled in both cases t hat the sta te m e n ts were voluntary. In practice, a retracted confession cannot su p p o r t a conviction unless it is corroborated by oth er evidence (see the case of R v. Mela Melanyi (1971) MCI) 398). It. m ust be pointed out however; th a t corroboration is not necessary in law and the court may act 011 a confession alone if it is fully satisfied after considering all the m aterial points and surrounding circumstances th a t the confession c a n n o t b u t be true. The position was best summarized by the Court of Appeal for E ast Africa in the case of Tuw amoi v. Uganda (1961) E.A 84. In t h a t case their Lordships said that:- u We would summarize the position th u s a trial court should accept any confession which; has been r e t r a c t e d .. .with caution, and m u st before founding a conviction on such confession be fully satisfied t h a t in the circumstances of the case that the confession is t r u e . . .usually a court will only act on the confession if corroborated in some material particular bv independent evidence accepted bv the court. Hut corroboration is not necessary in law and the court may act 011 a confession - s _ alone if it is fully satisfied after considering all the material points and surrounding circumstances t h a t the confession cannot but be I rue ’. In our instant case, the cautioned and extra judicial sta tem en ts which were made by the accused to PW1 and PW3 respectively were nothing but truthful. B e tte r still; on a second th o u g h t he told this court on 31.10.2006 t h a t he freely offered those s ta te m e n ts to the witnesses mentioned above. In the circumstances, the confessions constituted in ex hibits P2 and P6 respectively form reliable evidence. On the other hand, PW2 No. 1)6813 D/Cpl.Abdalla recorded the additional s ta t e m e n t of the deceased’s d a u g h t e r one F a tu m a d/o Khamisi. The prosecution tried several times to trace her so th a t she could appe ar in court to testify but in vain. In view of th at, the prosecution resorted to the provisions of section 3 4 B (2) of the Evidence Act Cap. 6 of the Revised Edition, 2002 under which they asked this court to accept her s ta tem en t as evidence in court. T he defence side resisted its admissibility contending that the provision of section 34B of the Evidence Act was not st rict ly complied with. Section 34B (2) of the Evidence Act provides that: i4(2) A w ritten s ta tem en t may onlv be admissible under this section— (a) where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a - 6 - witness, or if he is outside T anz ania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance b u t he cannot be found or he cannot a tte n d because he is not identifiable or by operation of any law he c a n n o t attend; (b) if the s ta t e m e n t is, or purports to be, signed by th e person who made it; (c) if it contains a declaration by the person making it to the effect t h a t it is true to the best of his knowledge and belief and th a t he m a d e the s ta te m e n t knowing th a t if it were tendered in evidence, he would be liable to prosecution for perjury if he wilfully stated in it a n y th in g which he knew to be false or did not believe to be true; (d) if, before the hearing at which the s ta te m e n t is to be tendered in evidence, a copy of the s ta te m e n t is served, by or on behalf of the p a rty proposing to tender it, on each of the other parties to the proceedings; (e) if none of the other parties, within ten days from the service of the copy of the statem ent, serves a notice on the p a rty proposing or objecting to the s ta te m e n t being so tendered in evidence; (t) if, where the statem ent is made by a person who cannot read it, it is read to him before he signs it and it is accompanied bv a declaration by the person who read it. to the effect, that it was so read.’" - 7 - The import of section 34R (2) of the said Evidence Act was discussed in the case of Republic v. Hassan J u m a n n c (1983) T.L.R.432 in which it was held that: 44 the provisions of s. 34 R (2 ) of the Evidence Act are cumulative, therefore to a d m it a sta te m e n t in evidence under s. 34 R (2) all the conditions set forth from paragraphs (a) to (I) m ust he satisfied.” As far as our present case is concerned, this court was satisfied th a t all the conditions set forth from paragraphs (a) to (f) had been satisfied; in consequence it ruled th a t it was proper to a d m it tha t docum ent as evidence. This is the reason why it a d m itte d t h a t it th rough P\V2 and was marked exht. P4. It is imperative to point out at this stage t h a t because the accused has admitted in his defence that he was responsible for the death of the deceased, the issue w hether the he was the one who killed the deceased has autom atically been resolved. T h e m a tte rs for consideration have therefore been narrowered down to w h eth e r the killing was premeditated. As already pointed out, I he accused has raised two legal defences: th a t of intoxication and provocation. I propose to s ta rt with the defence of intoxication. - 8 - •This defence is grounded on accused’s account t h a t on the evening of 19.10.1998 Peter s/o Pant a found him at their local pub at which he w as drinking local brew. Mr. K a m p a k a s a has subm itted t h a t in view of the fact th a t he had taken alcohol it was possible t h a t he did not airn where to strike the blow, therefore th a t the question of malice aforethought does not arise. In other words the learned counsel seems to be saying th a t such a factor militate against a proof of mens rea which is an im p o r ta n t element in a charge of murder. To begin CT with,7 it m ust be sta ted here t h a t intoxication is not a Ogeneral defence. It can be a defence to a criminal charge u n d er circumstances covered under section L4 (2) of the Penal Code Cap. 16 of the Revised Edition, 2002. Subsection (2) of this section provides th at: (2) I n to x ica tio n shall be a defence to a criminal charge if by reason thereof the person charged a t the time of the act or omission complained of did not understand what he was doing an d — (a) the state of intoxication was caused w ith o u t his consent by the malicious or negligent act of another person; or (b) the person charged was by reason of intoxication insane, temporarily or otherwise, a t the time of such act or omission.” Lnder normal circumstances, it. can be pleach'd in case of involuntary intoxication or where the intoxication a m o u n ts to insanity or it - 9 - negatives mens rea. This means th a t it may not be a defence where one gets C1 himself d ru n k in order to gain ?Z courage C? to enable him carrv out j some criminal purpose. Where so established, intoxication may have varying consequences depending on the degree of such state. This aspect is taken care of by the provisions of subsection (3) of section 14. Subsection (3) of this section provides that: “ (3) W here the defence under subsection (2) is established, then in a case falling under p a ra g ra p h (a) of th a t subsection the accused shall be discharged r> and in a case falling under p a r a g r a p h (b) of th a t subsection the provisions of this Code and of the Criminal Procedure Act relating to insanity shall a p p ly .” In terms of subsection (4) of section 14 of this Act, intoxication shall be taken into account for the purpose of determining w h eth e r the person charged had formed a n y intention, specific or otherwise, in the absence of which he would not be guilty of the offence. It follows therefore t h a t where a person m a y be adjudged to have been incapable of forming the specific in te n t essential to constitute the crime (in this case killing) because of the effect o f lie, nor, the charge of m urder m ay be reduced to that of m anslaughter (see K. v. Damson s/o Simhakungile (1967) II.C.I). 71). However, where the evidence falls short of a proved incapacity in the accused to form the intent necessary to constitute the crime, but merely establishes th a t his mind was afloeted bv drink so tha t he more - 10- readily gave w ay to some violent passion, does not re b u t the presumption th a t a man intends the natural consequences of his acts. As far as our present case is concerned, I hasten to say that this defence is not available to the accused person. I have two reasons; first th a t while the accused said in his defence t h a t he had consumed alcohol, it is clear th a t he never suggested th a t he was drunk. T here is no any other evidence capable of establishing t h a t he was drunk. Besides, the accused has a very clear memory of all w h a t transpired on th a t day, from the time when Peter s/o P a n t a laid inform ation to him of having seen the deceased and her lover proceed to the rendezvous , their going to th a t place, w hat they encountered and subsequently w h at resulted and the decision to ru n away. This is not the memory of a person who can be said his m in d could have been impaired by a drink. In the circumstances, I find t h a t this defence lacks merits. Next to be considered is the defence of provocation. This is on account of the accused’s evidence in defence t h a t he beat the deceased (his wife) on finding her having an affair with an o th er man. T he issue is whether the deceased’s alleged conduct constituted provocation in the eyes of law. Section 201 of the Penal Code provides that it is a defence if a person kills another while in a fit of anger. T he term provocation is defined under section 202 of the same Act. Indeed, the aspect of anger is central, but th a t it must, be in the heat of passion. Hy heat of passion is meant a sudden happening w ithout there being time for the accused to cool down. The case of Kria Galikiiwa v R. ( 1 9 5 ! ) KACA 75 is to th a t effect. In this c o u r t’s view, where there is evidence to establish th a t the act was provocative and th a t it came as a shock to render him instanta neously out of self control and then im m ediately killed the deceased, then the defence of legal provocation is available to him. In our instant case however, evidence is there th a t the accused found the deceased having an affair with another m an. He consistently related this to PW1 and P W 3 as contained in exhibits P2 and P3. He repeated the same in his defence. At least, even the prosecution side has not shown d oubts a b o u t his assertion. On the basis of the evidence on record, the court is satisfied t h a t the accused found the deceased having an affair w ith a n o th er m a n as alleged by the accused. The accused is m a in ta ining th a t the deceased was his wife w ith w hom he had stayed lor nine m onths before they separated. Although it appears t h a t there was no legal marriage, the defence of provocation can all the same be considered in his favour 011 the basis of the case of R.v. Fita s/o Mihayo (1970) II.C.D. 58. In t h a t case, the respondent was charged of murder. It was alleged t h a t he murdered a m a n whom he found com m itting adultery in a bush with a woman he had lived with for a period o( a b o u t 4 to 8 months. He cut I.lie man with a panga inflicting a deep wound on the head. The doctor was of the opinion th a t death was dm; to shock caused by the head injury. The accused said he i'ueL Lhe couple 1 in the act o! sexual intercourse, lie adm itted attackingr* - 12 - tlie deceased. H e raised the defence of provocation in view of w h a t he said, the w oman was his wife. The question for decision was w hether the accused was married to the woman he claimed to be his w ife. It was held that:- “T h e law is clear. If two people are living in concubinage for a considerable time they can be considered as being married and in the circumstances such as these the accused would be entitled to raise the defence of p ro v o catio n — ” fn t hat case, a period of 8 months was regarded as considerable time. The facts in the above cited case were similar to the facts in our present case. As already pointed out, there was no official marriage between the accused and t h e deceased, but it is alleged t h a t they lived together for the period of 9 months. As already sta te d above, the accused surprised the deceased com m itting adultery with a n o th e r man. He has alleged in his defence th a t he was seized with sudden anger as a result of which he atta c k e d her thereby causing her death. Guided by the decision in the case cited above, the accused is entitled to raise the defence of provocation. The all im p o r ta n t question is whether the accused, when he killed the deceased was acting in the heat of passion caused by sudden provocation as defined by section 202 of the Penal Code, th a t is to say by some wrongful act or insult likely to deprive an ordinary person of his class of power of self-control and to inducc him to assault the person who so provoked him. The question w hether or not an act constitutes provocation was best stated in the case of Rex v. Hussein Mohamed (1912) IX EACA 52. In th a t case, the a p p e lla n t’s wife wished to leave him and gravely abused and spat at him. This enraged the appellant. He im m ediately lost self- control and sta b b ed his wife a knife which was on a table nearby, inflicting a large num ber of savage injuries on her. T he assessors found provocation in the grave abuse by the wife. I n te r p re ta tio n in respect of what provocation entailed was premised on the provisions of section 191 and 192 of the T a n g a n y ik a Penal Code which are replica of sections 201 and 202 respectively of the present day Penal Code Cap. 16 of the Revised Edition, 2002. The court stated in t h a t case that:- “ We interp ret the two sections referred to as meaning th a t before a charge of m urder can be reduced to m a n slau g h ter on the ground of provocation the following conditions m u st be satisfied: (1)the dea th must have been caused in the heat of passion; (2) the provocation must be sudden; (3) the provocation must be caused by a wrongful act or insult — and here we would observe th a t it lias been held by this Court that inert! vulgar abuse will not constitute an insult of any avail to an accused persons: - 14 - (4) the wrongful act or insult m ust be of such a nature as would be likelv to deprive ail ordinary person of the class to which the accused belongs of the power of self-control, ft is obvious from this th a t any individual idiosync rasy, such for instance as th a t the accused is a person who is more readily provoked to passion th a n the ordinary person, is of no avail; (5) And finally the provocation m u st be such as to induce the person provoked to assault the person by whom the act or insult was done or offered. This condition has on different occasions exercised the minds of this Court. In our opinion the provision means exactly w h a t it says, ... tha t [is] ... if the provocation is such as to be likely to induce an assault of any kind, then the accused should be found guilty of manslaughter and not murder and tha t irrespective of whether the assault be carried o ut with a deadly weapon or by other means calculated to kill.” As far as our present case is concerned, both assessors are of the view th a t taking into account the traditions of the m em bers of the society in which the accused was living, where a m an surprises his wife com mitting a d u ltery with another man as was the case here; such an act is regarded as most offending arid can lead to the taking by the husband of measures such as those which were taken by the accused - 15 - person in this case. T h e y opined th a t t h e accused com m itted the alFeged offence but in rage. With great respect, I share their views. Before coming to the conclusion in this regard, there is one more aspect I have to address; it concerns the kind of weapon used by the accused in the attack. T he Republic has asked this court to take into consideration the proposition of th e Court of Appeal in the case of Enock Kipela v. Rep. Criminal Appeal No. 150 of 1994 (CAT) (unreportcd). In t h a t case, the Court of Appeal stated th a t malice a fo re th o u g h t in a case could be established th rough several factors, including the type and size of the weapon used, the a m o u n t of force applied, the p a r t of the body the blows were inflicted on, the kind of injury inflicted and the conduct of the attacker before and after the killing. Stress here is on the kind of weapon used and accused’s conduct after the incident. It will be recalled th a t the doctor’s opinion regarding cause of dea th in present case was recorded to be (1) shock (2) hem orrhage (external) and (3) destruction of th e brain. This implies t h a t a light weapon m u s t have been used in the attac k. While there was evidence to show th a t he used a stick which he picked a t the scene of crime, 1 find t h a t there was none to establish th a t the accused used a club as s u b m itte d by the Republic. Because a small stick which was used cannot be said was lethal, which is a kind of weapon not normally associated with an intention to kill or cause grievous harm, the inference of malice aforethought, is much less “ ' !T readilv drawn than where a lethal weapon could have been used —(See the ease of II. v. Nyadundo (1971) 1I.C.D. 270 ). T here is also this aspect - 16- ♦of the accused’s conduct after the incident. I t has been subm itte d for the accused person t h a t lie away for two reasons: first on account of the advice of his friend Peter s/o Panta, and secondly he feared his fellow villagers would have killed him in revenge. In my opinion th a t is a plausible explanation. In view of this, I find t h a t the case of Knock Kipela is distinguishable from the present case. In conclusion, for reasons I have a t te m p te d to give, 1 find the accused not guilty of the charge of murder c/s 196 of the Penal Code for which he is acquitted. I n stea d however, I find him guilty of the offence of 27.02.2007. Date: 27/2/2007. Coram: Hon. B. M. Mmilla, J. For Republic: Mr. M alata, Mwangamila & Mkizungo. For Accused: Mr. K a m p a k a sa , counsel for accused. Accused: P re sent u nder custody. Interpreter: Bertha E. Ngogo —English into Kiswahili and vice versa. Court Assessor: 1. Odilia Katili. 2 . Imelda k a m s w e k e - Present. - 17- iffir. M w angam ila: My Lord and ladies assessors, we have no previous record against the accused. Mr. K a in p a k a s a : My Lord, on behalf of the accused, we p ray for lenience on the following grounds. In the first place, the accused is a first offender. Secondly your Lordship, he is re p e n ta n t for having killed his lover. Thirdly your Lordship, the accused has been in rem a n d prison for a period of 8 years and 4 months. Besides your Lordship, th e accused is an aged man, he being 42 years now. I pray for lenience. ALLOCUTU1L Accused: 1 have nothing to add my Lord. SENTENCE: After taking into consideration the m itigating circumstances advanced by the learned defence counsel Mr. K a m p a k a s a on behalf of the accused person, particularly th a t t he accused is a first offender, and t h a t he has been in remand prison for a period of 8 years and 4 m onths, the court 27.02.2007. - 18- tfiglit of Appeal explained Judge 27.02.2007. - 19 -