20100820 TZHC Dar es Salaam

. ~ . ~•; ...........,. fl. IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL SESSIONS 116 OF 2007 REPUBLIC VERSUS PATRICK EDWARD MKUYlf· . ·· Date of Judgment : 18/8/2010 & 20/8/2010 JUDGMENT Mgaya, J. Patrick s/o Edward who is herein after in this judgment referred to as the accused person, stands charged with the offence of Murder C/S 196 of the Penal Code Cap. 16 of the Laws R.E. 2002. It is alleged by the prosecution that the accused on the 23 rd day of December, 2006 at Mlimba village within Kilombero District and Morogoro Region, did murder one Syprian S / 0 Edward. When the charge was read over to the accused, he pleaded not guilty and the prosecution in their strive to prove the charge against the accused person called six witnesses in support of the charge. 1 \ Briefly the evidence on record as adduced by the prosecution 1s to the effect that PW 1 one Edward S / 0 Damian Mkuyu, a resident of Mlimba on 22/12/2006 at 10pm was at home sleeping with his wife Anna S / 0 Kyelwa (PW3) when he suddenly heard a loud noise from his son the accused Patrick S / 0 Edward insulting his wife. PWl being the accused persons father intervened and asked the accused to stop disturbing them as it was late at night. According to PW 1 the accused reacted and said to PW 1 the following words " Nilikuwa nakutaka wewe uamke. Ni kwa nini mmeuza shamba mkatupeleka sisi kwenye shamba lenye maji?" PWl pleaded with the accused to stop quarreling and making noises at night and that they would discuss the problem the next day but the accused refused and continued shouting at PWl when the deceased Cyprian Edward who was PW 1 's son and a fourth born returned home from his normal walks. The deceased pleaded with the accused to stop disturbing his parents, PW 1 and PW3 at night. The accused harshly replied telling his brother the deceased that" Ndiyo WEWE NILIKUWA NAKUTAKA". After the accused had uttered the words to the effect that it is the deceased he was looking for, he punched the deceased, fell him down and kicked him. PWl and PW3 heard the impact of the deceased falling down. By then they were looking through the window. PWl and PW3 opened the door and got outside to assist the deceased who was still being assaulted by the accused. According to PW 1, the accused 2 I' overpowered them and had to call PW2 Damian Edward their elder brother who was staying in the rear rooms with the accused and the deceased, for assistance. According to PW2, the accused was aggressive and uttered threatening words that he would kill someone. PW2 suggested the accused be taken to the Police and the matter be reported to the police. It 1s on further evidence that PWl, PW3 Anna d./o, the deceased Cyprian Edward, Damian Edward caught the accused and started their way to the Police Station. On the way they passed at the compound of one scania. (PW4) also joined them. According to PW 1, the accused punched PW 1 on the chest, fell him down and escaped to unknown destination. After a short while the accused re- emerged, carrying a spade and a knife and found the group still on the way to the Police. He pushed PW3 and went straight to PWl and hit him with a spade on the head and broke its handle. The evidence on record shows, after the handle of the spade had broken, the accused drew the knife and stabbed PWl on the thigh. PWl screamed for help with pain and fell down. According to PW 1, PW2 and PW3 the accused again followed PWl where he had fallen and attempted to stab him again, when (PW3) Anna Kyelula alerted the deceased and the accused that the accused was killing PW 1. It was 3 at this point when the deceased in efforts to rescue PWl from being stabbed again by the accused, rushed and caught the accused at the back to stop him from killing PW 1. The accused as per the evidence of PW 1 & PW II on record the accused said to the deceased " Ni wewe nilikuwa nakutaka. Kumbe wewe ndiye unapendwa na baba." The accused turned and stabbed the deceased in the stomach. It is an evidence that immediately, the deceased fell to the ground and his intestines come out. The incident was witnessed by PW3 Anna Kyelula, PW2 Damian and PW4, Scania Nyanda. Anna D / 0 Kulula the wife of PW 1 called for help and people gathered. PW2 Damian Edward was assisted by the people who had gathered around to put the accused under arrest and was taken to the Police Station. The deceased Cyprian was helped by PW4 to the hospital Mlimba Health Centre, and as he was in a serious condition the doctors referred him to Ifakara Hospital. However the said Sypian Edward did not make it. He died on 23/12/2006 on the way to the Hospital, and the cause of death was due to excessive bleeding following the fatal stab injury as per exh PI. 4 It is pertinent to point out that evidence of PW2, PW3, and PW 4 regarding the whole scenario is similar to that of PW 1 and legally. It is a corroborative evidence as far as the evidence of PW 1 is concerned. It is worth pointing out that in the course of investigation PWS the investigation of the case, visited the deceased at Mkumba Heath . ' 1 Centre before he met his death and recorded his dying declaration Exh. P4 where he mentioned the accused as his attacker and the source of the quarrel was the accused who was accusing PW 1 their father for selling a shamba, and hence the quarrel which led t the deceaseds death. In further evidence PWS tendered the exhibits namely the weapons used in the commission of the crime namely a spade, a knife with a black handle, in court as exhibits P3, P4 and the sketch plan of the scene of crime was and marked Exh. PS. PW4 in his testimony said investigation revealed that the source of the quarrel that led to the death of the said Cyprian Edward was a shamba which was sold by his father PWl. With the evidence of PWS the prosecution case came to an end. 5 · The accused person, defended himself on oath, and called no witness. The accused persons defence was a general denial of the charge. The accused in his sworn defence admitted to have killed Syprian Edward by stabbing him with a knife. ,l As established by the evidence on record, the facts of the accused persons defence are simple. According to the accused person, on the material day the deceased Syprian had come home from the shamba where he lived to collect food from home. At 5pm the accused and the deceased went to the pombe shop and returned home at 10 pm. However the accused does not tell us whether on the material day he drank much but he says he was not drunk so he remembered each and everything and knew what he was doing. It is the accused persons further defence that as soon as he reached home, he asked his father PWl to give him some money in the morning to assist him in his shamba as there were tough 6 grasses. The accused further said, before his father respondent his brother the deceased intervened and told him to stop disturbing their father at night and that he should ask PW 1 in the mooring. The accused said, the deceased asked the accused whether_ for the few days the left home, the accused had developed the habit of disturbing their parents. According to the accused, the deceased grabbed him and assaulted him. A commotion ensued, and their father PWl, and PW3 their moth~r came out of their house to help the deceased, and called PW2 to their assistance against him. He said the whole group learned up against him to help the deceased. It was when it was decided that the accused be sent to the Police. He was tied and led to the Police by PWl, PW2, PW3 and deceased on the way before reaching the Police Station, he managed to escape and returned home. He said he untied his hands at home and did not awake his wife for fear of giving him a stupid advise. It is the accused persons further testimony that, he got an idea, while still at home that he had to leave as it was not safe for him to remain at home. He said he knew his father and the entire group despite his escape, would still proceed to the police to report him. He said he got an idea, took a knife and a spade and left. 7 According to the accused he took the knife and spade to protect him from dogs and any other thing he would find on the way. According to the accused, as he walked towards the group he looked from one side to another and eventually, he met his father PWl, PW2, PW3 and PW4 still on the way to the police, and recognized them. The entire group turned to him and beat him. The accused said he therefore attacked his father with the spade and its handle broke. He then drew a knife and stabbed PWl his father. There and then he turned to his brother Syprian ( the deceased) and stabbed him in the stomach. It is the accused persons version that he heard PWl and the deceased crying with pain. His mother went to assist his father while he assisted the deceased while PW2 rushed home to call PW4 and get a bicycle to carry the deceased to the hospital. On arrival at the Police Station, for a PF3, the accused said he was arrested and locked up. He learnt of the death of Cyprian on the next day. The accused in winding up his defence asked the court to forgive him as he killed his brother un intentionally. The above is the summary of the evidence led by the accused in his defence. I have carefully considered the evidence for the prosecution as adduced by the prosecution witnesses, as well as the accused persons defence, and have observed as follows: 8 It is not in dispute that the accused Patrick Edward killed Sypian Edward the deceased, as the accused himself admits as a fact to have killed Syprian Edward on 23/12/2006 by stabbing him with a knife in the stomach. It is also not in dispute that the cause of death as showed in the Post Mortem Examination Report Exh. PI was excessive bleeding resulting from the fatal injury inflicted on the deceased in the stomach by the accused with a knife. What 1s 1n dispute 1s whether the accused person Patrick Edward killed and or caused the death of the deceased unintentionally as claimed by the accused or intentionally with malice aforethought. Section 196 of the Penal Code with which the accused stands charged with provides: " Any person who, with malice afore thought , causes the death of another person by an unlawful act or omission is guilty of murder." It is therefore the dutr of the prosecution to prove beyond reasonable doubt that indeed the accused persons acts and 9 conduct were accompanied with an intention to cause death or grivious bodily harm to the deceased. This is so because, as it was held by the Court of Appeal of Tanzania was held in the case of Mohamed Said Matula Vr. 1995 TLR 3 that" ...... upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but the link between the said death and the accused. The onus never shifts -away from the prosecution and no duty is- cast-on the accused- to prove his innocence." It is pertinent to revisit the evidence of the prosecution to find out whether the accused had the intention to commit the offence of murder, and that having made preparations and with the intention to commit the offence he did an act towards the commission of the offence charged. The answer to the above could be derived from the conduct of the accused from the beginning, when he started assaulting the deceased persistently for no apparent reason at PW l's home on 22 / 12/2010 and the· scenario could be traced to the time of stabbing the deceased to death. 10 According to PW 1 and PW2 when the accused reached home he purported to be insulting his and when PWl intervened to stop him from insulting his wife, he said " Nilikuwa nakutafuta wewe uamke ............... " and asked PW 1 why he sold the farm and gave him a farm in a floody area. It will be recalled that when the deceased intervened to stop the accused from disturbing his parents, the accused reacted violently and wildly attacked the deceased by punching him and kicking him. When PWl and PW3 intervened to calm him and help the deceased to get away, the accused persistently continued assaulting the deceased and PW3 was called in aid. It is on record that when PW3 intervened in the commotion involving the accused and the deceased, the accused uttered threatening words to kill " ... lea ni lazima nitaua mtu". The accused said he must kill someone on that day. It is on record that following the accused persons threats to kill, the family decided to send him to the police and PW 1, PW2 and PW3 and PW4 got hold of the accused to send him to the police. On the way, as per the evidence of PW 1, PW2, PW3 and PW4, the accused punched PW 1 on the chest and ran away before they reached the Police Station. Unknown to the group he returned home to pick a knife and a spade and followed the group. 11 It is on record that when he emerged he went straight and hit PWl Edward Mkuyu with the spade on the head and when it broke, he drew the knife and stabbed PWl on the thigh near his private parts, and he fell down. Still the accused followed PWl where he had fallen to stab him further. According to PWl. PW2, PW3 and PW4 the deceased rushed and held the accused so as to stop him from killing his father after PW3 alerted them that their father was being killed. A turning point is when the deceased held the accused to stop him from killing PWl that the accused uttered words to the effect that " Ni wewe nilikuwa nakutafuta wewe ndiye unapendwa na baba" and immedietely he stabbed the deceased in the stomach with a knife and the intestines oozed out, resulting to his death. On the circumstances of this matter, the issue at hand for determination and decision whether the accused persons / utterances that he will kill someone on that day uttered to PW2, ' and the words, said to the deceased by the accused before being stabbed by the accused " Ni wewe nilikuwa nakutaka unapendwa na baba" by itself and the prevailing circumstances is evidence of pre-meditated killing. From the given circumstances the answer is in the affirmative, that the accused persons utterances to PW2 that he will kill 12 ,...___ ---- ----------- someone on that day, and to the deceased that he was the one the accused was looking for is evidence of pre-meditated killing, since the statements were not made in the course of and during the fight or commotion between the deceased and accused at PW l's house. The threatening statements were made before the commotion, and in furtherance of the threats to kill the accused killed the deceased. It is worth noting that the stabbing of the deceased that -- ··eventually caused· his death, by the ·accused did not take place in the heat of passion generated by the accused persons act of assaulting the deceased persistently at PWls home. The stabbing of the deceased in the stomach that caused the death of Syprian occured after the commotion and assaulting of the deceased had seized although at one point of the commotion the accused said to PW2 "leo nitaua mtu" . By these ulterances the accused had showed positive intension to kill the deceased. After the commotion had seized, the family decided to take the accused to police fallowing the treats to kill. Perhaps, at this juncture I should also comment on the accused person conduct which in the circumstances of this case is indicative of malice aforethought. 13 The evidence on record shows that the accused having uttered the threatening words to kill, was led to the police by PW 1, PW2, PW3 and the deceased and PW4, and by then he was not armed. The conduct of the accused of returning home to look for a lethal weapon a knife he used to stab PW 1 and inflict the fatal injury on the deceased having struck PW 1 with the spade, is an indicative of malice aforethought that he intended to kill and or cause grivious harm to the deceased who was not armed. There was no reason why the accused having managed to free himself from PW 1, and the entire group to go home to pick a lethal weapon and a knife and follow PW land the group and went straight to PWl stricking him with the spade and stabbing him, before he turned to the deceased, uttered the words ni wewe nilikuwa nakutaka and stabbing him in the stomach with such an excessive force that the intestines oozed out. More importantly, in the circumstances of this matter, malice aforethought may also be inferred from the amount of force used by the accused to inflict the fatal injury as was held in Moses Michael alisio Tall VR. 1994 TLR. The type of the weapon used, the nature and cite injury caused by the accused in that the accused stabbed the deceased with such a force that the intestines spread out may give a considerable assistance in coming to a finding that the 14 -_ --_·---- -- - - - - - -- --- . accused had the knowledge that the act of stab bing the deceased in the stomach with a big knife Exh. P4 is so imminently dangerous that it must in all probabilities cause death or such bodily injury as is likely to cause death. From the circumstances of this case, and the sequence of events revealed, I have no doubt the accused had the intention to -. cause the death of the said Cyprian and the Sequence of events from the house of PWl to the time of stabbing the deceased, were preparation for the commission of the crime. I am of the settled view that in the given circumstances, malice aforethought has been established. I now turn to make a finding on whether the prosecution witnesses are credible witnesses, as I have observed that the prosecution case basically depends on the credibility of the prosecution witnesses PW 1, PW2, PW3 and PW 4. I had the occasion to see the witnesses testify in the witness box and having assessed their demeanors, I have found them to be truthful witnesses. PWl, PW2, PW3 and PW4 had no reason to lie against accused. PW 1 is the accused persons father and PW3 is a biological mother of the accused while PW2 is his brother and PW4 is their good neighbor. 15 There are however certain minor discrepancies between the evidence of PW 1, and PW3 regarding the torch PW 1 alleged to have used to see the accused assaulting the deceased outside their house, and then they both got out to assist the deceased to free himself from the accused persons hands. I say they are minor discrepancies because it does not go into the roots of the matter. The accused person and PW2 admitted as a fact that PWl, -- and PW3 both got outside the house to help rescuing the deceased from the accused but when they failed they called PW2 for a help. The accused admits this, so the issue of a torch does not in anyway undermine the credibility of the prosecution witness PWl and PW3. Having said and found as above, it is pertinent to decide on whether the accused persons defence has raised a reasonable doubt in the prosecutions case. I have carefully revisited, the evidence on record and the accused persons defence. Although legally the accused person cannot be asked to prove his innocence, the evidence on record strongly suggests that the accused person intended to commit the offence, and having made preparations of escaping and run home to fetch the lethal weapons and the ulterances of threat to kill and with the intention to commit the offence he implemented his desire by stabbing the deceased in the 16 stomach and inflicted the fatal injury which caused the death of Syprian Edward the deceased. In addition, before implementing his desire, he said to the deceased, "ni wewe niliyekuwa nakutaka , .. " and stabbed the deceased. The accused persons defence does not raise any doubt in the prosecution case. He is not entitled to the self defence he has tried to engage on because it is supported by the evidence on record --- --·-· . andin~fact itisthe~accu;edwho attacked- PWi-ancf the aeceasea- and there was no evidence that he was being attacked to give justification to do what he did. The gentlemen assessors gave their opinion I entirely agree with the gentleman assessor and the ladies in their considered opinion that the accused had the intention to commit the offence of murder by his act of inflicting the fatal injury on the deceased, with the kind of weapon used, the site of the stats wound, and or cause grivious harm to the deceased. On the strength of the evidence on record it is not doubtful that the accused intended to kill or cause gnv1ous harm to the deceased Syprian Edward. It is only when it is doubtful on the evidence that the accused intended to kill or cause grivious harm to the deceased will the court give the benefit of doubt to the accused and find him guilty, not of murder but of manslaughter as was 17 held in Augustina Kaganya, Ethanas Nyamoga and William Manyeye VR 1994 TLR 16. From the foregoing, I am satisfied that the prosecution has proved the charge of murder c / s 196 of the Penal Code against th~ accused beyond reasonceble doubt. I accordingly find the accused person, Patrick S / 0 Edward guilty of the offence of murder c / s 196 of the Penal Code Cap 16 of the laws RE 2002 and convict him as charged. JUDGE 20/8/2010 20/8/2010 Coram F. Mgaya, J. For the Republic Ms Eveta Mushi State Attorney For the Defence Mr. Sikalumba, Advocate Assessors: 18 1st Zainabu Choka 2nd Emite Chikeki 3rd Athuman Seif Accused: Present under custody. CC: Lukindo Doris MS EVETA MUSHI S/A: · - --- ----- ____ J-I_onourable - - - - - - - - Madame Judge, I am appearing for the Republic and Mr. Sikalumba advo~a:te is appearing for the-defence.-- _________ _ Madame Judge, the case is coming for judgment. The accused is present, and we are all ready. Ms. Sikalumba S / A: Madame Judge, we have nothing to say as there 1s only one statutory sentence. SENTENCE: As there is only one statutory sentence, the accused is sentenced to SUFER DEATH BY HANGING.