20171023 TZHC Mwanza

; 'I 1-'•.··. IN THE HIGH COURT OF TANZANIA \. < : ATGEITA ORIGINAL JURISDICTION (MWANZA REGISTRY) CRIMINAL SESSIONS CASE NO. 218 OF 2014 THE REPUBLIC Versus MICHAEL LUFUNDYA ..................... ACCUSED PERSON Hearing: 17th -19th Oct, 2017 Date of Judgment: 23 rd Oct, 2017 JUDGMENT FIKIRINI, J. The accused person Michael Lufundya stand charged with one count namely murder contrary to section 196 of the Penal Code, Cap. 16 R.E.2002. It was the prosecution allegation that on lihday of September, 2013 at night hours at Nyamboge village within Geita district a'nd region '"' did murder one Ester Clement. llPage ,'.,"·,. The accused person denied the charge. At the trial Mr. H. Mwasimba learned State Attorney appeared and prosecuted the case on behalf of the republic while Mr. D. Rutahindurwa learned Advocate appeared and defended the accused person. Three (3) assessors sat in namely: Ms. Bernadetha Makeremo, Mr. Mabula Lucas and Mr. Dauson Goga. In order to prove their case the prosecution summoned six witnesses namely: PWl-G.8214 PC Mhaigwa Malabo, PW2-D.7761 Cpl Joel, PW3- Bahati Nyamachagure, PW4-E.1454 D/Sgt Shabaan, PW5-F.1093 D/Sgt Eliya and PW6-Sapato Mgeta Bwire. Four exhibits were tendered and admitted into evidence as exhibit P1_ a sketch map, P2 _postmortem report, P3 - accused person cautioned statement and P4-accused person extra judicial statement. The defence phase of the case had only one witness the accused person himself who appeared as DWl. The following is the summary of what was gathered from the evidence presented before the Court. The accused person and the deceased were a husband and wife blessed with eight (8) children, five (5) girls and three (3) boys. The couple got married in 1995 after attending all the required traditional procedures. The marriage was enjoyable demonstrated with love 21Page {b. and understanding until 2012 when it turned sour. The once peaceful and loving relationship was now constrained with misunderstandings and disrespectful gestures that included unwelcomed responses to questions especially by the deceased. Along with these happenings, it was suspected that the deceased had started seeing one Bahati Lutemisha the relationship which culminated into fully blown affair. It was insinuated by the accused person that the 5th born in their marriage was actually not that of the accused person but of Bahati Lutemisha. The accused person besides enduring the situation he reported the matter to his mother in law. The mother in law acknowledged the fact that, by being poor, indeed the accused person was not fit and suitable marriage partner to the deceased (who was her daughter). She as well informed the accused person that the deceased has already introduced Bahati Lutemisha as a prospective husband and that Tzs. 30,000/- (as kifunga uchumba) has already been paid to her. Although this information annoyed and angered the accused person he yet opted to endure the marriage so that they could raise their children. 3IPage (J . On 13th September, 2013 the deceased is said to have informed the accused· person that she was going to attend to Mzee Katunda's funeral. Instead of going to the funeral straight, the deceased passed by Bahati's place where she spent three days. The accused person knew about this cheating even though he did not react. On 16th September, 2013 the deceased asked for money for provisions (mboga) from the accused person and was given Tzs. 5,000/=. The deceased, other than going to get the provisions, she seized the opportunity to pass by her friend Suzy and in the end passed by Bahati Lutemisha's place, where she stayed late. On the fateful night the accused person who operated a kiosk, closed his kiosk at around 9.00 pm and went home. He found the deceased not yet back from where she went to buy the provisions. He had his dinner prepared by the children. The deceased came back at around 10.00pm and on being asked about her whereabouts, she responded by warning the accused person not to tender her as a child "usichunge kama mtoto". She went further by telling him "kama utaendelea kunichunguza muda wo wote nitakuua" After the exchange of words the accused 41Page person retired to bed while the deceased stayed behind for a while but later joined her husband in bed. The accused person asked for his conjugal rights but was denied. They both fell asleep. At around 2.00am, the deceased is said to have woke up and went out to attend to call of nature. The accused person went after her. He found her squatting by the wall relieving herself. He asked her as to what she was doing but could not get any good answer. He thus relieved himself and went back to bed. In bed he did not fell asleep but stayed awake focusing towards the door leading to their room. That was when he saw the deceased coming towards the bed tip toeing, not knowing she had an axe on her right hand, the hand which was placed 1 behind her back. When she was about four and half (4 112 ) paces from the bed she raised the axe and held it with both her hands in an attempt to land it on the accused person. The accused person jumped out of the bed, punched the axe, took it from her, and cut her on the neck which resulted into her death. After learning what has happened he fled. Initially went and hide by the cattle deep "josho" where he as well consumed animal bathing pesticides SI Page in an attempt to kill. himself. Later he opted to walk to the Nzera Police post and surrender. At the station he found PWl, PW2, and PW4 who was the officer commanding station (OCS) then. That was around 6.00 to 7.00 a.m when the accused person surrendered and reported killing his wife as well as he taking deep pesticides ( dawa ya kuogeshea mifugo) from the nearby cattle deep. PW4 with the two other Police officers i.e. PWl and PW2 arrested the accused person and placed him in custody under militia man supervision. They as well administered milk in order to save him from the pesticides he claimed he had consumed in an attempt to kill himself. Whjle this was going on, PWl, PW2 and PW4 heard alarm raised "mwano/yowe" coming from Nyamboge centre. They all left for Nyamboge. On their way and especially at Nyamboge center they met a group of people and upon inquiring, they learnt that they were heading to the Police post to report deceased's murder as well as embarking on search for the accused· person who fled after the incident. The three Police officers and the group went back to the scene of crime. At the scene of crime PW2 interviewed those present as well as drawing a sketch map of the scene of crime. The map was admitted into evidence as GI Page exhibit P1 • At the scene of crime PW1 interviewed the accused person's son who told him that his parents had quarreled over love jealousy. Prior to the murder the deceased had travelled to her home place and the accused person went after her only to learn that she was seeing someone else. On the fateful night the son heard his parents quarrelling in their room, the quarrel which was followed by murder incident. PW3 - a doctor at Nzera health centre was summoned to come and conduct autopsy. Exhibit P2 a post mortem report stated cause of death to be severe haemorrhage. The autopsy was followed by recording of the accused person's cautioned statement which was done by PWS. In the r-: .... cautioned statement the accused person confessed killing his· wife. >The statement was tendered and admitted into evidence as exhibit P3. The accused person was later taken before PW6 a Justice of Peace to record his extra judicial statement. Again after being warned and informed of his rights he recorded his extra judicial statement confessing killing his wife in self defence. The extra judicial statement was tendered and admitted into evidence as exhibit P4 • The accused person was later transferred to Geita Police station and later charged before the court. ----·-·---- ---·-··-·-·-·-·- ·--- ... - 71Page. In his defence the accused person recounted what the life he and his deceased wife lived until 2012 when he learnt that his wife was having an affair with Bahati Lutemisha. He confirmed the suspicion from his mother in law that it wasn't but a reality. Despite learning of all these and even suspecting that his fifth born Henry was possibly Bahati Lutemisha's child still he decided to endure. Narrating on what transpired on the fateful night, he stated that he acted in self defence only that it culminated into the deceased 's death. After close of cases by the prosecution and the defence, the Court proceeded with summing up to assessors, as neither Mr. Mwasimba learned State Attorney nor Mr. Rutahindurwa learned Advocate preferred to make final submissions. All three assessors opined that the accused person was guilty of murder. It was Mr. Dauson's opinion that the evidence presented before the Court was in support of the charge and no doubt has been raised. All exhibits were admitted into evidence and they supported the prosecution case. The defence case was equally not different from that of the prosecution and the exhibits admitted into evidence. - - - - - - - · · - · · - - - - - ··-· ··------·· . SI Page Mr. Mabula as well concluded that the accused person was guilty as charged giving the following reasons: one, that the accused person went and reported killing his wife to the Police. Two, though nobody witnessed the killing but the fact that they were only two of them in the room, it was obvious he was the one who killed his wife. In addition, the accused person admitted punching the axe in the deceased hands, but with punched axe the possibility was it could fall anywhere. It therefore means the accused person picked it and cut the deceased. Three/ while agreeing that women could be annoying and make one angry but the accused person had other options of sorting out their problem. After getting hold of the axe from her, He could have raised alarm and neighbours could have responded to. the alarm and come to his rescue. He could have also shown them the ... axe intended to be used by the deceased to harm him. Mr. Mabula while acknowledging that the accused person has endured for a long period of time, but his endurance has unfortunately let him down towards the end. At this juncture he referred to a Swahili saying" kula ng'ombe mzima lakini ameshindwa kumaliza mkia'' He went on opining that there is no law which condone one killing the other and it was not at all 9IPage right for one human· being -to kill another human being no matter how angry one would be. Since there are laws in place the accused person ought to have followed them. He thus concluded by stating the accused person was guilty of killing his wife. Ms. Bernadetha was no different from her colleagues in opining that the accused person was guilty. It was her opinion that the accused person after learning of the affair and reported it to his mother in law only to. be despised, he would have lodged a complaint against his mother in law with the leaders in the area. Failure of him to do so, according to Ms. Bernadetha was the start of the accused person planning or building up to killing his wife. She further opined that the evidence presented to Court and exhibits were all supporting the charge preferred against the accused person. The accused has admitted contents in the exhibits P3 and P4 being h_is account of what transpired, meaning he murdered his wife and nobody else. After getting opinions from the assessors, it is now the Court's, turn to examine the evidence presented and make a finding if the charge of murder preferred against the accused person has been proved beyond 10 I Page reasonable doubt. Before I proceed, let me point out earlier on that out of four ingredients of murder three are not disputed. These are: -one, the fact that the deceased Ester Clement is dead. Though not disputed but there was ample evidence proving that to wit: DW1, and PW1, PW2, PW4 and PWS who visited the scene of crime as well as PW3-the doctor who conducted autopsy and prepared a post mortem report, gave evidence in that regard. The report was admitted as exhibit P2. Two, equally the fact that the deceased Ester Clement death was unnatural has been proved. Besides the testimonies of PW1, PW2, PW3, PW4, and DW1; exhibit P2 complimented their evidence. On the part of the autopsy conducted by PW3 almost four (4) hours after the death has occurred, reported cause of death being due to severe haemorrhage "and its summary report stated the following: " The body found lied on prone position and a pool of blood surrounded the body. The body had a huge cut wound on the right side of the head above the neck involving major blood vessels (the Juggler). The cut was about 15 ems long and 10 ems deep to the axis of the . 111Page neck. According to skin cut seem to have a repetition of 3 times of the same wound' Three, there is overwhelming proof that DWl was the one who caused the deceased's death. First and foremost, DW1 confessed to PWl, PW2 and PW4 when he surrendered himself to Nzera Police post. Secondly, this was fortified later with the cautioned statement recorded before PWS, the statement which was admitted into evidence as exhibit P3. Thirdly, he was later on, presented before a Justice of Peace where he recorded his extra judicial statement, in which he gave account of what transpired and resulted into the death of his wife. Contents of both statements were read out loud in Court. From all the above there was no dispute that he was the one who murdered his wife. Fourthly, during his defence, DWl narrated what happened and how he ended killing his wife. The only issue for determination is whether the accused person murdered his wife with malice aforethought. The prosecution was content after fielding six (6) witnesses that "malice' has been proved, and the accused person should therefore be found guilty. The defence refuted the finding by stating the murder was not intended, ---••- 12 I Page but the accused person was provoked and also acted in self defence. In determining if there was "malice' a good guideline can be traced from the case of Anthony Samila v R, Criminal Appeal No.32 of 2010, (CAT- Iringa) _(unreported) where the Court cited with approval the case of Enock Kipela v R, Criminal Appeal No. 150 of 1994 (unreported), stated this: "Usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors including the following: · (i)type and size of the weapon; (ii) the amount of force applied; (iii) the part or parts of the body directed at or inflicted (iv) the number of blows, although one blow may be sufficient for the purpose; (v) the kind of injuries inflicted; (vi) the attacker's utterances, if an½ made before, during or after killing, and 13 I Page (vii) the conduct of the attacker before and after the killing." Going by the above it is obvious there are several points which fit well with the evidence presented before the Court, if the evidence is looked intuitively without looking at the defence case. Those points are items (i) to (v). It was evidently clear that the accused person used an axe in cutting the deceased on the head above the neck. The wounds inflicted were as reported in exhibit P2 to be of about 15 ems long and 10 ems deep. We all know how vulnerable the neck area is. Therefore any attack using an instrument like an axe in the head above the neck area must be lethal. The deceased died instantly. I concluded it was instantly as by the time PWl, PW2, PW3, PW4 and PWS arrived which was few hours after the murder the deceased was already dead. In his defence, DW1 defended himself by showing that he did not intend to wound or murder the deceased had it not been for self defence and provocation. I have carefully considered the prosecution as well as the defence case and concluded that "malice' has not been proved beyond reasonable doubt 14 I Page the standard required in law. And this is so based· on· the defence of provocation and self defence raised by DW1. Guided by the definition provided under section 202 (1) and (6) of the Penal Code, which states: ( 1) " The term ''provocation" means and include~ except as hereinafter statecl any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in - a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon . the person by whom the act or insult is done or offered." [Emphasis mine] (6) For the purposes of this section the expression ''an ordinary person'' shall mean an ordinary person of 15 I Page the community to which the accused belongs" Considering the definition given in the above cited provision of the law, I consider DWl's defence plausible: First and foremost, from the evidence presented in Court it was obvious that DWl and the deceased were a husband and wife, having got married in 1995 after payment of two cows and Tzs. 100,000/=. The couple was blessed with eight (8) children. Up to the day the deceased was murdered she was still staying with the accused person as a husband and wife. The relationship was therefore so much alive and in existence such that it would not have been a surprise or questionable as to why the two were in the same room and specifically sharing a bed (conjugal relationship). The defence of provocation as well as self defence could therefore both make sense and possible. See: Shabani Rashid V R (1995) T.L.R 259. Secondly, DWl was not only an ordinary man from a certain society but representative of an ordinary man from a broad spectrum, who being faced with the predicament like the one he was in, could have certainly reacted as such. 16 I Page Mr. Mabula one of the assessors opinioned that women are sometimes annoying and can get a man angry would not be underrated. Taking him as a cross section of DWl's society and in addition to the action of the deceased that night, it is obvious that it was not a strange thing for DW1 to as well be annoyed and angered. The only concern remains would be how far he should have reacted, or how damaging his reaction would have been during the grave attack by the deceased. Thirdly, as stated above both self defence and provocation, at the instance of the attack, when put together, the outcome was the killing of the deceased. Once married any interference by way of an affair be it by a husband or a wife as it was in this case is without a spike of doubt a thorny issue. This could easily lead to provocation. More often than not the outcome is disastrous. From the evidence on record the deceased was alleged of having an affair with Bahati Lutemisha. The problem was reported to the mother in law. Instead of helping the situation she complicated it more. The mother in law by acknowledging to DW1 that he was not worth to marry her daughter (deceased) and that there was someone else who had already gone there to introduce himself as 17 I Page prospective husband and paid Tzs. 30,000/= must have irked DWl. However, as he stated he opted to endure. This was followed with two other incidents, one, the deceased planned and left to go to attend Mzee Katunda's funeral. Instead of going straight to the funeral she passed by Bahati Lutemisha's place and spent three (3) days. Two, on the fateful day the deceased after asking for money for the provisions, the money which she received from DW1, left to go and get the provision. She first went by her friend Suzy's place and later proceeded to Bahati Lutemisha's .place. DW1 after closing his kiosk at around 9.00pm went home and had his dinner prepared by his children. The deceased on her coming back at around 10.00pm, she had no provisions and upon being asked as to where she had been, she retorted at DW1 by telling him "acha kunichunga kama mtoto kama utaendelea kunichunguza muda wo wote nitakuua" DW1 opted not to pick further fight by retiring to bed. He was later joined by the deceased who upon being requested for conjugal rights she refused. At around 2.00am, the deceased woke up and went out. DWl went after 18 I Page her onlyto find her squatting by the wall relieving herself. He spoke to her but was snapped at. He decided to go back in after relieving himself. Undeterred the deceased when she came back, she was holding an axe behind her back. According to DWl since he had been warned that he could be killed he was not relaxed or fast asleep but awake gazing at the door. When the deceased was about four and half ( 4 112 ) paces from the bed and·where DWl was she raised the axe ready to land it on DWl. DWl reacted by punching the axe and later used it to wound the deceased, the wound which culminated into her death. Examining the circumstances of the case as a whole, I find DWl's reaction was warranted even though the force used was enormous and ended causing the deceased's death. See: Daudi Sabaya v R (1995) T.L.R. 148. I consider DWl's reaction justifiable for the following reasons: one, his punching of the axe could not be avoided as danger was looming on him. Probably, had it been during the day DW1 would have reacted differently. If he could, I believe he could have escaped and run away, as he has been doing all these time to tolerate. But looking it further, who knows who was waiting for him outside the house? This could have been a plan, especially - - . __ - --·--- - - ----- ., . 19 I Page considering that the deceased had already warned DWl that she could kill him anytime. I have completely failed to consider DWl defence as mere defence to absolve himself from liability. After all the provocations he had endured an attempt on his life must have been a last straw on him. This is said after I, have thoroughly considered opinion by the assessors and especially by Ms. Bernadetha and Mr. Mabula, that all what have happened to DWl would have been addressed by reporting to the leaders in the area and that since no one has a right to kill the fellow human being, and concluded that DWl action was thus with "malice'~ It is indeed correct and true that DWl ought to have reported the matter to the organs or leadership in place. But not reporting to the authorities nevertheless did not necessarily prove that he intended to kill his wife as opined by one of the assessors. Two, different people have different ways of reacting to situation. Also it is not far from truth that men and women have been wired differently, what a woman might consider serious and needs intervention might be considered otherwise by a man. We should also not forget that what was - - - - · · · ··-····· - 20 I Page happening to DW1, in most cases if reported to the authorities the society around would consider the man weak. Possibly avoiding to be labeled weak DW1 opted to endure. Hoping with time the wife would change. It could be also that he loved his wife so much and therefore not ready to lose her or that he wanted a steady home for his children and therefore compelled to suffer in silence. I completely agree with Mr. Mabula that no one has a right to kill a fellow human being, but in the present situation I could not find any evidence in support that DW1 did so in exercising a right to kill his wife. From the evidence, it was amply clear that DW1 killed his wife in course of defending himself. Exhibits P3 and P4 speak volume of the circumstances leading to .- the deceased's murder. In actual fact she called for her own death, because if she was indeed no longer in love with DW1, she also had an option of seeking for divorce. Three/ although the account relied on is that of DW1 only, yet, I could not find any reason to doubt his statements which were recorded within few hours of the killing. The time involved was in my view too short for one to compose his thoughts and come up with narrative so straight on what 21 I Page r ..-. •- - _.i....; ,_ "--<•.,. ~ happened on the fateful night. This was equally exhibited in his ·answers when being cross-examined and later when answering questions put across by the assessors. Had the prosecution led evidence of him being crook, wicked, outrageous and senseless, I would have probably considered the two exhibits in a different light. Furthermore, exhibit P4, has in fact been given considerable weight. This is because the statements recorded by Police are usually marred with irregularities such as confession obtained involuntary, force and coercions being applied and unfulfilled promises to mention only a few, but rarely will that feature with the extra judicial statements recorded by Justices of Peace. I have therefore to a greater extent considered the confession made by DWl before the Justice of Peace as what actually transpired during the fateful night. I have as well considered the circumstance of how the killing happened. There was in essence no time for DWl to consider consequences of what he did. From the account it must have been within a very short span of the time the killing occurred. The provocation endured all long plus the fact that at that particular moment his life was threatened chances are he 22 I Page • would most likely have reacted so. This could not be said more well but go back to the Swahili saying applied by Mr. Mabula one of the assessors that "amekula ng'ombe mzima ameshinda mkia" -~. (\ ow1-;, 1'1;1:aa ..... indeed \ ...::~':!_,;"' "~. /~ .: . ,I, .' ' endured but attempt on his life must have been l'(he l~f~ ~$./.!a~ 01:/the ~\ . . , \I, \ J t .•. '1.•t•~w"h i\ 'l 4 • ,.,-1, ;: -'I ', I j! .,,,- ..,.......,, .t ,. .. . ' .....- . camel's back" 1 .,,_ ..~' • r \ -· f"-': ~ 'l' .rr ✓ ' <~ \\(: ;}•:(, •-~--I •. - . ~ ,,,,,,,,, ... ''\ I could not find even slight evidence that DWl plarirJed. and preme.ditated ··~ •t ,•~J. ! '-' " .. • , • / ' ..... ..,_ " ... •' ,, . ..., ~, ·'· ~°' ~.. harming his wife he loved so much and with whom they ·h·ad eight (8) children. See: Aloyce Kitosi v R, Criminal Appeal No. 284 of 2009, CAT-Iringa (unreported). In light of the above, I consider and conclude that the prosecution has failed to prove murder charge preferred against the accused person and hence find him not guilty as charged and consequently acquit him ori the charge. Having said that and from the evidence on record, there is ample evidence that the accused person was provoked and in acting in self defence he ended killing his wife. Nevertheless, based on the evidence on record it is undisputed that DWl killed his wife albeit without malice. With that conclusion, I thus find him not guilty of murder as he was stand charged under section 196, but find him guilty of a lesser offence of 23 I Page : ..,,_ ..r-·· ~ . ',/ ~- 1• "i . , .../ . : ~..... X . ,:·- manslaughter under section 195 of the Penal Code, Cap. 16 R.E. 2002 ,h:~d accordingly convict him. ,, P.S.FIKIRINI JUDGE 23 rd OCTOBER, 2017 24 I Page