19770823 TZHC Iringa

- t -1- !H OOtT OF TANZANT A AT IRINGA rM

ORIGINAL JURISDICTION (DoDoI'IA REGISThY) - CRIIUNAL SESSIONS CASE NO. 104 OF 1976 THE pr)pj Versus GABRIEL s/o I:UIWALE CHARGD flTD c/s 196 of the Penal Code. 00000000000000000 JUD GTI~ iTIAKIBETE, J., - The accused GABRIEL NULWALE stands charged with murder it being alleged that on or about 11/5/1975 at Ihowanza Village in the District of Mufindi Iringa Region he murdered one Leonard Vakuka. It was the prosecution case, that the accused and the deceased including PW. 5 and 6 visited PW.4 1 s house on' 11/5/1975 for pombe. The accused was the first to arrive. He arrived round about 11.00 a.m. He was followed by the deceased, Thereafter P4.5 and 6 also ar±ived. Accused was carrying a bill hook.'which he deposited with his hoet when he sat to drink pombe. It was customary for everyone with a weapon at a pombe place to deposit it with the owner of the premises and to collect it on his departure. The bill hook produced as exhibit in court was adequately identified by \T,4 as the one accused was carrying on arrival at his house on the material date. The same bill hook was identified by accused wife who was called as a defence witness as being similar to the bill hook she saw in their home for 41 , orne three days before accused left saying ;hat he was going to look .f or some casual work some where. • . By around 4.00 p.m. the pombe was all ov,er and the four who •.,_ •.

I' apparently cane fr om the same village left. Although they left together P.1.5 and 6 walked ahead leaving accused and deceased behind. • At some point - at the home of P14.7, PW.5 and 6 had stopped to exchange eetings and for a brief talk. The two were preparing to leave $ • when accused and deceased arrired. They too stoped to great PW,7. Deceased entered the house whi:Le accused waited outside - carrying the bill' hook. PW5 and 6 depaited - as hefoe leaving accused and deceased behind. The sun had ilisappeared although it was not yet dark. The four had not yet reached their village. After a while accused and deceased bade farewell to PW.7and left, Next morning the deceased body was found iyi the bush by the foot path with a bill hoo1ç..be it. -2- It was the bill hook accused was carrying to and from Ft1.4's home the previous day. Accused was no where to be seen. He disappeared for son e two months before his arrest in connection with the killing.. The cause of death was given as shock following external haemorrhage and damage to the spinal cord. Other observations - the result of post-mortem examination were as follows:- "Cut wound on neck almost amputating the whole neck leaving only a 'bit of flesh and skin on right side. Cut wound on right shoulder 5" x 3" x 1". Facture of clavicle. Right fracture of cervical vetebrae (spinal bones) 4" x 5". Damage to spinal cord." The

prosecution maintain that accused was the last person to be in company of thedeceased before the deceased met his death. Accused was carrying a bill hook similar to the one found by the side of the deceased body. Accused was undoubtedly the one who inflicted the fatal blows with the weapon he was carrying. He was therefore the deceased killer. Accused denied having visitedW;4'Shome on the day in question.. He denied knowing either the deceased or PW.4 or 7. He oacasionally used to see PW,5 and 6 but he would not say 9 they were from the same village with him. He denied he carried a bill hook on 11/5/1975 and required his wife to boar him out that he had never possessed such a weapon and that on the material date he bade her farewell saying he was going to look for employment somewhere. She folded a blanket and gave it to him. It was the only luggage for his safari. He was away for some 59 days. When he returned to the village he was arrested on an allegation that he had killed one Leonard Vakuka, - a person he had never known before. He was surprised to hear from PW.3 that she was the deceased wife and that accused and deceased were neighbours as well as friends. He claimed to have never known her before and denied$ - kh6l were neighbours. He denied having visited PWo7's home on 10/5/975 and insisted that hessrs Upuli and Matao appeared as defencj witnesses to show that he

arrived at their home on 10/5/1975 and remained there working for almost two months. He further wanted his wife to bear him out on the issue of a bill hook that he had nevc been in possession of such weapon - and on the question of a blanket. Upule and Natao came but accused cha-. nged his mind and dropped them as witnesses. When his wife took the witness box she denied they had4 ever possessed a blanket but testified as to her having seen a bill hook in the home for some three days before accused left. She late'r'saw a similar 'bill hook beside the deceased's body on 11/5/197,5. On the evidence I believe the story of PiI.4 9 5 and 6 that accused visited P14,4's home for pothbe on 10/5/1975. He carried a bill hook as alleged. I bo1!ve also that accused was left behind with deceased when P14..5 and 6' left PW..7's home. 1 - 3- I am quite satisfied that PW.5 and 6 are from the same village with accused and that deceased was accused neighbour. That accused and deceased were neighbours is clear from the evidence of FJ,3 and accused's wife. I am fully satisfied that like PW,5 and 6, PW4 and 7 knew accused very well. As already indicated I am quite satisfied with PVI.4's identification of the bill hook found beside the deceased's body.. It was undoubtedly the same bill hook accused carried the previous day on arrival at PW,4's home and on his departure with the deceased. The

identification is also strengthned by evidence of accused's wife who claimed to have seen a similar bill hook at their home. I am satisfied accused left F1.7's home in company of the deceased. He was the last person, seen with the deceased, The body of the deceased was found along the same foot path the two took on their way home fromPv1.7's home. A bill hook accused was carrying was also found beside the deceased's body. Accused gave no explanation as to where and under what circumstances he parted with •bhe deoed after leaving PW.7's home. Accused disappea:ced rrr two months froth ±he material nighb. The circumstances are such that it is irresistible that accused was the one who inflicted the fatal wounds. He was the one who killed the deceased - Leonard Vakuka. No motive is apparent for the vicious attack. But it is clear that accused had been drinking from 11.00 a.m. to 4,00 p.m. And the -pros 3cution has led no reliable evidence to show that accused was • sober when he unleashed the atback. I am inclined to feel that tie attack , was a result of intoxication. Accused dumped the weapon he used to attack deceased - beside the deceased's body. Such is not the behaviour of a sober person-. There is also the evidence that he had been walking slowly with the deceased when others hurried home, another indication of drunkeness. In view of the circumstances I would give the accused the benefit of doubt and find him not guilty, of murder but guilty of manslaughter and convict him accordingly. I (I. J. T.'JPJCIBPTE)

JUDGE 23/8/1977 , 0US C0NVICTI0NS Clan rec'.rd. Circumstances call for heavy sentence. Very bad type f manaughter. Injury - very serious. Deceased slaughtered likchen. /Deterrent sentence required. Drunkenness must be discouraged. Accsed i/,t to be proud of it. (i. J. !Ii:IBT)

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JUDGE 0' U PLAINiETIGATI0N, No criminal offence for the last 30 years. Has never been to a court of law. Drunkenness the cause of the whole drama. P,o years in remand. Has a wife and children. Pray for leniency. ALLOCUTUS2 I have parents who depend on me. I have two. children, J. NXIThTE)

JUDGE 23/8/1977 SjDNTNC, It was a very brutal act by accused. And during the hearing accused showed no sign of repentance. He enjoyed telling lies and enjoyed asking for adjournments so the police could go to search for people he required as defence witnesses - knowing full well that the people had never been his emij1o,rers, It was in addition a border line case - requiring a very severe sentence. Accused is sentenced to 14 years imprisonment. - 'Q0 (ii. J.. I'TvAKIBTE)

JUDGE 23/8/J977 Right of appeal elained. 0 00 J. NPAKIB.:2TE)

JUDGE 23/8/1977 $