Republic vs Songambele Sanga @Mathias Mzunguwandege (Criminal Sessions Case No. 60 of 1976) [1978] TZHC 43 (11 April 1978)

IN THE HIGH COURT OF TANZANIA 141C -1—rv AT TRINGA.. ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE OF 1976 THE REPUBLIC versus SONGAMBELE SANGA ® MATHIAS MZTJNGUWANDEGE. CHARGE: MURDER C/S 196 OF THE PENAL CODEO J U D G H E N T CHIPETA, J. The accused person in 'this case, Songamb1e s/o Sanga a1iaMathias Mzunguwandege, stands charged with the offence of murder c/s 196 of the Penal Code. The Republic has alleged that on or about 29th day of March,1973, in Iringa Region, the accused murdered one Kalembeni s/o Ndundulu. The accused pleaded "not guilty" to the charge. The prosecution 4 s evidence falls within a narrow campass and itis to the following effect: prior to his death, the deceased, Kalembeni s/o Ndundulu, was residing at Lyamkeni village, Njombe District, Iringa Region, On 29th March,1973, one Benedict Bisali (P.W.1) left Kighumba village to go and see his parents who were residing at Lyamkeni village. On his way to Lyarnkeni village Benedict heard an alarm in the direction of the deceased's house. H then rushed in that direction. On arrival at the scene, whic.h was in a shamba of the deceased,. Benedict saw the accused assaulting the deceased with a walking stick and bambob sticks. When Benedict asked the accused what the accused was doing there, the accused did not answer: instead he picked up the sticks and took to his heels. Benedict pursued the accused but could not apprehend him. Meanwhile many other people in the area heard the alarm raised by the deceased, and they too rushed to the scene. Among these were William Abraham (P.W.2) and Hawalakang'ombe Mdeluka (P,W.3). On arrival at the scene the three witnesses and others found the deceased lying on the ground with severe head and bodily injuries. 2/ .....

--2 a When they asked the deceased as to who had assaulted him, he told them that it was the accused who had assaulted him.. The witnesses then asked the deceased why the accused had assaulted him. The witnesses, however, re not at one as to the reply which the deceased gave to that question. According to Benedict and William,, the deceased said that accused had assaulted him because the deceased was said to be practising witchcraft and that he had bewitched a relative of the accused one Delephina who had become insane. According to Kawalakang'embe, however, the deceased said that they had quarrelled over a trap for4nimals which the deceased had borrowed from the accused, and meat which the accused or a relative of the accused had taken from the deceased.. Kawalakang'ombe denied having heard the deceased mention any witchcraft. The accused could not be seen an -i the deceased died shortly thereafter. On information r:ceived some two ynars later, Detective Sergeant -Major Yusuf (P.W.6) located the accused at Maweni Prison, Tanga, where the accusedhad been serving a prison sentence for rape. On being interrogated, the accused not only denied his own names but also denied having killed the deceased. The doctor (P.1i.5) who did the autopsy on the body of the deceased observed that the deceased was bleeding from the left ear and the left parietal region was deformed.. Internally, the doctor found that the left temporal and parietal bones were fractured, and the left side of the brain substance was lacerated. In his opinion, two or three blows could have caused those injuries.. The doctor then opined that death of the deceased was due to shock, following head injury. In his sworn statement, the accused said that on the material day he went to the deceased's house to demand his trap for animals which the receased had borrowed a long time back. The deceased, how- ever, told hic hL a ctot lost. When the accused protested, the deceased abused him and the accused in turn abused the deceased. The two then stood up an held each other. The accused pushed the deceased who then fell down. The deceased then picked up a bamboo stick and struck the accused on the head with it. As a result of that assault the accused sustained a wound on the head. Thereupon the accused struck the deceased once on the head with a walkinci stick. The accused went on to say that just then Benedict arrived at the scene. When Benedict ask. d him what he was doing, the accused did not answer: instead he picked up. both sticks and ran 3/...,.........

away. Later he threw both sticks into a river, and that same night he .escaped to Tanga.. .. In his final submission, the learned state Attorney submitted that the prosecution had proved its case beyond reasonable.doubt. • .In...his s.ibmission,, te accused.. unlawfully killed the deceased and tat.he did .so.with malice-aforethought. He invited the court to hold that malice aforethought had been established from the following facts: that the accused followed the deceased inte the deç2ased 's shamba;. that he was armed with sticks; that he unreasonably accused the.de.eased of practising witchcraft; that he repeatedly and • ...-.• mercilessly attacked the deeaed, that on being asked by. P.W,l as to' what he.s doing, the accused ran away and himself; that he took away all the weapons and disposed of them by throwing them into a river, and that when interrogated by a police officer •(P.w.6) theaccused not only denied his names but also denied having killed the deceased. The learned defence counsel, on the other hand,, submitted that the accused killed .th2 deceased as a result.of provocation, and so is not guilty of murder. In his submission, malice aforethought had not been established. In the first place, he submitted, .the wepons used were light sticks. On that basis, and re-lying on the cases of Yoweriu1iraVRo (23 E.A.C.A) 501; Mugo. and \nor V.'R. (1973). E.i.543; and R.V.Lucas Tirnba.(1975)LRT. n..$,.the learned defence counsel submitted that malice aforethought • had not been.establjshed, . . On te defence of. provocation, the learned defence counsel submitted that the defence of the accused that he was abused and struck by ti deceased had not been rebutted by the prosecution; and G n the basis of the cases of Musungu V.R. (22 .E.A.C.A.454), and R.V.WaLisina (12 .E.A.C.A.), he submitted that it' was not for the accused to strictly prove the ats that contituted the alleged provocation, . .• . . On the. 'uestion.of"motive,:learncd counsel submitted that this had not been sufficiently , pr i oved because it had not been clearly provd that the' accused wsin fact related'to Delephi.fla, the alleged victi'm' of the deceased's alleged witchcraft.: fter my summing- up to the lady and gentleman assessors, they were unanimously of the öinion that the accused i4as guilty of murder and went on to support their individual opinic'ns by very per- •Ve Iis. 1 will cornd back t6 thjs point ltër in this

judgment.. .,,. .:... '.:, . On the evidence, there can be no doubt that a person by the name of Kalembeni s/o Ndundulu is dead and that he died a violent death. Equally, it is not in dispute that the person who caused the death of the decsed is none other than the accused. iIhat is in dispute is whether the accused, as claimed by the prosecution, acted with malice aforethought, or, as claimed by the defence, or, under provocation. . . . .. . . . . In giving her opinion, the lady assessor rejected the accused's story tht the deceased abused him as a pure fabrication. She reasoned that if the'acused 'killed t.he"decased urider pbvocation, h he (the accused) would have gone to report to the authorities, but • instead the accused escaped to Tanga. The gentleman assessor likewise rejected the accused's defen of provocation. He reasoned that if the accused had acted under provocation, he would not have run away as so:n as the witness (P.W.l) had asked him, what he was doing, for that, was the oppotunit' for him to explain what had happeneed betweeri him and the deceased, ;s I have said above, these are strong reasoiis., I will add that there are cases in which the failure of an accused person to report a c'me of-wftch he has knowledge to the authorities, his attempt to esaoe, 'no his subsecuent denial uf his participation in the crime may inferentially tend to prove his riteiti or the presence of malice aforethought. However, even where these matters have been proved, malice aforethought may be negatived by other co—existing circumsthnces. Amdtig these are: thenature oll the weapon used, the absence of mutive, and other evidence which suggests • .;.;"': , that the accused might have acted without Talice aforethought. In the instant case, the inference that the accused acted with nialice afdre thought lo,o)rs attráctivë. 'In my view, however, that inference must not be too hastily drawn in a' case such as this0 To'start with, the nature of the weapons used does not make the inference of malie aforethought irreistibIe. The weapons used were a" walking "stick and bámbbo stick.' The walking tick was about an inch or 'less indiCmeter arid' about to feet long. Those are' not, :genera.11y'spehking, 'lethal weapon. Therd:is ample. authority proposition 'that when death is caused by the use of a non—lethal weapon an inference of malice is much less readily drawn than when a lethal weapon is used. This priciple was enunciated in the case of EmuLi v R. (supra). Thawas a case in which the accused had caused death of the 5/.....'.'..

5 deceased by beating the deceased with a stick which had a d.imter varying betw'en an inch to one and a halt inches. The Court of appeal for Eastern Africa xefusod tQ infer, malice aforethought in those ciruthances,. . . That principle was reiterated by that Court in the case of. Mugao'v.R. (supra) and by thi court in the case ofR.v.Lus Timba (supra) to which learned counsel ........ ............... Then there is the question of moti'vq. With respect, , i agree with the learned counsel for the defence that the prosecution has not clearly proved the relationship betwee 'the accused:'and the woman called Delephina. Motive, therefore, has not been sufficiently proved. It is true that in a murder dase th' prsecuti'on does not have to prove,motive. However, the presence of motive may inferentially go to show malic aforetho.ugh€-.. just as t .bsence of motive may tend to negative mal.ce aforethought. Since the relationship between the accused and Delephina has ndf been satisfactorily proved, and since the prosecution's evidence is at variance as to w}at'.led to the.assaUlt 'on.the deceased by the accused, it cannot be said that the prosecution proved has1\cotive. While on this point, it is pertinent to obgerve th.at.th story of' the accused as to how the incident started fin, H support .inn'&'lesser a witness th&t. P.W.3 whom the ,prQcuti.on ,did not treat as hostile. Now, as' there was.. ,.no one whb wj.tnessed the beginning of the incident,. :we can only gd by:the'dyiflg declarat- ion, which is itelf quite unclear, and what the accused told the Court. Frotii the. foregoing, and with. espbct to ,,the lady and gentlemen assessors, I am not persuaded that the prosecuion his proved its case beyond reasonable doubt. It would, therefore, be unsafe t convict th accused of the offence'ofmurder. 'On the evidence and the priziples of law.which .1 haye attempted ;to gt out above, I am of the view and so hold that the accused unlawfully killed the deceased, but that he did so wit}out malice aforethought. I accordingly find the accused not guilty of murder, but guilty of the lesser offence of.manslaughter c/s 195 cf "t'he 'Penal Code, and duly convict m of that offence forthwith. t.BL. / Judge. 6/.........

11/4/78. .• Coram. As before. Accused present under custody. r .:.. •. ............................. ........ ..... ........ Records My Lord, accused is at the mOment serving a sentence for rape. Accused: I admit the record.. Mitigation My L 4 ord, accused is a young person aged 22 years. He is. married and hs one child. His t5nvti6U for rape is not kindred to offences of homiL. -. My. Lord

I pray that the Court should take into consideration the provocation. .pay for leniency. . :. . . ... V Accused: . I have nothing to add to what th' Iawr has said. Sentence: . V :. In.fvour of leniency I have taken into consideration the fact that accused, is relatively young, and for purpoes of this sentence, I take him to bo a first offender, not merely because Thpe is strictly not a kindred offence to homicic but also the conviction for rape must have ben subsequent to the acts. which constituted the presnt offence. That said, I must also say that the violence which th, accused apple.d to the person of the deceased indicates that acc:ud is a I...: fran.prone to violent tendencies. It o1.2l-d.therefore be less than n." jU:ttO be ubduly lerient tO him. I sentence the accused to .twelve(l2) yar.s imprisonment.. This sentence shall run consecutively with any other that . accused might currently be servings B.D.Chipeta, V Judge. . '// . Right of Appeal explained. AD.Chipeta, V Judge V V 11/4/78 V

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