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Judgment

15 - 4 e ,7cP I~ IN THE IL HIGH COURT OF TAHZANIA AT SIi-TGIDA ORIGINAL JURISDICTION (DoDOrL'. NEC-I STRY) CRIMIHAL sssios CASE \TQ 183 OF 1 972 THE REPUBLIC 1 . PFCiC FTUIJ 2. SIE D/O NTULA WAS Che: Murder c/s 196 of the Penal\ -ee.

- S J U B @ U N E N T The two accused who are brbther and sister resectively stand charged rith the murder of the second accused's husband Labia Iganji on the 5th of March 1972. They both denied the charLe. 'Jhon the deceased disappeard from hone and could not be fdund despite a sustained search by his firsG wife as well as his son and other relatives, the matter was reported to the cell-leader. Alerted, the villagers gathered to mount a communal search. ith the assistance of the 2nd accused Sic, they found the deceaseds body in a well. It was buried in the mud and held down the well by pieces of wool which prevented it :.ron rising to the surface of the wbli on decomposition. There was no mistaking the distinct and undistorted features of the deceased that the body was infaôt his. The cloth in which the head and trunk were completely wrapped confirmed the identity of the dead man. All this is rndisuted evidence. The court is satisfied and finds it to have been established by this evidence that the deceased was hidden in the well by a culprit in whose interest it was to conceal the body and the offence. The doctor who examined the body of the decase d found some broken ribs, a ruptured liver and a head wound .1neath- which was a brain hacaorrharge due to a ruptured artery. Death was in his opinion due to -this latter injury which in the opinion of the doctor could have been inflicted by heavy blows of a stick. From this expert and undisputed evidence of the doctor, I find it tbm have been proved that the deceased met his death through foul ple.y. The doctor categorically excluded any possibility of an accident. In her defence Sic named her sister Mtija as the person with whom Mufeuka collaborated to kill the deceased. Ntija on her part implicated her brother Mufeuka and her sister Sic. b'told thecourt that on the fateful night, the deceased came to visit his wife Sic in the small hours of the morning. Sic was at the time living away from her matrimonial home, having been sent away by her husband the deceased on suspicion of bewitching her co-wife. ,.

16 - It is iLt±jats version that when the deccasod 1:nocked at the door and asl:eJ her to open for him, the accused Sic forbade her to let him in as she tartod to OPen the door. Sic then hurled vulgar abuse at her husband ho in turn retaliated likewise. heated exchane then ensued during which the accused hufetdza came out, was handed a stick by Sie and counselled to attack the deceased.. hu±eud:a responded rorrly and psrhas mechanically to his behest. He chased the deceased for some sixt races or so, caught up with him and dealt him blows wit.1i the stick aiuen to him by Sic. The blows must have been heavy because ittija heard them as the landed on the deceased body sixty paces away. fitija cried the alTrm to attract neighbours. Iluieuka silenced her by threatening to kill her, He had by this time left the deceased groaning to return to the compound. The accused tie urged him to go and finish the deceased off. 2gain he complaisantly obliged and came back to enlist help in disposing of the body. itija refused to assist to conceal the heinous crime, upon whjch the accused together carried the hoay oii and clumped it in tie well. Ti.aey iniormed ktlja so when the y returned. The evidence of the other eye—witness iButi Sanda is su1stant- ially the same in all material particulars. there are oum.iasions of detail which could he explained on grounds other than the unreli- ability of the wjtness. In my summing up, I warned the assessors tJ.iat because the eye—witnesses Ktija and. IThuti did nothing to prevent the crime beingcoinr.itt ;d, their evidence should be aprroach- ed cautiously. The ientlerien assessors chose to believe them and I cannot find fault with their stand. In fact ktija did cry the alarm although when she was later aal:ed by her husband and a neighbour what the alarm was about, File retrained from disclosing euse of' .Laer oro nor in lt Her e1r1 once clJ as u :t of "Tl uti rust however, be true in as much as they corroborated each other in every material particular. Besides, there is evidence to corroborate them. The doctor said the deceased must have been dealt heavy blows with a stick and that is what can he gathered from the noise Iitij a heard men she lows lanred on ais uni orsunate brosmer in law. I am left in no doubt that the eye—witnesses have given a true account of what took place that fateful morning. Iltija was on her part corroborated in her evidence that the body was dumped in the well, when, followin;, a disclosure on similar lines by the accused tie, the search party actually pulled the deceased's body out of he well to which tie led them. Tue court therefore acoepta ' S true Htija's evidence hat she refused to assist the culprits in the disposal of ins body. By so retusi±g she cleansed her self beyond comrlicity. Her evidence can thus, after due care and scrutiny, be accepted as it is, without reserve, the bald denials by the accused IT uld thus look unreasonable in the circumstances. The accused who were both at ittija's had orpoatunity to kill ft deceased who also went on a visit there, ins accused SirD had a grudge against her husband who had sent Ho: away from the uairimo- nial home only some four or five days previously. TThe n the deceased's brother Ihpotu Iganji told the court how the accused Sic admitted to the crowd that her kmsband was in fact aead, the learnoc. defence counsel objocced so she admission 01 suer. evidence. In the learned counsels opinion, the sin.tement was a confession and since it was extracted only after interrogation, it w.as n-tad iiss blo I us u 505 Dec fully 1f'fec wli I chic learnca counsel. In the first place I do not share the view that the accused tie was iaakin - : a confesa by sorely ach:aowled ing that her husband was dead. and even when she led the croud to the well from which her husband 'a lodw was ±'otuad, she was only edrittin-, that she knew that her husb::d. was dead and that he usa buried an the.t well. She was not telling the crowd, nor could the crowd have been justified to tai:e her as saying that she hilled her husband and hid his body in the well. I would ho::ever concede that what she revealed was very dasaing indeed. Be that as it may, he cannot be taken to have confessed., . . . . . 07
17 - Sic's revelations were therefore admissible because they led to the discovery of the body. Such discovery bore witness to her statement which must have been and was in fact very true indeed. It was, in my humble opinion, rihtly admitted. The witness Ptija told the croud that her sister Sic counselled and procured her brother Hufeuka to commit the offence. Sic was there but she did not deny the accusation. Speaking of her own blood relations as she was, iftija must have been telling and indeed was teflina the G-ospel truth. Htija must also have been telling the truth when she said that the accused IJufeuka returned to his groaning brother in law to finish him off after he had severely beaten him and returned to the compound 60 paces away. This he did doliberaely and at his sister 1 s behest, if he was provoked at all, and there is no evidence to sug:e.st that he was, be could not have retu:ened to finish off the deceased. His temper should have cooled when he returned to the compound. If he was impassioned at all, and there was no cause for him to feel so, then the re -burn trir to the compound would have furnished him with ooportuaaity to cool his passion. His return to finish off -bhe deceased betrays deliberation and cold—blood. In accepting as I do Pitijats evidence on this point, I have but bo accep± with gratitude the assessors' unanimous view that -bhc accused hIufeuka killed in cold—blood. Is for his sister Sio, it cannot be denied that leally she was jparticeps criminis although she did not physically attack her husband. Section 22 (d) of the Penal Code which is a codification of the Principle qui facit ncr alium facit er so joins her to the offence in that she counselled kufeuka to kill her husband. It could he argued that she was entitled to take exception to a nocturnal visit by her husband who land sent her away after accusing her of bewitchin'thc other wife. She may also have been entitled to react to the vulear abuse which the aeceasod hurled at her in relaliacion. But he co.:mou claim to have been so angry as to insist upon her brother to finish him off. She nus -b have wished for her husband's death. That was why she procured a stick, gave it to her brother and urred him to go and finish him off by pulling his male organ. 11cr counsel to hufeuka waS urmietakeable and he follorod it to tho letter. The only point of departure Was the finishing off uh.ich has not been proved to have car:eied out in sGrlct accoroance w1 - Gh Sic's insGructions. at eny rase -t cannot help Sie to say that I ufeuke c1 ec1 not f i h ncr usb n orf by pulling his male organs * ihe f ac -b is that kufouka 1:illed him Oil her behalf does not a ucr f u' a ictnoc' used 1Tes no u method counselled. Like all •bho gentlemen assessor, I an satisfied and I so find, that both accused are ocually guilty of the offence charged, and with that offence I convict them, head and (ieliverod in open court at Singida on this 7th day of April 1973, PLecord The acused a:e both 1st offenders. 0 - 1 2 4tus hiufouka: I did not 1:ill. I am 18 years of age. I was born I do not 1121101 , when. Sic: I do not know how old I am. rer: from -theiraupearance, the accused could be 10 years of age or bclou. I would therefore order that they be medically examined before I could rass sentence on -them. Caso adjourned for sentence at Dodoma on 13/4/73. Accuseds remanded in custody. E. H. 1.. 1211111111. ACT . (JIJDCTIJ)

— 18 —. 9/4/73 Court as before, sitting at IDodoma. The accused in erson. ri) Ti .T[TfiT mnTl7AmTT icr ITTrn .\riTcr1 L , ____ I have this morning examined i:ufeuka iTtule whose age is in my OpiniOn 27. There are insufficont date to determine the age of a person. Pe instead cLuestion him to et his background history fa.tly history, rsrents history and reletion to other wa:ily members. .Je 1, 0011on his den ttn and the carpel bones. Pe can he accurate to the extent of ti ,, To years by ex—raying the carpel bones. In my oljinion, following this process, hufenka is about 27 .rears. s for sic, hoi.n I b'vo exreinod in like mai'rnor, she is about 38 years of age. I produce their reports — P5 and P6. The number of teeth is counted, specially wisdom teeth, which grow out after 18 years of age. It is not possible for other teeth to grow bef ore wisdom teeth. The carpel bones develope from Nuclei through cartilage to occficthJO1. fitio.nis complete after 25 years of age • Both the accused had oóifid carpel. They are thus over 25. Taking into account all my examination, the accused the 2nd accused hs.s 5 children. I am satisfied from the evidence of the doctor that both the accused, though looking very yduthful are over eithteen years of ages I agree wi -bh the doctor that they are each above the age of 25 and could as eli be 27 and 30 rosuectvoly as the doctor ha scientifically explained. ccordingly the mandatory sentence to the offence with which they have been convicted must be imposed. The accused are each sentenced to suffer death by hanging. Their sentences may, houever, be reconsidered on appeal or by the committee in the prerogative of mercy. hay G-od help thee' in this. M. H. ... ..G. TW)*.e. * . . . . . . . ./i 9 /IcHs..

Judgment

- S J U B @ U N E N T The two accused who are brbther and sister resectively stand charged rith the murder of the second accused's husband Labia Iganji on the 5th of March 1972. They both denied the charLe. 'Jhon the deceased disappeard from hone and could not be fdund despite a sustained search by his firsG wife as well as his son and other relatives, the matter was reported to the cell-leader. Alerted, the villagers gathered to mount a communal search. ith the assistance of the 2nd accused Sic, they found the deceaseds body in a well. It was buried in the mud and held down the well by pieces of wool which prevented it :.ron rising to the surface of the wbli on decomposition. There was no mistaking the distinct and undistorted features of the deceased that the body was infaôt his. The cloth in which the head and trunk were completely wrapped confirmed the identity of the dead man. All this is rndisuted evidence. The court is satisfied and finds it to have been established by this evidence that the deceased was hidden in the well by a culprit in whose interest it was to conceal the body and the offence. The doctor who examined the body of the decase d found some broken ribs, a ruptured liver and a head wound .1neath- which was a brain hacaorrharge due to a ruptured artery. Death was in his opinion due to -this latter injury which in the opinion of the doctor could have been inflicted by heavy blows of a stick. From this expert and undisputed evidence of the doctor, I find it tbm have been proved that the deceased met his death through foul ple.y. The doctor categorically excluded any possibility of an accident. In her defence Sic named her sister Mtija as the person with whom Mufeuka collaborated to kill the deceased. Ntija on her part implicated her brother Mufeuka and her sister Sic. b'told thecourt that on the fateful night, the deceased came to visit his wife Sic in the small hours of the morning. Sic was at the time living away from her matrimonial home, having been sent away by her husband the deceased on suspicion of bewitching her co-wife. ,.

16 - It is iLt±jats version that when the deccasod 1:nocked at the door and asl:eJ her to open for him, the accused Sic forbade her to let him in as she tartod to OPen the door. Sic then hurled vulgar abuse at her husband ho in turn retaliated likewise. heated exchane then ensued during which the accused hufetdza came out, was handed a stick by Sie and counselled to attack the deceased.. hu±eud:a responded rorrly and psrhas mechanically to his behest. He chased the deceased for some sixt races or so, caught up with him and dealt him blows wit.1i the stick aiuen to him by Sic. The blows must have been heavy because ittija heard them as the landed on the deceased body sixty paces away. fitija cried the alTrm to attract neighbours. Iluieuka silenced her by threatening to kill her, He had by this time left the deceased groaning to return to the compound. The accused tie urged him to go and finish the deceased off. 2gain he complaisantly obliged and came back to enlist help in disposing of the body. itija refused to assist to conceal the heinous crime, upon whjch the accused together carried the hoay oii and clumped it in tie well. Ti.aey iniormed ktlja so when the y returned. The evidence of the other eye—witness iButi Sanda is su1stant- ially the same in all material particulars. there are oum.iasions of detail which could he explained on grounds other than the unreli- ability of the wjtness. In my summing up, I warned the assessors tJ.iat because the eye—witnesses Ktija and. IThuti did nothing to prevent the crime beingcoinr.itt ;d, their evidence should be aprroach- ed cautiously. The ientlerien assessors chose to believe them and I cannot find fault with their stand. In fact ktija did cry the alarm although when she was later aal:ed by her husband and a neighbour what the alarm was about, File retrained from disclosing euse of' .Laer oro nor in lt Her e1r1 once clJ as u :t of "Tl uti rust however, be true in as much as they corroborated each other in every material particular. Besides, there is evidence to corroborate them. The doctor said the deceased must have been dealt heavy blows with a stick and that is what can he gathered from the noise Iitij a heard men she lows lanred on ais uni orsunate brosmer in law. I am left in no doubt that the eye—witnesses have given a true account of what took place that fateful morning. Iltija was on her part corroborated in her evidence that the body was dumped in the well, when, followin;, a disclosure on similar lines by the accused tie, the search party actually pulled the deceased's body out of he well to which tie led them. Tue court therefore acoepta ' S true Htija's evidence hat she refused to assist the culprits in the disposal of ins body. By so retusi±g she cleansed her self beyond comrlicity. Her evidence can thus, after due care and scrutiny, be accepted as it is, without reserve, the bald denials by the accused IT uld thus look unreasonable in the circumstances. The accused who were both at ittija's had orpoatunity to kill ft deceased who also went on a visit there, ins accused SirD had a grudge against her husband who had sent Ho: away from the uairimo- nial home only some four or five days previously. TThe n the deceased's brother Ihpotu Iganji told the court how the accused Sic admitted to the crowd that her kmsband was in fact aead, the learnoc. defence counsel objocced so she admission 01 suer. evidence. In the learned counsels opinion, the sin.tement was a confession and since it was extracted only after interrogation, it w.as n-tad iiss blo I us u 505 Dec fully 1f'fec wli I chic learnca counsel. In the first place I do not share the view that the accused tie was iaakin - : a confesa by sorely ach:aowled ing that her husband was dead. and even when she led the croud to the well from which her husband 'a lodw was ±'otuad, she was only edrittin-, that she knew that her husb::d. was dead and that he usa buried an the.t well. She was not telling the crowd, nor could the crowd have been justified to tai:e her as saying that she hilled her husband and hid his body in the well. I would ho::ever concede that what she revealed was very dasaing indeed. Be that as it may, he cannot be taken to have confessed., . . . . . 07
17 - Sic's revelations were therefore admissible because they led to the discovery of the body. Such discovery bore witness to her statement which must have been and was in fact very true indeed. It was, in my humble opinion, rihtly admitted. The witness Ptija told the croud that her sister Sic counselled and procured her brother Hufeuka to commit the offence. Sic was there but she did not deny the accusation. Speaking of her own blood relations as she was, iftija must have been telling and indeed was teflina the G-ospel truth. Htija must also have been telling the truth when she said that the accused IJufeuka returned to his groaning brother in law to finish him off after he had severely beaten him and returned to the compound 60 paces away. This he did doliberaely and at his sister 1 s behest, if he was provoked at all, and there is no evidence to sug:e.st that he was, be could not have retu:ened to finish off the deceased. His temper should have cooled when he returned to the compound. If he was impassioned at all, and there was no cause for him to feel so, then the re -burn trir to the compound would have furnished him with ooportuaaity to cool his passion. His return to finish off -bhe deceased betrays deliberation and cold—blood. In accepting as I do Pitijats evidence on this point, I have but bo accep± with gratitude the assessors' unanimous view that -bhc accused hIufeuka killed in cold—blood. Is for his sister Sio, it cannot be denied that leally she was jparticeps criminis although she did not physically attack her husband. Section 22 (d) of the Penal Code which is a codification of the Principle qui facit ncr alium facit er so joins her to the offence in that she counselled kufeuka to kill her husband. It could he argued that she was entitled to take exception to a nocturnal visit by her husband who land sent her away after accusing her of bewitchin'thc other wife. She may also have been entitled to react to the vulear abuse which the aeceasod hurled at her in relaliacion. But he co.:mou claim to have been so angry as to insist upon her brother to finish him off. She nus -b have wished for her husband's death. That was why she procured a stick, gave it to her brother and urred him to go and finish him off by pulling his male organ. 11cr counsel to hufeuka waS urmietakeable and he follorod it to tho letter. The only point of departure Was the finishing off uh.ich has not been proved to have car:eied out in sGrlct accoroance w1 - Gh Sic's insGructions. at eny rase -t cannot help Sie to say that I ufeuke c1 ec1 not f i h ncr usb n orf by pulling his male organs * ihe f ac -b is that kufouka 1:illed him Oil her behalf does not a ucr f u' a ictnoc' used 1Tes no u method counselled. Like all •bho gentlemen assessor, I an satisfied and I so find, that both accused are ocually guilty of the offence charged, and with that offence I convict them, head and (ieliverod in open court at Singida on this 7th day of April 1973, PLecord The acused a:e both 1st offenders. 0 - 1 2 4tus hiufouka: I did not 1:ill. I am 18 years of age. I was born I do not 1121101 , when. Sic: I do not know how old I am. rer: from -theiraupearance, the accused could be 10 years of age or bclou. I would therefore order that they be medically examined before I could rass sentence on -them. Caso adjourned for sentence at Dodoma on 13/4/73. Accuseds remanded in custody. E. H. 1.. 1211111111. ACT . (JIJDCTIJ)

Republic vs Sie D/O Ntula and Another (Criminal Sessions Case No. 183 of 1972) [1973] TZHC 170 (9 April 1973)

Judgment

Discussion

Republic vs Sie D/O Ntula and Another (Criminal Sessions Case No. 183 of 1972) [1973] TZHC 170 (9 April 1973)

Judgment

Discussion