Republic vs Yohane s/o Sebetu (Criminal Sessions Case No. 69 of 1972) [1973] TZHC 158 (3 April 1973)

IN THE HIGH. C6U9T J OF TANZANIA AT MEYA CRIMINAL SESSIONS CASE NO. 69 .,,,...,...0OF 1972 THE REPUBLIC versus YOHANE. sb SEBETU -OoO- CHARGE: MURDER, contrary to Section 196 of the Penal Code. JUDGMENT ONYIUKE, J. - The accused, YOHANE s/o SEBETU, stands charged with the murder of MWAJUMA d/o MZEE otherwise known as MAMA ELNARA. The incident took place in the night of Sunday the 21st day of November 1971 in SAZA village in Chunya district in Mbeya regions The ease of the prosecution can be brief'y stated. The deceased was marrledto one Normn who once worked as a clerk but who was stricken with some disease that left him lame in one leg and virtually an invalid. The accused was the deceased's paramour. It was in evi- dence which I accept that sometime in 1971 before the incident that led to the present proceedings the deceased eloped with the accused and stayed with him for 2 or 3 months but later returned to her hus- band. Even then she continued to associate with the accused and remained his lover after her return. The events that led to her death were these. On Sunday the 21st November 1971 the accused together with his brother went to the pornbe shop run by one Edward Mlelema's wife to drink pombe.. Hewas later joined at about mid-day by the deceased. The accused bought some pombe, a local brew made from maize and finger millet, which was shared by the three. They sat in a group outside the pombe shop and stayed there for hours on end drinking pombe, P,W,3 (Edward Mielema)' stated that at about 5 p.m that day he was impelled to ask his wife to close the pombe shop and to ask the customers to leave his pre- mises. It appeared that a certain fisherman came to his pombe shop to drink. At a certain stage he left the spot where he was drinking to join the accused's party. The accused vigorously resented this move arid but for the time:ly intervention by P,W,3, a, serious quarrel would have developed between the accused and the fisherman. Apparently, in an attempt to prevent any further dispute P. 1 4.3 ordered his wife to close the pombe shop and asked his patrons to go home. P.W2 (KAS.IBA MWAKYUSA)was. onè'of those persons who were there drink- ing pombe when POWO3 caused the pombe shop to be closed for the day. He stated that he also saw the accused and the deceased drink- ing at the pombe shop that day and that they were already there when he arrived. He stated that he left P.W.3 1 s pombe shop €dusk for hishome. His home is about I mile from P.W.3 1 s pombe shop. The evidence disclosed that to get to Norman's house from Edward's pombe shop one had to pass by P.W.2 1 s house. Contnuing his evidence, P.112stated that tifter his return to his house that evening he found it necessary to borow some matches from his neighbour who lived about 200 paces away. He called at his neighbour's house to borrow some matches but apparently his neighbour had none to spare and. he took away orñe burning coal to kindle fire in his house. It had become really dark at this stage. P.W.2 stated that when he had got to about 10 paces ../2

4 2 abotit 10 paces ,to his house he saw the accused and the deceased pass- ing by his .house quarrelling. From the corss-examination of this wit- :nss it was more likely that he did not see them clearly but rathe that he identified them by their voices I am satisfied he clearly recognised the deceased's voice as he had known her for many years. He stated he heard a voice which he concluded to be the accusedts demanding • from the deceased that she should return all his money and all the clothes he gave her and that he would leave her naked. To this demand the deceased replied: 'Wait until I get to where I can borrow some clothes and then you can take back your clothe They continued their journey and P.W.2 entered his house. Early in the morning of Monday the 22nd November at about 7 a.m Samuel SIMWAO left his house for his shamba which was about 1. mile away to work. As he got hear his shamba he saw a dead body lying on one of the ridges in his shamba. He approached the body and: recog- nised it to be that of MAMA ELNARA, the wife of Norman. It was lying virtually naked with only a small piece of cloth thrust in between her laps. He observed cut wounds in her neck and abdomen and a pool of blood about 50 paces away by the footpath that skirted his shamba. He also saw a pair of khanga lying between the pool of blood and the spot where the dead body lay. He immediately sent some one to report the matter to a ten cell leader and a special constable (P.W.4 -. 4LSENI KAPONGE), P.W.4 visited the scene later in the day. He saw the dead body lying on its side with the head resting on the bent right hand.. He saw the pool of blood by the footpath and a pair of khanga lying about 10 paces away. He observed cut wounds in the neck, in the abdomen and on the back of the deceased. He removed the dead body to MWANBANI District hospital where P,W,1 (Dr. Y. STAPET) per- formed an autopsy on it. The doctor identified 6 cut wounds on the dead body as follows:- A cut wound 5 inches long and 1 inch deep on the left side of the neck. A superficial cut wound 5 inches long on the left side in the lower region of the back. A superficial cut wound 4 inches long on the left back side near. the wound in (ii) above. (i:v') A deep cut wound on the left side of the body but more to the front in the lumber region (abdomen) in the same place as the wounds in (ii) & (iii) above. This cut penetrated the abdomen for about 3 inches. A cut wound near the stomach also penetrating into the abdominal cavity. It superficial cut wound at the back under the arm. The doctor assigned the cause of death to severe bleeding from these wounds.. especially the neck wound which severed the big ar.tery in the neck (.ARTERTA CAROTIS COMMUNIS). Death in his opinion must have occurred within a short time in view of the seriousness of the neck wound. . The accused made an extra-judicial statement to a Justice of the Peace - the Primary Court Magitrate at MWAMBANI (P,W.6 - PH.ILIPO WAMPEMBO). This statement was admitted in evidence without objection and after the accUsedhad declared it was correct. It was marked as Exhibit PB. Ihthat statement the accused stated he ought pombe for the deceased in the pornbe shop which she duly con- sumed and at her request they left the pombe shop together. On their way. 1 after they had passed a certain house he saw two persons stand- ing on the. way. He shouted 'HODI' and received no response. He shouted 'HODI' a second time and receved a response from one of them. After they had passed ./3:

4 -'3- thh1 passed them and had gone-a short distance thu two men ran after them 'Whoreupbn'the deceased made this remark: 'Here is the per- son whom I told that; I shall pass before you 0 t: One ci he two men hit the accused with.a stick and the accused took to his heels0 The deceased also ran when- the two men utterdd some nasty words at her0 Later the deceased rejoined him and he asked he what this was all about. She replied: "Did you see how I treated you before other men? You thought you were the only person with money" This remark infuriated the accused and coupled with the fact that he had been drinking heavfly that day he stabbed her with a ntfe. The accused ended his statement by bemoaning the fact that he had given her much money which he put at Sh0 49/- and had in addition bought her two dresses and 8 pieces of cloth. The accused volunteered to give evidence in his defence in the witness box where he gave a rather different.version 3f his encounter with these two men0 He testified that he had gone tc the pombe shop atObout 10 a.m that day with his brother At about 12 noon the deceased arrived at the pombe shop and joined them and they all drank pombe shich he bought. He stated that they consumed between them 6/- worth of that local brew0 This would he sonething like 24½ half litre bottes of the local brew0 They were at it till about 8 p0m. During this drinking bout his brother qot drunk and slept off. He tried without success to get the owner of the pombe âhop to allow his brother to sleep in his house0 Appaently his brother lay sleepinc in the open0 At a certain stage he (the accused) went into the pombe shop to buy more pombe and on his return he could not find his brother. The deceased had apparently left him sometime ar1ier ostensibly to answe.' the call of nature0 'Vlhen the accused• returned to where they were drinking with his fresh supply of' pombe and did not see his brother he decided to leave He had hardly covered 50'paces when the deceased emerged and ran towads hn and asked him to buy her more pombe as she had not had her fill, '.'he accused obliged by buying her 2/- worth of pornhe. She then insisted that the accused • should wait on her until she had finished the pombe Ed should escort her home Again the accused obliged0 After the decuaced had had -her fill they left the pombe shop together0 As they ware walking home conversing they net two men - each standing on one side of the footpath0 He (the accused) souted 'HODI' and on receiving no response he shouted again This tirrte'one.of them responded 0 ' When they came near to where they were standing One of them said, apparently addrssing the deceased, "you never agreed you had a lover, Who is this person0 You have another lover." The deceaed said "This is the person I said I will pass before you" One of the two men then said "So you are the person who delayed this wonan." The accused retor- ted: "I did not deiay her and had she known she had other engage- ments she 'would havu J.eft earlier from the pombe shop" Whereupon the two men gave hi:'i a thorough beating with their fists0 The accused got annoyed and took out his, knife to strike his assailants but because of his Jieaving drinking he stabbed the deceased in error0 After he had stabbed her they threw him down and he fell by accident on the eceased and again in error he stabbed her many times thinking he was stabbing his assailants 0 At the first Opportunity he ran iway with his assailants :rnninq after him and throwing stones at iim0 :e swam across the river and made good his escape0 He slept in the bush and the following morning he went to 'the assistant ten c?li leader but he was out0 He than went back to 'the pombe shop to look for him0 Shortly after, a spocial constable 'ame there and arrested him0 - After I had summed up to the assessors and dir:ced them on the law on'the issues of accident,, self-deferice, intaxication and provocation they gage a unanimous opinion that the accused killed intentionally and was guilty. of murder. The substance of the 1st assessor's opinion was that the deceased eloped with the accused for 3 to 6 months and later the deceased returned to her husband. This anncyed the accused who had since then been think- ing of doing this act. When they met at the pombe shop it could be that

-4- be that the accused invited her to his house. The deceased refused to go with him and this made the accused very angry especially as he had spent so much on her. This assessor referred to P.W.2 1 s evidence where P014.2 stated that he heard the accused asking the deceased to return the clothes he gave her. The deceased replied that he should allow her to go to her people and borrow some clothes so that she could return the clothes the accused gave her. This did not satisfy the accused and he killed her. The second assessor was also of - the view that the accused killed intentionally. In- his opinion pombe had nothing to do with what the accused did. He stated that if the accused was really drunk to the extent he clãimed to be he would have stabbed the deceased at the pombe -shop. 'He disbelievedthe accused's story that he was waylaid by anybody or that he was beaten up as he alleged. He was of the opinion that the accused killed the deceased because 'she refused and rejected himl Because of this the accus'ed demanded back the 'clothes he gave her and the evidence showed that the deceased was seen lying dead naked. The 3rd assessor was of the view that the accused had no right to remain with the deceased from morning till late in the evening. The deceased was not his wife but somebody else's. The accused did wrong by taking away the deceased from Norman who was stricken down by illness. This assessor stated that according to custom if A person took away another person's wife and the wife later returned to her husband that person should not associate with her again. The accused did wrong according to custom in persisting in his associations with the deceased after her return to her hus- band. The accused was annoyed because the deceased refused to go with him. He then demanded that she should return the clothes he gave her and killed her in the process. I have given very serious and anxious consideration to the unanimous opinions of the assessors. I am greatly indbted to them for these opinions. To disagree with them in these circum- stances is not a light matter.. I acknowledge it is a heavy responsi- bility. I will now proceed to give my reasons for disagreeing with them and to make my findings. A distinction must be drawn between the accused's moral wrong doing and his criminal liability. The 3rd assessor stated and I have no doubt that that was so that the accused broke all customary norms of behaviour by taking away the deceased from her husband and by persisting in this illicit association after she eventually returned to her husband. This case should not however be decided on moral grounds. We have to be guided by the provisions of the Penal Code in deciding whether the accused was guilty of murder. Secondly, I have the impression that the assessors were of the view that the 'deceased's eventual return to her husband after her elope- ment showed that she had undergone some change of heart toiards her husband and that she had decided to change her wayward life The second assessor went so far as to say that when the deceased returned to her husband the accused got annoyed and had ever since harboured the 'idea to kill her. The evidence was the other way. The deceased, after her -return, persisted in her loose and wayward life and remained as unfaithful to her huband as before her elopement. Her return did not, in my- view, mean any change of heart but was merely a matter of convenience to the deceased. The picture which the assessors tried to resent that the deceased -had, in effect, became a changed woman and had spurned the accused's continued advances was- not justified, in my view, by the evidence. The fact that the deceased renained with the accused from morning to dusk in the pombe shop supports the view I took. If the deceased rejected the accused and refusedto go home with hIm on that fateful night it could not have been because of her husband, but because of some other person. The accused's per- formance in the witness box did not help the defence. He told a story which was at variance with the story he- told the Justice of the Peace.

• I think .../5

-5- I think the assessors dismissed this entire story because of his inconsistencies0 I am of the view however that there wa some element of truth in the accused's story. A Ihad stated earlier oril do not believe . the deceased rejected the accused Out of any c.Orsider tion forher.husband. For whose sakethen.'dd the deceaSed teject the accused? I will now refer to that portion o the. accused's .toy;where lie Stated that when they met the two"mn on their way. home from the pombe shop one of them addressed th deceased as follows:- "You never agreed you had a lov. Who is this person? Youhave another lover," and turning to the accused he said:.- "So you. are the person that delayed this w6man0". I should also recall that at •a certain stage the deceased disappeared fron the pombe shop only to emerge later to ask the adcused why he left without saying goodbye to her and of course asked for more drinks from. the accused. I am of the view that the deceased was pitting one lover against the other. One of the assessors referred to that portion of P.W.2 1 s evidence where he stated that he overheard the accused demanding from the deceased the return of all the presents - he gave here Can it seriously be suggested that it was because of the deceAsed's sudden attachment to her husband that the accused. made 4ihis demand? Something must have happened in the pombe shop or somewhèe else that evening to proffipt the accused to make this demanda Ih this connection I wish once again to refer to the evi- dende.oi POWO2. He stated in the witness box that.when the accused and the deceased passed by his house quarrelling he did not see any other person around.- In his statement to the police to which learned counsel referred during oross-examination but which unfortunately he did not pursue as vigorously as he should have this witness stated that he saw some other person around whose identity he did not know. Who then was this man? The prosecution had not been able to produce any evidence to show what transpired from the time the accused and the deceased passed by P.W,2 1 8 house to the time she met her death. I do nt think the accused's story should be dismissed out of hand because heto.ld obvious lies in the witness box. His extra-judicial state- • ment should be given some serious consideration. I do not believe the . accused When he stated that he stabbed the, deceased by mis- take or that he acted in self-defence when he was wèilding his knife that.night. I agree with the assessors that the accused did not kill the: deceased because he was under the influence of alcohol in the sense that he was temporarily insane at the time he did the act or that by reason of intoxication he was incapable of forming the intent to kill or to cause grievous bodily harm. I am however of the view that there was sufficient evidence of provocation to reduce the killing to manslaughter. I think the accused: resented the deceased's associations with her other lovers. Apparently he ,thought he could extract from the deceased more fidelity than she showed her husband. I think the truth was sparkedàff because the deceased wanted to show the accused that he was- uite expendable by getting her other lovers to humiliate him. 'The.provoc'ation should be considered on the basis of these facts; the accused dis- covered that the doceased contrived with her other lovers to humiliate him in order to show him he was quite expetidable. As if this was not enough she turned round to taunt him. This provoked the accused into stabbing her. I think that in the circumstances of this case the provocation was sufficiently sudden and weighty to cause a person in accused's status in life to lose his self- control and to.be induced by that provocation to behave.as the accused did. I will therefore find the accused not guilty of murder but guilty of manslaughter and I will convict him acod1_7; The accused's conduct both in relation to Mrman and in the le way he killed the deceased had been quite outrageous but this will be taken into consideration in assessing sentence. Delivered at Mbeya this 3rd day of April, 1973. G. C.MO ONYI E J U D G E

I- Accused: I have nothing to say0 DHEBAR: Accused was 49 years0 He is married with 6 children0 He is a first offender. Pe has been in custody for the last 12 months. 0 S E N T E N C E It is astônishing that a person with a wife and as many as p 6 children could behave as the accused had done. He did not scruple * to take away the deceased from her hick husbarid :' lost his head when the deceased showed him no more fidelity than she showed her husband. The attack dri the deceased was vicious and ruthless and deserves s'vere punishment. The accused cannot now plead the hardship • on his family in mitigationof sentence as he had hardly shown any con- sideration forhis family by living such a desolate life. I will sentence the accused to 10 (tn) years' imprisonment. • V G. C. M. ONYIUKE J U D G E 0 S I • J0•.