Republic vs Exavery Mtandiji (High Court Criminal Session Case No. 18 of 1988) [1991] TZHC 2237 (4 July 1991)

IN THE HIGH COURT OF TANZANIA ORIGINAL JURISDICTION (MBEYA REGISTRY) HIG COURT CRIMINAL SESSION CASE fTo.18' OF 1988. THE: REPUBLIC Versus EXAVEY MTANDI JI J•UDGLNT PI:W4- •J. Exavery Mtandiji has been charged with the murder of his wife Rehema Nchami c/s 196 of the Penal do.ãe. He pleaded not guilty to he charge thus necessitating the prosecution to add.uco evidence to prove the charge. In this case certain matters were not disputed 0 It was for example not disputd that the deceased Rehema Nchami was the wife of the accused and that 'she is in fact dead. It was also not disputed that in accordance with the Post Mortem examination report tendered in court as Exh. PL the cause of death's head injury andsuifoca'tion. What was disputed was the identifioation of the person who caused he death and nethcr the killing was done with malice aforethought, In it's endeavour to prove the charge the prosecution called 4 withosses namely' Assistant Inspector Wilson 1,,1wamakula(PW1), D Liihangano Joseph .('PW2), Estor Kikusi (PW3) and Georo Jairos (PW4). The most im?ortant witness in this case was George Jairos. (PW4). According to him on the 25/6/87 at night his wife, Ester Kikusi awokened him. and drew his atention to the banging of a timber door in the ncigh1'ourhood 1 The only timber door in the neighbourhood, according to this witness, was that of the accused." for all the other

I 4 = 2 doors wore said to have boon made of iron sheots He wont over to the house of the accused which was only about 40 pacesaway from his house and there found the docoasod preventing the accused from leaving the house, Bô.th . J - . h6 deccasod and the accused r.pporcd. onraod, On inquiring what was wrong none of the two would ofr an explanation 9 PW4 askod the couileto stop quarrelling end to go to bod Thereupon the docoasod 'dj.o vaslcoding from the nose and mouth complained that the accused had injured her and that he - should not sloop in the house. Wt:convincing himself that ll would be wall loft the eouiilo and retired to his huso. All was quiet . until the following day 0 On the morrow at.8O a.m. Ester Kikusi. (Pv3) wont to groo the deceased with c, viow of asking her wht hdd tronspirod at night. She found the door to the house ajar,bi±Iio]by. chairs from opening widoly and the deceased lying on the floor doed. The deceased was said to have had no clothcs oxco)t wider pnts, PW3 informed P71 -'nd the couple wont to sunmon the ccuecd fror' his work piece. The uthorities wore then informed of the tragic find.ings •. -.. In hs sworn statomont the accused stated that oii• the d ay j. question he had rotuniod homo at 530 bu' di not find his wife 3th3mo, He dcoidod to go to. drink pombo:ill 930 p.m. when ho rotun dhSñbuthjwfo.was still no whore to be seen. He decided to sloop but 5in so doing left the' do•o open in that he -but meroly -put, chair behind it so that when his t. wife returned it would be onr a iater of gushing tho door to enter. At midiight the accused states that hiswife -ro.turned and that he was oblo to 'lthow this boaitc of the sound produced by' thd fall ......................... of chairs. Ho woke up and found tho deceased had fcllen doi undox tho ohriir and nnnarriii vcrv clrirnlr Ti-. 4 w'r,nrl ht 4r +hr - ---.--.----- - jj...• process. . . 04/3 11

4 process of making inquiries that Goorco Thiros (PW4) c,;, Xlc in and advised that he should not. • ,osk her any quosti.ons. Ho.tooi. the adse and slept till. tho.nbxt dayat4.00:e.m..when he wkoupancl prepared to go to work, hO'uti5ñ•'cth'üp at 40 an. nôôo±dingo' the accusod, was his.usualtime. He awokenod the dcccascd and told her to close the door. Shddid so nd then he loft fol' Work Ho ws surprised when he was called frcm. work by P 1 014 and on reaching home fouxid the deoonsod dead, Doteils'of the Poet ortoth ]xaiinatin i'oport indicate, that the body had: "a hood injury duo to a blunt objoct whióh hit on the occipital area of the skulnnd leaving a large. cophalohaomotma. Soci also was bleeding per both nostrilsand the mouth, bruisc n the saddle of the nOs, cncussir andsbrttche n the froit of thdnock (similar to nail scratchos), The medicl doctor who c,-rriod out tho aubj3s was Dr, Luhngano

• skod .. Joseph of Chimal, hospItai Vhoii he :wa 3ncoss exaiIñation as to whether he had carried jut a fl -tation test in order to 'ascertain whether suffocation had boon tho cuse of death, he eittod that ho had not done so, That loaves it open to speculati. wethpr suffocatjjn was the cause of doat1, Since the döcoased had sustained 3 serious head injury that may well hye boon the sole causo of death., The vital quostionin this case is one who inflicted the head injury that may ho casod death, Though there was no direct ovionoonthis 'point, 1horowas the .c1ying°' declaration of the deceased riade to P014 that sh had boon injured by the occuso. Corroborative evidence was circumstnniai in that in that house it was only the.accusocl. and the deceased who slept there, and in accordance with theevido'nce of the accused there was no indication that any outsid'had broken into the house to assault the deceased.......

A.

• = .4".. = the do ceased. So. considering this glaring ciróumstantial evidence - I make a finding that the acc'usedis the one who assaulted his wife. The next question to consider is whether the accused' opted under provocation. Accordin to section 202 of the enol 0od provocation is defined to moan vna include 9 "any wrongful act' or inuit of such a nature as o be likely whoi done te'i oHnary person • • • • • S S a • • a ô • S è I I S I • ö II. IlL S • S I • • LI SI I •,• I I • S I • to deprive him of the power of self ntrol and to induce him to comuit an assault of'thè kind, which. the person chtged comrriited uon the person by .w1om,. the act or insult is done or offered.". The expression an bdinary person is defined to mean an ordinary person of the community 4owhich the accused bol.ong. ' In this case PW4 stated that he had found the deceased drunk and provoning the accusod. frm leaving the house 0 All the 3 assesss ift'bhis.oee who gave tacI-r opinions were!of the unanimous' view that the conduct of the deescd in coming home late after midnight in a drunkon mood and' preventing her husband from leaving the house constituted legal provocation. I am of the same view. So though the accused was the author of the injuries that caused death the circUmstances were such that legal proocation appears to have existed Had it been proved, that the cause of death in..is case was exclusie1y düe'•t.o suffocation my view of the case would have been different. A person who thro±tics another to death must be taken to intend to, cause death and since in this case the cpuplo had boci left at peace by. PW4 the accused wOuld have boon put in a very difficult position to prove on a balance of probability that he throttled his wife to death because of provocation, Finally .... /5

= 5 = Finally though the dofEncos of ihtoxictin nd sclf defence were never raised there remains an lingering thought that these factors may well have been at play in this caso, In the final anály.is I hold that malice aforethought has not been proved beyond more peradventure and that indeed this is a case' of prvocatior, The aecusod is therefore found guilty of mansloughtcr' TT L. rtI . 'JUDGE 4/7/91 Judiorit delivered in open court this 4th day of July, 1991. L, J0E JUDGE 4/7/91 Povious convictins: Nil. / 1.9 TIGATI ON: I pray for leniency because the circustances of the case show that this was an unfortunate case of malislaugh -bor. The accused has been in remand for about 4 years, He has 2 children to take cre of plus parents who are old and depend on him. The accused should be given a chance to rejoin his farilly. SENTENCE: The killing in this case occured under provocotin. Hower loss of life has been' occassioned and the courts must reflect this serious loss• in the community, So despite the plea of defence counsel in mitigation and the fact that the -accused has been in remand fo4yoa•rs I sentence him to 7 years imprisonment, 4' AT,MYA 4th July, 199 JRQ/ITM 'Utha. L. J JUDGE