Republic vs Barnabas s/o Ndembwe (Criminal Sessions Case No. 62 of 1983) [1985] TZHC 187 (7 December 1985)

I • . G flr TR HIGH COURT OF TANZANIA • AT IRINGA ORIGIN U JURISDICTION • ( I.Tb eya iegistry) CRIMINAL S S S I ON 3 CA3 7 , NO • 62 OF 1983 TH R?L1BLIC versus BARN ABAS s/o ND'BW 1'1ROSO, J. JUDGI1'NT • The accused Barnabas Nderbwe is facing a murder chrge, •. it being alleged that during the night of 3rd March 1982 he murdered one Yekonia Mwinuka. In his plea to the charge and during his defence on oath the accused has admitted killing the deceased but said that he did so in self—defenceQ : The deceased Yokonia Twiuka had rriarried the Sister of • the accused. During the night of 3rd March, 1:962 the accused I. went to the hone of deceased and stabbed him with a krife killing him instantly. A post—mortem exarninatior o )üs . . •;• body the following day revealed that he had, died from a penetrating wound on the left front side of his chest whih S ' through the heart. Since the death of Yékonia Twinui IS nOt-. in doubt, including the cause of his doth, itis iow ir'portatt to consider the circumstances in which he met his death in order to 1iow if the accused is guilty of the offence.charged, or of any other offence or whether he should be acquitted.. I Two prosecution witnesses claimed they witnessed the ccrcwnstaces which led, to the death of the deeeased. These',J:. • were PWI lika Sendewe the wife of the deceased, and PW2 Augustino Gu.lugulu. These together with other people wh did not come to testify were present in the house of the deceased where he was killed. Both these witnesses and ever the accused himself say that on the fateful night the accuèd.: Carrie to the home of the deceased and demanded that he be given back his krife which deceëdhdb'rowed. from him t9 - use O tapping u.lanzi. from bamboo trees. The deceased refu .../2 I

• 2 to do so saying that he could not give it to him during that night but that he would give it to himthe following moming. Both PW2 Augustino and the accused said in their evidence that the accused spent at least an hour (two hours, according to PW2) repeate'dly asking the deceased to give back the knife but the .deceased L repeatedly too, said he would give it to him the following morning,ot on that night. PWI Elika and the accused both. y that all along the knife in question was lying on a table i n the room. However, PW2 ugustino said there was O kflife on the table. PWI lika and PN2 Augustino said that afte±. the accused was refusd. the knife he went to the door and shut it thereupon deceased went-' to open it. The accused said he was intending to go away when the deceased followed him and butted him with his head. PWI also. said, that deceased butted accused with his head at the door. Pl'12 said he did not see any one assault the other with his head at the door. The accused and PWI said that at the time the deceased went to the door to open it after the accused had shut it a paraffin lamp (koroboi) which waC buning in he room got extinguished, suggesting that the room became dark. Surprisingly enough, despise the probable darkness PWI was able to see the deceased butbe accused with his head. Further, his claim that there was moonlight outside was refuted by P1,12 Augustino. Augustino also refuted the claim that the korobol light was extinguished. All - PWI, PW2 and the accused - are unaflimous that after deceased went to the door and there was a scuffle it was then the accused stabbed deceased mortally. But the evidence from these prosecution witnesses and.that of the accused begins to differ from one to the other. PWi li1a said she realised that the accused had used the knife which had been lying on the table although she could not know who took it from there as it was then dark in the rooms The accused said that it was deceased who had gone badk to the table to- pick the knife go as to attack him (accused) with it but that he (ased) managed to wrench it from him. As he was then being attacked with rungus by the other people \present in , the room .ording to the accused, he hitS in the N

• ': dark with the knife, In self defence and thus killed deceased. Again, if it was in fact dark in the room I am unable to understand how the accused would have seen the deceased go back to a table in the room and take a knife from it and then see him come with it with a view to attack him. I am also unable understand how the accused would have seen the knife In the darkness and be able to get hol4 of it and take it away from the deceased. Be it as it may.. "P'J2 Augustino had said that there was no kflife Or the table' ln. the first place, In the second place,that the light frOm the koroboi had not been exti- nguished and in the third place; that immediately the d'ecàsed went to open the door which the accused had closed he (deceased) was stabbed with a knife by the accused. Augustino could not know from where the accused got the knife. The witness said the accused was wearing long trousers and a shirt which was not tucked in and that all the tirne'he (accused) was In the room he never sat down. Therefore, if accused had been carrying a knife in his trouser pockets it would not have been visible to the people in the room,. I an satisfied that the accused and P1 1 I his Sister were not telling the truth when they said;tbat the knife which the accused was demanding that it be returned to him was lying on the table. I also do not believe that it was the one whch the accused used to stabthe deceased. I agree that the accused spent quite sometime der':anding for his knife and that on being refised it went to close the door whereupon the deceased went toopen it. Had it been true that the knife was at the table I believe the accused would have taken, it and would not have spent all that time repeatedly asking for It, especially considering that he was stading all the while. Also for the reasons already given, I do not believe that the korobol in the room got extinguished. This is a mere concoction of the accused and his Sister - Wi. PWI was visibly trying here In court tb help her brother in whatever way she could. 'On the other hand PW2 - Augustino does not come from the accusedts or deceased's village. He Is from an entirely different area and only knew the deceased ad the accused because he was working in a Greek's farm In the village where the killing took place. He impressed lie as a truthful wi.tness who was trying his best to tell the trtith as he knew it and could remember. I the±,efore ..../4

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• 5;__ - closed without leave frorr the house-4wnër and possibly with the intention of causirigvioent .troble.-i the house. Since the- deceased wars urarrdt1ie accusd•had' Us ôdexces$ive. force when he used a knife in retaliation to beirg butted by the deceased. . Both assessors have suggested that the accthed was provoked by the deceaseds refusal to give him back his knife. do' not share this view. The accused' s posture was not friendly. He was offered a seat but refused it and by his owi admission he wasdrunk. I thjk the deceased may have rightly. thought that it was risky to give the accused his knife in the condition he was. So, I do think deceased can bsaid to have provoked the accused iri that situation. One of the assessors has advised that the accused is not guilty of any o'fencend that he should be acquitted be-cause he had been provoked: by the deceased. I have already e'ressed by differing opinion on the question of provocation because of deceased's refusal to give accused his knife. But even if I were to agree with this lady assessor the accused would not have been declared innocent as provocation is not an absolute defence. I however share the opinior of the second assessor that for the reasons I have endeavoured to give above the accused is not guilty of murder but is guilty of the lesser offence of manslaughter contrary to section 195 of the Penal Code of which I now convict him. J.A. Troso Judge 7/12/1985. Nr. Kaina: No previous convict. 0 In mitigati: - Mr. 1VIikasugula: Accused is a. first offender. Accused has been in custody for 3+ years to await this judgment. He is a young man of 23 years old. He appears to regret for the act he c'rirnitted of killing his brother in law. I pray that court imposes a lenient sentence O him. : ---' ) .-

-- -6— S4TTNOJ I have taken into consideration all the ritigating circurstaces which counsel for the accused has pleaded. For . .. those reasofls I sentence hirT to Live years irprisonrnent Right o± appeal against conviction andsenterice explained. J.A. Y.roso udge Assëssor's thanked and discharged. At Iringa J.A. Mroso 7/12/1985 Judge .. .Z5