Republic vs Charles Ibrahim Mdagasule and Others (Criminal Sessions Case No. 55 of 1983) [1985] TZHC 186 (6 December 1985)

• 23 - Ir T HIGH COURT OF TZ•NI1 T IRflrU, ORIGIN..'J JURISDICTION (Mbeya egitry) CRIP•INJL 3;ION C NO. 55 OF 1983 TH RPUBLIC versus I. CHARLTC IR!UiIM NDIGASUL 2, G;UD 7 2N3IO TJIOIS P 1 ,1ICO 1 JB *l 3 • BTN1JiD SUJL Y! I1i'D\NDAL 10

4. CHSCO G JDNC M.KOJ'iB CH.Rc: Murder c/s 196 Cap, 16, NROSO, J. JUDGNNT•, The accused CHRLS IBHN MD.1GSUL is facing twA counts of murder. In the first count it is alleged tuliau 071 or about tue 5th of ray, 1982 e rnurdered one Juliana Mdunyange. In the second count it is jie.gea that on or about the same date he murdered Sipendi Charles. The * evidence irdisputably showed that Juiian .ws the io afld4 20. Sipedi he daughter of the accused. - 4 On 16th June ç 1982 two bodies, or.e of a grown up wr and tue other of a child of about two years were di±id from a shallow grave in tue maize &'iamba of the accusd. J.ccording to Post mortem examiration repo 0 rts by one Dr. Kibasa, theri of Tafinga Government hospital, which were produced as exhibits and read in court Jln the absence of the doctor who was not available to give ovidec, death had occured about a month prior to the examination. 1 3 1 ver, so, One Lukas ipasi (P42), a brother of Juliana and a maternal uncle to Sipendi 30 was able to iciontify the d€ad bodies as those of cjulian.a and Sipendi respectively.. he ccusod person who was prese?it when the bodies were unearthed and idtified to Dr. Jba$a also said those were thz dead bodies of i-iio wife Juliaa and daughter Sipendi. . 0 . . . 0124

24 The pt môrèt xainaU. report :1 resp'ec ± Ju.liana shows that the hed ad multipI'e 'fractures of the skull resulting in extensive damage to' the braii whlbh was 'the cause of deatri. In the case' of the child Jipendi the dootor observed a gaping hole in the head üggesiig'thatthe head had'beei bttered by a blunt instrument whLbh caused exterrsive braTh in-ury and the resultant death '., 'From all this ev±dence it is"certain that both Julianà" and Sipendi are dead ad that their death was 'caused 'by acts of violence inflictod them. ThéReublic contends that it was IC the accused who caused the deaths of his wife and child which the accrsed has categorically deniedi T prove 'tho charge6 against the accused the ilepublic relies on confessions he is alleged to have made. Lugustin. Nyato (PW.-2) whK is a member Of the peoplots militia said thab during the night at .2 a.rn. ,ch 16th June, 1982 a Ward Sodretary came to him and required him to get other militiamen — 11 in number, so that they could arrest the accused who was believed to have killed his wife and child. So, Augustino in the company of other militiamefl, the 'ard Secretary and the ten cell leader of the 20 accused went to the accus?d and arrestea him. They tied him up with'a rope so that he would not-escape, according to Augustino. He was asked where his wife was. He is al1ged to have said that he'ki1lodL her child because she had sold adobe of local pombe IQOWfl as Ulanzi and realised only seven shillings. He is a2leged to have said that he had used 'a stick to beat up his wise and his child was hit accidentally at the time he was beating his wife. Both the wife and dhild died as a result. Augustine said that the accused then sbowed the arresting parra place where he burned the dead bodies. It ;'ras then the Jard 30 Secretary is said to have gone to call the police from Irafi n ga. Detective 3tatio 3ergeant r:aurus (1-D14) told this court that he was Oe of the poiicorr who werit to the home o the accused. But ifirst the accu-ed was taken from a Primary Court lock—up to his homed ,e was asked where his wi:fe was :tvd ho' is alleged to have replied that they quarrelled aid he heat her up ad she d.ied He is also alleged o lavo said that his wife fell on the child who died as a result ar1d thereafter ho burned them. 1 1

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• 25 - - He is said to have pointed to a direction in his shariha where the dead bodies wre burned. It was then the 'Jard .3ecretary - took the police to the particular spot where a banana tree had been planted relatively rcently. '?hen the place was aug u-o two bodies, one of Juliana and. that of ipendi were oud burned together. In his sworn evideico the accused said that 1 e had ado untrue confessions because he had been tortured. TT,e explained that after the militia pople' had axrested him they tied his hads behind his hack apd hit iis leg joints with run,gus and hZ' that in the course of the torture be made the untrue confessions. .s regards the confession he is LjlCed to have made to the police in the presence of Station Sergeant I'aurus the learned defence counsel argued that aithought the hands of the accused were n o longer tied up he was intimidated into raking ufltrue confessions because :first, the police had a firearm with them and secondly, of the very presence of State instiurent of force - the polices TTe urged that the cOf5SSiOn5 be rejected as having been made under torture. Needless to say, it is the duty of the Republic to 20 satisfy the court that te confessions were made freely and volutarily. The lady and gentleman assessors have advised that the confessions be accented as evidence against the accused because they believe they were rade freely and voluntarily. I shall consider seperately the two sets Of confessions, beginring with the alleged confession, made in the presence of P12 - :ugustinO. t have given very anxious thought to the confession which was made in the presence of the militia men, ..uguotino,. iflcluded, and the Jard Secretary ad have some doubts if it 3o can be said to have been riade freely and voluyttarily. Lccordin.g to Lukas Kapasi, PVJ3, On. uli.e day prior to the night the accused was arrested he (accused) had persistently maintained that his wife was away to Ifuncla - Lukas therefore sought a letter from tb village chairman F30 that 1, 3 could go about to look for Juliaa. owever, tHe Jard Secretary and the group of 12 militia people came in the night accused is said to have imediately confsd to have killed his wife, and 'ne did thiS aftor the wife was a month dead and hurried. That sounds too :ood to oc true. I Can see a real 40 /26

• • • .----- -. S- 26 likOlihobd that the accuOd wa 8 intir,itated by the c'owc1 of the militia men into faking:the cenfesejo,, a1thiigh in vjew of iihat I shall sy later I d not believe it was an, untrue confession. I have in mind section 29 of tHO vidence ct 1967 which reads - "To COnf f oSsi0n. whiCh is tendered in eridence shall be rejcted n the grouid that a promise (or) threat Has been held out to the rso confessing , A-hlesb the court is of opinion that the indcemet was made In such Circumstances io ftd was:o eich : ,. . Lo c' aitue.adm±dei!on of guilt to be rade. I api satisfied from the evidence of :tatien Cergeant ?aurus that wher accused was removed from the Primary Court lock up to where the militia men. had taken hir' he looked normal and that the accused did not complain to the police of having been trtured So whatever inducement, throat or some arm—twisting the militia meT q and the ilard Cecrotary may have employed, to make the accused confess it was not such as would Have drivefl him to make an untrue co,fossio. 20 The seCofld CofosSIon which the accused made to the police in the presence of t5.tion iereant T'aurus appears to me to have bean made voluntarily ai freely. To police had by tlien freed the hands of the accused and mindful that the armed policeman amog them might Instil some fear into the accused when he was being asked questions th e police to]d their armed colleague to stahd away. The accused himself has said that the police did not mishandle him. But even though the confessions can be considered against the accused he has retracted them here in court and it is a rule f prudence that 30 corroborative evide cc should be sought. I like the lady and g'3ntlernan assessors believe that such corroborative evidence is available. The tori cell leader of the accused - P'H, 'lias watir'a, ,ugustino, 72 and Station jergean it raurus (Pz4) all said that the accused showed where tInn dead bodies of his wife and child were burned. The accused himself said in his evidence that he had not known that his wife and child were dead and that ho knew they were with a friend in alangali and ho was exect±ng .. . . 9/27 -

them at the end of the month but h was arrested before the time they were t-o return horie4 If what the accused said was true then he would not have been able to show the persons •metioned earlier the place ihoro his wife and child Sinendi were burned. So he must have l.nown already that they were dead and burned, Assuming he had nothin to do with their death he cannot be expected to have øt reported to any one in his village or the authority. It is reasonabl to conclude that he caused their death. I am satisfied therefore that the confessions can, be acted upon and they hae been amply io corroborated. In the resulti I fid a a fact that it was the accused who caused the death of'his wife Juliaa and the child Sipendi The only evidence we have of the reason th accused killed his wife is that given, by PW2. Auguetirio and that is that she had sold a deba of ulanzi at a price which appeared to be too low. - s 1- ts.7/= Itccannot be lawful for a person to kill his wife for such a reason. Considerirg the forbe that must have been used whe n he assaulted his wife he must at least have intended to cause her grievous harm.. Such killing 20 is said in law to have been done with malice afoet}ought.. As for: the child, whetli:er h killed her by hitti g her' accidentaly when h was beating hi. s wife or his wife c'ushed her head by fal'i On. it when she dropped down the legal pO5itio is the same... He will be considered to have murdered heron the principle of transferred malice.. Section 200 of the Penal Code on . maliceafethought stipulates that where the intention to cause the dbath of, or to do grievous harm to any person and another'person other than the One intended dies one is also.: considered to hre killed t'ne other person with malice aforethought.. From the above reasons I. shre the unan-irns opinion the lady and getlema•. assessors that the accused is guilty of murder on both ccits as charged and I covict Tiim accordg1y.- J,.... ITroso Judge 0 0 . . . / 28

i- 28 - /I2/I985. llocutus' I di..d not kill my is. all. Charles Ibrahin Mdagasule yu have bn foufld iilty and convic.td on two courts .f rurd.er, The only, s C-4i. authorized by law is to suffer death by hariging Although you have been convicted an te tq cits&rily one sentence can be passed on you. I therefore senteflce you to suffer deat 1i by hanging and it is so directed. 11roso 10. Judge . Rights of appeil oxplained Assessors are thaiked ad disc 1iarged. At I ri ga . J.A. Piroso 6/12/1985. Judg