19770428 TZHC Dodoma

p

IN THE HIGH COURT OF TANZANIA

AT SINGIDA

ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE 1,100 97 OF 1976

THE REPUBLIC

VERSUS

JUMA HUSSEIN

HANISSI HUSSEIN CHARGE; N U R D E R C/S 3.96 of the Penal Code0

J U D G M E N T MNZAVAS, J. The accused, Jum Hussein and Hamisi Hussein, are jointly charged with murdcr c/s 19E of the Penal Code 0 - The prosecution case isthat the two accused on or about the 9th day of October, 1975 in Kiomboi district, Singida Region, they jointly murdered one, Kanjo1aa s/o Giraigi. Both accused have pleaded not guilty to the charge0 The following facts were not in dispute: On 92.75 one, Ic- ema Danidoda (PW7), left his village and came to Lugangi village to look for millet to buy0 He was accompanied by two other Brabaig tribesmen, Gidainburu sb Dewidedo and Kanjolota s/o Giragaigi. They failed to get any millet0 AS they were on their way home they visited a house of one, Issa, where there was liquor 0 They decided to quench their thirst up to about sun—set when they left Issa's house0 As they were returning to their village they were subjected to violence0 Igemo Dawidado, (PW7) 7 managed to run away leaving his friends, Gidathuru s/o Dewidado and Kanjolota s/o Graigi behind. Apparently Gidamburu slo Dewidado and Kanjolota Giraigi have, from that day (927), disappeared from the village. It was the Republic case that Kanjolota s/o Giraigi was murdered on that day - 9.2.75 and that the accused murdered him. In support of the charge against the accused one, Shukya BarnabaS (PW1), related to the Cour that on the material day he was at Issa's place drinking

pombe. According to hi; testimony he left s$s home—stead at about 7 p.m. goirome, accompanied by his brother-in.-1aw one, Raymond, (Pw2). The witness told the Court that he was already drunk at the time 0 He testified that as he was going home he heard in front of him someone crying He ran to where the cries were coming from and, according to his evidence, he met Juaa Hussein, (1st accused), standing, near a person who was lying on the ground0 Juma was hiding a panga and, according to hLs testimony, confessed to him that he had killed a Barabaig., It was his evidence that Juma asked him to help him in disposing the body into the bush. On telling Juma that he had never touched a dead body, Juma is reported to have threatened that he was going to kill him (PW].) as well if he ( not help in disposing the body. According to Shukya's evidence -. all this time Hajriisi Hussein, (2nd accused)r was standing nearby unarmed. Shukya further testified that he helped Juma in carrying the body to a •./2 FA valley in a bushy area where they disposed it. He said he had to comply with Jumas order to save his own life. The withess also told the Court that Hamisi ) (2nd accused) 1 also helped in the disposal of the dead body. It was his evidenc that he observe(' a cut-wound on deceased's neck and swellng on his head. After disposal of the dead body the thess went home. He did not report to

his cell-leader or any other village authorities what he had witnessethbecause, as he told the court, the first accused had warned him not to divulge what he had seen. Accor.ding to his evidence he did not report what had happened because he feared that the first accused would Lil him if he did. Raymond, (Pi.i!), t'stified to the court how on the material day he left Issa's house going home accompanied by Shukya, (PW1). According to his evidence as they were going to their respective homes they met Juma Harnii (1st Accused) v who was going in the opposite direction. The withess said that Jurna was alone and that he was not armed The withess further related to the Court that when they mt the first accused, he (1st accused), started talking to Shukya, (PW1), and that he left tLrn talking and proceeded his way back home. In his estimation of tira it was about 3 p.m. when they met Juma Hussein He said th.t Juma was alone and that he saw no one lying on the ground. Redson Mwarembe 2 (Pw3) 9 a Probationary sub-inspector, related how on 17/2/75 he received a murder report from Lugangi village. How he investigated the case and how on the same day he arrested the accused persons. It was his evidence that it was Shukya,. (PW1), who had told him that the two accused were the mUrderers and that it was the same Shukya who first led him to the §cene of crime and l.ter to a valley where he

discovered what appeared to be bo9frof a human-being and a pole. The withess further told the Court that 1 he alleged scene of crime he found beads. Inspector Mwakatund . (PW6) 2 related to the Court how he conducted an identification parade and how a witness, (PW7), identified the first accused as among - one of the people who subjected him and his two friends to violence on the material day. According to his $ evidence the witness (Pw7), failed to identify the second accused. Igema awidado, (W7) related to the court how on the material day his two companidns, Gidamburu and Kanjolota were subjected to violence by menthers of Nyiramba tribesmen. He said that he managed to escape and ran away leaving his two companions (who are apparently his brothers), behind. It was, according to his testimony, about sin-.'set when the attacks took place and that he clearly saw their ssaillants. The witness also told the Court how he led the police to the scene of crime and how later he identified their assaillants in an identification parade. Senior Inspector Shogolo, ?W8) 9 testified to the court how he collected and sent bones and 1st accused's shirt to tie Government chemist for analysis. The Government chemist ws requested to examine the bones and say whether they are of n human being. As for the shirt the chemist was requested to examine it and say whether the stains found on it were

human blood. The chemist's report (exhibit B) is to the effect that the bones were of a human-being but that due to the fact that no full bores were sent it could not be determined as to whether the bones were of a male or female person. AS for the shirt no human blood was detected on it. In his dcf-nce, given on oath, the first accused said that he was no where near the scene of crime on the material evening. He said that on 9.275 he returned to his house from his.shaniba at 1 /3 -.3- about 4 p.m. and that he remained at his home—stead till next day. He said that Shukya, (PWl), gave a false story against him because they had in May 1974 . quarreled over pombe. He also argued that Igerna, (P7), identified him as otie of their assaillants because prior to the ideitification parade they (the two accused) had been shown to Igema by the police to whom they said - "These are the people who killed your brother" 0 The second accused who also gave his defence on oath also advanced alibi as his defence 0 Like the first accused he said he was all day in his shamba on the material day0 He returned home at about 4.15 p.m. and, according to his defence he remained in his house till next mornir.g. As to the evidence of Shukya that he (2nd accd) was at the scene of crLme and that he had participated in disposing the body the accused said that he had quarreled with Shukya over a woman sometime

in 1974 and that this was the reason why Shukya had decided td tell lies to the Court so as to cause him his undoing. After my long summing up to the gentlemen assessors they were both of the opinion that the first accused was guilty of murder as charged. They found that the second accused only participated in hiding the dead body 0 The learned $tate attorney argued that although Shukya's participation in hiding the dead body made him an accomplice in the commission of the crime s his evidence, it was argued, should be acceptd as a truthful account of what happened on the material evening. It was the Republic argument that the fact that it was Shukya who first showed the police the scene of crime and later the place where a dead body was dumped indicated that Shukya was a truthful withess despite his participaton in the commission of the crime as an accessory after tha fact to murder. It was also ai'.gued that Igema (Pw7), identified the first accused in the identification parade as one of their assaillants without any hesitation, The learned counsel further argued that in dealing with the question whether Shukyas evidence had been corroborated in material $ particulars implicating the first accused with the murder of the "deceased", Kanolota /o Giraigi, the court should be guarded by the decision by the Court of Appeal in WANJA KANYORO KAMAU V R (1965) E.A. solo It was

the.prosecution argument that on the facts the 1st accused was guilty of murder as charged and that the 2nd accused could Se found guilty as an accessory after the fact tomurder. The learned defence counsel on the other hand argued that Shukya' s evidence that' he saw the accused killing a Barabaigi tribesm should not be accepted without corroboration as, it was argued, Shukyn had aided and abetted the commission of the alleged offence and there an accomplice. It was the defence submission that even if Shukyc's evidence that a Barabaig tribesman had been killed on the material evening was to be accepted, there was, it was argued, no evidence that the Barabaig killed was Kanjolota s/o Giraigi. In this case the case f or the prosecution stads or falls on evidence of Shukya, (PWi), and that of Igema Dawidado, (PW7),. Starting with Shukya, I saw him in the witness box as he testified to what he sa:d he saw on the material evening, and I have been able to form some upression of his temperament and demeanour. I amstisfied that he was proved to exaggeration largely bcause he asisted in hiding a dead body. He is clearly not the J ...000/. According to ) ..s testimony the witness identified the first accused as one of the pcaple who had attacked them on the said evening 0 The witness fElled to identify the second accused0 For an identifLcation parade to be of any value the procedure as

laid down by the Court of Appeal in REX V IPANGO MANAA(1936) E.,A,C.A 29 ihou1.d strictly be adhered to by the police officer who conducts the identification parade0 The foliowinq are some of the things that have to be done in a properly conducted police identification parade: The accused person is always informed that he may have an advocate a his friend present when the parade is being condu:ted. In this case this was not done0 It it is only one accused he is to be placed among at least eight persons who are, as far as possible, of similar age, hight., general appearance and class of life as the accused. This is not what inspector Mwkatundu did0 Only twelv3 people were paraded including the two accused persons A iJ:re, we.:e two accused persons there should have oe.er at lc st'h teen ether people I&Lthe identification parade. The evidence ows that the people paraded in the identificeti:n parade were civil servan:s in K±omboi It certainly cannot be said that civil servants in JKomhoi are of the same appearance and class of life as the two accu• d persons who were humble Wanyirambas from rural areas. This irrec.ilarity alone could have led to first accused being wrongly identified as one of the people who participated in the commission of the alleg.i offence. Even if for tL sake uf argument it is to he held that the identification parade w properly conducted it still leave a

lot of doubt as to how the ';tnoss. (PW7 could have identified the first accused as one of the perpetrators of the alleged crime taking into account his eviience in—chief in which he says when cross- examined by the defence ...........The two peoole werE: saying to us tsp STOP". I did s not look back when I heard my companions being assaulted. I immediately ran away. When I saw the two who attacked us they were about 16 paèes from me. ------- I clearly and ¶ividlY saw the two people who assaulted my companionsr. From the above evidence it cannot be said with that certainty required in a cimina1 charge that the witness, (PW7), had sufficient time to identify their assailants. His evidence cannot therefore be said to have corroborated the evidence of Shukya, (PW1), that it were the two accused who conrn:ittc-d the alleged offence. There were in this case other vital questions which remained unanwered by the prosecui.ion: It has not be ri proved that the said Kanjolota Giraigi, has actually died. No dead ody was recovered and identified as that of the said Kanjolota Girni'ii. There was of course no dispute that bones of a human being were fe nd in the valley in which Shukya told the police was the pace whc e they had dumped a dead body of a BarabaiCj, but there was no suqgcs on leave alone evidence that those bones were the remains of KanjolotE'. s dead--body. As argued by e

learned defence counsel those bones could very well have 5elonged :o the ¼.ther Barabaig. Gidamburu Dewidada, who is apparently also missing from the village since the day of the alleged incident. It was the Republic argument that on the evidence tendered tL Court should presume that Kanjolota Giraigi has died. With respect to I • —6- the learned state attorney ) the said Kanjolota disappeared from the village only about two years ago0 May I point out that even in civil matters it requires seven yirs before a court will normally presume death 0 See the decision in KIMWERI v R (1968)E,A, 452. Now it requires 5 years Section117 of the Law of Evidence 0 May I also mention, if only for argumentés sake, that even if Kanjolota's body was discovered and identified, medical evidence as to the cause of his claath was also lacking0 Having found that both Shukya (PW1)and Iema,(PW7) were unreliable witnesses and taking into account the surrounding circumstances of the case as I have already mentioned above, I am far from being persuaded that the prosecution has proved the charge against the two accused beyond all reasonable doubt, I find both accuseds not guilty of the offence of murder and I accordiflgly ordar that they be acquitted. DODOMA / N. S. MNZ'VAS 284'4/77 JtJDGE'\ yimo for the Republic Ibezi for both accuseds. IL