19771027 TZHC Singida 1

I IGH .QF TANZANIA

ATSINGIDA

ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 76 OF 1977

THE REPUBLIC

VERSUS

PHILLEMON HUSSEN

HAMISI MDABI CHARGE: M U D E R c/s 196 of the Penal Code 11

J U D G ME NT CHIPETA, J. .4 P. I The accused in this cas'e, Phi11em6n slo Hosea stands charged with the offence of murder c/s 196 of the Penal Code. The Republic has alleged thaton or tout 7th October, 1975, in Singida Regicn, the accu4ed murdered one Gidamuguja s/o Mornoya. The acused denid the charge. The prosecution's evidence isto the effect that on or I about 7/10/75, one Enos brewed pombe f or people who had cut poles for constructinq his house. Although only about 18 people had taken part in cutting the poles, very many other people w:nt to the pombe party, and it wuld appear that some of it was for sale. Present at the pombe party were Wanyiramba and Barabaigs, and they all sat in various groups. Those people who had taken part in cutting the poles, apparently all of them Wanyirartha, were given their own pombe some of which was in a pot. These people were drinking in their own group some 70 paces from the rest of the people. At about 300 p.m. or 4.00 p.m. a dispute arose over the. pot of pombe. The Brabaigs wanted t partake in the dr nking of the pombe which had b en given to the Wanyiramba who had taken part in cutting the poles, while the latter were trying to restrain the forrn.r from doing so. There was a hysicl struggle betw.en the two groups for possession of the pot. The Wanyirarba were tryirg to take the pot into the house while the Barabaigs were trying to

take it away from the Wanyiranbi. The struggle over the pot worried the owner of the pot one Wándege d/o Malula (P.W.3) who then rushed to the scene of the struggle in order to take the pot away lest it he broken. As P.W.3 stooped to pick up the pot, the deceased, who was Barabaig, struck P.W.3 with a stick on the left side of the head ner the ear. AS a result of that blow, P.W.3, who is a Nyiramba by tribe, fell down unconscious and was apparently taken for dead o reupon th accused picked up a piece of wood, apparently firewood, and struck the deceased on the left side of the head above the ear just as the deceased Was preparing to strike P.W.3 again. As a result of th t single blow, the deceased fell down and never stood up again. 0 —2.- From that.mom&-nt, or at about that time,.. the. Wanyiriha and Barabaigs started fighting on another, on tribal basis with complete abandon. People ran about eithtr iii flight.or as they £ ought. After the deceased had fallen down, one Hamisi sb Mdabi, a. Nyiranib by tribe, and who was jointly charged with the accused but has since died in remand prison, also picked UP:C piece of wood and struck the deceased with it as the deceased lay sprelei on the grotind. In turn. somc Barabaigs assaulted the aëcused. and Hamisi and at least thre other,people. The Wanyirarnba then took their wounded in the house of Enos, no doubt to save them from further

assaults from the Barabaigs. . , Eventually, apparently after the Wanyirombá had run awa or baricaded Lhemselves inside Enos's house,. the Barabaigs also left scene leaving the deceased still lying on the ground 0 -. Lat.'r, however, they return d and Carried away the dead body of h deceased Who had died at the scene, and took it to hs house where police found it next morning.. . News of the fig hit reached ti ie police whowent to the señ - that s.une evening, and on inform ati on received, they arrested the accused and Hamisi, and t ok them and other injured persons to Iambi hospital. Next day police took the dead body to the hospital wheje Dr0 Namilikua (PW2) conducted a post—mortem examination on the body of Lhe deceased. As a result of his e;amination P.W.2 observed the followinc injuries: (lra 4' lWg±rreglà èUtwoihd'oñ 'the ieft 1 ie Of' the h:d above the car extending down to th&borie resulting in a comminuted fradtre of the temporal hoñ and.blding in the epiduka •rnd subdura, thus, causing compression of the brain tissue; (2) two punctured wounds on the left cheek and a fracture of the chek bone; (3) a 4" long but superficiai.wund on :he region = below' the loft ear; (4) a two—inch lông wound n thléftlbow; thLCI (5) superficial bruises or the left shoulder, left sIde of the back, the right scapula and lft iliac crest. P.W.2 Lhen ppined th t the death of the deceased

was due tb crebral haemorrhage as reiilt of severe bad injury. He furth-r opiñ&d that th fatal injury was that W}- iichwas inflicted on the left side of the hzed above the ear, and that ah - avyblflt iqLapon wasusdto cüse those injuries. :.J-Iecôuld 1it say, howev..r, thth r iLd "ot say, " -i wh those mnjuri.s were causEd by on or more blows. In his UflSWOLfl staternnt the c' -used denied haring assulted the deceased or aiiy other person, and added that on the cntrary some Barabaig a;saulted him as he Want to rescue P.1.3 To support his allegatioi1 that h was assaulted, the defence produced aP.F.3 which shows that the acused sustaned injuries. His Legaion th:t he nvr aSsaulted anyone is suppóted by tho 6vidence. of his mothr (D.W.2). In his final submission, Mr. Mbezi, l:arned couris l for the defence, submitted that although th killing took place in . broad daylight,. the urrounding ,cir.urns npt,vpurb],e' zi for P.½.l to correctly idetify the p rson who struck the faal blow in that P.W.l was 49 paces fr9m th scene, that thr was a 1, commotiorL both during the struggle for the potend after .P.W.3 had b n assaulted and the resultant fight between the two tribes which suggests th t the wholt pl3ce was swrminq with moving odis. In his vi w, .-the circumstances su igest a r-' asonable possibility that P.1.l's yi w was obstructed and so could h3re made an hot -i st mistake in his

id it fic at_on. S S -..3- Learned counsel submitted that if the court believed tha P.'J.l did in fact s a the accused strike the deceased on his had, it should hold thut it is not certain who caused the fatal injuries, in which case the acused would only be guilty of assault, unless the prosecution proved common intention which, in his submission, the prosecution hed failed to do. He wu'nt on to submit that if the court finds that it was the accus d who inflicted the fatal injury, the killing must have b en done in defence of p.W.3 or in defence of self 0 On the qustion of the evidence of P.W.l, Mr. Mchora, learned state ':.torny, submitted that P.W01 hid ample time and opportunity to s a the accused because (1) the incident happened in bread daylight, (2) he knew the accusod before, and (3) thet the actual corimotion started after deceased hd struck P.W.3. On the question as to who inflicted the fatal injury, the Lamed state attc;rney invited the court to accept the evidence of P,W.l on this point, which is supjorted by the evidence of the doctor, th - t the accused hit the deceased sin the left side of the h ad above the 1sf t esir, and so hold that it is the accus:.:d who caused the fatal injury. He went en to submit th it even if the court were to hold that it had not h en proved as to who caused the fatal injury, froc: all the SurrouriAnU circumstances the court asuld

hold that there was common intention. On tht question of self-defence, learned state attorney submitted thet self-defence did not arise because the acused did not do anything to avoid using violence, that it was not absolutely necessary for him to use violence in the circumstances, and that in any case, the force used and the nature of the weapon was not .rc ason able. After my summing up to the gentlemen assessors, the first gentlemen assessor found the accused not guilty of any offence because he was not satisfied th tt P.W.l correctly identifi the person who assaulted the d ceased in view of the long disanco from which hi sow the fight md in view of the fact that thire were many people. Ta second gentleman assessor, on ;he other hand, accept the evidence of p.W.l and found as a fact that it was the ccüsoU who killed the deceased, but that he did not do so deliberataly. He then found the accused guilty of manslaughter. On th evidence, th•:re can be no thspute that a person by the name of gj s/o Momoya is dead, and that he died a violent d roth. The only questions are as to who caused his death, and whether the killing amounted to murder, manslaughter, assault or no offence at all. As I told th gentlemen assessors, the prosecution's evidence As to who assaulted the deceased is that of a single witness - P.W.l There are numerous authorities for the proposition that subject to

well-known exceptions, a fact may be proved by the testimony of a single withess. However, wherc there is evidence of a single witness respecting identification, th-:re is ned to test such evidence with the greatest :.a: especially when it is known th a t the conditions favour:.flg a corr.ct identification were difficult. In such circumstances what is needed is other evidence, direct or circumstantial, pointing to the guilt, from which a trial court can reasonably c..nclude that the evidence of identification, although based on the testimony of a s ngle witness, can safely be accepted as free from the possibility of error. IC. I •.- I -4- Having seen and heard P.W.1 as he gave evidence, I am in no doubt at all that he is a truthful withess who described what he saw or what he honestly believed he saw. To that extent, theref-. I respectfully agree with the second gentleman assessor that P.W.l was not in any way trying to frame the accused0 That, however, does not resolve the quaston O: correct identification 0 A person may quite innocently give an account of what ha believes ho siw, and yet be quite mistaken0 The next question to be considered tharfore, is whether P.W,l, although truthful, could reasonably have ben mistaken in the circumstances that prevail ci at the scene0 It cannot be gainsaid th :t the incident hepp?ned in bro ad day-;( and P.W.l knew the accused b :fore.

Ind.:ed he is aecusacJ's brother-in-law0 The Republic further argued that P.Wl must have correctly id-niifijd the accused and must have seen on which part the deceased's h ad accused's blow landed because the fight II break out till after the dccc ied had struck P.W.3. Whether that :L;: so or not can only be discovered from a close examination of the evidence of P.W.l and P.W.3. To start with, P.W.l and P.W.3 expru-;sly said th t there were very many people at the scene and had started drinking since morning0 The physical struggle for the pot was b-t- en cnc group and anothr, possibly all of whom were not sober by that hour. That struggle, therefore, could not hcv been a p.. aceful one. It is true that the fighting was sparked off by the assault on P.W.3 by the deceaed. But is it safe to say that there of te-r the sequence of events xcurred in the mann-:-r in which P.W.l describ:d them? This is whet P.W.l said in examination - in-chief on this point: "Then I saw many people moving the pot from one place to another. Deceased was also present. When they were n ar the house, the woman, Ncimalul ., was hit by the deceased, and she fell down. Then Philleor: hit the dcc: ased on the left side of the h ad. There were many people involved J.n the fight." In cross-examination on this point the witnass had this i:, say: "There were very many people0 He invited 18. But many other people

came0 I c an ot say the number. - 4 When the woman was hit I was about 49 paces away. The Vjanyiramba were aiiinoyed after the woman was struck. They picked up sticks and started fighting right there. It was a battle beten Wanyiraraba and B:raboigs. Others ran away. Thoc who did not run aoay took part in the fight." The witness added: "People were falling down there0 It was ordinary dust, not like dust stirred by animals0 As they used to move about I cannot know who hit I know Gadicia Joori. He was involved in th fight. I cannot say whom he hit or by whom he was hit0 Th...re j• confusion." •0 0 / -5- Further on in cross-examination this same witnss said: "Betwen, us and where the woman and the deceased were, people used to mov about as they fought at random, oven as Phillemon hit the deceased.f From the foreg.. m g evidence of P.t1.1 1 the picture that emerges is tht th;rc was commotion both hf ore the actual fighting broke out as well as when the fr -f or-all fight started. To this evidence we must add the fact that P.W, 1 was not at the spot where the fightinj t ok place, but se.m 49 paces away with people- moving about between him md the combatants, either in flight or as they fought with complete abandon. Can it said, therefore that the circumstances oere SO favourable fur a correct identification as to Lave no room for the possibility of an error by P.1.l? In my

considerevow and on the evidence of P.W.l alone, it would not be safe to hold that there w s no reesunable possibility of error by the witness. The qu..stion di .t should now he considered is whether th.r , is other viJencc, direct or circumstantial, pointina to guilt from which this court can reasonably conclude th t th &videflca of idntification, although b.sed on the tstimuny of P.W.l alon, can safely bL accepted as fr.a from the possibility of error. On this point the Republic submitted that P.W.l's cviden th,t the accused struck the deceased on the left side of the hed abcve the r, and th et P.W.3 was struck by the deceased on th.. left side of the had his b en corroborated by the evidence of the doctor and 0 rJ3 resp ctively. With groat respect, I find nothing in th•., doctor's evidenc:e which suggests as to which injury was caused by the accu;ed. All the serious injuri.s on the dece'e were confin.d to .tha left side of the head. Since th re is abundant evidence that Hantisi struck the deceased with a piece of wod, how is one ohio to say that a particular injury was caused by the accused. And even if we were to say that P.W,l correctly saw the part on ohich the blow 1 mded, is it reasenable to say the: that corroborates P,W.l's evidence th tt the accused is the one who struck the deceased? I ath not persuadad that the evidence of P.W.3 or that of the doctor 1d.ks the

accusd with the assault on th deceased. in all the circumstances, throfc,re, I amconstrain:d t held th .t it cannot reasonably be said th,:t th. re is any evidence, direct or circumstancial which corroborates the evidence of P.W.i. That being so, in view of my finding th t it would not be safe to hold that there was no reasonable possibility of error by P,w.l, an -. since it is for the prosecution to prove its case beyond reasonable doubt, I hold, in agreement with the first gentleman assessor, that the evidence of identification isisu ficient to prove h - t it is the a. -.cused who assaulted the deceased. On these grounds, I am of eh.. opinion that the prosocuti.e has failed to prove its case beysnd reasonable doubt beyond reasonable doubt against the accused. I therefore find the accus. not guilty, and I duly acquithim forthwith. The accused must he released from custody forthwith uflles$ othrwise lawfully detained. ,1 B.D. CHIPETA

JUDGE Dolivred in open court at Singida this 27th day of Octcbcr, 1977. 7, - BD'-i]PETA - JUDGE