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- 81 IN THE HIGH CO1JTT OF TANZ ANIA AT. IRIITGA ORIGIE:L JiTLISDIOTION (DoDoMt RLGIiTRY) Criminal Sessions Case No. 4 of 1972. The Republic - versus 1 44PL 1973 Juma QJ'IosnodsoSalohka Charge:- Murder c/s 196 of the P.C. J U D G E N E N P AG. J. The tvo accused persons stand charged with the murder of one Laurence Haigimana at Taka:Thako on or about the 8th of May 1971. They have both denied the charge and set up the defence of alibi. The doctor who exained the body detected head injuries. The body was discovered lying at a sechudod spot with signs of its having been dragged from the house of Iiarianu. All this is ovidonnce that the deceased died through foul play. The court is satisfied; and so holds, that there can be no possibility of the deceased having not his death through any other cause than foul play. The doctor went on to say that intc-rnally ç the injuries ooasioned 0 W damage to the brain. This damage plus the resulting haomorrhage and shock led to the death of the deceased. The body having ben identified to the doctr by a cousin of the deceased, there can be no doubt, as the court holds, that the deceased is indeed dead and there has been no dispute about it, The only issue is the identity of his killer or killers. The people clain.ing to have witnessed the killing are Marianu Chaula and Anna who had accompanied her omploer to sleep in Mariamu 1 s house. Anna's employer, Anastasia, now dead, is said to have been having nice tine with one of the two people who fatally assaulted the deceased. Marianu admitted to have assisted the assailants in boiling water to wash the deceasodand to carry the body to the sochuded place where it was fowad some days after the fatal assault on the deceased. Farianu is to all intent and purposes an accomplice whose ovidencenoeds caution if not corro- bo:ation before any conclusion can ho drawn from it. What is more her evidence in court was so much at variance with her statement to the Police that even if shewa s not an accomplaco her evidence would have to be taken with considerable caution,. The otho' story she cl ave to the magistrate at Mazombe was likewise different from her other two versions. . . . .. .../2. • •.. .. - -- - ,.. . ...-- -- ron in court she could not help cntradiotin herself when she was cross-exoiiinod So capricions was she that She loft the ii:rossion that shw was hiding the truth or part o it ?owever her evidence that the deceased was killed in her house is corroborated by the dragging marks leading :[ren there, There can therefore be no doubt, and the court so hoide that the deceased was killed inside Mariamu' s house. It is the resccution case however, that those who killed coeenscd ar the accucd The identity of the kiJi.or depends on several considerations. If it is recalled that the accused have put up some alibis, bhon the exact date when the deceased, died is inportant The socond thing to consider is the accessibility of I.ariamu' s house to the people at large and to the accused ijarticular and finally whether because tho other oyc-witnosr' refrained from reporting the incident the evidence of Marianu could in any way connect the two accused to the offence, The coil-loader Obed Sanga toJd the court that the body was discovered four or five days after ho had settled the quarrol between the deceased and the accused Juma Mohened over a jacket. The discovery of the body was communicated to the Police on 11 th May soon after it was mdc by tJ.e vilic,;ers at Nakan'bako. If the evidence of Obed io an:itiL1.g to :o by then tho deceased must have died on either the 6th or the 7th Ma y 1 971 The doctor who conduct ed the post mortem on 1 4th May said the ciocuaso died five days prior to the post mortem. If his opinion is taker. into account then the deceased must have died on the 9th Cf May. The court there- fore finds 1 , c ff cr1 u to f±" -' c e e fo c tho c' o"th of the deceased but such date lies between 6th of May noel 9th hay. Bearing in ninC. the evidence of Maria Musa, a no:.(.hiJoua of MariaIJu to whom she handed her house keys before she disapcareJ from i'Takambako the doctors categorical assertion that doa't;ii occurod 5 days prior to the poet mortem would apoar to be tenable. If it is assumed further hIariamu dir aoaaod from hor.io on the meaning following the homicide. .;,ath would have therof ore occerod between the 7th and 9th May ifjMr:o:u is taken to be correct on the date Narienu handed her the key to iier huusu and .Le .. The cell-loader' s evidence that death was discovered 4 or 5 days after the jacket dispute confirms the dates e 6th and. 7th only, In their defence the aecucod both ad.m..t to have visited • • Icrianu' s house on 611¼ 6 L O rey 1 97 Accord ng o thou their puxose was to drinK ebon win.o ez wnecn •rmamu was a reputed seller. Their presence at Mariamu's nouse is confiimed by their colleague and conoanion Lily Mandenu whom they invited to eat and drinic in Mariauu's Jouao, the aceused did not refer to this invita- tion but fily I•tJcrr imir. sod the court as a n(.n-)artlsan witness with no cause to make 'higs bad for the. accused. The court there- fore satisfied that th. two accused invited him to supper and bamboo wine in Nariamu' s beuc, Their hostu Fs must have been very friendly to then if she coulS. c; out er'tain then to supper' Her denial therefore that eho yari it:n'.te with the accused Jrna is false boceuse it co. - c' c 1ir 5u o LO UC P0 1 icc when she adhited being intimo.to with th: accused Juma, .tnd according to those witnesses who intcrvencd ia the jacket dispute between Jura and the deceased. Juma :[el't so iirch -it hone in I''ans bed th;it they were left with the iL rossion hhat ho was b.,m !iusband. Ally Pdeuu said that the w. accused and 1'hrinmu oocortod him froii Marienu's house at nirht. when ho Darted with them they were still with Mariamu a±ia tool: cho d.rocton of her house, There can thus be no doubt that the accused were at Marianu' s house oii one of the nl[:hus during which the o±'i once was comnit'Ged - ?here s further evidence that Juma ounrreTLlod with the deceased over a jacket during the day. From his own defence JuLia must have quarrelled with the deceased on the sarle day because he denied being at Mariamu's house on nay rth.a der, T11' ±lirmr 'rr employed Juna was driving a different vehicle from Ally Mndenu, Simon and Ally Mndenu drove the sane vehicle, . a . • /3 • • 0 0 --3- The only day the three of thorn net at liakaubako is allo ad by the accused to be 6th. The court is satisfied and so holds that the quarrel over the jacket occured on the same day as the in- vitation by the two accused to Ally Mundernu to sup and drink bamboo wine with thou at Nariauuts. It follows therefore that the deceased was at Makaibako the same day. It stands to reason that Narianu muSt be telling the truth about the presence of the accused in her house. In this she is corroborated by Ally Mundonu who she confirms to have visitud her house that evening. Even if she contradicted herself on my points, she cannot be doubted on this point. The court finds it to have been roved that, con- trary to the denials of the accused, they both spent a night in I:ari2uauts house on the day the deceased quarrelled with Juna over the jacket. So that even if the accu3od prodmco receipts as Juna did that he was at kngema on the 8th it cannot be gain said chat he was at kariamu' s house on one of ihe nighcs the offence could have boon committed. In his evidence Ally Irundeuu said that the accused accompan- ied him in his lorry to Mponga Csnp the next morning. The accused give this date to be the 7th. Having found that the deceased could have died either on the 7th or 8th of May, then Mariemu's evidence that they were present in her house on the day the deceased died cannot be dismissed altogether. The accused's own defonce would support it. That ordinary villegors have diffi- culty with dates is a notorious fact worthy of judicial notice. It is no wonder therefore that Ally Tndemu and the Ocll-loader should be unable to recall the dates on which they saw the accused at Ifariauu' s houe. The witness Maria was, however postitivo that Hariarau took the key to her on the 9th promising to return from Hyololo the same day in the evening. It is not certain whether Maria is sure of her dates. She oxolainod that she remembered the 9th of May because it was a Sunday and she wont to church to pray. That may well be, ht the interval between the incident and the trial was so lon' that raencri s wore hound to fail. Looking at the evidence as a whole, there can be little doubt that the disappearance of Harisnu from Makanhako closely followed the death of the deceased. The possibility of her having handed back the key to Naria on a date other than the 9th cannot be ruled out. The witness Anna said she saw I:Iariajou boil water after two people had assaulted and seriously injured the deceased. Her evidence must be taken with caution because shc displayed an uncanny indifference by refraining from reporting the incident soon after the killers whom she alloped to have fightoned her, loft. Her performance in the witness box was, however, brilliant. So intelligently did she give her evidence that one is loft wonder- ing whether she genuinely could not recognise the two oople she saw assaulting the deceased at night. Be that as it may the evidence of Ally Nandemu lends support to Larianu's allegation that the two accused wore present in her house on one of the nights during which the court has found the i1cic1ent could have occurod. Helying upon the majority opinion of the assessors I an satisfied that the evidence as a whole lends support to the conclusion that only the accused could have killed the deceased because so r.iuch of hariarn.u's evidence is corroborated by independe- nt testimony. Anna recalled to have found three peonle in Mariarcu's house. One of the trio left after it grew dark. The evidence points to the person who departed being Ally Nndonu and those ho left behind to be the two accused. The court is therefore satis- fied that the to people who assaulted the deceased could not be any other ersons except the accused. Marianu' s testimony that the accused assaulted the deceased to death dovivos sufficient support from the totality of the evidence adduced by the prose- cution. In agreement with the majority of the assessors, the court finds it to have been proved tht it was the accused who jointly assaulted and killed the deceased. - .-'-- - - -'- _I 1 --S -4- The accused were sleeping with unattached womon whom anyone could have visitod at will and the waythe deceased is ro:Dor t o d to have entered the house was Ifordiblo as to put those sleeping with the two women who wore not their wives into fear. Fiariamu' S denial that she was sleeping with the accused Juma cannot be true.. She wes inime uc with illflL jo intime e that Jiie din not Line it nece- ssary to rise from her bed during the jacket disputo. Ho wanted the vrorlcl to know that Hariariu was his girl and that whoever doubted this fact should see him in her bed... The witness Anna said that the two non slept in two separate rooms with the two women hariamu and Anastazia. Her evidence must be true, because that is what Mariamu told the Polico, although in court she came to change her story. I am thus loft in no doubt that only the accused could have killed the docoasod, Accordingly I find then to be the persons whom Anna saw assault the deceased to doath. In their majority opinion the assessors felt that the accused killed the deceased without malice. There is no ovidon.ce of motive or preparation for the assault. That happened was a reaction by people who nust have feared for their saiocy. The iact that the accused seized the firewood lying inside the house for their 'reapons indicates that they could not have planned their attack on the deceased. After all, how coul1 they know that he would cone in the middle of the night and forcibly enter to fighton thom in their intimate sloop with their girl friends. The accused could only be guilty of manslaughter and accordingly they arc so douncl and convicted. N. H. A. Kwikima Ag.Jud;o. ccord: Both the accused are first ofondors. f gation: The two accttsod feared for their lives on the unexpected -rl iti norcoull entry by the deceased. There had been a quarrel over a jackc-t in the day. The accused could not know that the intonder was the deceased. The accused are first offenders. They have lost their jobs as a result. Their relaticos depend on thou. The accused, JUIIa, the only male member of the family, has lost his father-. Juna is the only broad earner of a family of two wives and six children. The accused could be given light sentences. The 2nd accused has lost both his parents, has a wife and four children. The accused should be released to and look after their children. Sentence: The death of the deceased j avolved woman who, next to iquor'aro the chief source of troggic fighting. When they wont to amuse thonsovos, the accused hardly know that such calamity would befall them. Anyone surprised in bed with a women has cause to f oar for his life and nay attack the intruder to prevent his own arrest or death. From wht counsel for th accused has said, the accused dosivo somelenioncy.. They are each seiatenceci t'o foru years inrisouncnt. Appeal rights explained, I .- "-- Ii. H. A. Kwik ma /IcHs. A. Jud. - -- ----------------------- _(____