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IN THE HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL JURISDICTION (D000MA REGISTRY) CRIMINAL SESSIONS CASE NO.92/4 THE REPUBLIC VERSUS NSAGHAA SIO MDAMU RAJABU GALINDA SAIDI Charge: Murder c/s 196 of the Penal Code. J U D G M E N T 1"INZAVAS J. The two accused persons 4'lsaghaa s/oMdamu and Rajabu Galanda s/o Saidi are jointly charged with murder c/s 196 of the Penal Code. It is alleged by the prosecution that on or about the 11th day of June, 1973 at Kinyarnwenda village in the district and region of Singida the accuseds jointly murdered two girls namely GILl D/O MAJUNJU and SIRI D/O HONGOAO Both accused persons pleaded not guilty to.the charge. One, Linje (P1kr1), grand—father of the two girls testified to the Court that one day in June 1973 the two girls left home to retch fire—wood. According to his evidence the girls left their house at about 12 noon. He told the court that as the girls were late in returning from where they had gone to fetch fire—Wood he became impatient and that he, accompanied by his daughter Matika (PW3) started looking for the girls. He related to the court that they found the girls lying dead a few paces from a foot—path about 150 paces from his house. The girls bodies had multiple injuries and that their loads of firewood and their pangas were lying besides them. They raised an alarm and villagers came to the scene. Among those who responded to the alarm were the two accused persons. It was his evidence that on that day it was Msaghaa's turn to graze the villages cattle and that he saw him taking the cattle to the grazing ground at about 10 a.m. The witness further told the court that the tWô girls had left to fetch firewood he also left to his shamba accompanied with his son Ahungu (PW2); and that ca they were going to his shamba they met Msaghaa, (the first accused) who told them that he had left the cattle at the grazing place as he was going to fetch some water. The witness told the court that Nsahaa asked them to keep an eye on the cattle and that he (the witness) adviced his son to look after the cattle 0 The cattle were later returned home by his son (PW2). After the bodies of the girls were found the police was contacted and came to the scene According to Linje's testimony he told the police that he suspected Msaghaa as the person who had killed the two girls- because he had left the cattle in the bush and returned home. The wItness showed a scar on his nose and told the court that it was Msaghaa who had cut him with a knife in 1972 when they fought. He said that after the fight they were reconcilled by local elders but that after the fight his relations with Msaghaa became less friendly 0 Because of their fight in 1972 he also suspected that Msaghaa could be the murderer. Another reason why he suspected Msaghaa is that Msaghaa .12 -2- 'always used to ask his (witness's) son, one Kitinde,.to buy him clothes but that Kitinde refused to buy him clothes. This according to the witness, may have annoyed Msaghaa. Hamisi @ Ahungu s/o Juma gave similar evidence as that given by. his father (Pw1) and the accused's request that they help him looking after the cattle. Both witnesses told the court that they met Msaghaa as he was talking to a lady called Tulu (PW5). According to Ahungu's testimony the bodies were found lying on the ground in the same place they found Msaghaa talking to Tulu When cross-examined by the court Ahungu said inter alia: ----"We only suspected Nsaghaa because he had left the cattle in the bush." Tulu (PW3) told the court that Msaghaa met her at about 4 p.m 0 as she was chopping some firewood and that he was coming from the direction of his house when he met her. The witness said that Msa'ghaa was not carrying anything in his hands. The witness said that Msaghaa told her that he was going to visit her f or some water and that he left to his house. According to her testimony she left the place soon after Nsaghaa had left, and that at about sun-set Msaghaa called at her house and she gave him some water0 She said that she suspected no one as the killer of the two girls. Sub-inspector Stephen (PW7) related to the court that he investigated the case and that on information received he arrested Msaghaa and Galanda. According to his evidence he searched Msaghaa's house but that he did not find anything relevant to the crime he was investigating. Mr. Kayombo (PW9) testified to the court how the two accuseds were brought to his chambers. According to his evidence after interrogating them he was satisfied that they were free agents and that their statements would be voluntary. He took their extrajudIcial state ments and the statements were produced as exhibits "F" and "G" respecti- vél y. In his extra-judicial statement (Exhibit F) Msghaa (1st Accused) says how he heard an alarm as he was cooking his supper and how he responded to the alarm. According to his extra-judicial statement on arrival he saw six people at the place where the deceaseds were lying dead0 He says that when he arrived there Linje (PW1) told the people present to go and arm themselves with bows and arrows so that they could hunt down Nang?atis who had killed the girls. in his statement he says that soon after Linje changed his story and said that he suspected him as the murderer as he had come back home without the cattle 0 This is the evidence adduced by the Republic in connection with the death of the deceased girls in so far as Msaghaa (1st accused)is concerned0 In his unsworn defence the 1st accused told the court how on the material day he sent the village cattle for grazing, how he later came back carrying with him a log for firewood and how he met Linje and his son and asked them to keep an eye on the cattle 0 He also told the court that he met Galanda (the 2nd accused) with whom they walked together and met the two girls as they were chopping firewood According to his defence he soon after parted with Galanda who took a foot-path leading to his place and that he continued his way home 0 As he was in his house milking his cattle he heard an airm and that he armed himself with a bow and arrow and went to where the alarm was cpmino. According to his defence on arrival he met six people who told him that Mangatis had killed the girls. He told the court that he told the people that he had met the two girls only a short while ago and that he was most surprized to hear that they had been killed by Mangatis. It was his defence that after sometime Linje alleged that he was the killer as he had returned home leaving the cattle behind. At this juncture I would like to say that the evidence against Msaghaa (ist accused) regarding the murder of the two girls is shaky. So shaky that it could not in my assessment of it, even support a claim. in a civil case. As rightly argued by the learned defence counsel and conceded by the learned state attorney the Republic's case against Msaghaa is wholly based on circumstantial evidence. As it has been, -3- flj times without number, held by this court and the Court of Appeal order to justify on circumstantial evidence, the inference of gui1t: the inculpatory facts must be incorñp'a€ibie with the 'ithocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of hi's guilt" -, R vs KIPKEI3ING A1IAP KOSKE and another (1949) E.A.C.A, 135. In this case suspicion ha's" been cast on' 'Msaghaa' by Liñje simply because he returned home leaving the cattle behind on the material day Msaghaa gave explanation as' to why he left the cattle behind and returned home t This explanation was not rebutted by the prosecution 0 On the contrary it was supported by the prosecution witnesses. The evidence., that there was some enemity between the first accused and Linj'e because of their 1972 fight does not carry much weight. Linje himself told the court that after the fight they were reconcilled by their elders and that after this'he did not find it necessary to report Msaghaa to the police, • . . As to the evidence that Msaghaa was annoyed with Lirije because Linjes son refused to buy him clothes. There was nothing to support such.a conclusion 0 All that the Republic has succeeded to prove against..Msaghaa is that there. were...suspicious circumstances against him regarding the death of the two girls. But as it was held by the Court of Appeal in CHHAI3ILDAS D. SOMAIYA VS R (1953) E 0 A.C,A 0 144: "A mere aggregation of separate facts, all of whih.arë"iricdricIusive in that they are as' consistent with innocence as with guilt,has.no probati—' ye force" 0 With respect to the learned state attorney I am' in, full agreement with the gentlemen assessors that the evidence adduced against Nsaghaa falls far short the evidence required before an accused is convicted of 'a criminal charge. Like the unanimous opinion of the, gentelemen assessors, I find that the prosecutIon..,has totally failed to prove the charge against Nsaghaa (1st accused, .ard I accordingly find him not guilty of the charge of murder0 He is therefore acquitted 0 ,. As to the evidence against .Galanda s/o Saidi (2nd accused),'.' there are in my view circun-.stances which tend to show that he know.s more about the death of the two girls than what he has cared to tell the court. According to the evidence of sub—inspector Stephen (PW7) he decided to arrest Galanda after he had received information that Galanda was seen in the company of Hsaghaa at the place only a short time before the two bodies were found o The inspector searched GalandaPs house and, there he found an arrow and a knife which had what appeared to be fre.sh blood on them. When he was interrogated ah to the arrow and knife he admitted that the weapons were his property 0 As towhat appeared to be blood on them Galanda told the inspector that he had shot a bird withL.' the arrow and'that the blood on it was bird's blood, He also told, the inspector that the blood on the knife was goat's blood, He said, he had used the knife in marking his goats by cutting their ears. The inspector asked him to show to him the goats he had cu€ their ears with the knife. On being shown the goats, the inspector found that the ears of the goats had been cut long time ago and that the wounds had already healed0 He became suspicious and took the arrow and the knife in his.custody.; He then filed P.F. 180 and sent samples of deceased girls' blood to the Government Chemist for analyis as to their blood group. ,,He also sent to the Government Chemist the arrow and the knife found in Ga].anda'shouse'. The Government Chemists report was produced and admitted as "exhibit 13" The two girls" blood was found to, be of group B o The kiife'' was found to have human blood of group Be" The arrow was also found,, to have blood but its origin could not be determined. , That Galanda tol,d the inspector that the blood on his knife was goat's 'blood is fully' suppoxted by his extra...judicial statement in which.. he.told the justic-p. , of the Peace that the blood on his knife was goat's blood. He also in 'his uworn evidence repeated that the blood onHhis knife was got's : blood. That Galanda's defence that the blood' 'on"his knife was - 4 -. goat's dfence was pure lies is evident froPt the Government Chemist's report— "exhibit B" I agree. with the learned defence counsel that the evidence tending to implicate Galanda with the deffence is also purely circumstantial 0 No one saw the accused killing the two girls -..But, as rightly argued by the learned state attorney, Galanda's lies that thd blood on his knife was goat's blood is not without significance. He could not have decided to tell lies unless he had something to hide. As it was held by the Court of Appeal in RAFAEL MUNYA VS (1953) EACA.226 0 "The force of suspicious circumstances is augmented whenever the person accused attempts no explanation of facts which he may reasonably be expected to be able and interested to explain; false, incredible or contradictory statements given by way of explanation, if disproved, become of substantive inculpatory effect".- The court however went 6n and said: "Even in such circumstances,-however# guilt cannot be safely inferred, unless a substhatum of evidence has been so laid so as to create an independent prima fade case against the There can be no doubt that apart from the evidence that Galanda told lies about the source of the blood on his knife, there is no other evidence direct or circumstantial to implicate him with the murder of the two girls0 There is however the evidence of the doctor (PW8) which is to the effect that the wounds he observed on the two girls were caused by a sharp instrument such as a knife. This evidence added to the finding of-human blood on Galanda's knife which blood was of the same group as that of the deceased girls, only a few hours after the murder of the two girls, shows that Galanda was at least an accessory after the fact to the offence charged 0 His false defence that the blood on his knife was goat's blood was a clear attempt by him to assist another who was to his knowledge guilty of an afferice in order to enable him to escape punishment as defined u/s 387 of the Penal Code. I agree with the gentlemen assessors that there is no sufficient evidence implicating Galanda with the actual murder of the two girls; but I am in my opinion fully satisfied that the knife evidence is sufficient to find the second accused guilty .as an accessory. I therefore in exercise of my powers u/s 181(2) of the - Criminal Procedure Code find the second accused guilty of being an accessory after the fact to murder c/s 213 of the Penal Code0 N.S. MNZ AVI JUDGE Prosecution - The accused is a first offender 0 In Mitigation Mr0 I'ezi— The accused is a young man of 25 years. May be if he is given another chance he would lead blemeless life0 He is a first offender and he has already been in remand for 12 months I pray that the court be lenient to the accused 0 2jdAaused - I have nothing to add. Sentence - Had it not been for the accused acting as an accessory after the fact to murder there can be no doubt that the perpetratthrs of this heiuious- crime would have been brought to book 0 But for his acting as an accessory after the fact to the offence the culprits are still at large0 This is a case which in my view calls for a deterrent sentence with the hope thatit - will not only deter the accused from committing similar offences in future but that it will also deter would-be offenders of aLmilar crimes. The accused deserves no mercy his previous record notwithstanding. I sentence the accused to 7 years imprisonment.