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7-fL - 1.4 - 17 IN THE HIGH OURT OF TANZANIA IT IRINGA ORIGINAL JURISDICTIUN (Mbeya Renistry) CRIMINAL SESSI.N5 CASE NO70 cF 1981 THE REPUBLIC VersU±' ANTHTNY MATUTTLI . 0 JUDGMENT - NOSO, J. 10 The accused Anthony Mat -Lftu14 is facing a charge of murder contrary to section 196 of the Pna1 COde It has been alleged that on 25th February, 1979 he murdered one Encck s/c TKigehe at IKipela village, Iringa Districts There is no dispute that Enock IKiqohe died in the night of 25th February, 1979 as a result of esth wound in the right hypochondium involving the liver causing haeeorrhaqic shock0 This was said in a report by Dr0 Lema of Irinqa hospital who examiied the dead body On 27/2/7 after it was identified to him by an uncle of the deceased, one Mwemusi Kiqehe0 The immediate arid crial matter for consideration 20 is who had caused the' death of the :CCCSCdo The deceased and the accused were cf the same Kipela village They lived not far from each other and are said to aave been related and therefore they knew each other well0 They were known to be on good terrs upto the day deceéd died0 But we have been told durin evidence by tiee witnesses that they heard the deceased tell them that it wa the accesed who stabbed him Two of the witnesses said deceased told them he was stabbed with aispear but One Million Kahemele, said deceased mentioned a knife0 On the fateful day deceased had been drinking pombe at the home of 30 • Jonicia d/o Semfilinqe (Pw1) of the seme village as both the deceased • and the accused0 Among the other people present at the pombe place were Faustina d/o Filamkasi (PWP) who is a younqer wife of the accused • and one Angelo Chusj 0 The accused wa not present0 At about 7 p0m0 Or 730 p0rn0 the de'cesed left the pombe place alone0 The court was told by bo:h Jenicie end Faustine that within a '-'shOrt tine after leaving deceased returned and complained that he had •een stabbed with a spear by Anthony MatutUli, the accUsed People who were drinking in the house of Jonicil a went outside hoping they would see the assailant Of the deceasedo Jonicia said she also went to the outside and that she saw some one dressed in a kitenge disappear into the darkness, running0 The than'was then boit 30 paces away and because darkness was settinqin she cc.uld not 'econise him but she could see he was carryin2 somethin g which locked like a long stick and was running0 villagers carried deceased intending to take him to hospital Ut he never got there as he died on the way, still in the village, / 10 in the same night0 Million Kahemele (PWIL), who said deceased was is uncle got news that deceased had been badly wouflded0 He went cut and met people carrying him towards hospital0 He said deceased was then still alive and he talked to him0 This witness also said deceased told him he had been stabbed by the ack'used0 Since the home of the accused was nearby he went there and saw him peering from the door of his house0 He called the accused and he respOnded. He said he asked' him why he had stabbed Enock Kigahe and th accused replied that he had not wounded anyOnee ?'lilliC'fl said he then held the accused 2 y the hand and told him h would sho.w him what he hd done0 As he was taking the accused to where the deceased was t hose people who were carrying the deceased startad to cry and wer saying that he (deceased) has died.. According to Million accused then managed to wriggle free and started running0 Million chased for some distance but accused managed to •ascre0 He was never seen in the village again upto new.. The accused hd told us that he was arrested in July, 1979 although he ha.d his Cwn exDlnatiCfl for his long absence from, his village, to which I shal]. refer later0 Since the atresting officer was not called as witness it is not certain if the accused was 30 infect arrested in July, 1979. The record of the committing District Court shows that the adcused was first brought to court on 6/11/79.. It 'is surprising and doubtful that the police would have held him in custody for four mC"nths without bringing him befcre court0 Benlamina d/o Mwèluka (pj3) who is the elder wife of the accused said in her evidence in court (after the provisions of section 130 of the 7,vidence Act, 1967 wer( , explained to her) that on the day deceased died the accused had been at home the whole day but that in the evening she saw him remove all his clothes including under wears and covered himself in her kitenge and a blanket.. He sat outside while 40 she was cooking food inside the house0 •Whn the food was ready she went outside to call him in to eat.. She did not find him.. She only Paw his blanket were he had been sitting0 She id that at around 'hat time sie heard people p3ssing by te road near her house saying they would take a person to hospta1 evn if he died on the way0 Then • she heard Million (Pw4) callibg at a person near hr hoUse to identify himself. She heard her husband reply. It was then she realised that her husband, the accused was in the Sdbulei of their house which had no door. She heard Million tell him that he would take him to show him what he had done but shortly thereafter she heard noises suggesting that some one h a d escaped. She never ain saw her husband from February, 1-170 till she saw him in court during the trial. Benjamina said that subsequently she realised that a spear helongmnq to the accused which 10 used to be kept in her room was no longer there and she has not seen it since0 She doed not know who had taken it although she had seen it during the day on the day deceased died. In his unswcrn statement th accused denied causing the death of Enock Kiqehë. He said that On the day deceased died he had informed his wife 9enjamina that he was leavincr for Iviakambaku, a distant village rom his home village, to see a traditiOnal doctor to treat him for heart problems 0 The traditional doctor whose name he did not mention., detained him for close medical care upto July, 1979 when he was discharged. He was arrested after the discharge when he was told that he was supposed 20 to have killed some One. He daid he did not see the need to call the traditional doctor to suport his alibi. He believes that his wife Beniamina has been instructed by her lover, an unnamed village sectetary, to tell lies in court against him. He claims that the village secretary /has two children with Benjamina andthet she is now living with him. The man wants to marry her and had in th past arrested and locked up accused three times. Benjamina has indeed admitted that a baby she was holdIng when she givinq evidence was of another man. She said in 198 after/felt thre as none to look after her needs she left the home of the accused 30 and has since been living with another man. She has even filed a' divorce petition in the :Kalenga Primary Court and does not intend to return to the accused even if he were to be set free. It would appear that the prosanution case against the accused Is based on a statement. said to.. hve be'n.made by the deceased that the accused had caused his death and on certain 'circumstantial evidence to which I shall refer later The statement alleged to have hec.n uade by the deceased as to the cause of his death was admitted as evid ~ nce under section 34 of the Evidence Act,. 1967 and I have treatec It as a dying declaration and 40 having heard the wItnesses Jonicia Faustine (the younger wife of the accused) nd Million am satisfied th?-t cserJ in fact said before he w Ort 11/ •€ it . . .. 20 The difficulty with dying declarations is that the makers of them cannot ?,e iflade available in court to be examined and cross—examined, o, their ±Zeli ability mainly depends on Circumstantial factors. The f±-st question to ask in this dasC is if the deceasè was. inoition to :unmistakenly idnt1fy his assailant. Neither J9nicla noi Fastina nor Million told the court if they had asked the deceased how he was able to know that it was the accused who had attacked him. The prson who attadked him may have ambushed him, he may have confronted him face to fake or they may have exchanged some words. We do not know. AssuI the deceased saw the person 10 attacking him was there, then, suffiCient light to identify him? Jonicia said that when she went outside immediately after deceased complained of having been stabbed by the accused she cculd not identify a person she saw runnIng 30 paces aJay. She also said that from the diminished light of the time she would not have identified a person five paces away but that she could withr.ain /1adentify at distance of one to two paces awayl From the eidenca of Jonicia whom I asess as a truthful and reliable withess, I em satisfied that if the person who assailed the deceased ws within a rage of two paces he would have unmistakehly identified him 20 • I believe the deceased saw and correctly identified the person who attacked him to be the accused, I am fortified in this belief because the deceased had no reason to make a false assumption that it was the accused. As I said earlier all the evidence given in court was that the accused and the deceased were related ando good terms. There was ev.dence that at one time the deceased had iitervened when the accused was chastising his wife but that subsequently their I relationship was cordial. SO, if their relationship was a good as that there could nCt be any reason for the deceased u suppose wrongly that it must have been the accused who fatally wounded him. 30 Secondly, the accused was not at the pombe place with the deceased to make the deceased say out of mere suspiCion that the accused had gone to way lay him, So I do not believe the deceased would have wrongly implicated a relative in such a aerious matter unless he was positive about the ideritily of the IlIac who caused his death. I shall now discuss the circumstantial evidence of which I made mention earlier in this judgement There was evidence that the accused had for quite some time before the deceased died suspected One Angelo Chusi of having love affairs 'with his younger wife Feustina (P12). For about a week upto the day 40 21 - w as killed, accused and FUstiPa were et trnqd0 Fau€ina had gone to live with her pare.ts Accused had made an attempt to get her back to his home but Fausifla'S father stood in the way saying the ,itter had to be taken to their ten cell leader first. On the fatal day, according to Benj.rniria, she and her husband (the accused)- saw Faustina go by darrying some pombe and a little later Angelo was seenì to go in.' same direction as Faustina. Faustine herself admits Angelo as.wall as herself were at Jonicia's pombe place. We then have the story by Benjanina about the unusual behaviour by the accused during that same evening when he removed 10 all his clothes and disappeared to an unknown place: dressed only in her kitenge. We remember, too; Jonicia's evidence that the person she saw about 30 paces away running after deceased was wounded was wearing a kitenge6 Finily we have the evidence of Million that when accused escaped from him he was wearing only a kiténge and that he vanished from homerom that night until he was arrested months later. Jonicla also said she had on several accessions heard the accused say he would kill Angelo. I e.lieve all these witnesses were telling the truth. I have therefore come to the conlusion that accused had known that Anelo 20 and Faustina were together drthking pombe at Joniciats home and md.ë up his mind to kill him. When he disappeared from his home before being served food he had gone to way lay Angelo and mistakenly stabbed deceased with his spear believing he had stabbed &is wife's paramour.. when later he was confronted by Million he escaped and never returned to his village until he was arrested many months later, gway from his village. I do not believe that all the matters mentioned which point at the accused as the person who killed the deceased were mere coincidences nor do I find any Other reasonable explanation Other than that the accused is the culprit. 30 I do not agree with the accused that his wife Benjaminá was repeating in court stories taught toher by a village secretary. At the time the accused was living with her they were on good terms although occassionally he used to heat hero She had never run to her parents. Three years after accused disappeared she became disillusioned with her marriage to him but I note that the evidence she gave in court is substantially the same as her statement (in te' depositions) she made to thePolice in December, 1979.