19710824 TZHC Dodoma

- ri-n- Trrri I J.' .LJ..LJ ri.Lr C0,0771 02 :..thZANIA AT DODOLIA. ( Bar es Salaam Registry) ORILIINAL. 20SIONS C...SB NO. 79 of 1971 Republic Versus: I.) Benjamin Lugalo 2 . Godfrey Nelson Nelson_Shorn!. J U D G- N E N T1. Lflj'ZôJ I S J. I The three accused Benjamin s/o Lugalo, G-odfrey s/o Nelson and Nelson s/o Shom, are jointly Charged with mrcler c/s 196 of the Penal code. The Prosecution allege that the accuseds on or about the 23/10/70 at Chinuguru village in the district and region of DodOma murdered one, Ngalati s/o Sapato. All the accuseds pleaded not guilty to the alleged offence. Th epüb,ic brought six witnesses in support of the charge. Nyamaza, (PWl), wife of the deceased testified to the court that on the 24/10/70 she, acCornpanied with the deceased and one Nvranara ( PW2) loft her house to Makanika's pombe-shop.. They arrived there at about 2 p.m. and drank pombe up to sun- set when they decided to go home. iccording to her testimony at the pombe-shop they met the three accused and Mwanzara's husband (PW3) who wore also busy drin:ing pombe. From her evidenCe the accueed at one stage joined theth and they rsnk together. In her testimony she ralated to the court tiz.at she loft the pombe-shop accompanied with the deceased and fiwanzara and that when they had travelled a short distance from the pombe shop Benjamin (1st accd.) followed them and that soon after G-ôd.frey (2nd accd.) and NelSon (3rd aced..) also joined them. She told the court that as they were goiig home Nwanzara went to the side of the path for a call of nature and asked Nyamaza to wait for her. At this stage Nelson and Godfrey are alleged to have asked the two ladies why -Ghey were sGandlng and that, Mwanzara (PW2) replied and told them to go ahead. According to Nyamaza's testimony the two men ( 2nd & 3rd accds) said that they were going to wait for them. Finding' that the two then would not leave them alone Mwanzara decided to do away with her call of nature and they all resaed their journey home; the two accuseds following them behind. According to the to stimony of Nyaaaza as they were going Nelson said to the ladies - "Throw at them". N.rarnaza replied - "Throw what at us, Udonyo"?. Tho husband of Nyamaza, the decease, who was a few steps in front heard the exchange of words between Nyarnaza and Nelson and asked Nelson why he was not respecting him as his elder. Nelson is reported to have replied the deceased - "Yes, I have said, so what Thereupon ?. - the docoasd replied. -"Nelson what you are doing is had, I am like your father". S According to Wi from there on therexchange of abusive language between Nelson and the deceased up to the time they ieached ajunction of three foot. -paths, . I - I Nyamaza (NI) tOst:LILCd that at the junction she followed, the path that led, to her house and Nelson and "Godfrey took another path leading to their respective houses. She told the court that her husband told her that he was escoting Mwanzara, who, according to the evidence before this court was deceased's girl-friend. The deceased and Iwanzara followed the third path together with Benjamin (1st accd.). Nyamaza went home and slept. Her husband did not turn up that night. She told the court that this did not worry r because she thought that he had spent the .nigbt at his girl- friend's house, that is at the house of Mwanzara. Nwanzara is wife of Shabani (P 1i13). At this stage I Aould like to mentibii that there was ev'idence to the effect that it is a well estallished custom among the hagogo for two hurJbands to exchange their wives to each other for sexual purposes. This custom was confirmed by the Wagogo assessors who sat with me. There was evidenàe that, the deceased used to have illicit association with Nwanzara, Shabani 's wife. Equally there was evidence that Shabani with the knowledge of the deceased, was running with Namaza, (pwi), the deceased's wife. From the evidence thre is nothing to suggest that there was any love lost between Shabani and the deceased. Indeed the evidence tends to show that the two were friendly to each other notwithstanding what other people would call an odd association between them. On the morning of 25/10/70? Nyamaza waited for her husband but he did not turn-up. ut about II a.m. she decided to go to Mwanzara ' s house and inquire about him. As she was going to Mwanzara's house she, to her grea'c astonishment, found her husband lying dead at tao side of a path. She raised an alarm and people case. One of the people who answered the alarm was Mwanzara and her sister. Later th Jard Executive Officer of the area also came to the scone.. According to the evidence of Nyamaza she heard Nwanzara telling the 1ard Ex. Officer that she saw Nelson and Godfrey fighting with the deceased. Nyamaza also told the court thai; she heard all the three accused telling the ward ]x. officer that they all exchanged abuses with the deceased but denied having assaulted. him Mwanzara (PW2) on the other hand told the court that she, at the iunction, followed the path to her house alone. She denied. N 1 amanza's' tes'imony at the deceased and Benjamin accompanied her. She, however, confirmed Nyamaza's ev:Ldonce that there was verbal quarrel between Nelsen and the deceased as they mre going hem from the pombe-shop. At this juncture I would like to mention that at one stage Nwanzara was jointly charged with the throc accuseds for the death of the deceased. She clearly appeared to have not recovered from hr previous experience as one of the accused and as such she, with a lot of effort, would like the court to believe that she knew no more about the deceased's death t!an what she had told the court. It is in the light of her rrevious iosition as among the accused that the court has to take her evidence with a lot of circums-pection. Her evidence, looked at in the light of Nvamaza's testimony and the fact that she was at one time also charred with the offence of murder is clearly of little probative value. She C tain1Y know more about deceased's death than she would care to tell the court. ...3... . Nyamaa (ptj1) avo her ovido.ico in a straight forwad and cogent maimer and I was loft wi:th the inpression that she was tolling the truth when she said that the deceased followed the same path as Mwanzara and Benj amen. Shabani (P3) told the court that ho was with the deceased at the pombe-shop up to the time the decoasedhis wife (PJI) and Mwanzara left the pombe-shop. iccording to his testimony he remained behind and continued drinking up to about 10 p.m. when he wont home and lopt. - He, next-morning, loft his hoiise very early in thonorning to a river, about seven miles away, where he went to buy some fish. - He related to the court that it was at about 3 p.m. when he was coming hac from the river that he heard about decease's de ath,: Ndimuka,. (FJ4) a nopheiAj the deceased, also gave evidence. He told thecourt that he answered an alarm on 25/10/70 and found his uncle lying on the ground dead. This witness further told the court that he interrogated Nyamaza (Pii) and Mwanzara (PW2) about the death of the deceased and that they both replied that the deceased had earlier quarrelled with the accuseds. On being cross-examined by the court the witness said that Mwanzara (PI2) told him that as they were going with the doceasod. G-odfrey (2nd accd.') fought with the deceased and that Godfrey struck the deceased with what she thought was hisfist and that she separated them. Ndmuka also told the court that Nwanzara told him that Bonjamen and Nelson did not actunily fight the deceased but encouraged Godfrey to beat the deceased by saying "Mwongeze- meaning give him more blows.; According to Ndimtka,.Nwanzara said that she loft the deceased fighting with the accuseds and wont to sloop.; Antony, (P'i5), the ward ix. Officer gave evidonc to the effect that he visited the scene of crime and after hearing that the deceased was drinking with 'the accus ode and that they all followed the same iath he arrested the deceased and Nwanzara as suspects. According to his testimony deceased's body was lying on a path which led to all the three accusods houses. Thp ward exacutive officer also said that Nuanzara told him that she was with the deceased and the accused but left them and wont to sleep.. The court was aleo told that all the three accused admitted having. quarrelled with the deceased but insisted -that the quarrel was raor- ely exchange of abuses between them and the deceased. The court was further told that when th*olice arrived, a police officer spo -tted stains on Benjamen's shirt which apearod like blood-stains. Godfrey was interroated as to what cloth he was wearing on tbater.al night and replied that he was wearing a shirt which he bad left at home. This shirt was produced by his mother and it was also fouad to be stained with what looked like blood-stains. Nelson's shirt as well as his pair or shorts wore also found to have what looked like blood-stains. J..ccording to Antony's evidence when -the accuseds wore interrogated as -to the nature of the stains on their clothes, thcjrepliod' that the stains were of goat's blood which they had slughtorod two or 3 days ago . . 0 • • • /4 S -4- Detective corporal Swai (PW6) related to the court how he invostiiatod the case. He visited the scene of crime anJ saw the deceased lying on the. side of a path with a penetrating wound in his neck. He examined the accusods who had already been arrested by the 'iard ixecu1vo Oiiicor, and found no signs of violence on their bodies. Like the ward x. officer he related. to th.oCourt that accused 's clothes were found to have blood- looking stains. According to his testimony two of the accused when interrogated ebout iho stains said that their clothes got stained with blood because 2 or 3 .ays before they visited a slaughter—house. The ramaining accused, is reported to have said that the stains on hi clothes were due to the fact that his house is infested with flea'. This witness did not ro.ciomber which two of the three accused gave the first anwei. Nor did ho remember which one of the accused talked about, fleas in his houso. Dissatisfied with their explanation about the stains on their clothes ho took Benjamen's shirt and Khaki trousers (echibits P13 & P12) Godfrey's shirt '(Exh.Ph9) and Nelson's shirt and long frousos ( Ththbs. P11 & Plo) and forwarded thorn to the Government chemist for analysis and report on the na'3uro of the stains on the clothes - (sec letter from C.I,D. Dodorna to Government Chti jet Exhb. P7). Also sent to the Governent Chemist were blood specimens 01 all ac accuseds aneL blood specimen of deceased. The Government Chemist was asked to determine blood groups of those four samples of blood. Later a report (ixb,P8) from the Government Chemist was received. This report is to tAo effect that stains on Benjaeaon's shirt (Ehb'.13) wore found, to be human blood and was positive for The stainis on Godfrey's shirt (Exb. 9) were also found to be Human blood and were positive for The stains on Nelson's shirt and trousers (Ehbs. P11 & PlO) were nagtive for human blood6 Benjamin's blood (Lxhb. P4)' was found to be of group B rhesus positive. Those of Nelson and Godfrey (Bxhb'. 26 & 25 wore found to be of group 0 rhesus positive.. The blood of the deceased (Exh.P8) was found to be of group AB, that is, of the same blood group as the blood—stains found on Benjamin' s and Godfrey's clothes. All the three accuweed gave their defence unsworn. They told the court that on thomatorial day they wont to a pombe—shop whore they had a drink and that from there they went home and slept. After my summing up to the assessors both assessors return a verdict of nor guilty and asked rue cour"G ro acquir the accused. In a criminal case the burden of proof is always on the prosecution to prove the charge beyond all reasonable doubt If at the end, of the case there is adou'bt,no matter how sliht, the doubt must be. rosolvod in fa vour of the accused. The vital quuetion in The proscn case is thoofore whether the prosecution had dischaTgcd that heavy burden to the satisfaction of the court. fhero is no direct evidence implicating any of the three accused wibA themurdor of the deceased but the Republic has argued that desuito the l.ck of direct evidence there is ufeicierit clrcums'Gamrlal evidence connecting all the -5-- accused with the offeilce. At this juncture I would like to mention that this court, as well as the court of a?petl, have time and again held that for an accused to be found guilty of Ci criminal offence on purely circum[ttial evidence, the inculpatory facts must he such as to be incompatible with the innocence of the accused and incapable of any other reasonable explanation than that of the accused'.s guilty.. Form the evidence adduced before this court there can be no doubt t at the decoosed was at Iakanikas pombe-shop up to sun-set on the 24/10/70. I am also satisfied that he was at the pombe-shop with his wife (PWi) Nwanzara (PW2) habani (PW3) and all the three accused. From the testimony of I'Tyamaza, (Pi), whose evidence I accept as truthful the accused, Nyamaza, Mwanzara and the three accused left the pombe-shop at sun- set and walked together to their respective homes. From the evidence of Nyamaza (PWI) there was abusive exchange of' words between the deceased and Nelson in which the word TJdonyo wa; used. Je were told that Udonyo is a Kigogo name for a present usually given to a bride to persuade her to proceed to her bridgroom's house. Why the use of this word by Neluon when conversing with Nyamaza, annoyed the deceased is a hit difficult to s But tile evidence shows that the deceased took strong exception to tJae conversation between Nelson and Nyamaza and hence the verbal quarrel between him and N13on. I also accept the testimony of Nyamaza that when they reached thejunction of three foot-paths she left to her house leaving the deceased following another path accompanied with I'wanzara (PW2) and Bonj amen, the first accused. Next morning Nyamaza found the deceased lying on the ground dead• Ndimuka (P.14) told the court t .at when he interroated Mwanzara as to what had happened, Mwanzara told him that she saw Godfrey struck the deceased with his fiet-while Nelson and Benjamin encouraged Godfrey to beat the docuased. by saying :1o ng e z ec The testimony of the ward ox. officer is to the effect that all the three acca ::ed admitted having quarrelled with the deceased by exchanging abusivewords. The accuod denied :ciglYclng wrn Gae deceased. If the court is to accept the evidence of Ndimuka of what IIwanzaratold him, then the court has to accept that there was actual fighting between the deceased and the accuseds. 1'ilO evv once oi the do ociivo cororal and of ho ward executive officer is to the effoctthat when the three accusods were jntorroated about the sains on their clothes they all gave explaina -Glons suggesting that the scains on their clothes were not of human blood.. The stains on Benjamin's shirt (exhb.P13) and those on Godfrey's shirt (exhb,P9 have been proved to be not only of human blood but of the same blood-group as that of the deceased. It was arguod b3i... he learned defence counsel when addressing the court that the finding of blood stains on accused's clothes which was of the same blood group as that of the deceased does not necessarily moan that the blood-stains were those of the deceased's blood becau c hundreds of people have blood of the same group as that of the deceased. . .• .16. — 7 — s I have tr:ied o show, the Republic has failed to prove malice at ore thought against the ac cue ed and in ho light of the above decision which is binding on this couriTl have no alternative bat to find the accused not guilty of muxder but guilty o the lesser oftonc of manslaughter c/s 195 of the Penal Code. I so find them. Prosecution - Nothing known Mr. Mangat The accused are both young man. This is. their first offence. fltue— 1st accused: - I have nothing to say. 2nd accused: - I have nothing to say.. 3entonce: You have been convicted of this serious offence, I take into account that this is your first - offence 'but the offence is a serious one. Tioo and again excessive drinking has ben the cause of sense—less killings. Ths court will be failing its duty if it did not inflict heavy punishments if only to deter excessive liqtor consuption, gach of you is sentenced to 7 years imprisonment. Right of appeal to J.A.C.A. explained, Assessors thanked and discharged. KILINDU for the Republic. MANGAT for the accrsods. I B OD 0 N A N Sri MNZA\r.iS 24th AUgust, 1971. JUDGE.