19721112 TZHC Dodoma

14 . c' Ii T-LD iLTU COTJT OF J O.IGIiTdL JUIj:I)TION Criminal •sions Case iTo. 21 of 1973 T!ae aLepublic versus TI1IOTIiThiLiJh'ih . . . . . !OCUS3d). ca c/s 196 O] T IL P.O. The accused stands charged with the murder of one Gieson Mwanda on ae 1 fih of iovember, 1972. i-hi jane denied the char'c. That the deceased is dead is not at issue because 4 his body was the oejct of the autopsy condctod by F.T1.5 Dr. Mwakarukwa who found him to have died of paralysis of t h e ilouja. The paralysis was the result of the steb wound he received the fatal injury at a poubo shop where he and many other villadors had gather-sd to drink. The only question ia whether ho was stabbed by the accused. The case for the p:cosocution is so weak that it is difficult to :;ny with any justification thdt a prima facie case was established against ;he accused. The difficulty arises out of the facr th.t the two witnesses claiming to have seen the accused stab the Joce•.sed were so discredited as to render their evidence worthless, ach of thera was shown to be self—contradictory. The effect cf SUCh self contradiction was put clearly in LUGrniBaUh v. F. 1971 iOi) 479(Following MABhTIRUhDIBh v. R. (193 8 ) 5 .h.C,a. 52) Wherc a arty seeks to impreach the cretit 11 of a witnoss by proof of a previous inconsistent statement and the party succeeds to show that there are serious and substantial inconsistancios which are unexplained, the effect of such exercise is to render the witness unworth of belief and not to make what he said in his former s -cacement availablo as evdonco at the trial. In other words... • • • . . . . . . .tho Drov:LouD stateme nt must be discounted. Tbus.......... whore a witness has boon successfully discredited •............ both his testimony at the trial and his previous eta bemeiit should be discounted and neither may be made use of as evidence. • .. ...../2 - 3 For, acording to P i. 1 I:t1i3, a ;onoral fiht continuod ovon afortho djceascd was sGabi)OCL and iathias had to intorvono to stop it. like two of'the tireo asSissors I find myself unablo to accept the evidence of the widow and Sebastian which is not only self-contradictory but mutually inconsitcnt as well. Lihero the widow said Sebastian was only one aco f .:Om the deceased when ho TT'..5 sthbbod, SebaStlafl s a i d. ho w .s ton paces away. Iccording to Sebastian, the time was 8.00 p.m. and, not 5.00 p.m. as the widow at erie time said. The widow, especially plunged into the realm of fantaoy when she sid that tho accused took from his pocket a knife the blade of which was outstretched and unfolded. I am satisfied that the deceased was stabbed in the dark as Sebastian and Nathias have said. That w. s why neither ho nor his wife coeld na:uc the •:ssailant when they yllod. I cannot than 'accept the minority view of the one assessor who found iao a curiod to nave s -Gabeed the decoaoe,. Tnat gen'loman based his view on the fact that accused did not call evidence to disprove the charge aginst him. I took pains in my summing up to impress on him that the accused was not required to prove anything, least of all his inrioncencO. I went further to remind all the assessors that their OifliCflS iaus'c be given after pondoring and rofloc ting over the evidence must be given after pondering and reflecting over the evidence and the law. The task of an administrator of justice was a moral one for which a believer would be answerable to Almighty God. nyonc sitting in trial over another, If he believes in the hereafter, must be conscionticus, doliborativo and porspicasieus, I am not certain that the gentleman who found, tJo accused guilty directed himself properly on the evidence which was, to all ifluflG and puroses, unreliable. gor reasons waich I need not repeat at this juncture, I would accept tho majority opinion and bog to differ with this one assessors, I would a-cccrhingly find the .lccus.h not uilty and acquit hire. 1 I / t