19720209 TZHC Singida

t INI THE HIS-H COURT 011 TANZAI:IA .LP 5ING:1DA ORIGINAl JURISDICTION (Dodoma Registry) Cr Sessions Case No. 112 of 1971 THJ-':lj REFUBI.I C Versus Ki) FARU S/U NABUKU 1(2) FUINIDI 5/0 RIDONG-A CHARG] MURDER c/sI 196 of the Penal Code. DATI: 9tlT lebruary, 1972; CORAM: N,S, MNZAVAS,! Judge, Mr. D'Souza, State Attorney for Republic; Mr. Mangat Counsel for the Accused. Both accusedfin the dock. Interpreter 1. Mr. M. Maxwell - English into Kiwahili and vice versa. J U B G- N B N T The accuseds,l 11I.RU do MABUKU AND FURDI s/U KIDONG'.A, are jointly charged/with murder c/s 196 of the Penal Code, It is allegecby the Republic that the two accused on. or about the 7t1/i day of Narch, 1970, at Ntunbi village Nkombo division, within the district of Nanyoni, Singida region, jointly murdlercd one, DAUDI S/o MCR&LA. Both accused denied/ the allegation against them Majimbi d/o anzo (P,W, 1 ), mother of the deceased, related to the cou how one day at about 11 a.m. she found her son lying, dead in a maize shamba. She also testified to the court how e reported to one, Mehaki (F,W,5) who in turn reported t the police. This witness aso identified the deceased's bod to the doctor as that of Dai,dj s/o Mchala, her son. Grace d/o i .bala (P,w. 2) gave evidence to the effect that one day she h pombc in her house when Hajimbi (P,W. 1.) came raising an al According: to her testimony, Majimbi reported that bhe seen a dead body in her (Grace's) maiz e-shamba, In her test monr Grace told the court that on hearing this report, Faru, the first accused, who was among: the peo1e drinking pombe at er hOue said to Majimb "where Is the dead body you say ou have seen? You have Id Led a person and you now preten to raise an alarm?". Detective :Jonstable Gregory iTcata (P O W, 4) told the court that he was the-person who investigated this case. He related to the court that" he went to where the deceased' s body was lying an that on exarination of the body he saw injuries on the dceased's head, 00 I According to his evidende Paru, the first accused wa arrested by a iard Cxeóutive Officer by the name of hi and. brought to Nanyoni Police 3tation, He further told the court that Faru 1eped him to trace Fundi, the second accused, and that on 20/3/70 Faru intimated to him that he wanted to make a statement and that he sent Faru to a Justice of the Peace. Meshaki ( P.W2) testifed that on 8/3/70 he was called from.. his hOuse by two TILNTJ Yough Teague wingers whO reported to him that they had seen a dead-body in a maize shaiaba. Ié accompanied the two youths to the shamba where he saw a dead- body Acoording to his evidence therew , 3re signs of a big etruggle around the place the deceased's body was lying and that many maize plants were destroyed Vincent Antony Kuba ( P.W06), an admn1strtive Officer who was at the material time st:bioned at Manyoni district office related to the court how Faru was brought to his office bnthe iorning of 20/3/70 by a police officer who told him to that Faru wanted to mko a statement. The witness related to the court that after interrogating Faru, he waC satisfied that he was a free agent and that his statement wouj1d be a voluntalv statement0 He then oroceeded. andto. : Faris:statent. he statementws..woduced ap exhibit and was. admitt.edãhdta?. merked as Exhibit U. Both accused decided to give their defence unsworii FARU (1st accused) told the court that a day after his arrest he was interrogated by Police Constable Nkata (P\I4) who asked him whether he had killed the deceased. He replied to P L C. Nkata that he had not killed the deceased and thereupon the police constable assaulted him0 According to his defence hei because of the assaultshe admitted killing the deceaed He was then retuned to lock-up and that next day he was sent to an Area Commissioner who interrogated him whether he had killed a person and that I, he replied that he did not kill. Then the area commissioner started writing on a sheet of paper and that after he had finished writing the area commissioner asked him to sin his name on the sheet of paper which he did. Fuxidj Kidona (2nd accd.) related to the court that soon after his arrest detective police constable subjected him to interrogations about the death of the deceased. He replied that he did not kill the deceased. According to his defence the Police constable said to him that he would teach him like his friond Faru who had already confessed to him. Fundi further told the court that police constable Nkata beat him but that he insisted that he did not know anything about the death of the deceased. Fimdi asked the court to call his two witnesses from Dodoma Prison, One of these witnesses (D.W.1) gave evidence which is neither here no there After summing up to the assessors all the three assessors were of the unanimous opinion that both accused were not guilty of any offence. As argued by the learned defence counsel and concãded by the Republic the prosecutibns case is wholly centered on the extra-judicial statement of Faru to the Justice of the Peace that he and Fundi assaulted the deceased and ls.ft him lying helpless in a maize shamba. ..... . . 13 The leanreö. defence Counsel argued that the extra—judicial tatemeñt by Faru should be examined with extreme care becauèè Faru had since reiracted this statementei It was argued that it would be extrb.mely unsafe to act on the accusedis retracted confesion unle' s there was evidence ôorroboratitlg Faru's retracted cbnfesibn In his speechhe defence Couiisel subm±tted that even if the court decides to act on the retracted confession of the first accused the confession ould not in law be thken into consideration against Fundi as it was a confesion by a co—accused. The defence finally argued that even if the accuseds are found to have assauled the deceased the evidence was more consistant with manslaughter than with murder. The leanred state attorney on the other hand was of the opinloh that there was every reason for the court to act on the retracted confession of the first accused. The Republic further argued that the submission by the defence that a confession of an accused affecting a co—accused $410 could not be taken into consideration against the co—accused was no longer the law in Tanzania. The leanred state attorney went on and referred the court to section 19 of ct Nob: 26/71 which amnendod section 33 (ii) of the Evidence Act 1967. .1 agree that the prosecution case is wholly based on the extra—judicial statement of Faru to the Justice of the Peace. I also agree that Faru has in the trial withIn a trial netracted the statement he made to the area secretary The first question this court has to decide is therefore whether the circumstances in this case are such as to entitle the court to act on the retracted confession of the first accused. My perusal of decisions of the court of appeal on the # question of retracted confession tells me tbat it is not a rule of law nor is it a rule of practice that a retracted confession has to be. corroborated before a court acts on it. It is however essential that a court has to be atisfied that a retracted confession is true before acting on it. In the present case the first accused gave his statement (Exh.C) to the area secretary to the effect that he and Fundi fought with the deceased. He told the Justice of Peace that they met the deceased in a maize - shamba and that the deceased accused them of stealing his maize. That on their denying deceased's aocusation. the deceased came foruard.ed and assaulted Fundi who fell down. .. ceing that his friend Fundi had been injured he started beating the deceased.. At this time Fundi stood up and that both of them started beating the deceased with sticks on his head till he became helpless. He also in his statement told the justice of the Peance that they then took deceased's cloth and went away. The accused in the trial within a trial told the court that he admitted .illing the deceased because police constable Nkata (PeM.4) subjected him to violence. .Rc told the court that pC• Nkata slapped him when he was taking him to Manyoni police station from his village. I totally fai to accept Faru's allegation that he was forced by P.C. Nkata to giv.e a statement of the Justice of the Peace.. P.C. Nkata gaveevidence and was subjected to a long examination in chief.. . he learned state attorney anticipating that the accused was going to say that he was subjected to violence when the time came for production of his oxtrajudicial -. . statement, ropreatedly asked P.C,.Nkata whether the accused was subjected to violence or forced in any otir way to give his statement to the Justice of the Peace PC,Nkata told the coirt that the accused wasnot in anyway foi'cod or subjected to violence in order to extract a confession from him. In spite of thse rejilles by PLC. Nkatab the learned defence coUnsel did not find it neecssryto.cross—exariin P.C. Nkata The loarnOd state attorne7 argued that accusdts allegation fiat he was ljeatoii up by P.C. Nkata was an afterthought. I see no reasOl to disagree withhim Had it been a genuine defence the defence counsel wüld certainlr have put questions to PIC Nkata about the alleged maltreatment of Faru What is more Faru totally 'ave a different story in his unsworn defence. In his uns - rn statement he told the court that when he went into the office of the Area Commissioner meaning of course the area secretary; the area secretary started writing on a sheet of paper and that after he )aad finished writing he asked him to sign his name on the sheet of paper which he did, The implication here is that he T (1st aced.) did not give a statement to the Area secretary but that he was made to sign On what the area secretary had put down. As to the question whether there is any corroboratiOn of 2aruls retracted confession, I would say that there is plenty of corroboration. First there is the testi:aony of P.0 Nkata that he found the deceased to have head ifljUie. ThiC evidence corroborates Faru's confessiOn to the Justice of the Peance that he assaulted the accused on his head. Secondly there is- the medical report Exh.A) which is to the effect that the deceased died of head injuries. There is also the unusual 'remarks by Faru to the deceased's other, There Faru accused the deceased's mother of having killed a person, Taking all this ilath account I am satisfied that Faru's retracted confession is fUlly corroborated by other independent evidence, I am unable to conceive how Faru could be in position to relate to the Jutice of the Peace that the deceased was beaten on his head a story which has been found to be correct, if he was not actually present, and present in an active mannei when the deceased was assaulted. For my part I am fully satisfied that Faru did take part in assaulting the deceased4 As for the second accused, Fundi, I agree with the learned state attorney that after the amendment of section 33 of the vidonce Act by section 19 of Act No. 26 of 1971, the law now is that a confession of an accused affecting a co—accused can be taken into consideration against the coaccused. The meaning of the words "take into account" was discussed in the Indian Case - Emperor Vs iO}..I and others 29ALLi-IAB 44 and followed by ourourt of Appeal in Rex Vs 'iNG-INGOiE and another 8BACA 33. The court decided that the only way inHI'h such confession can be taken into account against a co—accused is as evidence. The confession of Faru therefore is evidence that Fundi also participated in the beating of the doceased But such evidence though tending to implicate Fundi with the death of the deceased, the evidence is that of an accomplice. It is a rule of praatice aLiost amounting to a rule of law that it is unsafe to convict a person on uncorroborated accoiplice evidencp, .15 ' I -5- Amendment of section 33 of the evidence Act by Act No. 26/1971 does not in any way abrogate this rule of practice. Apart from FaruTs extra-judicial statement saying that Furidi also participated in the beating of the deceased I see no other evicIcno implicating him with the death of the decoasodi Faru's confession in so far as it affects Fundi suffers from lack of corroboration and as such it would be: extremely unsa±' to aCt on it in determining Fundi's guilty. In the ovontI find Fundi not guilty of any offence and I accordingly aCquit him. Havingfound that Faru took part in beating the deceased; and taking into account his eictrajudicial statement that he inflicted blo on the dooased's head till he became hclplesC, and the medical repbrt which is to the effect that the deceased died of head injuries, the only iievitable conclusion is that Faru killed the deceased What I have finally to decide is whether the killing amounts to murder as alleged by the Republic. From the extra-judicial statement of Faru, it was the deceased who first started the fight. This statement is not In any way challenged, by the iaepublicb, We also have the testimonr of Moshak (P.W) which is to the effect that there were signs thf a lot of struggle in the area where the dec e asedts body was found0 This evidence tends to support Faru's statement that there was a fight between him and the deceased On the evidence it is difficult to say with that amount of certainly required in a criminal case that Faru inflicted the fatal blows with intention to kill the deceased as to cause him grievous harm6 There can be no certainly on this question; and it is sufficient for me to say that I entertain at least a reasonable doubt on the point The accused is entitled to the benefit of the doubt 0% I find, the accused not guilty of murder but guilty of the lesser offence of manslaughter c/s 195 of the Fenal Code, N.S. Mnzavas Judge Pros Nothing known. In Mitijation - ( 11r. 'angat) The accused has been in remand for 23 Daonths He is a first offender and a young man. The deceased was the agrcessor0 The accused used only a stick as apposed to a lethal weapon I ask yourlordship to take into account these mitigating factors when sentencing him Accused - I have nothing to add Sentence: - The beating of the deceased by the accused was brutal and the evidence clearly shows that the accused was completely indifferent as to the outcome May be he behavad in that manner because his mind, had been inflamed by alcohol but it can not be said from the evidence that he was all that drunk as to be unable to control his temper.. On the contrary he vividly related to the justice of the peace what had happened. . - -,------,----,,-'. The accused has been found guilty of manslaughter simfly because his defence that the deceased was the aggresser stood unchalleged otherwise the offence would have been murder. Taking into account the mitigating factors I cannot sentence the accused to any lessor sentence thana sentence of 7 years imprisonment0 You are so seiitoncedth R ight of appeal to E.A.C.A. explained. IL S I N IDA N.i.Mnzavas. 9th February, 1972 Judge.- Desouza for the Republic. Mangat for the accused0