19720308 TZHC Tukuyu

I VTfl T7T J' OF 3 I. \(JP J ) JO 1 T.I Ji '0 - u 177 P 1 71 ç TiTh . r U. TIC fACHTiL rjo rTJR LP. c/s 1 96 of the Penal Code. COP I I .a. dud e hr. h1indu 9tate Gtorlley for the heublic, rr. .Dhebar Counsel icr the Accuses. .ccusea (nase) L oacner S/c wcJ:ibmga is TDresent under custody and represented. by Sounsel. Interpreter - J.L. PhOrOgo nglieh into Kisuahili nun vice versa. S , Ag, Judge The accused stsnds charrc-d with the murder of one Eli W s/o Bahati. when he is alleged to have struck with a stick on the head on Oaturday he 5th of Sopeu er, 1971, The doctor who enamined the body said that there was a depression on the fore-head belos' which the skull was fractured. The blood in the entire brain riatter was clotted. The cause of death was cerebral haenorrhaac. There was no disrute on this evidence. I hold all the doctor s evidence as proof of the deceased s injuries and cause of death. The only cniestion is how the deceased caine to sustain such injury. The prosecution called one witness •crho claimed to have seen the accused rinks the deceased with the stick which was - 'T 1 produced in courc as eahibri P1, his rae 1 .7 -Jrnsengelrs'e. . s/c L.sngete e who, together with the deceased., had gone to dnink beer at the ascuseds house folloring a traditional dance. nadengelwis'e alleged. o have seen the stick in he hands of the accused. night. In Jjj he is supported. by Pa. .1 - Bakanda d/o iajeti, one of the guests to tie pombe party atth e accused 's house, Ihis is the only fact on which these two agree. Otherwise there are material variations in their accounts of what took place that night Another point on thich .dndengeLrisye is corroborated is the fact that the deceased became a nuisance when, after leanng i on and inconveniencing K afulano, he was ordered out by the accused who, quiet justifidly, reserted the disturbance of his ginests by the deceased ubom had not invited in the first place. Froia the accounts of irnciengelwisye., Eakianda and hafulnano, it appears that 'unore was a scuffle when, on being orsetes onu, 0iie deceased rousod to comply end vne accused began pushing hir.. out. The accused was not alone in pushing the troublc.:omé intruder however, If Bakianda 's and ha±'ulano evicence is anythingo go oy, the accused rae assisted by these tee in fusing reasonable force to evict the intruder. There can be no g. 'in saying that the accused was entitled so to act. I hold it to have been established, taking into account the accused s statement at the Preliminary Inquiry and Bakianda's evidence, 4J'.at in the strugle to evict him, the deceased landed a I i*t on the accused. 's nostrils with the result that the accused loudly complained that the deceased had boned him on his hose. mat happened out.ide after ecforte to evict the deceased had succeed remains a mystery which Indenr9'elwisye 's attempt to untavel has not in any way enlightened the court, • . . . . . , . .. . . . . • . . 12 - 2 - The most disturbing feature of the evidence of kadenr:olisye and , akianda is that they did not choose to divulge the identity of the deceased's assailant with promptness. In fact if he is to be believed Andengelwisye stood idly by r4uid watehed the deceased, his relative, receive a fatal head injury from the accused who struck him in broad moonlight after having retreated in his house to fccch the stick which was very stoui and neavy, Unfortunacoly Bakianda, wrch whom andengeli'i.. eye went outside, did not see any rocnl: hi. he was posrcive that the night was dark; so dark that she could not see the deceased as he lay down until he spo1:e after she had called him out. The contradictions in the evidence of these two witnesses do not help to promote the case against the accusod, particularly when the only witnossos to his allggdd act behaved with suspicion rhen they failed to toll what they claim to have soon to the others who wore drinhing at the accused's house and oven to the clocoased '5 father. Their evidence can only be viewed in the Ughc of he. Peoc .ai'ricai Court of Appcel held in 2flUIUJ 1 J yR, 2 TLP(2.) 667 That where a witness admits that he wee cognizant of the crime as to which he testifies end tool: no means to prevent the commission of the offence, his evidence should be regarded as no boitcr than that of an aecoalice, Euch a ruling S must rest upon the view that where in the circunstajices described a man is quiescent and takes no steps to connmicate his lmowlod,c with a view to preventing the commission of Z the projecced crre, he must be -caken to be in sympathy wrc±i the criminals and so co 1.0 c a man whose evidence a court should only acc axcer the closest scruGlny'. In that case the witness had been given 1 oo/- to burn the comp :'.inant 's two shops. He did not reveal the scheme to the pal ice until it rns learnt from other sources. Although such a situation is not identical to the one obian:Lng in the current case, vie au-chority of ILdJIIJ et9 6 5 O1 where the r,noee 'se eviCeace wes under review saw the killing but did nothing to prevent is relevant • She did not report to the first person she met eiihor. The same Court (i.e. The East African Court of appeal) held;- A pe:son who merely acauiosces in what is happening or who fails to reort a crime is not netrially an accomplice but — that the weight to be given to s uch a peson r 's evidence will vary according' to the reason for the acquiscencc4 If it was aprarently based on ammroval 01 cIie crime, the evidence will be treated as no better than that of an accomplice. If i was based on indifference, the evidence will be treated with consaderacle caution; but ii br example it was the result of lear, there 15 no reason why the ovicence snould not he relied on. Applying these ?rinciples to the pro sent case, Andengeluieye was a pe:son who possibly witnessed a crime and who failed to report it. Bakianda also failed to report it although she had not passively witnessed it like !indengelwisye. .ndongcluisye did not cay why he idly stood by with arms folded 1ile his relative was being assaulted with a stout stick. His explanation that he did not reveal the deceased's aesalen -c to the deceased's facher because he feared the latter's short ceriper cannot be reasonable because chere was "ekala and the a .cused s gaescs co whom be would have reorted promptly. So would have Bai:ianda. Instead, she chose to wait till the deceased died before she revealed the identity of his assailant. V.hat with material contradictions between her evidence end that of Andengelwisye lias, lafulano and Bank, all of whom wore the accused's guests that night, it cannot be said with any degree of certainty that the accused was the author of the deceased's injury. The deceased himself did not help mattors by being inconsistent as to who had assaulted and injured him. On that night 1 Bank, Icafulano and Elias did net hear the deceased name the as-cused. it is doubtful, to say the least, for -akiancIa to he the only one to hear the deceased name the accused. Although he was asked about his assailant, the deceased did not mention him to his father, to I'Iekala, to the doctor or even to the olice o:.ficer. - 3 - The deceased consistantly said he did not know his assailant. I an therefore unable to agree witl2. Bakianda that the deceased named the accused. I find, that the deceased did not name his assailant to anyone and that Bakianda t s allegation lacks conviction and support, particularly when for no good reason she chose to keep quiet without promptly reporting what she says she heard. The case agaist the accused stands or falls on the evidence of Andengelwisye and akianciá. which has been shown on scrutiny to be not so reliablei, I would, for this reason, agree with the two gentlemen assessors that the accused has ilot been shown to have injured the deceased. I would, therefore, find him not guilty and acquit him. S M.H.A. I1 ead and delivered in open Court at Mbeya, this 8th day of March, 972. / k H.A. K%;Ii(IJTA / 1(1 TTm' U JJJ, J.I