19720807 TZHC Mbeya2

IN TILE HIGH COURT OP TAZANIA AT EYA ORIGINAL JIJRIFJDICTION 2 crt I72. TIi RUPUBLIC Versus J1JLIUS s/O IEGESE •• I- G' MURDER - c/s 196 of the Pemal Code. /1 JUDGThIIT , DIN4 AVAL - The accused, Juius s/a ribegese, stands charged with murder c/s 196 of t1 Penal Code. It is the Republic's case accuse ht the/ on or about the 16th day of Nay, 1971, at Ilundo village, in the district of Chunya, TDeya region, muxde'ed one NGJAVI S/O G-ORIGORIO. The accused, pleaded not guilty to the charge. In this case it is not at all in dispute that on the morning of 17th Nay, 1971, a dead body of a iliale adult was found on one of the foot-paths in Ilundo village. Equally it is not at all in dispute that the b.y was on 19th Ilsy, 1971 , identified to the doctor by one, Jampani s/a Hanisi (P.i.g) a cousin of the dece sed, as that of NG-WAVI S/O G-ORIGORIO. There ccu, therefore, be no doubt that Ngwoni s/o G-origorio is dead. The prosecution alleged that Navi was murdered and that it is the accused uho murdered him. In support of its case the prosecution brought witnesses tending to implicate the accused with the offence. Bernard (P.w. 2) related to the court that; on the morning of 17th Nay, 1971, he was harvestinr his millet at his sh- ,rba when the accused also turned up to harvest his crop of millet. The shamba of Bernard and that of the accused share a corron boundary. Accordin.c to his testimony after the usual greetings the accused told him that he had beaten a thief that night who wrnted' to steal hj fowls. Bernard further told the court the thiof was Ngwavi s/a Gorigorio and that Ngwavi ran towards his home. " Later on the same day Bernard net hii cell-leader, and a special constable wb.o told him that a dead body had boon found in the village. He went to where the dead body was lying and find that it was the body of ilguavi. Shela d/o Nhoo testified to the court that on the night of 16th May, 1971, she was inside, her hut when she heard a voice out side which shErecognized as that of the accused, her neighbour. • According to her testimony she heard the accused saying - You are the thief who is finishing my fowls, you will see me tonight". She told the court that next morning she saw a. dead body lying on a foot-path leading to her s,henba as she was going to a river to draw water. - - -2- Katisha d/o Gàmbi (P.WO 10), wife of the accused, after having been explained that she was not a compalable witness opted to give evidence. Shô testified to the court that on the niat of 16th May, 1971., her husband, the accused, cane home from a drinking party and told her that he had been chasing a thief. who was stealing their chicken and that he had beaten him and had run away. Remi /o 111 1d5 (P.i. 5), a village executive officer, related to the cat how he received information regarding a dead body in the village and how he interrogated the accused. According to his evidence, the accused admitted heating the deceased the previous night. The accused in an trnsworn statement denied beating the deceased, leave alone killing him. After my summing up to the assessors, both assessors were of the unanimous opinion that the accused was not guilty of any offence. They said that they cane to this conclusion because no one saw the accused assaulting the deceased. 'Jith respect I agree with the gentlemen aOeessors that no one saw the accused beating the deceased but, with even 60 greater respect I do not agree with their conclusion that because no one saw the accused beating the deceased the accused is. not guilty of any offence There is the testimony of Bernard (P,w. 2) who is 'ccused's uncle which is to the effect that the accused ±'elated to hire that he had beaten up a thief who was stealing his chicken. He mentioned the thief as Ngiavi /o Gorigorio, the deceased. The same day, the deceased is found lying on a footpath dead not very far' from the accused f house. There is the evidence of Katisha, accused 'a wife, which confiru Bernard's testimony about what the accused told him. There is the evidence of Shela which also supports the evidenáe of Bernard and Katisha. Hero I would like to mention the argument by the learned defence counsel that Shela's evidence should not be believed as there was evidence of C enemity between Shela's husband and the accused. I do not wich to suggest that her testimony should be dismissed, but I agree that there being evidence that the accused and Shela's husband had a dispute over a piece of land, Shela's testimony should be cautiously assessed because of the obvious possibility that it might be tainted. But, even if for argument's sake, this court was to disregard Shel&sevidenc9, there still remains the testiseony of Bernard,. the accused' cousin, and that of Katisha, the accused's wife. The court sees no reason (and the defence has suggested none) why Bernard should, out of the blue, decide to condemn the accused. Nor is there any reason why accused's wife should have decided to manufature a story against her husband 9 I, with respect, agree with the learned state attorney's submission that the accused did assault the deceased on the material night; and that the assault was unlawful. The vital questiOn, however,.. is whether the unlawful assault of the deceased by the accused was the cause of death of the deceased as alleged by the prosecution. -3- In support of this argument tho Republic brought forward as a witness the doctor who performed post-mortem exsniination of the deceased four days after his death. The doctor's report (exhibit 'Ar) and his evidence in court as to what was the canse of death of the deceased is diometricafly opposed to what the prosecution would like this court to believe. In the post-mortem report the doctor says that the deceased died Of respiratory failure. In the summary of the report the doctor says that the body was waterlogged, and that the right lung was enlarged. The left lung wa said to be shrunken and collapsed with blood-stained fluid in the pleural cavity, - When cross-examined by the court the doctor said that according to his findings the most probable cause of death was resp'iratory failure due to drawning. These findings of the doctor as to what was the cause of death are clearly incosistent with the allegation by the Republic that it was the accused who caused the death of the deceased. At this juncture, I would also like to mention the evidence of Remi (P.w. 5) special constable Nbwiga (P.:t. 7), the testimony of Herenico (P.W. 8), and the evidence of detective surgent major Andrew (P.w. 13). All these witnesses visited the scene of the crime and examined the body of the deceased only a matter of hours after his death. Thefall told the court that they did not see any sigus of violence on the body of the deceased. •_This being the evidence, I tend to agree with the learnea defence counsel that there is no evidence to support the allegation that the accused murdered the deceased. Indeed, the evidence is not even strong enough to support the lesser offence of manslaughter. On the evidence, the most that can he said is that the accused assaulted the deceased. I therefore find the accused not guilty of murder but guilty of assault 'amausing actual bo,ily harm c/s 241 of the Penal Crd - MBEYA, T JUDGT OSECUTI ON: Nothing known. The accused is married to two wives and has four children. The accused has been in custody for 15 months. I ask your lordship to treat him leniently. ACCUSED: I have nothing to add. SE N T E N C E: The accused is extremely lucky that medical evidence is what it is - Otherwise he would have been guilty of murder. YOU ARE SENTENCED TO TWO (2) YEARS INPRISONNNT.. I'EYA, N. . rrz AVS 7th 1 9 72. .-- RIG-HT OF ARAI TO .A. EX,AIEED NBEYA, N. 7 th Auut j972. JUDGE