19720814 TZHC Singida

IN THE HIGH COURT OF TANZANIA AT KONDOA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE N0.103/74 THE REPUBLIC VERSUS LAURENT S/O MSANGA Charge: Murder c/s 196 of the Penal Code.. JU D G M E N .T MAPIGANO AG0 J. The accused LAURENT SIO MSANGA stands charged with murder., contrary to section 196 of the Penal Code, in that on or about the 7th day of Ju1y, 1973 in Dodoma Region, he caused the death of one Michael s/o Mhiligwa, of malice aforethought 0 The prosecution case lies within narrow bounds and most of it is not controversial 0 It is obvious in the f ace of the evidence that the people within the area of Mpendo in Kondoa district, celebrated the 1973 Saba Saba day in typical countryside manner. They assembled at a spacious ground where they danced, ate and drank. There were three ngoma groups namely Nkande,, Hmia and Kidogobasi. But towards the end, diplorable events set in which had the effect of spoiling what should otherwise have been a sweet and befitting end. When it was 8 p.m., a wrangle developed between the first two groups and although efforts were made to quell it they were unsuccessful ? It just happened that there was no love lost between the two groups, and it would seem that this state of affairs had been going on for a while. The wrangle was succeeded by a flexing of muscles at each other and then by actual fighting0 Sticks were flown and stones hurled at one another, and at one moment the stalk fence was set on fire0 The said Michael Mhiligwa was present and was in the Nkandgroup, but it is not in evidence that he took part in the fighting. The accused who came from Hamia was also there0 He had come with his two wives.. His allegation that he was neither a dancer nor a fan is borne out by evidence of several prosecution witnesses. For most of the time he was seen drinking pombe and eating the roast meat, in the company of his wives. He had no weapon whatever. In the wake of the fighting there was confusion within the ground. People scuttled to save their lives and limbs, and it was so unpleasant that a husband.would run away leaving his wife and children behind. It was in this state of disorder that Michael Nhiligwa, a boy of about sixteen years ) was shot at with an arrow and died a short while thereafter. The arrow hit the right shoulder region and penetrated five inches deep into the anterior right shoulder joint and the chest wall, The accused is implicated in this killing by the testimony of one witness only and that is Mhumba Mtiana (PW7), who is the uncle of the deceased. Mhumba alleged that he managed to see the deceased shortly after he had been shot and that he heard one person one Laurent Upande, saying that the deceased had been shot by the accused, and further that when another round of fighting flared up, he happened to hear the accused urging his companions to finish him and saying that he had himself alre"dy dealt him blows. The accused disputed that he ever attacked any body, claiming that he himself ran away from the place and went home straightaway. Certainly what one Laurent Upande told Mhumba Mtiana was hearsay. Laurent Upande would have appeared as a witness for the prosecution, and it may be that he would have confirmed that allegation ./2 if he had appeared and given evidence. He was not traced and his whereabouts are not presently known0 Standing alone therefore, Mhumba Mtiana's allegation must be ignored in that eventuali.tye What remains is how much weight is to be given to his allegation that he heard, the accused encouraging his companions to; finish tthim and telling, them that he had himself dealt "him" some blows. The assessors are unanimously of the view that this evidence is worth extremely little. Mtiana's allegation was a bald one. He admitted that he did not actually see the accused at that moment', but that he just heard a voice which he recognised as being that of the accused. He did not explain to what extent he has been familiar with the voice of the accused. WithoUt so much as saying that this withess was deliberately telling lies therefore, I would agree with the assessors that given the circumstances then prevailing, the possibIlity of his making a mistake is ever present. Following this, I would say that the prosecution has not succeeded in proving this charge. In the result, I would find that the accused is not guilty of the murder of Michael Mhiligwa and must be acquitted. I so hold •and accordingly the accused is to be set free forthwith, unless he is detained on any other lawful cause. Judgment delivered in court at Kondoa. Mr. Alirnwike for the Republic. Mr. Mbezi for the Accused0 Accused present. Assessors thanked and dischargede 14/8/74 D.P0 MAPIGANO AG. JUDGE