19720902 TZHC Singida

I IN T.J13 HIS-H C0UT OF TANZANIA 1T. SING t.DA. 0 TJ- TLLI (DODOhi atc;-I:Y) Cr iminal Sessions Case No.101 of 1972 The Hepublic versus Charge; Nanslaughter c/s 195 of the Penal Code, /JuDGNI'NT,j KiTikima The cused is charged with the murder of Areina alias Sita Ndd Le w/o Ilohamed. Jemi on the 20th of January, 1 972. He has denied he charge. The ]Jearned counsel for the republic has conceded that the evideb.ce is support of the charge is purely circumsta- ncial. There is, however, no question that the deceased is dead, her bod having been found on the wayside some 400 paces from the home f Ntandu where there was pombe on the eve of the discovery f the body. The doctor who performed the post- mortem found the deceased to have died of brain compression due to the skLll having been fractured. The doctor went on to say that the fracture was occasioned by a sharp instrument. From this evidnce and on account of the fact that the body was found lying on the wayside the court is satisfied that the deceased d±ed violently and that her death was the result of foul play on the part of someone. It is the prosecution's contention that that person is the accused. To that end a number of circumstances have been presented to show that the killer of the deceased could not be any other person but the accused. P,iJ.1 Nwinga Amosi and P.7.3 Balisa Mihambo attended the pombe party at Ntandu's. They drank till about 5.00 p.m. when they deciaed to leave. The accused and the deceased who were both drinking at Ntandu's departed with them. The four then went togebher till they reached place where their ways parted - a sorb of cross roads. According to Bahima and Mwinga, the fobt path they took went through the bush. The point where th two witnesses iarted company with the accused and the deceasci was also in the bush. nd when the deceased sought to persuade the witnesses to accompany her ai.d the accused, the acused asked the witnesses not to do so. All this evidence is accepted by the court which observed the demeanour of the witnesses Bahia and iIwinga and found no cause to douhtthem especially when Bahima claimed to be related to the accussci These two witnesses did not contradict each other in any mterial particular, although their evidence varies on minor point of detail. Tiae court accepts their evidence ahd holds that the accused was the person whom they saw accompanying the deceased in the direction where her body was found the next morning. The ourt therefore concludes that the accused was the last perso$ to be seen with the deceased before she was found dead on the wayside. Bahima and Nwinga told the court that the accusd had an axe at Ntandus and that they had time to study it bcause they sat there for a long time. When they departed, accused carried the axe on his shoulder. He was dressed in a greyish coat which they identified in court without hesis - ation. They identified the axe in the same way. - . : ...o.....?...,..//2 ..- -.J 2 The accused's d efeice that the ae x produced in evidence was not the one he carr/ied that day cannot be reasonable because although the axe p:d'oduced in court was not found to have traces of human bl od the accused had opportunity to clean it during the lon interval between the killing and his arrest. Indeed, even if it was accepted that he had a different axe on the day, he was last seen with the deceased the fact would still remain that o had an axe which was said by the doctor to be the sort of]instruinent capable of inflicting the injury that was the caus of the death of the deceased. By contra- dicting the identification of the axe, the a•ccued cannot be said to have shakn the case against him in any way, especially when he tends to confirm his possession of an axe that clay. The court on its / part unhesitatingly finds it to have been proved that the acused carried an axe when he was last seen with the deceasedj, The proscution has tried to show further that the accused had oppotu:ciity to kill the deceased without booing seen in the actL He was alone with the deceased on a bushy foot—path.. He wS armed with an axe. He could therefore strike the deceaseJ whon he is reported to have boon seducing for sometime. 2 ho act that his foot prints were roco:nisod by his fellow villagers at the scone tends to support the prosecu- tion argument dhat he was in fact the person who struck the deceased on the/head with an axe and killed her. Natui'ally the accused denied All these facts but because they were given by witnesses who hid no cause to tell lies against him. The court takes these facj9s to have been proved. No reasonable person could doubt the/unjiteested. witnesses Those demeanour in the witness box lent nothing to be desired. It is 4o lees significant that the Government Chemist found the accued's coat to be stained with Human blood of the same grou - ing as the deceased's. The same coat was identified by Bahima and Mwinga to be the same ona which the accused wo'e on the day they accompanied him from the poinbe party atJ Ntandu's In him evidence the accused swore and said that he did not kill ho deceased. He told the court how he spent the night at øhima's home after urning to Ntandu's again at 7.00 p.m. / or thereabouts He retdoes not account for the interval betwen five and seven during which interval Saidi Ntandu sid tae people dispersed and some of them returned later. 1him time was long enough for the accused to kill the deceased since the body was found lying only 400 paces away from Ntantu house. The court is satisfied that the circums- tances listedl above highly inuipato. the accused, and that they are incpable of supporting any hypothesis except his guilty. her are inconsistent with his innocence. The court therefore di/sa greos with the two gentlemen assessor and finds that t/he accused killed the deceased. The reasons for this diffordnce of opinion have been indicated in the course of the judemoit. The/ gentleman assessor who exriressod the same view as that held by the court wont on to advise the court that the deceasc killed with malice aforethought. While agreeing with him thiat it was indeed the accused who killed the deceased, the court us loft in considerable doubt whether the accused was not dumi: at the time of committing the offence. The accused had given evidence that he was drinking that day. In this he is/coniirmed by those prosecution witnesses who wont to drink t Ntandu's. So much did the accused drink that he vomitto. when Chima invited him to take food with him a • . . . . • . .•m a .. a 4% I- -. In the circunstancs therefore, it cannot be said that the accused killed the/decoasod in cold blood after having planned to do so. It is vei'y likely that the accusaci was drunk at the time when he commited the offence. Accordingly the accused is found not :uilty of murder. Instead he is found guilty of manslauhtor for w1ic11 offencc: he is hereby convicted. ]f .1-I .A. Irikima L _1l.di. I Accused; 1st offeider. itiationj- Accuhed has been in cu stody for seven months. Accuised has a wife and six children. He is the solet supporter of that family. Accused repeflts his Jundersirable act. I pray for leniency. Allocu t u s: N I L entencej- The /accusod has been found guilty of a very serious offence. But for the evidence of his having taken liqur that day. He would have been convicted of murdr. He should therefore expect leniency. He is sentfenced to seven years imprisonment. / jwi1cima I Jua.o Appeap rights explained. / M.H.A. Kwikima SINdII.DA. 2nd Eepterabfer, 1972.