19730711 TZHC Dodoma

IN THE I-JIG-H COURT OF TANZANIA AT SING-IDA ONJOIJIAL JlISDICTION (D(- Do1'.'IA REG-ISTRY) CRININAL S:SSIQlTS CASE NO. 42 OF 1973 THE RJPUBLIC VIRSUS BEJ'JA ( NITYABAI @ SAIDI 5/0 LIMt..J CERGE: NAUSIUGHTDR: c/s 1 96 OF TTE - 9- 1974 PELL CODE. M The accused is charged with the offence of manslaughter contrary to section 195 of the Penal Code, in that on or about the I et clay of April, 1972 in Singida Region, he unlawfully killed one l\Ttandu s/a Hema. There is no doubt whatsoever that Ntandu s/a Rena died on the let day of April, 1972 in the village of Ilolo in the district of 5ingida He died when he was proceeding home from drinking sessions. The doctor who performed the autopsy found out that the spleen had been raptured and that the left kidney was contused. He was of the opinion that death was due to the raptured spleen and shock on account of internal bleeding. The central issue in this case is whether it was the accused who killed the deceased. I The defence of the accused is that of an alibi. In his short statement he said that he was neither in the village of Ilolo nor at the scene of crime at the material time. He said he was in the village of Nbugani and that he did not drink with the deceased on that day. He did not call any witness to confirm his story. However, this is not to say that the accused assumed any burden in putting forward his defence of alibi. Prosecution case rests in the main upon the testimony of Ilolo s/a i11enyi PW4 and Muluda Nura PW3 who supports and corrobora't..part of the evidence given by Ilolo. Dealing with the testinony of halo, he testified that he knew the deceased f or many yeazs and that he saw him on the day he net his death. He stated. that he also knew the accused who had been staying in that•villag'in the past. The accuèed called at his house on the day deceased died, when he, PN4, was preparing to go out for a drink. Accused left his luggage at his house and went togethor with PW4. They drank at the house of one Ikhunya, whore the deceased as well as PW3 were also present. They then loft and went to the house of one Nrhambi, where hePIJ4 also drank. It is not clear whether the accused took any drink at that place. From there they went to the house of PW3 without the accused, where they continued drinking. /2 4. -a /._) /c_ •b1 . .- .,. After a while the deased while in drink got up and told then that he was going hone. As he was leaving, PWaw theaccused emerging from the back tbf the house and leavpn t4,0 of the deceased. Another person who was nocaled: Ostify one, Hisanga Holoka,' also left to follow the;AfG a short while, PW4 heard an outcry and he decided toproceed'to the seene of outcry. He claimed that as he was walking, a person came running from the scene and collided with him. He said it was pitch dark and he only recognised that person when he had briefly talked to him. lIe said he asked the man what was the matter and the man replied that the deceased beaten him. The man did not allow any further questioning and remarked to PW4 that why he was asking him so many questions. When PJ4 tried to get hold of him, the man resorted to some wrestling. He fell PW4 thrice and then ran away. 24'4 said he identiid that man to be the accused. PW3 confirmed that he haeen drinking with the accused and the deceased on that he did not say that when the deceased left his hou accused was seated. They found the dead body of thè deceased a short distance in the direction from where the person was running. PW4 further alleged that when he went to his house, he did not find the accused's luggage and that he dinot see the accused again. Against this, there was the evidence of Muhagi d/o Mugandi PW6 the wife of the deceasadwho testified that she saw the accused on the following moiiihg and that accused dashed from PW4's house and fled into the bush. Accord- ing to her, there were other people at the house but they appear to have given no chase. It is difficult to resolve who between PW4 and PW6 was telling the truth. Be that as it na3T, the accused was arrested on 9th day of April, 1972 at Manyoni when he was going about his duties there. The question that now poses itself is, was the accused present in the village of Ilolo on the day Ntandu died? In my judgaent he was certainly present. He was seen there by and he drank there with both PW3 and PW4 who knew him very well. Concerning this aspect of the matter I therefore reject his defence of alibi and the assessors appear to have the same view. The other and the most crucial question is whether it was the accused who killed the deceased. The evidence there is, is wholly circumstantial, in that no witness saw the accused assaulting the deceased. I did stress this when advising the assessors. I again address my mind in these terms that where the evidence led to establish any particular fact is 4curista- ntial the prosecutor t1ust prove beyond reasonable qui4 each of the primary facts necessary to support the infe4 which one is asked to draw and it must also prove that thcinference is the only reasonable inference which can be drEin from the facts proved. If some other plausible inference can be. drawn from the facts proved, then the inference alleged by the prosecution will not have been roved or established. It is true the accused had been drinking with F1 ,13, F4 and the deceased, a short while before the deceased tact his deat}L I agree that he died while he was on his way home. I hold that PW4 heard an outcry shortly after deceased had left them at the house of PW3. But is it true that the accused was together with the deceased when the deceased left the house of PW3? There is only the evidence of PT4 which tends to show that deceased left with accused. PW3 did not see that and in fact he stated that the deceased left the accused sitting. It may be aid thaPW3 was in drink; but it may be similarly said of PW4: who had started drinking in the morning. What might be mor damning testimony however is the allegation by PW4 that he collided with the accused who was allegedly running from the scene. As shown already accused allegedly., told PW4 that he had been beaten up by deceased and that he did not want to talk about it any more and that he wrestled PW4 down on two occasions and then resumed nhin.;:: •" /3 /3 It is probably true that a collision took place, h:werer it is to be determined whhor it is safe to accept identification of the person with whom he collided.. In consider- ing this point I have to bear in my mind that the ight was pitch dark and that 2W4 was most probably in drink. Given the short and snap exchange of words PW4 had with that person, it is not beyond a reasonable that PW4's identification is correct and true. The assessors advise that the c:rcunstances were not all that favourable to facilitate a reliable identi- fication and I think that their observation is v1id. I there- fore hold that it has not been established with cctainty, that it was the accused who was running away from the ene. We may as well surmise, that the deceased met his death..by being assaulted by another person, or, rather remotely, y falling down and rapturing his spleen. In the result, I come to the conclusion that. the accused is not guilty of the offence and he is to 1ed1scharged forthwith. Delivered in Court at Singida this 11th '.ay of July, 1 973. D. P. HAPIGAN, O AG. JUDGE