19730710 TZHC Dodoma

r -u . .- i- • -,--- ----.- - -. - Pp IN TH1 AIGH COURT OF TUZNIA. nT DODOi.a, ORIG-IJAL JURISDICTION Criminal Sessions Case No. 14 of 1973 I The Republic versus OiSSAN. ZqLr Nurder c/s 196 of the Penal Code. LJUDGMNTJ P. ZA1TAS J. The accused Augustino Hassan s tands charged with murder c/s 196 of the Penal Code. It is alleged by the Republic that the accused on or about the 16th clay of April, 1971 at Mferejini village in Kon;ioa District Dodoma Region, murdered one, SIMA D/O SUNGI. The accused pleaded, not guilty. From the evidence of Dj:. 1Aushi(P.1.1 ) and that of Ramadhani Suii (P:J.3) there can be no doubt that a girly by the name of Sima d/o bungi has died. iqually there can be no shadow of doubt that she died. a violent death. It is the prosecution's case that it is the accused who killed her. On the morning of 1 6/4/7 1 the deceased left her house carrying pumpkins in a Killiar, nil to her grandfather . 7 (P. 1.12) who lives at Changaa village about an hour's walk from the deceased's house. She delivered the pumpkins and had lunch with her rand-father. Soon after lunch she started her way back home carrying millet in the Kihare She did not reach her destination. Next day her father asked Ramadhani(P.1.3) to go to the grand-father's house and find out what had prevented her from returning home. According to amadhani 's evidence for two days lie failed to comply with his father(s request as he was busy grazing their cattle and harnesting millet. On the third day he procee-Thd to his grand-father(P.J.12) from whom he learnt that Sima had loft towards her house on the same day she delivered the pumpkins to him. Ramadhani and his grand-father left towards the deceased's house following a foot-path rough the hills. .s they were on their way they spotted aKihare on the ground near the foot-path. They recognized the 'Kiharo as one Sima was carring on the day she left hergrand-father's house. They also found millet scattered on •the ground near the Kihareu They became suspicions and raised an alarm. Vi,llagers respondo to the alarm and a search started. Soon after the deceased's body was found about 52 paces from the foot-path. The police was onac:t:ed. and after investi- gations the accused was arrested and charged with the murder of the deceased. Insupport of its case the Republic produced two star witnesses. These witnesses are Shida bdallah (P.1.5) and hgeiii Issa(P. 1.6). In her evidence in chief Shida related to tile Court that one- Fri-day she t grazing 'cattl-- in 'lilJis:. nith her sictr 141g- eni-(-P.-.-T.6) when they saw the accused sitting on a stone. - - - - - 2 - According to her testimony they also saw a Kihare on the ground and that the accused was sitting about 9 paces from the Kiharo. The witness further told the court that when the x accused saw them he picked stones and started chasing thorn tolling thorn that if they relate anything to anyone they . would see him 1 On being cross-examined she said that the accused was sitting about 31 paces I::om the hiharo and that did not remember what the accused said to them on that day. On further cross examination she said that i'igeni did not see the accused on that day. On re-examination the witness said that Mgni also sw the accused. She further told the court that she and heai saw the docoaseds body lying near the accused. hgoni s evidence is to the effect that she saw the accused sit -Ging on a stone and that there was a dead body he hind hi.m. -ccorc1in to her evidence in ci1ii she recognized Gho body as taa of iina. She relaGd to the court tiac she - later told her mothcr(?07.8) what she had seen but that her mother did net take any stops as she was busy brewing pombo. On c ross examination the same witnees said that it :ras hida who had told her that she had seen a dead body and that she did not herself coo it. One Iddi 1-lassani (P.i.4) tOCtJIieCI to the court that one day Shida (P..5) related to him that sac nad been chased by a person in the hills while she was grazl:.g her catGlo. I-To related to his cell- leader what Shida had told him and. that the two called at Shida's house in order to invoctidate the matter further. According to his testimony they interrogated Shiia in the prescnca.of her Aunt Alima but that this time Shicia denied telling him anything and went further and said that she did aot even moot him. kwapani(P.TiJ.8), Flothor of Ngoni also gave evidence. ccording to her evidence in chief one day her daughter Mgsni(P..6) and Shida (P.;.5) related to hr that the accused I:.ad killed a person. She also told the court that they told her that the pereon killed was Sima. The witness further told the court that she related the two girls s ;ory to people who wore in her house. ong these peole wore according to her testimony, Issa, Oman and Athumani, She told the court that these peoplo ignored her report saying that they were not going to investigate stupid thin•s. The witness cotiaued and s:id that on the same night at about 8 p.m. the accucel cams to nor house and she offered him posbe which he refused saying that ho wac feoliii cold. She also offerd him a laco to sleep. On being cross.exaroined tue wrcnss said that the deceased was her niece. She also said that her brother was looking for the cleceasd but that she decided not to tell him what she had hoard as she feared that he would suspect her. Surgent Lucas(f. 1.11) testified to the court how he investigated the case. aceording to his evidence The body was lying in the bush about 52 paces from the foot-path and that a person standing at -the foot-path could not see the body. One, 1\Tjabula(P..6) gave evidence in connection with the accu ed 's extra-judicial statement. As the learned defence counsel did not object to admission of the statement, the statement w .s rd to the court and admitted as exhibit A? 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SJOSS.S5's uPTOTIU 03 074 0 1 dn TuTwmns JCJ - 4 - On croos examination she gave a totally different Nory, Now she said t}ia -b she did not personally see the body and that she rs only told by Shida about a deod body. • here arc a number of other features in the prosecution s case which havt caused me uneasiness. Nwapani (P.1.8) told the court tha' the decoa:od was her niece. Accoring to her 'kjvidencs the two girls had told her that the accused had killed the deceased. This was serious news, but iiwapani did not think it important to report what had been related to her brother, the father of the deceased, who was (and in the knowledge of Nwapani) busy lool:ing for his daughter. Nor did she relate what she had heard to her husband (2..i.10). And what is oven more surprising the same evening the two girls told, her that the accused had killed the deceased, the accused came to her iouse, She did not apparently think it necesanry to interrogate him about the two girls story. On the contrary she was very hospitable to him. bho offered him pombe and shel -Ger. This most abnormal behavior of r'lwapani leaves roe in no doubt that her testimony that the two girls reported to her that the accused had killed the deceased is cooked up story There are other co existing circumstances which tend to weaken the prosecution case. The accused 's visit at f4wapanis houe where lie was sure to see i'igeni (P.'.T.6) is not consistent with guilt, Nor is his visit to the scene after the alarm. It could of course be argued that the accused did so s a camouflage but to say so would amount to more speculation as there is no evidence to suport such argument. The accused my be telling lies when he says in his extra- judicial statement and in his dof'ence before this court that he did not know anything regar-Jing the death of the deceased. But the essential question in a criminal charge is act the truth or untruth of the defence, but whether the case for the prosecution has OCCI1 proved beyond reasonable doubt. Paking into account that the discrepancies and contradictions to which I have already referred to, besides the fact that the case is wholly baeod on circumstantial evidence I would conclude, as I do that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. I accordingly find the accused not guilty and I order that he be acquitted0 Judgoment delivered in open court this 1 0th day of July 1973 Assessors thanked and dischargd. N.S. 141\TZAV'o.,S, Nwipopo - for the Republic. JLrDcrj. Rwman- for the accused,