19730804 TZHC Iringa

- / IN THE HIGH COURT OF TANZANIA ------ -- AT IRINGA ORIGINAL JURISDICTION (D0DOMA REGISTRY) CRIMINiL SESSIONS CASE NO.4 OF 1973 THE REPUBLIC Versus DOMINICUS SANGA 9 1974 • MPE NDAKAZI MHI MBA Cjr ____ Murder c/s 196 of the Penal Code Cap. 16 Vol I of the laws0 JUDGMENT Mi2ItVAJ. The accused Dominieus Sanga stands charged with murder c/S 113 of the Pcmai Code0 It is the Republic's case that the accuse.d on 01: aboL the night of 2nd/rd of November 1971 burnt down a house of one AC:ea 'o Nvembeke and thereby causing the death of Andrea, his wife and tiir Tiree children who were at the material time sleeping in the house TLa accised pleaded not guilty, to tie charge. That Ardrea s/o Nyembeke ar. -I hi family have died there can be no dispute. Equally there is no argume::t theft they died of burns after their house had been totally bunt cown. The only question to be arswered is who was the perpetrator of this crime? The Republic argued that it was the accused who burnt dcwn ti house and thereby causing the death of Andrea and his family.. On 2/11/71 one, Eliuter (PW4) had pombe at his house. As uial i:is neghbours came to drinking pombe. The pombe was for build- ing EUuter house. Among the people who visited Eliuter's house on that di are Joseph (Pw2) Mpendakazi (PW8), the deceased Andrea, and ti'e acised0 As they were drinking there arose an argument as to V wio is :nore important between a worker and a peasent. It would appear fi.m t2 evience that the argument was betwe .n the accused and Mpendai.azi. The accused argued that a worker is more important than a east whereas Npendakazi was of the opposite view0 This argument lEi to a qua'rel when Mpendakazi asked the accused (who had at one time eped with Mpendakazi's siter) that if he as a worker was wca!thirz thar. a peasant why was it t'hat he had failed to pay dwry he was told to pay before he marries Mpendakazi's sister. The accused i - sai'. to hcve replied that he had left Mpendakazi's sister to be nir rieC by her relatives. This, Mpendakazi took as an insalt to him ard st':od up in order to fight with the accused.the accused 1sostood up but oeople intervened. According to the evidence of Mpendakazi (PW8) at this jractu.:.3 he left the pornbe—party; but that as he was going the accused fcllowed him with stones in his hands. Mpendakazi stopped and asked the accised why he was followinghd Lataccused is reported to pave rl'iec c - "Tod we have met". Soon after the deceased, one, Benedict, Jcseph. Antony and one, Dominicus Nyonole1a arrived. According to ti. e evidence of Mpendakazi the deceased asked the accused why he was still tollowing Mpendakazi and warned him that if he continued follow:.ig him he would be tied. Then according to Mpendakazi the accused left him and started following the deceased and Joseph and timat he accused threw something which hit the deceased in his back. TLe.dedased turned round and chased the accused who ran away. 0 1,,,.' Julius (PW3) related to the court that on 2/11/71 at about 8.p.m., he was sleeping in his house with other youths who he named as Marcus Emilian and John. According to his evidence as they were sleeping the accused entered the house without knocking and asked him whether his brother Joseph was present. On being told that Joseph was not there the accused was armed with a spear and a panga... The witness further told the court that the accused returned to the house two more times asking whether Joseph had returned. The third time the accused is reported to have said that he would look for Joseph the whole night and that if he did not see him he would follow Andrea, the deceased. Mwajuma (PW5) also gave evidence. She testified to court how she one time eloped with, the accused to Njornbe.and how her parents' followed her and returned her home. According to her evidence she is still living with her parents as the accused'has up to now failed to pay the necessary dowry before he takes her as his.wife. The witness related to the court that on 2/11/71 at about 8 p.m. the accused visited her. According to her evidence the accused called her outside and that bbe .ssaw him armed with a spear and a panga. On asking the accused where he was coming from the accused is reported to have replied that he was going to do something nasty that night - And that he added that he was going to kill someone. Mwajuma said that her step—mother Sabu, was present when accused uttered such remarks. According'to her testimony she asked her young brother Titus to go and call their elder brother Mpendakazi. She also told the court that soon after Mpendakazi arrived accompanied by one, Jairosi. In her testimony she said that when the accused saw Mpendakazi and Jairosi approaching he took to his heels. Next day bbe heard of the burning of Andrea's house and the death of Andrea and his family. Titus (Pw6) related to the 'court how on the night of 2/11/71 the accused visited the house in which his sister Mwajuma and his step—mother Sabu lived, According to his evidence he saw the accused armed with a panga, a spear and a club. He also told the court how he went and called Mpendakazi and Jairosi and that the accused ran away when he saw them approaching. Jairosi (Pw7) also gave evidence. He related to the court how he and Npendakazi went to Mwajuma's house after they had been called by Titus and told that the accused had 'visited their sister armed with a panga and a spear.. He told the court that as they were approaching Mwajuma's house the accused saw them and ran away. The witness said that he saw the accused carrying a panga and a spear. V Mpendakazi testified to the court.that he visited Mwajuma's house after Titus had informed them that the accused was there armed with a panga and a spear.. According to his evidence when they were approaching Mwajuma's house the accused ran away passing only about five paces from whete they were standing. He said that he could not see what the accused was carrying as it was night time. Next morning he heard that Andrea and his family had died after their house had been burnt down.. The Republic also brought forward evidence in connection with the accused's arrest.. Israel Julius (Pwll) a field officer at Kikorigoma tobacco farm related to the court how one day in November 1971 one, Bakulichuma (Pw12) went to him and reported that the accused (who was at that time a labourer in the tobacco farm) was wanted for burning down a house. The withess told the court that he, Bakulichuma and othei people proceeded to the accused's camp and that as they were going they saw the accused outside his camp clad in a blanket; but that when the accused saw them ran away. He told the court that they met one Thelathirij who told them that he had met the accused running towards Ruaha river, Bakulichuma (Pw12) related to the court how he Irael and other people went to accused's camp and how they met one, Thelathini who told them that he, had seen accused running towards the river. The witness also told the court that he also saw a man clad in a blanket but that this man was one s - Makange and not the accused. Bakulichuma a 0/3 - - o c o a o • 0 a a / 3 further related to the court that after sometime the accused was spotted hiding in the bush and that the workers in the farm chased and arrested him. According to Bakulichuma the accused was interrogated about the burning down of Andrea's house and that he admitted burning the house with his friend Mpendakazi. The accused gave his defence on oath0 He denied burning Andrea's house on the matetial night, According to his defence on 2/11/71 at about 12 noon he met Mpendakazi at Eluter's house where there was pombe. He told the court that the pombe was for building Eliuter's house and that he also participated in building the house The accused said that Joseph Nbuma and Andrea, the deceased were also at the pombe-party.. The accused admitted that there was an argument between him and Mpendakazi as told by the prosecution but denied that it was Mpendakazi who left the drinking place first. According to his defence he left the room after he had been ordered by the people present to leave the room,0 He testified that when he left the room Mpendakazi followed him and ordered him to stop. He refused to stop and that Mpendakazi and other people started chasing him. He said that he managed to run away from Mpendakazi. The accused also told the court that he in the same day went to drink more pombe at a pombe- shop where he remained up to 6 p.m. He said that he met Joseph there and that he drank pombe with him. The accused admitted going to Mwajuma' sbut denied the prosecution case that he was armed with a spear and a panga and a club when he visited her. According to his testimony when he arrived there he met Titus whom he asked to call Mwajuma for him. He said that Titus refused saying that he had heard that the accused had quarreled with his (Titus) brother Mpendak2zi. The accused said that he knocked the door to Mwajuma's house and that Mwajuma's mother responded and opened the door and came out. He said that Sabu told him that if he remained there he would be beaten because he had abused Mpendakazi - And that as he was talking to Sabu Mpendakazi and Jairosi arrived. The former carrying a spear and a club and the later armed with a panga and stones.. Then he heard Mpendakazi saying "You will see me tonight". The accused starting running and that Mpendakazi threw the club to him but that it missed him and he ran back home. According to his dfence he did not talk to Mwajuma that night. He also told the court that he came to know of Andrea's death and the burning of his house when he was arrested. He denied Bakuli- chuma's evidence that he admitted burning Andrea's house with Mpenda- kazi • The accused also denied that he was arrested while hiding in the bush. According to his defence he was arrested as he was returning from drinking pombe at one, Mwamwanyas house. In his submission the learned state attorney asked the court to find the accused guilty of the offence of murder as charged. It was the Republic's argument that although the evidence against the accused was wholly circumstantial, it left no doubt that the accused was the person who burnt Andrea's house on the material night. The court was referred to the evidence of Bakulichuma, the cell-leader, which was to the effect that the accused admitted burning the house with Mpendaka- zio 4n rebuttal the learned defence counsel argued that apart from the fact that the prosecution case was based on circumstantial evidence there were contradictionin the evidence of all the prosecution wtness. It was also submitted that even .if the court accepted that the accused told Bakulichuma that he participated in the burning of the house, the court has to take into account the circumstances under which the accused was at the material time. According to the defence the accused was subjected to violence and that he may have admitted comthtting the offence in order to serve his life. After my summing up to the gentlemen and lady assessors they were both of the unanimous opinion that the evidence adduced was . .a /4 0 0 0 a mainly based .on suspicion and they fourd the accused not guilty. In this case the Republic mainly depends on circumstantial evidence in support of its case. This being the position this court must, bef.-ro deciding upon a conviction, find that the incililpatory facts are incompatible with the innocence of the'accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt - SIMON MUSOKE v R (1958) E.A 715. The question therefore to be decided is whether this high standard of proof has been made possible by the prosecution evidence in this case. . I would, with respect to the learned state attorney, say that all the prosecution witnesses were, through cross-examination by the learned defence counsel as well as the court,. hopelessly discredited.Julius (PW3) for example told the court in his examination in chief said that the accused told him that night that if he failed to see Joseph he would go to Andrea. When he went to Josephand reported that the accused had been there three times looking for t1. 'arc.cused he did not mention that the accused had said that if he did no't find the accused •<Joseph) he would go to Andrea, This omis- sion by Julias would of course be taken as not imputing falsehood in the part of Julias as he may have forgotten some details of the accused's utterances that night. But, the omission becomes more glarring when one finds that Julias did not again mention in his statement to the police that the accused had told him that becworidsgb bo the deceased that night. As the deceaseds house had already been burnt down and the deceased and his family k],lled when Julias gave his statement I fail to understand why the àccued did not find it necessary to relate this very important information to the police. In the absence of good explanation why he did not tell the police that the accused said he was going to visit Andrea that night the only reasonable inference is that he did not hear the accused saying that he would visit the deceased that night. As to the evidence of Mwajuma (PW5),. she told the court in her examination in chief that the accused visited her on the night of 2/11/71 armed with a anga and a spear and told her that he was going to do something nasty that same night in that he was going to kill someone. Had Mwajumats testimony ended here, then there would be no doubt that her evidence would have gone a long way to implicate the accused with the offence charged. But Mwajuma gave a totally different story when cross- examined by the defence. She said and I quotte: "The accused telked with my step-mother at the verandah. I only heard mother telling the accused to go away". "Yes I told the police that I did not talk to the accused". With such evidence the court had no alternative but to come to the conclusion that false. Titus (PW6) related to the court in his evidence in chief that he saw the accused when he visited Mwajuma's house and that the accused was armed with a spear, a panga and a club. He however gave a diametrically opposed story when cross-examimation by the learned defence counsel. He said: " I do not know what the accused was carrying He was about 20 pace from us. I could see that he was carrying a panga, a spear and a club." Jairosi (Pw7) told the court that he visited Mwajuma(s house after being called by Titus and that he was accompanied by Mpendakazi. According to his evidence he saw the accused carrying a spear and a panga when he was 19 paces from him running away. The withess said that he could see the weapons clearly as there was bright-moon-light. Mpendakazi (PW8) who was with Jairosi told the court that although the accused passed about 5 paces from where they were standing he could not identify what the accused was carrying as it was night time. Mpendakazi also told the court that Mwajuma did not tell him tht the accused had told her that he was going to kill someone that night. Indeed this witness said it was his first time to hear such story. This.is the evidence that the prosecution wanted the court to believe and find that the accused visited Nwajuma's armed with a spear, a panga and a club and that he threatened to kill someone that night. i.S t:) S •O A As to the evidence of Bakulichuma that the accused confesed to him that he and Mpendakazi were the people who had burnt down Andrea's house I would say that I was not at all impressed by the manner he conducted himself in the witness-box 0 He was evasive and the court had the impression that he was tryihg to tell the court more than what he really knew about the case0 Though he said that the accused confessed that he had burnt the deceased's house he did not think it necessary to tell the police so when he gave his statement0 When cross-examined by the learned defence counsel; Bakulichuma said: "Itgave my statement to the police 0 "The statement was read back to me. I spoke in Kihehe and they read back my statement in Swahili which language I am not conversant. I did not tell the police that the accused admitted burning the deceased's house. I thought what I had told him was enough. I had told the police about the accused's confession but they said that they were going to take Mpendakazi's statement first. I thought they had put it down". Such was the evidence of Bakulichuma, a cell-leader. It is on this evidence that the court was asked to find that the accused had confessed burning the house and therefore find him guilty of the murder of Andrea and his family. There is also contra- diction between the evidence of Bakulichuma and that of Israel (PWll). The former said that he did not see the accused when he and Israel were going to his camp. The latter said he saw bimhclad in a blanket. Apnrently both witnesses were going to accused's camp. As to the accused's defence, I totally agree with the learned state attorney that the accused's story was not very convincing. At times he left me with a clear impression that he was telling lies to the court.. But as it was held in NOHANED s/o SAIDI vs R (1967) H.C.D. 384 the fact that a court finds an accused's defence to be lies cannot be the basis of a conviction as the prosecution has the burden to prove its case beyond all reasonable doubts, the accused's lies notwithstanding. The burden of proof in a criminal charqe is always on the prosecion. An accused has no doubt whatsoever to prove his innocencu. As it was held in FANUEL S/O KIULA vs R (1967) H.C.D 369 - "It is not necessary to accept the evidence of the accused inorder to find him not guilty." There is no doubt a lot of suspicion against the accused regarding the burning down of Andrea(s house but suspicion no matter how strong cannot be relied upon as a basis of a conviction in criminal charge. Like the unanimous opinion of the assessors I am satisfied that the Republic has failed to prove its case against the accused and I accordingly find him not guilty of the offence charged; and I hereby order that he be acquitted. IRINGA N.S. NNZAVAS 4/8/73 Mwipopo for the Republic Mbezj for the accused,