19731013 TZHC Arusha

oj. IN T-II. H1H nui'r C' Ii U t•;2 ORIGINAL JURISIT; :CT.toN (Arushe. Rac.str' . CRIMINAL SESIoh; 'ASE N : 11 -OF 19"3 ?HE REPUBLIC . . .. •. .. versus TWAT:r s/o LENGIS.IA, AGED 30 YEARS, TANZANIIUi CHARGE Murder c/s 195. of the-Penal Code0 --- JUDGMtiNT. Makamé ... The ac.cued ' h c , TW"tP LENGThIJ', .s on a charge of . Murder 9 He has pleadeci Not G:.1ty-.. D7110 ARIKA MOHNED i:old ';he court that he conducted on 1/2/72 a post mOrtem examination on -a body identified to hin'i by Leshai. Ndet!oa and .okeU Yanii in the prence of P . C. JOHN, as being that of Tonqono Nd:iti.ga0 :i.shi i - ditiga, PWS said Tanguno •Nditika was his el.deL brother nd that in February last year he identified Tenguno's dead b'cdy to th ci.ior. I am satisied that P.W. .3. is the person the dO refers ;o as L-eshai Nditiga, that Tongono -NOitiga and Tangunó NOt U ha were one and the same -person - , and that that person is now dead I am also satisfied that his was the body the doctor examined,. The doctor gs:e evidenca tnbt ho. found on the body two cut wounds0 One was 4" x 2 between 'the, neck and -- he left shoulder while the other. 4" x 1" i-ias on the left oh.eak.0 The subclavian- artry and vein had been cut -..nc the clavicle as. fractured0 H was of the view that some sharp instrument had been employed and that the deceased had died of hriemorrhage and shock0 I believe the doctor did find the injuries and I accent: hs oo.nion as to th cause of death0 Ther.e are witnesses- who sv they saw L h e assault or at .least they were tn the vicinity when it took p1a;:e, One of them is POWO4 LEVETA KISINGA, the- mother of TOMIN/AKrE Ji\SENG'ENGE p5 who it is alleged , quarrl1cd with the accused on the day' il -i quesUor10 According to Leveta . the accused- was. carrying a siirte when he was quarrelling with -Lomipyaki. TOe weapon was taken away from the accused,- thron by someone she could not remember, and picked up by the deceased0 The accused :usho1 to the decebsed, sratched-the sime from him and stabbed him with it0 She raised an alarm which summoned to-the scene Nose .. -, Nova., and Lekenda', Her evidence suggests that se saw :o - b o'1v .he quarrel between her son and the accuseu but -aiso cnei.r fignc0 Jr ncr sta -cemenL -cc - the -police, howeve r, she sand she. d.n d- not see them quar -:ell:Lng0 She also admitted to have said to the Police somcthinpf:i-, which it wauld neéssariiy follow that -when the :1eoeasd was being stabbed the could not have seen the actual-act as she was parking a ha1y -insid somebody's house0 I am very imc.artaiu .nh..out L eta,'s c2vide'c ifter-'thsething it and observing hr tell:Lnp hetr niory-in court0 1 am unable to place -. reliance on her te$timonT, - I em prep-aced- to believe that she was' - around 'about th tice there wes this r:ommotion but would not go as far as saying that she actualiy witnessed iho stabbing, - for otherwise she would not h-ave so contrad i.ated herself0 Lominyaki is Leveta's son, Ha said that. on that day he and the accused quarrelled because the accused had alleged that he, Lominyaki, was in love with the accused wifa. Lominyak_ had with him his sime, Exh02, which one Lelinaye took off him and 1id away0 he next time he sw that sime was at the Police Station, It is however important to note that when he was asked Sw the gon - cr'iee assessor he said his sime was taken away from him by the deceased, /2 - 4- , i. ILI '-.4. -2 "The incident took lace close to our boma0 The deceased took the si.me from me, with the sheath0 He undid the belt0" It will be necessary to return to Liminyoki's evidence shortly in connection with the identity and the owiership of the other sime, Exh050 NAANI UYANI, P.W06, says he too saw the stabbing which was after the quarrel between the accused and Lominyaki0 The deceased was one of the persons trying to stoo a quarrel between the accused and Lominyaki and he the r1eceased, was one of the people restraining the accçisecl0 The accused pulled out a sime and threatened Moyo and the witness with it0 He then stabbed the deceased and, accordinç to this witness, only he and Moyo were present at the stabbing0 Therefore if this witnes is telling the truth the woman lievetzi was not present0 But in another bit of this man's evidence there is a clear suggestion t1at he had run away and did not go beck to the scene until "the wonan", evidently Levita, had raised an alarm0 His claim that the same night the Police came he told them the deceased was killed by the accused is not supported by Senior Inspector Naji according to whom only Levita supplied him with the information0 MOYO MASIARE P 0 W07, like Nani, says he saw the actual.stahbing after they had been threatened by the accused with the sirne As - with Naani, he bays one of the regions the accused inflidted a stab wound on was the forehead, bt of course no such injury was seen by the doctor0 ... . - . TENGiJLALI LAMGUT, P.W.8 told 'the ccurt that he was one'o th 'prs ens ,who restrained. Lominyaki and took him home0 He was the 'one who tlrew away L±minyaic.i 's sime Children pick ccl - it iip immediately and carried it into Lomiry'aki's house0 According to Maji 's evidence, 'the same sime was lathr traced to the house in which 'was a women who prdduced it and ho :S0i after decamped withdut'trace0 -Another sine turned u,.bccording t. P.,W09 L03IRI LOYiANE,- some four days later0 It was found hidden in some grass, in a heath, by two herdsboys, one of-whom happened to be Lominyaki's younger. brother0 It is the Pros-,cuiion's contention that that'sime belongs - to the accused , nd tt it was the one used by the accused to kill the deceasd wi.th0 Lominyaki't•. id the court that both simes and Joth their sheaths produced in court were once his I remarked' earlier, it is necessary to say something about this ..other,.'sime, Exh0 5, the one allegedly found in the grass and which Lominyaki' concedes was once in his possession, and ownership0 Apart from the suspect coiiicidence that one of' the 'finders -was the brother-of Lominyaki, the person the accused insists quarrelled with the 'deceased, Lonünyaki himself seeths undecided as to the' precise circumstances in wiich he says the things - changed hads 0 ..:.' In court hesaid he sold the sime, together with the sheath, to'..-, - ' the accused at shs06/- and he says that:- 1i 'onc...wi tno LOC:' "trans action0 This was not, hc-wevr, what he agrees he told the Pol?, that h gave the accused the sheath because it was hi.gger. than his"'-cn sime0 That is significantly different from what: he>- told this court. I am of th vie.' that the witness Liminyaki - told lies, about Exh0 5 and 5, and this makes me anxious0 Q WK In his evadence, which he qava on oath. accused denied complicity in the c.cio.e and dod ohet ho er •sted. in his denial despite his being Pssaultej by Uni Police, oeing bitten by a Police dog and bc:i.rg thra eu:d y the police that - they would shoot-\mFie says tha:: on thai c. av th-y had be -' d::inkiriq at Mzee Maseng 7 enga s a,poartl' - o homestead of Lominyaii s parents S orne two bundLed raris fi - c. SesiLebi s where he was temporarily putting up s his own hous:; was •:. eatening to cclJ.opse a a result of rain0 cs.rro: erisu.:d lo'-:- - een the ueoucd and Lcminyaki af er toe o:mar had, 4 :aLe. - Lh I . ---': tick for driving ilouchir1c oxeo IFm sotisfiec tacit the accused's counsel was in fact ref :ing hho inme -:Laing when he asked Lominyaki if the deceased had noL taken - ,Y• I dif± orence, it seemed to me, was a :c75u1 of aba LcCOflJC barrier aetween learned counsei. and n.s ctoon -L The accuserl s• ays cie helped stop the quarrel afiar which 00 weut to oe ouaeki 's house0 I-Ic T 1 was asleep when SomI:eki oce born un jht nd told him that there were noises c-I: iwoence 'nge'c- :-eo when they .c2nt thither he found the deceased cd T'b ma" b Lruc that Lominvaki was arres ted along with h!r. waish ic :co:: :Laiio and which in my view could hardly have happo.;r:d if •or.oc•: isoeccoy: Idai. had been told a satisfactory s -cosy ob - u;: ' -ho': bsd -:ruci by peoo e apart from Leveta. Also one !oajo;-'s "hr a crowd of a':: Lea; -( thirty people should have a11owod the cccuse'i to -acrsfrce when he was right the::e in the crowd, I:o:I oorsonallv soc abe occised committing the foul deed and wnen ctteo hod thei:sel;es :'oon afterwards seen the accusodescorn( irom the One may wonder now d c :ocw o-' could h-v failed to hear the criec- when he was shout only two b'ancired erdc sway hut one wants to remember thah, :c;co - -11:io to the accused, cc hod been drinking since 11 before noon.- T acused stcc- v may not be oo convincin that he has rover owoed a simc but one canneL cecesc-sri!v infer anything of we:L c 1 h o - men:o:lOa1:c-e t:'oic- that possib 1 r ie He told a version which wi: and added that perhacis' tha locci wit L-'r;es told lies -qains t him because they were aei - ushr. whereas htf J.sNa'c--o. I-ic- denied being involved dec-ni -he the vi•- :, ous at:tack by LI- a ed CCC (100 W0100 I Ciii incidentally satisfied a-ac- 'ioliberath oc the peaL of the police officers If tI-€ cusec) dhb ki:id. the deceesod Lhe evidence adduced lacks the claro'L\' and O0OC4O0C' ,Thach would permit me to hold that the allega -Lior hcv been p1- 000:1 t': he rue.-. ?.ecause of the nature of the O..idonce o: - sec:o --d is with regret and respect that I icust say I lad: Ew of certain -by of the honourable assessors one of whom focad i":- o::cusr,d guilty of Manslaughter and tha other of i"Iurd..:c, accused the benefit of doubt and 1c -L dui 'c' tc:co::'ding y 1 acquit him. I- 14 oiJzcime ,, l/lG/73 Assess on; thanked and ARUSHA: 13/10/73