19730324 TZHC Dodoma

2. IN TUI HIG-H COURT OF TANZANIA r AT DOD OI"IA ORIG-INAL JURISDICTION (DODOILA REG-ISTRY) CRIMINAL SESSIONS CASE NO. 157 OF 1972 TE0 REPUBLIC VBRSIJS UPONDO s/o KITALAUUI. AND AJTOTUER J U D G E N E NT The accused stand jointly charged with the murder of two women, namely Msue Ilsongi and Kioga Lwenda at Nduguti in the Iramba District of the Singida?Legion on the 10th of October 1971. They have denied the charge and set up alibis. On the face of it the case against the accused appears to be very strong in that two prosecution witnesses claim to have seen the accus-- d hacking the two deceased to death. A closer look at the evidence, however, makes the picture look startlingly different. That the deceased were victims of a pro--arranged ambush there is no doubt. It is an undisputed fact, brought out by the two women who accompanied the deceased on that fateful errand in the forest to collect firewood, that a couple of ruffians suddenly set upon the dece- asedma the .e: walked along a footpath in the forest and hacked them to death. The eye witnesses confirm the doctor in his finding that the deceased had multiple gashes round their necks. :Tach deceased was 'ealt a gash which severed her neck bones and spinal cord. The court s satisfied and there can be no doubt or dispute that the deceased died after a homicidal attack. As this court repeatedly emphasised to the assessors, however, the only question is the identity of the culprits The only evidence tending to identify the accused with the double murder is the evidence of P.U.3 NANI IrIIJIA and her daughter, P.W.5 TATU KITUNDU who on that fateful day, accompanied the deceased to fetch firewood in the forest. I say tending because I am not as sure as the gentlemen assessors, whose opinion cairnot he said to have been reached with perspicacity, that the witnesses could not have been in the. circumstances of the ambush, mistaken about the identity of the culprits. For one thing, these star witnesses contradicted each other in details which could not be dismissed, as immaterial. . Accord- ing to Mwami Piula, the accused first disposed of the deceased and then chased her and her daughter. On.her part, her daughter Tatu was categorical that when she and. her mother fled from the scene in mortal fear, they fear, they left the culprits in the act of killing the deceased. I would wrchi ull respect to the gentlemen assessors, there- fore, differ in view of this apparent confradiction, especially as as it is by no means the only point on which Tatu contradicted her mother. Tatu went on to say that she did not know who killed the deceased Kioga. The only rerson she saw being hacked to death by the accused Nondo was the deceased Msua Msengi. She did not see the accused Nping - a attacking anyone before she fled. .. . . . ./ 2 2 - The court must be left in doubt therefore, when her mother says that she saw the accused Npinga hack the deceased Kioga to death before turning on her and her daughter to chase thorn. There is a third point on which mother and daughter contradict each other. When they were fleeing the scene, each of them claims to have run ahead of the other. The clur -t need not resolve who outdistanced who except to observe that it is highly unlikely, if not improbable, that such people who were coripating to get away from danger could be certain about the identity of the blood thirsty ruffians. I would, with the greatest respect and humility repeat that the gentlemen assessors could not have been perspicacious in their opinion because they appear not to have heeded my caution that whore, as in this case, the case against the accused depends entirely on identifi cation, such identification must be water-tight before the accused could be convicted. This is settled law and it would be the height of pedantry to cite authority. Unlike the gentlemen assessors, I am not satisfied that the identification by the eye witnesses was sufficcint, let alone 'water-tight". I have already pointed out to the contradictions in their evjdnce and conclused that they must have been so shocked as to be incapable of a sober appraisal of the situation which was sprung on then. That was why for example, they could not describe the culprits' attire. The ambush was sprung in. a forest with trees and undergrowing bushes. \Jhat guarantee can there be that two women, beside themselves with fear, could pose to observe the spectre of their innocent companions being done to death in so callous a maimer as they themselves report? I an not certain either, that with loads of firewood on their heads, the witnesses could have been in a position to see what was befalling their companions who brought the rear, and in a forest at that' According to the law of this land a person detained by the Police must be brought to court within tweñ.ty four hours of his detention. The record in this case shows that the accused were brought to court for the very first time on the 20th of October. If YhTani had. promply reported to her husband on the 10th. of October as she alleged in court, the accused would not have been arrested so long after the event.. One is left with the impression that the witnesses must have conjectured the identity of the accused after the ambush. The silence of 11wani and her daughter is otherwise inexplicable. Indeed the reeort to the Toiico w:s that the deceased were missing. That was the cor.inlajnt .T . 3 kathaniel I a:anea received. If the witncsses knew that the deceased had be en hacked to death by the V two acci:sod and kept quiet about it then their evidence must be taken with caution at least, nd it cannot be said from the fore- gem ...thai; the evidence of rwuni and her daughter is caablo of standing to that scretiny required in a criminal trial like this one. In their defence the accused demolished altogether the identifi- cation made by Wwani and her daughter, They called witnesses who succeeded to throw serious doubt on the case against them. The two yeye-witnosses said the ambush was sprung at midday. That was the every time the two accused are said to have been skinning the carcass of a cow in the coropount of their joint hone. I saw these witness and I cannot say that their evidence was entirely false, their relationship to the accused notwithstanding. Dven if the defence witnesses were tolling lies, and I could not find cause to question their demeanour in court, their lies sound quite reasonable in the circumstances of this case. If it is recalled that the eye witnesses could have mistaken the accused for the real cprits, it cannot be taken to be altogether unreasonable for the accused to be at hone, away from the scene of the crime, skinning the carcass of a cow. Unlike the gentlemen assessors, I cannot therefore say with any degree of certainty that the culprits who sprung the ambush on the deceased and hacked them to doath were in fact the two accused in the dock now. .. . . . / 3 : - 3 -- I would thus be constrained, with the fullest respect, to disagree with the unanimous opinion of the t'ro assessors and hold the accused not to have boon identified sufficiently, if at all. I would accordingly find them not guilty and acquit then. /i 24/3/73 /• M . II. A. IWIKIMA. AG .JUDCE. .4 I