19730322 TZHC Dodoma

&&kc1 IN T HIC+H OOUT OF TANZANIA AT DODOMA OR'IG-INAL JTJIISDIOTION (DODONA EGIsTRY) CRIMINAL SBSSIOLTS OLE NO. 174 OF 1972 m-JT LLYO .JL iTiTA D/O HAS SAlT soiso s/U TO H 9J.UL19?3 p J U D G E 14E N At __J. The two aC cue ad. persons liwadawa cI/o Tongo and Songo s/o Tongo are jointly cJasred with murder. It is the prosecution case that the accuseds on or about the 21st day of November, 1971 at Nd.oroboi village in Kautoro division in the district of Kondoa Dodona region, jointly murdered one, SHABANI s/a FURIA. From the evidence of the doctor (P.w.1) and that of I4ohamed Bakari (P.J .5) there can be no doubt that Shabani s/a Furia has died. It i also amply clear from the doctor's evidence that Shabani died a violent death. he vital question this court has to decide is - who was the perpdtrator/s of this crime? The Republic argued t1iat it is the two accused persons who rdered the deceased. T10 accuseds on the other hand have denied the allegation. In support of the prosecution case six witnesses gave evidence. The prosecution case is mainly based on the evidence of Ban d/o Vicent (P.1.3) and Ramad1in s/c Athuman (P.1.4). On the material day there was pombe at the deceased's home-stead. Nany people went there to drink ponbe. Ban (P.:.3) and her husband (P.1.4) were among those who were at the deceased house drinking pombe. SOU5o According to the evidence of Ban while she was drinking pombe with her husband she heard/crying and saying "do not beat me". She told the court that she recognised the voice as that of Iftadawa (1st accused) and who appar3ntly is wife of the deceased. At the same tine, according to Ban's evidence, she heard another voice saying - "Songo leave me alone, do not beat rae". She further testi- fied that she recognised this voice as that of the deceased. Finally this witness related to the court that she heard the deceased saying - "You have killed me and that she ran away to her house accompanied with her husband (P.1,4.). R.amadhan Athuman (P.1.4) testified to the court that wh:.le he was drinking po1.]Je with his wife (P.1.3.) he also heard a voice which he recognised as that of Iwadawa (1st accused) saying - "Do not beat me, do not boat me." According to his evidence he left the place soon after hearing Iwadawa's complaint. U; - 2- Bh Ramaclhanj and his wife (P,.:.3) related to the court that they came to know of the deceased's death next morning when the police ar:'ived at the scene. According to the evidence of the doctor (P.W.i) and his statement in the lower court which statement was produced and marked as exhibit D, he examined the deceased's body on 24/11/71 and found that his skull was crushed and that the cause of death was crushed skull. The doctor further related to the court that on 2/1 2/71 he examined h'iwadaua (1 st accused) and found her to have a bruise on her face and multiple injuries on her back. PF3 in respect of iIwadawa was produced and marked s.c exhibit A. The doctor further testified to the court that on 2/1 2/71 he also examined Songo s/o Tongo (2nd accused) and found him to have an abrasion 1' long over his left shoulder and on abrasion on his right thumb. PF.3 in respect of Songo was produced and admitted as exhibit B. Mohamed Bakari (P.W.5) uncle of the deceased related to the court that sometime before the death of the deceased, the deceased had assaulted his wife Mwadawa(lst accused) and that Mwadawa complained to the police and that thc T? - -' d was charged with assault. The charge was still pending in court when the deceased met his death. Detective Corporal Onaufoo(PW 6) testified to the court that on .rceipt of a report that a person had been killed at Kwamtoro he viefted the area and the h : :igation he arrested Mwadawa, Songo,and two othmr after further investigations, released. According to his evidence he interrogated Hadawa who told him that on the material night her husband (the deceased) had assaulted her. He examined Mwadawa and found her to have a bruise on her forehead. This wi -h'aecc a'so related to the court that he observed a bruise on Songo s back muJ :a his thumb. On being interrogated as to how he sustained the jniTlr: ono is reported to have replied that he got injured Th r'ines. Both accuseds elected to give their evidence unsworn. The first accused told the court that on the material night she was assaulted by her husband (the deceased) and that she ran to her brother's house (2nd accused's house) where she spent the night. According to her defence next morning she returned to her house where, to her groat astonishment, found her husband lying on the ground dead. She ran t her TAI'TtJ branch - cha: --- ' '-' and reported what she had seen. The second accused told the court that on the material day he visited the deceased's house at a.ci go p.m. to drink pombe. According to his defence, he found that pombe at the deceased's house had finished and he decided to go to one Zekasa's home-stead where there was also pombe. While there he met one, Tera Tandu and his wife and one, Ingoa. He related to the court that he drank pombe up to about 8 p.m. when he decided to go home. On arrival at his house he found his sister (1st accused) there and asked her why she was there and, according to his defence, his wife intervened and told him that the first accused had gone to spend the night with them as she had quarelled with her husband. He went to bed and next morning he interrogated his sister as to what was the cause of the quarrel with her husband and his sister told him that they that her husband had pushed her head against a pole.ccording t his defence he adviced her sister to return to her husband and he soon after left to attend a vi.l1j'r'c meeting. He was arrested while at the meeting . he had killed his brother- in-law. After summing up to the gentlenontassossors they were both of the unanimous opinion that botia. accuseds intentionally killed the deceased and found them guilty of murder as charged In this case the follow- ing facts are not in dispute: There was pombe at the deceased's house on the night the deceased met his death. On the evidence the deceased died a violent death, 0 . 0 . . / 3. S - 3- a: the cause of death is given as crushed skull. The injury was, according to the doctor's evidence most probabily caused by a huge stick or something very heavy. The first accused who is the wife of the deceased was at the house. The second accused, Ban (P.W.3), Ramadhan (P.7,;,4) and other villagers were also at the deceased's house drinking poisbe. According to the evidence of Ban (P.h.3) and that of Rareadhan (P.J.4) while drinking poribe they both hoard Mwadawa 1st accused saying 13 do not boat mo'.. In her defence Lwadawa told the court that she was, on the material night assaulted by her hus- band who held her head and pushed it against a pole. That she was a victim of violence is evident from the testimony of do-toctivo corporal Onaufoo (P.W.6)who told the court that he examined Ihradawa a day after the incident and found her to have bruises on her fore-head. That she had injuries on her body is also evident fro3:1 the evieence of the doctor (P.,1 ) which is to the effect that she had abrasions on her face and multiple abrasions on her back. This being the evi- dence I have not the slightest hesitation in accepting as truthful the evidence of Ban (P.i.3) and that of RaracThan (P.h.4) that they heard the first accused on the r.aterial night complaining - saying - tDo not beat me. We also have the evidence of Bari that she also hoard the eased saying - Songo leave rio alone do not boat me' and that she card sounds as if someone was being beaten. She also told the court that she ran to her house when she hoard the deceased saying You have killed mo. It is the prosecution's case that at the time Ban and Ramacihani heard Mwadawa and Ghe deceased 's voices Lwaciawa and the second accused were jointly assaulting the decoasod and that it is their assaults that caused the death of the deceased hence their being jointly charged with the murder of the deceased. At this juncture I would lilce to mention that the most important evid.once regarding the cause of death of the deceased is the deceased's dying declaration which is to the effect that Songo (2nd accused) was at the material time assaulting him; and the deceased's final words saying - You have killed rae' From the evidence there can be no doubt in my mind that Bari recognized the deceased's voice in the same mauner as she recognized rIwadawa's voice. The deceased's dying declaration therefore tends to show that the second accused was at the tine assaulting him. But, this court as well as the Court of Appeal, not to mention courts of other jurisdictions, have time and o-7.-In pointed out that evidence as to dying declarations has to be eived with some measure of caution unless there is corroborative 2vidence in support of the dying declaration. The quostion this court hs to answer is therefore this: Is there any evidence corroborating the deceased's aying ecciaration that Songo was assaulting him at the tine Ban heard the him mentioning Songo as his assailant? As I have alroady mentioned there is no dispute that Songo visited the deceased's home-stead on the material day to drink porebo. Songo admits that he visited the deceased's house on that day. He however endoavoured to sot up a rathor elaborate alibi to indicate that he was not at the deceased's house when the deceased was attacked and killed. According to his defence he arrived at the deceasedts house at bout 4,30 p.m. He found ponbe had finished He only got a little which he drank and conversed with the deceased for a while and then left to one, Zakasa's house whore there was also some pombo. There he not Torn Tandu (Di3); and that he drank pombe up to about 8 p.m. when he left to his house accompanied by Tera Tanclu. From his defence •Songo arpoared to toll the court that he arnivod at Zakasn's house when it was still day tine - But according to his witness, Tera Tandu, (DT3), the second accused arrived at Zakasa's house and met him there and that half an hourliater they both left to their respective hones. According to Torn Tandu they left Zakasa's house at about 8.30 p.m. From this evidence it does not need elaborate mathematical calculations to come to the conclusion that Songo arrive4 at Zakasa's house at about 8 p.m, - And, accepting as I do, Tera's testimony that is is 4- an hour's walk from the deceased's house to to Zakasa's hoioesteacl aai taking into account Son g' o'a defence that he left the dleceased —4- house straight to Zakasa's house, he must have loft the deceased's house at about 7.30 p.m. and not during the day as he would seen to indicate in his defence. The second accused's suggestion that he left the deceased's house during the day is fully rebutted by Tera's evidence, his own witness. Ban's evidence regarding the dece5.sed'o dying declaration that Songo was assaulting him at the tine is also supported by the evide- nce of detective Corporal Onaufoo (P.7.6) who on the following day, after the deceased's death, examined Songo and observed fresh bruises on Songo '5 back and on his right thumb. Nay he it is not irrelevant to mention that on being interrogated as to how he cane to have such injuries Songo replied that he got the bruises while hunting por- cu'bines. In his defence he conveniently decided not to mention the cause of the injuries found on him. That the second accused had those injuries is also evident from the evidence of the doctor (P.N.1). This being the position I am satisfied that the deceased's dying declaration that Song'o assaulted him that night can safely be e] j upon as it is corroborated by e evidence of Tera (DW3), which evidence rebuts Songo's alibi, well as the evidence of Onaufoo (P,W.6) who found the accused iith injuries on his body hardly a day after the deceased death - and of course the doctor's evidence. The assault of the deceased by the accusod cannot be aaid to be anything but unlawful. As to the cause of death a huge stick was produced in court (Exb. ) and was said to be the one used by the accusods in inflicting the fatal wounds on the deceased. There can be no doubt that such a forminable stick as iibff G- would have caused the injuries found on the deceased if applied on the head with great force. Equally it can reasonably be inferred that the huge stick was used in inflicting the fatal wound found on the deceased. But the most important question to be answered is: Iho as between the two accusods inflicted the fatal wound.? Therc two or more persons are charged with an offence (as it is in this case), the actual guilt of each accused must be proved or it must be proved that the accuseds were acting in pursuance of a common purpose when one of them committed to alleged offence. If either of two persons uight have committed an offence but it .annot be s. own which in fact committed it and it is not proved that they were acting in concert the law is that they must both be accuit- ted - SALBI SELENANI and Another vR 972) H.C.D. 2 ANJIRO dJO EcA 521, - k In the presenf; therc can be no doubt from the evidence I have accepted that Songo fought with the deceased on thematerial night and from the evidence it is not unreasonable to infer that he, during the fight, assaulted the deceased. There is also evidence that the marriage between Mwadawa and the deceased was not a very happy one. 'ior to the deceased's death the deceased had assaulted Nwadawa and a charge of assault against the deceased was still pending in a primary court. Relations between the deceased and his wife liwadawa were therefore not very good. On the tiateial night the deceased quarreled with I4wadawa over food e The quarrel led to a fight and Mwadawa sustained injuries as shown in exhibit A. It is also possible although there is no evidence in support of this, that Niadawa may have relaliated by assaulting the deceased. But even if we are to accept, for the sake of argument, that both accusods assaulted the deceased there is not the slightest evidence to suggest, leave alone to prove, as to who between Mwadawa and Songo inflicted the fatal blow. It could of course be argued, (althouh the prosecution did not so argue), that it did not matter who inflicted tho fatal blow because the two accused persons were acting in persuance of a common • 5 - intention to prosecute an unlawful purpose. There is not the slight- est evidence that the two accused parsons had formed a common intention to assault the deceased. Indeed, there is no evidence tz support the prosecutionts allegation that Mwadawa assaulted the deceased on the material night... On the contrary she was heard crying saying - Do do not beat :ae. The only reasonable inference therefore is that she was at the time being assaulted. That she was assaulted is evident from the doctor 's findings when he examined her (exhibit A).Neither Ban, nor Ramadhani heard the deceased mention- ing Mwadawa as his assailant. It is agreed that relations between the deceased and liwadawa were strained at the time the deceased met his death. But it is one thing to say that there was animosity between Muadawa and her deceased husband and that because of this Mwadawa could have taken part in assaulting him; and quite another to say that she in fact assaulted him I see no evidence whatsover to support the charge of murder against hwadawa. Indoed there is no evidence implicating her with y offence. I find the 1st accused not guilty of any offence and ccordingly acquit her. As for the second accused there is, as I have tried to show, cvi-. dence that he assaulted the deceased on the material night. -- ILI On the evidence I find the - accused not guilty of murder and I accordingly acquit him, but I, under Section 181 (2) of the Criminal Procedure Code, find him guilty of assault occasioning actual bodily harm c/s 241 of the Penal Code. N. '3. MtZAVA.., JtJDGE. ection - No record your lordship. - The accused is a first offender and a family man. He has already been in remand for 16 months all the time having a capital charge hanging over him. Sentence - The accused is extremely lucky that the Republic Ohoso to charge him jointly with the 1 et accused • Had it not been so the verdict could have been a more serious one. The accused is sentenced to 5 years imprisonment. Rght of appeal to i,A.C.A, explained. 4 1. DOD ONA N. .INZ 22/3/73 JUDGE. Mwipopo for the Republiá. forthe.accuse&,_____________________________