19741102 TZHC Dodoma

. .. A/C ~ - S - M . IN THE HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL JURISDICTION (DoJMA REGISTRY) CRIMINAL SESSIONS CASE NO.. 18 OF 1973 THE REPUBLIC VERSUS 4. JUMA SIO MLABU _ Murder c/s 196 of the Penal Code0 J U D G M E N T MAPIGANO AG. J. The accused Juma s/o M.abu is charged with murder contrar' to section 196 of the Penal Code, namely that on January 30, 1972 he, of malice aforethought, caused the death of one Salehe sb Yohana. There is no dispute and it is firmly established in evidence presented that Salehe Yohana is dead0 He was fatally wounded on 30/1/72 at Muhalala in Manyoni district The doctor who perfomed the post—mortem exaniination on the dead body found that the deceased had sustained punctured wounds on the right side of the back, some of which penetrated to the left side, and that the right lower lobe of the lung had been ruptured. He also found and extracted one'pel'let. (P 5) which had been exerted into the same region i In his opinion, which I respect and 'accept, death was due to shcck and internal haemorrhage resulting from' the wounds. It is common ground that the deceased was shot when he was at the house of the accused who was a fellow villager. There was pombe at that house and the deceased was .ono of tht many people who . gathered there to drink. As sevral witnesses who were there told it in due course the accused egmounced to the gathering that his goats were missing from one of his houses and that one of the goats had been slaughtered and the carcass left at the house0 The accused suspected that the rest of the goats had been stolen from the house. Many people abandoned their drink and walked in different directions in search for the goats. The accused and one Yohana Hasarli (PW4) walked together towards the house of Dan Mwangila (PW14) who was not at the pombe. The goats were traced in a bush about three hundred pacs from the house of the accused. They were traced by one of the searchicg parties. They were driven back to the house by the deceased and two other people. No sooner had the deceased reached the , 1puse than he was shot with a bullet. The night was dark. That is , tn dispute. Shortly after the attack, about half an hour after the deceased succumbed to the blow,, the accused emerged from his maize sharnba which was the same direction from whic -i the bullet had been dischargedw He had a gun slung on his shouldor. It is common 'case that he had gone to the house of Dan Nwangila where he had borrowed th' shotgun' a 12 bore Greener No. 26626, as well as two bullets from Mwangila. On suspicion that he was the one who had 'shot the deceased on emerging from his maize shamba, the accused was pursued and caught. The gun was extorted from him. However he subsequently managed to , release himself upon which he fled and cired0 He gave himself up to the police on the following day where he was arrested and placed under custody. There is evidence that before the deceased'died he was ........./2 heard to remark in agony that he had been shot by the accused. He was heard to complain' "Juma has killed me for nothing". This was essentially a dying declaration. It remains to he assessed as to how much substance it carries. It is true that the gun (1? 4) which was seized from the accused belonged to Dan Mwangila. That as I have said is a common ground. The accused went to borrow it In order to go and search for his stolen goats6 Mwangila lent it to the accused in the presence of Yohana Hasan (PW4). He also provided the accused with two bullets. From the house of Mwangila the accused and his companion Yohana Hasan passed at the house of Yohana Hasani. Yohana Hasani went into the house to fetch his shoes0 The accused did not wait for him, he proceeded towards the direction of his own house0 Yohana Hasani related that he was trying to catch up with the accused when he saw people, running in all directions. He said he surmised that something unpleasant had taken place or was about to take place s and that therefore he ran back to his house and remained there until the following morning.0 According to this witness, he did not see the person who shot the deceased and apparently he did not even hear the gun blast According to Dan Mwangila, Yohana Hasani was carrying a muzzle loading gun when he appeared at his house in the company of the accused0 This simply is not true. Accused gave it the lie. It is a fact that the shot 'gun was taken to Dan Mwangila by the people who seized it from the accused. They, Hamisi Shabani. (Pw6: and John Mlutu .(PW1O), alleged that there was one bullet in tho gun. But Dan Mwangila alleged that two bullets and not only one were'returned to him.. But Mwangila was in my opinion not truthful on'this point too. It is clear that when he finally surreidered the gun to the pôXice, he handed over to them only one bullet. And more conclusively, the accused himself gives him the lie, his contention being that he ran away with one bullet which he left at his house" when he proceeded to the police station to give himself up. If the accused is to be believed therefore, one of the two bullets which he took from Mwangila is still lying at his (accused's) house unless it has been otherwise dealt with by a household. The gun (p 4), the bullet and the pellet (P 5) which was extracted from the body of the deceased, were sent to the Identification Bureau at Dar es Salaam for ballistic examination, The Idea was to determine whcther the pellet was dicharged from the shotgun. According to S0P. 'Malth -lgalila "(PW12), it was impossible to establish that definitively in the absence of the spent cattridge, 'The only thing which was established by the Government Chemist who was asked by PW12 to examine the gun is that the gun had been used, as residue of gunpowder was detected in the barrel. But PW12 could not be sure, whether that use was recent or not. His other opinion did not rule out ahe possibility of the pellet having been discharged from a muzzic loading gun. ' On affirmation, the accused denied shooting the deceased 0 He said that he heard the sound of a gun shot when he was on his way back from Mwangila's house and that when he wa's near his house people jumped and grabbed him. He was then accused of 'shooting the deceased.' He was surprised and he struggled and resisted, but the gun was wrestle from him. He apprehended danger and therefore ran to ave his life. He alleged' that he went to his house where his wife disclosed to him that a man had been fatally shot. He then left and went to the police station. He also agreed that Nwangila had given him two bullets and that one was loaded in the shotgun and was still in there when the gun was taken away from him. As far the second büllet be k1leged that he had kept it in his trousers which he left at his house when he went to police station. He admitted that he did not disclose to the police about that second bullet, explaining that this was because he was not questioned about it. Is the accused then the person who shot the deceased or' Is •.. S.. ./3 he a victim of sheer suspicion.? That is the basic question in this case. The RepUblic has urged this court to accept and act upon the remarks uttered by the deceased when he was about to die. That remark implicated the accused in the killing. It is in the view of this court plain that this declaration is of doubtful intrinsic credibility and theref ore of precious little weight6 For there is no doubt that the night was dark. Other people who were standing with the deceased could not see the assailant, and by all accounts it was after about half an hour that the accused was seen coming to the place, How then did the deceased manage to see and identify his assailant ? It is difficult to believe that he saw and recognized the culprit and on the evidence, it is almost impossible to resist the submission that the remark was uttered speculatively. The assessors do sustain that submission and I would concur. The case against the accused isalso based on the fact that the bullet was discharged from the direction which the accused ultimately appeared, and the struggle which he put up when he was set upon. But the accused appeared at the scene after about half an hour. He had the shotgun slung on his shoulder. The perplexing aspect of the matter is why did the accused proceed towards the scene if he was the one who shot the deceased 2 The assailant shot from the dark. It is plausible to assume that he acted by stealth. To proceed to the scene with the very weapon and so openly would seem to be an inconsistanc As the accuse himself put it, the better cause for him to take had, he been the culprit, would have been to return the gun to Mwangil rather than march with it to the scene when he well knew that the brother of the deceased, Stephen Yohana, was at the scene. With regard to the struggle, the accused explained that in the face of being suddenly grabbed and of being accused of killing the deceased, he apprehended that his pursuers were bent on doing mischief and that therefore he had to put up a struggle with them, There is I think some substance in that explanation. As already indicated, ballistic examination of the shot gun (P 4) and the pellet (P 5) does not conclusively establish that the said pellet was discharged from the guxa, and though it is acceptable that the gun had been applied, it is impossible, on the evidence as a whole, to say when exactly it was last applied. According to S o P. Mo].angalila, it is also impossible to say that the pellet eminated • from the shot—gun (p 4). According to him it could have eminated from • another kind of gun, a muzzle loading gun. And it is important to say here that according to several witnesses, a number of people in the locallity owned such guns. The defence has submitted that the deceased could have been shot by another person using a different gun. The assessors do not dismiss this likelihood, and largely on •that account, they hold that the prosecution have not proved the charge beyond a reasonable doubt. I have carefully assessed the evidence tendered before this court and I am inclined toshare the views of the assessors. On the evidence as a whole, I also think that the possibility of another person having shot the deceased cannot be safely ruled out. Any benefit of doubt of this nature must be given to the accused. In the event I find the accused not guilty of murder and I acquit him of the charge. He is to be set free provided he is not held on another lawful ground. Delivered in court at Singida before the counsel and the accused. t . 2nd November, 1974 AG. JUDGE .,