19741104 TZHC Singida

'7 .. IN THE HIGH COURT OF TANZANIA. AT SINGIDA CRIMINIL SESSIONS CASE NO 91 OF 1974 THE REPUBLIC VERSUS MAJUTA MGWAE AND 3 OTHERS Charge: 1urder c/s 106 of the Penal Code. J UD G M E N T' NAPIGANO AG. J. Majuta Mgwae, Mhua Mdaki Mkuki and Saidi Njou, the accused persons, are charged with murder contrary to section 196 of the Penal Code, namely that they jointly and together did murder one Ipanda p Omari Msure, at Mpinda Ihanja in Singida Region on 26th April, 1973. The facas of the prosecution are as follows: Ipanda Oman Msure lived at Npinda with his wife called Marianiu Nyasi (PW1) and his grand daughtcr called Nwajuma Ramadhani (PW2). On 26/4/73 at night they were sleepinc in the house when a gang of robbers broke into the house and battered him to death. According to Dr. Sllu (PW5) who eaniined the body; the skull was fractured and death was due to intracranial haemorrhage and shock. The gang stole a sum of shs. 201= and several article:t of &othing. That this event took place is not in dispute 'end well established by the evidence. I therefore find that Ipnda Oman Msure is in fact dead and that he was killed by robbers. Under section 200(c) of the Penal Code those who killed him must be deeded to have caused ';he death of malice aforethounht and therefore quilty of murder, Nriamu Nyes:. and .er gr -'nd daughter Mwajuma (PW2) gave evidence alleging that they saw and observed some of the culprits who they recognised as the present four accused persons. The two withesses are the principal witnesses for the prosecution and their evidence must therefoi'e be .oxamind and assessed more profoufrdly. MEiriamu stated that she and the deceased as well as Mwajuma were aleeping in OflS room but on separate beds. In due course she heard the deceased : . ellin:j from the reception room and saying 'tMariainu wake up I am being ki:.led". She lent to see what was happening to him. When she reached the door leading to the reception room she was pounèd upon by one of the culpr: ts. The was ordered to go back to the bed room and shut up and she did so. She had howver seen six culprits, one of them holding and flashing a torch. She had also heard them demanding money from the deceased saying that he the deceased was rich as he was always selling his cittle t the auction. She had heard the deceased replying that he had no money and that he had not sold any cattle at the auction. She went on to say that when the culprits had beaten the deceased they left him unconscious and four of them entered the bed room and opencd a box whence they took one note of shs. 20/= and several clothes,. They then went out and disappeared. She went into the reception room where she observed that the deceased was already dead and she left with Mwajuma for the house of Nkungu Msure (PW4) the young brother of the deceased, which house was nearby. She implicated the accused persons in the following manner 9 that she had known them for many years and that she saw and identified them when they preped the fire and lit a korohoi in the bedroom. She alleged that it was lbua, the &econdaccused, who lit the koroboi and that it was Ndaki, the third accused, who opened the box and took the money and the clothes. And further that it was the first accused, Najuta, who took the koroboi and went around searching for money.. She .. . . .12 a S 00000 • 0 /2 also Said she heard them when they were talking and she recognised their voices0 And further she described the clothes they were wearing and she also alleged that she mentioned their names to Nkungu (PW6) and Nkungu's son called Mbua (PW3) Mwajuma (PW2), a girl of tender years, gave unsworn evidence s She alleged that she saw ihe culprits when they had lit the fire in the bedroom0 She alleged that it was Mbua, the second accused, who prepared that fire0 She claimed that the saw the faces of the culprits but did not observe closely to see what they were wearing. She did not recall who searched for the money. She claimed that she identified all the four culprits who entered the bedroom as the present accused persons 0 However, when she was cross—examined, she stated that it was possible that it was Mdaki the third accused and not Nbua who prepared the fire in the bedroom, and she also changed her story and said that she recognised only two of the intvuders, namely ?lbua the second accused and Mdaki the third accused, and that she had been asked by Mariamu to mention the other accused persons 0 N1ungu Msure's evidence supported Mariamu's that she, Mariamu disclosed the names of the culprits to him at his house when she went to inform him about the incident. But the evidence of Nkungu's son g Mbua (Pw3), and that of Mwajuma (PI2), tends to contradict their evidence 0 According to these two witnesses Mariamu merely said that her husband had been killed and did not mention the names of the killer. M1ua went further and stated that even when they had gone to the scene s Mariamu had not implicated anybody. According to the witness, he personally questioned Mariamu as to whether she had recognised the culprits and she replied that she had not0 Juma Mtee (DW6) who was allegedly present during this interview confirmed this allegation. All the accused persons denied the charge and each advanc. d an alibi, The first, second and third accused alleged that they wer, at their homes at the material time and each was supported by his wie, As regards the fourth accused he alleged that he was sleeping at the house of Nsandai Mkungu and the said sandai (DW5) agreed that that was the case0 As pointed out, there is no doubt that the deceased was killed by a gang of robbers. The main issue in this case is whether the accused persons took part in the killing. This is basically a question of 4.dentifi-ation 0 Also, as indicated, the crucial evidence for the prosecution is that of Mariamu (PW1) and Mwajuma (PW2). Mariamu's testimony, if believed, would implicate the accused persons flally. The question which I must address myself at this juncture is whether stoty to the extent that it implicates the accuseds is credible and free of any doubt. In other words her evidence regarding the identification of the culprits must be carefully assessed and evaluated to see whether it it true beyond a reasonable doubt. She has contended very firmly that she saw and heard the culprits and that sh identified them as the present accused persons who she had undisputably known very well many days, if not years, prior to this incident. Howcver, in assessing her testimony one must bear in mind the testimony of Nbua (PW3) and Juma Ntee (Dw6)0 This evidence tends to show that Mariamu was not sure about the identities of the people who killed the deceased 0 I note that Juma Mtee is related to the second and third accused. This is common ground. It was submitted that his evidence was inherently partisan. That might be so 0 But what about 1flua (PW3)? He is apparently not a relation of any of the accused persons. On the contrary, he is the nephew of the deceased and if he had any interest to serve, it should be that the culprits must be exposed and properly dealt with. He could not in my opinion have made any allegation favourable to the accused unless that allegation was but true. On the evidence adduced by these two witnesses, I fe1 that it is not afe to believe Mariarau that she truly identified the four men who entered her bedroom after killing the deceased, and in this I must, with respect, differ with the assessors. 00 eaawaa .. . , . . , . 0/3 It is submitted that the evidence of Nwajuma (PW2) affords corroboration. I do not think so As shown, Mwajuma gave unsworn evidence and at its face value her evidence might only implicate the second and third accused. But it appears to me that she was not ric J. particulary observant. She was not sure who between the second and Lhird accused actually lit the fire. She would not know who searched the house for money and she would not know what dresses the culprits wore. It is, in my opinion, conceivable that the may have been taught by Mariamu. 'On the whole I think that her evidence is of little weight and does not advance the prosecution case any further. In the event, I find that the prosecution have failed to prove beyond reasonable doubt that it was none but the accused persons who murdered the deceased0 I find them not guilty of the offence and acquit all of them. They are to be set free forthwith unless they are lawfully held on another ground0 Judgment delivered in court at Singida. Mr0 Kinabo for the Republic.. Mr. Mbezi for the Accused persons. Accuseds present. 4th November, 1974 D.P. M,WIGANO AG. JUDGE