19741116 TZHC Singida

V; IN THE HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL JIJRISDICTION (D0DOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 146 OF 1974 THE REPUBLIC V$., GIDAM[JDE rvIALANGI CHARGE: Mirder c/s 196 of the Penal Code. J U D G M E N T Gidamude s/o IVialagi, the accused, is charged with murder c/s 196 of the Penal Code, namely that on or about the 24th day of August, 1973 he murdered one Hanje s/o Kilakae at a place called Kihoni in Singida Region. The prosecution set out to prove three main facts. Firstly that an old man called Hanje Kilakae a Mnyaturu who was residing at a place called Mangida in Singida disappeared since August24, 1973 and that his body has never been traced. Secondly that on or about the sEtme day Hanje Kilakae disappeared, the accused killed a person near the house of Gidamisi s/c Hambwabwa at Kiheni by stabbing him with a spear and this of malice aforethought. Thirdly that the person who was so killed by the accused was none but the said Hanje Kilakae. They, the prosecution, called and led evidence through seven witnesses in order to prove their assertions. The first witnoss for the prosecution was Mughoria s/c Hanje (Pw1). He told this court that he was the son of Hanje Kilakae. He testified that he and his father happened to travel from their home to the house of Gidamisi Hambwabwa (Pw4) where they spent a night drinking pombe. Mughoria wont back to his village on the following morning leaving his father at the house of Gida.misi. His father Hanje did not appear at his house and when two days passed the witness was anxious. He decided to go back to the house of Gidamisi to look for him. He did so but did not find his father at that place. He inquired from Gidamisi about it and he. was told that he, Hanje Kilakac, had left the place. The witness then went to the police station at Mangida to report. With the police he went back to the house of Gidamisi where and when G-idamisi was inter- rogated. G-idamisi did not seem to be of any help because he main- tained that Hanje had left his house and he could not know where he had gone or what had happened to him. They decided to search the area around that place. They discovered blood at the plabe. They saw a leaf which was coated with blood as well as pieces of bones and teeth which appeared to be of a human being. The police collected and kept these things. Continuing, the witness testified that the police accompanied with Karani Gidamudaringa (Pw3) and Shashuda Mbashi (PW2) came to his house. They took him to the house of Gidamisi and it would appear that by this time Gidamisi had been arrested. He said that when they arrived at that place, Karani (PW31 told them that Hanje had been speared to death by G-idarnude Ivlalagi and that he pointed out where the incident had taken place. And further that he, Karani, pointed out the various places where the accused had buried the dresses of Hanje. These places were dug and a vest P9, an underwear P8, a blanket P6 and a pair of nylon shoes P7 were discovered and taken out. He said these articles were buried about forty paces from the place they had discovered the pieces of bones and teeth 0 . . 0 0 .2 - on the previous occasion. He said he believed that the articles belonged to his father and alleged that they were the ones he was wearing when he left him at the house of Gidamisi. He also alleged that his father had Shs. 210/- with him butthat money was missing from the clothes at the time the clothes were dug out. Lastly, he told the court that he has never seen his father eversince he lef't him at the house of Gidamisi and that he believes that he was killed at o.r near the house of Gidamisi. The second witness for the prosecution was Gishashu â/o Nbashi (PW2). He is a Nang'ati and he also alleged that the accused killed a person. It is common ground that he was also a suspect in this case, he was arrested and charged but was later, discharged when the proceedings against him were discontinued. In the meantime he volunteered a statement P1 to Agness Dorothy Kitundu (PW5) a Justice of the Peace. That was on September 5, 1973. What he related to the J.P. is, in substance, on all fours with what he testified before this court. Ho, PW2, alleged that he wasdrinking at the house of one Habalo Kaburi with other people when the accused went and took him aside. He, the accused, asked him to follow him and he did so. Lfter walking a distance of about one hundred paces, he saw the accused stopping, stooping and then picking up a spear. The accused then told him "njoo tumwue mtu" (i.e. bote, let us kill a person). He said he declined and that in another moment he saw a person, a stranger, lying on the ground nearby. The accused allegedly remarked to him that he was going to kill that man. He stabbed that man twice on the chest and the victim kicked and threw his arms before he succumbed to the blows. The accused then cleared the blade of the spear and then dragged the deceased by the legs, for a distance of about one hundred paces. He ran back to where the witness was standing and said that he had seen people around. They went back to the pombe place. Subsequently, they went back to the scene accompanied with Karani Kidamandariga (PW3). They went to the place he had throwi the dead body which was near the house of G-idamisi. The accused asked for and was given a knife by Karani, ani with it he cut the shirt of the deceased and stripped the body. He discovered Is. 8/- on the body and gave the two men Ss. 2/- each and begged them not to disclose what he had done. He, PW2, left the place and did not report the incident to anybody. J.sked why he did not do so, the witness replied that that was because he drunk and because the accused had asked him not to by threatening him with death. And also that that was why he agreed to receive the s.2/- from the accused. Asked why he eventually disclosed the matter, he replied that this was because the Wanyaturu to which tribe Hanje belonged suspected that Hanje had been killed by Wamang!ati and withheld Wator from the Wamang'ati unless and until the Warnangtati exposed the culprit. He said this step hit the Wamang'ati quite hard and a meeting was convened during which he was constrained to disclose what the accused, a fellow Mang'ati, had done. He was then apprehended arfi escorted to the police. He confirmed what the first witness, Vilughori4k . had testified as to how the exhibits P6 to 29 were dug out and taken by the police. The third witness for the prosecution, Karani Kidamandaringa is also a Mang'ati and was also a suspect. Like Gishashu MPWfl the proceedings against him were discontinued. Again like PW2 he gave a voluntary statement before Agnes Dorothy Kitundu (PW5) which was recorded down, which statement P2 corresponds with his testimony in this court in all material particulars. . S •••3 - 3 - He confirmed what Gishashu had stated that he accompanied the accused to the scene. He said the accused had asked him to accompany him to a ravine to fetch his articles. When they reached the ravine he saw a corpse which had sustained two stab wounds on the chest, and the accused told him that he was the one who killed the man, and that he wanted the witness to see what he had done. He confirmed that the accused asked for a 1ife but he denied G-ishashu's allegation that he, PW3, offered any knife. He said that the accused cut the clothes of the deceased with his own knife after he, PW3, had declined to give him his own knife. He agreed with the allegation that he was offered . 2/- by the accused, but he denied that he accepted the offer. He alleged that he accompanied the accused when he went to bury the clothes and to throw the dead body into the ravine. He did not identify the dead body. He also alleged that he was asked by the accused not to tell anybody about that tragic incident and it appears that he acceded because it seems that he began to tell when he was in police custody and after Gishashu had made the allegation. His other evidence related to and corroborated tir testimony of the other witness regarding the discovery of the clothes. Gidamisi (Pw4) gave evidence that Hanje Kilakae was his friend and that when his father (Gidamisi's) died he arranged a funeral ceremony. He invited Hanje who came with his son Mughoria (PWi1). He said that the ceremony was well attended, about one thousand people were there and that most of them including Hanje and Mughoria spent a night at his place. He said Hanje tnd Mu.ghoria left on the following morning and that Mughoria was the first to leave. A few days later the sons of Hanje came to his house ard told him that Hanje had not arrived at his house. He suspected that he had been killed on his way home. He identified exhibits P9 and P6 as the ones Hanje was wearg when he came to his house. Apart from this evidence this witness, a Nang'ati, agreed with.the prosecution that traditionally Wamang'ati regard killing a person as a brave act and that in that event the killer calls his friends to witness what he had accompliskd añ that these friends are expected to keep a tight mouth as the matter is regarded as a great socret. k detective PW6 Sabina Kweka who investigated this case collected the pieces of bones and the tooth which were suspected to be the remains of Hanje ICilakae. He also collected the blood coated leaf and a piece of soil from the scone. He was later told that PW2 knew about the disappearance of Hanje Kilakae and on inter- rogation PW2. related to him the story which he PW2 later related to the J.P. and to this court. He also questioned Gishashu about the matter and Gishashu confirmed the story. The two led PW6 as well as PW7 Cpl. Lucas, a police photographer, to the scene. They PW2 and PW3 showed hiu the place where the killing had taken place, where the body was thrown and where the accused had hidden the deceased's belongings. He dug the places and recovered exhibits P6 to P9 which were identified to him by Mughoria. He searched the area but Lthat the body had been devoured by wild animals. Pursuant to what 't!2 and PW3 told him, PW6 looked for the accused but un- successfully. Eventually the accused gave himself up and he was interrogated. He, the accused, denied the allegation put forward against him. PW6 sent to the Government Chemist the following exhibits: a piece of soil P14, the leaf P13, pieces of bones P12, teeth P11 as well as exhibits P6 to p9 whieh he had collected from the scene. There were duly examined and the report P5 shows that reaction for human blood respecting P8, P13 and P14 were positive f or group 'A". And that reaction for human protein respecting P11 and P12 were also positive. I • • • • • 4' - 4 - When the defence was called in, the accused chose to give an unsworn statement. He stated that there was an occasion when he went to the house of Gidamisi where he spent a night drinking. He left in the morning at about 7 a.m. Later on he received information that police were looking for him and he proceeded to Kilongero police station wIre he was referred to Singida police station. He denied that he is the one who killed Hanje Kilakae. That is the review of the whole evidence which was given in this case. I have now to assess, evaluate and determine the issues raised. On this evidence I am satisfied that Hanje Kilakae has disappeared since August 24, 1973 and the main question then is whether there is sufficient evidence to prove that he is dead and if so whether his death is attributable to the accused person. On whether Hanje Kilakae is dead, the prosecution case hinges on the evidence given by Gishashu PW2 and Karani PW3 as well as that regarding the exhibits which were found at or near the place where the killing allegedly took place. The evidence of PW2 and PW3 is to the effect that the accused stabbed a man by means of a spear near the house of Gidamisi (PW4). They did not know that man, he was a stranger to both. Their evidence is also that the accused disposed of the dead body b3t throwing it into a ravine and that he buried the clothes and the shoes of the deceased. There is a hot argument whether or not the two witnesses are to be regarded as accomplices and I will consider this at a later stage. However, it is clear that material things, that is blood stains on the ground, blood stains on a leaf, pieces of bones and teeth were also discovered at or near the scene pointed out by these witnesses. The blood stains were found to be that of a human being and similar to that which was found on one of the clothes which allegedly belonged to Hanje Kilakae. And act.tng on their words police did discover a blanket, shoes, shorts and a shirt. Accord- ing to Hanjo's son, Mughoria (pwi), and Hanje's friend, Gidamisi (Pw4) these were the very articles Hanje was wearing when he was last seen, and there is no good reason to doubt that. In my opinion therefore the discovery of the blood and these articles tends to corroborate the allegation by PW2 that indeed a man had been killed in that neighbourhood and that perhaps the pieces of human remains, i.e. the pieces of bones and the teeth, belonged to that man. Also on these pieces of evidence, I think that the person who was killed there was none other than Hanje Kilakae, That is also the unanimous opinion of the two assessors who sat with tie. I resolve the issue by finding that Hanje Kilakae is inded dead. The next matt r to consider is whether it is true that the accused person killed a man on August 24, 1973 as contended by the prosecution. This was also a subject of great dispute. The accused agrees that he slept at the pombe place at the house of Gidaraisi but he denies that he kifled any person. The prosecution relies on the testimony of PW2 and PW3 on this issue. That evidence tends to show that he, the accused, on seeing a man who was lying on the ground near the house of Gidamisi decided to kill him. He then went to call PW2 from the pombe place and in the presence of PW2 he stabbed that man to death. It also shows that he subsequently threw the body into a ravine and buried the deceased's belonging in the ground. If this evidence is believed, if this is what in fact happened, then it will not be possible to reject the prosecution contention, notwithstanding that the body was not traced in the ravine. The prosecution submission is that the evidence of these witnesses is credible and reliable andseveral reasons have been advanced in this regard. The first reason is that the. two witnesses had no cause for concocting a false allegation against the ....5 - 5 - accused. The second is that they were not at all suspects up to the tio Gishashu disclosed the matter before the Wanang'ati during the meeting which was convened to discuss Hanje Kilakae's disappearance when water was withheld from them. The third reason is that the witnesses have been consitit throughout. On the other hand the defence submit that these witnesses if believed are confessed accomplices in that they stood by watching approvingly when the killing was being done and when the body and the property of the deceased were being disposed of. find in that they did not report to anybody in good time. It is threfnre submitted that their evidence which imnlicates the accused must be assessed with the greatest caution and should not be accepted and acted upon unless it is corroborated, and in the opinion of the defence such corroboration is lacking. On the question of the two witnesses being possibly accomplices, the prosecution suggest that what is ultimately important is to consider whether inspite of that their evidence is true and submit that it is. Are the two witnesses acomplices? Having regard to what were discovered following their account to the police, I am of the view that these witnesses were present when a man was killed near the house of Gidanisi. If what they said is true then it is dif- ficult to reject the probability that they were more or less accomp- lices. For Gishashu was present during the actual killing. He did not raise any alarm. He returned to the scene and witnessed the body being thrown. He wont back to the pombe place and never reported to anybody. As for Karani his avidenco is that he accompa- nied the accused when he wont to throw the body and to hide the property removed from the body. There was an allegation by Gishashu that it was his (Karanis) knife which was used by the accused for cutting the shirt of the deceased. He, Karani, disputed that as he disputed the allegation that he received the money which was offered to him. I tend to believe Gishashu in this regard and I tend to think that each obtained a bigger Sun. Gishashu alleged that he was threatened but I am not satisfied that he was. The prosecution alluded to the alleged Nangtati tradition as an explanation why the two witnesses behaved in the manner they did. I cannot pretend to say that that evil custom does not possibly exist but if it exists it might equally 6nhanco the defence argument that their apparent acquisconce and failure to report was not only based on indifference but on approval as well, which would render their evidence no better than that of an accomplice. After due consideration, I will deal with their evidence On the basis that it is that of accomplices. Now, I fully under- stand that it is dangerous to accept and act upon the uncorroboratod evidence of an accomplice. I can only act upon that evidence if I am satisfied beyond reasonable doubt that the evidence of these two witnesses tending to link the accused to the killing of that person cannot but be cogent and true. As pointed out, the prosecution argument is that the evidence of these two witnesses is credible. It is argued that this is so, because they, the witnesses, had no reason to tell lies against the accused. I agree that there is no evidence and no suggestion that there was any misunderstanding between the accused on the one hand and the witnesses or any of the witnesses on the other hand. However, the chances that the witnesses were more deeply involved in the killing then they let the police and court know cannot in my judgment be ruled out. In that likehood tile chance that they might have tried to shift the guilt from themselves equally obtain. . . . . . .6 - 6 But the prosecution argue that the possibility that the witnesses might have tried to shift the blame is unreal because until Gishashu told it they were not at all suspects. This may be true. However, the prosecution evidence on this point is not sufficient enoughto establish that they were not suspected by their fellow War2ang'ati prior to their neting,. I have found that a man was killed near the house of Gidamisi in the circumstances described by the two witnesses. I believe that the victim was none other than Hanje Kilakac. This is established by circumstantial evidence,•by the fact that his clothes and shoes were traced in the vicinity. PW2 alleged that the deceased was lying down when he was stabbed. If that is eo then either Hanje might have fallen sick or he might have been overcome by the pombe while he was on his way home from the house of Gid.amisi. On the evidence it is clear that he was killed unlawfully and deliberately and therefore that his assailants or assailant committed the offence of murder. The evidence which implicates the accused in this murder is strong and has been accepted by the assessors. On my part I would hesitate to accept it as it is wholy that of accomplices and I am not satisfied beyond reasonable doubt that it was the whole truth and nothing but the truth. I would on that score give the accused the b-nofit of my doubt. In consequence, I find the accused not guilt of murder and acquit him. I direct that he should be sot free forthwith unless he is lawfully held on another ground. Judgment delivered in court. Mr. Alimwike for the Republic. Accused present. j( D. P. Iapigano 16th November, 1974. AG. JUDGE