19741123 TZHC Dodoma

,- 21 - As IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (D0D0MA REGISTRY) CRIMINAL SESSIONS CASE NO. 12 OP '1974 E.A.C.A. CRDINAL APPEAL NO. 26/'74 THE REPUBLIC VERSUS .• ISSA s/a MOHAMED AND 4 10 Charge: Murder c/ 196 of the Penal Code. J U D G M E N MAPIGANO, AG. J.: The five accused persons namely: 1. Issa s/o Mohaned 2 Swalehe Chocho Mariya . Akida s/o Swalehe I Mwanaanina Ranadhani , and Zuberi s/o Swalehe are in this instant dharged with murder; the allegation is that on or about the 18th day of September, 1972 they, of malice afore- thought, caused the death of Ranadhani Alli at a place called SóndoTh, Kondoa within the Dodoma Region. All of them denied the charge, and the second, third and fourth opted not to give evidence when their defences were called in. The prosecutionsonght to prove that the said Raraadhani Alli, iereinafter referred to as the deceased, was killed unlawfully and 'deliberately by the first accused Issa Mohamed following a quarrel between he, the deceased, and his wife the fourth accused, Mwanaamina Pamadhani. And that thereafter he, the first accused, she, the fourth accused, and another woman PW3 Mwanaidi Swaleho, ;O disposed of the dead body by burying it In a pit latrine at the house of the deceased in order to avoid suspicion, detection and punishment. And further that subsequently the body was excavated by the second accused Swalehe, the third accused Akida nd the fourt'i • accused Mwanaamina and other people and then reburied at another place, also in order that those responsible might escape detection and punishment. There is sufficient and incontravertible evidence to establish that a human corpse was discovered partly buried near a river called Dalai. Detective Lucas (P1112) went to the place where he saw the 0 skull protruding above the ground. This was on 16/12/72. The body wasexhumed and was found to be clothed in black trousers (P1), a blue pull over (P2), a white 6hirt (P3) and vest (P4), A. gunny back (P5) was also dicovered about fifty paces from the grn.vo. The body was examined and found that there were two teeth missing. fl17 Asha Athumani identified exhibits P1, 'P2 and P4 as the clothes the deceased was wearing when she last saw him alive. , She also 8 1 22 - identified the dead body as being that of her cousin, Ramadhani Au, by means of the missing teeth. There is no dispute that the deceased had lost some teeth when he was still alive. Presumably that is why he was also called "Nape ngo", a Swahili word which lit o- rally moans "gaps" and figuratively "defect" e.g. gaps between teeth. P13 Mwanaidi Swalohe alleged that she .witnossed the fatal assault the deceased received from the first accused, and she identified exhibits P1, P2 and P3 as the clothes the deceased was 10 wearing when that happened. The dead body was examined by PW5 Dr..Charles at Kondoa Government hospital on 18/12/72. According to the doctor death had occurred about three months back. I am satisfied that the prosecution have proved that Ranadhani Alli is dead and that his dead body was the one which was dug out by Detective Lucas on 16/12/72 k and examined by Dr, Charles on 18/12/72. Acting on the testimony of the doctor, I am also satisfied that the deceased died on or about 18/9/72. I should say right now that the prosecution have failed to prove that the second, third and fourth accused persons did parti-- cipate in the killing. As remarked at the outset, the cace again;t them is founded on an allegation that the second, third and fourth accused helped in hiding the dead body in order to enable the alleged killer, the first accused, to escape detention and punish- ment. The evidence against the second accused was mainly that of PW4 Hassan Dungusu, 111'17 Asha Athumani and P2 Alli Abdallah. The evidence of PW4 Hassan is to the effect that he was asked by the fourth accused to go and dig out the corpse of the deceased, and 30 that he agreed and went to dig out the corpse from the house of the deceased, and that they carried it in a sack and went to rebury it at the river Dalai, and that throhout, the second and third accusedwers present and were assisting. That of fl17 Asha is that the fourth accused accompanied by the second accused had called at her house, and that the second accused had asked her to tell anybody who should happen to enquire about the deceased that she had not seen him around. And that of PW2 Alli is that the fourth accused had occasion to tell him in presence of the second and third accused, that they had killed the deceased and that they were looking for money with which to buy the silence of the fifth accused who was the diwani of that area. I am in agreement with the defence submission that the evidence of P14 Hassan is essentially that of an accomplice. He has openly suggested that he assisted in reburying the corpse. He was obviou31y assisting the culprit to escape punishment. I feel that it is unsafe to rely on his evidence. As for PW7 Asha, I have no doubt that her testimony was not cogent and that even if accepted for what it is worthy, it would not.fully implicate the second accused 50 in the killing. With regard to the PI2 Alli Abdallah, I think that he was not an objective witness. He said that he was related to the deceased and the question poses, how could the accused dare confess to him? And yet, incredible enough, he would keep quiet and not report to the authorities I am inclined to think that his evidence necessarily strains credulity. The evidence against the third accused, as indicated is only that of PW4 Hassan and PW2 Alli. But as shown these two witnesses are not reliable. The evidence agains the fourth accused is in my opinion 60 stronger. But it goes nowhere to suggest that she participated in the actual killing. There is the testimony of PW3 Mwanaidi, of PW2 Alli, of PW4 Hasan and of the extrajudicial statement made by 23 - the first accused. Briefly, both P13 Mwenaidi and the oxtrãjudicial statement allege that she was present when the first accused struck the deceased to death and that she assisted the first accused in carrying the body to her house and burying it in the pit. And as pointed out earlier, the allegation of Pi12 Alli was to the effect that she, the fourth accused, subsequently confossed to him that they had killed the deceased and remarked to him that they were looking for money to buy the silence of the fifth accused. And that of 2144 Hassan, also as pointed out, was that she had helpàd to 10 dispose of the body at the river. The evidence as a whole does not establish that she ever struck the deceased. According to PW3, the fourth accused merely stood passive when the first accused was killing the deceased. There is nothing to indicate that she acquisced in what was happening, much less that she approved or encouraged the assault. PW3 alleged that both herself and the fourth accused helped the first accused in carrying the body to the house of the deceased aid in burying it in the pit. Asked why she did so, P143 replied that she was prevailed upon by the first accused who threatened her 20 with death. It is worthy to note that she, P3 was a cousin of both the first and fourth accused, who are sister and brother. And I am of the view that she had no cause to lie against the fourth accused,. I believe that she, the fourth accused, helped in disposing of the body into the pit latrine and I also believe that she helped to dispose of the body at the river, because it is hard to believe that the body could have beor dug out from the pit at her house without her knowledge in the c±cumstances. While it can be argued that in the first instance she might have been helping under duress, it cannot be said that she was also acting under duress, on the second 30 occasion as going by the prosecution, the alleged killer, the first accused, was not present when the body was transferred from the.first to the second grave. She, the fourth accused, was in my view an accessory after the fact. The case against the fifth accused is based on an allegation that he counselled the murder of the deceased and that he sub- sequently solicited and received a bribe of •3is 100/- in order to forbear from expossing the culprit. This is composed of the extra- judicial statement made by the first accused before P1119 John Masaki, a Primary Court Magistrate 2 on January 1, 1973 and of the testimony 40 of PW2 Alli, and of P14 Hassan. The first accused agreed that he made the extraiudicial stitement (P7). But he has turned about and purporteto retract it, alleging that it was procured from him as a result of ill-treat- mont and a threat of ill-treatment. That statement ex-facie amourts to a confoscion and it affects the fifth accused to the following extent: That on the day the deceased carlo back, there was a quarrel between him, the deceasod, and his wife, the fourth accused. This happened at their home. The fifth accused who lives in the neigh- bourhood heard them quarreling and he went to the place. When he 50 reached the place he inquired about the quarrel. The deceased responded by fisting him on the chest and by ordering him to leave the place. He left and went home. But the fourth accused followed him and at her instance he went to report to the fifth accused who was their ten cell leader, The fifth accused listened to him and then urged him to go and kill the deceased, saying that he, the deceased, was a burglar and a menace to the village, and as such, one who was very much disliked. The first accused Went back to his house whei'e he found the deóeased and the fourth accused quar- relling again and struggling over a bill-hook. At one stage the 60 deceased threatened to shoot them with a pitOl. He, the firstaccused ented.an&. exorted th bil hook from theri,etood up and out the 'deceased. with the bill hook to death. The fifth accused denied the whole allegation and the evidence of 1:W3 Mwanaidi tends to support him, because it is plain from that - 24 - evidence that the first accused did not leave his house to o and report to the fifth accused at any. stage during the incident. Even granting that the first accused reported to the fifth accused as alleged, that alone would not suffice to establish that he counselled the killing.. The reason is not, with respect to the defence, that th extrajudicial statement has been retracted, because a retracted confession may still be taken into consideration against a co- accused (see Oriole and Another v. R. (1953) 20 E.JLC.A. 218, which I think is good law following the repeal and replacement of section 10 33 of the Evidence Act 1967 by section 19 of Act No. 26/71). Bit the reasons are (ii that the confession cannot in law be a basis for a conviction but as held in Gidojiebanya and Ors v. R. (1953) 20 B.A.CA. 318, but can only be used to supplement an other- wise substantial case against the accused person, which is not the case in the present case, and (2) there is no plain indication that the first accused, was incited into killing the dedeased on account of the alleged exhortatioh of the fifth accused. As to the allegation that he, fifth acci..ised, sblicited and received a bribe from the other accused p?rsons there was mainly 20 only the evidence of P112 Jillij He alleged that the fifth accused sent him to call the second and the fourth accused and PW4 Hassan and that when he brought them to him, the fifth accused asked all of them to leave with the exception of P14 Hassan. And that later. on he, fifth accused, sent him to go and ask PW4 Hasean as to what "arrangement" he had made. He did so and in the presence of the second, third and P14 Hassan, this witness allegedly heard the fourth accused saying that they had .hs. 100/- f or buying the silence of the fifth accused in connection with the death of the deceased. fourth accused, then gave him the money to send to the fifth accused 30 and he declined to do so. And that later he told the fifth accused about the money but that the fifth accused did not mte any remark. He agreed that the deceased was his uncle and that he did not repor to anybody about the boheaviour of those accused persons, as he feared for his life. The fifth accused denied the allegation. He said that by 19/9/72 rumours that deceased had come back from Arusha and had b5on killed were making the rounds of that place. A iid that this is why he called the second and fourth accused as well as P1'14 ilassan to ask them about it. P114 Hassan supported him that all he did was 40 asking the three people whether there was truth in the rumours and that everybody replied that he or she did not know anything about it, and that the fourth accused told him that the deceased had not come back to the village.. PW4 Hassan further alleged that ' the fourth accused subsequently collected is. 100/- from him but that this was her own money which she had kept at his place. The fifth accused contended that fl42 Alli was lying against him as he happened to have caused him to be charged with attempted suicide. I am of the view that there is no sufficient evidence to prove that the fifth accused over solicited any bribe, much less that 50 he received any money in connection with the death of the docoasod.. TW2s evidence is only sketchy. Indeed, evan its credence is suspect. He, 1712, gave me the impression of a witness who is Quick-mouthed and one who was too predisposed to implicate the accused. His objectivity is questionable and it nay well he that he was vindictive, that he had an axe to grind against the accused generally and the fifth accused in particular. I feel that there is a real risk in accepting and acting on his evidence without material and independent corroboration. But I find that there is no such corroboration in the evidence as a whole. 60 I now turn to consider the case against the first accused, Issa Mohamed.. There are three pieces of evidence which the prose cution led in this regard, namely the evidence of PW31 Mwan.aidi, 6 Alli Oman end the extrajudicial statement (17). Pff 3 Mwenaidi stated that she is Co cousin of both the first and fourth accused and this was not disputed.. She alleged that 25: - she witnessed the deceased quarrelling with the fourth accused at their home and the first accused slashing the deceased to death at the house of the first accused. According to her story, she was at the house of the deceased when the deceased arrived at about 8 p.m. and that he appeared drunk. The deceased asked for a meal and she, 1- 1-73, gave him ugali and milk.. He only took the milk. Then the deceaso asked the fourth accused why she was sleeping at another place. The fourth accused replied that she did not want to sleep at their place. The deceased threatened her but she remained adamant. There was an 10 altercation. The first accused arrived and asked what was happenin.. The deceased hit him with a fist on the cheek but he, first accused, did not fall down and he left for his house which is nearby. Both the fourth accued and the deceased went to the house of the first accused and she, P113, followed them. The deceased asked the fourth accused for the key of theIr house. She replied that she did not have. The deceased was standing outside when the first accused emerged from his house armed with an ae and then, without uttering a word, dealt the decoasod with two axe blows on the head. The deceased fell down and died. Thereafter, the first accused suggested that they carry 20 the dead body to the pit at the house of the deceased and they did so. They burned it there. She alleged that she was threatened with L'ou6 left death if she dared toLdisclose to any person what had happened. Sho to another house and thence to places called Mnicho and Daki or - here police ultimately followed her for. interrogation. She replied o a question put to her by the first assessor Mohaned Mhau that the deceased did not abuse the first accused at the house of the first accused. I have reviewed what the first accused told the J.P. per E7. His version as to what happened at the house of the deceased is in 30 substance in agreement with that of P1`13. But the two versions differ as to what happened at the house of the first accuzed.. This is denied by the fifth accused and it finds no mention in the evidence of the P143. He, the first accused, alleged that the deceased and his wife the fourth accused quarrelled at his house. P13 appears to contradiôt that. And the first accused alleged that the deceased and the fourth accused struggled over a billhook and that the deceased threatened to shoot them with a pistol0 Again this is gainsaid by P73. The first accused alleged that he slashed the deceased several times i.e. on the rit side of the head, on the neck,. on the loft side of the 40 head, with an axe, while according to 1143 he hit the deceased only twice, on the head. PW6 Alli Omari alleged that the deceasod was his friend and that in one occasion when he was drinking at the house of one Ronadhani Kibori he not the first accused there. And that ho, first accused, remarked to him in the course of drinking that he could finish him, PW6, as he did his friend 'Rriadhani • And further that it was three months later that ho, PW6, came to learn that Ramadhani Mapengo had in fact died. On oath, the first accused told this court that he did not meet 50 the deceased on or about 18/9/72, that he did not quarrol with the deceased and that he did not cause the death. He denied the allega- tion put forward by W3, alleging that he had quarrelled with her when he broke her gurd. He denied that he happened to threaten P!6 Alli Omari as alleged. And he asserted that the statement P7, was procured from him by beating and throats. More specifically, he contended that two policemen, including P111, beat him with fists and forced him to admit that he had killed the deceased. He did not know what he told the J.P. as his head was then in a state of confusion, but he agrees that the police did not teach him what to say before the 60 J.P. I must decide then whether or not what P13 Mwenaidi told this court, what PW6 Alli Omari told this court and what the first accused told the J.P. and this court, is true. L He alleged. that he went to report to the fifth accused. - 26 - As pointed out and as submitted, PW3 could apparently be regarded as an accessory after the fact in that she has admitted that she helped in disposing of the dead body. However, she is undeniably the cousin of the first accused and it is impossible that a mere quarrel over a gourd, assuming that there was one, could have betrayed her into making falsehood against him. If she has any more compelling interest to serve, it is, in my view, that she should endeavour to extricate her cousin from this difficulty. I an satisfied that she is a truthful witness. 10 And the extrajudical statement tends to confirm the evidence of P113. Some of differences which I have pointed out, are in my opinion immaterial in the circumstances, it being night time and it being a violent attack of a short duration. She might have mistook a bill-hook for an axe and observed two whereas in fact there were three blows. She alleged that the accused emerged frau his house and quietly hit the deceased while the accused in P7 stated that the deceased was then fighting with the fourth accused and abusing and threatening them. I think she was the truthful witness on this points There is nothing in reason why she should have 20 chosen to lie against the accused. But it is submitted, in effect, that 1 17 is in itself a false account of the event and that it should not he given any weight. The allegation is that it was not a voluntary statement and that the first accused made a false story in order to save himself from further ill-treatment by the police. The allegation that the statement was procured as a result of an ill-treatment was omewiat ade belatedly, when the accused was giving evidence. The detence never indicated that they were going to object to its admission on that ground and it was admitted in evidence without 30 an argument. It is reasonable to assume that learned counsel for the defence had no instruction that the statement was not voluntary. was the first accused then ill-treated, harassed and prevailed upon by the police, and this to extent that he was thereby driven to admit such a grave accusation? I an not f or one moment persuaded. It may be possible that he was harassed, but I am satisfied beyond doubt that the statement was perfectly voluntary and I accept it as true where it agrees with the testimony of flT3• I will only say a word about the evidence of. PW6, Alli Oman, I think his allegation was too bare to be relied on. In the result, I would find that the evidence of PW3 as confirmed by 1`7 establishes that it is the first accused who caused the death of the deceased. It remains to be considered whether the killing constituted murder. The first point that is clear upon perusal of the evid ence of PW3 Mwanaidi is that the deceased did not abuse, threaten or put up a fight with the first accused at the scone. The accused was at the material time only asking for a key from his wife the fourth accused. He does not appear to have posed serious threat or trouble to the first accused and he, the first accused, cannot be said that he struck in self defence as his life was not in imminent danger. 50 Secondly, if the accused was provoked by the act of The deceased of following the fourth accused up to his house when he had given him a fist blow shortly before, thea ssossors with whom I respect- fully agree, are however of the opinion that that provocation was insufficient to impel a reasonable man of his standing to assault the deceased as he did. I haves taken into consideration the opinien of Dr. Charles who performed 6he posc-mortom examination. He said he observed twowounds, namely a cut wound about 4 inches long in the neck and a sharp edged hole near the centre of the head - about 5 inches in diameter. He thought that the wound on the skull was 60 consistent with having been caused by a sharp weapon like apanga and that it was struck with great force. Thd that it was the cause of death. -•• -. 27 - I subscribe to the View of the assessors that the assault was deliberate and that the first accused struck with full appreciation that at the least the blows would cause grievous harm to the deceased. In the result 9 I hold thattho second, third, fourth and fifth accused arc not guilty of murder. I find that the fourth accused was only an accessory after the fact. But she is in this moment charged with murder. It has been held that an accused who is acquitted of murder cannot be convicted of being an accessory after 10 the fact to such murder when he or she has not been charged with that offence, as the offence is not 'minor nd cognate' to the offence of murder (see Mariam d/o: Mihambo (1967) H.C.D. No.72 following Wamal v.R, (1955) 22 EA.cL 417). I acquit and set these four accused free. I find that the first accused Issa do Nohamed is gilty of murder and I convict him accordingly. Judgment pronouziced in court at Dodoma. Mr. Alimwike for the Republic. The accused present. D. P. Napigsno Ag. Judge Mr. Alimwike The first accused is a first offender. Allocutus Nil Sntence: The law provides only one sentence for murder and Ian compelled to pass it now. That is you Issa s/o Nohaned shall su±fer death by hanging. You have a right of appeal to the Court of Appeal for East Africa, D. P. Mapigano 30 23rd November, 1974. Ag. Judge 11