19740315 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASED NO010/73 THE REPUBLIC VERSUS MOHAMED SIO NDOMBOKA Charge: :Nurder c/s 196 of the Penal Code. J U D G M E N T MNZAVAS J. The accused Mohamed Ndomboka stands charged with murder c/s. 196 of the Penal Code. It,is the prosecution case that the accused on or about the 25th day of January 1972 at Ilonga in the district and Region of Mbeya murdered one, Hassani Duali. The accused pleaded not guilty to the charge. From the evidence of the doctor (PwJ.) and that of Mohamed (PW2) there can be no doubt that a man by the name of Hassan Duali has died. Equally there can be no doubt that he died a violent death. It was argued by the Republic that the deceased was killed at about 10.30 p.m. on the material night as he was washing himself ready for evening prayers; and that it. was the accused who, with malice aforethought attacked and killed the deceased In support of its case'the prosecution brought nine witnesses. The first witness was the doctor who testified that he observed wounds on deceased's head. One of the wounds, 2" long was cn the accipital region of the head. Another wound was behind the left ear exposing the skull and the third wound was below the mandible measuring ½ by 3" deep. On opening the su1l the doctor found sub—dural as well as subarachroid bleeding. The doctor was of the opinion that the head injuries were the cause of deceased's death, Mohamed Hassan (PW2) son of the deceased told the court how on the material night his father left the bed—room and went outside to wash himself ready for prayers. According to his testimony while the deceased was still outside, their night watchman came to him and asked for a torch, The witness looked for the torch but he did not find it in the room. He however took it for granted that the torch was with his father outside. He therefore told the watchman to get the torch from his father. The waGhmafl soon after returned and told the witness that he had failed to trace the deceased. He also reported that the door to the shop was ajar,. Mohamed got up and went outside and there he found deceased's sandles scattered on the ground f Also on the ground was a kettle which the deceased used for washing himself and his tooth—brush- Mohamed got worried and sent the watchman to call one, Mohamed Duali (Pw6). Mohamed responded and they reported the disapprearance of the deceased to their cell—leader one, Abdul Alimoradi, (PW7), The three then started looking for the deceased and they found him lying on the ground in a deserted building dead— About 15 paces from his shop. An alarm was raised and villagers came to the scene. The matter was reported to Mbeya police station on the same night. Mohamed Duali (Pw7) and Abdul Alimorad (Pw7) related to the court how they came to the deceased's premises, how they looked for the deceased and how they found deceased's body in the deserted kuilding. Marco haurihati and Bosco (PW3 and PW10 respectively) were at the material time employees of the accused. Marco was employed as a ....../2 - 2 - shamba—boy whereass Bosco was working in accused(s hotel, These employees used to sleep in a house which was, according to the sketch map (exhibit B), Wsw about 40 paces•from deceased's shop. According to the evidence of these employees on the night of 25/1/72 the accused came to their house at about 9 p.m. and, without any previous warning ordered them to vacate the house 0 They asked the accused why he was ordering them to vacate the house so hurriedly and at such an odd hour but that the accused did not reply and only insisted that they had to vacate the house d, In his testimony Marco told the court that he and his wife left the house and went to sleep in accused's wife..'s house. Bosco and his wife went and slept in hotel 0 It was their evidence that as they were in their new places they heard an alarm coming from the direction of the house they had vacated but that they did not answer the alarm0 Next morning they heard that the deceased had been killed 0 Inspector Muna (Pw8) related to the court how he investigated the case and how he was tipped that the accused, one Rodrick and another, Adam, were the people suspected to have murdered the deceased. He, on 6/2/72 proceeded and arrested the accused and Rodrick. On 8/2/72 Adam was also arsted. All the three persons were initially charged with the murder of the deceased. On 26/8/72 the prosecution withdrew the charge against Rodrick and Adam and they were accordingly discharged u/s 22L of the C.P.. The prosecution argued that accused's act of ordering his employees to vacate the house at sudj a short notice and odd hour and that his act conciding with the slaying of the deceased on hour or so later was most suspicious. It was also argued that the deceased was rival in business and that because of this the accused might have wanted him out of the way0 It was also the prosecution argument that the killing of the deceased concided with the closing of accused's hotel earlier than usual on that material night and that this also fiited with accused's design and preparation to kill the deceased. In his defence on oath the accused denied killing the deceased. He also denied ordering his employees to vacate their house that night. As to the closing of his hotel earlier than usual he said that it was his servant, Marco (Pw3) who closed the hotel earlier than usual as he was very tired that day. As to the allegation that he hted the deceased because he was his rival in business he said that he knew of no eriemity between him and the deceased. In his submission the learned state attorney argued that there was sufficient circumstantial evidence connecting the accused with the death of the deceased. The learned counsel for the accused on the other hand argued that the circumstantial evidence• relied by the prosecution totally failed to implicate the accused with the murder of the deceased. In this case the prosecution relies wholly on circumstantial evidence. First the Republic argued that the deceased was accused's rival in business in that deceased's shop was bigger than that of the accused and as such the deceased attracted more customers than the accused. That the deceased's shop was the biggest in the whole village and that he got more customers there was no dispute. But this fact alone does not prove that the accused hated the deceased leave alone the more serious allegation that it was he who eliminated him. On the contrary there is evidence that there was no enemity between the deceased and the accused. Mohamed (PW7) the son of the deceased when cross—examined by the court said: "I know of no enemity between my father and the accused. I suspect no one as the cause of my fathers death". Evidence to the same effect is given by Mohamed Duali (PW6), When cross—examined by the court he said: "Neither the accused nor Adam were enemies of the deceased. Rodrick was not in very good terms with the deceased 0 They once quarreled over business matters" 0 On the evidence it is therefore amply clear that the prosecution allegation that the accused hated the deceased is unfounded. As to the question of the accused closing his hotel earlier than usual on the material night0 The evidence of Bosco (Pw10) is to the effect that Marco (PW3) complained00/3 - 3 -. to the accused that he was very tired that evening and asked the accused to allow him to close the hotel earlye. The accused allowed him to close the hotel as he knew that Narco was in fact already very tired as he had previously been working in his (accused's) shamba. The prosecution argument that the accused closed his hotel earlier than usual in preparation to coramit the offence has therefore no leg to stand on. As to the question that the accused ordered his servants to vacate the house they were sleeping we have the evidence of the two servants that he did so; against accused's defence that he did not do so. Here the prosecution argued that the accused ordered his servants to go nd sleep far from where he was going to commit the offence so th&t as to reduce chances of detection 0 Even if this argument is to be accepted by the court I fail to see how it could have assisted theptosecution case. The house which the employees are said to have racated is about 40 paces from the deceased's house- cum-shop. The hotel in which Bosco and his wife spent the night on the fateful night is 50 paces from the deceased's house. That is a difference of 10 paces only from where they were originally sleeping. This would therefore appear to mean that it made no significant difference iz-i so far as the distance to house. was concerned whether they slept in the previoU8 house or in the hotel. As it has beri repeate.1y held by this dourt and the Court of Appeal where the prosedutioii case is wholly based on circumstancial evidence a court will only be justified to infer guilt if the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of. proving facts which justify the drawing of such inference is always on the prosecution and never shifts R v KIPKENG ARAP AND ANOTHER 91949) EACA 135. In this case all that the prosecution has Cucceeded to prove is a lot of suspicion on the accused; but as it was held in CHABILDAS D SONAIYA V R (1953) EACA 144. "A mere aggregation of separate facts, all of which are inconlusive in that they are as consistent with innocence as with guilt, has no probative force". I agree with the Republics submission that accused's defence was in some material particulars inconsistent with his state- ment (exhibit C) in the lower courts But as it has times without number been held; an accused ought not to be convicted on the weakness of the defence but on the strençth of the prosecution case 0. On the evidence adduced by the prosecution I. am not at all satisfied that the prosecution has proved beyond reasonable doubt that the death of the deceased was the act or contrlvance0f the accused.. Like the unanimous opinion of the assessors I find the accused not guilty of the offence charged, and I accordingly acquit him. NBEYA N.S. MNZAV7,S 15 / 3174 JUDG Nwipopo for the Republic Dhebar for the accused.