19740304 TZHC Arusha

ZN T4 HZOU MURT OF TAICAN IA 11Ltn& fless&on$ cue No, 45 of 1913 Dodoz*s eq*tt Republic v XdL 14w*fldu and anath6t I itdcr C/s 1,9f, Of thl !( - 25 - J U D G M E N T The wo accused, Iddi s/o Mwandu and habani s/o Muimi, are charged for that on the 22nd day of August, 1972 they did jointly and together murder one Saidi s/o Maloda in the Singidani / Area, district of Singida0 P0W01, a nephew of the deceased, stated that on the relevant day he went with the deceased and his son to the market to sell a cow0 They finally stopped at a bar at about 300 p0m0 and began drinking pomhe0 Later the two accused joined them and they continued drinking until about lOOO pi0 when they set out together for home; both accused were neighbours of the deceased0 When they reached Machinjioni 10 Road the deceased cQmplained that he was too drunk0 This witness and the son of the deceased stopped to answer a call of nature and he heard Iddi insulting the deceased by naming his mother's private parts and saying that the deceased would die that day0 He saw accused No01 hit the deceased with a fist, which sent him • 0 to the ground0 When he stood up he stabbed him with a knife and the deceased ran0 The second accused then threatened to kill all of them and P0W01 and P0W02 ran0 He was then called by the first accused to assist in holding the legs of the deceased0 The second accused went and did so and they cut the neck of the 20 deceased0 P0W01 and P0W02 ran to the Police Station to make a report0 With their assistance the police looked for the body but did not find it that night0 The following morning they found it and a shirt of the first accused nearby0 The witness said that it was a dark night and that he was about twenty-five, paces away when the first accused slaughtered the deceased0 P0W02 supported the evidence of P0W01 in almost every material detail 'and emphasized that when the second accused answered the call of the first accused to hold the legs of the deceased he and P0W01 turned back as the deceased called for help and they could 50 see the killing of the deceased0 Under cross-examination a question was raised as to whether this statement to the police was identical with his evidence0 One point was as to who left the bar but this was not material as both accused admitted that five of them including this witness left tocether as the witness said in his evidence0 Again in the statement to the police he was alleged to have said "When we arrived at the clear area suddenly Iddi Mwandu appeared and pushed my father who fell down," whereas in his evidence in court he spoke of the first accused insulting the deceased and then hitting him with his Me fist0' I do not think that these slight variations affect the credibility of the witness0 The body of the deceased was identified to the doctor, who performed a postmortem examination0 The doctor was of the opinion that the cause of death was severe hammorrhage due to ..r I_i. _...0 --. -1- Phcre was a big cut wound around the neck dutting into the windpipe, aesophagus, both carotid and jungular veins and deep into the vertabrae,0 There was also a cut wound along the abdominal wall 50 1½ inch ahove the pelvis up to the intestines which had been cut near the duodehi.im, exposing the intestines0 There was a cut wou -id 2½ inches deep below the right groin0 This appears to " not to have been a chance killing but a slaughter as one of th witnesses descrhed it0 ' S • 5_• ' S. SO / -24- P0W04, who inrestigated the case, put in evidence a shirt found near the scene and identified by P 0 W01 and P0W02 as belonging to Accused N 1 (Eh0P01); a nylon shirt and blue long trousers belonging to Accus/ed No02 (Exh0 P02); a shirt, knife and underwear seized from Accusd No01 (Exh03)0 He also obtained samples blood of the deceased and the two accused0 These were thubTitted to the overnment Ch,mist for analysis and the report (Exh0 PO4) showed the blood amples were of Group 11 0" and that all the other exhibits exept the knife gave positive reactions for 10 human blood of Gr/oup 11 0" Although thd two accused have been charged jointly I must consider the case against each0 There was a prima fade case made out against/them and the first accused Iddi Mwandu elected to give bn unsworn statement in defence0 In this he agreed with the prosecution that there was drinkihg at the Shjrika Bar and /that the deceased, his two children and the two accused left at about 1100 p0m0 The points of difference arose as to what happened on the road0 This accused said- 20 When we irrivec1 at Machinjioni the deceased told his cildren t go hack to his uncle where there was food cooked0 'I)hey went back and three of us remained0 When we reachec ingidani Shahani asked the deceased why he had killed his wife0 Shabani told him that if he said that / he did not kill his wife why was his first wife now dead0 The deceased said that your wife is dead0 Shhani asked wheth r it was not the deceased who ki1led her0 The Deceased deied0 Shahani then said "if /you deny that you killed my wife tell me where 30 you were/when I Went to buy cloth s to bUry my first wife0 Dceaed t:ld him that he had met him in his house cGfnmitting sex with his wife0 Shabani said to the dece!ased "is it not you who killed my Son?" The / deceased denied this0 I asked Shahani why he was / asking iuch questions when he was drunk and when the matter had already been settled at hom0 Shahani told me "Your wife is still alive, you can't prevent me from asking the questions0 I told them to go and I would foliowoj I stood up and they left0 They left me for a 40 long diistance and I could not see them0 I heard Saidi making/an alarm "Please come, I am dying0" Because I was very dunk I could not run quickly0 When I arrived I found that the deceased had failed down and the second accusea was on top of him0 I called Shabani but he did not rely0 I went and pushed him0 He left the deceased0 He pushed me and I fell on the deceased0 When I saw that the deceased could not wake up I thought that Shabani would do the sama thing to me and I left0 As it was during the niqht(and the place was bushy no one could hear an alarm0 50 I thoiight it hatter go and make a report to the family f the deceased and the ten cell leader0 I arrived at my home tat 700 a0n0 where I found that my wife had been arretcd by the police0 After I explained the incident to my second wife the C.I.D. came and arrested me0 When I was taken to the police station I gave a statement similar to the one I have given now0 I have nothing to add Pxcept that I he excused for not reporting when the fighJt took place as I was alone and it was during the night0 60 The accuthed made substantially the same statement before the commituJig magistrate and this was put in evidence0 In fhla he said that after he heerd the alarm and up Je threw his shirt on the ground and grabbed the second accused who pushed him and )he fell on the deceased0 When this accused woke up he found the deceased vomitting0 He could not think of reportixg to the police and he ran straight home0 70 - 25 - P0W01 and P0w02 said that they saw Accused No01 kill the deceased0 As indicated before there was some difference in the statement of P0W02 to the police and his evidence in court. In his statement to the police he spoke of this accused suddenly appearing and hitting the deceased0 The witness denied that he told the police so and, indeed, the evidence of all the other witness that they were going home together would suggest that what the witness said was misstated by the police0 The difference is not such as would warrant my saying that P0W02 is not a witness of 10 truth0 In any case the evidence of P0W01 has not been challenged0 / The only point which may raise some question is the distance from which these witnesses saw the incident - about 25 paces0 They said that it was an open area and though the night was dark it was not vary dark and they could see0 In any case when they saw accused No01 first attacking the deceased they ran towards them0 For / whatever it is worth the story of the second accused lends support / to the fact that the first accused was the one who committed the act0 He said that he ran away leaving the deceased and the first / accused together and later the deceased was fouxid dead at the spot0 20 Two shirts and one underwear belonging to Accused No01 had bloodstains on them and the analystIlk report showed that the blood group was the same as that of the deceased0 It is true that both accused and the deceased had the same blood group but there was no evidence that the first accused had any wound0 The accused sought to .xplain the other blood stains by saying that he fell on the deceased when the other accused pushed him but this could not explain everything that needed explanation0 Like the gentlemen assessors I have no doubt in my mind that it was the first accused who inflicted the fatal wounds on the deceased and I so find0 30 The case against the second accused is that the first accused asked him to assist by holding the legs of the deceased and he did so0 The considerations given to the evidence of P0W01 and P0W02 against the first accused apply with the same force0 Here too, a co-accused alleges that it was the other one who did the act and the evidence of the two witnesses mentioned is corroboration of this0 The second accused has set up an elehorate story0 He said that the first accused told him that the deceased had offered him money to kill him; that they should go to town to collect the money when the first accused would give it to the police as an exhibit0 The second accused suggested that they saw the Balozi first and they did so and explained the position to him0 On his evidence the second accused went with the first to town0 The common point in all the evidence is that five people left the bar at about 1100 p0m0 to go home and from there the evidence of the sec.nd accused went as follows:- When we reached Machinjioni the deceased told his children to go back because he did not want them to L see what was going to happen0 The children went 0 back and three of us remained0 The dedeased asked the first accused why he. was delaying0 He said that if they wanted they would reach a place where there were people and the work would not be done0 I heard these words but I was not afraid becaue IdcIi had assured me that no harm would befall me0 After a short time Iddi jumped upon me0 He gave me one blow and I fell down0 I saw that he was going to give me some more blows and when I raised my hand I was cut on the small finger of my left hand0 When I saw 60 that I considered that accused No01 had changed his mind and that it was betterfor me to run away and I did so0 I ran for about 100 yat1s and stood up0 The Deceasec said to first acused 'why do you leave him whenyou have already cbnsumad my money"0 When I heard that I knew that they would follow me and I ran away so that they should not see me again0 Later I thouht it would not be good to go in the direction of home as they would follow me0 I went in another direction to the bush0 I slept there and early in the morning I 70 went to the Police Station to accuse Iddi0 /26 -26- I was surprised to see my wife there and also 1ddi' wife This accused made more or less the same statement before the magistrate0 There was no doubt that the deceased was caught committing adultery with both wives of this accused; that he was made to pay a fine and that he was further suspected of bewitching the second wife of the accused0 The Balozi, P0W08, gave evidence and it was not put to him hyaivocate 10 for the accused that this accused had complained about a plot to kill him and that he had given the accused permission to go to town with the first accused0 In reply to questions by the court the Balozi firmly denied this and said that he did not see any of the accused on the date alleged0 This knocked the bottom out of the first part of the evidence of this accused and placed his credibility in considerable doubt0 One fact • which gives credence to the witnesses 11 1 101 and P0W02 is that they instantly went to the police to make a report since this • was said to have been received around 1100 p0m0 They said 20 that the second accused chased them and threatened to kill them before he was called to asist.the first accused0 They were .1 together with the accused for the whole eveninci, the accusd / was a neighbour and the witneses would certainly know the voices of each accused0 The fact that they were chased supports their evidence that they approached the scene when the first accused started the assault0 From his own story the second accused did not behave like a person who knew that something serious would or had happened0 d0 did not go to the police 30 to make a report0 The Gentlemen assessors by their opinions expressed the view that they do not feel sure about the facts against the second accused and I am not persuaded that they have been So c€rongly established that I can express an opposite view0 I therefore agree with their opinion that the second accusedis not guilty of the charge and acquit him0 The first accused has been found to have committed the act which caused the death of the deceased0 It was proved that 40 he had been drinking pombe over a long period that day and the question remains whether he was so drunk that he could not form the intention to cause death0 By the detailed explanation the accused sought to give about his actions that evening itis clear that, although he may have been drunk, he was not so drunk as not to know that what he was doing was wronq and that thebrutal cutting of the deceased's neck would have caused :ieath0 ' Malice aforethought has been fully established0 I agree with the gentlemen assessors and find the accused 50 Iddi s/o Mwandu guilty of murder as charged0 C. E. Bramble, Judge Accused No01 is guilty Accused No02 Not guilty - acquitted0 Allocutus: I have something to explain0 Although they have convicted me, I did not do the act0 I was at the place0 There was no reason for me to kill the deceased0 My evidence was true and I request the court to consider 60 this0 I ask this court to exercise 'leniency on me because I had no intention of killing the deceaed0 I have nothing more to add except I. am asking this honourable court and the Government for leniency0 Sentence; I have no choice as to sentence in this case0 The accused is sentenced to death by hanging0 Right of appeal to E0A0C0AO explained Assessors are thanked0 e, z , X"'.' -- j, (C0 E. 3Ri'MBLE) ARUSHA:4T1-I MARCH, 1974 JUDGE