19740417 TZHC Arusha

__• - 4 4fi 77J / fI IN THE HIGH 'COURT OF TANZANIA '1 AT ARUSHA ORIGINAL JURISDICTION (Arusha Registry) CRIMINAL SESSIONS CASE NO. 36 OF 1973. THE REPUBLIC vrs. GADIE Slo MATAYO, AGED 40 YEARS, TANZANIAN CHARGE: Murder c/s 196 of the Penal Code. JUDGMENT Makame, .J. The accused GADIE MATAYO has denied the allegation that on 6/1/73. at Maghutu, Mbulu District he murdered a person called Gibele Hando. The evidence of Dr. James Selekwa P,W,l, and that of an identifying witness Lucas .Akunaay P.W.3, satisfies me that it is true Gjbe],e Hando is dead and that it was on his dead body that on 9/1/73 Dr.. Salekwa performed a post mortem examination. On the material day, there was pombe drinking at the house of Akunaay and among the people presentre the accused and the deceased. There is uncontroverted evidence that when the deceased arrived he was already drunk. According to Akunaay, the drinking binge started from about 1 p.m. and went on for some six hours. When the deceased left he left in the compary of the accused, and two other persons: Sigas and Hilary. They left without quarrelling, and it was dark and raining. The following day the witness found the deceased dead on the road. HILARY ARIRAI gave evidence which would tend to incriminate the accused. He says they left at about 8 p.m. and that the other three were ahead of him. On the way he heard someone saying "You will pay my money today". He went closer and found Sigas standing. The accused and a third person were struggling on the ground and that other person was saying "Do not kill me". After a while Sigas observed that the man had grown cold. The .wiiness told the two persons that he would report the incident to the Village Development Committee Chairman whereupon the aCcused told him that he, the accused, and Sigas, would themselves report to. the Police' nd that if he jeported to the Chairman earlier theyl would turn witness against him and assert that he was the one who had killed the deceased. The three of them walked on together up to the Haidom Road and parted company. ..P.W.5 SIGAS MERISH was the other person who left Akunaay's party with the accused. At first he would not even admit that he left the place with the others. In cross-examination, however, he conceded that he said to the Police a number of things whiCh, if be1ived, would go a long way to dissipating the Prosecution claim and buttressing the accused's defence. He agreed that he told the Police that there Was no quarrel and that what happened was that the deceased fell down and, when he did, the accused helped him up. The night was dark and rainy. In his defence the accused said he and the deceased were drinking buddies and that.even on that day he bought the. deceased • drink. The deceased was drunk when they left and on the way, at • brook, the deceased staggered and fell down. . He held his arm and raised him. They walked on, 'the accused ahead of the others. 1: 1. -2- It was now raining more heavily and he went home. He had not quarrelled with the deceased and had no cause to assault him. The deceased was a traditional healer and he had asked from him, but he had neither paid for, nor got, some anti-witchcraft medicine0 The first gentleman assessor expressed the view that the accused is guilty of Murder while the second gentleman assessor's view was that he is guilty of Manslaughter Only. With great reapect, and after careful consideration of the evidence on record, I must regret my inability to agree with either of them. I was not impressed positively by Hilary Arirai as a witness I could safely rely on. I am satisfied that he told lies regarding the quantity of liqour he says he imbibed for what was, on his own account, eight hours. I do not believe that for all that long while he would have taken only two bowls of pombe as he claims. The same person says that although he went to Akunaay's to get money from his debtors, and he saw one, he did not ask him for his money. I am satisfied that the witness told lies and that he is unrealible. The chanàes are that he was himself drunk, on what was a rainy and dark night, and I cannot feel certain that he furnished this court with the truth. The evidence of Sigas does not support him and in fact what was extracted from Sigas in cross-examination lends credence to the accused's story. These people were drunk and the evidence is that every one had to hurry home because it was raining. Further, the evidence of the doctor who conducted the post mortem re.port, and who found the cause of death to be Mnual strangulation, was shown by Defenàe Counsel not to have been particularly exhaustive. I lack the ability to move with certitude in this case, and to assert positively that the deceased was killed and killed by the accused. It is with deference and respect that I differ with both gentlemen assessors one of whom found the accused guilty of Murder and the other of Manslaughter. I find the accused Not Guilty and acquit him accordingly. Assessors thanked and released. ARtJSHA: 17th April, 1974. (L. M. MAKAME) JUDGE cwm: