19740504 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA 4. AT IRINGA ORIGINAL JURISDICTION (D000NA REGISTRY) CRIMINAL SESSIONS CASE NO.136/73 THE REPUBLIC VERSUS ELIAS MTAFYA AND 2 OTHERS Charge: Murder c/s 196 of the Penal CodeA J U D G ME N T MAPIGANO AG. J. The three accuses p 1. Elias 0/0 Ntafya, 2. Romanus sb Mtafya, and Manyota s/o Pangarnshindo stand charged with murder, namely that on or áboutDecember, 13, 1971, they jointly and together, of malice aforethoUghtcaused the death of one Joseph s/o Kalinga. On the 'evidence which was not challenged, it is estab- lished that Joseph s/o Kalinga was sleeping in the house of Raphael 'repwa (PW8) at Idbpe in Iringa district during the night of l2th/13th December, 971, when that house was burnt. Joseph s/o Kalinga who ) was in consIderable drink did not manage to escape and he was severety burnt and died instantly On that account. It is also not in dispute that the first and deticnd accused who are brothers are neighbours of Raphael 'flepa. A few days back Raphael Mbewa and the deceased had assaulted the first accused and one Mbinda, his mother. They were charged before the Marangali primary court, vide criminal case no 230 of 1971 and convicted of wounding on 24th November, 1971 9 whereupon they were sentenced to pay a fine shs. 501= on default to serve three months imprisonment, and were also directed to pay shs. 501= 'as compensation to th& complainants. They were given time to fetch the money. Raphael epwa duly paid the fine and the compensation, but the deceased defaulted. He was searched for and apprehended but somehow he escaped from custody. The primary court implored Raphael Nbepwa to.look.for hLb and bring him before it. Raphael agreed to beip. He1o.okedrfor and met the deceased and he gave the deceased to understand that he would help in paying the fine and the compensation. The deceased was convinced and agreed to acconpazty Raphael and they proceeded to Raphael's house s intending to report to the court On the followirkg day which was a Monday. However the deceased met his demise in the night, before they could do so. Also not challenged is the evidence that sometime back, the third accused had stayed at the house of Raphael for about one and half months, where he did a piece of job for a reward. When he left, Raphael's sister called Maria disappeared. It was strongly suspected that she had 6een eloped by the third accused. Raphael went to look for her and he traced her, at the third accused's place of abode. The third accused was then asked to pay a bride price but he could not offer it. Maria was consequently taken back by Raphael. It is in dispute whether Raphael met the third accused on 12th December, 1971, Raphael's account, which in wholly disputed by the third accused, is that they met and conversed and that the third accused inquired from hiM about whether he,, Raphael, wanted to let Maria marry the .dedeased. As I have just said, this allegation is disputed vehementlit by the third accused. I feel that there is no Sufficient evidence to establish the allegation. I cannot o be sure that such a meeting and conversation took place as there is only Raphael's word against that of the third accused. It follows that the third accused must be civen the benefit of doubt on this poInt. I I have pointed out these two incidents, that is, the one concerning the assault and the other concerning the elopment of Maria, because it is suggested that they form the setting to the burning ofRaphaeI"s houses. Coming now to the burning of the two houses, and the resulting. death of Joseph 51° Kalinga, there is first the testimony of Raphael's parents, ?avile s/o r'epwa (PW2) and Gilegiriembe d/o Sechatile (Pw3), It is evident that they have a separate home from but very near that of Raphael. Mhavile Mbepwa, an old man apparently verging on senility and with, admittedly, a failing eyesight, related that on the night in question, he was sleeping in his house when he heard a knocking at the door. When he opened the door he saw, in the dark ) the glimpse of' three people. One of them told him that they were policemen from Mufindi and asked him to show 'them the house of his son Raphael, and he did so. Continuing, Mhavile stated that that person was talking both in Kiswahili and English and that he thought that his voice was that of the second accused. Shortly after they had left towards Raphael's place, he saw Raphael's two houses burning. Cross—examined, the witness was sincere enough to say that he was not certain that the voice L7 which he heard at his house was that of the second accused, and agreed that he did not tell the ten cell leader, at dawn, that he had recognised the voice of one of the three people. The testimony of Gileginembe was that when the door was opened, she saw some people outside but she did not see their faces. That one of them, whose voice she recognised to be that of the first accused, asked her the whereabouts of Raphael's house. She pointed out the houses to them after which she was slapped and pushed ihto a ditch by the first accused. They left remarking that they were going to burn Raphael's houses and she redognised the voides of the'other two as those of'the second and third accused. Soonafter she observed Raphaelcs houses ablaze. She also agreed that she did not recount to the ten cell'].eader what she had experienced and seen during that night. The evidence as to what took place at the scene was led through 'Raphael and through his wife Sitamali d/o Semhanza (PW7), Sitarnali's version is that the deceased who was drunk to a great extent, was sleeping in her house when she heard a commotion at the house of her in—laws. She then went out with her baby and hid herself. She was hiding when she saw four people coming and carrying a fire. She then heard the sound of a gun shot after which she saw them setting fire on the two houses. 'She alleged that she heard one of them whom she recognised as the first accused saying, "Leo mtaonaU and the other three joining by saying "wangekuwa humu mweye nyumba leo wangekuf a." She further alleged that by means of the illumination from the burning houses, she could recognize three of them as the present accused, but could not recognize the fourth man. To a question the court put to her, she replied that she hid thrice on that occasion. First, near her house, when she heard noises at the house of her in—law, then in the bush at a distance of about two hundred paces; when she heard the blasting of a gun, and lastly farther afield, where she spent the rest of the night. She also alleged that she mentioned the names of the three accused in connection with the incident, both to the ten cell leader and the police the next morning. Raphael who was sleeping in another house, with his other wife, testified that when he heard noises at his father's house., he de'ided to go there to see what was happening. When he was on his way, he'saw people carrying burning grass coming towards his houses. He •then turned back and returned to his house. Subsequently he heard a gun shot and he observed four people whom he allegedly recognised. He claimed that 'the' first accused threatened by saying " You will die today", and that 'the , third accused joined him by saying "these people will see to..day." The' four people later chased him 'but abandoned the 3 chase at the instance of the fourth man, whom he identified as one Mailosi Kanyanye, who was holding a muzzle loading gun, 'who asked his companions to leave him alone and to concentrate on burning the houses, which they proceeded to do. This witness stated that he ran to a bush where he saw his two houses on fire. He further alleged that he mentioned the names of the culprits to the ten cell leader and the police the following morning. According to the ten cell leader, Ngaimali Msaga (PW10) neither Raphael whom he said was his brother in-law? nor Raphaels wife Sitamali, did telihim who were the culprits. He said 'Raphael only told him that he was suspecting the accused and, according to this witness, he was surprised when Raphael told the police later, that the accused were the ones who had burnt his houses. And further, he stated that Gileginernbe had only told him that she had been beaten up by' .certain people, she did, not recognize. According to detective constable Angen (PW5) who visited the scene on the morning, Raphael only told him that he was suspecting the three accuseds. In their short unsworn statements, the accuseds denied being at the house of Raphael and setting fire to the houses. The rest of their statements briefly explain how and where they were arrested by the police and then charged with this offence. There is no reason to doubt the authenticity of the prosecution case that Raphael's two houses were deliberately set on fire by three or four peopie,wiose goalwas nothing less than the complete destruction of the houses as well as the property and the human lives therein. Or at least, while the culprits knowing or having son to believe that there were humanbeings in the two houses, 'they were indifferent to any fatal consequences of the arsony. Therefore both under (b) and Cc) of section 200 of the Penal Code, the culprits committed the offence of murder. Indeed this was not in controversy0 The vital issue is basically the question of identifiac- ation, In this regard Mr. Mwipopo who appeared for the Republic, has rightly and properly pointed out, that it is only the testimony of Raphael and his wife Sitamali which is crucial. For as already demon- strated the testimon of Nhavile Mbepwa is obviously too weak to establish the identis of the people who called at his house during that night and who 'hen went to burn the two houses. He admitted that he did not recognize them by appearance as it was dark and as he has a feeble eyesight due to old age. He claimed that he recognized the voice of the second accused but he ended up by admitting that he was not absolutely certain 0 Since there is the possibility that his hearing faculty is also on the decline, it would be highly risky to act on his evidence.. As for his wie Gileginembe, it appears to me that she is not remarkably better facilitated. She is also a woman of advanced age and though Mhe claimed that she' heard the three people ta2ki.g and that she did recognize their voices, I would hesitate believing her. The fact that she did not relate this to the ten cell leader in the morning gravely call4s into question the credibility of her account. For it would only be a naive mother who would not have related such a story to the ten cell leader under such cürcumstances, and in my opinion she was a woman who can hardly lay claim to such naivety. There is the perplexing question why would the accused assuming for a moment they were the ones who committed the offence, go to the, house of Raphaelc father to inquire about the situation of Raphael's house when they clearly knew where it was. The theor' advanced by the prosecution is that they were essentially purporting' to disguise their identities and to cow Mhavile and his wife. If that was the idea, then it is my view that it was unwitfingly naive if not risky. One would think that most probably the chances of concealing their identititn might have been relatively greater if they had gone straight to Raphael's place to perpetrate the felony. 0 0 0 0 Both Raphael and his wife testified that they went out of the houses when they heard noises and thought that there Was something unusual at the house of Nhavile, and that they saw four I people coming to their place while holding burning grass, and further that they saw and heard these people who burnt the two houses 0 . The question which poses is whether these two witnesses are objective and .reliable. There is evidence from Sitamali, bereelf, which I believe,, that by the time the culprits set fire to the house, she was hiding with her baby about two hundred paces from the houses. I also accept Raphael's testimony that he had been chased away and he had fled to a bush0 It is not in evidence how far he went to hide but it is probable that it was not quite near his house, for he was scared stiff, so much so that he could not even gather the courage to raise an alarm. Those are the positions taken by the witnesses at the time 4 e scene Lt1 e witnesses would have correctly recognized the culprits from those was illu- distances. I think the matter is not free from doubt. I am not minated absolutely certain that the two witnesses really saw the appearances of by the the culprits and correctly identified them. I would think that if burning they recognised the identities of the culprits, then it' was largely houses, by their voices rather than their appearances. In this I consider it ah. 1 probable that the witnesses heard the voices of the culprits, but like ed the two assessors who sat with me, I am not satisfied completely toievethat they correctly did so. I hold this view largely on account of th'at what they said, or ommitted to say what reasonably ought to have been said before the ten cell leader and the police. For Sitamali did not tell the ten cell leader that she had identified the culprits and she did not implicate the accused persons at all. And her husband did not positively assert that the accuseds were the people who burnt the houses, he appeared merely to surmise to that effect. That was also the case when he was interrogated by constable Angen. It is rather inconceivable that these witnesses would have behaved that way had they been sure as' to who the culprits were. Since the guilty of the accused has to be proved beyond a reasonable doubt, mere probabilities, which I think is what is attending in this case, cannot sustain the charge against them. In the event, all the accuseds are acquitted and set free in connection with this charge. Judgment pronounce1 in court before the counsel and in presence of the accuseds,. this 4th day of May, 1974,. at Iringa. S D.P. MAPIGANO A, JUDGE