19740517 TZHC Dodoma

-16 , IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION (D0D0MA REGISTRY) CRIMINAL SESSIONS CASE NO.95/73 (c/F.Criinina]. Sessions No. 27/74) - E.A.C.A0 CRIMINAL APPEAL NO.79/74 THE REPUI3LIC VERSUS STEPHEN LALIKA, AND 3 OTHERS Charge: -. Murder c/s 196 of the Penal i2SEpg74 J U D G M E N T PA j MAPIGANO AG0J. The four accused persons namely John Msakulukani 0 Andrea Kilongomtwa, George Maalukwa and Stephen Lalika, are on a charge of murder. They have denied the allegation that of malice aforethought they jointly and together caused the death of one Mdusam s/o Madati on or about September 28, 1971, at Mweni in Mufindi district0 It was not challenged that on October 1, 1971, Dr. Murema - (PW4) performed an autopsy on the male body of a person 0 It was identified to him asbeing that of one Mdusam s/o Mwamadati by Maria • .d/o Semadati and Kaziulaya s/o Madati (PW6). The doctor observed the following injuries: - a cut wound on the occipital region, 8 cm x 3 cm. - bruises on the left side of the sternum. - multiple bruises on the chest. multiple bruises on the limbs. - fracture of the frontal bone. - fracture of the occipital bone0 He was of the opinion that the wounds were suggestive of having been inflicted by a sharp weapon s and that the death of the said Mdusam - Madati had been due to external bleeding, contussion and concussion of the brain and shock 9 I am satisfied that Mdusarn Madati is dead and that he must have died a violent death 0 I respectfully accept the evidence of Dr. Munema that the deceased had sustained the injuries, and his opinion as relating to the cause of death 0 Further, the doctor was of the opinion that death might have occurred three days prior to the post- mortem, that is on or about 28/9/71. This is borne out by the testimony * of several withesses including Raphael Mgowano (PW].) and his sister Yohani d/o Semgowano (PW2). Indeed it is not in dispute, and I find itasafact • I may remark that on the evidence before me, it is -17- perfectly clear that whoever inflicted the injuries on the deceased, must have intended, at the very least, to do him a grievous harm. I have reached this conclusion principally on the basis of the extent and intensity of the injuries which must have been inflicted in the coUrse of one transactions The offence of murder was therefore committed by the assailant. The central issue in this case is whether the accuseds are resonsible foi the fatal blows. As properly observed by both the proecution and the defence, there is only the evidence of PW1 and PW2 which crucially bears on this question. It is therefore necessary to examine critically this evidence. The evidence of the other withesses may only be reverted to within that context with a view of measuring up the consistency and credibility of the two star witnesses0 I will first review the testimony of PW2 if only because I consider it to be more vital. She Yohani had this to tell. She was married to the fourth. accused about ten years ago, she then fell out and left him. She started carrying on with deceased, She had no more love or affection towards the fourth accused. It is cler howevr that they have not divorced eachother in a court of lawo One day which must have been the 27/9/71 1 the deceased accompanied her to PW1's house. They apent a night there On the following day they paid a visit to her father and they also went to the house of one Zaverj where they drank pombe. She saw all the accuseds there. They were drinking togethor. They left them there3 She and her deceased paramour went back to the house of PW2. The four accuseds appeared there during the night and confronted her. This was when she was going into the house. The third accused grabbed her left hand and the second accused beat her with the blunt side of a panga. She raised an alarm and her brother PW]. came out of his house. The second accused struck him with a panga and he ran back into the house. At that stage the deceased emerged from anotherhouse and fled. All. accuseds except the third accused pursued the deceased. Third accused took her and followed their trail. They reached a place where she saw the other three accuseds and where she saw her paramour already dead, But she also alleged that the first and second accused slashed the deceased with pangas and that the fourth accused clubbed him. She was later taken by the third accused to his house. She however sneaked out and went back to the scene of the killing. She knew only the fourth accused before this incident and that the other accuseds were strangers to her. She was questioned how she came to learn the names of the other ccuseds and she replied that they had all mentioned their names to her at the scene. That was her story. And this was the story of her brother (PW1). He heard PW2 'a alarm cries and went out. He walked to where she was standing. He then saw the first accused and the fo'urth accused holding her by her hands and slapping her. He did not see the third accused there. He tried to calm them. The culprits were not inclined. They were brooding in anger. One of them e the second accused, hit him with a panga on his upper lip. He apprehended further punishment. He'therefore ran back into his house for safety. He had however seen the deceased emerging from another house and fleeing and the culprits had taken PW2 along. Later .on Paskali Lalika (PW5) and Benedict Ngimba (PW3) came to his house and they disclosed that a person had been beaten and left near the house of PW3. He went to the scene and found that the said victim was none but Mdusam Madati. He was in his opinion ateady dead. His evidence which was elicited in cross—examination is that he recognised the first second and fourth accused by thei±' appearances as there was a fading moonshine and as they were about seven paces from him. And that he ran back into his house when the second accused emerged from his back to bit him with a panga. All the accuseds gave very brief unsworn statements in their defence. These statements contain bear denials that they were not involved in any manner in the killing. Z±lhas already been observed that the central issue here F -18- is whether the death of Mdusam Madati is attributable to the accused per - sons. Basically therefore the whole case binges on the credibility of PW1 and PW2 and their alleged identification of the culprits0 1 there- fore now turn to consider whether the evidence of these two witnesses can be safely believed and acted upon0 The prosecution has contended that both witnesses had ample opportunity to observe the culprits as there was %oonlight.. The allegation that there was a feeble moonlight is shared. by both the witnesses0 But it is contradicted by another prosecuaon witness, Ngimba (PW3), who testified to the cuntrary, that that the night was daand cloudy and that it could not have been eay to recognize a person standing at seven paces away. In view of this evidence I am left in doubt as to whether there was any moon light at that. ateial time. It is argued by the defence that there was no opportinity good enough to enable the two witnesses to recognize the culprits for sure. The reasons advanced are that the attack in dark at the house ofPWl must have been a sudden and a brief one 0 I think there is some ert' in this argument as far as PW1 is concerned. As pointed out and by his. b.wn words, he emerged from his house on hearing the alarm cries, He walked towards the scene and on reaching there he was struck by a person who appeared from his back. He then fled, certainly in fright, andwent back into his house. And his story contradicts that of PW2jn som3ects. He stated that he saw three culprits, but PW2 appeared to have seen four of them 0 He also alleged that he saw.tWo of the culprits holding PW2 by her hands, while she positively SáId that she was caught by only one 0 While therefore it is true tha't . knew the accuseds before this incident, it will be highly risky.tiee that his identification of the culprits though possibly honest is ai.l that accurate. In short, the circumstances cannot he said t6 have been so condusive as to have provided for a correct and reliable identification in his case.. With regard to PW2, I would agree that she stayed in the. cornpany of the attackers for a relatively lenger period. But she said she Jw only one of the accuseds before this incident and that is the fourth accused, her husband, and that she came to learn the names of ' the others at the scene. Learned counsel who appeared for the first ? ' second and third accuseds submitted that her allegation sounds inherently - unt±ue as ordinarily culprits of this sort can hardly be expected to disclose their names to en aggrieved party 0 I am inclined to share this anxiety and I am not convinced that these three accuseds ever mentioned their names to her, if at all they were present at the scene 0 It does not easily become reconciled in common sense that the culprits who 'resumably knew one another should pronounce their names in those circumstances. The question of her having identified the culprits accurately must therefore center on her having had the opportunity of observing clearly their appearances. TheEe three strangers were admittedly strangers to her in the sense that she had seen them only once before this event, that is at the house of one Zaveri. But it appears that she had not sat with them while she was drinking with the deceased. The night being dark, I am not sure that she properly recognised these three other culprits. As I have warned the assessors, a possibility obtains that she may have associated the three accuseds with this killing simply because she had seen them in the company of her husband the fourth accused at the pombe place earlier. She may therefore have believed, and yet mistaken, that the three accuseds were the people who had been with the fourth accused during that incident. As regards the fourth accused, the evidence is in the circumstances, stronger and compelling. There was hardly any other person she knew better. She had stayed with him for a period of ten years as his wife and it was easy to recognise him during the period of the attack, As she narrated, she was the first person to be attacked and she was in the custody of the attackers both at the house of PW1 and at the scene of the killing. She had therefore despite that it was dark, ample opportunity to recognize him o And there was most probably a motive for the fourth accused to commit the killing 0 For deceased had taken..his wife and he might have been bitter about that. I do not think.therefore, as the defence had impliedly proposed during the tkrial, that her sheer-s depre6sion over the death of the deceased whom she admittedly loved dearly, would have betrayed her into making a false and grave allegatien gainst the fourth'accused I therefore find that the fourth accused did participate in the unlawful assaiilt The circumstances show that the attackers had a common design to kill the deceased. The fourth accused must therefore be deemed to have committed murder. To conclude 9 I find the first, second and third accused not guilty of the charge and I acquit them I find the fourth accused Stephen Lalika guilty as charged and I convic± him accordingy 0 17th May, 19.74 D,P 0 IGANO- AG0 JUDGE dourt as before Mr.Kinabo for the Repuhl5.c Mr. Rweyeinamu for the Accuseds 0 Judgement proxmounced., 000 . Mr. K.inabo There is no record Mr. Rweyemarnu I have nothing to sa,, y ... .. .. ... Allocutus Ni1 0 Sentence .. • ... •. The law provides only one seitnco f or Yis offo c 1i'_J is mandatory and which I have now to pass on you,, That is deaLh by hanging. ....... 0 • Right of Appea' to --:, )7 AoC,.kAc explained 0 00 17th Nay s 1974 D.P. M1APIGANO.--