19750630 TZHC Dodoma

- 31. - IN THE HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL JURISDICTION 0 I (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO0 .51 OF 197 THE REPUBLIC VERSUS MDULU JEREMANI PETRO MUGHANGA MANANGWA KITONGO MUTHEE MUNA. Charge: Murder c/s 196 of Lho Penal Code. J U D G N E NT MAP IG.ANO, J. The four accused persons, (1) Mdulu s/o Jeremani (2) Petro s/o Mughangà (3) Nanangwa s/a Kitongo and (4) Muthee s/o Muna, herein to be refered to as the first, second, third and fourth accused respectively, are charged with murder, contrary to section 196 of the 'Penal Code 0 They are alleged, but they all deny, to have murdered one Mtaturu s/o Kumbi, the incident taking place on or about the 16th day of July, 1972 at Puma in Singida Region. It may be said at onece that there is no dispute and, in view of the etidence on record, there could he no dispute that Mtaturu 5/0 Numbi, whom I shall hereafter call the deceased, died on 16/7/72 at night. His dead body was found lying in a bush near the hous,e of the second accused. There is also, no doubt that he died a'fright- fully violent death. As medical evidence undeniably shows, the deceased had sustained the following injuries:- a big cut wound on the right side of the scalp penetrating %" deep into the brain, two deep cut wounds on both sides of the chin 7 a big cut wound in the neck going through the spinal windpipe to the cervical vertebra cutting the spinal cord. Which almost amounted to decapitation and which, in the opinion of the doctor, was the most serious and certainly fatal, The prosecution case is that it was the present four accused persons who so viciously hacked the deceased to what must have been an instant death. It was said by the Republic in their. .opning speech that there had been festering relations between them and the deceased0 Prosecution haie called direct evidence through the wife of the deceased P.W.16 Alu Laghaa and circumstntial evidence through several withessès. Accordig to Alu Laghaa, the deceased left his house in the morning of. 16/7/72 giving her to understand that he was going to drink liquor at the house of Bula Madai, She joined the deceased at the place when it was around midday. The first and third accused also came there, the first accused carrying a bill-hook and the second accused two stiks. They left the place together after sunsets The two accuseds told the deceased that there was pombe atthe house of the second accused. They all proceedtowards the house of the sec- ond accused, ft their way, the first accused left the others behind . . ... , , '.1' 31 .1 I 4 - - and walked hurriedly only to cc)me back in the company of the second and furth accüseds. Then the accused persons set about the dceased with hillhook blows and when the deceased had fallen down, the second accused drew out his knife and cut the deceaseds throat with that weapon while the other accuseds were holding the deceased down by the head and limbs0 Thereafter the third and fourth accused fetched some poles and a rope. They tied the body c;n the poles and as she was cowering in terror they ordered her to go away and not to utter a word about the incident0 She proceeded home and slept until the following morning when she went to the house of one Alu to disclose what had happened to her husband0 Though she alleged that she was standing at about three paces from the deceased when he was being cut to death and that there was moonshine, she gave an inconsistant account as to the manner of the attack when put to details4 I may as well quote from her testimony to demonstrate the contradictions therein graphically: On examination in chief:- "He (th first accused) came back with the second and Muthee Muna, fourth accused. I know fourth accused very well 0 We had stayed together in one village, 1e did not greet each other0 Muthee4 struck deceased with bill—hook on the head0 He gave the bill—hook to Mdulu (first accused) who also struck deceased on the head0 Deceased fell down. Then Petro (second accused) bent and cut deceased on the neck with a big knife0 That is the knife (P3) 0 Mdulu was holding the deceased's head Nanangwa (third accused) was holding the legs0 i-Under cross—examination:- Assault started when Mdulu and Petro arrived at the scene' It was Mdulu who started to assault deceased0 Other accuseds cut deceased when he was lying down0 Mdulu gave the bill—hook to Manangwa who also struck deceased4 No, it was Muthee who started then Mdulu followed and then Manangwa. Then Petro slew deceased on the neck. It was Mdulu who held the legs0 Mdulu held the arms and not the head. Marlangwa held the legs..000. It was Mdulu who held the legs." Her allegation that they had been together with the first and third accused at the house of Bula fiadai is supported by Bula Madai PW12, Indeed it is a common ground. Bula Mdai also supported her allegation that she, Alu, and her deceased husband left the place together, the first accused carrying a bill—hook0 But the accused denied that. The evidence shows and it is common ground that the two accus&ds(first and third) had been at the house of the second accused before they proceeded to the house of Bula Madai. According to Marko Petro PW15, the son of the second accused, the first accused was carrying a bill—hook while the third accused had a stick, and that they left saying that they were going to drink pombe at the house of Bula The second accused did not accompany them. - Nor did he go to B ui a S house on that day. However, he was seen at the house of P1 ,713 Mankanka where he stayed until about 8 p.m. when he left with P.w.15 Hussen Alute, each proceeding tohis home. The dead body was discovered on the morning of the following day 17/7/72. It was spotted in a bush near the house of the second accused. On surveying the neighbourhood, the crowd which had gathered observed some blood at another place0 That 9 it appears, was the place where the killing had taken place. There is evidence from several witnesses to indicate that efforts had been. made by some one to cover the blood. That place was even nearer the second accused's house0 According to PW8 Idi Kumbi, it was about one hundred paces from that house. As a result of what the wife of the deceased related to the crowti as well as the story of ?3 Hassan Ngoi that he had seen the second accused at that very p1rce earlier on that same morning, and that he, the second accused, had not responded when he accoted him, the second and third accuseds- were apprehended on the same day and the other accuseds on another day 0 OJ3) 0 0 0 0 0 PWO8 Idi Kumbi, the elder brother of the deceased, alleged that when the second accused was questioned by one Chief Sene dt the locale# he admitted that it was }iim along-with the first and- third accused who had brutally done the deceased to death0 But this allegat- ion is not borne out by the evidence of PW9 Hasan Ngoi, who was present He did not hear the second accused makihg such a confession0 He only heard him saying that he had covered the blood because the killing had taken place near his house and that he was frigh+ened. Certain exhibits were discovered from the scene, nae1y, a bill-hook (P3), broken pieces of a hill-hook handle (P5) and a piece of soil which was stained with blood (7) A knife (P3) and a torch (P6) were found in the house of the second accused and were also seized and hahded over to the police0 It is not in dispute that the knife (P3) about it and his explanatiob was that he had used it to slaughter a dikdik. The dikdik in question appears to he the one which was caught by his son Marko earlier on that morning. According to Marko himself and PW8 Salum Kipii and P115 Hassan Alute, that dikdik was slaughtered by PW5 at the house of PW6, using another knife (P4) which the police recovered from PWGO But the second accused alleged in his testimony that his wife had used P3 to cut the dikdik meat into pieces0 His contention is essentially that the blood found on that knife was that of the dikdik 0 These exhibits with the exception of P4) together with one shirt which was seized from the accused (P5) and fluid blood taken from the deceased, were sent to the Government Chemist, Mr. msikinya, for examination0 According to Mr0 Msikinya, the knife (P3) the piece of soil (P7), the pieces of bill-.hook handle (P5) and the fluid blood, reaáted positively for human blood0 He categoriséd them as follows: knife - group /B Soil - group B pieces of handle - group A13 fluid blood -, group B The rest of the exhibits, nan21y the shirt (P(') and the bill-hook (P2), reacted negatively 0 The second accused volunteered an extrajudicial statement to a J.P. on 19/7/72, which was received in evidence as exhibit PlO without any objecticn In that ttoment, he sought to dissociate himself from any complicity in the crime and to implicate the first and third accuseds0 I3riefly, he denied that h participated in the killingo He alleged that the first and third accuseds accompanied by PW16 Alu, the wife of the deceased, called at his house on 16/7/72 at night when he and his wife had already retired to bed - about 11 p.m. He claimed that when he opened th6 door the third accused informed him that they were looking for pombe, and that he replied that the pombe was finished. Then the third accused disclosed to him that they had killed the deceased following a hot quarrel and a fight0 Then he was allegedly led to see the dead body which was lying near his house with a wound on the head and neck. He was told not to worry as they were going to remove it. He said that his wife was also present0 He further stated that he was frightened and that after discussing the matter with his wife, when they had returned to their house, they decided not to raise any alarm as the first and third accuseds and P.,W0].6 Alu had warned him not to disclose the incident to any one and his wife0 So he decided to keep quiet. He went on to state that he went to the scene early the following morning and found that the dead body was no longer there. He contended that he was arrested merely on suspicion as the killing had been committed near his house. The second accused testified as to his movement during the day - 16/7/720 By and large, that account stands undisputed. He stayed at his house until about 6 p0m0 A number of people including the first and third accused had called at his nouse in the afternoon to drink pombe. In the evening he left for the house of PW13 Mwankanka where he drank pombe until about 9p0m0 when be left with PW Hassen - Alute for home, arriving there at about 9030 p0m. His testimony as to what happened later conflicts with his extrajudicial statement and P.W.,16 Alu's evidence. He testified that about half an hour :33 - after ki arrival the third accused appeared at his house and called 'hod' saying that he was searching for pombe. He told him that the pombe was finished. He fetched his torch, flashed it and then opened the door0 He ebserved that the third accused was in the company of two other persons, namely the first accused and PW16 Alu. She, Alu, disclosed to him that her husband had been beaten up by the first and third accuseds. He asked her where she had lft him, the deceased, and she replied that he, deceased, was at hisq the second accuse d s) tobacco shamba. They all went to the place and he found the deceased lying down. He shone his torch on him and observed that he was bleeding from the head. He asked the first and third accuseds why they had beaten the deceased and they retorted that if he wanted to know the reason then they would make him responsible. He rushed back to his house where he related the matter to his wife. He denied the allegation that he confessed to Chief Senge that he had participated in killing the deceased ; and the-allegation that he had attempted to cover or sweep away the blood at the scene. The first and third accuseds also gave evidence on oath. They agroe that they went to the house of the second accused in the afternoon of 16/7/72, from where they proceeded to the house of P.W. 19 Bula Madai. They met the deceased and his wife Alu at that place. But they deny that they talked with them. They allege that after drinking pombe which they bought for fifty cents they left for their houses, leaving the deceased and his wife there. According to their words, it was between 3,30 and 4 p.m0 when they left Bula's house. They proceeded home and did not go out again until the following morning. They deny the allegation that they went to the house of the second accused after nighf all and also that they were armed during the day. The first accused implies that the second accused might have been animated to inicate him by the fact that he 2 the second accused, once enticed away his step_mother and took her to Arusha and that his, the first accused's father, had to fetch her back u5ecL from that place. The second,countered this and stated that while it ,< is true that the woman elope with him ; this happened many years ago and that all concerned have forgotten that in-ident and forgiven him, With regard to the fourth accused, he flatly denied the whole of the prosecution case. He denied that he met with any of his co-accuseds and that he met with the deceased and his wife Alu during that fateful night. He claimed that Alu was not a truthful witness0 The evidence against the first and third accused is the same0 It is manifestly clear that these two accusecis were together on that day. They first went to drink at the house of the second accused and then at the house of p,W,12 i3ula Madai. They denied that they were armed. I cannot accept that denial. P O WO15 Narko Petro, the son of the second a:cused, testified that he saw the first accused carrying a bill-hook while the third accused had a stick. His evidence is supported by that of Alu, the wife of the deceased, and that of Bula Madai who saw the first accused carrying a bill-hook. I find that both of them had weapons as described by Marko Petro. Now, Bula Madai and Alu alleged that when these two accuseds left the house of Bula Madai in the evening they were accompanied by the deceased and his wife Alu. As shown, the two accuseds denied that allegation and claimed that they left before the deceased and his wife and that they went straight home and never met with the deceased or the second accused 0 Alus allegation is that the two accuseds together with the second and fourth accuseds who came to join them, were the ones who mercilessly cut her husband to death. The prosecution has also invited this court to take into account three pieces of evidence against these two accuseds. The first IS. the extrajudicial statement of the second accused in which he implicated them. The second is the testimony of the same accused in which he also implicated them. And the th.rd is the alleged confession of the same accused which he made at the scene before Chief Senge. I would think that the extrajudicial statement cannot amount to a confession to any offence0 It was submitted that it constitutes a confession to the offence of being accessory after the fact to murder, on the ground that he, the second accused, endeavoured 0 0 0 0 - 34: to conceal the death of the deceased in riot making any alarm and & his failure to report the matter0 The question is whether in merely not.. doing that involved him in driminal liability in the degree of an accessory after the act, within the definition under section 387 of the Penal Code0 I doubt it and hold that it was not a confession and therefore uhder section 33 of the Evidence Act, it cannot he taken into consideration against those two accused ersons. With regard to the evidence of the second accused in court it is obviously self exculpatory and the rule of prudence is that it alone cannot found a conviction. And as to the alleged confession to Chief Senge, it was unfortunate that the prosecution never thought fit to call Chief Senge. The court has only the word of PWO Idi Kumbi to that effect0 But as pointed out, his allegation does not find support in, and in fact it is at variance with, the testimony of PW9 Hassan Ngoi. PW8 Idi Kumbi being the elder brother of the deceased, ; he could not have been as balanced as PW9 Hassan Ngoi and I do not accept his story on this point. It becomes obvious that the only serious evidence against these two accUseds is that given by Alu, the wife of the deceased, and I will come to assess her evidence when I deal with the case against the second accused. As regards the fourth accused, there is also only the evidence of Alu, The gist of her allegation against him,.as earlier shown,-is that when they were proceeding to the house of the second accusedfrom that of Bula Madai in search for more pombe, the first accused left them behind only to come back with the second and. fourth accused0 Then all the four accuseds started to slash the deceased until he was dead. There is no other evidence, even from the second accused, which tends to connect him. He had not been seen by any of witnesses to be in the company of the other accuseds any time that day. It is submitted that it is doubtful if the fourth accused was present at the attack and in c'ffect that Alu may have mistaken an3ther man for the fourth accused, as the attack took place at night. Could Alu have been so mistaken ? The prosecution argued that she could not have mistaken another person for the fourth accused. The reasons being that she was familiar with him and that the attack appears to have taken quite sometime and that there was a light from a torch. Two of the three accused was present and that he fully participated in the killingQ The third assessor dissented from that vIew and advised that he is not guilty. In my view, mUch depends on the credibility of Alu and I will come to that latter0 Besides the testimony of Alu, there are two other pieces of evidence which tends to implicate the second accused. The first is the evidence of PWP Hassan Ngoi that when he passed at his house on the morning of 17/7/72. he found him bending at the place where human blood was later discovered. PW9 alleged that he saluted him thrice but that he, the second accused, did not respond 0 As pointed out, that place appears to have been swept. The prosecution would have this court believe that it was the second accused who swept that place in an attempt to cover the blood, and they would have this OA court thiskas circumstantial evidence against him 0 The second is the evidence that his knife (P3) was discovered to be coated with human blood and that he did not explain how it came by it. Learned counsel for the accused has however pointed out that the findings of the Government Chemist in respect of the blood introduces a discrepancy in the prosecution case. For whereas the blood taken from the dead body and that which was collected from the scene was iientified by the Chemist as belonging to group B. the blood on the knife (P3) was identified as belonging to group IB. But the prosecution contested that proposition and refered to the illuminating evidence of Mr. Msikinya on that point. The substance of that evidence is that blood grouping tests are only specific on fresh blood. To quote him: "If the blood is not fresh depending on its condition and place where it was kept - either the result may be negative or may not be specific e.g you may get A w en actually the blood belongs to AB and vice versa - or you may get B when actually the blood belongs to A13 and vice versa. 0 0000/ 0 The blood on (the knife) B3 was very d:.. I found that it belonged to AJ3, It is possible that it belonged to A or B in fact (Exhibit F b1ood taken from the dead body) was in liquid form. The result was more specific.00000. (The piece of soil) was also fairly dry 0 Grouping tests was specific. I carried out the test (on the soil) twice and got the same resul. It was in bet:er condition than the knife P3) In the light of this evidence0 I thThk there is merit in the prosecution contention and I would take this piece of evidence into account0 I think that even if no weight is to be attached to these thrce pieces of evidence the evidence of PW016 Alu, if believed, does fully connect the second accused indeed all the four accuseds, in the crime0 It is however submitted that her evidence is suspect and unreliable 0 The reasons advanced are that she was not consistent in describing the attack as hereinbefore demonstrated and that her demeanour during and after the attack may suggest that she was an accomplice0 The questions were posed: why did she not raise an alarm and why did she go home and keep quiet until the following day 2 But I would agree with the prosecution that the conflicts in her evidence can be explained and understood0 Considering the manner in which her husband was done to death, she herself must surely have feared for her own life0 It was a brutal killing and a manacing ordeal on her and one could imagine her griting her teeth and feeling the blood run colb with shock and fear0 In that state of affairs and bearing in mind that the attack happened at night, it rirnst have been difficult for her to see exactly how each of the, culprits attacked her husband. As regards her silence, that also could he reasonahle, as she had been threatened with a similar fate to that which was meeting her husband, if she dared to raise an alarm, and she was leter ordered to go away and not to utter a word about the incident 0 In such a situation, I think 2 hardly any woman would have plucked up dourage to shout as shouting would have been risking her life0 And it is not true tht she did nothing on the following morning because, as she reLated in this court, she went to report to one Mzee Kiu on that mornin and according to PWO Idi Kumbi, it was her who first informed him iout the death on that very morning. I would believe the evidence that all the four accused persons were the ones who killed the deceased0 I believe the evidence of Alu and PW2 Bula Madai, that the deceased and Alu left the house of Bula Madai in the company of the first and third accuseds. Alu and the deceased were lulled by these two accuseds into falsely believing that they were going to search for more pombe and they did not suspect / r2O whatAafoot. I also believe that on their way to the house of the second and fourth accused. This is circumstantial evidence of the fact that the plot to kill the deceased had long been hatched. It appears that the fourth accused had not been seen in the company of the other accuseds any time that afternoon. That is however immaterial.. He could have gone, and I believe that he went, to the house of the second accused after dark purpuant to their plot. There was sufficient opportunity for Alu to see and recognise all the culprits as there was a torch light and as she knew all of them hefore. The second accused would have this court believe, but it does not, that he was not involved in the killing and that the killing was only done by the first and third accrtsed probably with the approval of the deceasedTs wife Alu. If his account is true then it passes my comprehension why these pedple went to his house to announce to him what they had done. The evidence,çhis knife was found to be coated with human blood is also damaging. In any eventthe testimony of Alu sufficiently establishes his paticipation in the killing. As it,happened, all the accused persons set upon the deceased and killed him. It is not open to recognise the crime involved as anything less than murder, as certiinly they intended to kill the deceased and their intention to do so long preceded and actually accompanied their act. The Republic alleged in their opening address ,as observed at the outset, that there was a bad relationship between the deceased on one hand and the accuseds on the other hand. 00 00 That is probable, But the ev nce as a whole does not bring that out and I cannot gather from it WI . actually spurred them on to commit this atrocious crime0 One of the three assessors, as indicated above, was of the view that all but the fourth accused are guilty of murder. He is entitled to his opinion, but for my part, I would and do share the views of the other assessors, that all the four accused persons are guilty o murder and I convict them accordingly. Judgment pronounced in court at Dodoma. Mr. Mbilinyi for the Republic. All four accused persons present. Defence counsel abseit - with leave. D.P0 MAPIGANO 30th June, 1975. JUDGE Mr. Mbiliny: There is no records. AllOcutuS - Nil. Sentence: - The law of this country provides only one sentence for the offence you committed, which sentence I am now compelled to pass on you, and that is you Mdulu Jeremani, Petro Mughanga, Manangwa Kitongo and Muthee Muna, shall suffer death by hanging 0 MAPIGANO JUDGE Right' of appeal to the Court of Appeal explained. 30th June t 1975 D.P. I4APIGANO JUDGE I.' 00•0,001 3.7