19750630 TZHC Iringa

/L. IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION. (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO 0 111 OF 1973 , . THE REPUBLIC VERSUS ADANU S/O MBAGO & 5 OTHERS Charge: Murder c/s 196 of the Penal Code0 J U D G M E N T MAP IGANO The six accused persons in this instance, namely (1) Adam s/o Mbago, (2) William s/o Pela, (3) Andreas s/o Lulimo, (4) Pehemi d/o S Sengeve, (5) Yohana s%'o Mlimbila and (6) Lwidiko s/o Gadau, are jointly on a charge of murder, contrary to section 196 of the Penal Code, to witt, that on or about the 22nd day of March, 1972, in Ibumila village in Mufindi district, they jointly and together murdered Augustino s/o Mikongomi. and Malika s/o Kilivata. The case against all the accused persons is that they set upon the deceased persons wh9rn they rightly or wrongly believed to be thieves, and belcaboured them to death. Gener- ally, the defences of the accuseds were identical, they all dissociated themselves with the fatal assaults. The fact that Augustino Mikongomi and Malika s/o Kilivata died on or about the aforementioned date is beyond dispute, and the evidence of Dr. Kiendesya (PW6) who examined their bodies after they had been duly identifi.Ad to him, established that they died of assaults. Regarding Augustino, the doctor observed that he had bruises on the face, a cut woud on the right shin suggestive of having been inflicted by a sharp instrument, and a fracture of the right temporal bone which was suggestive of a heavy blow by a blunt object, The doctor gave it as his opinion that the death of the deceased was due to the fracture of the temporal bone. And regarding Malika, the doctor observed multiple bruises on the face, a dislocation of the right hip and various other injuries on the neck and symptors which suggested to him that he had been throttled. He assigned the cause of death to asphyxia following the throttling. The following events which led to the d6aths of the two persons are not in dispute: the deceaseds accompanied by PW1 Christopher Kavindi and PW2 Mario Payovela were on a journey. They were coming from the house of the deceased Malika where they had drunk a local liquor called ulanzi. P.W.2 Mario was armed with a knife and a panga. When they reached a church building the deceased Malika stopped while his companions proceeded on. In another moment people heard the church bell ringing. The bell was situated outside the church building and it is common ground that it was Malika who rang it. He, Malika subsequently told his companions that he had been trying it. But the bell start16d the village folk who took alarm and a great crowd collected at the church. And when it found that the church door was broken it turned suspicious and hostile, though nothing had been stolen from the church0 The crowd pursued the four people and tied them with ropes and then beau them with sticks and fists.. Later, POWO1 Christopher and Mario were set free but the deceased persons were placed under custody of four people who were instructed to take and hand them over to the police. They died on the way and were abandoned by their escort. It is not clear why the villagers decided to take Augustino to the police along with Malika. However, there is evidence that he was reputed to be a habitu..1 thief and this could explain their decision, 0000 0 fl 0/ S - 2 - There is evidence that the deceased persons and their two dompanions made a bid to escape when they saw the villagers converging at the church. That might be true 0 But there is no semblance of eviden- ce that they put up any resistence when they were taught after being pubsued, and P.W2 Mario tame.y gave up the weapons he was carrying0 No one had therefore any colour of excuse to assault the four people. What visited them was clearly in the nature of "instant justices, and unreservedly deserved condemnation. This should be a matter of concern. As has been pointed out by no lesser a paper than the Daily News, this trend is on the increase and it is a dangerous trend which ought to be deplored in unequivocal terms0 Every right thinking person should agree that any suspect should be held and delivered to the police alive and unmolested (unless the suspect forcibly resists the arrest or attempts to avade the same when a reasonable degree of force is warrantable)0 The police will ensure that the law takes its course. For a proper hearing in court is the right of every citizen just as he has the right to life 0 And even a man with previous convictions deserves his day in court 0 The question however, is whether, the accused persons are responsible for the deaths of Augustino and Malika and if so whether they committed the offence of murder. I. will now proceed to review the evidence against each of them and assess the S ame. The evidence against the sixth accused Lwidike Gadau is only that of P.W.2 Mario who made a bare allegati6n that the sixth accused was one of the people who attacked them0 This evidence lacks support and indeed the evidence of two other prosecution witnesses, namely P..W.3 •Taphet and P.'1.8 Raphael who were also present at the event, gives it the lie. According to their evidence, the sixth accused though present did not do anything. The accused hImself denied the allegation. Taking into consideration that POWA Mario was himself beaten thoroughly by the crowd and that this might havc .Jioured hi I would reject his allegation. N owz.. presence c the place of a crime cannot crnn-t- per-. i that crime1 even under the doctrine of commor intoiii-i on, I woild therefore hold that the prosecution has failed to establish any offence against the sixth accused person. The evidence against the 5th accused Yohana Mlimbila is even weaker. There is only evidence through POW., 3 Japhet and P.W.,4 Mzungu- wandege that he was also present at the event. There is nothing to suggest that he encouraged, let alone, that he molested any of the four people. He would also be cleared of the charge. The fourth accused Nehemi Sengeve is the only woman among the accuseds in this case. The allegation against her is that she pricked the eyes of Malika. That is the allegation of one witness only, P.W.2 Mario ) which allegation is in conflict with the testimony of the doctor. As indicated, the eidence of P..W.2 Mario, has to be approached with much circumspection as he could be vindictive as a result of the drubbing he received from the crowd 0 And that apart, it could be genuinely doubted as how he could have seen the accused assaulting Malika in such a crowd when he was himself being beaten. The case against this woman also appears paltry and I would also dismiss it. As regards the third accused Andreas Lulimo, we have also the evidence of the two surviving victims P.W01 Christopher and P,W.2 Mario which evidence is disputed by the accused. PW1 alleged that the third accused was one of their attackers. He did not elaborate how and whom he attacked. As for P0 0 2 his allegation was that-'his accused beat both ugustino and Malika with a stick. For reasons which I have pointed out, I feel that it would be real unsafe to accept and act on this evidence alone and in that event would also dismiss the case against him. The second accused William Pela, was the 100 cell leader of that area and it is evident that he was not present at the church. There is sufficient evidence to show that after the four people were caught they were brought to him at a grave yard where he was engaged in another business. Again, the evidence against him came from POWOl and i.Jl P.,W.3 Japhet and P.W.8 Raphael, whe testified that, on the contrary, 00 0 0 0 0 0 0/3 - 3 - he aecond accused was prominent among the people who appealed to the crowdto stop beating the four people, advising that they should be taken to police0 And in fact he proceeded to nominate four people whom he instructed to escort the deceaseds to the police station. The accused denied the allegation of P.W01 and P.W.2 and claimed that all that he did when the suspects were brought to him at the grave yard was writing a letter to the police which he gave to four people, namely, Wat$n Lwinuso and Petro to take it along with the two deceaseds, to the police, The quality of the evidence of POW.]. Christopher and P.W.2 Mario .being what it is I would prefer that of P.W 0 3 Japhet and P.W.8 Raphael. In Lht' event what the second accused did in order to succour the suspects must be commended rather than be censured. In his case I would also find that no offende has been proved. The first accused Adam Mbago was the ten cell leader of that place. He was one of the people who rushed or trickled to the church on hearing the bell. He is the one who ordered that the four suspects be t. tied with ropes. And there is cogent evidence from several witnesses, including P.W.5 Rehema Kawago and P.W.9 Tulanyililea, that he struck the deceased Augustino on the head with a sti ' wj h htd an iron knob exhibit pi. Every one of these -sses deposed that the blow he administered on the deceaser .-es heavy. P.W.5 added to say that it knocked the deceased The deceased was bleeding from the resulting wound by the they reached the grave yard. The first accused agreed in his frjudicial statement, exhibit P5, which he stood by, that he beat the deceased when he had already been arrested by his fellow villagers. It is niy opinion that the 1st accused cannot succeed to plead that he attacked Augustino in the course of arrest. To be sure, the conduct of Augustino and his companions could reasonably rouse sii.cpiciozi in the minds of the villagers. Firstly, Malika committed an excess in tinging the church bell and Worse still the church door was found broken. And secondly, they took to their heels when they saw the villagers congrega- ting. The villagers including the first accused had therefore reasonable cause to suspect or suppose that they had been up to commit mischief, particularly when Augüstino had the ill-reputation of being a thief. However, as found ,the suspects did not offer re.sistance when they were caught and therefore the use of force towards them cannot be justified or excused. His act was therefore unlawful as it must have been entirely actuated by malice. With that I have to consider whether he is responsible for the death of Augustino as s'LL- cnou1y submitted by the prosecution. I would refer back to the evidence of the doctor who positively opined that it was the fracture of the right temporal bone which brought about the death of the deceased. iBut he could not be sure whether this was caused by a single blow. The accused was seen by several witnesses hitting the deceased on the head with the stick,exhibit P1 1 which in view of the doctor's evidence, was eminently suitable for inflicting that type of injury. The question is whether it was the accused's blow which killed Augustino. It is canvassed on behalf of the accused that there is a real reasonable doubt, in the absence of any evidence as to what actually took place after the deceaseds were handed over to the four people who were instructed to take them to the police station. This point cannot, in my opinion, be simply dismissed. The obvious mystery which the prosecution case fails to answer is how Malika came to die of throttling. For there is no trace of evidence that anybody throttled him by the time he was handed over to the escort. It is therefore, most likely that he was throttled on the way to the police. But as to the question who did: that must be left unanswered, because for one reason or another the Republic did not deem it fit to call the four people in whose hands the two deceaseds must have met their deaths. The argument is that if there was any subsequent assault, then Augustino could also have been a victim of that assault and that possibly it was this last assault which caused his death. I have put this argument to the assessors and, with respect and after deep consideration, I incline to agree with their 12ziaimuus view, that such a possibility should not be lightly ruled out. Now, accepting as I do that that is what actually happened, it is impossible to say that the death of Augustino was caused by the first accused. And I am of the view that the doctrine of common intention cannot be called into play, because the last assault is obviously separable from that of 0 • 0 OS 0 0 0 0 0/4 - 4 the accused0 But on the evidence, there is no doubt in my mind that he, the first accused, committed the offence of unlawful wounding, under section 228 of the Penal Code0 To conclude, I find the first accused Adam ?ago not guilty of murder, but guilty of the minor offence of unlawful wounding for which I convict him. As to the rest of the acused persons, I find them not guilty of the offence charged, nor of any other offence of, which under the provisions of the Criminal Procedure Code they coutd be liable to be convicted. So far as the present case is concerned, they can no longer lawfully be detained in custody. Judgment pronounced in court at Dodoma Mr. Mbilinyi for the Republics Accuseds present in persons. D.P. MAPI7U0 30th June, 175. JUDGE Mr. Mbilinyi: No record. 1st Accused: Three wives, nine children to look after. I have been in remand for more than four years. Sentence: This is serious offexce. As I have pointed out in the judgment, this type of conduct must be checked, But accused has been in remand for more than four years. He is therefore sentenced to six months impri sonment. -1 A4 30th June, 1975 Dot. M1fGANO JUDGE