19750204 TZHC Iringa

1 IN THE HIGH dURT OF T.tNZANIA AT IRINGA ORIGINAL JtThISDICTION (DODoMi REGISTRY) CRIMINAL SESSIONS CASE NO. 76 CF 1974 THE REPUBLIC VS. MLIcONTELL MIJHOLELA CHARGE: MURDERc/s 196 OF THE PENAL CODE. J U D G IVI E N T MIU?IGANO, AG. J. The accused stands charged with murder, contrary to section 196 of the Penal Code. The prosecution has sought to prove that he murdered a boy called Peter Paul by hanging him with a rope, the incident taking place at Ipokela in Iringa on 14th November, 1972. There is sufficient and clear evidence to establish that this boy Peter Paulo was, on 16th November, 1972, found dead, in a thicket. His body was covered by branches and had a bark rope (24) round his neck, •. He had sustained bruises cn the chest and abdomen, and the fourth vertebra was fractured. Dr. Eshiuis who performed the post-mortem examination on the body opined that he had died of hanging. Since he was not available, he having left the country for good, and his roort P7 having therefore been admitted under section 275 of the Criminal Procedure Code, it was not possible to understand, very clearly how he reached that opinion. More particularly, it is impossible to know, as the defence would have wished, whether the circumstances excluded death having been clue to strangulation. But' I think there is no denying that the body died of unnatural and violent death, and that it ts reasonable to conclude that he was killed by the very person who proceeded to cover the dead body with the branches, and, understandably, the defence did not seek to chulonge that. Also unchallenged and plain is the fact that the boy met his tragic death when he was in the grazing ground whore he had gone to tend his father's hord. Ho was not seen back home in the evening of 14/11/72. His herd was driven back home by the accused in the company of PW2 Fidelisi Kibadu, and there is reason to believe that the herd had tresoassed into the accused's shamba and destroyed his yams.. As shown, his dead body was discovered in a thicket two days later. The crucial and contested issue in this case is whether the accused is responsible for the death. The prosecution case, and the prosecution themselves make no bones about it, hinges cn the evidence of one witness only and this is ?W2 Fidelisi Kibadu. This witness recalled that the accused who was driving cattle asked him to help him send the cattle to the owner's house. It was in the evening and the witness agreed to do so They duly delivered the cattle to the house of PW1 Paulo Mgudila., , He alleged that on their way back they rlot with the deceased and that the accused asked him, the deceased, as to the whorôabouts of the cattle. And that when the deceased failed, to answer, the o.ccusod sot upon him by beating him with a stick on the stomach and he, deceased fell down. But that he quickly stccd up and boitd away. The accused, PW2 further allogod, told him, PW2, to go away añd,refrain from disclosing to anybody what had taken place, threatening that he would beat him should he fail to hood that warning. Accordingly, •_. . . . . . . 2 / - 2 -: he claimed, he kept it to himself until on 16/11/72 when he was approached and questioned by the hundred cJ..l leader ) PW3 Musa Kalolo. The accused adritted that he asked P12 an that PW2 agreed to help him drive the cattle to tke house of Paulo Mgudila. But ho denied that he not with the deceased on the way back, and he also denied that he assaulted the deceased. Furthor, PW2 allegod and the accused vohonently denied, that he I)urSUOd the deceasod towards the direction where the deceased's body was later traced. It is in evidence, and in my judgment true, that 31AW2 was asked to point out the stick which the accused had used to hit the boy. This was at the' scone whore the body was discovered and when the body had been discovered and identified. Pi12 pickod out one stick. (23) amongst a heap of sticks which had been cclloctod from the searching crowd.. 23 admitodly belon.ced to the accused. The defence contended, on the 1:asis of PW2 1 s evidence that, ho, PW2, had seen the accused holding the stick before the identification was carried out. The idea, of course, is to deqlue the identification. The prosecution resisted that contention and argued that by the time PW2 was brought to the scone, the accused had already been apprend- end, tied and the sticks, including P3, heaped together. . This was founded on the testimony of 2W3 Musa Kalolo. I an inclined to boliovo the testimony of PW3 on this point. As he himself pointed out, he had nothing against the accused which could have impelled him to distort the truth, and that the accused could not have been allowed to retain the stick once he had boon hold under suspicion and in custody. But that does not necessarily rean that PW2 was deliberately and consciously being untruthful. He is a boy of tender years, about eight now and therefore about six whenUie event took place. It is probable that he was genuinly and innocently istakcn due to lapses of memory. For as just indicated, ho was speaking of event which occurred more than twenty five months back when he was more juvinile. It is likely that they were no longer indelibly printed on his memory at the tine he narrated his story in this court. But it nay become a question, whether in view of this disparity, innocuous and reasonable as it appears, the credibility of the rest of his evidence is not affected or weakened. Now, the stick (P3) as well as a shuka (26) which was seized from the accused's bed and which belonged to-the accused wore seen to be blood-stained. These were sent to i)ar cc Salaan where they were found to be stained with human blocd. However, the Chemist reported on P2 that it was not possible for him to ascertain as to which group the traces c± human blood belonged. Explaining how the shuka (p6) cano by the blood, the accused alleged that this happened when it got into contact with a fresh meat of a cow. I cannot pretend to dismiss his allegation that the shuka nay have been so contaminated at one tine. He cannot however, in the light of P2, deny that it also had tracce of human blood at the time it was seized from his bed on 16/11/72 by constable Edward. It is however, submitted, and perhaps not without substance, that the shuka could have eerie by the blood innocently and without the knowledge of the accused. It will he noted from the aovo that the evidence of P112 Fidelisi is of a vital nature to the lDrcsecution case. He is the only witness who allegedly saw the accused wildly boating the deceased with a stick that evening and, theroafter, allegedly chasing him towards the direction where the corpse wassubsoquently cijsovered. Whether or not there is breadth of truth in his evidence there is here a statutory necessity for its corroboration by other material evidence implicating the accused, by virtue of the proviso to section 127(2) of the Evidence Let, as it was the unswcrn evidence of a child of tender age, about six years. Lccording to his evidence the accused dealt tb.e deceased with stick blows on the abdomen when . .3 . . . . \ / -: 3, - they, accused and the wit nss, met with hirn, the deceased, after they had taken the herd he was tending to the house of PW1 Paulo, the father of the deceased. is shown, the accused admitted that he was in the corpany of this child to and fr: the house of Paulo. But he denied meeting with the deceased and he denied beating and chasing him. The doctor observed that the dead body of the deceased had bruises on the abdomen and chest. For reason which has been pointed out, the docotr was not available for questioning for the purpose of clarifyiug if any of the injuries he noticed was suggostivo of having been inflicted by stick. The prosecution submitted that the fact that it was the accused who drove the herd to the house of Paulo after the cattle had destroyed his sha'ba, and the fact that he had adl'Littod to have been accompanied by the child Fidelisi, and the fact that the dead boy was found to have injuries on the abdomen, tend to confirm the allegation by Fidelis that they met with the deceased and that the accused did in that event punish the deceased with stick blows on the abdomen. This arrcnt apiears to have found favour with the two assessors who sat with me and with respect I would respect- fully share that view. I thoreforo, find it as fact that there was an occasion during the evening of 14/11/72 when the accused met with and punished the deceased with stick blows, dpparontly because the deceased had, most probably inadvertently, let the herd destroy his yams. The question of great moment then is whether the accused pursued the deceased, caught him and hanged him as the prosecution would have this court find and believe. On this issue the prose-- cution seem to rely on the evidence of Fidelisi who allegedly saw the deceased taking to his heels and the accused wakin and follow- ing him, and on the fact that both the accused's stick (3) and the shuka (6) were found to be coated with human blood. It would appear very clearly that on the question whether it was accused who hanged or strangled the deceased the evidence led by the prosecution including that of Fid,elisi is wholly circumstantial.. For Pidelisi did not 6o further to allege that he witnessed the actual killing:, his evidence was only that he wont hone leaving the accused walking towards the direction where the deceased was fleeing to. For the accused it was in effect submitted that firstly it was gravely doubtful if Fidolisi actually saw the accused pursuing the deceased; secondly that the other pieces of evidence were not cogent enough to the accused as the culprit to the exclusion of others; and thirdly that the bark-rope (P4) could not have been sufficiently strcn to hang the deceased with. The assessors opine, in fine, that there is merit in the first and second point and have in consequence advised that the accused is not guilty of riurder. They have however rejected the argument that the rope ) was not suitable for hanging a person with. I have to boar in mind the prosecution submission that it is net necessary to have corroboration on all the circumstances of the crime. That was lucidly Iut in R v Baskorville (1916) 2 I. 656 and R v Purchit (1942) 9 EIC,t 58 at p.61 whero iwas stated (with uita'ble alteration): 'the corroboration which should be looked for is some additional evidence rendering it probable that the story of the child is 'true and that it is reasonaly safe to act upon it. It must be independent evidence which affects .the accused by connecting him or tending to connect him with the crime,. confirming in some material particular not only the evidence that the cri:,,o has been committed (which is not in dispute in the instant case) but also that the accused committed it. It is of course net necessary to have confirmation' of all the circumstances of the crime. Corrobo- ration of some r:atorial particular tending to implicate the 4 - the accused is enou:Th and whilst the nature of corroboration will necessarily vary according to the particular circur:stances of the cffonco charged it is sufficient if it is merely circumstantial evidence of his connection with the crime. Corroboration nay also be found in the condut of the acused." With regard to this case even the evidence for which corrobo- ration is called fcr amounts to only circumstantial evidence. What Fide]..isi alleged and which is strongly disputed by the accused is that the accused pursued the deceased towards the direction where. the dead body was traced two days lfatory It is not clear whether the house of the accused was not also situated in the sane direction. However, there, is also the question how the accused could have caught up with the deceased. Fidolisi's evidence is that the accused was walking while the deceased was runnint. The deceased, by two accounts, was a boy aged about thirteen years, and by one acount that of the doctor, an adult of the apparent age of twenty years. The doctor was most probably in error but his observation tends to show that the deceased was a fairly big boy. I find it difficult 4 to believe that the accused who appears close on sixty years and who appears dravm and fragile would have caught up with the deceased, I would think that the deceased had, most probably, an edge on him in sriftness, and this introduces an element of dcubtn€ that it was the accused who hanged the deceased. On the wholo, I would agree with the assessors that the evidence available before me is not strong and does not meet the test of proof required in a case of this nature. I would say that even when all has 1:;een said by the prosecution, the doath of the deceased remains shrouded in uncertainty, and leaves r:o with reasonable doubt as to whether it can be attributed to the accused. iccordingly the accused is found not guilty and acquitted. He is to be set free unless he is held on another lawful ground. Delivered in court at Iringa. a Mr. Kinabo for the Reyul;lic. Mr. El-Maanry for the accused. L.ccusod Present. P. E. Mapigano 4th February, 1975. .n.g. Judge