19750517 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA DODOIVIA REGISTRY CRIMINAL SESSIONS CASE No. 8 7 OF 1974 THE REPUBLIC VS. HOBE LINJE & ANOThER CHARGE: Murder c/s 196 of the Penal Code. J UDGM.BNT The accused TALA 5/0 LINJE stands charged with the murder of one Chimbu @ Mbua s/o Senda, her paramour. This is a short case and it is largely based on facts which are not in dispute. By all accounts it is without doubt that the deceased Chimbu Senda died in the early hours on January 9, 1971 at the house of the accused at Nekwa,,-Haieti in Kondoa dstrot. The prosecution asserts that it'wasthe accused who throttled him to death. This is denied by the accused and it is essentially circumstantial, therebeing no witness who saw her doing that. The only dispute in this case is therefore whether it was the accused who killed the deceased. By all accounts, including that of Sona Singano (1W2), the wife of the deceased, there was a long and intimate love affair between the deceased and the accused. The deceased spent nights at the house of the accused on numerous occasions. Almost every one in the village knew this and PW2 had come to accept that situt ion and according to her word she no longer had any ill feeling or misgiving in that regard and had perfectly good relation with the accused. On the evening prior to his death the deceased went to drink local liquor called kangara at the house of Hobe Linje who is the brother of the accused. Hobe Linje's house is about two hundred paces from that of the accused. It appears that the deceased took excessive drink there for he was seen falling down and vomitting. He went to sleep at the house of the accused at a later stage. As indicated, he died in the early hours of the morning. When relatives assembled there they decided to bury the corpse on the same day. The body was taken and the burial was performed at his house. But two days later, on 11th, police and a doctor arrived and exhumed the body and post-mortem exa-mina- tion was performed at that scene after the body had been identified. The doctor did not find any mark suggesting violence externally. However, when he opened the neck he observed that the muscles and the blood vessels had been bruised. Further examination showed that the scuip was congested with blood and that there had been bleeding into the eyes. A-nd also that the liver was congested with blood and the lungs ballooned. The doctor formed the opinion that death was due to asphyxia following strangulation. The Republic did not wish to make any submission at the close of the hearing but it is clear that this charge was preferred against the accused in view of the medical evidence and in view of the fact that death took place at her house., The accused denied throttling the deceased. She stated that the deceased came to her house while drunk and that he went to bed and slept. And that she heard him groaning when it was about dawn. She was worried. She went to call her brother Hobe Linje and the mother as well as the wife of the deceased. When she . . . .. .. .. . . 2 - 2 came back to the house she found him already dead,. She was inter- rogated and after about one year she was arrested and charged with this offence. The crucial question is whether she is ho one who throttled the deceased to death. As both the prosecution and the defence appear to agree, there is absolutely nothing to suggest that the accused had any motive for doing that. On the contrary, she was his mistress. They had carried on for years and were more or less man and wife. 'There is no shred of evidence to indicate that there has been any quarrel, any misunderstanding, or that one was trying to fall out. But it is true that the deceased died at her house and nobody elese appears to have entered the room in which the deceased wàe sleeping, at leat 'until the accused left the place to go and call his relatives. I sat with two assessors to hear this case. The first assessor accepts the doctor's opinion as to the cause of death. He believes that there was strangulation. However, he is not sure that it was none but the accus ed who did that. The second assessor does not accept the medical opinion. In fine, he thought that the deceased could have suffocated himself as a result of excessive intoxication. In the result, both are of the opinion that the accused is not guilty of murder. I have given the matter my utmost consideration and I would with respect share the opinion of the first assessor. The doctor appeared to be of the firm view that death was caused by strangu- lation and nothing else and he has expounded why he held that view. I am unable to differ with him. Nevertheless, I would not think that the evidence as a whole compellingly point to the accused as the culprit. As submitted by the learned, counsel on behalf of the accused, the circumstances do not exclude the possibilitr that the deceased might have been throttled by some one else, perhaps when the accused left him groaning in the house. I would therefore, give her the benefit of my doubt. Consequently, I find the accused not guilty of the offence, She is acquitted and she is to be set free unless she is lawfullj detained onanother matter. Pronounced in court at Dodoma. Mr. Mwakingwe for the Republic.' Accused present. D. P. Mapigano Judge / I