19760414 TZHC Singida

I11 THE HIGH COURT OF TANZANIA ATSINGIDA' . ORIGINAL JURISDICTION (DODoM, RGIRY) .. CRIMINI\L SESSIONS CASE N0 148 OF 19.74 THE REPUBLIC VERSUS 1. .JE'REMIAH CFALO .. . . 2 .:AE,Y MATONYA : GILBERT MOHAD charge: M URD E :R',' c/s 196 of the Penal Code 0 J. U 1) G M E N T MWZAVAS, J. The two accuseds Gilbert Mohamed and Stanley Matonya, qho:. I will, hereinafter be refertiig to: as the 1st and 3rd áccused are jointly chrged' With 'murder c/p 196 of the Penal code, One, Jeremiah Chal].o, who was the second accused, was • discharged after.tle'RebiIc had.'entered nplle prosequl in respect of the charge'aainsthim.' It is. the Republic case that the. 1st and 3rd accused' did on or aiout the 11th day of August 1973 at Mabondeni village, in Manyoni. district, Singida region, jointly and 'together murdered one,Madeje .s/oMkatika. Both accused pleaded ibt'g1lty to the charge0 From the eidnde of the doctor,.(PW1) and that ,Z of the identifying withesses (Pw3.) there can be no doubt that • a person by the narne.Of'Madejè 'Nkatika has died. Equally there can be no dispute on the doctor's evidence that the dEceased Madeje .Mkatika died a'io1ent death. The vital question this Court has to deciné is - who' was the perpetrator of this repulsive crime? .. Three pr.se'cution witnesses •(PW2 1 W3 and PW4) testified to the court;'t-hat on the material evening they were drinking.pombe.at .a house of one, Aziza. According to • thir evidence the two accused and the, deceased were among te people who were there drinking liquor. All the three witnesses told the court that as they were there they witnessed. aquarre1.between the first accused 'and the deceased. • . Mary }(atagile and Serebia Rashid (PW2 and PW3) resp-. ectively) related to the court that the cause of the quarrel was that..the. first 'adcused,hd.tak?n and drank deceased's potrthe without deceased's permission and that when the deceased objected - ' • :•. :i :'c: ;'- •.•• ..' - ' .. - 2- to 1st accused's acts,the first accused abused the deceased '&i challenged him toa fighto4tside the house. Thereupon the 1st accused Is said to have pulled the deceased out of the house. As they were outside the 3rd accused is alleged to have come into the roofri and told Aziza, the owner of the premises - "Come I and see G'i1bert. has ci11ed"Madeje". These two withesses said that they did not see the first'accused assauit.ing the dcased. 'they did not follow the deceasedand 'the accused outside the house0 They hawever, testified to the court. that they participated in carrying deceasedós it near a main road leading to Agondi' from Sitg.ida, Accordinç to th evidence of Leudia Juma (PW4) when the 1st accused and the deceased went outside she fo1lwd them 'n t1t sh saw' the' lst a'cused:assauIting the deceased in his right flank with a stickrand a1so.that the first accusëdbe-'theeceased0 She related to the court that the 1st accused and the daceased quarreled over a piec .of cloth. •' ".. :' :Bothi witnesses (Pw2.:and told.the court that the 3rd accused Stanley, participated in carrying the dead- • bdtoAgondi'main road. •.••. In their defences givenat:9,t.h accused admitted having been at Aziza's place but they said that they drank pombe up to about sunset when they left the "place i to. their re , i peqtiyq homes. .. they were no where near the deceased when he met hs '''"' death0 •, •' :• The'iearnëd defence. conse1 'argued. that the participation of the two witnesses (PW2 and PW3) in hiding the body, showed thatthey were accomplices in the commission of the crime and that the court should not relie on their testimony unless it was satisfied that there wap sufficient corrobdrtiwe evidence showing that,the ccued.committed the • Offence'. It.was also argued that ter was contrediction between the eVidence of P.W,2 and P.W.3 and-that of, ?.W.4, as to what was the caüse of the alleged quarrel between the 1st accused and the deceased.. .' - •• .;•,•• • It was alsQ : .sUbmitted that venif the court • " ' believed thb p±oseition.argumet.tatLt.was theist accused who assaulted thedeceasedon tbemaezia1 night, the court shuId find' it asa act that .th.qurel and fight between the 1t accljsed and the deceased was a drunken brawl and that the 1st accused did not-intend to kil] th. deceased when he assaulted f •h •'' ac c used. it. :d" [- was araued' -';':-'. that there r -. ' - : ':;.,;. ;r ' , • •'• t• ••••E; —._3 - - was no evidence •imlicating him .with th& death f the deceased and that if the court believed the pro secutibn •withesss, the - 3rd accused could at-- the most be cnvicted s - an accessory after the fact bnly - . - .In.1his sbmis1on the .learned..sthte attney argued.. that even if the cciQrt fc3und the two witnesses to be accomplices, there was, it: .ws argued, sufficient corroborative • evidence.of.their.:testimony that the 1st accused assaulted the deceased on that tiight. It was the Republic argument that the • - evidence ofLeudia: (Pb4) affrded corroboration of the two witnesses'pW2 and PW3 ev1denè that both accuscds were at the pombe prty and that thee aróse. a quarrel between the 1st accused and deceasd. AteL summing up to the only gentlemen assessor, (the other one having been dipensed with under scti,on 270. of the. Crirdinàl Procedure Code) he was of the opinion that the proseéiition witnesses were truthful. He • . - . however came to the:-con lusion that theE 1st accuscdon1y guilty of manlauhter. He also found it as a fact that - .. •• Stanley (3rd accused-) - participatd in carrying and hiding deceased's body0 WheC two or.inore persons, asit is in -. ';• this case, are charged with anoffence, the prosecution is • required to prove the guilt of each-of, accused or it must - be -proved that - the 'àccusèd were acting in pursuance of a common thtention when one of them committed the offence charged. If either of the accused might have committed the offence -- .charged butit cannot be said .which in fact committed: the offence and it is' not proved that they were acting in 3. -, ,concert, both accused - must be'aCqU.tted. - In the present case the two witnesses <PW2 and PW3) said that they saw the 1st accused quarreling with the'deceased and -pulling- him outside the house0 They also said that the 3rd accused participated in càrt- ying and hiding the dead body.. •• -..• ... Iud:ia (PW4)- said that - he saw the 1st accused assaulting the deceased0 As-Iha-ve already mentioned above the. learned defence counsel- ar'ued that both witnesses (PW2 and. PW3) were accomplice's' bec.ause they participated in the rrnoving of the body from Aziza's house and -placing it on the side of the main road leading to Agondi. ' Hethërefore a.gued that a-s arule of pr'ac'- i'ce'their testinibnyneedéd corroboration before being acted upon to the. detriment of the accused0 . • • .. With respect to the. learned defence counsel I do not agree with his argument that the two. witnesss,-- ; (PW2 and PW3) are accomplices in the realsene of the word-. —.4- My understanding of an accomplice is that it is the person who participates in the cOmmission of. a crime0 In the present case the two accuseds are charged with the murder of the' deceased0 There is no suggestion, leave 'aione evidence, that' the two withesses participated in the killing of the decased. Their participation in carrying. the body to AgOndi main road .'ly makes ,th em accessoriCs after'th fact 'Of 'the' k1ling of the deceased0 Taking into account the definition of an accessory after £he fact under 9 ecLor 387 of the. Penal CoC'the two witnesses cannot be branded as accomplices0 "Thé mere fact ofa person being an accessory after the fact to a crime cannot of itself f?&ake him an accomplice - See the decisions R. V. KINYANGWABWARU S/O MATAS (1942) E.AOCGAO 90, , V. NANTA S/QM1iIMI (1944) E.A0C0A0 83 to rTiention but .a 'f' of:the 'd:eoi.5ior - 'h'is point. Even if for the sake of argument the court Was to hold that the two witneses. there is more than ample evidence in support of thi stry that the accused were present on the homethad, and that the first accused quarreled with he d eda This corroborativ3 evidence is found inth..testir'o of 'Ludi"aJuma (PW4). There is also the evide&- of Juma Lwai (PW5) to the effect that when he arrived at Aziza's -house at 7 n.m. the third accused was there. Admited1y there was some inconsistence between the evidence of the to witnesses (PW2 and PW3) and that of Leudia (PW4) as to what was the cause of the quarrel between the deceased and the first accused, Gilbert Mdhamed. There were also contradictions as to the manner the deceaseLd and the first I accused left the ro'om. The two withesse''(PW2'and Pw3) S1d, that the first accused pulled, the dec ased' butsi'de' the hbuse. Leudia's evidence is 'thè±'after an 'exchaie of wor . d.-s between the first accused and. 'the dece:ased'. th" former went out and the later followed him..'' ...............;' - .'In deciding the effect o tse inconsistences the court is aware of the fO.ththat the witnessed are simple and humb villagersand were testifying on events which tobkplce about three years agoin a drun]çen atmosphere. This beng the I position some inconsistence in the witnesses' edence is but to be expected 0 Indeed I' would -have been surprized if the withesses were a hundred percent consistent' in their evidence. When one tests Leucadia's demeanour as a' witness, against the whole of the evidence one is left with the clear impression that hers was a tre account of what happened. The evidence of Juma Lwai (PW5) also appears to support, if only by implication, the testimony of the two witnesses (PW2 and PW3) that they were forced bya cell—leader by the name o e 0 0/5 of Hosea to assist in the carrying of the dead-body0 The two witnesses also told the court that Stanley (3rd accused) forced them to carry the body0 Stehley was at the rñathriai time a TAMJYouth League member in the area And it is a well known fact that a TANtJ Youth League menber in the village has a lot of pbwer over his fellow villagers. On the totality of the evidence I"am quite satisfied that the first accused assaulted the deceased on the material day and that it was the assault that culminated to the death of the deceased. First accused's defence of alibi is clearly bogus and an afterthought. Needless to mention his f.ligFt to Shi.nyàfiga soon after the killing of the deceased. As to what offence the killing amounts to, there is ample evidence of the usual drunken brawl leäing to a fight that resulted in deceased's death0 On the evidence I am in ad idem with the opinion of the gentleman assessor t,hat the first accused, Gilbert Mohamed, is guilty not of murder, but of manslaughter c/s 195 of the Penal Code, and he is so convicted. As for the third accused, Stanley Mtonya, I am satisfied, as the gentlemen assessor is, thaL he participated in the carrying of the body to Agondi main road where it was deposited in order to enable the killer to escape punishrne.it,. Be is therefore an accessory after the fact to a S felony and he is so convicted u/ss 387 and 388 of the Penal Code. JUDGE Prosecution - My lord both accuseds are first offenders. In Mitigation (Mr. Mbezi) My lord in this case regarding the first accused it was a drunken brawl which led to a fight which caused deceased's death. According to doctor's evidence the deceased had an enlarged liver. In this case it would appear that the first accused used a fist as opposed to a stick in assaulting the deceased. The 1st accused is married with 3 children and three young brothers. His mother died long time ago. He supports his elderly father. He is a first offender. He has been in remand custody since August 1974. As for the 3rd accused his conduct that night was to save a neighbour from being found with a dead body in her premises. His conduct was only one of mistake of law. He is married With four children. Hel has four sisters who depend on him. He also takes care of his old mother. He is a first offender. He has been in remand custody inçe August 1973. In view of this my lord we pray, for leniency0 1st pccused - Nil 2nd Accused - Nil Sentence - - The first accused was all along the aggressor He, without the permisson of the deceased took aeceased's pombe. js if this was not enough ten the deceased resisted his (accused's) acts he subjCcted him to violence and caused his death. The first accused deserves a condign erit.ence his previous unblemished record notwithstanding. Ije is sençr)ced to 7years imprisonment. As for the 3rd accused hetried to shield his frien from what he had done so as to enable. him to escape punishment. Is a TANU Youth League Member he shoula have known better. He is setenced.t3years impr.isçirrni, R.O.A. to E.AQCOAO ex1ained. SI NGIDA 14/4/76 KINABO for the Republic. EZI fo the Accused.