19760913 TZHC Singida

• -d IN THE HIGH COURT OF TANZANIA AT SINGIDA. • 0RIGINL. JURISDICTION •• . • :•...•.•. (DODOM:.ISTRY) I7 CRIMINAL JESSIONS CASE NO. 67 OF i 976 K 6 .........THE REPUBLIC ...- JDI S/O KAUIWA NYASI 5/0 NTUI LAZARO 8/0 KITAU CHARGE: . Murder c/s .16 of thePenai Ccxle. J.:UDEMENT. J 41 The accused person in this case, Lazaro s/o Iitamb.u, stands charged with the offence of murder contrary to section 196 of the Penal CocTe. The prosecution has alleged-that on or abou. -b 18th day of November, 1974, at Kiunghuu village, in thS district and l'egion of Singida, the accused murdered one Mukhenyi s/c Hamuli, He has pleaded 'tnot guilty" to the charge. The evidence of the prosecution is that during the night of 18th to 19th November, 1974, the deceased, one Nukhenyi Hamuli, was sleeping in one room and his wife was sleeping in the next., room of the same house. •The.door between the' two rooms, made of small wooden sticks, was closed but not locked. At about midnight that nit, the wife -of-'-the deceased, Tuau.d'/o'Pinda (PW2) was arbused from sl'eê b.'an alarm made by the deceased ithom she heard cryiig and saying. "Why are you killing me 9 ", and she knew that some people were assaulting, the deceased. . .. Shortly after that two of the culprits entek'ed her room, assaulted her on the neck and ordered her to give 4hem millet. She gave' them some six tins of millet which they put into g'tumy bass w'hich they had brought with them. The room was in darknès$ and the cul-prits had a torch hich they kept switching on tnd Off. So PW2 could not identify any of 'the The culprits also took away froi -the house some clothes, an umbrella, a cattle syringe, tobacco, and, other items. The millet given to the culprits was the type locally called "langilan,ga". 0 • • 2 •. • . . . . . i - 2 - Before leaving, the culprits told PW2 that the son of the deceased had sent them to kill the deceased because the deceased was not giving them food. When they left the 'I'.o,use., with their plunder, PW2 went to the room of the deceased arñasked him that had happened,aj the deceased-.ju.st said "Iy wife "I dyint', and he then passed away. .. .. Next morning PW2 reported to neighbours about the death of the deceased. When 'pebpJe gathered at the scene, they started tofo±low.foot-prints of the. culprits. In tracking the foot-prints, the search party was assisted by sprinkles of millet whore the culprits had passed. Among the search: party were Petro Nukhenyi, s'ori of the deceased, and one Mangi. Mughumbu (Pw4). They tracked the foot-prints up to Munane viflage there they lost traces' of the foot-prints and the mill They then went back to the deceased's house. • .,: The accusedi â'esid'ë&t öf 'ñne vilige .' A report was sent to police who went and took the dead body to Singida • Government hos,i 1 wh Joseph Sowoki (Pwi ,) conducted .a post-mortem examination on the body of the de'ceased after it was identified to him by Tuau Pida (P.W2)j, id:-etro Muhenyi as being . tie body of. the yi s/o Hamuli. •Th.. examin,ng'. the: body, the'depctoz. obser 4 ; 1iat it had Vt r '1QV :9 the. left sid' o. . the. ealp with a f'acture in- . ................................a cut wound .Øn. the left lumbar region volving .he left. kidney,. a ct' wou4 on the .righ.t a, a cut wound pn tne right side of the chst, and a fracture of the loft radius and ulna In his opinion, the death of the deceased was due to. shock dpe to haemorrhage. -, On 26th Febniary 1975, that s, some three months after the death of the deceased, Detective Corporal Saidi (PW8) of Singida Police, and another police officer went to Muna.ne village, and in the presence of civilian witnesses, searched thè"houso of the accused in thich they found an umbrella, aout a tin of "langi1anga millet'; a cattle syringe, a nylon string "ar.' other articles thi1i the police seized axid'arrested the accused. Subsequently, PW3 was called to police. station ,where..he identified the umbrella to 'he the property of the deceased and that 'it' s one of the articles stolen from the house. of the deceased on the niat he was killed. • :.fl .. . . • • , .):•' - •.. • •.- • • :?i : • -, •"''t'' -: : • • : . : ': - 3 - PW.3 has identified the umbrella before this court - prosecution exhibit B, He identified the umbrella from a.. nail embedded in the upper part of the:.hardl3, the colnur. of the umbrella, •nd the size of it.. PW.3, howeer,' coul not sy how the stichescarne to be near thebutton of theumbrefla. In his sworn statement the accuset1iat the umbrella is his own prorty, that he bought jt in one of the shops at r1nda for Shs. 20/- in September, 1973, and that he himself nailed the nail to the handle because the handle was' defeótive. He described to the court how he nailed it in, and pointed to a small hole which he said was madQ"by the nail on his first unsuccessful attempt o hummer the naIl into the handle. The accused added that he to Ok that nail from a tyre sardal of his son, and he has produôed the sandal in cOurt. The accused further told the. court that when he bought theiibiel1a ho boaght it together with its sheath whidi sübeuently got torn and he stitched it with thread similar tó'the throadhe used on the umbrella.. I have ha4 occasion tC, examine the umbrella, the sheath, and the sandal. Regarding the.•cattlesyringe, the accused said it was osii property and. that he bo,ght it from Arusha. Regardng the langilanga" thillet fo'nd In hIs house,. the accused said.that he is a peasant, that he gl'ows nuai.e and "langiliga" millet, and that the millet found in his house by police was Is own millet. . Asked about a ilylon string, he said that too was his and that he used to dsO it in measuring the ground wheli he built his houses. The evidence of Martina d/o .Cosrna (DW1 ) who is a wife .ofthe accusedhas•teriafly corrobOrated the story of the accused: person. ':in his final submission, Mr. Mbe:4 2 learned counsel for the defence 1 has conceded that from the evidence there can be no doubt that a man by the name of Mukhenyi Hamuli is dead, and that he died a vaolent death. He also conceded that from the evidence of PW2 and that of the doctor, malice aforethought on the part of those who assaulted the deceased should be inferred. H61submitted, however, that the prosocuiO1 evidence is ; based.entirlybn circumstantial evidence and that thatis based on the doctrine of recent possession. . . With regard to posso 1ssion of 'tlangilara" millet by the accused, learned counsel su.bmittod that that millet was the property of the accused as was the syringe. -t :. -T •:-- -. 4 _1 On'thc qucction of the uinbrolla,'loarnod counsl submit- -tad that the umbrella is a type commonly Jd in shops, and hat whiiJ PW3 has identifiedit Only Y. the nail'ar. its çganerai ap -icaranco, the accusU hs pointed to many identifying marks arri had strongthened his evidence -of identification by producing its sheath and the sandal from which ii.o took out the nail he hummored nto the handle or the Umbrella. He Lurthor submitted that uMbrellas o± this type have ireak h&idlca an3- that it was as pcsiblc for the doceasedtto have fixed : hail to tbo hailo th wou1d'- - aiy ther p-on -thucb. an umbrella. Pin .11y,)learnd counsel submitted that the court should ine,ny casetakeinto considoation r the fact that the umbrella was found in possossion of th"6 1 accusod more than 3 moths after it wa stolen. In his submission the accused nlight well havo been an -innocent receiver. I. cp1y Mr J1Ichpra, learned stato attorney for the Ropublc,aloroncodod that the p r osec u tion?s case is based exclusively on circumstantial evider a. H.ubmitte', however, '-that tho court hould consider the fact that the culprits were i'aed to Munae- vilIage, whore the accusdd' rosides., and that the umbrella was found in-.. the houao of the accused. Referring to the question of iden - ifiction of the uthbrella by PW3, learrd° state attorney submitted that S1iCG itwa flOt PW.3 who fixed -the- nail to- The umbrella, he could not be expected to know. .overything about the umbrella. Referring to the evidence of the defence on theumbrella, the learned state attorney pointed out that the h'ed of thc nail on the umbrella was smaller than the heads of the other nails on the sanda,L and tha -there had been contradictions between the evidence of tIe accused and that of his wife, and • • °, he-.uhmit•ted, the nail on. tha. umbrella dou-d not have come from the: shoe and the accus.ed, and his 'wif must he refer- a diff.órent umbrella. and , nôthis - Mrticulai umbrella. In hp submission, the defence- 8 ,tor at best, an after- thought. i r - Referring toi. the question of nnocent pospession, the learned tao attorney submitted tht that queston dd'not arise here because thoo.aC. Icuscd has claimed to have bought the umbrella and noer. suggeted that he received it innocently or that he bought it second hand. ... . . 5 f lj - - 5 - Aftc ny suinthingüp i the sOsors, all the gentlinen rf asscssors wore -thc irnanious Opinion, that 'ccusod was not guilty of the offence 'They cro of the view that evidence of identificakiLbn ofthe iimhrdia by. PW.3 was inadequate and that the evidence of the syringe and Jngalinga" millet was also inconc1nsive As I told the gentlemen aesesors, where the evidence of the prosecution is e±lusively: circumstantial, as is the casc here, in order to justify an inference of gult, the inculpatory facts must be inapblofiexplanation upon any dther reasonable hypothesis thati ihat of guilt. Tho nature of the circumstantial ovidc'n'co here is basod y on the doctrine of recent possession. The d4octralno f recent possession stetos that a person fcund in possessian of property recently stolen iny be proumed to be the actusl thief or else a guilty receiver. His possession raises also, but loss strongly 2 a farther pre- sumption that the pOssessor wasfurther .connGcted with the crimo that accompanied the theft. 'hose presumpions, however, being presumptions of fact, ar rebuttabl9. What is important is that the poss,ossion must bç rceent. A$ to what :i,s recent enough to make the prosumption'appl.cable will depend on the nature of thc article and -the s - ntus in socieiy of the possessor. If the article is such as easily moves from hand to hid, the .-presumption will be less readily drawn. Equally, the longer the period of possession the weaker the presumption. In the prescnt case the first inculpatory fact is that he foot-prints and traces of millet led to Nunane village, he 4illlage of the accusod. Th econd inculpatory fact is that 'langilanga" millet 48. fbnd in possession of the accused. The nero inculpatory fact is that he was found in posse- s'ion bf anumbrellä ) which PW,3 identified to belong to the deceased,d a syringe. To start with, the more fLcb ±h.t foot-prints and sprinkles O ;Wi.et 1e4 'to Munane village whore the accusedtk resides Oonoiisi.ve. The villeg it sJ:Oifl has several other pôoplo. liviñg there. It would have been different if the foot- prints aryl sprinkl of millet la-ad led to. the house of the accused itself. On thequestion of "langilanga" millet found in the accused's house during the search, PW.5 had categorically told the court that "lgilana" millet is common at Munane village. That being so, it is impossible to challenge the accused's contention . . .. . 6 - 6 - that that millet is his own millet grown in his shamba. On the question of the syringe, this has not been produced in ccurt, lot alone identified.. So the cloim by the accused that he bought it from Arusha stends uncontradicted. The only evidence calling for serious thought is the umbrolic thich was found in the house of the accused. P\J.3 was the only prosecution witñëss who identi f ied the umbrella. He pointed out only one specific identifying mark which is the nail, in the handle of the umbrella. The rest of the descriptions of the umbrella were general. On the other hai., the accused has pointed out th±ee part- icular markwhich enabled him to say that the umbrella ishis property. He has pointed to the nail, and to a small hole which he siid was made by tI-b nail on his first unsuccessful attempt to nail it in the handle. Ho has furthcr pointed to stibohos o -thO button of the umbrella, end has produced in qourt a sheath which he bought together with the umbrella. Not ..Qnlat; hehas produced before the court a sandal from whibh he took out the nail. The result, thoreforo, is that there is acute.conflict H' between the prosecution ani -Uae defence as to the ownership of the umbrella1 and there is evidence t.o upp't both versions, and, if I may say so, the version of the defence sounds far more plausible than that of the prosecution. • '' On these grounds o iully agree with tbe•gentlemen assessors that the evidence here raises no more than more suspicion against the accused. In the result, I am of the opinion that the proseôution.;has failed to prove its case boyondHreasonable doubt against the accused person.. 0 • I accordingly find the accused not gilty of the offence, and I duly acquit him forthwith. He should be released forth- with unless further held in some other lawful connection. • cA1t( ('Zt( B.D. Cipeta,. '• ' .', Ag. Judge DelivOrod in oponcourtàt Singidà /,'his13th day of September, 1976. I • • :"O ipCta 13th September, 1976' • AG. cTtJDGE