19760806 TZHC Singida

fr/c. 1 IN THE HIGH CO U RT OF ThNZLNIA AT 8INGIDA. ORIGI.AL JURISDICTION ( DO REGISTRY) 'CRIMIN.L.L SEi SSIONS CISE NO. 49 OF,1972, THE REPUBIJIC r VERSUS MBWALA NJIKU AND 8 OTHERS CHJ.RGEÔ Nurderc/s 16 of tI Penal Code JUDGJNT The eight accused persons ere on P. charge of murder, c/s 196 of the PenalCode. The Ji1ogation is tha oil or pout the 7th dat, of August, 19719 theyof malice aforoth9ught lu.Llod one. Wawa Nudulu sb Ifande, the incident taking place at Pambaa village in Singicla d1trict. With the exception of a few thing&, all the mat3cers in this case arc in sious er dispute. Starting with the important poits which are not in dispute, it certain that one man: called 1d awa Mudulu Ifande is dead. H died on .7/8/71 at .mbaa Siigda.. Ho was brutally done to death in the night.T. evidence of Dr. Kinab6 who examined the dead body, which .sands unchallenged, is that Wawa had sustained sericis: 11e : ad injiies. Those injuries were complatible with direct violence caused by :ething striking his head. -I accept the doctors Opinion that Wawa ah±t by two kinds of, weapons - sharp andblant. There are only two verdicts:.opn to this court in this case guilty ornot guilty of theoffence. PW.1 Nwanaidi Sirba is the prirbpal witness for ther.osecution. If her evidence is to be believed, then nothing will afford the accuscd persons any dëfënce to the charga. , it alldepends on théiew to be taken of her credibility. She 5tatèd before this Ootrt that she saw all the, pcused persons clobbering the deceased persOn on the head and tt the asSault.tQok place in a ro on next to hers. She alleged that she sawthe,accuscd persons taking the deceaed into the room and that she rcbghized all of -thorn as there was moOfls1?-inO. She furthcr aflegcd that she obsorvod the accused porsohs boating I ho deceased through a hole in the partition and that there was a lantern in the room. All the eccused persons have don-ied her allogation. Some have attonptod to point out the reasons which night havo driven her to cook up her story. The first and tho third accused persons claimod that they had broken her gourds and that those. Incidents could have indicated her tocome.:.forward and - 2 tell a false story against them. As for the fil who in fact is her huaband, he wanted this court she has implicated him in this matter simply out O±9SOC, He said that he had just married anc -ther wife - FatunOvo that this had embittered her. If his evidence is to bisy. ' then Shakespear's. memor able .: saying that 'thell hath no fU a woman scorned" would appear quite true. First and foremost, 'it has to be decided whether the deceased was assaulted at the home of the fifth accused. As I have already pointed 'out, that depends, in the last analysis. on the weight to be accorded to the evidence of PW.1 Mwanaidi. Secondly, if the answer to the above question is yes, it has to be determined whether the Eceused persons were present in the room in which the assault took place. -That is a question of identifiation. If they were present in,that room, then I cannot see how they can escape responsibility for the death, under the circumstances, having regard to the doctrine of coum purpose. It was P11.1 's evidence that she saw all of then coming to The house hauling the deceased parson. She said that she w waken up by the commotion and. that she opened the door of her room and stood at the door from where she saw the accused persons entering the next Iom. She claimed that she later saw all the accused parsons inflicting stick blows, on the deceased and hoard the deceased crying distress. Next'; she said, si., saw the accused persons carrying away the deceased on a stretcher and that afterwards the fifth accused came to hori -oom and warned his not to disclosO.whät ,ii,aponod. But for one reason or another, she deemed it proper to tell the police about that incident, As I have already said, the accused. persons denied her allegations.. It can.scarcely bo denied that there was a 'breach between the deceased and the father of the first accused. The: causoof that breach happened way back in 1954, but there is evidence that since then tho deceased and the first accused were not in good terms. That was the evidence, of Njiku Nbwala, the rather of the firstaccused. That could have been a possible motive for the first accused wanting to kill, the deceased. Bu the question is wIether it is tru.e that he did .â,o. It is a fact that the ecoased was found, in a critical condition, lying near his home He: had been severely wounded -and was unconscious.. ..An alarm was raised and the fifth accused was, among. the peoplz, who calle ci at the scene in answer to it. It;is also true that earlier all the accused personshad been -' drinking liquor at the house of the seventh accused. The seiren.h accused offered them that drink in gratitude for the service they had rendered him0 They had helped him to cu.t some poles for a house hewanted to construct. Hoover, each of them claimed thath.e proceeded to his home from thc house of the seventh accused and that ho was not in the company of the people who asaultod the. deceased.. .* In large part and'iecossarlly, the two counsel's winding speeches woro.cl,iroctod towards the crodibility of PW.1 Mwanaidi. Couy- scl for the accused porsons endoavoured to show that PW.1 could, be a ljar. That subrEaission, it soems,"has favourably corunonded 'itself to: the three assessors who heard this case. Itold the assessors; that inthe first place it wouldbe difficult to roc;ogni,se the offonco involvbd 's anything less than murder. -I -puld, address mysol' in similar terms,. Secondly, I told them that if the fatal assault took :place at the house of the fifth accused, then it would be difficult to say that the fifth accusod,was not involved in the crime. As shoii, the .... -.- .. 3.- assessors disbelieved 2W1 and with that, there was no need for then to dolijcrato on the second point. The fundamenta:L quostion in this case and I repeat, is whether PW,1 is a witness of truth 0 After anxious consider- ation, I find that it is not easy for me to discard the urani- mous view of the assess ore' 0 I would réspectifully agree with their opinion th - tt it would be inherently risky to accept and act upon the evidence of PW.10 For one thing, it is believable that this woman bore some grudge against her husband, the fifth accused 0 He h,d just married another wife and according to him, she had alrerdy set out to divorce him. It is possible that she had turned rocontful and become hate filled follbwing that narr:k.ge. For c mother, she has not ben consistent in her story0 She told this court that she saw the accused persons beating the deceased through an aparture. • Now, the existence of that aperture is itsclf doubtful,. She did not mention it to the police - and the fifth, accused has denied that there was such a thing. It is unheJi.-" '.ble that she would have failed to mention it to the poliec. It r'om to no that this was not only a question of improving hor story0 It is tempting to think that she sought, out of ill will, to make her evidence, water tight and thorin licE the dangcr of believing her. Again, she told this court, that there was light from a lantern in the room in which the assault took place. But she had not mentioned it to the police and the fifth accused has told this court that he did not possess a lantorn, For all I can say the fifth accused may have boon truthful,. It seems to mo therefore, that the assessors' reserva- tion about the evido:.ace of PW1 has some basis. With that, I am constrctinod to say that it will be unsafe 'to 'convict the accused persons,ccordingly. I find them not.guil -ty of the offence. They are to bE. sel fr.o forthwith unless they are lawfully hold on other grounds. P:'crn'c.jn court. Mr. Alimwike for the Republic. Mr. Mboz: for the accuod persons. Accused persons in court. D. P. Mapigao 6th August, 1976 JUDGE Certified true copy of the orinal. C. G. Mtenga DISTRICT REGISTRAR (