19770523 TZHC Singida

IC 4, IN THE HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL JURISDICTION (mDOMA REGISTRY) CRIMINAL SESSIONS CASE NO0 103 OF 176 THE REPUBLIC VERSUS • 1. RAMADHANI SENGE @ MANDI 2 • AMINA MANGU Charge: M U R D E R c/s 196 of the Penal Code0 J U D G E M ENT MNZAVAS, J. The two accused, Ramadhani Senge and Amina Mangu who I will, for the sake of brevity, be referring as the first and the second accused, are jointly charged with murder C/S 196 of the Penal Code0 Both accused pleaded not guilty to the charge. The following facts were narrated to the Court, and if I may add, they are not at all in dispute. On 3/12/74 Maimbe.@ Hawa d/o All (PW2) was returning home from Iseluda village where she had gone to look for food when she saw two parcels in front of her. As she was approaching these parcels she heard someone crying in the bush0 On looking in the direction from where the cries were coming from she saw four men. Three of t1em were stooping and the fourth man was standing0 About fifty paces from where the four people were she saw a body lying on the side of the road0 She got scared and hurriedly went back to the house of one Hamisi Ntandu and informed Ntandu's wife, (PW3), what she had seen. Soon after an alarm was raized and villagers came to the scene where they found two dead bodies of African females. The po'ice was informed and the bodies were removed to Singida Government Hospital where post—mortem examinations were performed. Doctor's report (exhibit B) is to the effect that the deceased persons died of haemorrhage and shock as a result of cut wounds on their necks and heads,. The bodies were identified to the doctor by Issack Msaghaa, (P11), as those of Seke d/o Msaghaa and Rahel d/o Yohana, his sister and wife respectively. There is no argument in this case that Seke Msaghaa and Rahel Yohana died a violent death. The difficult question this court has to decide is who is the person or persons responsible for the death of the two ladies. It was the pprosecution case that the two accused are the ones who unlawfully and with malice aforethought caused the death of the deceased persons0 In support of its case four main prosecution witnesses., (PW2 9 PW4..,p PW5 and'PW9). 9 gave evidence. - 2 - As I have already mentioned above, Maimbe (?W2), told the Court that when she looked at the direction the cries were coming from she saw four men - Three of them : bending down and the fourth standing0 It was her testimony that she recognized the man who was standing as Ramadhani Sengwe, the first accused0 The witness said that Ramadhani was wearing a shirt with a "shuk&' tied round his waist and that he was not armed0 Saidi. Mohamed (PW4) 2 proved a difficult witness for the prosecution and, with the permission of the Court he was declared hostile0 The learned state attorney cross- examined him regarding a statement he had givers to the police whose contents were apparently diametrically apposed to his evidence in Court0 Saidi's statement to the police was admitted as exhibit C 11 9 I will, later in my judgement, discuss Saidis evidenc.in more detail0 Juma Mohamed, (PW5), testified that on the night following the death of the two ladies he was in his hut when he heard people knocking at their boma. According to his testimony his elder brothers Saidi (PW4), went out and talked to the people-, The witness also said that he recognized one of the voices of the people as that of the first accused. Ali Mohamed, (PW9), gave more or less similar evidence as Juma, (PW5), but he also said that he heard the first accused saying "I will take them". This the first accused is said to have uttered while he and other people who are not before this Court were in second accused's hut. The witness also told the court..that he heard voice of one s Mwendo Mkuiribo in second a:cuscd's hut. He said he could tell that Nwenio was one of the people in second accuseds hut becauso of Mwondo's characteristic chronic cough. Mwendo Mkumbo is apparently not one of the accused in this case. On being cross-examined by the defence the withess said that he heard the second accused saying that the nocturnal visitors were her guests. After the accused had been explained their rights in defence the first accused chose to give evidence on oath. The second accused decided to offer no defence. In his defence the first accused said that on the day the two ladies met their deaths he was grazing his cattle within his village, Mas€ianga and that he came to larn of the deaths in the evening from his wife when he returned the cattle from grazing. He said that he proceeded to the scene of crime and saW the bodies He denied visiting second home—stead on the night prior to the murders. According to his defence Maimbe's evidence that she had seen him near the dead bodies was lies. It was also his defence that the witnesses (PW5 and P9) told lies to the Court when they said that they heard his voice on the night of 2/12/74 in second accused's hut. In his submission the learned state attorney urged this Court to accept the evidence of Maimbe (PW2), that she had amply identified the first accused as among the four people she saw in the vicinity of the dead bodies. It was argued that Maimbe had known the first accused for a long time and that because she saw the 1st accused in broad daylight the question of mistaken. identification of the first accused by the witness could safely be exciclecl., It was further submitted that the Court should find it as a fact that Juma, (PW5) 1 and Ali 2 (PW9), had recognized first accuseds voice on the nigh of 2/12/74 when he was talking with the 2nd accused, It was finally argued that if the Court believed the evidence tf PW5 and PW9 regarding the 3 said conversation between the accused persons, the second accused could be found guilty of the offence u/s 23 of the Penal Code0 In rebuttal the advocate for the a cused persons argued that Maimbe, (PW2) 9 was not a credible witness because, it was submitted, she gave contradictory stories to the police regarding her identification of the first accused as one of the people vhe had seen in the vicinity of the two dead bodies0 It was further submitted that the Court should take into account the fact that it is only one witness who said she identified the first accused. It was the defence argument that although it was day time, there was, it was argued, evidence that the area the f.ur people were standing was bushy and that because of this it is impossible to exclude the possibility of mistaken identification. In support of this argument the Court was referred to the decision by Biron J, in CHANDE SAIDI v R - DAR CR0 APPLO NO0 216_of 1953_which decision was quotted followed_by this verCourtin the case :ceported in (19 71) H. C. D. 67 In the alternative it was argued that even if the first accused was idehtified as one of the four people in the S vicinity of the bodies, the prosecution had failed to prove that he was there for an unlawful purpose; leave alone the argument. that he committed the offence charged As for the second accused it was argued that there was no evidence connecting her with the deaths of the two ladies. The evidenciary value of Saidi Hamisi's testimony was said to be negligible on the ground that he had turned hostile to the prosecution case0 After my summing up to the gentlemen assessors they were all of the opinion that there was 110 evidence connecting the accused with the offence of murde:: and accordingly found both accuseds not guilty 0 The case for the prosecution turns on the evidence of Maimbe (Pw2) and the three brothers (PW4 7 PW5 and PW9). Maimbe told the Court that she saw and identified the first accused, Ramadhani Sengwe as one of the four people who were near deceased bodies. According to her testimony the first accused was about fifty paces from the body which was lying on the side of the road. She swore that she had known the first accused from her childhood and that she had no doubt at all about her identity of the first accused. As I have already mentioned the defence case was that Maimbe was not a truthful withess. The credibility of a wiimess in a case, whether the matter he or she is testifying uoon is criminal or civil, largely depends on three things The witnesses' knowledge of the facts to which he/she testifies; The witnesses.' disinterc.odness on the matter; and (3) The witnesses' integrity and veracity. Does Maimbes testimony before this Court satisfy the above qualification so as to be accepted as a credible witness? With regard to the first qulification that is her knowledge of the facts in this case, it was pred that she gave a different story to the police regarding her observation on that day. When first interrogated by the police on 4/12/7.4 7 , . - 4_ - she denied seeing anyone near the scene of crime. She did not mention to Hawa, (PW3), that she had seen the first accUsd near the scene Nor did she tall what she saw to her cell—leader or her village chairman who had come to the scene0 It was only a week later and after her arrest that she changed her story and said that she had seen the first accused at the scene 0 Dealing with a similar situation Georges C.J. (as he then was) had this to say in MOHAMED HE1'D KAKOPA V R (1967) 341: (1) "If a witness had previously made a statement contradictory to his testimony at the trial, his testimony should he viewed with great suspicion and should be acted upon only where the witness can offer satisfactory explanation for the change in his story." Maimbe has not in my view offered satisfactory explanation to account for her first story to the police that h she did not see anyone near the scene of crime. Nor did she give a reasonable explanation as to why she did not tell the village authorities or her husband that she had seen the first accused at the scene. This being the position I am far from being satisfied that Mairnbe was •a credible witness. Apparently the judges of fact also did not believe her story in so far as the identity of the first accused was concerned. As for the three brothers' testimony I would first like to deal with the evidence of Saidi Mohamed, (PW4). In his evidence he denied seeing people coming to their home- stead on the night of 2/12/74, leave alone identifying the voice of the first accused. But as I have already mentioned his testimony differed materially with his statement to the police - Exhibit C, in which he narrated in great detail how on the night of 2/12/74 she saw the first accused, Mwenda Mkumbo and one:Amina Nkungu coming to their home- stead and entering second accused's hut. He also says in his statement that she heard the second accused asking the three $ people why they were late and the people replying that they had failed to catch a bus from Iguguno and had to come on foot. After having ben declared a hostile witness he, on cross-examination by the learned state attoney, admitted the contents of exhibit C, but said that he gave that story.to the police under duress. It was his evidence that he was assaulted by the police who forced him to say things he did not see. The witness showed to the Court his deformed left middle finger saying that the deformity was the result of beatings meted to him by the police. As rightly argued by the learned defence counsel the testimony of a hostile witness is of very little weight if any. Dealing with the question of a hostile witness in a caSe originating from this Court th Court of Appeal had this to say in 1WA1NGOSHIGUYE and Another 'R APPL NO. .40/1975 (unreported 'After having declared Shizya a hostile witness, the effect would be that.Shizya was an unreliable witness, whose evidence would not be accepted by court -------. The purpose of having a witness declared hostile by the party which calls him is to discredit him completely, and it follows that nothing Sizya said in court could be accepted against the appellantsttG -5- "Again the statement made by Shizya to the police could not be used as evidence against the appellants That statement could only be used against the maker Shizya, to test his credibility and reliability as a withess. Only evidence given in court by Shizya could be used against the appellant. In Court Shizy's evidence contained nothing to connect the appellants with the alleged crime." In the present case Saidi's evidence is to the effect that he did not see the first accused coming to second accuseds hut - Nor did he hear any conversation between the two accused persons0 There is therefore no evidence, in so far as Saidi's testimony is concerned, connecting the two accused-with the murder of the two ladies. Needless to say that Saidi's testimony that his deformed finger was the result of beatings by the police is palpably false taking into account the evidence of his brother (P) to the effect that it wis he who had bitten Saidi's finger which beqamoi deformed as a result0 This was apparently long before this matter came into existence0 As for the evidence of Juma Mohamed (PW5>:, and Ali Mohamd, (PW9), I do not think they advance the prosecution case any further. Juma was extremely contradictory in his evidence. In examination in chief he said inter alia. While in my house I heard people talking. I did not see the people entering any of our house. I did not see Axnina Mangu going out. I did not see Ainina Mangu talking to the people." On cross-examination by the defence the witness said inter alia: "I heard Ramadhani's voice. Yes I saw Ainina going out. What I told the police is whaf my brother (P,W,4) had told ma' Clearly no court of law worth its name can accept h such evidence as credible. Ali Mohamedi's evidence was in no way better than that of Juma - P,W,1 $ Taking into account the pauà±ty. of the evidence the contradictions in the witnesses testimonies and whet. I would say the half-hearted invéstitionof the cs it is no wonder that all the gentlemen eors came to 7ne conclusion that there was no sufficient evidence in support of the charge of murder against the accused persons. First accused's hearing in the witness box did not at all impress me. He was hesitant and evasine in aswering simple questions tit to him by the learned state attorney. His defence of alibi was in my view a concoted story which has not even a grain of truth in it. But despite this fact the law as it presently stands is that a conviction is based, not on the weakness of the defence case, but on the strength of the prosecution evidence. For the reasons which I have I hope amply demonstrated above the evidence against the accused persons falls for short that required in a Criminal charge. Like the gentlemen assessors I find that the prosecution has failed to prove the charp of murder against the accused and I accordingly find them not guilty of the offence and I order that they be acquitted. /5/77 Sgcl, LS. SINGIDA = Ojare for the Republic. Mbezi for the accused.