19771027 TZHC Singida

:n,- ~ ,l:UGH ~ .OF TAN ZAN IA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NOo 76 OF 1977 THE REPUBLIC VERSUS PHILLEMON HUSSEN HAMISI MDABI CHARGE: MUD ER c/s 1~6 of the Penal Code JUDGMENT CHIPETA, J. ' . The accused in this case, Phillemoh s/o Hosea stands chGr02d with the offence ~f murder c/s 196 of 'th~ Penal Code. The -4-':~". Republic has alleged that•on or about 7tl} October, 1975, in Singida Regicn, the accu,ed murdered one Gidamuguja s/o Momoya. The a,:cused denied the charge·. The prosecution's evidence is to the effect that on or about 7/10i7s, one Enos brewed pomJ?e· for people who had cut poles for constructin~ his hous2. Although only about 18 people had taken part in cutting the poles, V•=.ry many otl1<:':r peopL2! w.::nt to the pombe party, and it w,~uld appear that some of it was for sale. Present at the pombe party were Wanyirarnba and Barabaigs, and they all sat in various groups. Those people who had taken part in cutting th•~ poles, apparently all of them Wanyiranba, W,:re giv,.::n thP-ir otm pombe some of which was in a pot. These p~ople were dr:i.nking in their mm group some 70 paces from the rest of the peopleo At about 31oOO p.m. or 4.00 p.m. a dispute· arose ov,:.r the. pot of pombeo The B<irabaigs want~d tc• partake in the dr nkinrJ of the ·pombe which had b en given to the Wanyiramba wi10 had taken part in cuttin,:r the pol(~S, while the latter were . trying to restrain the form .r .from doing so. There was a ·):lhysic.:rl struggle betw:Jen the two groups for posst:ssion of the pot. The Wanyiramb.:i were trying to tak,~ the pot into the house while the Barabaigs were trying to take it away from the t~anyiranib :1. . The struggle over the pot worri,_,ct the ownc~r of the pot cine Wande<]e d/o Malula (PoW.3) who then rushed to the sc211e of the strug']le in order to take the pot away lest it be broken. AS P.W.3 stooped to pick up the pot, th£~ deceased, who was c Barabaig, struck P. w. 3 with a stick on the left side of the h0!ad n . :: '~.r the ear. As a result of that blow, P.Wo3, who is a Nyiramba by 4'tribe, fell down unconscious and was apparently t:1k,·m for dead. t'~reupon th:J accus1-=d pick(.,d up a piece of wood, apparently firewood, and struck the deceased on the left side of the head ab.eve the 2ar just as the dece::1sed was preparing to strike P.W.3 again. As a result of th -t singhi blow, the deceasf.~d fell down and never stood up again. ••o •· 'I, .. ,. - ·2 From that mom➔ nt; or at about thTt time~ the Wanyira.'"'.lha and Barabaigs sturt~d fighting on-~ another. on tribal basis with complete aband.on. · People ran ~out eithr-!r iri flight ·or as they· fought. · · After the decc-:?ased had fallen down, one ·Hamisi s/o Mdabi, a. Nyirarnba by° trib.:~, and who wcis jointly charged with the ciccused but has since dit=d in _remand prison, also picked up.; piece of wood and struck the deceased with it as the deceased lay spr,:itiluct on the grotindo In turn som0 Barabaigs assaulted the') atc~seq and Hamisi and at· le as t thr...,e oth•!r p_'Jlople. The Wariyiramba ,:hen took th'.iir wounded in the house or Enos, no doubt to save them from furth,:r assaults from the Barabaigs .. v Eventucilly, apparently aft-,.,r tho:= Wanyirurnba hu.d run away'., or baricad2d :::hemsel ves inside Enos I s hous~ ,. the Barabaigs olso left ih'7! seen-.; 1,: :win<J the: dt?C~A.30!d still lying on tht:J ground .. Lat.,,r, howev2r, they return ·d and carri-!d away _the dead body ot" hu dt:!Ce ased Who had di<:?d at the scene, and took it to his hous.1 where police found it next morning u News of the fight re.1ch,=~d the police who W(.mt to th2 sect:.: that. s,1me evening, and on inform;:ition r8cei ved, they arr~sted th~ : accused and Hami si, and t .ok them -md oth\·r injured persons to · Iambi hospitcil. Next day police took the dead body to th;;;: h,;spit.:11 where Oro Namilikua (PW2) c0nduct,:d a post-mortem examinD.tion on the body of :.he dec•a::ased o As a nisult of his e;~amination P.W.2 observed the follow:i.nr, injuri-::s: (l')"' a· 4 11 • bSrig irreg.-la.i: cut wound".'. on; the V~ft 1s1cl~ 6:C . .. the h.:ad 'above th;; car ~xteitding 'down to the·:boni~· resulting in u cornminuted frac:tttre of the temporal hon~ and. bl:>eding in the epidur:i ·,md subdura, thus, causing compression of the brain tissu,.:·; (2) two punctur-~d wounds on the l.;ft cheek and· a fracture of th~ ch-ek bone; (3j a 4 11 long but sup~rfic.fai wound·on··i:hc· region beloW' the l,~ft <:!or; ('1-)' a two-inch lohg_ wouncf on fh~ ·left elbow; urid ( 5) sup•~rficL:il bruis~ s 011 the· left· shuuldet', left side of the ba_ck-,. ti,e· right scapula and V~ft iliac crest~ P.W.2 then "·ppined th·.t the de.:ith of the deceased was due tb c~rebr;:il ha~morrhaqe as· a re stilt. of severe· hi!ad injury~ He furth•.:r opined that th,; fatal ·injury was that wriich was inflicted 0n th2 L:ft sido= of the h,i ~d above the ear, ahd thut a h·· avy bltint w2apon Wu.$ ·used "to cause those injuricSo .. : HH. ·could not' say, ·how0v2r ~ 1,h;.;th,ir . . -~i:.d :..ot say,•~,-,•,-·~··:~{• wh".~ _·-:- t~os~ injurii...?S were·. causr~d by ~n•.~ or more blbWSo .. ' . . In his un$Worn stcitemt~.tit; ths; acr:us&d deni.:ld halting asi:niult,·~d the dec,:,ased of" aiiy ·oth,~r pc!rson, and added that on th,·1 c~.ntrary some Barabaig a:·;saulted him as he '-:lent to resc~ P.t<l.3 To support his all~ga.tion that h-~ w.,.s assa1,1ited, · the defence· produced a PoF.'3 which shows that the a ,cused. susta· ned injuries. His 9 Lec_pti on th :1t he n-~v-,r assaul tP-d anyone is' supported by the cvictenc,~ of h.is moth·jr · (D. W.2). .. . . ' : In his f:;_nal supmissic;>n, Mro Mbi::!Zi, l~,arned couns :1 for the defence, submi tt~d that al t11ough th,➔ killing took pl.ac<: in ·. broad daylight,. the~· ~.\.lrrounding ,circu~st~ti~.'.,!IIG!-!'.'e' npt ~q..v9urQ.bl0· for P~Wof to correctly identify th2 p :rson ·who struck.,the f.:i.tal blow ·in th.~t P.W.1 was 49 ·paces fr9m th~ seen~, th·:i.t :th-irJ WuS a commotion· both during the struqgle for th~ pbt· ,md a.ft,~r J?.W.3 had b n a-ssa.ult~d and th,! resultant fight b2tween th•.:? two tribes which suggests, th ·:·t _, the whole pla.ce ,Ja_s sw.ai:;-fuing wit~ moving ;,oc1i~s .. In his vi,·w, ·th,~ circumstance~ su-Jgest a .p,~.is,)riabl~ possil;,ility ;; th3.t' P.W.l ts. yi,')W WuS ubstruct:ed and so coqld h,l'f~:i m3,dt:J an honsa'S"C: :_ mistake in 'his id,mtJ.fic,·1tiono · ·· · · -··-3 - Learned counsel submitted thut if the court beli-..::v12d thn·;_ P.Wol did in fu.ct s e th,., accus,"d strike the deceased on his h..:ad, it should hold tht,t it is not c,,rtu.in who caused the f :1.tal injuries, in which ca.;e the accusf,d would only be guilty of assault, unle;;s th," prosecution proved common intention w1,ich, in his submission, tht, pros,::cution h.1d faiL-id tc doo He wont on to submit th.it if +:he court finds th,:it it was ·i:he accus d who inflicted th,i fato.l injury, th,-, killing must have b ,,,n don._:; in defenc"' of Pow. 3 or in defence of self o on th2 qu stion •)f th,= "vidence (;f P.W.l, Mr. Mchoru, L:,,rn,,d stat,~ 1 :torn·cy, submit·1:.ed th.-,.t PoW.l h 1d o.mpli:~ time u.nd opportunity to s e the accus.cd because (1) the incid~nt happd1,~d in bn ad daylight, (2) he kne:~w the accused b,:for;;;, and (3) th,st th: actual cuntmot:i.on stcirb!d after dece c1sed h 1d struck P. W• .3. On th;.: qu,.~sticn o.s tu who inflicted the fatal injury, tik L.arni::•d state attcrns2y invib.,d th,, cuurt to accept the evickncl: of P.W.l un this point, which is sup11ort1:2d by the e·✓idence of "i:11.:.: doctor' th ,t the cv:CUS':.:d hit the d,~ceased ,,n thQ la:ft side of ch,:.; h· :id above th.~ L·ft ~-:ir, ,md so hold that it is the accus:.,cl who co.used the fc:ital injury. H,~ went <in to submit th 1t ,:ven if th.' court were to Jwlc.l th,,t it h-.1d not b en proved dS to who caused th,_e fatal injury, froL all the surroun ling circumstances the court s1, 1.~l,: hold th iJ.t thu.-,-" was common i.nt8ntie,n. on th~ qu.,st-1.on of Sf.:lf-defence, leo.rn<'.'d state atto.rncy si..:bmi tted th.~.t self-defence did not aristi b,,cause the a ·'.cus,.:d did nc,t do anything tu o.void usinq violence, th ,t it w2s not ubsolutcly necessary for him to us~ viol,:mce in the circumstances, und th::it in any case, the ':°orce us1..,d and the n.-,ture of tht-.: W(:apon w::s not .t.·1:, a sen able o Aft,cr my summing up to the gentlemen ass 'Ssors, the first <J,:ntlem,·.n ass~::3sor f,..,und the accus =d not guilty of any o::'£1.:=nce b,.-c::ius,~ h,, was not satis:,:h'd th :tt Po W. l correctly identifi the person who ass;:mlt-.•d the d •:C8:1s~d in vi,,w of tht~ long disi:cnc,: from which h = saw the fight ,tnd in vi,:!W of the fact th::it th ·:rG were many people o Ti1: second gentleman ass•c:Ssor, on :h,~ o'::h,:r h~ind, o.cccpt. tht: evid~ncc of P.W.l .::md found as a f.)ct th :t it was th(-:: .:iccusdl' wh0 kill,-::d the d,ccea:,ed, but that he did not do so deliberect:,lyo He then founJ tht., ciccused guilty of m~mslawJhh,ro On the evid2nce, th :re can be no dispute, th-:it a p :rscn by th,, nam2 of Gi, YU•JUj ..t s/o Momaya is ckad, cmd th:1t he died a vioLm t j ~uth. Th,, t.·nly qu,=stions are as to who c::i.us,~d his d:..,:rth, and wheth,=r the killing amount.,d to murder, manslo.ughL:r, assm1l t or no offenc~ at all. As I told the gentl,,men a.SS•.~c,sors, the pros2cution•s Gvidence 21s to who ass.:rnlt,::!d the deceas<:!d is th.1t of a singl2 witness - PoW.l There are numerous authorities for tht~ proposition th,t subject to well-known exceptions, a f.:i.ct m:::iy bG prov,"d by th,,: testimony of a single wi tn,>.ss. Howev•~r, 11hc::ro -i:ht', t~e is evid•·?nce of u sing l;_; witness rcsp'",ctinCJ identifico.tion, th-.re is n 'ed to test such evidence with the gn,atest ,~: :,: espl=ci,-,.lly wh.:.:n it is known th it the conditions f::.wour.ng c:i ccrr,:ct id:,ntification were difficulL In such circumst.-mr.:es wh 1t is n2ed,,d is othGr ;.;vid,,;nce, direct or circumstantial, pointing to the guilt, from which a tri<1l court can rc.:,:1sonably cunclude th::. t 1 the evidenc2 of idc:n tific:.1tiun, al though ba.,ed on the testimony of a s ngle wi tne3s, ccin safely be accepted .::1s f~ee from the possibility of error. • •• ;~ 1 .... ,... --· 4 Hav_ing s,,en and h,-,ard PoWol as he g::i.ve evid,~nce, I am in nc doubt nt all tho.t he is c1 truthful wi tnt~ ss who de scribed wh,-:i.t he saw or what h," honi-'.stly b,~lieved h,~ st\Wo To th 1t exb:nt, th.::ref · I resp,;ctfully agr~e with the secund gentlemnn assl:ssor th,1t P.W.l Wu.s not in any wo.y trying to frame th.::: accus =d o 0 That, howev,,r, dcx,s not r2S<)l,,e the qutc,stion cF correct iden tific.:1tiono A p,,rson mo.y qui tc innoccmtly give o.n account of 1r1h 1t h, bclic:~ves h,.; s lW, and yet bE~ quite mistakcno The ne;xt questiun to b,l cunsidered 1 th•":r.=fore I is wheth,,r PoWol, ulth0u9l1 truthful, could re asono.bly have b·:,.m mistaken in the circurnstc:cncc s th3t µrsvail,d at th2 sceneo It cun:1ot be gainsaid th :,t tht:: incid,2nt h;:i.pp ..,n<~d in bro:::( do.y-;< und : PoWol knew the accus,,d b d~oreo Ind,::Gd he is CL:cus:.:cJ. tr; brcther-in-L.1wo The R,:public furth:.~r 3.rgu,,d th,1t P,.vl.l must hcrvc.; correctly id•cnU.fi-,.:d th,! ::iccusecl .:md must ha.ve s-.~en on which p,:1.rt v' th~ deceas.:d I s h. ,1d uccused I s l;>low Lmded b:)cause th2 fight Jir1 not break out till o.ft2r the dece 1ss::d h:1d struck PoWo 3o Wh,oth::r th :.d: :1.;:] so or not can cmly b,: di scov•.'rcd frum a clos,.: exc1min,:1tion uf <1c cvid2nce of PoWol and P.W.3. To sturt with, P.W.,l ,"lnd P.W.3 expru ;sly Su.id th ,t th-::rc w2re very many peopl,:! t1t th"-' sc~ne .J.nd had st:irt,,!d drinkinq since morningo Th-:: physical stru<Jgle for the pot was b t ! :('.!n cne qn.:up c1nd anoth ,r, possibly C1ll of whom wc,re not sober by th.::it hour. Th·.:: struggle, th~re:fore, could not h,we· b,,en a p.,aceful onc. It is true: tho.t the fighting w:1s sparked off by th ..:: ,"lssault on P.W.3 by the decea,c,do But is it sc:1fe to say th:·1t th.,rc ... afb:::r th,;:; s..::qu,mcc ,of events cccurred in th,, mo.nn ,r in wliich PoW.l d-2scrib,,d th•.::m? This is wh,:it PoWol s,1id in examin,::1tion - in-d1i'""f on this point: "Then I s,1w many peoph~ moving the pot from one pL:cc<::: to anoth,:r. DEJC:;::i.lscd w:1s also p:ces,:nt. Wh2n they were n , :1r the house, the wom:m, No.mulul · , w:.is hit by th,.: d,~cec1st"d, and sh . ~ fell down. Then PhilL,,i,L'.~ hit tlv:! d·2c as,2d on th,~ l,::ft side of th(= h Cl.do Th(~re were many people involved .i.n thE.: fight. 11 In cross-examination Lm this point th,, witn.,ss h ,d this ·t::, suy: 11 Th,'r.::, were very m;:iny p;.: )ple o 1 H.::.: invi t,,d 18. But rna'1y ·othe.t' people cam,,o I carn1ot soy the numb,,ro Wh.-m the wom,m was hit I w2s about 49 p,:1Ct:!S o:v10.y. The \1Janyir2u:1b,1 were aninoyed aftc.!r tht:! womcm wc1s struck. Th0y pick2d up sticks and st,:irt . ,d fighting ri0ht th.2r,:.: o r:..: l/Ju.S a battle be-~"!en Wanyir-1rnbc1 c:md B .,rabaigso Oth-~,rs ran c1w,:iy c '1'hos,3 who did not run a•Jay took part in tho fight. 11 Th1..: witness u•i'.d,2d: 11 P.,oph: wi2re falling down thereo It w,,s ordin,-:i.ry dust, not lik...; dust st:Lrr :~d by animals. As th,2y us.ed to mo'✓e about I cannot know who hit ,:.,:_. n I know Gwadida Joori o He was involv ,cl in '.::h0 fi(JJ-d::n I cannot say whom h,2 hit or by w,1om he w:1s hito Th .. r,, vr~s cCJnfusion." - 5 - Furth.2r on irt cross-,xamination this same wi tn,s ss s.:2J: 11 Betw..:en. us and wh,::re the woman and the dec,,3.s~d w0n~, p~opl(: us,..:d to moV,l about as ths2y fcu<Jht at r;1ndom, cv. . m as Phill,.!mon hit the d-,ce::i.s,~dc!' From th-:: frJreg,.in<] :~viJ . !nCE: of P.Wal, the picture th::t (::m-2rges is th ,t th ,re was commotion both b. for ..: th:· actu~l fiqhi:iillJ brokt= cut as w,.=11 c1s wtH:n th,i fr •~-for-all fight startedo To- this 0vi,h~nce w-2 must udd th~:: fact th,1t PoWol w:1s not t1t the spot wh.)r<~ the figh tin,J t ok plnc,~, but scm= 4-9 pac;:s away with pt::opl-:.: moving about b,..!tW<.:i.:n him .md th,~ combatzmts, ei th-ir in flight or ns they fought with complet~ abandon.· CiJJl it b,, said, ~:h,:rcfore th3.t the~ circurnst.1.nc-.:!S •..;~,r..:; so favuur.3bll~ f,>r 'a corn~ct ids!ntific:ition ns to l,'.ave no room fc,r th,~ possibility of ,:m 0rror by PcW .. l '? In my consid,,reO · ~:!hew,. and on thi.: .:vi<.L..:nc ..: of P.W.l alunc, · it would not b,1 safe to hold that th,..!re w '.S no r,~·ls0nablt2 possibility of •.:rror by the witn::ss. Th,= qu,.~sti0n th .t should now b,:: cunsid,.ired is wh<,th,~r th...:t· · . is oth2r ,vLl . ~ncc, direct or circurnstantio.l, point inc; to guilt from which this court can r~iason,1bly conclude th ,t th 2 ,,vid,~nc....; of id<;ntific::itic,n, althc,ugh b.,sed on the t•~stimuny of PoWol nlon..:, c:m safely b1... ;:icc0pt,:d o.s fr.,,:-= from the possibility of error .. On this point the R,~public submitti~d th.1t PoWol 1 s cvid,;,n th:.t thi= a,::cus...;d struck th,: decens,.:d on th.:, l(•ft sid~ of th.:, h .;.Kl (~bcve thr; · 1r 9 .J.n ..l th ·1t PoWo3 was struck by th....: c.lecei:1s-..:d on th ..! 1 1-..:,ft side of ·ch0 h..· ad h cs b ·,m corroborab~d by the -:?vid,..:nce of ·i.:h,, ck·ctor and PoW.3, n~sp •ctivelyo With gr2 ..1t resp,:ct, I find nothing in th.: doctor's evid,]nce which SU<Jqest.s .J..S to which injury was caus:.,d by th0 c.iccw;-,:do All the serious injuri-.:s on th..:< d,"c....:C\,:.: wc:re confin.;d to ,_the left sid,:! t)f tht.i hendo Since th re is c..bundant 2vid,~nc0 th,.1t Harnisi struck' the: dece.:i.sed with u. piece o:i: wcod, how is on12 nbl~ to s.::1y th-:l.t a particul -ir injury w2.s cau,;~,c.1 by th0 accus2da And even if we were tCJ s.:iy th,~~t PoWol corn,ctly S:J.W th:c:: 1urt on u:·,ich th,1 blow 1 Jri.i,:d, is it n,.,.sc-nilbl""' to s.:1y ·ch~.: . ~ th=:it corroborat,"s PoWol•s evidence th1t th-., nccuscd is th~} ,,n . ..: who struck th-::• dcc00.s.~d'? I am not p<.ersuad-~d th.it th....: 12videncc of PoWo 3 or th.1.t' cf the duct or lli.tiks the u.ccus ;d with th~ QSSilUlt on th~ U·..lC~u.S<::,do tn .J.11 th2 circumstu.nces, th ~ref ore, I nm c,)nstr;:iin ,d t,· held th tt it cunnot r~,"lSt>nably b-2 Suid th tt th. r1= is any t,Vi'-1.:.~nC~!, direct or circumstancial which corruborub.:s th,~ l!Vid,mc12 o:f PoW.l., That b,,dng so, in vL:w of my finding th 1t it \vould not b,,i s:1f,? to hold th.1t th.:;re w;_1s no r,-~;1sunablc~ possibility of error by PoW.,1 1 cu,: since it is ·for the pros~cution to prove its case b(c~y,md rc,:1sonc1.bl0 d0ubt, I holc.1, in agre.::rnEmt ·with th~ first g:intl,~man ass...::ssor, that the evid;::nc"" of iden tific.:iti on is iCsu . ficient to prt)vc th· ..,: it is th"' a.·.cused who .:.1ss:1ul tecl th~ d,~c,iased o On tht..!SG grcunds, I am cf ':h,., opinion th·1t the µroscc.uti ... :, has failed to prove its cuse bey:.md reas<;_nabl-..: doubt beyond re ,:1sono..blc~ duubt nq ::I.inst tht: accuscu o I th,:1r~f or.2 find th~ c1.ccus,. · not guilty, mid I: duly acquit-,him forthwitho The accust:d must b~ releas8d from custody forth1~lth ,mL:s.s oth,,rwise Liwfully d2tainud. //{.. ( ·' . j . ~- i ( /·/ /( ,' · 'y/ I· • (' • I .•. I. ' ; .. : . I('.> f '. BcD. CHIPETA JUDGE