19780207 TZHC Dodoma 1

IN THE HIGH COURT OP TANZANIA ( AT SINGIDA ORIGINAL JlJHIflICTiON (DODOMA. REGISTRY) CRIMINAL SESSIONS CASE No. 128 OF 1977 TIM RUBLIC: versus 1 • J1Th1ANN] s/o ALLY J1JMA NT AN DU HAN IS I JIThTA. LYANDU ATIANI IDDI NOHAIIED MJI:IBU CHkRGE: Murder c/s 196 of the Penal Code. JUDG N E JONATHAN. J. On the morning of November 15, 1 976 at Niinduruni' a rocr area in the township of Sinida the body of a woman c Jl' 7 7J1JNA i.'/O iiDIKI, a - 3C 17 : ...... was found halfnakod on a low—lying stone outside the ktchen of a pombe shop run by the Urno ja wa Wanawake wa Tanganyika (U.. W • T.). The doctor folling an autopsy found several conthséd -woimis on the head, neck andmi the left breast. Thowall of:the vginl.rifice had been bruised and was bleeding, to suggest she hadbeen sexually ravaged although an examination of vaginal èmear did not reveal any c:z.'..Despite all these injuries the doctor both in his report and in his :orai test5.ziony has howr b&en clear that the death resulted froñ .fl_t s±ranulstion.' This opinion, which c: rMiiy Accept, is supported by the presence. of scratches on the anto±-ior part of the neck and blueness in theluns and in the blood in th heart and thj big blood vssels. :Wcare accordingly satisfied she had net a violent death. Having regard to th? evidence of Pw.6 Sergeant Major JOSEPH SIMON who helped in th investigations her life was. taken in th kitchen and the body dragged out of there. The proscutibn in the information allege that this occurred at thc hands of the four accused. At tho close of the prosecution case, however, the 3rd ac.cued was acquitod OO there was littic or no evidence to coiuiect'hin with the death; As regards the rouaiflin accused the pros ecution case rests. almost wholly on the evidence of Pw.1 and Pw.2 >.both adults in " their early twenties. . According to them they had: that night gone to the pombe. shop to drink. As regards the time > as La many other rcts as will be seen presently., they are hOwevogreatly at tarience with each other. For,.Pw.1 gave 6.00 p.m'.;the tine .of.their arrival there while Pw. 2 astimated it to be 9100 p rn. They appear to have been seated in the room wh':re pombe was being sold. From there leoking through a big window,they c2jm to have seen the accusédnd deceesed together at th. :,, far end of the drinking hail which is juxtaposed with the iombe-seliing room... It was dark butthey are in reement there was ligh - ..burning, Pw..1 saying it: ':as a prssure.amp and Pw.2 1entioriir.g a huric :,.alamp as the Curce of.thelight. . . : . N / / , - - .2 At some stage, te.y say, they wore 'rcuccc. by some fliSG that all was not reil among the accused and the deceased. They say' they heard the first accused ..JThiAN'who, it may be noted, had been a paramor of the deceased, ask for his gallon ofpombe. Accordiugto Pw.1,foflowing this.the first and the fourth accused IDDT MtThU hid held and tak'n her out of the pombe shop and headed,for the kitchen nearly 30paces away, tho; door—way of which faced the same •diroction as the doors of the pombe shop. He did, not mention the 3rd accused as having been in the company of the other accused while with respect to the 2nd accused ho said although he had bçon. piosent he had been no more th an on—looker and he had not v n - ::.eout with the 1 st and 4th accused as they hald the deceased and took her outside. The version of Pw.2 was that the first accused slapped her and then took her outsidQbeing -foflOed'by the 2nd and 4h accused and one Hamisi Fisi. That ic' iii. respect of what happened inside the drinking hail) and I now turn to what trans.pired outside. The two witne:aos are in agree ont thataftor aCccasod was t'kon ou,sido Pw.1 ? toowent outside firstly to release hinself thd"Ocondly, to see what was happening to the deceisod. He sc'ms to have gone past the kitchen and roleased himself on the rocks some 12 paces from the kitche.HC was tr for about 20 minutes during which tine he claims to have seen the first and 4th accused drag tho deoosd out of the kitchen and put her on th stone. Ho however candidly ëdnitted later that he had not recognised the two men to b.c the 1 st and 4th -accused and he had only assumed they must have been the ones thOy bcing the e'sons he had soon: take the 'deceased outside. 'Having seen whathe claims to ha.vC s::en he went back' "to report to Pw.2 and his other colleagues, this preci'eiy as aforestated. Very signifi cantly, however 2 not only conies h-at is whet Pu.1 reported but also ivcsifforent version s to whet he himself saw upon getting the' repOrt of ?w.1 . Pw.1 ;:."ho says, only told them that the four people, including the .1st , 2nd. and 4th accused and Hariisi Fisi were still attacicing the deceased. He then went Outside in the conpeny of the :pombe shop'C night watchman and saw those people attacking her,. Thereafter, he two witnesso "left the pombe shop to go hone only. to C'fl tIO net porning the decea sod had bean killed. To the foregoing may be added the'doctor's evidence of the examination of the accused persons and. 'a report of the Gdvernnent Chemist.. Doctor SALEKWA' (Pw.5) appears to have examined all the four. accused. two days after the discovOry of the body. He,did not observe any recent injuries on the 1 st and 4th accused but he appears to have observed a bruise on the rig1foroarms of the .2nd accused and a bruise on the lower lip and C. scratch on the face of the 3rd accused. He estimated' these injur.ies tobe about three days old. As for the Chmist's:'reiort it ri to the presence of :; ..atozo-', on the d.: -': -- ."t;' of the first acused, it being the proeecution don±entio that thçy h,:.d got there as T. the result of raping the deceased that fatefti night. As I however directed the gep.tlon' n assessors no regard, should ho had to this report s' the prosecution failed to lay a sufficienib basis for it. In particular, thy failed to show from. where and the circumstances in which the ethibits had been seized so a 'to be sure it belongd to the first accused. Be that 'as it nay, the accused's defence supported as it:is by the aOcount wjfe seems to raise d'oubt 'that the spermato: . on those a' " could reasonably b€ attributed - to a lawftl sexual intercaurse with ,his wife on the moruing of Sunday the I 4ti. of Novenbe,r,I 1976. - 3 That thoi:L was the prosecutien case a whole. Each sod in defence gave as unsworn statement putting i.p .:an alibi and is the case of the first accused his wife testified in support that on the relevant night they had slept together sharing the sane bed. The 3rd accused is not said to have b:en present at the - pombo shop on the relevant night and the fact of being found to have recently sustained injuries was not capable of grounding a conviction. He was occordingly accjuitted. I n in agroernen with all the thieo gentlnen assessors that,- th; case against the 2nd acüsed, too, is too slim for a conviction. It was no more t?- that he was present that iiight and that he was found with recent injuries. Ho has not givJn an account of how he sustained thorn but in order to convict the evi once rgainst him has first to cogently point to hi:: gailt. Accordingly, he is acquitted and discharged. nd Coming new to tio 1st accusd th accused the only evigenco against them is that of Pw.1 and Pw 2 but as already pointed out in many important respects in their evidence they are at varionco with each other. In my uegrnent they cannot possibly be both talking the truth on ihose: .;;t.rs and in the welter of those accounts it would certainly bb unsafe to convict. The learned state attorney has however successfully urged all the gcntlornon assessors that Pw.2 appeared to vacillate greatly in his testimony and it should he disregarded altóg ether. I respectfully agvoo ho was demonstrably unrelia11e. Ibw, on the oviCenco of Pw.1 alone the assessors would convict these tie accused.. That a: iT. be evidence of an only eye—witness. In l.wsuch vidonco is capable of sustaining a conviction. In practice, however, r.s I told the assessors, in the absence of cogent corroboration such evidence should be acted on only if the court is clear that the witness is absolutely reliable, that is, that he is not only tolling the truth but also that he cannot possibly have boon nist1.on on the important aspects of his cvidonco. In the present case can I say eith equanimity, that Pw.1 is such witness? To answer the question his attitude at the rqlevrLnt tine and after the incident is relevant. As noted above, that night he wont out of the :poub shop partly to see what the an accused wore doing to the deceased. This I may s.y was nrt U0 act o ppro curiosity; he followed because he suspect harm night result to her. What he then saw, that is th accused. draing her out Ci the kitchen and ç flii hcr on th stone ought certainly to have been greater harm than he had anticipated, and it is not surpri- sing ho reported to his collLagucs s ho clans to ilrVU done. Ought he then to have gone away as h did wiih out first passing wprd to the many other people who were th,re. if for no other reason to give help to the doceaso? On th :axt morning ho loarpt she had be•n killed, but ho wild not report the incidient to anyone in authority until h..: and PWe2 wore arrested rtiout fcir dars later whoreuon,•for the first tine, ta.y macic statements im1icating the accused. This in my judgmen - is a rather puzzling conflict of attitude. I have aince gone out of my way to look at a statement he made to the police on iovonb :r 19 and an additional statement h; made a month Later. Not only do they contradict each other, but so far as concerns the first stat .o,c.nt on a number c: important particulars it differs very significantly from his t..sti- many. In thc end I have come to tb:. concluson that, at best he is not that reliable and at worst he is a ierson with an .-ntcrest of his own to servo in tb-. case. 'in cither •OS, in the absence of co.rroioration, and I see none, it wouJ.i5. ho unsafe to convict,, F.- - 4 In tho rOsult, giving the two rainLiLg ccuscdtho bnofit of doubt, they arc iircby acquittod A wcrd about the location of thpoubo shop.as we saw it It is in a hide—out in a rocky ar a of th., township which is unJJ.t md barely accessiblo to notor raff . Thc set—up. as a whole would also seom to poso IhmJ.-.' h; c?and it cm only be hope that the authoritis will in ti.e act toput things riat. The accused are dis charod. JudgacrLt delivered in op n cOuY thib 7th d'y of Fcbiry 1 978. P. M. J0T.!L-1AN JUD. The assessors arc thraked md iocharged P. N. JON .UJN LTD-;Ø