19780822 TZHC Tanga

-- - 'POIOAOOOX onqq. S2M £ouow 0T41. 1W OOt oqq. pjq ot ozotz.t eotd v o ,4 $pTp ot toqM OOflOj Oql. P0I 0!1 pO.tOOUtVtOA .&.uerboBqns oq Uo.xeut owo9 ttD •.Cp owes qqq. tzo wttodd ot .so1xi 01. OtLuI oq1t ooctod oq os polaodea sum aossm ciql 0 owus u1x prn ;tzut1dwoo 91qj. jo puuq oq$ woz.j £ozow ot1. PG'q0VOUS lulalloddu otç4 uutj jo oo; ot UT =/oo'awa jo q.uowd ex4j. .toJ .xopuol. oq ot Jo op1rnq £t. pO.A.W 'iim 'e( flnq pTts oi xo uT: qooT jo ss000xd u tr poutzo sist eq ep 'ttzowoeo RUTPPOA uora xo.; TTnq v krAncL Jo osodznd %zoJ '=/oo'sqs 'qo zzEduioo M. LL6t 6 aoqp!.00 ptç ao totssoqj OjuooATnboTrn .ou ST gq. -[Tn9 ;o weld ps oq xeeos1uwt .quop ou w .;o1 Wu I tesuo eql. Jo SOJ Ots. qnozq. W!o 10;; 'qnoq$ ptzooôs uc t1 9-qj tI$TXn Wnwppa 0 q la s; pesodurr eo 1.uos oq popo1d juvEToddu OT. Utfl. UM0tB WE a $u9$edmooux st Tvoddv oq. sstwstp oq. POPtZTW sw4 i q.y 'tZ0.OiEU10O UT TflO3 Btq. 01. ,palveddu £'OU Buq 0H U0WtZOSdWt S0.9 ua&os JO wnurrwrw O. POMOWOB sum OR Puu 003 1U0d O'q4. JO 983 PUB 99 UOT1.O9S Cl. La v aWOO oouetop qpt Saoqqga Jo ozqo a oq. aotd xto apj uo 'eMoxox $0$ua$STRuj4 q.UOPTsoaetj. .iVq poo -p.uoo sun 1.uattedda viqji — :r 'sTs iWDOfl.0 BMaI WO J° I 1°A 91 •d3 opoo IUSd OTJ• . jo ______ pua 5/0 uooTI. tti. Lteqqo :oYzaq (xo1.uoosod jzo) 1.uopuodss :: :: :: U vilqndea oq FrnsaaA • (posnoo Ttrrxo) • WtTddy :: :: :: TPT'S 0/8 tLJJO ( LL61 Jo cc °N 0S3 taUTWTZ (1.JXL 0 O 1.°P4STcI 0401IO)j 1aUTT'tO LL6I do 171 OJI rIVaddV 'IYNINIaO otoicrianr ffJvTIaaav VDV J1V r (.Azl.sTej l.Otx1.sT(r) VIONVI do ILIMOD }IDIH HU kI J - I I •'" 1 .1 Ljj -. / 0(O 2 000 In his reasons of appeal the appellant relics on three grounds namely that he was forced by the Police to plead, guilty, that he was denied the right to defend himself and that the money, shs.2,200/, was actually given to him by the complainant for safe custo&y but, unfortunately, it was stolen from where he kept it, On the face of it all these three grounds sound patently false0 On the first ground it is not impo'rthent not only to observe but also to point out and romind the appellant that, the plea was not before the Police but before a Court of justice, lawfully constituted0 Turning to the second ground, the record of proceedings in the lower Court whose authenticity is not being disputed nor do I have any cause to doubt clearly shows that when the charge was read over to the appellant he replied: "It is true I robbed him of his money shs.2,200/=1" There- after the learned Public Prosecutor gave out the facts to which the appellant responded: "The facts are correct." One wonders the'ef ore what more rights the appellant had to defend himself0 Finally, on the third ground of appeal the story being advanced by the appellant now is not only contrary to but it is also at variance with the one disclosed by the facts to which the appellant unequivocally admitted at the trial. It is now too late in the day f or him to change his story. However, all this said, robbery, put simply, is stealing with force or violence or threat. In so far as, on the facts, the appell- ant took away the money from the complainant against his will and without any claim of right and with the intention of depriving him, complainant, of the money permanently there can be no doubt that he stole the same. The quest t,on that naturally arises, howeve', is what force or violence or threat -th9n did he use? The answer is, on the facts, clearly in the ne€stive. that is to say, none. That being the case the offence of robbery let alone that of robbery with violence which is aggravated robbery was not established by the facts 0 As I know the law merely snatiiing property from a person without admini- stering some force or that on him and running away with it is not robbery. That is what happened in the instant matter, The learned State Ittorney, Wr0 Mwale conceded that all the elements of the offence of robbery, particularly the Violent aspot of it, have not been established, in this case. The conviction cannot therefore be allowed to stand and the same is hereby quashed. However,. as correctly submitted by Mr. Mwale the facts fully establish the lesser offence of theft cortrary to section 265 of the Penal Code, In terms of section 181 of 'he Criminal Procedure Code I substitute therefore a conviction for simple theft0 - 62 - I believe that it is true Dr0 Maganga found that the body had a 12 x 3 x 5 c.m. cut wound on the right axilla which cut axillary blood vessels and fractured the neck of the hulTierus. I accept his opinion that the Deceased died of the cut wound bleeding. It is coirnnon ground that on the material day there was some liquor for sale at the homestead of PW.2 and that all the six Accused were among the customers estimated by PW.3 at around forty. The fateful day was 3rd September, 1976 and the scene was at Kunguru.mwoga Kidogobasi, Kilosa District 0, Morogoro .egion. According to the Prosecution Accused 3 HUS3EIN SAANANE, in the company of the other Accused, placed with one ABDALLAH MWJ-KANJILA an order for shs.21- worth of pombe. He was duly served but he refused to pay until after Mwakanjila had intervened and pointed out that Accused 3 had indeed been served and had not yet paid. Upon that Accused 3 tendered shs.lO/- currrxcy note and said he had merely boon joking. He got his shs.8/- change back and PW.2, the head of the homostead,told iaccused 3 there should be no jokes in business transactions. Witnesses to this al1egcd incident include PW.2 himself and his two daughters PW.3 afore- mentioned and PVY.5 REBECCA KANGA:mILI. According to PW.2, the third Lccused 9 s payment of the shs.21- was followed bya whispered conference among Accused 3 and his companions and Mwekanjila evn- tually being pulled by Accused 4 and being slapped by Accused 3, followed by the others. PW.2 is supported by his son P1.3 OSWALD KANGL1BILI and a you.th who said he was being shaved by PV.3, KiSSIM n1L1YA that when PW8 and LPw.4 intervened they were assaulted by the group. PW.4 pointed. out Accused 4 as being the person who assaulted him and added that Accused 4 even used his wooden shoes, Exhibit 4, to assault him with. Thereafter others joined him but he cannot identify them and, as soon as he kas able to, Kassim ran off Oswald too says he was assaulted by Accused 4 when he went to stop the com- motion. PW.3 too sajs it was Accused 4 who pulled iViwekanjila who was then assaulted by all Accused. ....,.• Lccorcling to P.2 tkiia incideat. was a 1do to two other incidents the last of which ended up by his wife, the Deceased cut 4 beingby LccusedLwith a bilihook. Mter the first incident the Jccusod were chased away by some other customers but they rec.p'- peared, led by i.ccusd 3, when Lccused 4 said that PVi.2 had torr his shirt so he had to pay for it otherwise there would be a fire or a house would be demolished. iccused 4 removed the grass thstch of the house and seized PW.2 b the shirt which peeled off when PW.2 was forced to unbutton it. When PvV.2 2 s daughters &d other people went to PW.2 9 s rescue Lota Lccused 6,kicked Maria P.3! However Maria herself says it was Lota who removed the grass thatch while Lecused 4 it was that kicked her. liebecca supports Maria as to who kicked Maria whereas Oswald supports his father that Maria was kicked by Lota. Uound Three, according to PW.2 was at about 7.00 p.m. when a man called Kagunia cane to collect his bicycle and some oth.r person called out from the road and said that IN.2 was detaining that bicycle. PW.2 replied that he was not detaining any person 9 s bicycle and if that person had his bicycle on i.2s grounds he should go and fetch it. Instead of that person whoever he was, coming, there came the whole group led by Accused 4 and Accused 6, and everyone of theei had a belt and a stick. Wkin 2 asked them what they were after itwas Lccused 6 who repJiod,, saying that they had merely come to converse. 2 asked theie to leave and when they would not pay heed:t PW.2 took out a billhook after telling them he was going to do so, and dragged it on the ground merely so as to frighten them away. Ijota seized P.2 while Accused 4 grabbed the billhook which PW.2 detisted from pulling lest the blade cut Accused 4. The hand holding the bilihook go, and the billhook dropped'; when Accused 6 hit PW.2s hand. When PW.2 had been knocked down aid he was on the groundtho Doceo- sod came to plead with the assailants to stop, Accused. 4 took t.. biflhook and cut the Deceased with it on the right hand and t; deceased fell down. PW.2 claii'isto have seen this very c_. - 64 , PW.9 PHILE1VJON JOHN went to the couple's aid, as did PW.2 1 s daugh- ters,and Philemon had one of his teeth knocked out during the intervention. While the Deceased was prostrate on the ground End injured,lCagunia assaulted her. PW.9 Philemon John said in his evidence that his tOoth was indeed knocked out when he intervened and he says it was Tobi that is Accused 2, who butted him with his head. PW.9 lost one tooth and another one became loose. He produced Exh.8 to show the injury he suffered. Pl.9 says he did not know how the quarrel started but he personally saw Accused 4 grab the bilihook from PW.2 and cut the Deceased with it on the right chest near the armpit. It was after Accused 4 had cut the Deceased and he was trying to disarm Accused 4 that PW.9 was butted by Tobi and he even got cut on the hand. His explanation as to why he did not see any previous quarrel if there had been one was that he had gone off for a while to taste pombe somewhere else. There was also the evidence of PW.lO BLIAM LUTENGANO accordin:: to which although he did not actually see Accused 4 cutting the Deceased he saw the billhook in Accused 4's hands after the Decea- sed had been cut. After the fourth Accused had thrown it down PW,iO picked the bil.hook and it was he who took it to the cell leader, PW.7 HUSSEIN IVIOLOMA. PW.3 too says it was after her father had taken out the bill- hook and dragged it on the ground that he was felled down and assaulted and when the Deceased went to his help and pleaded for peace that Accused 4 cut her with the bilihook. Rebecca too says Accused 4 disarmed the second PW. and cut the Deceased, and that after that is when the Deceased was further assaulted by Kagunia. On oath all the Accused denied being involved in the killing or in any of the incidents as related by the osecution. They all however admitted being at Karigambili's oi a the material day. Accused 1 said he was in the area on a visit from Morogoro and had gone alone to where t4e.l.iqozr was being sold. There he saw • . .. •.. 9/• I • I • 7tpqjr OiT 7OTtTm 4 soctM BTtt VfbT 'SmOtT ue1X 1?ue ;ost'rrtt DOaJ o. poeurna7ssou —pet OtTt UT Pue Wt1 PU etM 0 STdOsd UMOP TT° tqOq iVotq. ptx s -tt Sq tutq POZ199 ji pesnoocr uoth1oxetM 300Ttq 3 TA O Ouleo ptxe egroq OTJq. outç qxttjs 9 6 17 pOSt? OZo ?'Ma eJpios 1J iuo etjq 1tr rnp pue xeto qo posriqe 1ctii. eZtOTOcT .Ot PIflOM OSt1eO9 °31S OTPr TTdS •pUO IrObT[ ;o TMO UO pocTdoq ?'Mci ;TOsuiTr Sq xçqçs si •t7 0 sr 30 7 OTIt[A. A!3 PUC WTTT OUTATOAUT tJOPTOTJ tIC SCM E)XOtfl. qiq )WI- IO VTTPUa3TGMH DUTATOAUT q.UOPTD.UT Sue eas q.OU pip o-I p05flZ07 IaLflO et. ;o Sue ecs 4OU pip ptie ;esttitti Sq uexp U'CT O9 qnoqe qe STqttIC)j PO!LTC Ott UOtTM 'COJ 8tt. UT cT)tTn tIC ttM UTR!3S SCM pue umsTuS 58 Ieçt UT e tI1i. tIeCU1 3tfl. C O1.Ct. qXnoo Otfl. piC fr p051100W tucI ooc qnoqe e 'STxeo OPCTd etfl J0T OH °OSfl007 I8t0 O Sue ees qou pip ott pue Teaxenb xo 9,79TJ icue UT PO1TO/UT ou tem OtJ qCtJ. E3ppC OH -3OT A'pCOITC PCtI CTTue ,tAW 1-Ctt4 Pt —3tJ)0ST patT OT 1OJC SCM ST.fl. qiiq'rITTT pe/iOS OU paTJ OtIM l uoo9qog oq. iceuoui OtTq. PTcI RTCqUOAO OH UITtt peAxeG pet OtJM q0u GA q- OSCO Sue ui esneoeq OSTL, pue 3ILMap Siei SCM osrmoeq cq Seuom Ott S'T oq px 0 H TTCUML\t Sq potxos Sam eij pue equrod —/?5t1S iopiO pçp aq OflX. ST S2Ves pOS'fl007 awed TeL xoqe Gem StJ tn. suoo0x et Pule'TTe pus TaTD 9uTuopuaqe aoRo.iq sTtf LTO STP 0 TIxntt Ott tuettq JO GUC SCM OtJ -"7 ?uTSaS WTLT 01 C paUT0cT OTcTO&d ptIC uoiqotuwoo C SCM OXOtfl, UOttM, *@a9qq. peo -rcT pei et.J r -rsoxcT e pus ]tTTIP STLT UO q.IqU80U00 T0SEXTtT Sq es oq 9T 0 tT 0rO OTtttM tOtfS C 5[U0 X0,j p0$ZO&U00 Ott W0ttM tTT'A T P05 —11007 g PU@TaJ. 5TtI SCM OXOtfl mss OtJ P0St1007 IOl4q 0 STUC OT41 •oipei tt 184C[ et esneoeq pesYlop7 xoqo1q xekmoS s -tn peo -tqou PUP I UI$cT. oPt q110qC Va Oo.eicT ettq- O. -O'q pies pesri00r SOql1trttU 0fl4 tm'qq. 00u1 Ou 103 OIotJq. SA Ott TTe UT TT ttq- SUO00X 0H M0q otq. °tTT q.Ou PTP OTT SC SpXeMXOC UOOS 4°T PU OTTWA eç'q C 5TU9 1O p051100'r S0tt STtt POq.GOa.9 pus -S9- Accused 5 says he did go to the place, with a radio and a bicycle. He drank by himself and the only other Accused he saw there was his own brother Accused 2, and him for only a brief while. He left to go home at about 6.00 p.m., feeling thoroughly drunk. He did not see, or participate in, any quarrel and does not even know Mwakanjila. Accused 6 said he was at Kangambili 9 s for only about forty five m4zixtao from about 5.30 p.m. and by the time he left the place he had not seen any of the other Accused,or witness or participate in any quarrel. There are quite a number of small details some of which would suggest a degree of discord in the Prosecution story. To my mind, however, the important issues stand out in unmistakable relief. The small disharmoies are such as one would reasonably expect in the sort of situation disclosed in this cas. The important things are clear in my mind. I take into account that in court PW.2 could not identify some of the witnesses. He explained that sincc the incident his eyesight has deteriorated especially when he was giving cvi- dence because he was feeling gidd3l, having been pulled from a hos- pital bed only the previous night. He struck me as a simple straight-forward man and I believe his implied assertion tb.at his eyesight was better at the material time than it is now. I have tested 9 him and discovered him to be long-sighted now. In any ôase the Prosecution case does not wholly hinge on the identifi- cantion of the Lccused persons by PW.2. I am satisfied also that he told the truth that he knew only some of the Accused by nemo. It must follow therefore that JOSEPH BONDOPW.l did not get the names of all the Accused from PV.2. There are also differing powers of observations which can contribute to slight differences of details. It was obvious for example that Maria is a lot bettor as a witness than her oldcr sister Hebecca. Such details as to who pulled the grass thatch at which point or which of the fccused were carrying belts, a - 67 - no consequence in the context of this case. I propose to doaI with Lccused 1 and 4 first: Jccused 1 LNTHONY JOHN was at PW. 2 1 s homestead as he hiusali ac1mit. However, the fact that some witnesses say they did not ee him at all and the fact that the few witnesses who mention thorn either implicate him in the general merely, by sayini. Jill iccu.sed persons were there, or hardly attribute a specific incident to him, would appear to give credence to his claim that he waE around for a very short time and was not really in the group of the rest. Kassim does not mention him at all and tohocca is positive,as are Philernon and Lutengano, that they did not sac Jccused 1. Maybe because the i-ccused was now in the area so he was not so easy to identify. The fact still remains, however, thai the evidence against Lccused 1 is weak. I niu.t therefore rospcct- fully disagree with the first Gentleman .issessor who found all the iccased persons Guilty of Murder. I respectfully agree with the second Gentleman .issessor, but for the reasons I have givon rather than his, and find Lccused 1 Not Guilty I accordingly find Lccused 1 JTONY JOHN Not Guilty and accordingly I acquit him. Of the remaining Lccused I want to say at the outset that I have no doubt in my mind that they told lies about their not knowing one another at the material time, and in their assertion that they did not see each other at Mzeo Kangarnbili's that day. From the evidence I am satisfied it is true they were togother, in a group as alleged, that day. I am satisfied. also that there was indeed an incident involving Mwskanjila as alleged, that all the remaining Lccased saw it and participated in it, each in his own way. There is a great deal of evidence that ccused 4 was violent on that day. I am satisfied that what happened was this: La a result of Mwakarijila being assaulted in the circumstances ex;lainu the shirt of Accused 4 got torn in the scuffle to which Lccd. was one of the main architects. Then after the group had boon chased away hey. agreed to come back to rough up the people and. i • • • , • 8/3 68 - possible get PW.2 pay for the shirt merely because he was the pater familias of the homestead whore this 1Qppened. When they came back the third time they intended to cause more trouLle anJ broadly what happened is supported in necessarr detail by all the relevant witnesses. If PW.2 had intended to attack the group ho would not have announced that he was going to take, out the bill-- hook and then d.rag it on the ground as I am satisfied he did. The fourth Jccused told lies in his version and I am not at all impressed by Exh.lo, the PF.3 on him. If he had really been ttc-- ked by a whole group of people while he was lying on the ground after he and PW.2 had fallen down together he would have sustcie1 a lot more serious injuries than he did suffer. His injuries are quite superficial - small bruises on the face, and a small lacere- tion on the right foot which is hardly surprising, considerinthat he had abandoned his shoes. I feel certain that PW.2 did not injure his own wife, the Deceased,by accident. One has to consider the extent of the injury the, Deceed suffered to appreciate that the blow was aimed and intentional. The cut wound severed the blood vessels and the blow was so severe that it fractured th neck of the herus. .1ccused 4s trousers were found to have blood stains the SEeO group as the blood on the piece of wood found on P.2's grounds and I am satisfied .that all this blood came from the Deceased when accused cut her... The blow was deliberate and the weapon lethal. Lccused 4 knew that such an assault would kill the Doca- sed or cause her grievous harm. 1'/lalice Lforethou.ght has been oztab1ihed and I accordingly find iccused 4 EMMANUEL JOHN Guilty of Murder and convict him. Regarding the other four Accu.sed,I have sympathy with the second Gentleman Lssessor who Obviously experienced some diffieaia: in arriving at a. final conclusion. The answer is not quito se easy: These Accused were certainly with Accused 4 who eventLaIly committed Murder and they did participate in scattering terror and roughing up people. The difficulty I have is that before I 0/9 . 0. ... ... 0 can find that these other Lccused are also Guilty of Murder I L:.J be able to sy, from the evidence or by necessary inference ,tho they had a orxon intention with iccused 4 to do what the fourth Accused did, or at least that they must have anticipated and agreed to, what Accused 4 did, oi pOitiYoiy etóO'uraged td do to pa.tioular act., Can I positively say that thei1' camaraderie wont beyond the pressing for the payment of Accused 4s shirt and reached Accused 4s foul deed? With great respect on this I am' not able to agree with the first Gentleman Assessor with Whom, as with the second Gentleman Assessor, I respectfully agreed on the question of Accused 4 9 s guilt. It is necessary to examine, as I have, the role of each of the other Accused, in relationship to the Murder 1 divorcing from this the Mwakanjila incident which preceded, and has no direct causative connection with, the Murder. In the particular circums- tances I could only say that the iccused are Guilty of 'Murder if I found there is evidence that did aid or abet Accused 4. Closely analysing the evidence I era not able to say so. PWO2 says clearly that no, one else apart from Kagunia assaulted the Deceased and he does not support Mari&s claim that, at the time Accused 4 cut the Decea s ed the others assaulted PW.2.. PW.2 himself'who should know better if he was assaulted does not say so. There' is also no sup-- port either for the not-so-impressive witness IebecOa's assertion that Tobi, Lota and Mois also assaulted the Deceased.' There i no doubt that Thobias was one of themoro violent ones"that day and it is certain that he is the one who butted Philemon and knock- ed out his tooth. In the particular c ir c umstances,howevor,this does not make him a party to the actual killing for, on his on evidence, Philomon was butted after the woman had already been injured. I must however guard against drawing the line too thin What Phil'emon was trying to do was to disarm Accused 4, in the circumstances ©bviously so as to facilitate or make easier the fourth Accused's arrest. By doing what he did, Thobias assisted /10 - 70 - iccd.4 so as to escape arrest and consequent punishment. This makes him an accessory after the fact within the meaning of 3octio. 387 of the Penal Code. I accordingly convict him for that0 The conduct of Liccused 3, 5 and 6 that day is most reprehen-.• sile and they, in my view, coiittd some offences, but these are not ones for which under the law they can be punished intis case. I regretfully have to disagree therefore with the first Gentleman issessor. With respect I agree with the second Gentle - man Issessor and find these .tccused, HUSSEIN SJJNNE, JAL Tzico and LOT.tA MOHA1D, Not Guilty and acquit them accordingly. (L. M. MiKAME) JUDGE 22/8/78 Previous Convictions HUKA None for both .ccused. iaiocutus for Lccused 4 IVUG0NGO - I donut have anything to say. iccused 4 - I have nothing to say (L.M. Makame) JUDGE 2 2/8/7 8 SENTENCE You, EIIVUINUEL EDWJRD, stand convicted for Murder, for which Death is the only sentence. You, EMMANUEL EDWJRD, shall sLifor death by Hanging. (L. M. IVIAKATJE) JUDGE 2 22/8/78 1IGHT OF APPEAL to the Court of Appeal explained. JUDGE ....w0. /ll I - 227775 ALLOCUTUS for CCD.2. - Nil. SENTENCE I èentence the 2nd iccused THOBIL MZIGO to imprisonment for three (3) years. (L. lvi. lJKAME) JUDGE 22/0/78 EIGHT OP JPPEAL to the court of Appe czpiaitied. (L • N. A) JtrDGE 22/8/73 22/8/78 Corax -. s 1afore. Jgoment delivered. (L. M. MJECflVIE) JUDGE 22/3/78 issessors thanked and released. (L. N. MJKME) JUDGE Mo r ogor 22nd .August 9 1978. - 7.2 - NOTICE OF APPEAL FORM NO. 30 E.A.C.A. S • (NOTICE OF FIRST APPEAL) IN THE HIGH COURT OF TANZANIA MOROGORO IN THE COURT OF APPEAL AT OAR ES SALAMI CRIMINAL SESSION NO. 45 OF 1977 ORIGINAL CRIMINAL CASE NO. 219 OF 1977 THE REPUBLIC Vs EMANUEL EDWARD • •- Take noticethat EMANUEL EDWARD appeals to the High Court of Appeal against the desition of the Honourable Mr.Justice L.M. MAKAME given at MOROGORO the 22nd day of AUGUST, 1978. Whereby the appellant was convicted on the charge of MURDER C/S 196 P.C. and sentenced to DEATH the appeal is against conviction and sentence. The appellant does not desire to attend the Hearing of the Appeal. (Sgd) ADVOCATE FOR APPELLANT To the Registrar, The High Court, Dar es Salaam. The address for service of the Appellant is:- Central Prison, P.O. Box 921, DOD OMA. Filed the 28th day of August 1978. (Sgd) for REGISTRAR - .• Copy to the Attorney General, Dares Salaam.