19790818 TZHC Dodoma 1

IN THE HIGH COURT OF TANZANIA AT DODOMA. )RIGINAL JURISDICT:(ON (Dodoma Registry) CRIMINAL SESSIONS CASE No.66 OF 197 THE REPUBLIC • versus NGHANBI S/0 CHIBUNGtAI @ SAMILWA CEI3UNG'AI. CHPRGL Manslaughter c/s 195 of the Penal Code. JUDGMENT CHIPETA, J: The accused, NGHAMBI s/o CHIBUNAI stands eiiargdwith the offence of !ans1aughter c/s 195 of. thePenal.Code. The Republic has a1c2;ed,that on or about 2nd May, 1976, in Dodoma hegion, thc azezed unlawfully killed one HENRY S/0 NDAHANI. The accused denied the cbarge . The evidence adduced by the. prosecution is that on or about 2nd .May c 1976 there was Doribe at the hOUS; of one Chibung'ai 8/0 Moiwa (PW2vho isth father ofthe accused,. and both the deceased and the acouséd'were present at that pombe party. . .. . ... At about 7.00 pei that evening, one Christina s/o Juma @ Malecela (PW.8) who was F, copcubjn o± the deceased, was told by her iother that the deceased as at PW.s house and..... wanted Pw,8 to follow him there in order to collect ponibe for him. •: . Accompanied bj one Grace, pw8 proceeded to PW • house and arrived there at ahout 730. p.m0 On arrival there they did not find the, deceased, and a young girlthere showed PW.8 Some place where she had seen the deceas. iy.i,.g but she did not know.where he iad gone 0 So PU.8 and Grace started. walking back home0 On their way hcme they met an old man called Jackson who told them that he had: ust met the decea:.ec10 Farther on, they met too young men who told themthat the had just met the deceased, that. the deceased appea::ed to be very àunk, and that he did not even talk to th; but merel wave his hands to let them give him way -2- • About a quarter of. a mile from PW.2 1 s house, P198 and Grace found the deceased standing. When Pw.8 called out to him, the deceased would not answer. When she :Tt near him, he took hr hand in his and led it to his head.' TIe deceased's . head felt sticky in P1,7.8's hand, but as it was at night, PW8 could not see what was wrong with the deceasedis h.ci. So she and Grace led hin to his father's house 'rhor'e, with the aid of light from a lamp, itwas observed that the deceased's entire head ws soaked in blood and that he had t Wound on the left side of the head. 'Although his brother nd other "people tried to ask him what had happened, the deceased wdüld ... ... not talk. eanwhile, that same evening, according to the evidence of one Wilson Mazengo (PV.-), who is a brother-zn-law of the accused, PW.1 went to PW.2 1 s house after most P3011e : J4 lef't, After drinking a little pombe, the accused COiled him outside and took. 'him behind the house. The accused then told him: Iflrothr_jfl_w1 I have assaulted someone". When pW.4 asked him T . hy he had assaulted' the person, the accused is.alleged to have said that he just assaultedthe person, and that he hit him only oncel w,4 9 hc'•'iever, did not go to see the person assaulted, and shortly 'thereafter P.4 loft, the place for his home. he never reported. to anyone about what the accused is alleged to have told lain until he was Called to Police Station. . . According to the evidence of PW.2, that san evening, the' accused told him that he had assaulted someone 1 - andT.th-at he assaulted the person because that person was' trying' to open the door leading to the cattle kraal. . . . One NDLSHO D/oNGHOSE (Pw.l), who isa step-mother of the accused, told the court that next day the acuoedtold her that the previous evening he assaulted someone wth'a stIck, and that he assaulted the person because that person was trying. to open the door leading to the cattle kraal. Neither kW.l' nor •P17.2 made further inquiry on the matter.. Thereafter the accused left for his village 'rhich is in Yilosa District. . . . On the morning, of. the day following the night of the incident, relatives of the deceased reported to the 'ard Secretary that the deceased had been assaultedby sooe unknown person. They then took the dceased to Buigiri ....ozi-tal and' thence to Dodoma Government Hopital where he alec! shortly after' arrival. 3 T .-• The Doctor whc conducted an'autopsy on the body of. the deceased observed' that ffie 'deceased had a ciepre.ssion on-the left, side of-the scalp, and on opening up' the shuli, he observed that the deceased had a depression' fracture on the left side of the skull with a radius of two inchsa In the. Doctor's opinion, the cause of death of the deceas'ad was in.crea'sd intra cranial pressure' secondary to 17-a3morrhage and trauma0, ImEllediately after receiving the report ofthe assault on the c'eceasecl.e the Ward Seor'etary andhisMessener started making inquiries as to who was the. deceased's assailant. But both 1`14.1 and 1'W..2 completely denied any, knowlcigo of the • . . matter 9 •. ' .• .• . - Police then a-'restcd both PW.l and PW.2 9 and-on-interrogation both,, witnesses again denied any'knowledge o"the'matter. It was not until these two witnesses had boeh in P61'i'ce custody for three days that they told the Police that àccuzed.had told them that he had ass'iited someone on the day thre was pombe at their house. They 'were then rêleasod. • Some days later,'the accused v'ent to the police Station at Dodoma where he was a'rested. .•• '' ' In his unsworn statront in his defence, t c-ccused denied having assaulted the deceased or any 'oth.c.r person. He said that on the day in question' they drank pomh'3. cvite peacefully'at' PW.2 1 .s house Two days later h ient to a cattle auction .hukhyo. Village, where his pa±'ents-in-law live,,and spent two days there. ''tie then returned' to his parent's Village, and next d.ay.he left, fori his village in ::i1osa District. JLfter about a week,he receivedTh report that Police had invaded his" father s 'hofle ánd''that he top was .w& ted by Dodoma 1-olico. So he caiee to Dôdoma Police -Station where he Was arreste ' After my sumr ing-up to the two gentlemen assessors, they were unanimously of the view that th evidence of P".l, PW.2 and Pu-.k could not be •eliod upon and that these - 'ritnesses were possibly trying to fricie,up the accused for theirown ends.. In their opinion, the accused is not quitly. It is not in dispute that a, person..'by the name of Henry Ndahani is dead, and that he died a violent c1eat. What is seriously disputed is as to who caused his death. /s I t61( the gentlemen 'assessors in my SUieing up, the prosecution's case is based entirely on the evid-:.ce ofthe allego confessions of the accused to PW., W.2 anc. rw.4. The accused has irnpliedl-y repudiated those "confessions. -4- The law as to the evidential value of repuc1itedor retracted confessions is no well settled, and the leading authority on this point is 'thecáse of Tuwamoi. V. Uganda (1967) E.A. 84. In that cse, the.Court of Lppoal for East Africa.nunciated.thelaw'on this point in the following terms,.at page 91:' "We would summarize the position thus - a trial - court should accept any confession which haboen retracted or repudiated or both retractcd and repudi a ted, with caution, and must he'c-r' founding a convjctiO'n"on such cbnfession be fuiy satisfied in all the circumstances of the case confession istrue. The same stanclE:rci4bf, proof is required in all cases and usually a CoUrt will only act., on the confession if corroT3orat.d in some material particular by independent evidenc' accepted by the court. But corroiorat±cn is not necessary -in law and the court may act on a confession alone if it is fully satic.T"c after considering all' the material points and surrounding circumstances that the,, confession carot but be 'true". In the instant case, the crucial point for co:asideration is the credibility of ?.1, P.2 and P11,7.4 1 for it is on the evidence of these three witnesses that one can r-solve the cuestithi whether the alleged confessions were or were not made. To this question I must now turn. As sttcd aove., during inc'uirios by the iarc Secretary and ris ivi essonge.r, coth PW.1 andF!ci.2 completely denied any knowledge of th2 assault. When 'in POlice custody, they again denied any knowledge of the matter until on the third dy of their captivity. Lsked in . cross-examination as to why they decided to name the accused, PW.l had this to say: "I told the POlice khat I told them b'cause I was pregnantand I wanted te go home. 'I can lie if I am in trouble so t,hat.I am. She added; "When I told Police that I saw accused assault deceased it was a lie because I was in paThs". PW.2 did not make a good showing either. In cross- exarnina-tion, he said: , "When we named the accused we hmfl been put into a lot of trouble, 'so 1 decided- to mention the Fron, this evidence, I P,m not persuaded that 11.1 and Pi.2 can safely be taken to be truthful witnesses. - As was pointed, out by the gentlemen assessors, it is very JpOSClC toat thez'e Witnçgs5 flancd the accused in order to gain t ar own freedom or save their own necks. . - - -, - -5- With re:ard to the evidence of PW.4, it will be recalled allecdly o that after r being told by the accused that he assaulted someone, made no effort: to ascertain tho fact, and, indeed, reported to no one at all in spite of iicuiries which were being made in the area by the Ward Secretary. end his Iessongcr. 3 esides, it is not insignificant that this witness was one of the last people, if not the very l•aot porson,to leave P.2's house. ifl the ordinary course of events suspicion would also ttach to him. And the reason he gave for not reporting the matter to any person was not at all convincing: he said that it was because he was afraid that the accused might have come to deny it later! In the circumstances, therefore, I am of the view that the alleged confessions cannot safely form the basis of 'a conviction in the absence of any independent corroborative eyidence on a material particular connecting or tending to connect the accused with 'the commission of the crime. Is there such independent corroborative evidence? It was Suggested by the Republic that the accused'flocl. Fut that is not the evidence on record. The evidence of Pf.2 is that accused was at home the next day, and that ho later left for hilosa., The evidence of PW.l similarly indicated, that the accused did not flee That does not at all sgoot that the accused fled. Indeed, his subsequent conduct positively suggests that he was not a fugitive of justice, for he himself went to Police Station. In short, there is no independent corroborative E;viclence to come to the aid.of the evidence, which has boon discredited, of confessions. This being theposition, I do not think that in the circumstances of this case, it would be safe to found.a Conviction on the alleged confessions. Accordingly, and with respect to the gentlemen assessors., I would agree with their opinions. I, .therofore hold that the Republic ,has failed to prove its case beyond rosonable d.oubt I accordingly find the accused not guilty, and I duly acquit him forthwith. H0 shall be released from. cuetody forthwith unless otherwise lawfully detained. B. D. CEITA, JUDGE. Delivered in open court at Dodorna this 13th clay of August, 1 979- B. D. CHIPETI:., JUDGE.