19790818 TZHC Dodoma

------------ IN THE HIGH COURT OF TANZAN~A AT -----· DODOMA tiRIGI:.\l.AL JV;RISDICT:::ON (Dodoma Registry) CRIMINAL SESSIONS CASE N0.66 OF 1)7~ •THE REPUBLIC versus .. ~{GHAMBI· S/O_S,H~BUNG 1 1'.I @ StJ-1ILWA CEIBUNG 'J\I • . . ~~-~ Manslaughter c/s 195 of the Penal Code. J U D G ME N T CHI~ETA, J: The ~ccused, NGHAMBI s/o _CHIBUNG..'.AI, stands cl1.arg~dwith the offence of ~anslaughter c/s _195 of the P~nal Code. Thi Republic has_ alleged ,·q1at on O:l: abm~t 2nd ?!1ay, 1976, in Dodoma hegion, the a~~,:: .. ::::::ed un.lawf'ully kiJ.led one HENRY·. S/0 NDAHANia The· accused den~ed the c~arge~ The evidence adduced by the . prosecution is th0.t on or . ;"f'. . ' . about 2nd ~ay~ 1976, there was poMbe at the hous~ cf one ·. . Chibung 1 ai s/o Molwa (pw.,2;;~-~•,ho is·the :father of the accus_ed, and both the d9ceased and the acous~d•wcre pr~sent at that pombe party" A.t· abo.ut 7.00 p~rn" that evening 1 one Christina s/o Juma @ Malecela (PW. 8) who was e co1icubino of°• 'the : deceas·ed, was told by her :,10ther thc:-.t the deceased -:-vas ·at, pw.?,as house and_ 1 ,, wanted PW., 8 to fo.ll0w him there in ·or;ler to co1.1ect pombe for him .• Accompanied by ouP Graco r P-ir-7.; 8 p1;oceeded to PW, s house and arrived t.hore at abot;..t 7,.JO p.mo On arri·val. thore, they did not find th~. decensed~ nnd a ycung girl there showed PW.8 some place whe_re she b.nd seen the :teceasl3·. lying but she c1id not know where he :1act gone<> S•) JP\J., 8 · and Grace started walking ba6k homea On their ·way hom8, they met an ol<l mr:.n called Jackson who . . told them that he ha~ ._· ust met thf: 'decea:~ed~ Farther .on, they met too young men who told· the~,that the~ had just rnet the cieceasec, the.t the deceased ai:-pea:~·ed to be very c·:.:~-cnk, and that he did not even talk to thE"i,:: but ·merely: wave(~ l~is hands to let them give hi.m way,, 0 Q . C, C. ~ C') C\ Q O ~"/2 , . - 2 ""'. About a quarter of a mile from PW.2's hc-us,3, FU.8 and Grace founc"l the deceaserl standing • . When PW.8 c::.Il:::r.~ out to him, the feceased .woul<"1 not answer. When she F(,,;::,t nec.r him, he took h,-.,r ha.n~ in his and led i t to :his. hoe.c'.~ 'i';:,e c1eceased 1 s heac. felt sticky in PW.B's han~, but as i t wc,s cd; :1.i£ht, PW~8 coul(1 not see. what was wrong wi_th the r1eceasoc°'. 1 s t~e:;;c1. So she an(" Grace leci hitn to his father's house ~,rl-1;c;r•3 1 with the / aid of light f~om a lamp, it was observe~ that t~a deceased's entire hea1'WtiS soaked in blood and that h~ had~ ~cun~ on the left ·'si(Je of the head. Although his brother cJ::1c' other people triecl to ask him what had happened, tho decee,sed wotilcl:: not talk. Meanwhile, that same evening+ accorcling to tho evidence of one Wilson Mazengo (P.r-J .4), who is a brother ... in-law of the accused, PW.-4 went to PW.2 1 s house after most p:-;c·,:1.e h~d 1.-eft.: .After drinking a little pombe, the accused ca.llad him outside ancl · took. him behind. the house. The accused t:'.::.0n told him: "Brother-in-law, I have .assaulted someone"• When PW •.4 asked. hi:m 1:. hy he had ass.au! tec1, the p0rson, the accused is allegea to have sai~ that he just ~~~aultedthe person, an<~ that he hit him only oncel PW,4, hc?v•3Ver, c1 ic1 not go to see the person assaulted, and shortly t:'1ereafter Pi:i.i • 4 loft the place for _his home. he never rGport-.ac: to anyone about what the accused is alleged to have toL~~ l,.im until he was called to Police Station. Accorrling to the eTir:3ence of' Pw.2, that S;;.fi,8 3Vening, the accused tol0 him that he he,<-1 assaul te.d someona, s,nd:. that he assaul te~~ the person because that person was· tryin;:( to open the door.leaning to the cattle kraal. One NDJ,.SHO D/0 NGHOSE (PW.l), who is a step-motJ:-1er of the accused, .told the court that next day tho c1.cct;::::;~dtolc her that t_he previous. evening he assaulted someone ;.·r=f.. th·· a stick, end that he assaulted the person because that person was tryin~ to open the. door leading to the cattle 1'-..re.al. Neither Pw.l·nor PW.2 made further inquiry on the matter. Thereafter the. accused left fpr · his villag0 -vf.'.·.. ich is in Kilosa District. On the morning. of the day following the nigt.t o:f the incident, relatives of the deceased repartee to t~a Yard Secretary th1:~t the decease<) had been assaulted· by sor,,e unknown person. They then took the de.cease<i to Buigiri Z{GDliital and thence to Dodoca Government Ho~p~tal where he di~d shortly after' arrival. • • • • • • •·o/J The-Doctor whc con<lucted-an·autopsy on th0 :;ody of'- the deceased observe~ that fhe fetea~ed had a depression O~-t~e ! • ... • ✓ , left . side o,f .·the . s.ca.lp, . ~ . and on opening up the skull, he- . , observed that the deceased had a depression· frc.c·tur_e on the left side of the skuli with a radiun of two inchis. In the. Doctor's opinion, the cause of dea·th of the ~0c_eas0c'. was increased intra cran~al pressure sccon~ary to ~a~morrhage and traume.~ · Immec~iately after receiving the rep9rt of' t:,.e assault on the c' ece2,.sec1.~ the Ward Secretary and' hi~. l-1_ess0.;J.ser started making inquiries as to who was the c1 e.ceased 1 s. ass.s,ilent. But both FtJ. 1 anc! FW.2 cor.ipl,etcly deniec any: kno·wleclgiq, cf the ·matter o · Police then a-re.sted both PtT. l and PW ~2, a~~i. -on.-.interrogation bClth, witnesses again :denic:ic1 any knowledge o-f' .th-a 1::iatte,rjl It W&s not until these two witnesses bad beeh in Fo'J'~i'ce custocty for three days that ~hey told the Pol~ce that_~c6us~~had told them that he h€id assa•.:flter1 som(rnne ori the day ti:2are was J)ombe_ ·• . . . I . ,. . -, . : ·, at their house .. They were then:releaS'ed. Some days later,· the accused 'Ir' ent to the ~~olice Sta_tion at ~t. Dodoma where he was a~reste~. . \ In his unsworn statement in. his def_ence, t:-~3 r:.ccused cenie(~ · hav:'.ng- assaulter! t~e ceceased o_r flllY other person. H,e saiq that .on the day in question: they drank pomb·::. ~'.ui te pe.acef,u,liy .· . . ~ at' HI.2.'s ho\lse~ Two days latEir h~ ~.,i,::r:/c to a catt;t~ auction at-_ ~:11kh,oyo Village, where hit3 par,ents-:b-1-li.w live,. and ~pent two:days there~ ·He then returned to h~s parant 1 s Village, .. and next day, h<~ left fot- ~is · "'·illage in =~-i.losa .· District. il:fter about e. week, he rE:ceivec·: a r~poz--t that Police had inva~e~ ·hii f&ther~s home ~n~•-that he too was.w&ted by Dodoma }olic<:.J. So h'~ carae to Dodoma Police .st~,ticn where he was arrest~<:·~ After my sumring-~p to the twb gentlemen asseacors, they . were una_nimously of tl:e vie_w th&t .the evi,denc0 of' F>vj.,1 1_ PW.2 and PU-.4 c'oulf not be reli'n~~ upon ,rnc that ti~ese witnesses were possibly tryin~to fr~ne up the accused for'-theirown ends~- In their opinion, the a~cµscd is not quitly. It is not in c".isp:ute . that a person . ·by tb.e n;;s-1e of' Henry Ndahani is declcJ, and that he dind a v,iolent ckat~.1~ What is seriously c~.isputed is as to who caused his c1ee:,th. I,,s I tol<' the gentlemen ·assessors. in my sumr.d.ng up, the . . _prosecl,},tion' s case is based e11:tirel_y '?n the·· 0vid::i::::.~s ofthe allegef confessions of the e.ccusec. to PW.1i I?t'i.2 ane: Fw.4. The· accused has impliecU-y rcpucH·ated those - 4 - The law as to the evidential value of' repudir:tedor retracted confessions is now well settled, and tho l(,adi~g 0 . authority on· this. point is . the case of TUwamof .:f• U ganda*. (1967) t ■ A ■ 84. In that c~s~~ tho Court of ~ppea1 for East Africa, ~- .Jnunciated the• law· on this point in the following terms,. at page 91 :· "We would summarize the position thus · - a trial • · . court should accept any c'onfession 'crfr.ich ha~been retracted or repudiated or both retracte~ and repudiated 1 with caution, and must bef'c-r·c, founding a. convic tio•n · 'on such cdnfession be ft.d2.y Sc, tisfied in all the circumstances of the case i~~t· the , . conf~_ss~on is\true. The sar:e standerc~cf' proof is required in all cises and usually ·t:, ~o:uxt wi~)- only act .. on the confession if corro::,orat•c';G irt .. some material particular by indepcnc·,on:t •;)Vidence accept~d by the court• But corro:.:ior2.·tion is .not ne~essary.in law and the court may ~ct on a confessio'n alone if' it. is fully satisf:i,c.Jc: after considering all· the material points and surrounding circumstances that th.e. confession can:.7.ot but be · true 11 • in: tho instarit case, tho crucial point for coccideration is the credibility of PW.l,. Plti.2 and .PW.4, for i t is on the evidence of these three witnesses that one c~n rQsolve the quc·li;tio':n ·whether the alleged confessio~s were. CT ~rore not madu. To this question . . I must now . ..., .. ~ turn. . ,' during; inquiries by the \'iard S~cretary · nnd his Nessongo.r, both nr.1 and_PW.2 completely denied any knowledge cf the assault. When in Police custoc-Jy, they again denied ar1y 1:.no,r.ledge of the matter until on ihe third dny of their captivity. ksked in. cross-exa~ination as to why they decided to nac0 accused, PW.l had this to say: 11 1 told the Police what I told them D-':;;Cc,use I was pregnant and I wanted 'td go homi. I can. lie if I am in trouble so t.hat. I ~m She added: 11 When I told Police that I saw accu:::;:;;d assault deceased· i.t was a ,lie because I w2.s in pai·ns· 11 • ; PW.2 did not make a good showing either. In cross- examination, he :said: we named the accu~ed we ha~, besn put 11 vJhen into a lot of trouble, so I ~ecided.tc mention the accused". From this evidence, I ?.rt1 not persuaded tl":<,t FU.l. and Pil-i.2 can safely be tGken to be truthfu'·1 witnesses. - i.s ;,ms pointed. out by tho gentle~cti assos~o~s,· i t is very possible that theso witnesses named the accused in 6rdo~ to .gain ·. . t~oir o~n freedom or save their 6wn riecks~ ....... . /5 - 5 - With rer:ci.rd to the >evidence of PWo4:e it ·will be recalled alJ_e o:cdly th2.t ~fter · .,_ _r being told by the accused thc::t hG assaulted someone~ F·r.4 made no effor~ to ascertain tho feet, anf, indeed, reported to no one at all in spite of i~ruiries which _were being made in the area by the Ward Secrat2ry ~n( his Messenger. Besides, it is not insignificant th~t this witness was one of th(: last people, if not. the very 1.:-:st parson, to lE:JctVc PW.2's house. In the ordinury course of_ ovcnts suspicion would also ,:.ttach to him. And the renson he gave ~:or not reporting tho matter· to any p1:irson was not e.t &11 convincing: he s.£iid thnt it was because ho wns <'lfraid thc,t t::0 ·e. ccu sed might have come to deny it_ later! In the circumstances, therefore, I am of tho view thnt the accuserl's alleged confessioris Cannot safely fore.the basis of a conviction in tbf1 nbsence of any· independent ccrrcborative·· evidence on a mnterial particuL,,r connecting or tm.1c~in.,g. to connect tho accused· with the commission of tho crime. Is there such indepen~ent corroborative ovi{cnce? rt·was suggesterl by the Republic that the accused·flG~~ 3ut that is not the evi~once on record. The evifcnce of PU.2 is that accused was at home the next day, and that he l~tor left for :Kilosa., The evidence of PW.l similarly indico.toeo t:tc.:t the accused did not f1eeo That does not at all s~seost that the accused fled. Indeed, his subsequent conduct positively suggests that he was not a fugitive of :'. justice, :fer he himself went to Police Station. _In short, there is no independent corroborc:,tiv~ E: vi c1ence to come to the aid-of the.cvirience, which hns boon discredited, of confessions. This being thc·position, I do not think thnt :r..n the circumstances of this case, it wou 1d be safe to :found. a. conviction on the alleged confessions. I woul~ ~greo with their opinions. . Accordingly, a~d with respect to th~ gontlomon essessors~ I, therefore, hold that • the Republic .has failed to prove its case beycn~ roisonable doubt.. I accordingly find the accused not guiJ_t:,~, E.n<:1 I duly acquit him forthwith. He shalJ_ bcJ released :fro.:, cu:::.torcy forthi-ri th unless otherwise lawfully rletained. . IIJJ.f/{dm ·B. D. CFIF13:Tj:., JUDg_;~o Delivered in open court at Dodomr-i this 18th cky of l:.ugust, 1979 • • ·{/IJ,Cu!1~ B., Do CHIPETL, JUDG3.