19790328 TZHC Dooma

IN THE HIGH COURT OF TANZANIA 1e - A " -0, " "~,,, AT IRINGA ORIG'NAL JURISUICTION (Dorx.MA REGISTRY) CRIMINAL SESSIONS CASE NO. 14 OF 197' -, THE REPUBLIC VERSUS • MATHIAS s/o NZALA • ALDO 5/0 LUDOGA iRE: M U'RD E R c/s 196.bf the Penal Code. J U D G M E N T HIPE. The two accused persons in this case, Mathias Nzala and AldO Ludag&, stand jointly charged with the offence of ,urder c/s 196 of the Penal Code. 'Tbe prcution has alleged that on drabout 3th March, 1975, at' John''Cárner, "Mufindi District, in Iringa Regibn, t he two accused' 'peroi'is jointly and together murdered one Timothy Tito. ''O"accié'd pesons denied the charge., 0'•"1 ••, The evidence adduced by the prcution was that sometime in 1975, 'the deceased Timothy Tito was employed by the Tanzania Liv'scock Marketing Co±poration ad a drive± On '29th March, 175, the deceased was driving alorry from Changarawe are,a,to Iringa. With him was his turn—boy, - on Pacson Kiando (P..W.)0 • •• • On"arrival at Kinyarnmbo vil1,th"deceasedhad,o ' drive in the middle of motor vehicles which .wee "parked on either . si'dd of the road. Suddenly a 'woman' and a child :ied to cross the road0 Th order to avoid running down the twø pedestrians, the • dcse'dbrakedfiercely, and as 6:' re. u t, the vehi.Xe skidded and landod" into, a ditch, Just then a cyclist came from te side bf the',road and as he tried to cross the,road he ramme'd into the side;of the "d'cdased's vehicle and fell down unconscious. e'deceased'afld''--'-- 'p.W.a then caine out of the vehicle to attend tothe syclist. As they did so, from the 'side of 'the ro.ad came cries of He h is killed! He has: killed!" . '' . . . '. •" . • On hearing these cries, .thu deceased an d PW.$ rushes back into the vehicle in a bid to save their: lived. The vehicle, • howev could nt move0 Meanwhile several, people gathered -on bh' 'sides of the motOr vehicle. Apparently being under no misapprehension as to the intention of the crowd,' the deceased an-W.$ jumped out of the v:'hicle andhe dedo.asod,. followed by P.T,i', tarted running toaras a police station. - 4 A large group of peOple of betwYen 2P and 21F O sarted chasing the deceased and eventually caught up with him and started . 4 .-• ' •-• .- • . - ' • " T • ' . - • -• -2- I assaulting him with hands, barnbop sticks and clubs. According to the evidence of eye—witnesses, namely, Kasumuni Dura (P.W.2), Thohias Kahiga (P.w.l) and P,W.ø.,. that. mob used big sticks and some of them were using both hands to wield their weapons and stri]c. the deceasth on the ide of the body and on the head, and th that they continued to do so even after the deceased had tarted to bl.d profuely from a stab Thund inflicted by..an unkn.wn pe±son in th mob. Twoof the .eye-.Wi.thesses,narnely, P,W.]. and P..2 xi to.h.v.e been among the people identifi d. the : to. acced ps r ds who assaiLtd the dec asd. These two witncsses then rushtd to the •ce o rescue the dcLasLd. On arrival at the scne, theSe J witnr_sss saw the two accused p rsons. amongst others, still assaultlng the decas_d. The two w±tñeses and other ten—cell 1 ad rs thea surrounth1 the deceas d so as to pretect hin from his aLtackers. They thL.n put him in a motor vehicle and escorted him to police station and thence to...hspital It was at the hospital that P.W. saw that the d äeased had a stab wound at the back of his body. The deceased died in:hospital that or .the folloing day. The doctor who conduc.td a post—mortem examinationon the body.. of the deceased (P.W03) observed stab wouVnd on theback V a boti the 9th andlOth ribs. The stab wound penetrated into the peritohium space.: The doctor, . howcver, observd no other injuries, Tcithr xtrnalLy or int.rnally, and in his opinion no sticks werq us-ct in assaulting the dLceas.d. In the opinion of the doctor, 1 the cause of death was shock following haemorrhage. P day or two later, he houss of the accused p, rsons w..r sarched. From the houc of the fitst accus d, p0 l4.ce j V s.ia o pair of loriq roucshich had just Ii exvwshd, ni r from Lh house-of th- sLconcccus ci they seizhd a pair o 1-ç9g trousrs which app'ar_d to have blood 1tains TbOSt pa , 7 of long trousers wre snt to the GovernmcVnt Chexn.st, Saleam togeth r with blood samples of tt two àccused persons id that of the dceasd for exaniIhatibne : V - . . . .. .. .• .. - On examination itwas di'scOv red that the pair of long trousrs 1 of the fjrst accisd had no human blood, b? that of the sccohd accsed had human of th . game group -the blood of the decased. . . . . If n his usworn statement, the first a,used 44 that on - tho day in question, on his way home from his place of work, he stoppd at some hduse n.ar the )kus st -md. Shortly after that, he hoard pctQple shouting nearthe. bus stand, and..when-..he looked in d that L1rtion, he saw many people going in the direction pf the bus sand.. HtQ.o decided to go there.. .--. . .. z. Onarrival there, he saw someone, whom he did *ot ow* lying.on tbeground. Shortly afterwards,- M . saw rYiany people t-rwrds, he saw many peopie going farther on iri the -directio& V of John's COrner, but he himself did not go Ehere. When those piopL w.re returning he met them as they were carrying someone whom thy said was thL driv- r of the lorry whith had knocked down th p rson 11in-g on the ground. Thc said drive.r was the$ put in a mocor vohie, and some four or f iv people escorted him to the poI1ó stát1Qn Jie hi mse lU was Vt o ld to rernairthere andput marks on Lh: road to Wfl other vehicles. . V .' E. . ... . After' som'- tim a car came and stopped thCe.' The an who v- id b en knocked by thc v hide ws th 5n put in the1 ar r WhiCh thc:n took him to police station. . - - 3 - Later po1ico...iainu and inquired as to who was the who, had. stabbd the deceased, but the 1st AccusA and others ' "rdsnt there said that they did not know. Police s then took measur..mcnts, and, took away the cyclist's biçy.1. Next .day.s.it was anEaster Sunday, he Went out to enjoy himsclf and didnot somQ back till n:xt morning. He was then told that pQlice. were 1óokg. for hii. He later met them on the road wh.re th:y arrested.him. A c.i.i. .,offi later came carrying the 1st accused's trousers f and when they asked him why he had washed th trousers, he told them that it was because the..p4r of trousers was dirty. In his unsworn statement,. the second accused said that th.j day in quDstion he was on his way honhe from his place of work, he met his young brother. The two then started for home. On th. way, a lorry drove passed from the opposite direction, and shortly after that they heard fierce brakes behind them. When they turned round, they saw that tha lorry had landed in a ditch and a man had f al I .:., im down. . So h and his young brother decid.d o go to the scene, and on arrival there they found many people and could not idntify the man who was lying on the ground. After that they saw p ople bringing a man whom they said was the driver whos. ,. vehicle had knock&d the man lying on the ground The said driver was in serious cond.iti.on Ten—cell l.aders thn .. utth.. man on a vehicle and escorted him to policetation •. .. At about 7 p.m. a cer came and stopped and took the man who had fallen on the groind. . Later police came and took moauremnts at the scene When they asked if anyone had seen persOn whc' had stabbed the driver, the second accused and th or present there denied any knowledge. ..... Next day, which was an Easter Sunday, he left h rAe at 11.00 a.rn. to visit nehboiring areas and rejiirned at pght to' Th that police were looking for They Next morning he then went to police station. , .d him to nme At the police sfatibnä pblidë officer th'.: p rson who had stabbed the deceased. He to he police that -rowd had followed he did not know b cause he did not go where tbr th driver but only assisted at the end ' t' -flcident. .e saw that his clothes When they searched ?m that it was Possibly were stainsd with blo od -- th • deceased driver and the becaus'. he had assiste' cyclist into ye 1C eing evj1ICe, it is clear that the only i - i Sf0 t ° dispu* si- that a man by the name of qu stiu to and tc he died a violent dath. The Time Oflff b. were, herfor, are: who caused his death, WCS Co711tttod? AfbeimyyLrJfljng up to the ,ro gentlemen assessor8, both GVj Of tho ur1ahmous view that they could not accept the of th ey sale and .W.2 bcause they 4 auld not reconcile what h in th: cou,senoened of thetop4. the deceasedad what the doctor found ern assessors With respect, I tenei to agree with the gentlemen that what the doctor found on not at all recc)ncilabl, with what th the body of the deceased is eye—witnesses said. 4 :..: -' th angry iob used the wk-apons with the violcnce If in fct by the eye—witnesses, I cannot s3vhy the dec.aëdthould have sustainc;d only oe,• stab, wourd anL. p, fractue oz brui sos. That bLing S(-), the irreistible conclti&i must be th:.t eith.r:tha eye—wtness.weré ithig or gave.an eggerated acco't of what happened,, or the dotr'condted the pot- mortem eXathination in. a vory prfüntb'y manner. S Whatever was the case, the result is that oneS. cannot rely on the evidence of the .eye—withesses to cmd to any definite finding either, as to what happened to the deceased or as to who took pert in assaulting..the deceased. We can, therefore: only . sp'culeto as towhat ictually happened, and speculation cannot be a basit for aconviction. ' For the foregoing reasons and' in agreem:nt with the gentlemen assessors, I am of the view that the pr.oseution has faiId ho prove its case beyond reasonable doubt. I accordingly find the accusd persons not guilty and I duly acquit them forthwith. They shell be re1 .ied from custody forthwith unless otherwise. lawfully detained. / 41 B. D. CHIPETA. JUDGE '! Delivered in OPen. Court at , this 2$th day of March 1979. B. D. CHIPETA . J'(JDGE . Assessors. thanked and discharged. It - B. D. CHIPETA 28/3/79 '' . .JUDGE . - - S - S.