19790327 TZHC Dodoma 1

IN THE HIGH COURT OF TANZANIA AT IRINGi ORIGINAL JURISDICTION (ODOMA REGISTRY) . CRIMINAL SESSIONS CASE NO, 8 OF 1977 • . THE REPUBLIC VERSUS DAUDI s/' PACHANGA CHARGE N U R D E R c/s 196of the Pna1 Code. :JUDGMENT . CHIPE TA :. . me:accused prsonin this case; Daudi Phanga Kàberege, st.ñds CO( -- chergd with th offence of rnurde. c/s 196 of the Pohal The prosecution h - s alleg(d that on or about the 3rd cy of January, 1976, in Iring.aRegion, the accused 'murdered one iuitn Lason. The accused pie add -"not guilty" to the charge. The evid€;nce adduced by th.: prosecution- is as follows: • thc d:c..:ascd Anton .Iason was a resident of Igornbola village. At the matrin1 ime, the accusd who ordinarily residad at Rwanrili village, was also residing at Igombola village where he was employed by one Wapalika, -ah'isb - nd of one TurnaiaI (P.W.) One Joseph Machoyabangi, so residen.€.of Igorithola villajo, usedtc own a shop in that ri11age. About two weeks prior tc the death of the duce isod, wo sists the accused, • namly, Brasia d/o Pachanga (PW1l and Rita'd/o - Kakorda (P.W.12) Wont t.visit the accusd at Iqorabola village. At about 16.0 p.m that ñiht and whil, th two witnesses and the accused were chattinj inside the accused's house, the door of the house was cp-..n :an1 thre. young men entred the house brardishing kniv.s TO'. thre young men then ordered the two girls to come with tm, When the girls asked whc those young men were the intru-..rs said thit th-: girls ware being rude, and they slapped • P.W.12 thrIce. When the accused tri-'d to protest, the intruders thr . at.ned to stab him with knives. Thereafter at least two intruders raped P.W.12, while t:a.. third one raped PW.11 in the presence of the aqcused. HavinrT raped them, the intruders dragged the girls out of the heu :'ñd took them to their houses. When the accused tried to f.lio- thm, they threw stones at him once so he gave up. next morning the girls were released by theircaptors, and -after thy had told the accused as to what had happened to them, the two çirls Lft f or thir village without repoting the matter to autlicrities. - Thereafter the . accupod •tQId. PW.9 what had happened to his sisi ;rs during the nIght, md he named the .leceased as having b_ -.n amng th.: rapists. On 3rd January, 1976 1 t about 7I0 p.m., the dfeaed, accompanied by his cousin, one Corneli s/o Femuli Msambila (P.W.) wont to P.W.l's house, Accordihg to P.W.5 1 on their arrival there they found P6W.1 one Martin alias Norman Hongole (P.W.6) I one ?ur±i, and the accused in W1's'kitchen. While 'they we'r6 chattIn, P.W.1 preparedfood whiPiome of those present ate. At aboufc(O p.m. the accused bade farewell and left. But about haif an hour later., th accused returned. This time, however, he did not enter the kitchen in which the rest were. He stood outside and askedto soP.l P.W.1, however at first refused to go out saying it was late in the night. But the deceased persuaded P.w.l to goandlisteP to whet the accused had t6 . and SO P.W.i went out. The accused then asked for cigarettes, but P.W.1 told him there were no cigarettes. . Thereafter P,W.1 called out to those inside. to..briig him a lamp and cooking oil, and Mpumbi took those things to P.W.I. Neither Ivumj nor P...l returned into the room.. They apparently WL nt be sleep.. ' The accused, however, returned to the kitchen and stood in 4e doorway.. Those insl'e invited him to enter.,':.but the accused remd.nod 's.t.andihgin the doorway.. Those inside the room apparently decided, to go to sleep. Bdcause the accused was, blocking the doorway, P.W.6, who had the lock, h nUd it ovr to the decase6 Before ging out, P.W.5 twice asked the accused to let hii-n'paas, but the accus...d did not Rnswer, and he remain d in the doorviay. ' So p.W.5 made his way out of the room by passing in between th.nccused- legs 'anO went and stood some five pac'as atay from the door.' -ba await - hi8 dolleagues. '•' " "Shotl' after that, aid according to ' P.W. also ,cam.ft:in the same manner as P.W.5 had done; but acording to P.W.6 hims- if, he came out by edging his way to one side of the door because the accused stood on the other side of it. '.meafter, the deceased took the lock intending to close and. lock the door... The 'accused, however, remained in the doorway an :so.prvented the deceased from closing te door. .AlthoUgh the dec..e:dd persistently told the.'accused to allow him to, clo'sdthë docr, the accused would not move 'th.d. claimed th.at he used to sleep in that room. pp to this point. theevide.ncd;df.P.W.5 and P.W6 is gene- rally at one., .'BUt from this point the. to withesses tell completely diffeent stories. .Accoding:..to P.W5, while the deceased and the accused were .aruing'over the ciosing.;of' the door, he heard a thud - Theoopl Just then the deceased cried out. "Cornelih.CorneiU lam dying". Im.i'atoiythere'af.ter i the accused tOo'k'tc his. heeis and. 'disappeared and P.W.5 saw that the deceased had been wounded and intestines were coming out. According to P.W.5 7 P.W.6 saw ill this.' .P.W.*, howevr., saidetlat : w.he n the:.de.deased. and the accused were qua'rre lung over the closing ..f:.' them door, he sensed that there would be a fight. That scared him and so he left. P.W.6 -,addec1 that he also saw Corneli leaving, but that after a short - . .13 distanca, the deceased called -Corneli back. ThiWithess never hi-th lamentation of the deceased. •" .: From there, we only go by the story of Cornell. Corneli W.flLci tc say thit ho thn led the decased away from the Sc.J'a, intending to take him to d2s f4her 1 s house, bLt the deceased could not make it there. He fell dowr near the house of one Ndogoulaya, about ).QQ paces away from the sceni. r ...... P.W.5 thenwen€ €o'awaken' several people ir .thevillage, including the dece;sad's father .(P.W.2)0 On being asked by people who wont..-t'o see hun' at the plice where he had fallen,. the deceased said thot Kaberege was the perscnwhothad stabbed him with a knife, and thmt he hal done so for no reason. That same nigtt the deceased was taken to Njombe hospital whe Ie died the following morning:. .' -Some three days lter the accused wasarre,st.ed by. members of th then TANU YOUTH LEAGUE, namely, Ludariko'(P.W.7) and Lawi 1 (P.W.8). At the time of his arrest, the accused nfessed to P.f.7 and P.W.8 that he did stab the deceased, but added that he had not inEc•ni.d to kill him and thought that he had only wounded1 c-him slightly - In' his defence on oath ; , the accused related the story of tha raping . of his two sisters inhis presence and said that he.. repurt'd th matter t the wife of his' employer, one Tumaini (P.W.9). AccorJiflg.to the iccused, thOse who raped his sisters included P.W.5, one Yuya Nfuki (P.W.13), and the deceased. • . The accused went on to say on: 3rd Jonuary, 1976, at thout 7.00 p.m., he went to the •shop of P.W.l to bu kerosene. On arrival 'thee hefound P.W.l, P.W.6', and one Gerold, who did not testify. . .According':th hd "rcusd, t that time the" deceased and • P.W.5 had not arrived. buying the kerosene, he' remained -th.n:o for some time 'and then bade.farewell and' went home. While he was at home he realized that he ha no cigarettes fld so he went back to P.W.lts house, L0 buy cigarette. This time he found two more people in the house,' iarnely, 'the deceased and P.W5. He then callcd ut to P.W.l and he and P.WI1 went to the shop h.rc, however, they found no cigarettes, and so the accusd. s'tert.d for his house. As he was going home, he met Gerold who was also going homC. Th@' accused deni'ed to have tone•'•: back to the kitchen and stoc,d In the dobrwa'. . . . . Te.. accused went on to say that when he was about 26 pac::s from P.W O 1tS house, the deceased and P.W.5 came from behind him and tcld him to stop. When he stopped, .hey told him to , go and bring his sisters sO that they could hove, sexual iñtc-rcoursC with them. -in th accused retorted by, saying tat'if'.they wanted his sisters they should go to the girls' home s Loth the deceased and P.W.5 slapp .d him, and in turn the accüsedpushed.P..W.5 who fefl down. Th. roupen thQ decea$d said that they should 'stab 1im with a knife, on:1. he .actüalJy pulled out a knife. . . The accused, however, caught the decea'se'd's hand and snatched the knjfe.. Bee .se he wanted to save his ]J.e and because h w - s provoked by the -assault and abuses, he stabbed the de.aased with Jiat knife, and b& deceased cxie "Correli, I have bt en stabbed with a knife' The deceased and cornoli' immediately ran away. ' The 'accused then went home, and next morning he left for his sister's place at Ikangasi village, He did not, however, report what had happened to any person at Igombola village. Asked why he did not report to anyone at the village, the accused said that he did not do so / because he thought that he had only slightly wounded the deceased. After my summing to the two gentleman asses;ors they Wr&- uenpusly Of the View that the accused acted in self—defence and so found hm not guilty of any offence. It•js not in dispute that a man by th. name. of Anton. Lason is dead that he died a violent death; and that the persoh who caused his death is none other than the accused, Jaud. Pachanga. aberege.. What is in dispute, tharefore, lies i. a. iarrow compass, namely, whethr the .41ling amounted to mutdr, manslaughter or AS correctly pointed out by. bpth learned o:insal, this case rsts, largely, on the credibility of witnesses. In deciding which witnesses. to believe and which one to disbali..ve or doubt, a court usually takes into consideration, tjralia., he : -.opportunity which a particular withes. had of correctly ob'çving what he describes :n court;. his interest .or slnL restednes in the cutcome in the case, the rol. if any, which ho played in the entir€ transaction, and his dem ariu and Learing as Ii avc evidercu. A curt w Ji further take unto consideration the background, if any, to the :Lncideat, any materil contradiôtions in tho-testimony -oft a particular witness or between :on.e witness and tfl.'Lh r, and any 3trr fact or crcum3Lance which tcnds to lend edeiice to the cçcelibility of a particular witness. To recurn to the maatterin hand, I am of the view that the raping incent has a lot.tc do with he credibilIty of the witnesses in this..cas peticularly as regards Cornell and the.accused. It is against that background, thorefore that one must consi1er which of the material witnesses thould be believed and wuich o.aes should be dIsbelieved or doubted. Having seen and Qbserved ?.,W.7 and P.,8 as they gare cvidenc0, -I am left in no doubt at all that they were witnesses of truth and I accept their evidence. I. therefore fin.1 as a fact that Br.asici and.Rta were raped by at least h.-ee young me:i who were -- ' rsieents f Igoinbola village., and from what the accu:ed himself said, I .m inclined to,beliovei as the two gentlemen ....... 'id, that th deceased .and.Corneli were. most probably parf4cipaits in that ugly incident-, I will now turn to the evidnnce regarding..th events that led up to the stabbing of the deceased and what happened thereafter. Thumaturial witnesses as tc what happened at the hoae of .:Machoyabangi that fateful evening are Cornell, Nrman-and Machoyabangi hinisclf. Machoy.abangits evidence, however, can hardl - i be said to support the prosecutienis ca-ze, for his evidence is that the accused left:, after beng told that there were no cigarettes. . To this extat,:.the evidence of.-.Machoabangi would tend to support the accus ci's version of what. oco'arred. The evidence of Cc'rneii. axd that of Norman agree on one important matter, namely, that the ac used came bak tc. , the kitchen and stood in the doorway and b. fact prevented Norman and the dec.aseci frm closing the door, . ; From this point onwards, the two Witflosses-completely diy,rge To that diversion I wi.-1 turn later in this judgment. Butfrst.t,: tke videice of the cial witness Cornell 0 . Taken in is lation, thc ev1itnce of this wi ness is, prima fade, credible. But :when_ c.nsidered together. with the, rest of the evidence on record and -his role in th -entire - cape, h credibility bec-m:s ovidentlyqest.ic,nabie Ti start-with, his e'. -idence—in- chief- is very eloquent. He graphic-ally described. what he claimed to -.. have seen that fateful evening. Howev.r that eloquence faltered •-' '-' in ross.examintion0 For ix Vlco ro (2 itd o c w0im 1 co that r eitnLs wcr.~ o- :. n. Q one 01. 1c_rs .hy th \JltnL. ss did not rd so an a r 1. f I spc cific question on thi. oo-L h nwe o-' a and holloà ohe : He said that ho hod l.ot his vce thooi gh a cough., Thcre I s s ecind rea s oa :.J - ' of this wiess th I fiod t d '- t to ,e' e1e 1a i .xr,or with ç stab wounc a I gc d2ep lr to tr P a._dot 3 - cavityv u d Wa k a. n / as r'o e th t ren i o ce c e ar ting . to Lieod This is in act v?h&. is bzng. uggested b3 the evidence of Corneii0 The traca ; of :..,. ood on the grotad started just about the area the deceased e•J.: down strc.nc suggestion that the assault must have been mm'ted at a place other than the door of the kitchen0 . mhere is anctl'o: pe of Adence whioh tn1 - to suppori that mnfcende. The deceased all d iabont lc.' pa . from the kitchen and in the direction o: the .ccuseds hoise .: in the opposite direction of the deeasdI eouse.. The cxp: anatiori of this could be that Cornej.i was takinç the deceased cx hs fathers housed But what cannot b'i dented istht that piece o evidence equaily if not more so, supports the accuseds ,tcr iiae the doc..as and (cneL. fQl1cd e ac' sed wniLe 'so F p d s on Iis way home y for that is the i.rect. n to the SOC1.i3E. 'Thepe is yet anc r piece f evidence whic:h e.nds to. .. weaken the credibility of Corne 7 +i 1 s C idence.and that ts th evidtinco of the investigating off ica: ''1i.0 This withes had this to say: Corneli tolde mc. Cth deceased ibisci 0cclih:d :: all those meneoned 'r. the ..1etch were pretat0 ThCy Ofl:.3/ sad Those mactens mus. not bE diOC1.'SSEL Leave thcm' This was said in my presenC: 17 6 The addedg If anyone of them SOS tb.. e wers no abcs that night he would be lying APW- L from disorediie.c. j th'.. ev:denco oi Cot .seii this evidence supports the accused.: tor Let me now €urn to the conh,:adictiens bet,res the evidence of Corneli and Norman 0 Corne'. L osid iit Norman wac a:eser' ,;.jht u.p to the time Thcc: was ;tabbc . i3. Nonmrii said c --at . ::e:t while the deceased and the accused we o cir:.ing at the door, Norman ahhci that he and Cornoi... start together b': that the dacoased called him back It cisc apparent thi: R D ., =.an did not hear the lornentatin cf the d ~ ceasecl te; ::hc deceased Wa; This is very mater.!.ah oat. : ::t:Lc.a a the ed.enc:e of the two pr.secutjor withosses who a a ca. to have been o,e.-wi: sses 0 . After considering all ;nesc. ':ecec of eridar :a that go to weaken the evidence of Cornc:h, oi: must cc..nside.: c position of C'..rneii in tb.? entiro et-up ..orne.'.. is a cousin a the dec.eased Besides and as I have observed 'arlf.e:, it is quito rcbable that be was •:n •:'f the people who raped the ssters of the cc :oa2d.. If this be sa, then it is impossible to say that Correli was i cis5.nterestcd withss He was. in my conside'ed V4-0W a w.. taess wh l-'sd his own interests to cozve In all the circumstarceo 4- refore. I feel t:iaat it. wcuic. ______p___'__•__ .-. - I - riot be safe to accept Cc;rneli'p version of the story.. I think the circumstances are such that the accused either.. acted in scilf-defence cr as a result pf provocation. IAi the evidence iii et clearly exclUde hc pessibility of self-defence 1 I think ch - t the accused must be given the ,en:i:1tjof the doubt. For the foregoing reasons, I wc'ud.'respectfully hold, in cencurrence with the two gentlemen; assesso4.th at the. prosecution has failed to prove its case beyond reasoqabi' doubt. I accordingly fin( the accused person not guilty, and I heeby duly. acquit him. shall be relaased from custody forthwith unless otherwise lawfully detrained. /• . . (//1 /3 B, D. CHIPETA . JUDGE, •. .. Delivered in open ccrt at Dodoma this 27th day of March 1979. 13. 'D. CHIPTA. :JUDGE . .. .1 Mr. Nwzanyika - S.S.A for 'Republic Mr. .Mwakingw -1clding brief for Mr. NE.R. Mwkasungula - Counsel for the Defence4 . :Assssors thanked and discharged. B. D CHIPETA -. . 27/3/79 . , JUDGE