19790720 TZHC Tabora

IN THE HIGH COURT CF TANZANIA AT TABCRA ORIGINAL JURISDICTION (Tàbora Registry) CRIMINAL SESSIONS CASE NO.19/78 THE REPUBLIC VERSUS I. NEKUJUA S/0 MININGA, 2. THCMAS 5/0 KATEMI CHARGE: Murder c/s 196 of.the Penal Code. MUSHI, J. JUL GMENT The accused persons NEKUJUA S/OMININGA - 1st Accused and THOMAS 5/0 KATEMI - 2nd Accused stana charged with the offence of murder c/s 196 of the Penal Code. The facts in this case are that, the accused persons on or about the 31st day of Cctober,1975 in the Region of Shinyanga, jointly and together - murdered one SIDA S/0 Mi.SOLWA. In this case it.i8 not disputed that the deceased is dead. There is abundant evidence which is accepted by both: .,sides as being true. . There is the evidence of P'.W'.k Gendi s/o 'Budodi the wife of the deceased ahdhis son P.W.5 - M'rondu Sida to the effect that the deceased Sidq,s/o Masolwa is dead. There is also medical report by the way of postmortem repprt which indicate that one Sida s/o Masoiwa is dead. From the evidence above which I believe, I find as a fact that the deceased Sida sjd'Masolwa is dead. " The next point I shall consider is whether the deceased's death was natural or..not. The evIdence is clear and'ündisputed. There is evidence from the deceased's wife that the deceased was. attaked by some.people who cut 'his ,st;omach causing intestines to come out. This evidence is supported by medical findings that the deceased had 1ar,e wounds with intestines hanging out and internally hal Lacerated liver. Those wounds indicate a violent attack and from this ovice I am satisfied that,, the deceased died a ..yiolent' death and, it was not due to natural process. , The next point for consideration and undoubtedly the most important one is whether the a0cused persons are the ones who caused the deceased's death as alleged by the prosecution. It is not disputed that the deceased died in the village of Soiwa. It is also conceded that the accused persons come from wimba District in Mwanza Region. According to the prosecution evidence, the accused persons together with other persons wore seen in the village of Salira sometimes before the death of the deceased.. This is. conceded by the defence as the accusecis themse1es in their defence agreed to have visitedSoiwa ....../2 - --,--- *, -2- village on their way to Nundu village while looking for some maize to buy. P.W.7 Kisabo Nguno told. the court that the accus ci together with some other people had spentone night at his house and on the following morning they left the place. This witness specifically.stated that the accused visited him on 5/9/75, and they never visited him again. However P.!.3 Lubinza d/o Lubizarbra stated that the accused stayed at Kisbo's house for three days and then left and came back after two days. Another witness for theprosecution is Gendi i/o. Budodi the deceased's wife. She told the court that one evening. while her husband the deceased, was outside the housè, some people suddenly arrived and the dog barked. According to the witness she said that she at first standing near the door and the deceased asked the people as to what they wanted. To be very ap'écific the deceased asked.- 'YVi.pi bzee", andthepeoplereplied that they had lost a red cow and they immediately asked for water to drink0 P.ji.k Gendi, according to her story, went inside to fetch the water the people had ked for. As she was coming'back she.. heard the sound of something being hit and on arrival she found that the deceased was being attacked by those people and had fallen down. The two people were still attackin, the deceased wheh p0j4 arrived. The witness said that she iden ified the. people who were attacking the deceased as the two accused persons in this case. Thekwitness said that the incident took place as it was getting dark. Accordng to the witness the two accused had visited her P lace twice previously whil;e the deceased was away on safari and each time the accused persbns were énqutring about the deceased and Peach time the witness told them that the deceased was away0 The wittess said that in both occasions the accused had visit.ed the .pl.a, it was during the day and thus she had ample time to observe them Properly. The 'witness further said that she identified the accuseds at the iPolice Station. Furtier the witness said a club and a spear )found at the scene and containing human blood stains belonged /to the deceased but it is not knownhow thee art±les !jgot there. The other witness is Mwandu s/o Sida who told the court that tone day while he was coming from safari he met two people in his village and those people had asked him to show them the house of ?wanandaki but Mwandu +h. that he.knew no one by that name in the village. On reaching home, Mwandu was tuii there and according to the description given, it would appear that they were the same people he had met on the way. The last prosecution witness is P..W...8 - 4ohamed Mwanzalima who is \6 Police Officer who organized an ,identificationparade -3- ' in which several witnesses are alleged to have identified the accused persons. The evidence of this witnesses differe.d iniaterially from the particulars in the identification parade register which, he refuted to have prepared it although it had his signature. The wiicss said that he had prepared another one which however was not available. The pmsecution therefoco c1ic not produce the identification register and impliedly would appear to have abondoned the evidence on this point. On the other hand as I have already touched above the accused agreed to have visited Solwa village on the way to Nundu and spent one night at the house of Kisabo Nguno - P.w.4. This was as stated by Kisabo on /.9/75. The accused completely denied to have and anything to do with the commission of this offence. From the analysis above, the whole case depends on whether or not Gencli Budodi can be held to have identified the accused as she alleges in'her evidence. While dealing with this aspect of 7 the vidence, I wish to mention at once as I have already mentioned, above that that position 1 of evidence relating to' . • i dentification .parad s not worth considering for the reasons already stated, and as I am satisfied that the identification parade procedure followed did not in any way satisfy the conditions laid down in Rep. v. Mwango ?ansa -(1936) E.A.C.A. 29., which in my view hold good law. Or at the lowest there is no evidence that such procedure as f011owed. Now turning to the evidence of Gendi, the question is whether she identified the acëuseds. It is not only whether the witness is telling the truth and thus: can be believed, but also - whether the conditions and circumstances were such that identification could be done by the witness. First, what were the conditions? According to the witness, when the accused arrived it was just getting dark. The accuseds wore strangers. According to the witness as soon as they arrived, they asked for water to drink and the witness immediately went into the house to get the water and on her return she found the deceased being assaulted. It is quite clear thorfore that the time between the arrival of the accused and the departure of the witness t, fetch water s too short for the witness to have sufficinntly observed the accused to be able identify without the possibility f error. When she came back and found the deceased bet assaulted, she was naturally shocked and it is difficult to believe and rely on any attenpt of poibie identification at that time.. Howvv-. *h px' trtion contention is that the witness knew the accused persons as they had previously -4 - twice being at the place asking for the deceased who was by then away. rhe prosecution then claims that on those two 6asions she had been able to recogniie the accused.,: The accusods,wre strangers in the .plabe. If they had intended to kill the cQ.eased wOuld they . ha oñ"to this place twice during the day 9 And since they were strangers, what were the otive 9 On the night of the incident, the attack as almost imiliate after arrival0 The question is how did those stran,; people knothat the person theyfound was infact th.e..ownér of the house, whom they wanted, to kill? It is possible that some people visited the deceaseds house whilehe wa s away but loavs much to bedesired in the evidence oi Gend whether infact these persons were the accuseds in this case. Et leaves even more doubts as to whether the pepple sh saw twice were the ones who killed the deceased. The eVl O identifiction of the ac-cused erofi from being ater-tight for the court to depend on it solely 5 a basis.pf convictionin this case. As both gentlemen assessors hair expressed I share their views that the accuseds are not guilty for the offence of murder a charged or any offence 9: The accuseçls are accordingly acquitted and they are to be st at libetv forthath. N. N. NTJSHI, ..• JUDGE 20/7/79: 20/7/79 ... .: . Corarn: N0M.;Mushj, J . . Mr. Chaila..- .Statttcney Miss Nut embel Defence counsel . Accused: Both present Judgement read in court. r orc N. N. hUSHI, . JUDGE -. . PSSESSOIS Thanked and -.-flarged. JUDGE. Shinyanga ' 20th July,1979 Certified opy of the original zRz DTSTMCIiGISTRAR, - TABOPJ. .