19790621 TZHC Tabora

) I I -/ - 11_' :1~ 11/ 6:7-"Y" - IN THE HIGH COURT OF TANZANIA AT TABORA. ORIGINAL JURISDICTION (TABORA REGISTRY) CRIMINAL SESSIONS CASE N0.44 OF 1978 THE REPUBLIC VERSUS 1. KULWA GIDAI 2, KASANZU MAKONDA CHARGE: Murder C/S 196 of the Pen1 Code. 10 J U D G M E N T The accused persons, Kuiwa Gidai - 1st accused and Kasanzu Makonda - 2nd accused stand charged with the offence of Murder c/s 196 of the Penal Code. The particulars are that the accused per- sons on or about 30th day of May,1977 in the Region of Shinyanga, jointly and together murdered one NKIJA s/o SHIJA, t is not disputed that the deceased NKIJA SHIJA who is referred in the proceedings as Msutila is dead. There is the evi- dence of MAIGE KULIJI - P.W.2 who told the court that he met the deceased on the way in the company of one Kado and Lububu and as 20 Kado and Lububu were returning to the pombe shop to continue with drink, this Maige was requested to escort the deceased home as the deceased was not in good shape at the time. The deceased fell down near his home and died, Also Nyazobe P.W.1, Kwangu Shija P.W.3 similarly testified to the same effect that the deceased died as they went to the deceased house the same night the incident occu- rred. In fact even the accused persons and their witnesses acknow- ledge the fact that the deceased died. Finally there is the post mortem report which also states that one NKIJA SHIJA is dead. I am therefore, fully satisfied that NKIJA SHIJA allias MSUTILA is 30 dead. After being satisfied that the deceased is dead in this case, I the next question is whether the death was unlawfully caused and that it was not due to natural causes. There is the evidence of SHIJA KILIPU POW.4 who told the court that he saw when the decea- sed was hit by a fist from the back and fell down and after falling down the assailants attacked him (deceased) by kicking on the neck and on the head. P.W.2 Maige who met the deceased on the way and escorted him home, said that the dec.ad w and noticed some faot nirks and dust round the neck and on the 01 head. The deceased died in about two so hours after I' he had been assaulted 0 There is no evidence that the deceased was suffering from any other disease from which he could have died. The medical examination carried out after the death mdi- cate that the cause of death was due to head injury as a result of internal fracture of right pariental with slight intracranial haemorrhage. The medical findings clearly corroborate the test- mony of the witness as to which part of the body the deceased wa o-i-dence which - I ieye..,I am . -19- satisfied that the deceased death was a direct result not of the pri im nd thus the death was natuz'.. The next aspect of the case to consider is whether the A accused persons in this case are the ones who assaulted the dedeased and caused his death. There is undisputed evidence that the accused persons, the deceased3 and infect all the witnesses in this case had been in the village pombe shop, on the daof the incident 0 Further there is the evidence of P.W.4 0- SHIJA KILIPU who told the court that he had gone to the potnbe shop at 4.00 p.m. and sat together with one Paulo Bómazi and the deceased and after drinking he (witness SHIJA), the deceased and Paulo left the place and 10 walked towards home0 According to Shija while they were walking, Paulo was some distance infnt and deeased in the middle and the witness behind. A short distance from the pombe shop, the accused persons caught. up with them or followed them, and passed the witness without a 4. word and the 2nd accused - Kasanzu Immediately hit the deceased with a fist on the back and the deceased fell down. After the deceased had fallen down both accused attacked the deceased by kicking him with their feet - on the neck and head. P.W,4 SHIJA and POWO6 Paulo tried to separate 20 the accused from attacking the deceased but the witnesses were unable to do so as the accused refused and were very furious and Infect the second accused hit Paulo with a fist and SHIJA was threatened to be similarly treated if he persisted in the issue. SHLJA after failing to help the deceased ran away leaving the accused still assaulting the deceased. On the following day the witness heard that the deceased had died. As the accused were attacking the deceased they were saying - "Leo urnepatikana." According to SHIJA the 30 attack was dbne jtist before sun set, Paulo Bomazi - POW O 6 agreed to have witnessed the attack on the deceased and that he was hit by one of those attacking the deceased when he tried to separate them, Paulo however denied to have been able to recognizc the assailants as they were strangers to him. The next clue as to who the assailants were is from Maige - POWO2 whose evidence I have already mentioned above. This Maige told the court that he had met the deceased on theway in the company of Kado and Lububu, according to Maige, Kado 40 informed him that it was the first accused Kuiwa who was referred to as Mguni who assaulted the deceased. This Kado is unfortunately dead. This Kado is. also reported to have repeated the same thing at the house of the deceased when the villagers llid gathered according to the evidence of Paulo. ( I ) - 1;1. —no Before I consider the defence evidence, I would like to refer to an incident which occurred earlier on the same day 5nvolving.the deceased and the mother of the accused persons. Nyanzala Kasanzu - P.W.I. told the court that she had gone to drink,pornbe in the village pombe shop and among the people presént were the deceased and the accused persons. She said that after drinking pombe she left the place with some pombe in a can. On the way a short distance from the Pombe shop, the deceased followed her and poured the pombe and slapped her apparently 10 without cause. Luckly someone arrived at the scene and separated them. According to Nyanzala after the incident, she went home and according to the evidence, it would appear that the deceased went back to the pombe shop. I now turn to the defence ejvdmice. The accused persons i.e. Kuiwa Gidai 1st accused and Kasanzu Makonda - 2nd accused made unsworn statements. The first adcused stated that on the day in question, he had gone to the pombe shop at about 2.00 p.m. and he drank pombe until he was 9.00 p.m. The first accused said in the pombe ..' 20 shop until 9,00 p.m. The first accused said while in the pombe shop he was in the company of Mwandu Shidela, Shija Ngasa and Mwanamwandu. This Shija Ngasa and Mwandu Shilela agreed to have been with the first accused at the pornbe shop. The first accused and thetwo witnesses left the pombe shop * at about 9.30 p.m. and Shija and Mwandu were the first to arrive at the first accused house as the first accuses ramained behind. The witnesses said that while they were there militiamen arrired looking for the first accused who was arrested on the way according to his statement. 30 The 2nd accused - Kasanzu Makonda told the court. that he had gone to the pombe shop at about 4.00 p.m. where he stayed until 900 p.m. and at about 9.30 p.m. he went home after taking some food at the house of Singu Masunga - D.W.3. On the way the 2nd accused met a ten cell 1eder who was looking for him and he was taken to the deceased house where he 'was arrested. This Singu Masunga told the court that he hadN been with the 2nd accused but he said that on arrival to\the pornbepiace, he was invited for a drink by a friend and went to drink under a tree a short 40 distance from the pombe shop leaving the 2nd accused whom he rejoined at 9.00 p.m. and together went to his home where the 2nd accused took food and left. Soon after the 2nd accused. had left - a ten cell leader arrived and informed him (Singu) ... 0 0 •J ) - - that the deceased had been killed. This so far is the evidence in this case. It remains for me how to analyse the witnesses evidence to see if it can be believed or not 0 The best evidence is that of an eye witness and in this case there is the evidence of SHIJA KILIPU - P.W.4. This Shija told the court that he saw the two accused persons assault the deceased as already described above. The question is whether this witness is telling the truth. In assessing the credibility of this witness several factors 10 'have to be taken into account. First, the witness said that he knew the accused very.well as they lived in the same village. The incident took place during the day bdfore sun set and therefore, there is no possibility of wrong identity as the witnesses actually p'articipated physicaly in separating them an act which he failed and ran away. Secondly, the witness gave his evidence in a straightforward manner. He replied to the questions unhestatingly and confidently and appeared to be talking something that he knew and had nothing to hide. Taking these factors into account and having observed the witnesses demeanor in court, 20 I am satisfied that the witness - SHLJA is a witness of truth and what he stated is a true account of what happened and I believe his testimony in entirely. Like both assessors I find as a fact that the two accused persons. are the ones who attacked the deceased who subsequently died as a result of the attack as I have already stated above. The essense of the defence evidence is that the accused were at all the time/the pombe shop and they could not have committed the offence. However as the incident did not take place far away from the pombe shop, there was that possibility of' the 30 accused going to commit the offence and go back to the pombe shop if at all. I would like to comment on the evidence of Paulo Bomazi - P.W06 which differs on the point of identification of the accused from that of SHIJA. As already stated above the evidence of Paulo tally with that of SHIJA in all other aspects except on the identification of the accused persons. Paulo stated that those who assaulted the deceased were strangers to him implying that had they been the accused he would have identified them as he knew them well. On this aspect 40 I have not the slightest doubt that he told lies and his evidence is completely disereditted. When this witness gave evidence he took much time in answering a clear and simple question and the answers were carefully made but not before repeating the question several times and giving irrelevant replies. . . . 0 IL - - From his demeanor which I carefully observed, the titness was clearly not telling the truth. Not surprising this Paulo Bomazi and Sinqu Nasunga a defence witness are in remand for an offence of murder in Criminal Case No.243/78 of Shinyanga District Court. After coming to the conclusion that the accused persons are the ones who attacked the deceased and caused his death, it remains for me to consider whether or not the accused intended to cause such death or grievous harm. in determining this issue, I will have to take into account 10 the manner in which the offence was committed and the nature of the attack inclUding the parts of the body in whidh the assault was iñflidted. As already stated above the accUsed persons followed the deceased specifically and attacked him. The attack could not have been accidental as the accused passed several other people on the way including the witness Shija and on finding the accused attacked him without a word. The deceased was kicked and trampled on the head by both accused, The head is one of the most delicate parts of the body whose injury, ifserious, is most likely to'lead to death. 20 The counsel for the defence suggested that since the accused persons had been drinking for long time it is quite possible that the accused acted under the influence of drink in which case the accused could not form a specific intention. It is true that the accused persons had been drinking but there is no direct eivdence or circumstances under which it could be inferred that the accused were drank. Inf act the accused own account of 1- heir movements that day do not indicate that they were drank. .Inf act the accused actions particularly 36 taking into account the fact that the accused followed the deceased on the way and after assaulting him went back to the pombe shop, clearly indicating a cover up, would not appear to be an act of drunk persons. There is further evidence to theeffect that when the accused were attacking the deceased they were saying and I quote "Leo umepatikan&'. These utterances clearly indicate a state of mind of the accused that they had intended the act. I am satisfied beyond any doubt that the accused intended at the very lowest to caUse serious grievous harm if not death itself. Even if 40 the accused persons attacked the deceased because the deceased had assaulted their mother - Nyanzala Kasanzu, the accused act could only be regarded as a verengeas the incident took place several hours before. —?3 - Lik€.. the lady assessor, I am satisfied beyond any reasonable doubts that the accused are guilty as charged and I convtct each of them for the Offence of, Murder • c/s 196 of the Penal Code. SGDO N. M. MUSHI, JUDGE. 21/5/79 MITIGATION: - Miss Mutembei The accused persons are first offenders0 The 10 deceased was an architect of his own death. I request to recomend the sentence to be committed to life imprisonment. Mr. Sengwaji: • State_Attorney: I have nothiig to add. Accused: Kuiwa: Nothing to say 0 Kasanzu: I am surprised to be convicted with the first accused0 I was not in his company. 20 Sentence: There is only one sentence for thiO offence. I sentence each accused to suffer death by hanging. •- SGDO N. MOMUSt, J. 21/6/79 . Right of appeal explained 0 Assessors thanked and discharged 0 N. M. MUSHI, JUDGE. 21/6/79 . . . .