19791128 TZHC Tabora

-30- c114 IN THE HIGH COURT OF TANZANIA AT TABORA. - ORIGINAL JURISDICTIOI .- (TABORA. REGISTRY) CRIL'flNA SESSIONS CASE NO.720F 198- THE REPUBLIC VERSUS 19 JORAM s/a NTAVOBA BIKOLIL211A s/a LUHIDA CHARGE: Murder c/s 196 of the Penal Code. 10 JUDGMENT N. N. 111USHI The accused persoii.s, Yoran ITtavoba, 1st accused and Bikolimana Luhina 2nd accused, stand charged with the offence of Murder c/s 196 of the Penal Code. The particulars are that on or about 30th day of June, 1977 in the Region of T<Igona, jointly and together • murdered one TTguvunali Thahit. It is for the prosecution to prove first that the deceased TTguvunali Thabit is actually dead and secondly that such death was not due 20 • to natural causes but was caused by someone. Finally the prosecution must prove that the accused were the ones who cause such death. As far as the first two points are concerned, there is no dispute that the deceased is dead and that he died a violent death through the hands of some people. There is the evidence of P..2 Balandagiye - the wife of the deceased who told the court that she found her husband. - the deceased - in the forest in a serous condition end died soon on arrival at the hospital. 30 Further there is the potrorteu examination report which according to the doctor, the death occurred because of head injury caused by the fracture of the base of the skull which led into bleeding from the large blood vessels. Accordin, to the postmortem report - the person named on it is Nguvunali Thahiti. From the evidence above I en satisfied fully that the deceased Nguvunali Thabiti is dead and his death was not through natural causes but he was murdered. The third and most important point which the 40 prosecution must prove is whether the accused persons are tlie ones who killed the deceased. In proving this point, the evidence may be divided into three phases which are as follows:- / eec...... , ..... / 31 a. 31- Di the accused go to the house S of the deceased and later to the house, of POW.4 Ilgilante Boublanye? - If so, did the accused leave together with T'Tgilante and the • deceaed on the fateful night? If so, were the accused the ones • who attacked the deceased? Before I deal with the prosecution evidence it may he appropriate here to state the defence case. 10 Both accused heve categorically denied to have comitted the offence. Thboth denied to have ever being to the village of Muyana or to have net Tgilante ever before except when they net him while in the remand. The accused further denied to have seen or irnown the deceased in this case. Turning to the prosecution evidence, the main prosecution witnesses are Ngilante © Bonbolanye Bugalu - P.7.4 and Balandagiye - p.7.2. This Ngilsnte told the court that as he was passin,: nenr the house of the deceased, he found the two accused and another standing near the deceased prei;lises. As the decesed was a friend of the witness, Ngilante went into the premises of the deceased. And the accused persons together with thei' other colleagaes followed suit. Soon after arrival, the accused said that they had elephant tusks for sale. After some discussipn, which according to p,7.2 - took about an hour, 30 p;7.2 requested igilante to go with the accused as the hushard was not at home and as she was going to the market. According to Ngilante P.7.2 would infom the deceased to go and see the accused at his place (i'Tgilante's place). flgilante agreed to go with the accused persons to his hone and left the deceased place. So° 1 .after 1Tgilante and the accused had arrived at Nilantets hone, a message was received from Mzee Luziga Panha that the ponhe was ready and according to TTgilante he could not ko leave the accused at hone and so he went with then to zee Luziga whero they drank poilbe. Jfter drinking ponbo Ngilante and the accused retunied to Ngilantes hone. On the other hand p. 17.2 Balandagiye • 5 5- 5 -55---,- -5-- - -55- "-5-' - --• '--5--.- -'-5" .,-• -'--5 - 5-. - S .- -• -32- told the court that r'Tgilanto had gone to her house and asked if the deceased was present as he (Tgilante) had brought him some business. On enquiries, Ngilante revealed that it was elephant tusks which were being sold by some people who were on the road. P.W.2 said that she asked TTgilante to call the people. Those people cane and they confimed that they were selling elephant tusks. P.7.2 then asked them to bring the tusks to her place but they said she could not weigh the tusks 10 until her husband was present. According to the witness the persons who came with Tgilante included the accused persons in this case. P.W.2 Bale dagiye further told, the court that Ngilante told her that the deceased should go and soe hil-i when he arrived and accordingly when the deceased arrived, she gave him the message. According to P.1.2 she never saw the accused again until she identified then at the police station Tasulu. p.'T.2 Balandagiye told the court that one police by the name of .Vfusa went 20 to her house and took her to the iolice station Tasulu. The witnees stated that on arrival at J TCasulu police Station, she was place in a room and when she cane out she found some people in a line. Four ieople in the line had bandages round their arms and tied to the neck by a piece of cloth. The witness said that she identified the two accused persons as the people who went to her place accompanied by Ngilante on the night her husband was murdered. The witness continued to state that the third 30 parson who was with the accused persons when they visited her place w:s not in the line. This identification parade was condcted by sub-inspector Crispin Mpendakazi- P. 1,11.6. This Crispin told the court that there were ten people in the line including the suspects who were Yoran and Bikolinana. F.W. 6- said that 2nd accused Iikolinana stood third fro:ii right while Yoram took the sixth position also from right. The witness continued to say that all the people in the line 40 were ordinary citizens. According to inspector i'Tpendakazi, before the parade, the suspects were in the office of the O.C.S. while the witness was in the office of O.C.D. which offices were 80 yards .133 apart. Inspector Crispin said that there was only one witness who was the wife of the deceased and the witness - Balandagiye identified both abcused persons. P.W. 6 further said that the suspects had bandages. because they had broken ama ? In order to avoid the suspects being conspicu ous, two other persons were also bandaged. The accused persons themselves told the court that they had been r nanded f or dIfferent offences. Yoran - 1st accused said he was remanded for stealing a gun while Bikolimana sail he was remanded f Or 10 the offence of failing to participate in brick making in the village but both of them were charged with the offence of stealing a gun. The accused said that on 12/7/77 they were sent to th? police lock-up where they found Ngilante. However, soon after their arrival 7gi1ante was taken out but was brought back after five minutes. The two accused were then taken out and told to nix with some other people who were in a line. The accusal continued to state that a woman was then called and identified them. According to the 20 accused they had not seen tho woman before. Counsel for the defence, Hiss Mu.teraljei, in the submission urged this court to disregard the evidence of P.W.2 - Balandagiye in so far as the identification par - de was concerned because certain conditions were not followed by the police in organizing the parade. The counsel stated thLt the accused were not told that they could have an advocate or friend to be present during identification parade. Again Miss Mutonbel said that although there were some other persons with 30 bandages in the line, there were not similar. Thirdly, the police officer conducting the parade did not take down the name of the witneE;s identifyin. the suspects and fourthly, after the parade the police officer did not ask the accused if they were satified with the manner in which the parade was conducted. Because of these alleged iregularities or non-compliance with the rules, the counsel has urged this court to disregard the evidence of Balandagiye. It is correct that there are police reu1atins governing the nnmer in which an 40 identification parade is conducted. The purpose of these regulations is to ensure that the identifying witness identifies the suspects quite inopendently and completely unaided by any person, sign or infomation ./24 - 34- that the suspect is or is not in the line. And on the part of the suspects, it should be ensured that he is not very different in attire, physical appearance from those people.he is mixed with and that nothing should indicate that he is a suspect. In this case I am satisfied that the general princi- were ples,riaintainod. The fact that t]ae accused were not asked to have an advocate prcsnt, which was an impossibility in ICasulu anyway, or friend during the identification parade and the fact that at the end 10 of the parade the pOlice did not ask then if they were satified with the Ilairner the parade was conducted, did not vitiate the general principles and that such orii.ssion did not affect the conduct of the parade as a whole. Regarding the Omission of the name of the ide.tifying witness in the identifj • - cation parade Register, it did not affect the identification in so far as there was only one identifying witness who identified the accused persons. And who the police witness clearly remembered as the 20 witness was the wife of the deceased. The Counsel's • argunent on this point cannot be sustained. I now turn to the evidence of P.1Y.4 - ligilante. This witness told the court after coning back from Mzee Luziga's place he decided to follow the deceased but as he reached the main ro -td he met the deceased who asked as to where the visitors were. Both ilgilante and the deceased went back to Tgilante's house. There the deceased asked the visitors - accused as to where the tusks were to which Yoram 30 rep. lied that there was only one tusk but a big one and that they could not discuss the price before they Imew how much it weighed. The deceased then told • the accused to wait at the place while he went away. The accused cane back accompanied with Fredrick Tahela - P.W.l and Binebo Ntahundiliwe D.'V.l. - When these people cane Yoran said and I quote:- "TTbona nnekuja wengi" and theaccused replied, "Iwa nini tusije wengi na sisi tunalcnda kutafuta mall?". w 4G- The first accused Yorara then told the deceased that since they were strangers in that village they could not go with so many people. After some discussion it was resolved that the deceased . • • • •.. . •6 O•. /35 36 . ?LhT e . auti 1y ' 1t wi Qvidauce f - Balandagiye and Ngilante above and in particular P.W.2 1 s evidence, I am satisfied that Belandagiye was a truthful witness and that correctly remembered the accused and properly identified them as the persons who visited her place with Ngilante onr the fateful niEht when her husband was killed. I beliee her testimony without any hestation. I also believe the testimony of Hamisi that he saw the accused persons in the company of' Ngilante 10 that day and also Carolina's evidence that the accused were with her father and left with him and the deceased that night when the accused was murdered. I find it thereforei established that the accused went to the house of the deceased and later to the house of Ngilante and that the same accused left with Ngilante and the deceased. The assessors were of the same views. Having answered the two questions in affirmative, I now move to answer the third and final question 20 whether the accused were the ones who attacked the deceased in the bush leading to his subsequent death. Again I must go back to the evidence of Ngilante. J.ccording to the evidence of Ngilante, he said that after he had left his place with the deceased the two accuseci and the other person, who is not present, as they approached the forest, he (Ngilante) was suddenly attacked by Bikolimana - 2nd accused who had just been infront of him. This Bikolimana held the witness by the neck and threw 30- him down Ngilante said that he was pressed so hard that he passed urine and as he was held by throat he could not shout for help. This witness said he was kicked and he became unconscious. The attackers left him thinking that he was dead. After sometime the witness regained consciousness and woke up findjng himself in the bush. After ascertaining that there was nobody around he rushed back home and straight went to the house of the deceased. The deceased had, not returned. Ngilante narrated to the deceased wife - 40 P..2 what had hE'd happened and suggested that they should report the matter to the chairman so that ppl - cn-Irl eo and look for the deceased. However, the deceased's wife suggestec ,t}x-wjse that they should wait till morning and if by then the de.ceased had not .. . . . . -37- cotnej the matter would be reported P.. .2 admItted on her evidence that the deceased wag dealing in elephat tusks - Ngilantë then went to his place and .lept., On the fpllowing morning, the witness went to harVest his beans since he no one informing him that thé deceased did not return. However, as he was in the shamba, the police arrested him for the murder of'the deceased. hile Ngilante was in remE:nd the two aciised were brought in remand in connection with aiother offence. soon as Ngilante saw the two accUsed he ib informed the Police that the two people with whom he had been when the deceased was mui'dered were in the re•thánd prison. It was then when the police started get- ting witnesses to identify them. Also P0W.1 - Fredric told the court that when he remained at Ngilante's place, Ngilante came back running and panting and said that those people with whom they had accompanied were thieves and that he had been beaten, and he managed to escape by sheer luck. lso Benebo - told the court that Ngilante returned home running and told them that 20 they had been attacked by soldiers. P.W.2 - Balandagiye also told the court that after waiting for the deceased for many hours, she went to Ngilante's place where she found Fredrick and Benebo who told her that the deceased had gone for some business and she went back home. Cn the following morning. She went to Ngilante's place but did not find Ngilante. On enquiries from Carolina - D..l she was shown the direction which the deceased took when he left with the other people the previous night. 1 1 .W.2 said she went into the bush and 30 found the deceased in a very critical condition. The deceased was taken into the hospital where he arrived dead. The witness furthel- said that she found a big club which was broken into two pai-ts neak the cleeaSed!s body. Ngilante identified the club as the one iThich was being carried by the accused colleague. Cn this evidence counsel for the defence submittad that P..4 - Ngilante should not be i. believed: that he was attacked by the accused because when he returned he said that they had 40 been attacked by soldiers according to the evidence of Binebo. However, this question of being attacked by soldiers was clearly clarified by Ngilante in the long cross-examination. Ngilante denied to have said that they were attacked ./38 - 38 -.. by soldiers but said what he meant Was that those people with whom he had goile tuned On him like • soldiers. Secondly counsel submitted that P7.4 - should not he believed because it is possible that ITgilante planned to kill the deceased with the people he went with or other people because it was him who imow whether the deceased had or not and for that reason the witness had reason to tell liçs. 17ith respect to the counsel's submission, it is inconceivable that the witness would 10 plan to kill the deceased with the people he Was with or others and yet act so openly with the imowledge of those who were at his hone waiting for him. irther there is nothing in the record to suggest that there were any other people in the area where the witness was attacked other than the accused persons with whom the witness had been in the company. Right from the tine P..4 was arrested he insisted that the attackers were the people he had left with and immediately he spotted the two 20 accused persons in the remand prison he informed the police. If as the accused said, they had never met Ngilante before why should Ngilante point out complete strangers and say that they were the ones c with whom he was and that they were the ona. who attacked him if infact he had never seen them? TTgilante would have no difficult of identifying the accused persons as he had been with then foi.ot i of the day that particular day. In so far as the evidence of ITgilante is concsrned, I have not the 30 slightest hesitation in believing his testimOny and I an fully satisfied that he is a witness of truth and that what he has stated is a true account of what he saw. The witness, the deceased and the accused persons were in the sane company in sane place when the witness was attacked by one of the accused. The deceased was found lying almost dead in the sane place. In the circumstances I can reach no other conclusion othr than that the two accused persons in this case, are the one' in conce't 40 with the other person' with whom they were, who attacked the deceased and caused his death. On the' whole as the evidence stands, I en satisfied beyond any doubt that the DrosAn1liOx hiic Fx-uve their case, ..../39 ........... - 39 - beyond any resonahie doubts that the acdused are the ones who attacked the deceased. Like the two assessors, I find the two aCCUSed Yoran and Bikolinana.. guilty of the offence of nurder c/s 196 of the Penal Cdcle and I convict each of then accordingly. Sgd. N.M. MtJSHI, JUDGE. 30/11/79 30/11/75: 3-c Coran: N.M. LffJSHI, J. Mr. Patel for Legal Corps for Accused Accused: Present Judgrient read in court. MitJtibnt - Mr. Patel: I have nothing to say. Mr. Chaila: The law provides only one sentence. NTTNCi: I am hound by the law and sentence each accused person to sufer death by hanging. Sgd. N.M. r'IJTSHI, JTTDGF. 2C 30/1l/9 \j Right of appeal exp1aned. S 7 - Sgd. N . lvi. MTJHI, 30/11/79 'I ssesEiors were discharged on 23/11/79 . •......• ./40