19800731 TZHC Tabora

sz, - " j IN THt HIGH COURT OF TANZANIA j27t44R 1981 • AT TABORA. • ORIGINAL JURISDICTION (Tabora Registry) CRIMINAL SESSIONS CASE NO.71 OF 1978 The Republic versus S MATHIAS KABADI CHARGE: MURDER c/so 196 OF THE PENAL DE JUDGMENT 10 CHIPETA, J: The accused person in this case, Mathias 1abadi, stands charged with the offence of Murder c/s 196 of the Penal Code0 The Republic has alleged that on or about 13th June, 1977, in Shinyanga Region, the accused murdered one Sumayi d/o Ngulya. The accused pleaded "not guilty" to the charge. The Republic has aQduced the following evidence: the deceased, Sumayi djo Ngulya, was a resident of Ngulyati village, in Bariadi District shinyanga Region, where she had a single- roomed mud and wattle hut in which she lived with her daughter, one 20 • Raheli alias Kwanu d/o Masjndj (.w.i.). The accused is also 4 a resident of Ngulyati village and his two—roomed hut was tiTree huts away from that of the deceased. Some five or six months prior to the incident which is the subject—matter of this case, the accused who had a wife, took P.W.I. as his concubine and P.W.I. actually moved into the accused's hut. That concubinage lasted about five months, and thereafter, the two\ fell out, with P.w.I. charging that the accused had failed to look: after her. She then left the accused's home,and went back to her mother's home. 30 On or about •the 12th of June, 1977, a daughter of the accused died at about 7.00 p.m. -and the burial cf the child took place that very night0 As is the custom in the area, some five neighbours of the accused spent the night at the funeral, in the accused's hut. The five men and the accused slept in one room of the hut while the accused's wife and mother slept in the second room. Among the five men were P.w.2. P0W.3 and P,W.4. Meanwhile that same night, the deceased and P.wI. were sleeping in their single—roomed hut, and each of them had her own bed6 The bed of P.W.I. was near the door. ko ...../28 -28- While the deceased and PW.I. were thus sleeping, at about 5.00 am,, a man, armed with a panga, opened the door of the deceased's hut, walked pat.P,W.I.'s bed, went to where the deceased was sleeping and started to slash her with a panga all over the body including the head, and limbs0 Altogether the culprit inflicted thirteen deep cut wounds on the deceased0 She died on the spot0 As the man was slashing the deceased with the panga, P.W.I. woke up. From moinhight which was coming into the hut through the open door, P.W.I. recognized the ma:i to be her former 10 paramour, Mathias Kabadi, the accused in this case0 She then started to raise an alarm. Having finished with the d.eased, the accused turned to P0w.i.., who was still raising an alarm, and cut her at least three times and so caused P.W.I. to sustain three ugly cut wounds. P.W.I. carries ugly scurs of those wounds to this day. While the accused was attacking her, P.W.I. continued to raise an alarm, and as people rushed to the scene, the accused ran out of the hut and disappeared. Those people who were sleepirg in the accused's house were 20 aroused from sleep by the alarm raised by P.W.I. On waking up., they were shocked to fine that the accused was not in the house! There was another surprise for the five menand two women in that hut: W!'in they tried to open the front door, thedoor would not had been locked from outside! The five men however, -e'gud tcp ovt through, the rear door. On arrival at the scene, those who answered the alarm were told by P.W.I, that she and •the deceased had been cut with a panga by her former paramour, Mathias Kabadi, the accused in this case-. . . 30 Most, if not all, men in that village answered the alarm, but the accused wa8 notably absent. This too surprised people as it is the practice in the area that all men must answer an alarm, and that those who do not do so are liable to be "fined." Not o.nly did the accused not turn up at the scene, but he dissapeared from the village. His fellow-villagers who:.testified in this case said that they did not see the accused again till they came,here and saw him in this court. The matter was then reported to police, and the police went to the village and took the dead body to hospital. The doctor who conducted the CiUtop.gyon the body of the deceased observed that the deceased had thirteen deep cut wounds and a fractured arm. In the doctor's opinion, the cause of death of the deceased was severe haemorrhage and shock. Some four months later, that is, on 18th October, 1977, the accused was arrested in Biharamulo District at his brother-in-law's house.' He theh èhaged with this offence, •1 -29- In his unsworn statement in his defence, the accused said that at 7.00 p.m. on 12th June, 1977, hischild died and they buried her that same night at 8.00 p.m. Thereafter some of those.who attended the funeral dispersed, but others remained there4 His wife and mother then started weeping ]iLtter1y and he too started to weep. After they had retired for the Pight, he realised that he would weep bitterly himself. S.o he decided to go to his sister to go and rest there. He remained at his. sister's place until on 18th 0tober, 1977, when he was arrested. The accused called io no witnesses on his own behalf. At this juncture, let me point out that in the course of the trial, one of the two gentlemen assessors with whom I started the trial was taken seriously ill. As reports indicated that there was no hope of his speedy recovery, I ruled, under the provisions of section 270 (1) of the Ci'iminal Procedure Code, that the trial should proceed with the assistance of the remaining' gentleman assessor. After my summing-up to the gentleman assessor, the gentleman assessor said that be fully accepted thhevidence of the prosecution 20 witnesses and rejected the defence of/accused. He was satisfied that P.W.I. was a truthful witness and correctly identified the accused. He added that the evidence of P.W.I. was corroborated bythe evidence of P.W.2, P.W.3, and P.W.4. The gotleman assessor advised that the accused be found guilty of murdet as charged there can De no doubt on the evidence before this court that a woman by the name of'Sumayi d/o Ngulyais dead, and that she died a violent death. In view of the very brutal manner in which- the culprit caused the deceased's death, there can equally be no doubt 30 that that culprit intel-ided either to kill the deceased or cause her grievous bodily I.arm. In other words, the deceased was murdered. What is seriously in dispute is: who murdered the deceased? • The prosecution's evidence was both direct and circumstan. • The direct evidence is to be found in the testimony of P.W.I. who is the sole witness who claimed to have seen and identified the culprit, and the circumstantial evidence is to be found in the testimony of the rest of the prosecution witnesses, in particular, that of P.W.2, P.W.3 and P,W.4, First, I will turn to the evidence of P.W.I. Having heard 4o and observed this witness as she gave evidence, I am left in no doubt at all that she is •a truthful witness. The question that next poses itself is whether she correctly described what she saw. It is well settled that a conviction resting entirely on the evidence of identification of a single witness often •causes some degree of uneasiness,, particularly where the circumstances favouring £ a correct ' identification were djfficult. ............,/30 -3°-'.. As was pointed out by the Court of Appeal for Eastern Africa in the case of Abdallah bin Wendo and Pnother V. R. 20 E.A.C.A. 166,at page 168: "subject to well—known exceptions it is ttlte law that a fact maybe, proved by the testimoriy of a single witness but this rule does not L'esen the need for testing with the greatest care the evidence of a single witness- respectrg identification especially when it is knbwn that the conditions favouring a iDrrect identifidation were dificult. 10 In such circumstances what is needed is other evidence, whether i he circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification., although based on the testimony of a single witness., can safely be accepted as free from the pos.ibility of error."' That is as it should be,for".an honest and truthful witness may innocently, be mistaken as to the identification of a perspn or an object. . I respectfully agree with the learned counsel for the 20 defence that the circumstances favouring a correct identification in the instant case were diffic.lt., and that as the evidence of identification of the culprit is that of P.W.I. alone, there 'is need for testing with the grates't care the testimony of P.W.. It is not in dispute that the incident occurred at night and that P.w.I was aroused from sleep. Those circumstances were certainly 'difficult for a 'correct identification. But those, were not the only circumstances. The evidence of P.W.I., which I accept, Is that the door was open and so moonlight was coming into the hut through that open door. The accused was not a stranger 30 to P.W.I. Not only was he a close neighbour of the witness, but he an.1 the witness hae. known each other intimately by reason of their concubinage which lasted about five months durir.g which period '1 they lived under the same roof. There is yet another'point. P.W.I. was not ettacked while she was as.leep. The culprit first attacked the deceaged, and, at the time P.W.I. woke up, the culprit was still attacking the deceased. It was after he had finished with the deceasedthat the culprit went to attack P.W.I. .e was then' and was raLsing ar alarm'. From the number of injuries inflicted on 40 the deceased aid P.W.I., it is evident that the culprit was in that hut for some time. it is not something which happened in a flash.. All these circumstances in my view s did favour a correct / identification : o f the culprit by P.W.I.10. The credibility of P.W.I. is enhanced frther b' the fact that she made an immediate report t4i those who firs we't to the scene. She immediately positively named the accused as being the parson who had attacked her and the deceased; and this was at a time when she ha# not known that the accused was not in his house. - •../31 , . . -31- n the basis of the foreoin, I entirely an4resectfu1ly agree with the finding of the gentleman assessor and hold that P.W.I. correctly identifiel the accused as the person who attacked her and killed the deceased. Such doubts as one may have as to the correct jdentifidation of the accused by P.W.I. are dispelled by the evidence of PW2 1 P,w,3 and P.W.4 1 which evidence I accept as cogent and reli41e.-- ; The accused left his house leaving therein his neighbours who were there for a funeal.of vihich the accused was the bereaved' - A.the witnesses poihtedo.ut, that was most odd. As if that were 10 not enough, the accused found it necessary to lock the frcnt door 'from the outside. in.my view, that conduct of the accused strongly suggests that he was on some sinister mission and wanted to make it difficult for those ilside the house to come out easily should need arise. Andsuch #eed did arise. Not' only did the accused fail to turn up in answer to the alar', but he d'iappeared frcm the village altogether and went to a very, distant place where ie lived for several months houlldLR of justice cught up with him. 20 • • in my cons\dere view, therefore, and in respectful agreement with the gentlern'n a!sessor, this very strange conduct of the / accused is indjave of guilt, and fully corroboratescircumstantially, the testimony of P. The accused tjie4 \o explain away his strange conduct that night and subseuent the?to by saying that he feared weeping • bitterly and wanted a rest\in some other place. Having carefully considered his defence, I am'atisfied that his story is a ridiculous and preposteros li \ The truth of the matter is that the accused was a' fugitive of juice. Having carefully considered thentire evidence on record,' i am 30 .ent1ei:.an. J,ssessoP1 satisfied, and beyond reasonable doubt,\aS was the/erson who tha the killed the deceased was none other than ie acused now before me. As the killing was obviouslr deliberate and\Jith malice aforethought,' I am satisfied that the prosecution has proved "kt s case beyond reasonable doubt against the accused. I acordiny find the aCcused, Mathias s/o Kabadi, guiltyaf murer , as charged, and I çluly convict him forthwith. • ' B. D.CHIPETA / JUDGE. 32-. 31/7/80 Corm: As before. • Accused present undet custody. • Judgment delivered ih open court this 31st day 5of • JU1j 3, 1980. V 1; B. .D CHIPETA, V V • V JUDGE. V V • V V hands Miss Kimara: As there is only one sehtencej our are V - tied4 VV • V Accused:. I have a motherand children. That is all. • 10 Sentence; You, Mathias s/o Kabadi, have been found guilty • V • and convicted on this very serious charge for V • which there is but one penalty, and that is death. V I accordingly sentence you to death, and you hall V • suffer death by hanging. V V V • V • B. .. CHIP TA, V • JUDGE. 31/7/80 V V V Rights of appeal exp1raIned. 20 B. D. CHIPTA, V V V V JUDGE. V Gentlemen Assessors thanked and discharged. V V SHINYANGA V V C. T.P. 1 1 V V 31/7/80 V • B. D. CHIPETA..