19840709 TZHC Dar es Salaam

, IN THE HIGH COURT OF TANZANIP,. <•. AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 15 OF 1980 THE REPUBLIC versus RAMADHANI JV'iFAUME JUDG EfvlENT MAINA, J~ The accusetl, Ramadhani Mf~ume, stands charged with murder co,.,trary to .. sectio...,··196 of the Pe,..,al Codeo It is al- leged by ttie•'prosecutio,..,•·that o.., or about the·•sth day of February, 1979 at Ki~o,.,do..,i area i,.., Dar es Salaam Region, the"accused murdered o...,e Christabel-a Elias. The .. accused has"Zde,-,ied the charge,·• Briefly, the prosecutio"' evidence is as·'follows:' · .. Ttie deceased, Christ,iliela Elias 9 ~as a resident of Ki,-,ondoni ~rea iH Dar es Salaamo She had her ow"' houseo She had '"'0 chi!dren~ I"' 1974 the accusec:l who was the deceased•s"'lover, moved f,..,to the deceased•s house anc:l they lived together in that house until th~ time of her death i,., February, 1979.. Th~ deceased;'s ~lose friend, PW4 Dorothy Mhagama, who was also .. reside,..,t of Kino..,do;.ii gt '\:hat time, said that the accused had a ... other lover, a woman know,.., as·• Mama Pilio ·· Dorothy ..u~ed to visit the dtkeased at her houseo On ,6~'2.1979 i,.., .. the mor..,ing, PW4 Dorothy we,..,t to the deceased I s house a'."d she fou"'d both the deceased a..,d the accused there.. The deceased t?ld Dorothy that the accused had borrowed shs .. 1,500/; from the deceased but that the accused had refusecl to repay the li\oney~· The accused admi tt!ed he owed the deceased mo..,ey but he had "0 mo,-,ey to repay the loa ......- The deceasetl told the accused to vacate"'her house but the accu~ed said .. he M!d no where to stay. Dorothy .. a,-,d the deceased the- left and went to their place of work-:.' 0"' 7 .. 2., 1979 Dorothy met the deceased at thg deceased'~ hous~ and they walked together to work, as u·sualo I ... the afte~oo.., a ... d also i,-, the eve,.,i,,.,g of 7 o 2. 79, the de~eased requested Dorothy to stay at the ' deceasetl•s house for th~ ,,.,ight because the deceased said she was frighte..,.,ed to sleep alo;.;e i"' the.'house. The deceased furthei:' told Dorothy"that for three "'ights c.y... secuti vely the accused htld "'ot ?Hept i:r the house. Dorothy said that .. she refused 'l:o spe,-,d the ,-,igtl.t at the deceased•s houseo She we...,t home leavi,-,g the deceased aloneo That was the last time she saw the deceased aliveo ' oeooooo/2 - .2 • On 80201979 at about 1C a.mo, PW1 Mary Ngoma wa~ outside her house, about 2S paces from the tleceased's house antl she saw the accus~d breaki,.,g the bedroom"wi,.,dot-.1 of the house i,., whi~h the acd.l'.sed a,..,d"the deceased had bee,.., livi,..,g. The accu!l'ed did ,-,c:St reply when Mai:'y i,.,quired as to why the accused was breaki,..,g the window. The wit,-,ess as~umed that the accused had lo~t a key''to the dcfor. After a few Mi,.,utes the accusetl succeeded i,., breaki,.,g the wi,-,dow and peeped i,-,to the roomo Whe,..,''PW1 Mary came out! of her house he saw the acctlsed raisi,..,g alarm a.-.d"ma,-,y people we ... t there. PW2" Masudi Kah~,.,ge said that h~ was i,., hfs house at ab?ut 10 aomo on B.2e79 wh~-r, the accused we,-,t"there a,..,d report~d th?t the bed and matress i,., t!he house had bee,., bur,..,t by"'fire a,..,d that the"deceased too had bee,., bu~t. The a~cused r~tur... ed to hi~ hcuse a,.,d PW2 Maiudi who is deceased's u,..,cle, we~t t~ the scene where it was later confirmed that :t;he deceased had died i,.., th~ roomo The evide,.,ce"of PW7 Detec!tive sergea,.,t Major Joseph was that at about 10 ·a~'mo o,,, 80 2.19'79 i,.,form~b.0,.,"was received at oyster Bay - Police tta'l!io,., that a woma,., had bee,., bu:):\,-,t t0 death at her house at Ki1"0,-,do,-,io Sgt. Major Joseph"could ,.,ot know who reported the matter. He proceeded tn th,? see ... ~ immediately. t),., arrivi~g theret Sgt Maj or Joseph said that he fou,.,d the aecused a""d tHe te,.,-cells Xeader as well as othei:' people"'at the sce,...eo Accordi,.,g to thts wit- ness, the door was ope"'o He ~,.,tered the bedroom where he found the dead body of the dece~sed :t'yi,..,tj o,.., the floo~ .. Sgt Majo~ Jo~eph said that the body had bee,., bu~t o,.., th~ face, o,., the arMs a,.,d o,., the lego No"other parts of ttte body had been"bu.~t. 'Irie wi t,-,ess said that the wi11dow was broke,.., a,.,d water had bee"' poured on the flooi:".. The accu- sed told tiim that"he poured water to put off the fire and that he had brokel" the wi~dow because the room was darko There was a gallor, of local liquor i"' the room ~s well as empty bottles''of beero The local liquor was later exami..-.ed by"a Govt ..."Chgmist a,.,d the report ( B:;chibi t P1) sho11s that there"was ,.,o poiso,., i,.., the local liquor .. Another Police.. officer, fW3 I1:spector Hadija Kiparisi, told the court tttat whe,, she arrived at the deceased•s hou~e at about 11 a m0 , 0 she four,d PW7 Sgt MMjor Joseph already at the sce,.,go The accused too was .. there. I,.,spector Kiparisi ::;aid that whe"' she arrived at" the scsc!re, the door _to b11:'"b0-:iroom t,Jas . . locke<i ct.,..d efforts were beir,g mad~ by Sgt Major Joseph a,.,d tt\e 't'.en-cells H:lader to''break the door~; EVentually, the door was broke,., in the prese,.,ce of r,,sp .. Kipt!risi a'l"ld the police erite.red the deceased' s bedroom with the ace Used and o~her people prese..-.to The dead body of the deceased was fou,.,d lying or, ·o o o o o e o /3 I· - 3 - the fI00r '"'ear thg bed. The whLle bed a,,d matress toijeth~r with beddi,.,gs were buD"t. The"deceased' s bc,dy tu0 was tlurnt o,, several parts.·· The accused was i,..,terr1.>gatet? a,...tl he was se..,t tu the I:-olice Static,,., after the dead body had bee.,... se"'t 1.-0 the mortuary at Muhi- mbil i Medical Ce.., tre ... The deceased•s ,.,ephew, FWS Mafia Mpombo received informatio'"' about the death of the'.'dedfosetI.· · 0"' the same tlay, 80 2. 79 Matia Mpombo visited the sce""'e a,;,d on 11.·2.·79 he· ide..,tified the deacf bodY to the doctor at the MU.hitilh:ilf mortuafyo 'i'he po~tmortem e:X'.amir,ation repo'rt was produced as a"' exhibit, u,-,der sectic,,., 275 of the Crimir-al r rocedure cot.le. "The report ( EXhibi t pS) shows tttat ~he deceased was severely bur,-,t O"' the 'face, shoulder uppef arm a,,d 6.,i, other parts of the body but the"bur,.,s were moi'e severe o,;.,.the"left side. The cause of death is give,., as 11 severe a,..,d exte,..,sive bur,a,s (about 90% total surface.).11., · •· o,-, 11. 2o 1979 PW7 Detectfve··sgt.- Major· Joseph searched the house of or,e Asha Mohamed who•·was k,-,ow,., tc, be the accused's lover. It was,. reported to police by o,...e Maria Mpombo a relative·'of ~he deceased, that sc,me of the deceasetl•s properties were missing in the house. In the course of searchi'"'g Asha Mohamed's hous~, Detective Joseph recovered a red suitcase, six plastic pl:ates a,...d. a Ratlio paper . box, all of which Maria Mpombo allegedly ide,..,tifted a~ being ~he deceased's properties. These propertie~ were seized a,..,d t~,..,dered in court as exhibits,. Maria Mpombo was not called\ as .. a wit..,ess-. The accused gave evide-nce o,, oath a""'d tie did",,ot- call a wit- ness. He said tttat the deceased was his fia,...cee a,..,d that they had lived togethe.t' i.?'I the deceased's house since 19740 The .. accus~d said that he •had a,,othel' woma,., who was his lover. Tha1! woma11··was named Asha Mohamed. Whe,.,ever the accused wished to sp~nd the night at Asha 1 s house h~ would ttHl the"deceased that he was goi,,g to work a!"'d that he was goi,.,g to spe,,d the ,...ight ai: his place of work .... THat was a deli- berate !ie"to the deceased.·· o,, 7. 2.1979"1,, the eveni,.,g the deceased was di'inki?'lg local liquor ig the house a,-,d the accused lied to her by telli,.,g her that he was goi?'lg to his place of ~ork. The ac~used said that he left the house a~ about 9 p.mi.' He spe?'lt the whole"night with Asha at Asha•s house. Oh the followi,,g day the accused'. we11i: to the dock where he· worked as a casual labourer. 'There ¼las ,-,ot e,.,ough work that day. So, a~ about 10 a.m.; the accused retu~,..,ed to the deceased•s house.·· H~ haq a key to the''back door. He ur-lock~d the door a,...d ope,,ed it. "o;,, e,.,teri,...g tHe house, the accused said, he felt it was hot i,.,side. He fou,..,d that th_e bedroom door wa~. locked. The accused had lost nis key to the bedroom. Qr,ly o,,e eco•(.)4',,,/4 - -'\, ""~-::,.: ::::=., # : t ::~:,· ·:::::: -lo · '..,. 1 i,f~~,~=f ... ,,.,,.,. . ' ~.. J - 4 key was kept·'by the deceased. so"the ac~u~2d"had to break the ·· window to fi,..,d out what had .. happe..,gd. o,., doi,-,g so, he looked into the bedroom, through·'the wi,..,dow, a...,d he saw a lot of smoke. ·'The deceased was lying o,., · ~he flucr. The ad!used pe;ured water into the bedroom"through/the wi,-,dcw befd''e he ft.,u,-,CJ 0ut thMt the deceased was·'bur't'f and the bed with the mattress antl beddi,-,gs were also t ,. • . ,l ·,. • 11 burnt., The accused said that he we..:t t(• infc rm the te':'-ceLls leMder who was r,ot · at tk>me. The accused i~formed Ma~di what had happerietl. He tl.lso teleph( ned the Police. Then he retur,,ed t'--. ..the house cryir,g. When Police art"iv~d there, the.'bedrc1(_,m·'dL,0r was still lc,cked. The . . . door was broke,.., arid tttey all eritel:'ed ~ ... ct saw the ·dead b0qy of the dcccaged with bu~s o,., the .face .. a"'d u'"' the st(mach. There was a ·.... gnllon cf lc,cal !iqucr which PL-lice tL,c,~ away. The accused was later thut satrte tlay se,-,t to ~he P0l!ce statiu,., where he was chc.1rged. He hcis bee'I" i,-, cuatcdy.,si..,ce the..,. , There ca,.., be T'IC dc.ubt that'. Christobela is dead a,.,d that Her death was due ~(.. the severe bu~~- The dead bc:dy was duly .. idel'ltified as already poi..,ted cut earliel:I i,-, this"judgeme .... t. .'l'he wi t,-,esses whc suw the dead b0dy·'testified c n the bun,s they saw l·__,., the dead body of· the deceased ar,d this is suppc,rted by the doctor's report ( EXhibit P1) • ·r am satisfietl, a,.,d s~/'h,.. ld, that Christ,;bela Elias died from the severe a,..,d exte-nsive ~u~s. Wh2t is ~ericusly i., dispute is this: who killed the.· deceased'? The prosecutio,., alleged that·'the accused caused {.he death 0f th~ deceased. The evide,-,ce agaf-nst the accused i~ whclly ci&umstantial.- Bef0re the Cc. urt Cl.rivicts · '-'"' wh1...l!y circumsta,-,tial evfde,-,ce, it must , be satisfied that that such evide,...ce irres!stiblY pl:ints to. tne guilt of thg accused. I matle it cl~ar tl. the gentl~me,.., assessors ir, my . .(;. surnrning··up that the o,-,Us is c-,., the prL, secutiCJ,., tc/'prc ve ttie accused I s guiit a:rd that the sta,-,tlard of proof must be beyo,.,d reaso,.,able dotlbt~· Going back tc.. circutrtsta.... tial evide.-.ce, the pri,.,ciple was !aid down i,., the cnse cf Xipkesing arap Koske v R ( 1949) '.1.6 EACA 135 in which the Court of Appeal said: ''IT' a case df;pe-ndi,-,g wholly o,.., cirs:;umstatial evideT'lce the court •.must find, b!;;fure COT'IVicting, that the i,..culpatory facts are inccmpatible with the 1..,,..,cce,.,ce of the accused or,d 1,-,capable 0f a,.,y other expla,-,ati0n tha,-, that of the accused's guilt 11 ~ The abfve i~ the principle c.:f la.w which this ce:urt must follow ._,s th~ evidt::!"'c~ in the"'prese,..,t case is whclly circumsta>itial. Th12 - ,. •== a L 11•• -':-y [OP .......... __ ..,.._. -·- -- ....... ~. ·-- .... ... ,.... ....... - r - -- .._ : ;,.__ ._ . " - 5 - is that he livetl with ttte deceased in the same house a,.,d that the accused was see,., breakir:g the bedn:l'ffi wi,.,dr,w the aay the"dead body of the deceased wc1~ ftu,-,ct there.• The prc-secutL..,-, has irwit2d this Ccurt tc makC;: a ff,-,di,.,g uf gui!ty because the· accused had liect t0 the clecctlsed by sayi,-,g he was goi,.,g t,.> hfs place c.,f wcrk whiie in fact he wt:?nt tc his lover's he-us~. rt··the,., the accused had gone to spe,-,d the :;ight ..with t:i..,0ther wcma,..,, then it fl. llows that the accused was not prese,-,t whe"' the deceased met his aeath. Accc rd1,.,...g t0 the''de.,. censed•s clos~ frie,-,d, PW4 DurLthy Mha"gama, 'ehe accused had .::mother womc1H lc,ver.. a,.,d th~ deceased had c0mplained on 7.2.79 that the acc!used ho.d not spe"'t the night at the deceased•s hcuse fer three days con- secutively. The pc;,ssibility therefi.!re is '1:hat the accused had gone tc , his lover Ashn. M•Jh~med wh~re he s·pe,,t t;he "'ight. There was cc,nflicting pr._s~cutio,, eViae,,ce about -the c0ndftiot' of the deceased 1 s bedrccw dLci r,., the mLrning ~f ·a.2.79. PW3 Ins- pector F-tadij a said that she ft u,..,d"the d,.'0r lccked whe,., she arrived at the scerie at ab0ut 11 a.tr!. · The l"specLr said that she· fou,..,d De:1:ec-tive Sgto Mtljcr Joseph breaki,.,g the door. But.the Sgt. MaJc:.r claimed that he found the d(:ol:' upe,.,. 'l'hat cu'"''"'ut be true. It \f,[l_·ulcl appear that th(j, o.ccu~ed dill "'vt have the key a,-,d tht{t is the reas,,,., he broke the windt>w and whe-n tie saw the deceased lying"there .. deatl, he reported tc the nefghbours a,,d b: Pc-lice. ·'There was "'C- puint .. i" accused breaking the w1:J-,dcw if t!he dc.,cr was cpe~. I }jelieve PW4 1,-,sp. Klparisi who" perso:rully fr~.u,.,d Sgt!. ·Majer Joseph a,.,d the· te,.,-cells leader breaking the door. That means 1 as ..the··accustM ·said, the accused·'arri ved··at the he-use abe,ut 10 a.me a~d ('"' · seei,.,g that it was·'hot i,.,side., and the bedrodrt was lc.d~ed frc-in inside·; he tried b. get !,.,b:: £he h0use ·by br~ctking the wi,.,dow;. rt was f,., brc-ad dayligttt a,.,d a neighb0ur,. PW1 Mary !Jgoma, saw h!m. on fi,-,tli,..,g thtlt his fiancee was dead, the accused wet,t <.,pe;.:ly. I do ,.,ct thh,k that the accused had killed the deceased a,-,d.,then.,tried tc cover it up. It is ..,ot k,..,ow,., how th.- fit'e 1 . . . the ru;m started ~,,d I am··not prepared tc speculate. All I ca,., saY is tHat there is "'v eviqe-nce tc.- provc that the deceasea was killed a..,a the"' the budy was set o,., fire 0.s alleged by the leat""ed st~te Attct',.,ey The deceat:J"ett was a ci.ga- • rnttc sm0ker and she had bee" dri..,ki,..,g pc mbe ~he eve"'i"'g of 7 • 2·• 79. The possibility is that the fire may have·~ee,., started by a ctgarafte while the"'deceasetl was asleep~; That is e,nly a possibility si,-,ce only the bed and beddi,,gs were f(,Ul"d bu~t tcgether with ~he deceased' s b0dy. rhe accused may hRve lied t~ the deceased when he we~t t0 his lover But that ·1s ,-,ot oo•a<'Ot'J/6 1!l a +ec ...... ■ • .,; .J ,r I • f evidence that he killed her. The sui~case a~d plates fou,.,d f~ the house cf accusE:!d 1 ~ lover, Asha, have ,-,e,t; b-2e,, prcved tu bel01:1g"tc the deceased a,.,a ,-,either is there evidence that the accused sent them to Asha 0'.1" the night the deceased was killed. THose could be··AsHa is prope~ties as alleged by tne accused~ Asha did ,.,ot testify a,.,d nefther did any wit,-,ess give evide..,ce tl: identify these prt:perties as belo,.,g.1,-,g to ~he deceased. with resptkt_, I··agree with beth ge,.,tlema~ assessors who found th2t th<¥ prcsecutic,., did ""ct pr, ve the ~harge agai,-,st the accused. It is for the fcregct""g reas,.,,s that I fi,,d the charge ,,ot prcved. The nccused is acquitted a~d discharged. ' (. W~J O MA.INA) JUDGE Dll.R ES SiJ.,hJ\.l'IJ. 9th JUly, 1984 Mr. Kynru~i for the Republic .Miss Bayona, Cou,-,sel tor tha accused Assesscrs are tha,.,ked a,,d discharged i I. 1, !! \ ,{ i.-t·\ (·~.;! :1.··, :': W.-3.;. MAINA JUDGE 9.7.84