19851028 TZHC Dar es Salaam

IN THE HIGH COUnT OF TANZANIA at DAR.ES SALAAM ORIGINAL JUJISVICTION CRIMrnAt SESSIONS CASE NO. 32 OF 1980 The Republic versus Mpamba Rashid Aged 47 Nationality Tanzanian Charge Murder c/s 196 of the Penal Code JUDGMENT ......... ) The ~ocused-persot1 Mpamba s/fJ Rashidi is charged with _the offence of murder c/s 196 of the Penal Code. It is alleged that on 5th day of Mai-ch, 1978, the a9cused murdered Juma s/0 Ramadhani. ;,, . In support of the charge, p~osecution called in six witnessess. Briefly their evidshce is as under:- The first prosecution witness was Abdallah Juma ( According to him he told the Court that he was a police officer at Kibaha Police station and that on 24/3/78 he ·was going to Mlandizi and on the way he met Jwnaane a militia man who told him that at Kisabi village a person was murderedo In support of him statement, he gave him a letter which he alleged to have picked outside the house of the deceased the letter had been tendered in Court as Ex.pl. later MWI met Dadi(M02) the deceased's friend who told him about the death of the.deceased. On receipt of this report, this police officer PWl ~ogother with Dadi and some militia men went to the accused's house and mounted a search from therein. As a result of the search, three plastic paints full of local brew commonly known as "gongo" was found. · The accused was then arrested and taken to the police station where the present charge was preferred against him.': Mr. Dadi ( MW2) told deceased friend and tr.at they always worked together as casual labourers by farming in farms of people who employed them. He recalled that on 5/3/78 he with the dece.ased worked as labourers in the farms of Makaratasi; Mustafa Miss Nicole and the accused. After worki.ng··in the farm of Miss Nkule, they went to the accused's house to drink 11 gong 0 11 and they consumed to 0 bottles. 2 ~,. : , ... ;.,. When they were farming in the farm of the accl,l.S'ed the deceased appeared to be drunk and he did not cJ.Utivate properly .reS,I.\J.ti.a.g .his departure from the accused 1 s shamba leaving his ttiend Dadi(MO2) doing the job 6f digging aioae. Hheli Dadi had finished the job assigned to thel)l by the accused he -~ht to th$ accused's house to demand for his payme.oi. There he saw his f,rie4d the deceased being quite drunk and he was learning against a paw paw tree. Dadi then demanded fer payment from the accused the acoused got angry and took a po.ti.11ding stick and hit the deceased on the head with it _·iijle deceased fell down. The accused then wanted to his PW2 bu.t MO2~ran away 9 caught a boat and crossed river Ru.vu as he t-ias on the o ~ side of river Ruvu alld by then it was at about 8 p.m. he was the accbsed dragging the deceased and threw Jiim into river Ruvu. He manage-a to see the accused doing this with the help of moonlight. He shouted !or help but no one ca~e to his aid. He then decided to go to bed and the n~xt day he reported about this incident to miss Nkole and tho ten cells leader Mr. Rashidi s/o Almasi. Mr. Dadi(MW2) further claimed that village elders of Kisabi village advised and warned him that he should keep quiet about this incident and he should not reveal it to a.ayorie. Ho remembered that one day he met a· person called "mtu kwao" and .he requested with kwao to write a letter to the deceased's relatives informing them about the death of their relative - the deceased for he himself dbes not know how to read and write. 24hrs Kwao complied with this ~equest and as a result a letter Ex. Nl was written lldx: i-iith noo Dadi himself look and dropped outside the house of Miss Asha d/r Ramadhani (male) the deceased's sister. There is then-··the evidence of Iddi Uhondo (MO2) wio i~ the accused's relative who iold the court that on the date in question he met JW2 on the way and )(O2 told him that the assed was beating the deceased. He rushed to the scene with the view of stopping the fight and when h17 reached the scene/ he did ue the accused beating the deceased and he tried to 11 & l-o,.ad with the accused to stop beating the deceased but the accuse~ did not need the advice. Later he «id see t e accused trQwing ttl'-0 deceased into the river which was by then 0ver flooding. He further told the cow that both the accused aod'. the deceased appeared to be dr11nk. Miss Mwungano(M04) told the =;• Court that :ltbtK He was the accused's firl friend and •.. /3 ...... - 3 ... that ·on the date ill question -when the amused was fight.iJlg W'ith the deoaased and his friend Daudi she was present. She admitted to have seen the aoused beating up the deceased aAd threw him into the river. She t 00 stated that t:he deceased and the tlOOGsod ... ' ware dru..nk. The same story as th-at given by I~- was give.n by·:; ~r~l'f~ Abdalla.ti (MWS)" ,. iiiei's Asha ·:Rani~dhani (PW6) told the Court that t.he deoeased was her brother and that the deceased did:•n.ot know bow to swim and· from the date she,· received the letter Ex.Pl up to date ahe had not seen her brother the deceased. The accused in his evidence denied to have killed the deceased and ha put up the ciefe.nce of alibi i.n that bri 5/3/7'8 he was 11ot ia K1sabi village where the offe_nce is all~g~d ~o have be~ ,,, oommitted but that _he was in mad.imla'. village a_ttendi.Ag the tuner~~ of his deceased sis~er called A·s.naFud:ni. ·. He came ·back to Kisabi village on ··W/3/78 a.nd ha is eu~prised to be arrested ·~d. cha.ngcid with this ' It is true that the d~·ad body. or the deceased 'Was Aot reooverd ·from .. I . , . . . , ttie river. Un'.der section 117 of th0 Evideace·.Aot, 1967 it is the law w.tiioh. says that where a person dis~ppears for a period. ot five ye~;rs. or more, he is prassumed to be.dead •. r4ore ai1d above tdi:ile death may '.be proved b.t circumstantial .. evidence. w,ithcut eVi.de.no'e :as to the productioll of the body of thG a1;egedl;>1 dea~ person and. with out a.ny evidea.ce of a person. who saw th.e body of. th~ da~d persc/n ··alid with out a confesaion. by by a pers o,n aoousod that he oa.ised the deai.b. ,: · 1et wher·~ a o·ourt ij asked 1 o f illd ·iii a muder _oharge· that a pe.t"s·ot1 is dead. ~.n the ci-.r•cwnata.noes infer the death must be such as to compel th0 Llferance of death ·and mU:at be such as to be in COllsietent wit~ aAy raa_sohabl~ theori of the alleged deceased, b~ing alive, ij~~h the re8ult t~~n: as a wbole the av idell.c·e leaves ao d~ubt what eoe\fer that t.he pers.6ii. in gu~stion is dead. Iii. the instant case we have the evidonoe of·P·.w.2 . the daoe~.eed'e frie.d'd; Iddi Uhqiido (PW.3); Miss ~ ' Muunga.no(PW.4) HarWla Abdallaha (P.wb,) who all saw the aoousod trowint . ' .t ' the deceased into tb;e river after beating him and alao we hive heard the eVidelloe of the dece_4sedis siete~ ofie Miss. Asha d/o Ramadhani (PW.6) who testified that the deceased do:e~ not . .k.nO'W how to swill.; so ·1t is q ' ' natural that when he was thrown i.Ato the ••·••·•••••o••••·••• Yiver he wa~ drow11ed &Ad from 1978 up to th.e year 1985 when. the hearillg of this ca case ie oonduote'd, the deoeased has .never been sen.n. . . ' '"'·•··· ' ~,,.. .... ,,., •·' 4 It is therefore clear that Juma s/o Tamadhani s1 dead. It is true as comducted by Mr. Mwakajinga lea:rned consel for the accused that the evidence of Mro ~odi (P.W.2) th~ deceased's friend is is unreliable for various reasons and.one of the reasons is that this witness claims to be th~ best friend of the deceased but when hiB friend died he never reported the incident to th'e police station and worst still he went to the deceased Is relatives and· dribpped a letter Ex. N, outside the house of Asha - the deceased's ·sister without making an effor~ of summonihg the deceased's relatives and in-form them about the incident, However, his evidence has been corroborated by the evidence of Misso l\iwu.ngano (PW.4); Iddi Uho.ndo (P.W.p), and 1 Haruna PW.5) who all saw the accused beating up the deceased and throwitn hi@ into a :river Ruvu. It is evident from the evidence . available that of Pw.3, ~~.4, PW.5 and that Dabi (E.W.2) that the deceased vias drunk by the time he attacked the deceasedo The type of alcohol that he took. was 11 gongo 11 for Dadi (Po W. 2) confirms that he with his friend the deceased have been drinking "gongo" in the accused's house and the accused himself was the one who sold them the said gongo. It is further confirmed by Mr. Abdallaha (PoW.1) a pooice Officer that when he arrested the accused he~/ found three plastic - pails full of 11 gongo" in the accused's house. So it goes without saying that the accused is a dealer of "gongo" and he drinks it. It is commonly known that "gongo" is a very strong nati\1\0 alcoholo I therefore hold that when the accused attacked the dec~ased, and threw him into 1?i~er Ruvu he was ·drunk and he did not have the int·endU.nn of killing him~ Both the assessors gave a •••••••••••••••• opinion that the accused is guilty of murder but but because of the afore saidi differ from their opinion. Likewise for the same reasons, I reject the accused's differance of alibi. Accordingly 1 I find the accused not guilty of the offence of murder as dharged and I acquit him of that offence. However, for the reasons stated above I find him guilty of a lesser offence of mani&lailghter c/s 195 of the Penal i Code and convict him accordingly. Mten~e J. 28/10/85. 0. 0 /5. 5 Delivered in open coutt in the presence of the accused; Asseesrs Mra M\~aksjinga Comsel for the accused and Mr. Simbakali.la - State Attorney, this 20th day of October, 1985~ Mtet1ga, J., 28/10/85. ,J Mr. imbakaliha - My Lord, the accused has no previous r~ ;rd. , Cf ~.1!::!il!sajinga for accused: Ny Lord, the, accused' is physically de formed and r,iCh physically handicapped people are ahiays. ·••· ••••• hot tempered v1hen provoked. The accused is now 56 years. He has 9 · children \•''o :'depend. on him, he is married with a wife whq is a peasant. AJ •. of his parents are dead and he has no to support his £a-mily. The accused has been in custody f.·om 24/3/78 up tv date for a pe.riod of- Seven years; seven rnor.ths and five days. The accuse·d is sor.ry for vihat he did. I the ref ore ask for a lenient sentence on behalf of the accused. Tb8 accused person has a clean record. ~1tenga J. 28/10/85 11 1 have nothing to say. Mtenga, J., 28/10/85. , S E N T E N C •E In sentencing the accused I have in mind that he the accused has la11guished i.n custody for a period of well over seven years but I also consider the fact that human lHe has been· lost by him. I accordingly sentence him to 2 years jailo (two years fail) Mtenga , 'J. / 28/10/85. Assessors are thanked and discharged. Mtenga, J. 28/10/850. - 6 - 'i~1is is to certHy that thi:J is -c'.:1e oe:;:•tified true· copy of the original. '. .....,,..; .., J