19850515 TZHC Mbeya

2 / IN THE HIGH C'1T Oh Th::,LNIA lIT I OhIGIi1IL JTrnISDICTION (T.j'ijeva js'y) CRfl'INLL SESSIOES OLSE hO. 37 OF' 1980 .- THE EhFJBLIC e VIIRSUS RASHIDI IA1cLLOBO CUARGI. Nurde'e/s 196 of the Penal Code. JUDGEfT III] The accused person Rashid s/c Hwakalobo is charged with the offence of murder els 196 of the Penal Code in that on 30th day of August, 1978 he is alleged to have murdered Iidmu /o I'waig.mda.' It has been established by ]. ..hamod asid-(P1.5) who perfoxned post mortem examination on the dead 'body of the iceased that Jidarsu Mwangunda is dead and that he died' a violent death through stab—wounds 'I eaued by a sharp object. The short facts of the case are that on the fateil date at about p.m, Hiss Eva ICasoko (IW.1) and the deceased were coming from Masim'bi 20 pombe shop goiig towards the house of hir :.a Kasoko (ti.i) and on the way, they met a person called Simon (ThT.2'. They all three walked together and as they reached the house of Jacob s/o Hadeka (W.4) they saw the acoused with his friend whom tho did not identify,. by passing them. They managed to see the accused and identify han because there was an electrio iight at the scene 'and also the a(, cused hails from the same village of Thilga with Eva cdi o Kasoko. The deceased who was a police officer enquired from Eva d i o Kasoko T.i) as to whether the one by passing them with his friend ias ).aahid Ewahalobo (the accused) who was' being sought by police officers for the offence of shop breaking and 30 stealing and Eva d/o Kasol:o answered him in th3 affirmative whereby, the deeasd ordered the accused with his friend to stop and iinmeJ..iately there- after, the deceased came into grips with jhe accused with the view of arresting him. Simon (1M.2) came into .ips with the accusedTs friend but the accused s friend overpowered him and he escaped uiarested. In the causa of the struggle that eflsud' be'ieen .;he accused nnd the deceased, the ....../23 - 23- deceased was seen by Eva and 3irnon to have fallen down. dead while bleeding profusely from his chest. :>- the the accused had already run away from the scene i'i.ss Eva (fl;J.i; thereupon went to the house of Jacob (W.4) to call for help. PvI.4 came to the aid of Eia and Simon but when he arrived at the scene of the crime he saw the deceased already dead. The matter was then reported to the Police Station and the dead body was taken to the hospital for post mortem examination and the doctor who performed post mortem examination on it one doctor Iihamed Eashid (1W.5) gave as his opinion that the cause of death was due to bleeding through two stab wounds on the chest and on the back whi.ch wounds were caused by a sharp object 10 such as a knife. The dead body was identified to him by Senior . Inspector Nuna Hamisi (R46) as being that of a police officer Adamu Nwangunda It has also been established in evidence that soon after the incident at abou-000 p.m. the accused is alleged to have gone to the house of a certain old lady the mother of Eva (iri) one called Basileke d/o Lucas (niJ.3) and made inquiries as to the whoeabouts of her daughter Eva. Basjleke (P,3) told the accused that was not around. The accused then went on informing Njss Basiloke (FJ.3) that he the accused had just killed a person in the presence of Eva (FI.i) and ho warned ihiss Basileke (Pd.3) to warn hew daughter Eva to refrain herself from reporting about the killing 20 to police offiers. Niss Bacileko testified that she managed to see and identify the accused very clearly because by then she had her small lamp burning and the door to her house was open and she talked to the accused face to fage and also she know the accused before for they ae all of the same village of Bulyaga. The accused in his defence denied to have murdered the deceased and he raised a defence of alibi in that on the date when the offence was alleged to have been Committed, he was away from the village of Bulyaga and he was 25 miles away attending to his farms. called upon Nr. Lugano Nwasomola (Th,1) his ten cells leader to confirm his story but this witness told the 30 court that the accused was being sought by police for the offence of shop breaking and saling and as a result, the accused went into hiding and he could not tell the whereabouts of the accused on the date in question. On a fair view of the evidence as a whole it is evidently clear that the acised was the one who killed tho deceased with a sharp object for Hiss Eva (fl.l) and I•1r' 5iion (RJ2): who knew the accused long before the incident clearly identified the accused with the aid of electric light. \ 24 Their evidence is further fortified emiL cor:oborated by the evidence of Miss Basileke (i1,3) the mother of hva (P1.1) who told the court that the accused approached her with the view of warning her daughter Eva not to report about the incident to the police for :hon he killed the deceased Eva was present. The defence of alibi raised by tue accused therefore can not stand. It has boon arçued i u.:wa:zilasa learned counsel for the accused that the evidence of Miss :csi1cke (P1.3) differs with her state- ment she made at the police station in that at the police station this old lady stated that she talked with the accused through the window of her house whereas in court she stated that she talked to the accused face to 10 face through the door of her house because by then the door to her house was open. Also at the policc station this witness stated that the accused reported to her that he had attacl:ed. a person in the presence of Eva (P1,1) whereas in court she stated that the accused :eported to ho o have killed a person in the presence of va. I readily agree with the learned counsel for the accused that the presence of inconsistencies in a witnessTs evidence may make it unsafe to convict thereon, especially if there is no other evidence teiding to corroborate the same. however, the inconsistencies must in my opinion be of such a nature and .avity as wculd put a prudent tribunal- to its inquiry. Mot every Licondistency hore7er, so zimor ireaM oz' • flimsy would be taken into account in assessing a witness' s credibilit7 - see Nyakisia v. R. (1971) H.C.D. Mo. 228. In our present case, I consider these inconsistencies as being minor ones for there is enough oor±oboration from the evidence of Pi1.1 and IW.2 who clearly saw '±he accused committing the offence. More than that I saw Basileke (i.3) giving evidence in court I have cone to the conclusion that she is a witness of truth and the minor Inconsistencies that she gave in her evidence are forthwith iored. It has been stated by P1.1 that when the deceased wanted to arrest the accused, he never introduced hiusoif as a police officer only that he jumped upon him whereas P1.2 one Si.ôn told the court that the deceased 30 introduded himself as a police officer before the accused. It is now difficult to find out as to whether the deceased introduced hinsslf as a police officer or not and this being the position, thd accused is to be given the benefit of that doubt. It is therefore taken for granted that the deceased never introduced himself before the accused. I say so because if the deceased introduced himself as a police officer then the accused •..°../ 25. WPFI 1. - 25 - could have no justification wiatsoover in violently ar.sau1ting him for the deceased was engaged in the duty of lawfully axrcstin him but considering the evidence as a whole, the deceased wanted to ri'es -t the accused at night without introducing himself who he was, the accused did reasonably apprehend a serious assault upon him by a bandit and as result he defended himself in the way he did. I a'roe i1th the views given by the lady assessor that this is a border line case. Such apprehension by the accused takes the killing out of the category of murder to that of manslau-. ghter. I accordingly find the accused gnilty of the offence of manslaughter c/o 19 5 of the Penal Code and I acquit him of the offence of murder as he 10 was charg. C.G. r'Itenga, J. 15/5/85. Delivered in open court in the presence of the accused, Mr. I'idunguru-. State Attorney; Mr. Nwakilasa learned counsel for accused this 15th day of Nay, 1985, C.G.1itenga, J. 15/5/ 8 5. Nr,Ndi There is no record of Previous conviction against the accused. ._- 20 C,G.1Ttenga, J. 15/5/85. Mr rakj1asa for aôcuseth Ny Lord4 the accused is 27 years old, he has two wives and three children to support. He is a weak person who underwent operation at Nbeya Goverent Hospital last year. He has been in remand for six years and eigh-4 months. The deceased was partly the author of his own death. I thereIoe pray for leniency. ° Accusd UOn 2/5/85 when I was in custody, I got a report to the effect • that my father is dead, iy father used to take care of my wives 30 and children. My mother is old and she depends on ;e-. I ask for 1enienc3r. - ---- C.. Htena, S. 15/5/85. 26/ 26 — S L N T E N C E In sentencing the accused I have J. Lund that the o:fence he cornuiitted is a serious one and also I consider the vieut that ho has already stayed in custody for well over six years .. I therefore sentenoG hisi to to jL1 for 9 yèas. C.G. Denea.. J. 15/5J85 Assessors are tliniced and discharged. AT IVtBEYA C .G.IflI1TGA, 15Th NAY, 19 8 t) '1 J J..Atb, 10