19860321 TZHC Dar es Salaam

IN THE HIGH COURT OP 1.:JTZMHA AT DAR ES SAL.":.£!1 OFTGINAL JURISDIGT~GN ,b~Salaam Registry) . THEversus -----~;----- CRIM-IN.AL SESSIONS CASE NO. 55 OF 1985 REPUBLIG- - - - . - - - . JUD,Glil~ -KAZlMOTO --- 0 •1• J. · · · ·MT 10434 Cpl. Mayara a/o Robi, the accused in this oase, stands charged with and pleads not guilty to murder c/s 196 of the Penal Code, It is alleged by the prosecution tl1.:t on 14/4/85 he }d.lled one Mwanaisha d/o Ally, ' That Mwanaisha d/o Ally has died on 14/4/85 ,•annot be diS):lUted. There is conclusive evidence to prove tha,t fact as ah~ by the post;. mortem report ExhL·_ t P2. It h.'ls nlso be~n. admitted by 1lle defe~e that' on "11/4/85 the accused enitered the house of the de<aetsed• The prosecution case, which is t:lenied by foe defence, is that the accused hRving entered the deceased house "b~:ct l~e:i; ~ and that it wafJ that beating which led to·her death. It is also the proseqution cas& ~1.oh is further denied by the defence that the motive for tbe beating whLQh led to the death~ the deceased centered on mtsunderatandinga betw1en ~e accuaed- nnd one Rehani Abdallah Rehani (PWS) the S¢n of the dec~t1e(l• -'Th~ gent- lemen assessors v:.::l'e divided· in tha-1-r. opitJ.ion ~egarding "1',e g\QJ. t of the accused.,. I will now consider tl,e evidence and deoide :hrst U' there was any misunderstanding between the nccused and Rehani Ab<lallal\ Re.hani (PW8) which oould possibly h~ve mo,'htvri.ted the accused to a'bta,k 'th& leoeased, and secondly whether the accused beat the daeeasEl(l and finally that beating if proved could have '.led to the deatl; of· the ·clepa•\" As to the first issue whetl1e~1 t~:er.e vms any mt.sunderstqnding between the aocuaed and Rehani Abdallah Rafr1rui.i (PW8) the irosecutiom _have 1endered the evidence of Francis Robi (PW2) Selem.ani Ramadhoni (PW4) ·and Selenani SEtidi (PW5). They all testif:i.ed i.n effe:tct that on -8/4/85 th1ey attended a reoonoiliationmeeting to resolv~ a dispute between the act~used and Rehani .Abdallah Rehani (PWS) a~d- that the• dispute arose out of ace~ed action of blocking the road to preveri.t t:: .e motor vehicles of Rehan.1 Abdallah Rehan;i. (PW8) from using thnt rond.. They also testified tha11 on that dny ... 2 - the accused did not attend ~,.1d :1".d to postpone the meeting to ~'.3/4/85, .. . . They fUl'ther testified th-,t on 11/4/85 the acoused ohild was knocked by a motor Tehiole and died. In his evidence Rebani Abdallah ~eh~ni (PW8) did not refer to any meetinG h~ving taken plaoe on 8/4/85 let alone any mis.l,W.deretonding betrieen him rind the aceused• The acoused in:foxmed the court that he has never qunrrelled with Rehani Abd8lloh Rehani (PW8) nor did he know of etny meeting whioh took place on 8/4/85 end that he came to ~now. th"t fci.ct in oourt, As I have indicated nbove Rehani Abdallah Rehani gave evidenc~, If there was any misunderstanding between the acouaed and. ilS,111 he should hf:ve said so~ He never did. 'Agnin if it is true thut there was a meeting on B/4/85 Rehoni Abdallah Rehnni (Pi78)_ could not hove failed to hcve skted that fact, All the witnesses mentioned cbove st~te4 that the meet:Lng rr.s hard called by Rehan1 Abrlrllloh Rehr.mi ( PW8 ). I find it J to bel ieva thr; t Rehani Abdallah Rehahi (PW8) knowing that there .~P $$.sunderst.anding between him and accused which could possibly be the fnot1ve of the kUli~ of his mother oould _not hs.v~ diacloted that :tllot. · ~ th& bur{len bf' pro- ving every ollegation is ,pn the p:toseoution I run sa~1ed thr.t the I prosecution boTe foi,led.;.tQ !_lt'ove ittny misunderstand~ t.etween Reh~n:I. Abdallah Rehan1 (PW8) whi.ch could p~ssibiy motiwt41 the no<>us~d to ~ttnck the deceased. I will now considl3r w~::either the r.\ccused boot ,he d'8eased. The eviden.oe in support of this t.lleg~·tion ~ms given by ~ti\ Abdnl1nh (PW6), Mariam Rehani (PW?) ond ·a st!'.'\tencnt mnQ.e by the de(;.enrf to the -.,olice whiah was tendered ns exhib'-t Pl~ Tatt:t Abdallah (:PiV9 111!1 a oh1ld of tender age and after enquir~ng rrhether she ~ows th~ ~t'Ul'e of 'ln on th I Wl:IS satisfied that she d1d, not but fO"und that ~he p9s=1tssed sufficient interligenoe as to know the duty of spetnking the t~tl:l. and she gave ev:i.denoe not on affirmation~ She told f;he court tha.t slle knows t;:i.e ~ccused who she identified in courij "'.S J3:-,bn Rabi.., She told tl,.e court thot one night the acoused entered t)cir house nnc' l beat the deceqeed w1 th f.l heJ'n!'!ler~• She could not rem an ber hotv JJ1c1~y times tha, accused hi i: tlie ~~d rri th tt hrunmer nor oould she rem~ber on whQt par,t of the boey t,l\e vma beaten. She I testified thnt she -was h,dtng unde:r the bed with Mnr~am. (PW?) nnd th:-. t 8~le oould see the tlooused With th~ held of the light frCJll 111 koroboi". She dso 3 test]_. f1· ed th.--~ t s.·.1e neo.r · · d t'i1e ~ccused __ sayi· __ ~ mpa~a nj.Jcuuwe" _ ng ":Ni takupig thnt is, 11 1 will be"". t you. until I kill you". Mnriam. Reh:cni (1?W7) _testified th'.'.'.t on 11/4/85, there VDS nn nccidant and th".\t ~s .~ result of that occident the child of the accused hlld died. She s::-,i(1 tbat the house of the nocused vvns not fnr frcxn their house but she did not go there. She further testified that at about ~.. oo p.m. on thnt d'."ty she wt:s in the house of the dece~scd with PW6 Tatu Abdallah and wbile in the house the ' accused kicked the door of 1'he house nnd got into the room., She snid that she ron under the bed lenving Tc,tu Abda\lnh (PW6) ,:;nd other c::1ildren who later followed her. She st::\ tcrl tho t ili.e dec~csed tried to s~~ut tLe door· but the accused who :2.:-:d ~ntered bent tne deeensed. She ~nirl ~a there W8S li.ght from "koroboin si1e c4uld see the aca.µsed clearly. She sr-id she did not see the nccused ,-,ith nny weapon nor Jtid she rnise .'.".n t'.l~nn when she sow the accused be:1t the det:ec,sed. She snic'. th~-\ she he,,rd the nocused sny that he will kill bcccuse his chili] hns been. killecl.. , She sr.1id she sow the accused be.~t tl10 decec:-.rnd on the chest, tnck nnd wnist but did not oount the number of times. Bhe said that she.went to report to CCM Office. Rashid Rc.mndh~ni Ibr•,him (_,1.v . . 3) wllo is n CCM branch Secret-:ry t;cstificd th·at one wornon went to rer,ort tc her th.nt accused hltd beatan·.the deceased ' and soon nfter the D.0cec.se~ arrived and cornplnined th~t s;w wtta bee.ten by the nccus('d 0:..1 the buttocks.. He said he examined her but did not find any j_!ljuries. He refe?'!;'.·•ed her ;to police and Re-hnni .Abd-:llc:h Reho:ni (;PWB) hired a motor ve:1.icle t,o take her. Rehnni Ahda]..lch Reh·-:ni (Pw,s) infonned the cot1rt t:1n-'t; when he returned heme on: 11/4/85 ::it r:bout 8., 30 p .• m. he snw many people r.Xf.nd ·the nccus~d pane and op enquiring he was_ told thot the accused cl,.U:d WnA ,knocked to death by n .motor c,:r~- He decided to go home f'.irst but on alr4vnl he found the foor of t~1e house open and heord the decens<,c1. rnryinef• On enqui];'ing he was t01ld by the deoensed that she wos bente,,. by trte ¢.ccusEtd. lie soi.<1 he went to look· f'or police and when he returne~d heme he did not £ind her. He went to CCl)JI Offioe where he met her. 'He sa:irl the cL~ceosed tol,d him tr-~t;t "\Ccnsed bent her with a gongo on the chest, buttooks nnd bqck. He tatok her to police station where shP.. ?il'."'.de n statement. He ,said the ded e1:csec1 could not walk nlon(:!I nnd l11t:d. to be J:telpecl nnd ·he took her to r.,:~sr,i tr-.1, He said after treo.tment sl::c was dischn:rged 11n~ he took her b~lck home, On 12/4/85 be took her to l'liU:.::imbili hospi tel and on 14/4/85 the decer-.se(1 died• I - 4 T.he nccusod informed the court that on 11/4/85 he left his home at 6.00 p.m. f0r C\ w:1lk and wns later informed th-it ·.ae wr-,:.-i urgently r required home where he went and found out that his c~1iltl Hobi wns knocked by a motor vehicle and thnt he hos.already died. He went on to tell the court th~t he was so confused that he did not :Jen-ow what I to do and beg::m to loolt for the driver who killed his child but could not find h:im~ He s:-:Ht tt:: t he went to the driver I s mother but could not see him. He v-,ent to the deceased I s house where he s--r, her nlone asleep. He· .come out ::-.nc1 went to his house. He denied thnt he bc . :t t>c dece::ised. scene ·He said nfter tic police had ttiken measurEiJlent of the / of nco:ldent be was put in one motol' yehicl~ and his daceased child W'.:S tr\ken 1n· another motor vehicle, He Wll$ takap to Plllice st~tion wheJ!'e on the following do.y be w~.s told theiv they would search him for fi!'enims nnd if no firem:ms were ):Olll1c1 he 'vvould b~ released. He w:-,.s Be.---:rc>ed ond os no firea:rms v,erc fo1.md with him he was re:tensed d,ay to be re-c.rrested on 14/4/85 rind civ~rged with ~der. In this isnue tue ev:t. ~ence which tends to inorimnr·:te foe c~ccused o(j]leS from t:.1e testilnony o:f;" Fotu Abdallah PW,; 6 o child o:f tem1er years, Marioru Rhcni (PW. 7) nnd the: st!\tement which deceased m>·de to police nnd which wns tendered in cour•t as exhibit P.l. The law reg~.rd~;.1g .. · the- evidence of Io ciiiid of tencler years is governed by the provision of section 127 (.2) of the .Eviditnce 1,ct l.967 -~s ~ended by Act No. 9 of 1980 where Ht is provided: 11 127(2) ·.7her£1J in c:ny Oriminnl Cause or m'."tter ,".:ll.J' child of tent1er ye:ps oalle~ ns n witness does not, in tlw opini, op at the courtf understnm1 t:,e n:-. tura of t:n onth, his •idence mny be received, though not given upon I opth or affi:rmntiott, if in the 0•_1inion of t;_:e cour :~, t4' be re<?orded :\.n the proceedii1is, he is 1.)ossess.1 '"d (ff. safficient tntelligence to justify the receip ,tj.crj1 of his evidenc~ and underst-:nds the c1uty of S •"0)e~.kL-' -u , o· the truth. (3) Notwithst 1::-\tding o_ny :rule o:f low Of prootice to the contM:ry vtiere evid~nce received by virtue of subs~cti, -0~ (2) is given on behalf of the :.>rose.. cut.ton .q 1rlil is not corroboroted by nny other mr:terin1 evidenc, & in support of it implicating the nccL1.sed• t'.10 cou' !l~t may, after wo.rnirig itself of ti1e d,,ne;er of doiq ~G so.1 net on thQt eTidence to c-invict the nee 1.sel Ct if it is satisfied that the child is telling nothir. :(~ but the truth. - 5 - Notwi tl1st::nc1iug any rule of lo.w or pr':'ctice to t:1e contr·~ry tile evidence of c child of tender yc"rs received under subsection (2) may be acted u,on by tL1 e coU1~t .~s material evidence corroborating the evidence of another child of tender ye~rs previously given or the evidence given by '":il ~<lult w~1ich is required by law or practice to be corrobor(\ted 11 Before this tmenc.:nen·;;; there wns o. legal requirooent tll,':t ti1.e evidence of a child of tc~1der years IJtU.St be co:troborated before it is ~dmissoble.. But before acting on sucb evidence, · not cQrrobor".\ted t':.e court must warn itself of t;.ie a.~ngers ~ noting upon suoh evidence ,'1'1(1 nfter ~uch warning and t:~c court is sntisf~ed that the child is spe-:kinc; the truth I the court cnn co,wict the accu.sed person. In other worrJ.s il I am satisfied th.--:t Jrntu ~lbd::illoh (:PW.6) is speakir::g tbe whole truth I will net on her evidence c;; Jn if he:,:• evidence will not be corrobor::ted. On the some bre'.1dth I will a.ct on ·the evidence of Tntu J~bc1~.llr.h (Pw.6) as corrobor~tinf; tiw testimony o•f Mariam Rehani (PW. 7) if' I find her testiimony credible,, T[:tu Abdnl'.ilah was with MLrinm Re:1<:a'i, ,'."\11 ~dul t woman who described herself ns 25·. y.ears old. \,hile Tn tu !l bc.1r-.lloll (PW. 6) hammer . testified the: t -t~w r-.ccused bent t r.e dece~sed vr.l th '.:l / lkri:'llll Rehani stnted thnt s~rn (hd not s0e any woapon with the nccused. I 'Dc'.y hnsten to o.dc another f~c-~-Jr from the stcd ;ement the du:ensed wc:s nlleged to hove mnde to the police soon ofter she v, ris take.n th ~:::-e9 The decensed Glleged -in her statement th::t the '"\Ccused beat hen: wij\ a gongo. Tntu·Abdallah testified th-:1t she lrn.:-.rd · the accuse. :l. utter th$ following tiords - "Ni tnkupign mpnk~ nil;:uu()4" J?W. 7 Mai rinm ltehoni .did not ha::r let. alone •., remember hearing the nccused utter 1 :3uch wcI':iJ vrhen the 1_lJege<1 be~ting took plnce. PW. 6 is n very small cl: 1ild, J-nc!.eecl she is / f:)t::-nc1crd one this year. The ."'!lleged · offence too} c plnoe ,'11most o yer-i.r '!'.G;O when she was in a nursery school. It struck IDe gTeatly thnt n child of her age could remember wh ·: t the '.":ccused saic i and ;i:-ec·J.·~ ,ii word_ by 1:rord-. These oontradic tions re;.1c1c:r the testimOlJl o"': Tn tu ,/\)d,tll~h (PW .-6) unoorro born ted. I Where evidence requi:cer:i corrobo:,c:•tj,( m it must lU corrobor~.tct1 by credible evidence. The evidence of Mariq.n R( ~bani (PW. 7) does not ~.~1:9er..r to rae to ho.ve no credence n t .,11. ir.. the face o. t' danger she wc:s t.:.1.e fi:rst to run under the bed not 0 nly le::,,vi:..1c :J_ehind the deceased who is nlle{;cc.1 ·~o be over 70 years old but such lLtle chiJ.dr· er.. ns Tetu ;,bd::111'.:\h :.nc. l1cr yonger sisters. Besides t:~.~t 1::l1e clleged thcit accused bllnt t~1e c1ecef'\sed on .the chest, buttocks c111<l be.ck b1.1t she di, d not rnise nn;r ol~nn :\lol;houj.1 Tatu .Abdallah (PW. 6) s~.ic1 th:-:t they wer6 crying f.or helf!• I do not think thnt any rntion~l hur.uin being when put in peril or :c1ees nnother person in danger would Qct i:c t;te :-.;.::ilJ:lC:c': · n::c:.::-1 ·,:.:.oni (PW. 1) did. - 6 - Her.- conduct be'."'.ts cor.r10n sense and renders her testir.:nny il'icred1ble., Her testimony hns been mnde the more incredible by the st,".'.toocmt deceased. mode to police,.Ic th:.:t stntement the deceased stnted t;",-. t ·t::e ::lccused beat her on the buttocks. :vlnriom Rehnni (PW. 7) stnted thnt the nccused - bent the dece~sed on tl,e chest, buttocks and back. Postmortem report did not talk of .--:ny extern~l injuries besides bedsores on the buttocks~·· The report did not :=;--.y it was cnused by nny weapon, sh:.:r:_1 or blunt,' There is in this c,,se grave doubt as to whether '.'.\pcused bc~t t~,e deceased. And there is even er~ver doubt if he had benten th~ dece,scG on buttocks as the decer1s0d ~.lle[sQd this could hff-re caused th~ lier.th of the dacensed. Any do~bt in crimin--.1 obses ;nust be reso:\,Ved in tnvou:r of t:.:o c.ccused. ~ In fin-:1 "':n.-.lysis and tor the l:'ensons statt#l cbove I :;1:1 · s"itisfied._ that the guilt of -the ."':CC\Ule<2 hne not )Jeen pi-oved beyond 1'."111 rcasonobl~: doubt. I find him not guilty . . and I acquit ~ . . Delivered in: col,'Q."t this 21 at d~ of Marah J.~6 ot Dr-,r es Solnron. L, .· --?' ---~~·· :~.-; .- -;, . :· .. ' . . 4-.. . E. /E\ K:,Z:qlIOTO,., --........----... JTJDGE Assessors · ~re thnnked nnd discbargE":i d,..