19870511 TZHC Dar es Salaam

.. ./~ ; -·/ IlJ T;.:-11.E HIGH COU1::.T OF 'i:'.i.IT:.=.LIJI/.. Oi:::::GIHJ.L JUf?.IS.JICTIOH (D2r es Salaam Registry) ClITEIUAL Slts::noH:::; CL:::s J.JO.J1 OF 1983 THE 1--:E:.?UBLIC versus HJ,.IIADA SAID KINYUMBA_ J U :J G 2 I:, E lJ T I • MAIIJA, J. The accused, Har.1ada ranyumba, ctands charged with murder contrary to section 196 of the Penal Code; the allegation by the prosecution being that on or about the 25th day of' May 1982, at I:i tomondo village in Kisarauc district, he murded one Zakia Ifohamed. The accused has denied the charge. That Zakia Mohamed is dead !,.as been proved by the Prosecution anG it is ~ot in dispute. The dead body was identified to PWJ Dr. Victoria Iiipenyi who performed the postmortem examination. The identifying witness, Iddi Sultani, is dead and the Folice Officer i,ho was present when the body was identified to the doctor, one Inspector Katili, is also dead. From the evidence of Dr. Kipenyi and that of' the deceased's grandi-:iother, Pt-15 Salima who saw the dead body, I am satisfied, and so hold, that Zakia Mohamed is dead. The cause of' death, according to Dr. Victoria Xipenyi, is asphyxia due to strangulation of' the neck. The doctor fm..md bruines around the mouth and neck as well as :fracture of the elbow. The fif'th vertebrae was dislocated a~d the neck could rotate freely. The deceased was brutally murdered. The evidence against the accused is as follows. On 25.5.1982 the deceased was working with her grandmother, PW5 Salimu in the shamba in their village. At about 8 a.m, the deceased returned to the house to collect some sugar. She was expected back in the sh.amba soon but she did not return. PU5 Salimu uas surprised. 1:..t about 9.30 a.m, Salimu left the shamba and started looking f'or the deceased. She was told by her husband that one Mt:.harami had seen Hamada\ carrying the deceased. Hamada was lmown in the village as a mad man. The village chairman fll2 Omar Galum, and the ward secretaryP Pill Maulid .Mwinshehe, received U·_e infornation that Hamada was seen carrying the deceased. Both witnesses said that they knew Hamada was a mad man in the village. Salima Rashid and Omar 2/ ••••• :;: ( .. '-:.. . ~ . ~; 2 (___,iC:entified the accused as th0 mad r.ian in Kitomondo village. They said that the accused used to chc:-.se children and some- times wacked naked in the villageo PW4 11~uharami Juma told the court that one day he saw a perGon knmm. as Hamada carrying the deceased Zakia Mohamed into a bush. IJ'.uharani could not identify the accused in this case. He said he or..ly rm,10rabered the name Hamada4 At the time he testified t~e witness appeared about ten ye2rs old. He was not sworn as he uould not underotand the nature of .) oath. :1hen the deceaoed was killed in 1982 the wi tncos was about five years old. Vi·:·rarami said that later he saw people looking for the deceased and he told them 11here she was carried to. People follow~d that direction and found the deceased lying dead and there were flies around her private parts. The deceased was naked fror.i the uaiot d01,m1--rards. This was indication that she was raped and strangled. The accused was arrc::,ted on 25 .. 501982 by PTT6 Sgt.Asajile who found the accused in Kitomondo village, far from the scene of crime. The accused was carry:t'ng leaves and pieces of sticks. The acct.,sed was later sent to Ioanga Institution for medical examination on his mental statee The psychiatrist's report which the proseucution tendered under section 293 of the Criminal Procedure Act as an exhibit is to the effect that the accused was mentally sane at the time of' the commission of the alleged offence. The accused gave evidence on oath. He said that he had travelled from Ki tor.iondo to 11iingombe village and he returned to Ki tomondo the sa:::1e day when he was arrestede He denied that he committed the alleged offencee The accused did not wish to call any witness • . , The evidence ·by PW5 Salima the village chairman Pi'l2 Omar Salum, the ward secretary, F~l1 Rashidi r-1:winshehe and P1f7 Nascoro Abdulrahman is hearsay. They testified on what Mwarami told them that the accused had carried the deceased to the scene where the body was found. The crucial witness f'or the pro::;ecution is ?~T7 Euarami himselfe First, of all he could not identify the accused in the docko At no time did the witness identify the accused anywhere - not even before the village leaders.. There was no identi:fication parade anywhere for l'llwarami to identify the accused. So all the evidence in tho caae is that fc'iuarami. saw someone whoce name was Hamada carrying t~"le deceased to the bush where the ·c:eceased was later found murdered. 3/ ...... .3 l'iwarami was asl::.ed in the court specifically if he could identify the accused. and he ans1,1ered in the nega. ti ve. Can it bG said that the accused is the person whom Mwarami had seen carrying the deceased? Ls Hi·rararai :failed to identify the accused, surely his evidence ca1~~ot be a basis for a convictione Both gentlemen nnsessors were of' the opinion tp.at the accused is guilty of the offence charged. But for the reasons I have given, wi·th great respect, I disagree with them. rtuarami did not at any time identify the accused. Perhaps I should mention that the doctor in his report said that the accused at ~irst denied the charge and at last admitted the killing. But that is hearsay because tb.e doctor «,Ja.s not called to give evidence be cross examined~ It is not known under what circumstances the accused made the alleged admission. The doctor was expected, under section 220(2) of the c.P.A to give his opinion on the mental condition of the accused at the time the offence was committed and not .to extract confession from accused.. His report was tendered under section 291 of the C.P.A as i t was expected to be on purely surgical or medical matter. That report cannot be treated ao evidence that accused admitted the killing without calling the d.octoi.· to teetif'y. It is for theoe reasons that I find that the prosecution hns not proved the case against the accused. The accused may have been a:;_. . rested on suspecion only •. _. The accused is ~ccordingly acq:uitted and discharged. At Dar es Salaam 11th May, 1987.