19870724 TZHC Tabora

---~-- .- .... AT TABORA ORIGIN.AL JURISDICTION TABORj Registry CRIMINAL SESSIONS CASE no. 23~0F 1984 'I ·, TH'E REPUBLIC Versus l . ! '' WILSON KOKA / JUDGEMENT . KOROSS0' 1J. ~he Ac~used one "Vilson Kok8. stands c 1,.arged with the ·off-ence of Murder c/s ~96 of the Penal Code. -The Accused has been alleged to hav9 killed his concubine or girlfr~h,d c :illed J3eatric e Kiwia with malic e-·aforethought on the nig:~ ·, of 5/2/83at the Jicct1se-}'s houso at t~1e hous·.s of the Tanzania Hous~--- ·OPrporation Tabora. . - The m.ct erial evidence for the prosecution case was that of one . Juliana Kiwia (PtV.2) the mother of the Deceaf:ed; Dr. Juli.us (P'W~4) who perfor.:-:10d the Post-Mortem -Sx.amination; one Opt~ Joel· Ulein-bakisya Kaj~W.-5);_. one Charles Fedelis Komba (P 1:'-,6) a -Warrant. Officer,::Cr -;;... -· 1 Kiwia (P1'1' •. 3).. ,.,,')':::, A gl'fat_ deal of the ·massive evidence iri. the entire case ·consist .~·:· . undisputed {acts. According to the evidence. tha Accused Koka is a soldier in The Tanzania '.]?eoples Defence Foree, and at the material time he -was a _.Captain and then promoted to the rank of T1a;jor while the aqcused wa."'- . in ·remand_:prison awaiting trial. In the yer:..r 1979 1 · the Ac~iused waf:-., E3tat_ibne,d at ?-Jwanza. . During his stay at t~wnnza, the Accuseq happen:". befrianc( the Dec eas ed 11 Beatrice d/o Kiwia, then a Form 111 studer,.t . • . ':, . ! .. . at ;Lake·;~econdary School Mwanza. As. a resrlt of that f!iend.~hi:p 1 between the .Accused and the Dec eased, the . .::cused impregnated:, the -Deceased.. When the Dao.eased parent• s one Juliana (PW1 2) a-mother ~r::.d ,l)av~d- K:i,,r.la (p~. 3) the father came to discover that their daughter, 1A r 2 th,,. DAC -asF:d was pr,=-gnat they (par, nts )askGd th@ DAceased as 0 ·,c, f. The D~ceasod admitt-ed being pregnant and she also ment{oned the Accus,"!d as being sol oly r0sponsibl e for the pregnancy. Th~ DAceas,~d i"" parents contact~d the Accused EJ.nd asked him if ·the- allegations-was . -· · ...... _--.... ::--· ..... ~ trui'> that he hag i1:cprogn3.tcd t:::;oir daught,c,r 1 th· D~ceased. ':Ch,a Acct;. fr-eely admi t!tic;d having bre:cn the person wbo had impregna.t,,.,d the .-' ," · Deceased. 'Jibe Acr:.used- promised .. tbat he would marry th'2 Deceased., The parents of the Deceased also gave th~ir. consent. As a ·rA.sult of her pregnancy, th• . .Accused was discontinu~d i'n her studies. at Lake Secondary School. With th@ consent of h :er pa:rie.nts, the Deceas2d lef: 1 his par.-::nts borne nnd W9nt to 1 iv,-=; w~ th the Accused, thougb"- not lr- marriod! On 17/11/79, tho D~c(;las-~d gave birth to a baby gi:rl whom thay named :,)o-ris. Somotimo in 1980, th€! Accused was transferred from I"Iwanza to Tabora., G:n 1_5/11/8,.1 th,e D0cGas 8d gave birth to a second chi-'.d wbom thev named Ronald_~ Tb~ . .Accused and the Deceased cohabited tog-ether in concubinag 8 until thC:? Deceas•a:l died on 5/2/2/; Ano-tb.fil:--Wi . . t:-:10 ss was on· Capt" Kaj <cla (PW 5) who testified .that in :. - · o evening of 2/5/83 he was at the 1'1ili tary Officer's 1'1ess and _that s-'.:: about 8.00p .m-. he dApar-tcd fo,... hom@ r-::iving a lift to the Acqused wi::· On a-rrival at bis house, ho ,pa:rked the j1otor vehicle and •parte·' with thP AccusPd. ThP Accus9d wr:,nt to his .Jouse where he was served with food. Th~.DAceasPd was seated besidPs tb 0 Accused at the table. Whil 0 the. Accused was eating, thP Dc:<?easAd all0gedly informed thA Accused that· sh8 was then not feeling phyf,ically fit and dizzy.: Tl---· Accused 1uggested to thP Dec8aSA~ that sh~ be takpn to hospital bu: th0 deceasBd repliPd that sh" had alread;y taken some two tablets of Asprin. The Accused fihished eating and so h~ went to sleep, Whil· asleep, th~· AccusPd was awak9nr d f:rom his sleAp by a bang and a$lc by a voic,~ as if som,,,,on -as o call 1'n g. Wh PD th A Ac~US" d wo k e up, b. ·· l ~-, J noticP.d the Deceas8d kn""eliDg besid;:1 her bed with hPr bead rB-sting on tho bed0 ThP decPased hands.bad been foldP.d and then placed under the hPad. Th AccusPd walkod to wbo:re the DoceasPd was and asked what was the matt 0 r. Th 0 DPceasPd would not rPply. ThP. Accused deci- ded to rpmove the child Ronald who had bPen slsPpin~ on the bed' with the DPCPa~Pd and then made him to stand on th~ floor. After that the Accused liftrd tho DOcPased an~ tbPn put her on her bed, The Deceas Eil. wa'.s, in hQ't' ni.fTht dress. The D ceased was still bre·athi.ng at 0 th,e time. 1rh0 .Accusr-d got out of th2 b&d-room with the child and then took him to his sister-in-law called Gladincss whom he informed of th~ bad CClnditions of tho Deceased. ThP Accused also awak@ned hie young brothP-~ in thr-:' tbird room and then info:rmed him of th@ bad condition of th8 Deceased! That done, the Accused got out of the h •·:1 1 and went; to his closest nP.igbbou-r, one Cha.,,..,les Fi.delis Komba(PW~6) Warrant Offiee:r I who,i; hP awakPn°d and told hi,n what had happened t,.: his wifeo The Accus d and 'pw.6 went to.the Accused's house. They 0 both entered into thP house and then walked into the bedroom, where " DeceasPd was found still breathing. PW.6 asked the Accused as to what had happ<onAd to t1w Dec02.s-"'d. I'h, A~cu sed told PW. 6 that the 0 Deceased hac fallPn f-,-..om th,a bed. PW. 6 tried to talk to. the Decease,, but she wouJdn't rPspondo PW.6 advised th~ Accused to SAcure a motor vehicle so '._ hat tbe Deceased could be rush'~d to th1? hospital. The Accused got out and went to Capt.· Kajela (PvJ. 5) who gave to the Accuse · tbP motor v0hicld. Th Accus0d drovP th~ DP.ceased to hospital accompanie¢1 jy Komba (PW. 6) o . On arrival at tte hospital the nurse on duty examined the Deceas d and tben pronouncrd the Deceased dead .. 0 1 The Accusff T:ro:pc,rt d the .matt0·r to thG policr. station. The policenv•'.' 1 0 searched tbe Accused's housP. Dr~ J,.1lius (PW o4) who p rform"'d the Post-l"Iortem .Examination 0 tPstified in Court. PW•4 testifi~d tha.t hr-, had pr.-rformAd the Post- l"Iortem ExaJJ.ination on thP corps0 of tb,e Dece1.sed on 7 /2/83' after 2-~ hours had elapsed sinc0 tbP death of thP. DPceascd. Dr. Julius (PW.L'.;.) · testified that externally, there had boon no marks of violencp all over the corps of the Deceased. PW .4 said there was no injury on t 0 1~,:' head or a depression on the skull of the :Oeceased's head. He said there were no mar.ks of violence about the throat or neck. He said all over tb,:c; body of corpse "he witnessed dark-:i,ed sp.ots giving a ch::::rr appearance. He said such dark rP.d spots wel;'°✓ _a usual phenomenon on a dead-body of a p..,rson wbo is brown skirin.ed like the Deceased. , .. ,· .. -- ....... ~ __ ...:-:::· ·-·- Internally, Dre Julius (PvJ. 1+) avern=,d. that therP. was profuse intracranial haPmorrhage scatterrin~ the greater part of the brain which was the only instant cause of the DeceasPd death. He said such haemorrhage in the brain was occasioned by the eruption of the blood capillaries in the brain, Dr. Julius (PW.4) mentionP.d different causes which may bring about eruption of tho capillaries in the brain. One of such causes was aaid to bP high blood pressure which could be existP.nt in a P'"'rson 's circulatory sys.tern independe.ntly of the awaren":!f .:_· or knowldgi:> of th8 victim. PW.4 was not prP.parAd to say with certain that it was h~gh blood pressur~ or other medically known cause¢ whi~~ bad occasioned thF eruption of tb brain capillaries within th'3 Decea•-· 0 sed's skull~ jjro Julius (Pw.4) vehemP.ntly refused th allegation that 0 the paemorrhag:e in the Dec,.,,ased 's brain could havP b 0 en caused by an accidental or otE~:rwiso fall by the DPceas~d from a bed to the floor wherP the heie~bt of the b~d was only 1:/2 ft. Thr-, Accm @d :r8fUsr->d the 8Vidence. of Ju.li?.,1a (PW .. 2) tbA mo·ther thP Deceas~d that h bad ov!'lr phoned her (PW.2) to inform her that er· 0 of hPr sons hJ.d passpc': the qualifyihg test fo"" admission to the Priv,., Secondary Scb.)ol of Uyui., Tobore. :· 1 - - +::"""'+: tt~ Accused had asked he:i'. (PW .2) to SPnd some money to 'I'abo:ra f<'T' the purposo,. Th1=> Accused further r.cfut"'d thP t 0 stimony that he had substituted his own young brother in tte place which had b~en made avai~.ablP for the son of PW_ 2 The AccusPd r.as deniPd ill-tr8ating his wifA c~ that he had assaulte5 hr>r as appears to have., ~een insinuatnd by David Kiwia (PW~ 3) the fatbP:' of thr:> Decea3ed who testifi,ro. that the chP•Pks o.f the Deceased were being swollen a.."1d that therA WP.re scratches b;r the throat giving tb2 impression :hat the throat had boen intefer~~ ·1itt. The Accused wondered wh~' thP. D,:,ceased had written to her parents the letter Ex:h. P. 4. After having finished with the summing uJ, I respectfully invitet th~ Gentleri':!n Assessors each one afthem to giv3 his ·own opinion on ·' · ·. cas~ as a ~holP. ThP. first Gentl~0n Assesso~ gave his opinion that th~ Accusef guilty of having killed the DP.ceased with malice aforethought. Thi~· Assesso-r stated that the Accu•sf?d hadn't givr-n a satisfact~-g /l-.. explanation as · to how thp, DPcPaSPd met h""r df'atb. · He said that - -. the letter Exh. P.4 written by thP ~Deeeased to her parents was glanc.·.-- evid0nc9 that ilhe Accused and thP DeceaSP,d WBJ'.'"-' not coUaborating in reasonable ~armkyo This 1st GentlP.m~n .Assessor, went on to aay that thP. Accused allPg"'d dishonesty in putting his hr.other in the place . II1ade availablP for the brother of the Decea·sP.d served only to everbett",., tbr->. relationship between tb. 0 Acci..1.sed and the DAceased_, He stated tha.t 5 the Accused could hav9 us"'d some physical force➔ in bringing about the dPath of the D ceased. 0 . ThP. 2nd Ass0ssol'.' gavP. an, '.'ntirr,ly diffc!rpnt opinion. On his· part, h0 said that as far ash~ was concprn°d h~ was bound by tbP evidence which clearly showed that the Accus~d was not responsibl fJ- 0 thc dPath of th~ DecPased, especially wh9n thP evidenc of th~ Accus-~ himsPlf and the Doctor (PW.3) wer"' tak n into account~ I have carefully consid .,....cd and w0 ighrd thro c.vid17nce of both t1-. pros0cution and th Defr->nce. I havP. also s riously taken to heart ~ 0 ' cogent submissions made by the lAar,pd Sf'nior St'lte Attol'.'nr--y and th·· DefencP Coun~:;el. On th"' ovidenc the:re is no doubt whatsov.er that the Deseased 0 , died on th~ night of 5/2/83. It is thP case for the p~osecution that it was t·he Accused who kill Pd the Deceased. It is on th.:- converse, t 1-:: - case for the DefAnce that th- Accus d was not responsibl- for the 0 death of the Deceas~d. In my considered view, I am not at all ,:s.-.;:..: ·: :··: satisfied that the Accus~d caused tbe death 0f the Deceased. It was thr, duty of tl,e prosecutibn to anrove b0yond reasonabl13 doubt· that the Accused, him alone, killi=-d tbr Deceas':-:d e 'I'°c, ~re is not th1: least evid0ncp to ~ast even strong suspicion as fer this count is concern~ .. Dro Julius (?Wv4) who perfo:rrned the-- Post-I'1ort8m Examination on the Deceased was quit spPcific and articulate ir his P.VidPnce that there 0 was no injury on the head or d· p-ress ion on th·, skull. Dr Julius went 0 O on to avPr that thPr~ wr.,rp no marks of ~iol~rJ on th throat, neck 01'.' any part of thr, DeceasPd 's co;:-ps 0 He sail that h(:) pPrformed th • Post-.Mo:rtem Examination on 7 /2/8:Z, afti:>r ?4 hr 1:ss had alapsed since the DecPas-:. had b,,., ath('.'\d ber last and that ,: 11 ove-r th" corpse, tb'- · .-, 0 w~r 0 da-rk-r~d spots ~ivin~ a cherry app~aran ;e which was said to be a usual pb- nomenon to b ·· found on a - ad-body cf brown-skinned pe~son as was tb DAce3.sed. Thr-- Doctor (PW.4) test:.fied further that the o:::--- 0 • and only causP of th- dPath was p:rofusP. ·hai:>JT:)rrhage scatterring tb brain; and that such hat=>morl'.'hage resul tPd fr.::>m an e:r-uption of aapillari· s. Dr .. Julius (PW.4) went so far as mr->ntioning a few sit -1.3." • 1 ions whic~ could b8 the occassion of the ~r~ption ,•:, of the brain capillari<;s. Onr.· of such situations was mA:1tion"'d as being high blood pressurAs vrhich was rrvid ically lmown ·to be c b le to exist in a 1 i ving pP.rson independently of bis awa:reness and >now ledge of its exi stenc·~, or~ Julius (PW.4) admitted his absolute inability to say ex~Atly ·• as to what of .those alleged different situations could have caused the ~ruptiori of the capillaries. However Dr. Julius (Fw.4 1 refut~d totally the allegation that the hae~orrhage in the Deceased could have been caused by the Deceased knocking her head as a result of a £all from a bed which is only 1¼ ft high. The Doctbr (PW-~) went .... on to say that ~v~t ~; .... " " # .... :~llen from the bed a-~ as a result knock her head a~ainst the.floor, the bad effect could not have been instant. The bad effect would begin to be felt over a period of -time ranging frow 3 months to 0ver '. 0 years. The Doctor evidence which I have no legitimate cause to dou½t or disbelieve refutes as it were, the evidence of David Liwia (PW.J) the father of the Deceased who went to so far as saying the DE~eased cheeks ~ere seen being ~wollen an~ that there had been seAn ~cratches about the throat giving the iIT'pression of its having b( ~n possibly interfered with. It is also noteworthy that the oxpert F.eport Exh. P.J of the Government Chief Che~ist Dar es Salaa~·revea _ed ~hat the tontents.- of the bowel t~ken from the Deceased storac~ sho~ed ~o signs of kno:·· as poison. In his subrission, the learne~ Senior f tate Attorney submitted that t 1.1ere 1t.1 ere circur-·stantial evidence en w: ich the Accused should be held responsible for the deatli of Decease, • Mro 11,·taki, ref.erred to the fight whic~ occured between t~e Decea:ed and the Accu~ed a few days after the Decease~ had ~iven birth "o a b~by girl called Doris. But according to the evideri~e of Jul~ana (PW.2) the Accused and the Deceased had been effectively reconc: led by the parents of the Deceased. From theri on until the death• f the Deceased there is no evidence of operi fight~ng or ha~ing operi, uarrelling between the Deceased_and the Accused. Even during their', ntire stay at Tabora there is no evidence of the Accused a.nd Dece.➔.sed leading a life of quarrelling or disharmony. The learned Senior State Attorney al~6 made reference to the lc~t, r Exh. P.4 written by the Deceased to her' par0nts. I admit· that read:::," through the letter Exh. P.4 one gets the i~.,ression that the Deceas~~ ,. was tndee~ melancholy when she wrot~ the le:t~r one could even visualise seeing the Ceceased shedding tea1s when she·,~ote. But then the letter is not dated as to when it was written. There is on~y the date of receipt w 1 ·ich is shown as 7/10/82. But then, there is evidence of the Decease,: and the ACC\lSed having gone to Moshi to baptize the children towards the c'lose of 1982. There is also the evidence of th~ Deceased having vtsited her parents at ~wanza in January, 1983. 7 ------- B,ut the evidence is silent ,as ,ta whether ,the· Deceasec repeated tell~ her parents 'the coC1plaint s_he,.h_ademade in her lett'er Exh. P.4. The learned Senior State Attorney.had also referrac to the alleged incident that the Accused fraudulently replace~ his young _brother in a place ~ade available fer the brother of tee Deceased. Then Accused refuted such an allegation. One would tave expected the prosecution to summon the Headmaster of Uyui Secondary School. But this has not at all cione, and no explanation has been given though Uyui Secondary School is not very ...far from this Court. The last and perhaps, the most ,interesting af all the submiss~o1 1 -• is that the learned Senior State Attorney, i.nv~..t.~c this Court to take into serious c~nsideraticn the fact that, the Accused as a trained soldier he must have been trained many tactics of ~ow to ki~~ a person. With due respect to the Learned. Counsel .I have . never bee,: , ' ' a soldier myself and :i; do·n' t ,h.ope· to be one some day. Worse still, I havent read_ any literature on military sciertce. But what I believ~ must be the fact is that a soldier wust be trained to use his head, his hands, and fingers; legs and other parts of the body to the· beh1 advantage in order to pLysic,=z:.:._ ,:,'":'::)".'-_-::::--:- f.3Q+fbod.y against whom ;i(he combats. i don't believe that besices sucl, phys-i-cal training, they ' ,..;'t..tf:;_,,__/;., .: are also traine0 to overpower enemies bv sone magical or superma-:t-e.,i::i-e.' . /\ .) powers. I personally don't subscribe to the idea of superstition. I hold superstition with a conte~ptuous disbelief. If it was unde- cided by the prosecution to establish the fact that the Accused tbhough his military training he could have caused the death of tho Deceased without the least physical violen~~ on the person to the Deceased then witnesses who are oYpert in ~i 7 itary science should hav0 been called. With the location of this Court in Tabora it would hav, been extre~ely easy tp get such experts. The learned Senior State Attorney cited to t~is Court the cas~ of Makungire Mtani Vs. Rep·."c..r.-..Apj:,:-No.t6/8Jtlecided by the Court of Appeal. But with due respect, the facts in that case are cistingu ishable from the facts in this case. In this case the Accused has expla4,ned what had happened in their house on 2/5/83. Conversely, in tha:t case·:..·the Appe.llant and the Deceased were living in one room . ·on the -~fatefu"l ·eve?ni~$ the Appellant and. the Deceased were seen. goin: _out. tog~hter. ,,.· __ :,·_.The .,., Appellant and his co.-Accused returned home at 'r ; , ~ When askec the Appellant-c oulc'n' t · '~xplain the ~h~ie,bouts ·of the De~eased~ Some days later the Decease0 r " was.discovered dead in a potato flantati6~~ith~~njUries o~ t~ad and the legs. Most unfortunate· ot ~11 the clothes ' lthi•c-h . t;,--.. e Appellant ' . ~ . and his co-Ac<::usecr j" us.:et1: \hadi put on -in that evening were foun.d to be ... '. blo_o,dt11~ftairl,!,'l,d a_nd that bloocl stain .. 1-the n . cl ipically an~lysed ~ 1as ,.' ~- ··'. ··. . . . .~ .... ~ ~ ' ' ·\· :' th be of gt~up HB w'hich_.turni:':d out to be ,t,h3:t_ of the Deceased. ·, \ ~\ ( __ : , .J J ,•,. ;-, r mu-~t ·c<>nfes-s that''for a layman's _t)Oi:.nt of vi•~o;,-i th'e c:i,.~cum1t~ri.ceEC ' \.), \ I i . • i ~ l ._. .•. under which the' fie_ceasec.5 ,.d_ied'j'_~:re so fert.·il·e for ~uspicions and sp~cula·tiqns •'.;• • .. ~,. -t:{;hes·e'.'speculat,j.~ns· : '~: ; . ,' ,, ,. ' . . •: r . a,ncl susR.;i.cions m'o.y equally be '.J.ery .' - t ; . ,...r ~ 1 strong' in t,h;~, :minds. of th~. pa_ren't':s. /' W.bOJ:,!. this Ccurt shar,~s their !.' j. ~, ' • ~ • :. .'I • sorrows for _t\1e· death, ef' .their _dear. daugI:te.i:. 3ut in°'vi'ew of ttt~ strongest evid~Jl'c:e1 aiains't such. sus~icions', -~nd ;~~~cu.-lations' I have ;L doubt in my iti,nd/thc.it t:he t..cci.'1se.t;) is n°..~ .,~csporisible. fo·r· 'the death· o:f _, 1 ~he D~ceai~d ~e@i~i~e ~i~ia~· r .:..., • ,··, • ,· I ~- l ' The prosec-uti·on havin.g. f,:l'll\~e··i1to prove the guilt ~f the ·Accused b!-3yond reaso'nable d~11bt,Ldisf,iss;th~· c~arg~) and_ µccyit tt.e Accused the· ct~ar·ge of Mu.rder c/s 196 of the :?cnal-Code: ·' . {-r . A•GeGo KOROSSO, JU I; Gt;. · ( I; 'd.4/7/87 9 I CERTIFY T,-;AT Th IS IS A Ttt.Uf; _CGPY CF THb CRIGINAL.. ·, . c \· j_ I iI . : ' . 1~.~1 (, "), , ·,· · :., r/ts f.ItiIC; '~ G·I~RAP TAB'CilAo . , , · . .. . .. · \ ' _..,·•·\.',.)