19890915 TZHC Dar es Salaam

IN 'Tlil:. HIGH COURl' OF TANZANIA AT DAR .r,;,:_; BALAAM CRlliINAL Sli,;u8ION8 Cb.NO. 15 OF I986. 1 • ALLY JUM.A 2. ATHUMANI He NAKOTJ.i.o O •••• 0 .ACCU.SEDS • .JUi.>GHENT. 1'b.f;i.~~1\Hl per:30l1S, n.am.el.y, Ally Juma, herein.aft-er referred ,to as the first accused, and .-1.thumani Hassan Makota, hereinafter .eterrecl to as the second accused stand charged on the informs.ti@ of, 1Mg5J,,BAJ.ght,er eontrary to ~<~ction 195 of the Penal Code. They ·-~..alleged to have killed unlawfully one Hamadi Ally or the 20th 9J ~~bz'~ary, 1983 in Kinondoni District. Both accused pleaded ~ot giµ.lty . to ihe eharge. There were three prosecution witnesses to prove the charge. lb;; lir.st wit:iess balum .ltamadhan PW' said that in· 1983 he was living a• Kawe and that he knew both accused. He was present at the home of one Binti Mbegu where the deceased Hamadi Ally was killed. indeed at the preliminary hearing it was not ·in dispute that ll.amadi Allf is dead and that he died a violent death as per post mortem epimiootio~ ~ort filed in this case. Balum Ramadhani went on -.o iiarrate as follows.. There was local liquor at Binti Mbegu 1 s hQllle, and the deceased and the second accused hakota were there '1:rinking. Then the deceased And the seeond accused quarrelled and I ~inti Mbegu told the second accused to go home because he was drunk. When the se-eond accused was leaving, he told the ~eased thus, 11 \IJhen you see a rabbit lying in. the grass, do not. think that it is st.i4,ed. Do you see this finger? 11 'l'hen the second accused l.eft on that note. But he came back at 9.p.m~ with his companion Ally Juma, the 1st accused. When the two arrived, they told the deceased to go with them to a place called Kungurn. But Hadija, the wife of the deceased ·(Pw2) decided·to fellow them, and she insisted to go with them. Because of that, they cancelled their trip to Kunguru. Then soon after, the second accused quarrelled again with the deceased. Each one of them was abusing the other. Then there £0.llowed a fight between them and the first accused Ally Juma aimply stood by• i,µ:itch«eg. •••••/2.eoo• \ '.· When the combatants fell down, the first accused took out something white from his pocket- and-hit the deceased with it on his back. lrhe first accused gave the deceased anoth_er blow with this white object, this time at the back of his head. The deceased lost oonsci-0\l.Sness due that. He was taken to hospital eventually where he died after some days. The witness went on to state that his home was next to that of Binti Mbegu's and that when all this was happening he was hardly three paces away from those fighting._ He had been attracted there by the noise made by the deceased and the accused, and he saw that the first accused had an oversize ehir~ under which he took cut the white object. The s~ond witness we" Hadija Salehe PW2. She told the Court that she was the wife of h,. nadi Ally who died in 1983. One February morning of 1983 PW2 and heJ· husband went to drink at the house of Mw.anaharusi Mbegu. The fir·,,t accused came there too at around 1.1 a.m. and left ~t 3p.m. The deceased also left at 4p.m. to go to Kawe and he came back at G.~O p.m. with a newspaper. Soon after that the second accused al.so arrived at Binti Mbegu I s place to drink~ On arrival, the second accused demanded from the deceased to be paid hie money. The deceased gfve him shs. 100/- leaving a balance of shs. ~0/- still owing. Then tht, deceased began reading his newspaper. Makota the second accused ofked the deceased why he was reading at that time of the day. But the deceased simply told the second accl,lsed to. leave him alone.. l!:ven Hadija ·salehe told the second accused to leave the deceaned alone because he was drunk and because they might quarrel. Then ·che deceased got up and 11lapped tpe second ac~used. The second accUced then said to the deceased, "You Hamadi, you have beaten me withou cause; do not think that a rabbit is stupid when it sits in the grass You see this finger?· It is cut. 11 Then the second accused left. He t.ame back around 8.30 p.m. with J\.lly· Juma the first accused. Then ·1 he deceased told them, "So, you have come to beat; me. Beat me now.'' Subsequent to that there arQi;e a quarrel and the three of them, .na.-1-,ly the two accused and the deceiaed went into cashewunt trees. Th in ·Ally said to the deceased, 0 lf you are a man, follow me. 11 PW2 ti:-, ,1 the deceased not to {lo. B,it the deceased would not listen and he f,f'_lowed the two 41.ccused a ehort distance from Binti Mbegu's house. There the accused beat the deceased and ran away. The place wheri the deceased we.shit was sandf• The deceased was then carried -~o the house of Binti Mbegu wllere he was n·ursed in order to make hJ.m recover fi'om the beatingo i3,it all this effort was i:p. vain.' He w1 .s later on takW1 to hos pi tf,l \<lhare he eventually died. o o o/;3o ~. ., , ,\ - 3 The last prosecution witness was Corporal Amon Ruanda PW.3. He visited the scene of crime, according to his evidence, and he also visited the hospital where the deceased was hospitalized in order to see him. PW3 also got a report from PW2 and PWI to the effect that the two accused were the ones who beat the deceased. He arrested both accused in turns. The accused persons gave their defence stories on oath. The first aicuaed said that on 20/2/83 he went to Binti Mbegu's home where there was Moshi liquor. There he drank liquor up to 2p.m. Then· he went back home. He came back at 3.30 p.m. and found many people there at Binti Mbegu•s. Many of these whom he found there were totally drunk, and the deceased was abusing everyone and harassing passers by and forcing them to drink 1".?shi liquor. Then at around 6.30p.m .. the accused left for home and :1e did not come back again to the pombe' place. On 27/2/83, he was arre•s-t:ed ~:rn cl1o,. .;:::d ~-:ith assault and eventually murder. The accuse<!. admitted seeing PW.2 at the pombe place. He also said that th(:; , .3.y following 20.2.83, he got information about the deceased's injuries ·r.he previous day and the hospitalisation of the deceased. Also PW2 as}. ,,d for some meat (mboga) and fruits· from the accused to take to the dec,ased at the hospital. With regard to the second accused, the first •"" ~cused said that he did not see him at the pombe place. Concerning 1~ying a visit to the deceased who was in hospital, the accused said that he never got an opportunity to . see him • neighbour of the deceased who ~•.ived about 100 yards r,;ay from his home. lie also admitted knowing the second accused. He also said that because his brother work~d in the hospital where the deceased was admitted, he was getting s 11 the information c0nc ·:: ...ning the condition of the deceas~d anc' tliat he saw no _need to vi.sit him in hospital. The second accused Athur ,, n Hai::·Dan Makota said on oath that on 20.2.83 he went to sell eggs ~,t Kawn~ Then PW2 called h(:.m to go f.rid meet the deceased who was his in J.~ w•. He went into one bar -..-,}iere h8 found the deceased who then bought l im h·,, bottles of safari beer to drink. He left the deceased at arour:1( 10 e.'!ll. and ha .f,I-OC~(;~•~<: home. J3ut before he got home he met th, wife c'.f his employer who instructed him to go to Mlingotini Bagamoy ..., l ~ca. 1sr -his employer had been loe"ed up. 1 The accused then looked for l'\ I who 'l:sed to s_tay witr. hitn at his home. He told PW.I to go to his horn,, beca.u,,te the accused wa:.s gc,ing SMaJ• Then the accused went to Mlinf. otin·:. £L~1d did not come 'bac'(: till n~t day. When he came back on th~ follc·ving day, he met on€ \T!duclU wh~ informed him that the deceased was ly ·ing at the backyard o:l: Bin ti Mbegu I s home. :, ·- 4 .... r He went to see the de-cease-d. 1 and when he got- .to the place, he- -f-OWl-d P.W2 be~ng ~•t.i--one<l. 4})out what bad happene~. PW2 ~id that she di~ not know wll,lt ..bad, ba.p;g.ened .l>eeauaA she was dr~k,. Then he toge_ther with Vidudu and PW2 and others took .t.he ~as.ed -in a 'V~hicle to the Police btati® -and eventually .to hospital_. He :was then going to see the · ,4ec,eased in the hospital_. Concerning 'PWI the acoused said that PWI was lying because he had been taught to do so by Binti Mbegu who was· bis 8 ~-~J.• ~he ..OO~d 1i1as a,l.-.o- -cros&-~~ ~ h:i.5. ~ that PWI was . ,,.~tJig..,.witll .him at the material ti~ W,her,eas he had not. = ~ ~ ~ - s~. He sai.d that it was tr~• that PWI was staying with him ~ut that he • .did not tell his advocate about this. He also sllid that the man said w have beo.te_n the deceo.sed wus one Msubili. l summeA up t~ t..he lady wid gent1-n assessors. The first ass~sor ~ ~ \l}e first ti.cc used had co.used the death· of the deceased but ~ t th~ seoond o.ccused w..is not guilty beet.use he ho.d gone on SGlfc.rii ih@ aecond nseesso~ s~id th~t the two ~ccused caus$d the death of 'tbe ~~Md.._ T~ ~ "B~o:r.- .';\lso £~.1~ k.o:t~.a.o.c~ ~ ~¥A.srw. t.M. death .of the deceo.sed. I will first deal with_ the point raised by the learned Sto.te 4t~-f ~o-erllJ.ug la~k of notic-_e on the pa;rt of the second aocus.ed ct b14. iii~~ll to ~ely. on o.~ alibi! The provisions of section 194 of ih@ CfA are quite clenr on this matter. They state that an accused Pif§Oll who intends to rely upon an alibi »n his defence must give noti4e •· to 'the ,ourt an·d the prosecution of his intention to rely on such defen~e bolore the _hearing of the cc1.se. If an accused person fails to do so, be shall furnish the prose.oution with the particulars of the al_ibi at o.ny . time before the case for the proseeution is olosed. If the accused raise,s a defence of alibi without having first furnished the particulars· of the alibi to the court or to the prosecution pursuant to section 194, the eourt may in its dis~retion, accord no weight of any kind to the . defenee. In this ot1se I intend to accord no weight of any kind to the detence of se·cond accused • . I now come to the whole ease. The evidence from the proeeoution w;i\ne& ,_,. leaves no doubt of who t happened. I saw thEJ witnesses in the witness box and I have formed my mind that their evidence is true and I GLceept it. First of all~ their evidence is not contr.adiotory but rather comple~entarr in th~t the evidence of PWI compliments that of PW2 and vice vers~. . . . ·. In other words the evidence of PWI is corroborated on mateiro.l fo.cts by t.bb,t o~P.W.J!"'. _I heard the aecusecl a.nd I saw them in the ~itness box. Thei~ defences.did·not persuade me that I should doubt the·· prosec.ution evidence. · Indeedt the e_yidence of the eeoond accused is totally useless as I have decided to accord no weight to it because the accused did not oomply with the provisions of secti.on 194 of the Criminal frocedure Code. •.• ./5 ••.• ... -· .·',i ·:, tl'•I., •• ., ~·' .' '·. •' 1 •l, r' '.· ',. . .... , . ,\ .... -~. t· .. ,! . ' 5 Not only that. tven if I we.re not to discregard it on the grounds given above, still it is not ·much of on o.li.bi. It wu.s ..held i n . ~ /;;.a.le le Msutu v. He;eublic ( 1980). TU{ .I, that ( i) as n matter of law an accused person is not required _to prove his alibi; it is sufficient for him if the alibi raises a reasonable doubt, (ii) the unsworn and untested statement made by the accused in his defence, unsupported by any other evidence which in thi_s cnse coulu. easily have been obt~ined if the alibi had any trace of truth, has no basis. I dare say that even in the case before me although the statement of the second accused was given on oath, it does not raise any reasonable doubt. Furthermore if the alibi had any tr~te of truth the accuseu would have supported it with other evidence from his' employer or from the place where he slept on the materiel night. l;;uch evidence could have been easily obtained in this case. In all respects I find that the alibi of the accused does not raise any reasonable doubt. The second accused also came up with the story that actually PWI w~s staying at his home (accused 1 s. home) contrary what PWI had statetl. But no intimation was made to PWI while in the witness box to the effect that he was staying with the second aqcused.. I also find this to be an afterthoug~t and totally false. I am satisfiud from the pros,3cution evidence th.;,t the two accused actually beat the dece~sed w~o died subsequently because of such be~ting. The second accused cl~imed thut ~WI was lying and that PW2 was olso lying beca.us·e she was hiding the truth. But he was unnble to substontiate such claims. The witnesses knew the accused very well. Also both witnesses told a story which hud a ring of truth and which was similar •. I c;un · see no reu.son for not ,.ccepting the ace cunt of these eye witnesses. I therefore a.ccept :!;he prose.(:ution case as true an<.l I reject the defence . stories. I ,th.erefore find that. the accused caus~d the death of the deceased. No doubt they uic so unlawfully as there was_ no justific~tion for doing so nor have the accused claimed any defence to their action. Also in terms of section 22 of the Penal Code both accused must be taken to have ca.used the <le&th of the deceased because they were both having the intention to prosec·ute an unlawful purpose in conjunction with one another, netme.ly to assault the decease cl. I therefore agre~ with the laeJ~ t::: :--s.::;.:....,,.,;(,..,...; :.i1c.t the accused are guilty as charged. I find the accused guilty o.s charged and I convict them accordingly, since I am satisfiecl th~t the prosecution has proved its case beyond all reasonable dotloE:· - · --:.·.·- · Court: Judgment delivered in co'l,\I't • • • • - 6 I Miss Koross o I aak ~--./J. ~ - - - ~~• so..411~.tlle. . :~~ -~. ~enPe- : committed. MitJs@tiAA~ at:, tfjopgwa, ~ aek'.~OJ' :Lpiatl.i'--.:t~-~-~~ i.np-t~~-t,gB.~-:'. ~~-~ .au ft.raj ottondera,.. Also the age ot aoQused is. Jel.evant aij th@Y ~ N M - L U ~ - ~ ~ , • ~ _ ; £ . < a r ~ ~ - ,1QmJU1tte'1~ iw . . ~ -&JJ,... •' .,: ~-~: ; '.. ; . . ,_ . ·, ··-· ·,•.- ,¥1· AQCVftiP . . ., • ~ IOf ~n,_ien,ff t ll~a. be~ -,~fl#, ~o; 6 1~ar4;. ~~ ~• 4o~f :!-f:. ,'tlJOjoa,- i llqa . ·. _~-liimA~W"lf' fM ofta• .... --Ni~i'l-~_-u-t ~-~-~-~:p.oo: llf:_ .. h~-~• 1· .-,7::;:"-•11 ' lff c. *Of>1. ,_ ot A 10Zlg ti·-..~- l &Bk_ ~f -~ie~-- 6; · - ,,-t·Mlvtf•aJi~-:.t~_~a11._ . ·· .... atat1 ff'WJ'·, ", 0 . , . . I ; . -,. .a a;e t_taf ·oft.enae- · rs. 'l'hey are asking tor le.nienoy e.1 _i_hey f{ Ufl· bcep·.,.~•047 flt & Jtf1 .:Longttme. _Xh• W e.Cf~:'!'.'Hi~•-~---•-~-~. "5!uf,IIP& ,l"OJn.,. fi,H'-se wh~hb: ·ho got. while izi Pld,son•. _The setond · '' •W.-ed ,,0;1Hl lhAi h' hes g<;,. }mi-~nti. who need his help._ On the other ufd· ihe Bep;blie p~&ys tor a aev@re sentence to retle•t the se~iousne~s os· ihe olteiiso,-~ I' do ~ake iiJii·o 1onoidO_l'~J·1.on ihe per~od of over eix years whi~-~ 'c:he . ·iae)o w~. •~ ·:tase 'llSOd havo apo&it iii Jztyo11 6\w-a.iting t♦;je.l.,, I also take into ~onside~~··o~ ~e a,o~od have 1•a.d ~ mi..iigati,on, Oii the othe:r hand, the ~ sboi;-. ;ha1 ♦llis off_enoe ·was bordezting to mt.irde~ ~n ;, ', ,... *he.' i}ie ,wo ao~used ,.mo ai-med to df;tal with the deeeased~ There is hardly a~7 ~ga\ion '11, the w~l ;he offence was ,omm~tted~ I therefore ~g.ro;. w~ 5he Rep~b~-,;na; a ,evere sentence is called for in this fBOlt;Jho llla.x.1,lilum &@5e»ff for ma.pe~avgh~er ~e lite imprisonment: · l do »o; 4,AieAd \o sive ,he max,mp sentence., b1,1t I do not intend ~o give a "8hi atAiepto ~ther ·"1 ,,ew of the •irQv.mstan~es of the ~aoe~ l fPiO.Pje 0~ awoused. -,a 9 1oara j.mpr~soiiment_~ . ft.~hi ol. ap»oe.l ~ii,a~ed., ---------- ' A. 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