19890706 TZHC Tabora

/ TIT THE ,:fHGH COURT OF TANZ.Al'HA AT 'TAI30RA ORIGTIT ~ JURISD!CTION ( Tabora Registry) . :,\ 0'.ftD.:TINAL SESSIONS GASE NO. 42/-L987 THE REPUBLIC Versus .CYPRIAN BUNA :BI 6/7 /89 KOROSSO, J. 18 ~-U, D_ _Q_ E .1\1 E N T The Accused one Cyprian Bunabi s:tands charged .with _t.p.e offence of hd.ving murdered the Toceased one tfose~ Kibila on 24/8/85 in the village of Heru Juu, Kasulu District Kigoma • .• The following are thv entire facts of this case. The prosecution ·calle·d a number of witnesses. One of su.ch witnesses was one No.B.2825 D/SGT Charles (P. w.1). ~ . P.W•..l te;stifea:' that on 28/8/85 a report of a murder case was received at the police station, Kasulu~ He was _ 20 specifically det:-,:;_·]_ a to do the investigation of th0 case. 0 He went. to hasu.11.,1 Government H<5s:pital vvhere ·he contacted · the . Medical . Of ':ic c~ ~ P. "- .1 an a. the Doc tor went . . to the . hos:pi tal where the corpse was found and: then identified by the rela1i.v e. of.· the Dec ea.s ed one Xengwa Salum· as having been that of the Deoeased tfoses Yibila. P.W.,1 saw the De•ease.d have a stab wound on the stomaf'h below the navel. - A Post Mori:Jem ,.,xamination was conducted by the Doctor. ~ ' The corpse havin._~· been entrusted to the relatives of the De~eased F. ~~.1 ':returned to the police station. P.W.l 30 . . . 30 - 1 recorded the statement of the suspect one after the other~ ~ The Accused's statement 10 as read over to him and that the Accused had acknowled2'ed its a:uthentiQi. tJ elfi:ring ~ his signature on the statement next to letter 1 X 1 on the statemen-:; P.vr.1 produced the statement vvhich was admitted in evidei:ice ' and then ID-lrked Bxhibi t P.l. '.!:he Accused had made a cQnfes- . of sional statement,Ex.hibi t F.l,admitting commission~he ~ffence. Thitreafter, P. ··1 .1 JeciJed to take the Accused to the Justice of the Peace. In ansv,er to cross-examination P.W.l deposed that the Accused appeared to have been putting up an excuse of having acted 1n self defence., ·• Another witness was one Filbert Tvios-es (P. W. 2) 'the son of the Deceased. Ji. l'l'i.2 testified th,t he knew. -th,.e Actused 9.nd also the other two suspectes who had not_ been charged in Court. P. Y!.2 went on to state that the Accused wae a resident in the vilL,,ge.. He said th.J.t on the night of 24/R/85, he and his father (Deceased) as well as his mother had been seated in the kitchen after they had taken their dinner. When th1.) 2 in tho kitchen some persons were heard ~ knocking at the door of the kitchen. The J;Jec eased did welcome·. the three persons into the house, Of the three person the Accused had allegedly been the seeo.nd person to enter j,nside -the kitchen. Of the three persons who \ had got _into the house of the De~eased one Manwa I\/Ialamile ., (not in Court) vras allegedly the Deceased's closest friend" He deposed that the Accused and the other two suspect's had habitually been visiting the Deceased during both,day time and night time. At that material ttme the Decea_sed was then seated on a six feet long f"OF-• The Accused and one 1\'fanvva. Mal::lmi 1.2 got seated on the .form together with 30 the Dec0ased, the third person was seated in a slightly da»k corner. ,· f ' - 32 - The :1)e.c1eased told P. Y7 .2 th-:1t he had been killed by the three p&sons ·whom he h3.d rn2ntioned by their respective names. He '. 1ent on to aver that he had seen the Accused 0 and the other tv-rn persons r1.:c_ri avvay from the scene as there was moonshine on the night; -1nd further that the incident r after a lapse of only about one minutes since had occured the Accused and thro :C-e;ceased. hEtd got outside the kitchen. P.'17'1.2 desGribed tho kind s.nd colour of' the clothes they had each put on inili.ihuding that of the ~i\ccused. He said that he had ably identified the l1Ccused because of the lO fire that was tb:::n burning in the room of the kitchen. Another ,rd tness was one Kengwa Se,1t.a (P. ~·.1 • 3). · She testified that the Deceased was her husband a-nd thdt she knew the Deceased as a resident in the village of KatU11-ga. She said .she also knew one Fi.bbert Mos_es (P. 1-r. 2) as her (Dec eased,) r. ,.,. 2 J.nd hc-:rself h::i d been in the kitchen chat-ting after they ha.a tJ.kP11 their supper. !.!hile they 1 - were thus in the kitchen :here arrived at their home one Cyprian Bunabi, one ]1&Vlwa. Wiila_mile and another person. 2r: The .4.ccused and his two associates were welcomed inside the kitchen.· Tho Acc:11s ed and one Manera .Mala.mile got !• s·eated Ort t·he form. _The third per~on was seated at a ~·rrner near the door. She said that at the material time there was a big fire burning in th::it room in Vlh ich they were seited • . She didn't. see the Accused hold anything. After th ,t the .Aca.u.sed and his tvrn associates. asked the Der.eased for some bf3er. The Decectsed replied that he haj, n~ beer at al]_. , r:ter the. De6'eased ba.d denied that he hat 'any be2r, the 'A,.cused was seen taking some tobacco and the, 3( give him some firee 11. 1:',2 gave the fire to the Accused. The ' - }l - . • was sea td P • w2 e, . TIIC!): t t o h. . is mo +h "'3) u . er (P • 1:-: . • P.v.r.2'"1ent.on , ,. '.. testify that the D_ec en.s ed the,oth?r suspect~and the Acttused were seated at a distance of three paces. only from where I P. m. 2 and his father · er· c t~'lcm seated and thJ.t they bad faced one another" He said that at that ti.me there had been some.fire burning in giving sufficient-light in the room. P.m.2 obliged and gave a firewood ~ith fire so that the Accused might light his. tobacco. The Ac~used lit his tobacco o.nd then smoked it. Just then other person c-alled Manwa 1\/ialamile proceeded to ask the- Deteased for 10 some beer. The Deceased denied he had any beer at all. The Deceased vvondered as to why the said Mamva was asking for beer from him '"hen he hj ms elf had some beer at his home, After the Dece0.sed had denied that he had any beer, the Ace us s,J .:lt:.6. his two associates -1 sked the Deceased to escort th.err. The Dec0ased replied to them that he wouldn't, csco:c"c thc?m c.1s he had already finished eating and that be then w,:1nted to ,so to bed.. The Accused and the two other persons persisted i? their request. It was d 2C after a third time the ~eceased gave in and agree relu~- tantly to escort them. The Da•eased consequently got ·. anQ.. out of the kitchen tog'ether with the Accused/h~s two associ::1tes. Shortly aftBr that he heard a voice of one· of them say thus:- 11 S tab stab". P. '7. 2 could not tha• recognisP the voice of the person who had been hear~ utter the vrnrds "Stab stab" because the voice vvas sonewbat in the nJ.ture of t)1e suppressed tone! Simultaneously he heal'd. the Deceased cry out saying tbat he ha.·d been stabbed and that he was dyir.s, 'Ihr: Deceased was heattd mentioning the Accused one Cyprian.· P. vr. 2 rushed out and wen~ towards 30. the scene where he ~ound the Deceased ~ying on the g:rnu d. alrea1dy stabbed but still alive and a~te to - 33 - Accused lit the tobacco s.nd then smoked it. When the Af'cused finished smoking tobacco (.Acccused) proceeded to ask the Dece::.1sed to escort them. The Decear-:,ed refused by ~aying that it was rather so late in the night and that he had already finished eating and wanted to sleep. The · A~cused and his associat,2s persisted in pleading with the Der.eased. On being a2,k8d a third time, the Deceased softened and so agreed to escort them, ~:.'hen the Deceased got and the A~.?-m:H;d wj_th hie associated~ ·out of the kitchen P.~rr.2 and P. 1'r~3 remained inside the room. Before very lJ long, P.":'1 .3 heard a voice in a suppressed tone say thus:- '1Stah stab". Almost simultaneously P.w.3 heard the Dereased distr~singly cry out that he had been killed by one Oypria:_. got Ohabanga a.nd Manwa. P.1:'.2 and herself/ out of the kitche.:1,, ',7hen they just got out there she saw the Accu;·ed and his confiderates run away from the scene. She recognised · them ,rrell bec:1usc the:re was 'moonshine brightly shining in a clear sky. They 1rent to the, scene, where they found the Decea.ned lsing on the ground with his fare 1o·oking upwards. The Accused was found still alive and · out able to speakL sensibly. 'l'he Dec ems ed mentioned one 2u Cyprian (Aceused) 9 Cbabanga and one JWa.nwa ,who turned out to be the very Accused and his asso~iates who had been in their house a few minutes previously, She went on to testify th.d all the thr 0 e persons-. including the Accused were close 1rirmd13 of the Deceal"!ed ·who had been in the habit cf visiting one another. She said that, that was their first time to visit their home during n:ight time. The Deceased ,JVas taken to the hospi talff he deposed trot the Decea, ed h::1.q_ not before the incident told her of any gµa.Jtrel ·with either the lee~: ed or his asso,iates. She said t!ta.t 30 on that date one Manwa had ever :;one to their home and l then :i - 34. - . ;._ ., asked the Deceased to go to, help him in the work of plastering his house and that the Accused had gone as .,. . :, !~'~.t. asked to the house of 1:Ianv'a while, sho personally remained 1'1-~-' at home. "'hen th(~ Deceasec :retLlTned home from the honse of I'fanwa in the afternoon of 24/8/85 9 she had- already had his food prepared for him but the said he would not eat and then Auggested that ths food be given~to the chil.dren. - The Accu.sed r:;:L,Ji:."J.E: evidence on oat·h denied the charge. He testified th,J.t he Jmew the Deceased as well a:S. one lVIanwa and one Milamile. He v,;ent on to testify tbat .on 24/8/85 1 r .., ' he had gone to the house of one Manwa to ·help· ni.m in. the · work of plastering his house.. The Accused Moses Kibila smd one Chabaga '''ere amongst the persons invited by ojle Manwa in assisting him in the work of plastering his house. They worked. up to 12. J(p .ll. v1hen the work .was ~ . ,,·-::;:.. ', finished. Their host one Hanwa g enoro).lsly served them ' with some local brew •Nhich 'they boozed merrily up to 4.00vp ... r: ... when they dispersed ea.ch one of them 1,1'ent to his home. The Accused for h\s r,::1.rt Jecid.od to go to the pombeshop a. ,,distance of on2 r:dle from his home. The same pombeshO!' .20 was a distance of 70 paces from the house of the Deceased. "' The Deceased dnd one t'L:3.11.-.·a v;ere not one amongst of the ·!! .persons he founa at the pombeshop. Similarly; one Chaba.n,:::i. Lusunzu was not found bein.f, present at the pombeshop. He remained at the pombeshop up to 8. 30p~b. w·hen he left I for home. On his '.-Wf3.Y homewards alone he un·expe~tedly en..,. countered the De~eased1 one Mones Kibila who was also alone. ~lf'1.·~ ·•~.'~> On their meeting the Toe eased h:1d allegedly asked thJ, Accusei' .. ,; as to i~h ere he had bP~n coming from. ' ~1 ... the ·Deceased that he had come from the place he bad been - .. . -The Accused replied left. After thc·s b:.,cl finished drinking the Deceased had "i; ' - 35 - allegedly retorted tba t the Ace used l'kid been·; using·-the mo::1c:· he deceived from tho ,:']J:,_ar:_be ovsr v,1hich they have ·11.ad a dispute in the pace t" ~u1 _.of a~ sudden, the Dec eased. :fisted the .Accused. by t.b. n.sck. fhGreb,y falling the A~cused Pff his :f'eet. ··ti.en t.Y1e Ac cm; :'d was still lying on the ground,. the Deceased had allegedly starte_d suffocating the Dec·ease·d by throat:U.ing him, t'hat made it difficult to br~cth naturc:11., and t.ha t he "·,\s then not able to: raise an alarm, The Acc·v_e er:' happened to eee the Deceased take out a knife in order to - stab the Accused then still lying.The Accused succeded , , in· :timely dispos?essing · the-.knife:. The Accused defensively proceeded to stab the Decea--:-:ed without (J. knowing which :r.-art of the body he stabbed the Deceased .. who bad by .t.hen ~~ been on top :::,:f.' -the ..Accused. The Pee ~c,i.s ed quietly a~d()Iled the Accused c:.nd fhE'n r_.111 2.way tovvara_s his home a shbrt distanc.e off from the scene. The Accused also wertt home • ... +~_1 ::! Jqcusec, "''G.c1t t'o the police to '· report as• nell a:ci to gPt treatment. At the police station the Accused Y'as referred to the hospital fo±- treatment. . I . The Acpused V!as arrested on the morning of 25/8/85. Fu.rtbe~- in his evidence the Accused denied the contents read out in his ..allegedly· recorded statement . . ·that he had f!Ver' made (.• ' a· stcttement to the effect that that the knife he had . used .in: s.tc; bbing the Deceased was his Ovfl knife. fh · e Accused str,essed that the knife he rud used·- in stabb:i.ng ; 'I\ the de·cea:sE.:d had belonged to the Deceased. The Acquset '• r~:futed the: _ev:id1:::nce. 'of ·p.-~'.2 Jnd P."1o3 which has been; ' · .. to the eff ,~ct, thi t the Accuse cl had ever gone to the house ~f the :rfec-Jas ::D ~·· Ee d;.;nied that he and other two suspeo-ts ·- .. had on that night· requested,, tll~ ·De,.eased to escort them and that wi en they had got outside with the Dee eased they stabbed the Dece~se~ --~ C"RTIITJ1'UL S:SSS F NS . .~fter T h~a finish.ea with the sixu•:inrs up to the ,.roncurabl'1- d . . . Assesstirs, J invite ·ihem to give their opinions~ rn~ of the '"onou.rable ;'assessors; gave his · Dini-on to the effect that the· 1iccllsec"ii s testi1:1ony vvarl trb.e that he had acted on self ... aefence., ,.:re therefore expressec-7 the view that the ~1CcllsE)d was _not P:;llilty of any offence. ,Jonv ersely the other TJono u.rable ~~sse ssor~ expresc:·er'1 the Vi(',: t'.-:.:i.t the r-vicence of -:··.,1.2 .me ;··.1 ✓ .3 C clr::arly proved thi:: .Wcllseri anf oth8r sllspets had killecl the :1'eceJ.ser:l intenticrLally sc::-c:J O,fter tn.o ~\c .L1s::;c an~ others had besn at the hollse of the TGc0asGc1"'. 10 , T-r4vi.l'"'g gone ·,r.!'(U.i.,,h the cvir":nce fai.ri!:y closely a.no ,. having relater1 th-: ::w i" :-;n c ', tr: thr:: la.w jl J find rr,S"self in COI'lpletc flisae:rePment with t~1c ·Jne Jonou.rablG JsseLsor. 1 T have my reason~. which'. I propose to r,ive hereuncer. rt is trUG the inciclent occurred at night. The crucial question is whether the cir- oJ.msta.nces prevailinp, it the ti:r"'0 w::r,, -f1~ 1 0urabl0 to a p:riope·r and U!ll;l..istakcn id(mtify of· the /\Cells(:,':,, J have net the least ' • I doubt:,, ny mind •;ha.t the evidence of ?."Nc2 an.cl -r.·.v.3 rcpr,:;sent w.._1at had happenec in the. ki tche:1 of the :':lee eased on· 24/8/85. ·.:.: accs 1/; ......rlc") beli'.~Ve th3.t on the night of 24/0/05 the Jc""usea 20 hJ.d gene to the h:) llSG of tho Jic cused whom they h.1,d found being seat eo insi cJ e the robn of tho k:i_ tchon" J ac ~ept and believe that ineifle t.he =t'Y"'r'. thsr:c: -,,;as fire bllrnin~ tt:1.LJ.s r2dia.ting su.ffici0nt light, J iccc_;:;t .me beliGve the ovirtence th-9.t th~ .~ceu_s~d 3.ncl one 1rr 1mv3. hJ/! ,rc,r t SG:J.toa c,n th•::-: form together with the -:!Jeceasea 3.t .J. c!istJ:::1cc ~,f thr,3e p1?es. Tho ~1coL1sed h1.sn't seriously ~ispute1.: the f9:ct th::i.t -he 3.no his two assocL1.tes h:v'l been occasionally bc,,:n V'isting the T'eccasef! at his house.. rn view thcr0fore 0f th1c• fact th.it the .Aca:usea JJ1d othGrs were thor:' ughly known ,, ~, ~ 1i, 241! 311r'1 1'. H. 3 bof ore the incident ,that 30 there was fire burning in the roor:i, th-::i.t the, ,\ca.used and others _. 37 - and others had remained in the room I. find myse~f firmly ~onvinced that the three :persons -:1ho had called at the · house· of the Deces.3ed on: the n~ht of 24/8/85 were the . . Accused and his two associatos. I also ac ce:pt and beliewe that after the Deceased had most reluctantly got out to escort the Accused 2.nd ot'.'lers r. ''.'. 2 and P. 1r:r. 3 had rushed o·.;.ts~i_C:,:, a.s a result of the cries of ~ ~ .. the Deceasedc I also believe -the evidence of P. Y'. 2 had while still in the room heard the Accused cry lou. dly saying that the Accused and others as having been responsible for fatally assaulting him and that vJhen they both rushed out, · they chanced to see the Accused and the other associates run avmy from the scene~ Y1hen P. '.'1.2 and P. '7. 3 got at the scene they f.ound the Dec eased lying on the ground with a stab wound on the st:omach· belo'w the navel. i'/hen they •got . there the Tioc.'eased then still alive again mentioned the Accused a.nd the other ·L·,•iO as having been res:ponsib::i.e f oi~ v,·ou..:-:1.ding r .m. on the stomac-h. This . was a dying cleclaration which can 'under certain circum.- 20 stances can ·n c.1Ct8d. U}"C1 by its oVJn right. This ~n my i view is cn0 r:-f those rare case.s in which there are different kind' of ,,eViderice each of V!hich is most vital in its own .•· • right for e'xam:ple the evidence tbat the Dec eased had 1 thejll reluctantly agreed to escort/ out and.then the Dece- ased was hec:t ::·d crying ·a lapse of one minute acc.ording to P.~r.2. There is the second :piece of evidence that when crying the ·-1>. co.::.ced contemporaneously mentio!).ed the' Acou!!led 'J and others ii,s · having been responsible for the assault. ·There is thEJ third piece of evidence t.hat whe~ P.W.2 aitt 3~ • ... ,.t. ·.1. '. ,·-·,1 .~ccused and the twf - 38 - others ·;ran. away frotjl. the scene and that the moonlight brightly shining on a cleir .cloudless sky enabled them to identify the Accused. It should be observed he+e tbat P. ':;'.2 and P. ;n. 3 lrxve been able with minor variations to C.i.sr-rebe the kind and colour of the clothes put on · by the Deceased. There is the other piece of evidence whi~h consisted in the Deceased te.ll:ing them and actually mentioning· the c'\cc us 0d and. others. This is the evidenr- e · 1This evidence referred to as a dy:ing declaration eviclence_,:j_s of great importance becau.~;c t1"8 Deceased v,as still the master of 10 his mind and body-' ., he was a hle to talk and al~o to remember. It is further important because the attack on the Deceased ' 07 as not sudden in the sense that he had be.en with his attackers· immediately before the incident. (AccusE:d) It is for the foregone reasons that hi~id·enc e in de!eni e .. ' is the direct outcome of immagination. It is also ms believe that ei thcr the pointed iron or a knife had.:7:Ween used in stabbing the Deceased. The other auestion , i,:; ?rhether or not it was the Accused whose hand hJ.d stabbed the Deceased. As I can 20 see the only evidence tbat would seen to show that it was the Accused ._,,ho hicl st:J.rJbcd the :Deceased is the evidence of P. w.2 who testified that he had heard the 4-~cused. being mentionedo Even if there would have been no su~h _ evidence this is a case in- which the provisions of the section 23 of the Penal Code is hereby invoked because whi~h happened was the outcome of the prosecution of thet,r common u:nla·nful purpose. .The Post Mol"te.m Examination Rep.prt ,1 Exhibit P, 3 1 Cl9arly shows that the Deoeased wouldn't have died· but for the stab wound. ' . ' .. 39 -·· The fi.n3.l qu.c:sticn is \·,:h,..,.~h-:r the ,iccu.sccl killed with :m:11.icG ::tf oroth(',u.cht. ·, t is my vi cvv th3.t tho Jccused h.:1d tc choice cf the storl.lch 1s the t·J.rgct is cogent ovi dencc or th:3.t the .t'!Ccu.sed h.1c intcnr'r:-r'l tr kilJ/ c1u.se ,rr,rir-vious h:3.r□, thereby s9.tisfying tho c'!ofiniti()n of n.J.lice .lfor0thc UBh u.nner the provisions of socticn 280 of tho ·:. .· onql C,· ~1 e. (n the forc:yc,nc_. T would d0cla.re the ~~ccLl.sed guilty :inc convict hir.l ac11crdingly of mu.rcler c/s 196 of the t,3niJ. 10 6/7/Gg s:m-~TBNCB: J SGntencc tho Act--l.SGC1 to do:1th. :1:i:- Accused sh3.l.l suffer c2~th by h::mging. · ·mrG -s 6/7 /09 .,