19890830 TZHC Tabora

31 IN THE HIGH COURT OF TANZANIA AT TABORA --------~ ... ORIGINAL JURISDICTION (T:1bora Re,·:~stry) CRHUNAL SESSIONS CASE NO.133 OF 1987 THE REPUTILIC Versus WILSON. s/o TUf'TGU J U D G E M E N T QHIPETA, J. l 'vn The Accu.sed person in this cas~, ·wilson Tungu, stands charged vvith the offence of murder i/s.196 of the Penal Code. The Republic has alleged that on or about the 10th day of May, 1987, at '3ukoko villne;e in Igunga District, Tabora Region, the 1-\ccused murdered one Rebeka d/o Limbe. i The Accused denied the c:1::i.rge~ ::'he prosecution's evide "ce from a total of four witnesses, is to the follow;ing off cc t;, the clec eased, Rebeka d/o Lim be, was living with her husband, Hano s/o Luhende (p.,1.2) at Bukoko. ti ving wi t 11 ·cJ '.~'1 ·.vas their daughter-in-law, one 1 2r Regina d/o rirshembende (P. 1.v.1).. The accused was also resi- ding in the same, village and was a neigh bou_r of P. W. 2 • On 1eth tlfay, 1987, P. "'T.2 1nent to drink local liquor and met the a.ccused there. r. n. 2 drunk local liquor till at about 4.00pm. when he left for home lleaving the accused there. On arrival at hone, he went to sleep· inside his house. At a bout 7 .OO:pm, when darkness was just setting in, the deeeased and some small children were having supper outside their h<3Use. • P. w.1, who was not eating with them, sat nearby. Just then, P. 1¥.1 saw the a}ccused walk past her and he said 11 Get inside! 11 The ~cc1Jse.d then rci.i,sed a pa.nya :1.nd started cutting· the deceased 1,vith tho :p1ngu. i1fter seeing the a1ccused 1ut the. decr;asod twico,P. ,;rol ran into the house and came - 32 - out by a rear door and ran to 3. nGighbour's house. l!5'f!O.nwhile tho sBall children who had been oating with the dee ea.s ed s ta.rteJ crying, :;incl their cries ar9us ed p.w.2 from sleep. r, 1_;r,2 thc.m nent outside and saw the i,ecused cutting the deceased ·.1ith a panga. P.W.2 then ran up to the £ccused, but when P.F.2 was about two paces away from the a8cused, the ,i,Jcused ran away. P. v._r. 2 then raised an alarm J.nd many people g,J.thered at the scene 3.nd found tho deceased lying on the ground. She was dead. 10 She had sust2ined multiple cut wounds and fractures. Meanwhile, at :::tbout 7.00pm 9 that is, just about the time of the att:1ck on the doc0:-1sed the •i•:;cusoo. vvent to 1 the house of one Koshindye d/o Mayekha (P. VT. 3), who is another neighbour of the ·~ec used. By then F. ,vr. 3 had . already prepired food. She laid th2 f cod on the table, and she and the .:1ccused st:.irted c3.ting. ""'hilo they were eating, they hJird, the ol-~rm. ,,ftor ho3,ring tho alarm, the &cc used loft, apparently vvi th out bidding farewell to ·p.w.3. Although the itccuscc1 iE, •,. nc:ichbour of.P.vr.2, his 2r house being about 250 metres froI:J. the scene~ the 4'.i:!cused was not one of the poople who gathered at the scene either ~---i that night or the next dny. According to P. 1.11.1 o.nd :e. m. 2, a. t tho time the ~ccusod was cutting the decG:J.sed, he '"\J.S wearing a pair of (or bukta) with a cap mJ.do of clothik,· of,vJ.rious colours and had no shirt on. According· to P. w. 3, vvhen the ,;jccused went,to her house th:1t ova.,_11.in[';? he Y:'.ls ,?caring n long over- coat, but she could not seo whJ.t he had under the coat. Th.J.t,ssi.me night, o. report was :sent to the 11'_1ard JO Seerot3.ry, one Ch1.rlcs Ng3.lula (r. "!.4). r.v,r.4 went to the scene at,1J.bout g.00.JJD. next morning. On his arrival at tho scen,e, :·',"' 4 v10.s told th1-t the Accused was the person 0 who had murdered the docornod, ::md that the .ac:~used was no wh2re to be s 00.n, Equally notably :J. bs ent vns the t1CC usod~s wife. · r.m,4 and other people then wont to tho .Accused's house. There they found th-3 door Open c1~d th:ings were sea ttered 2bout inside tho house. No one vras in tho house. so it 11'!.:tS decided th.it thG ia.ccus-od's house be kept under vJO.tch in ~'J.Se the /i,ccused returned. ~ At abcut 7.00pm, th1t do.y, the a:~ccused w1s s:ij~nvra.lking. slowly towards his hou.so, \n ,·.ho hovBo hJ.d been surrounded, the 4ccusod could not entor his housoo T{o was thon confronted by P. w. 4 who J.Sked him where he h:i d bn on. The j_cc used replied thnt he had been -to Nchuli vj11.o.ge. FlJ.en P. 11!.4 a.sked the lccusod when he left for Nch, _l.i village, tho a\ccused replied ' ' that he h'ld lo.Pt for Nchm.li vilJage J.t 7.00pm the previous dJ.y and thJ.t he h·'ld gone thsro to collect his chairs • . P. v/.4 then arrested the a"ccusod-, ;t the: time of his,aTrest, the Accused 't.1:1n wo,1,ring o. 1nir of long t.rousers, a; long 1!" overcoat and a vvhi t ish cap. The ace used vias then escorted to the police t'3t.1tion • . In h:j.s defence on OJ. th, tho accused s:1id that on 10th l~ay, 1987, ho wont to d1 i.1:ik 1 oc.:i,l liquor in the morning at Ukimbizi vill:i·~o and thJ.t they mot 1Nith P. ·F1 .2 -l?here. He returned horrn :J.t 6. OOpn. .,:\f•ter a while, ho left his house :md wont to 1'. F, 3' s house whcffo P. 1,'r. 3 toolo, out food and they stJ.rtod eating. '"'hilo they 'Pere eating., they ho1rd the alm:rm. so ho st O})pod ea ting J.nd left for the scene. ~r1.1ile he was at tho sccmo, r. m.1 told the accused that she suspected the accused to h,1vo boon the culprit. But when tho elders intorrog1.tcd her, sho s::lid that she could not clearly id;mtify the culprit. p.vr.2, tho Accused said, told those present o. t tho sc ,:,1-:.0 th::1 t h8 did not soe any one because h2 h3d boon asleap. The ,i:i\:ccused went on to s3.y th-J.t noxt morning, the Cl\ccused asked elders who h.1d g3,therod at tho scone to allow him to go to l\1 chuli village to collect his chairs as the person making thoo v10.s preparing to go on saf-.-,ri. The elders 30 allovrnd him to go 9 and so ho lsft. He did not get the ch:tirs and r turned to th~ ~.1 ilL1ge :it about 6 .OOpm. 0 He w;is then arrested., After my SUDfling-up to tho gontlomen assessors, the gentlemen,o.ssessors believed the evidence of tb.o prosecution witnesses, th2y rej,;ctod tho a,ccuse·d's defence, and were satisfied tfr1t tho &ccusod YUS correctly idcmtifiod at tho scene. I understood thoir opinions to amount to verdicts of "guilty • " - 34 - As earlier agrood during the prelimin 1ry honring, in . -. . ·'-', .•f.J.,,;-.. ,... -,.,., 1"Y th,".> n:-:-ime of t',is C3.SO th ... GrC :cs 4- ':. 11 :~.:2.;J;l'.~.L>C '-' '.. ' .• ~ = cl ~· Rebeka d/o Linbe is -~r;ad :1nd ·cn1t: :~: ':; w·::..,J nu.rdered. The onl o1,: qUOR t 1or, · .L?l d'J.;.:,pUt O lS: · W;.ho DlL' .· ,J· n' •":.1-""' - 9. Tho ovidonc': '•=· ,-irc-<J., tr. 1• ,.cc 1:,:: •• t; L:irgoly that of visual idnnt:U:''1.c-:i.t:Lan., ,..; .,c1_, .7.1.,.J_.; -iV 'i... C,D 3.11 pOSi...:;...1_ .;__,....., ~ - ' .• ,'' ,,.. , , .;, .. J.;.1._\.iJ ·1 r,V'l u._.l,.l,1....,,.;...l. ·~a".nn·'i:1" ·t.,'·y :::.re--., o1i.T!l_ina ted. and -'- V V the court ~-'::: fv..: 'ii :3J.tisfiscr th-J:t; the evidence bQfore it is abs olutol.Y we -~u:,: ..,c~;_g11t ~ ( Se;:.; R~ v .fri.J. _So brlO. to, (196<") E.A. 174; ---- AbdcJ.12}1 -- . :3in '''endo ..___ ond .Another y.R., (1953)20 ,,,_ E.A.C.Ae J66; ::i.nd .~:1zir~_.,_.-~2;man V;, Republi0 1 (1980) TLR 250). In othor words, all the circunst:i..c.ccs in which e?ch wj_tnoss co.ae to· identify tho culprit nust bo narrowly or closoly ox,·,r:'.::f'J~'.., T\·,_tters such as tho timo whon. the inc idont occur Gd, the 0.nou..YJ.t of light ::it the scene, whether the witness kl.10\'.; the culprit before ()r r.,ot, tho distance o.t which the •,:i·:·r2G::38 sc~w tho c:ulpr::. t ,· ::;,nd. th9 time the wi tnoss h.'.l-: the culpri·~ under observation, and :3 o en, mu~t be- c onsi- derod Sllld resclvod by tho trial CC!i.lr~.:" ,,'.;3i)C f,'o.~;h_ri i\man c. v .. R supra)., In thG p:·-:,sac. L.: (;.:lGE::: 9 i.,}lL- :.:.ct. _,_·,' ·..'.dc<r'.co is that of P. ·.1 :1.nJ P.,·.2c 10 :; is not jn. dj~-,_r.:,! :~:1.~1:: thc::;o two witnesf'O\os lmo.c: the t:·:c\::::;,:d lcng botorc ·~ho d.2y of the .incident :1,c.cused suggested s:'/1.0 no rr:as on whs these two wit,110.sso;:,, 2h01JJ. i:J fr~,:E1C him on such r.i. serious rr:o.tter,. I snw ::md obsorvod t1'.10sc 'Nitnesses as they gavo thc.ir evj_dence. Eac:P, of ther:'. · gave o. graphic description tJf wh'.:1t he/she saw, and these were simple illitor:1te poo.s:1nts vvho .,shovJed all-signs. 9f sinplicity, sine eri ty nnd opmmess., For these ro:J.s on:s, ::..ad like the two gontlr.Den assessors, I bo~ieve P.1;r.1 an:1 P.',7.2 to be truthful wit.t1oss0sa Equally truthful, j_n ay view, are P. 1'1.3 and P. ir.4 1r±l( hJ.d.absolutoly n.o reason to framo the i1.ccusodo 1 For th.: se re:·.,--,,·.:,, I find o.s o. fact th 1 t on the day in ques- tion botL L 1 ·.1 :1 .nd P. '~. 2 scrw tho c: Lco;::i a very short d not yot set in. amo1mt of light at thJ.t hour is inferentially supporte:'.: by. the evidonco of p~w.3 vvho sa:Ld th1t t.horo v1as c-rr:l:; l:1.ttle dJ.flmoss ::md thnt when she saw :',;;::L<;~< ,_-;.~r..:~·: ;~c,:c L_r:,v:?e, she recognized him to be the a·,ccu:.• :l ✓ 1nJoed, thc,'o :1 s no les s0r a. witness - 35 ., to confirm. this f:ici:; tha.r. ·tho accusod rn answer to a questi en put to hj_n ·o:; th,:: c• 1_:,_ '.'t. :!':, s2id th1 t when ·he 7 3.rrived at P. w. 3 1 s house, he ri....nnn,_<seci to identify her because it was not very d3.rk. Fro:r;:i the nature of tho :·:,1juries inflicted on the dee eased, vvhich wero nul tiple, it rius_t h.1 ve ta.ken the culprit nore than a natter of seconded to inflict those injuries. I a11. also satisfied and find 3.S a fact that the ace used disappr.:are;d from. P. 17. 3' s house i:onedia tely after . 10 hearing the alarns and tha.t the ac 0 used was not one of the people vrho gati,,erod at the scne ot ther that night or the foll owing day. I cl':1 sa tisf.ied thc1t · the ace used liGd as to his--whc~rce,:)outs that night and the following day, - - • • • - ~ - • ~• _-P~ .... ---and so I reject hh1 defence as a concoction. , Taldng i_,~l '· > ~.:.::count all the circ um.stances in this case, I aB satisfied, fu.11.y s3.tisfie<l, that P. 1.:;.1 and P. ,.,._ 2 had ample tirie, and. opportunity of identifying the culprit th9..t evening, and that th,3y r:orrectly and p·oss~- ti v ely identified the c:,ccuE:kd as. thd ,__. 1.:(_;_r,ri t. 20 In f:Jn e, -~ am satisfied, as were) -~he gen tlenen assessors, tho.t the prosocutic:1 has. proved its case against the (l,C8Used bey9.t1d r, :1..30n8.ble, doubt. I accor- •dingly find the accused, '"ils on· Tungu, guilts of murder as charged and I duly convict hinforthwi th. iN/ 1 &;&&.r (( . ·111,.,;_ :r: 1 '-· ' B. D. CHIPETA ·JUffiE 30/8/89 Coram: B. Do ·Jhipeta, J. Mr. Ruta for the Republic t~r. ·shayo HolrS.· ,-,~ s..cief for T.L.C" tor the defenc$• - 36 - ~udgem.ent delivered in open Court at Tabora tbis ,oth da.y ot August, 19 89 • _,r•···, .. 114 ,\ ;I i . 1 If/ /Y4! 11 -/i/.1 1 ~_;ftL,,, :/{)~'< #J 13. D. CHIPET.\ JUDGE 30/8/89 SENTENCE ! senten•e the ~ecused; ~ilson Tungu, to death, and he· 5h~J.l suff e?t dcia th by panging. ·0(;/:/ <' .. ,, (,J rl!;l,;'lj./1 ·' - 1 ;/ ·-j.- r , 1.r1)1_.r ,...~, - / •.· •..•. ··. ···------..:.. B. D, CHIPETA JUDGE 30/8/8~ JU])}E 30/8/89 leni1-eI.11en assessoYs thanked and discharged. B. D. CHIPETA JUIGE J0/8/89 /