19891014 TZHC Dar es Salaam

.. . ' IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM . CRIMINAL SESSIONS CASE NO. 52 / 86 REPUBLIC VERSUS E13BAN MBOGONI JUDGMENT NCHALLA,J. EBBAN MBOGONI faces the charge _of murder c/s 196 of the Pena~ Code, cap. 16 T.Laws. It was alleged that on or about 30th day of November 9 1985 in Dar es ~alaam, accused murdered one KASSIM s/ o RAMADHAN .. Accused pleaded not guilty to the charge; 1he ~rosecution case is briefly that the deceased was a . . youth residing with his parents at Magomeni, Matombo area within the City of Dar es Salaam. Deceased had completed standard VII and was aged 15 years. 4ccording to the evidence given by deceased' s mother, o.ne Dotto Sufiani (PW. 1), the deceased weni; to a marriage feast on that fateful night. His mother (PW.1) also went to that f~ast. The marriage feast was at the home of a neighbour, one Athuman Mwinyimvufl. Deceased's father, one 4 amathan idd (PW!3) remained at home with the other children . .At the . marriage ·feast the deceased met with his fellow youths·, ' namely Mussa Kondo . (PW. 4) and Nasso-re Hussein (PW-. 5). These youths remained at the marriage feast till mid-night when they left-going home. On their way they saw accused running after.than, and he was holding a club or.iron bar. These youths who numbered about six ~ . . were of about the same· age. They were afraid of the accused when ( ·'1.ey believed to be a harmful person. So, they ran away from ~ . acc·used. As they were running the accused tripped a:rid fell. down. The accused reached deceased and inflicted several blows with the - stick .. on him. The blows were directed on several parts of deceased 1 s· body, including some on the head .. Dcce_ased triced to· run to escape accused's_ beating, but the accused ov_erpowered -him. Accused c·ontinu- e~ beating the deceased who was heading for his ·home. Meanwhile PW.4 and PW.5 went and reported thB matter to-deceased.'s parents at deceased I s horr,e. lJec~ased' s · father came. out and·. met deceased outside his house, and he was surrounded by many -. . . people. The· accused . was ' : also. .there. The accused told deceased' s father that the deceased had._ stolen I . . ·. . . . but aoeused n~v~~~mentioned . ..... what the deceased had stolen. These two . witnesses, that is J?W,.-{ . and . PW. 5 said that the dec~ased neve_r .cri~d, ; ~ . for help when he was being assaulted by the accused. This was really very unusual in normal life. Al·so these wi trie-~ses said they did. no_t cry f-or· help when they . .-ran av,ay f;bm the. accµ:ed' / and when they saw acc_used assa'!-1 tin~. their ~ompanionr the de ·~,eased. 2 - This is also very unusual in ordinary life. On the other hand, it is surprising to note that, while these wi~nesses said they reported the matter to PW.3, on the contrary, PW.3 denied to have seen them on that night. cer.tainly, PW.3 could not have fa.iled to identify PW!4 and PW,5 who are· his,close neighbours, and who were his son's close friends. So, these witnesses may have told ~-•:at lies to this court. The evidence of another eye witness, Salehe Halid, (PW.2) is even more suspect and incredible. He claimed to have bee_n at _the said marriage feast from where he left at mid-night, in the company of several other fellow youths. They were escorting home their fellow youth, one Rashid. As they were on the way, they noticed that a group o_f people were following them. They got afraid and ran into the house of Rashid to which they had arrived. PW.2 said he came out about half an hour later, and went to observe the group of people that were following them. This time PW2 saw only two people standing outside another house nearby P.W.2 approached those people, and identified the accused and the deceased. He knew them because he also lived in the same area. P~.2 said he saw accused beating the deceased with a club. Accused asked PW.2 t.o join him in assaulting deceased whom ac~used alleged that he had stolen, but accused did not mention what the deceased had stolen. PW.2 just stood by, looking as accused continued beating the / . deceased. He did not intervenue. He never spoke to the deceasedi And the deceased never asked for his rescue. PW. 2 said that the d eceased never cried or raised alarm when he was being assaulted by the accused. This pie~e of evidence is very ~trange; and sounds untrue. PW.2 said that the deceased led his way towards his home, while he was being beaten by the accused. At last the deeeased reached his home. Strange enough, PW.2 who know deceased's parents, and tp.at he saw deceased's father, (PW.3), as he c~me out to rescue his son, yet PW ♦-2 never offered to speak ::to P:W.3. He just kept quiet. This is yet another piece of strange evidence. And norse still, PW.2 lied that when the deceased arrived at home, at the dead of the night, his father and mother came out to meet him PW.2 said he saw deceased's mother (PW.1). But PWI emphatically told this Court that she never slept-at home on the night of 29-30/11/85. I have observed PW.4, PW.5 & PW.2 testifying before me in - court. They are most incredible witnesses. They faltered and were given to exaggerate and fabricate their testimony. I tend to believe that these witnesses who are youths, as the deceased was, were great friends of the deceased, and that they were in deceased 1 s company on the material day. The_se witnesses appear to have 3 why these witnesses chose to exaggerate their testimony. They were n1aking an effort to exculpate .themselves from what gave rise to deceased's death. The evidence. of deceased's parents, PW!I . and PW~3, . is not. so helpful to the decision of this case. Deceased's mother (PW.l) came later on the·morning_of 30/11/85, and .found deceased_. deadly injured,, and she ·could not talk to him .. vlith regard to deceased's father. (PW.3),-he just saw deceased already injured,- as he was led home by a group of people. It is true he saw accused among that group of p·eople, but he did not see accused beating the deceased. Neither did.PW.3 see accused holding the alleged club. The last prosecu~ion witniss (PW.6) supported the deferice side. He was a fellow tenant of accused in the same house. He said• that on the day in question, at about 2.00 a.m. at night, he suddenly wokeup, ·and heard the wife of accused shouting "tumei:hgiliwa na wezi". Also the accused was shouting, thief. He went out and found accused and his wife complaining that a thief had attempted to -steal from their bedroom. The thief . ' had by then ran out. PW.6 said he returned to sl~ep. The defence of accused was very brief. It was q~ite similar to the evidence given by PW. 6. Accused- said that· his wife woke him up, saying that their bed-room door had been broken operi. Accused observed at that door and saw an intruder standing thereat, and part ?f his body was inside the_ bed-room. Accused shouted,- theif, and the intruder ran out; _The intrude~, how~ver, tri~ped· at the d.,or and fel~ down.· Meanwhile accused jumped on that intruder who happened to be the deceased. Accused said that other l people, who might have occupanied the deceased, ran away as accused caught the deceased. . They grappted .. . The deceased bit accused on the finger, and accused fell to the ground, but was still shouting thief·. The deceased ran away, but was intercept~d by neighbours and many other passers-by who were coming from dances and other social acti vi ti es, as that day wa_s a week-end. The deceased was assaulted by i group of p~ople. The accused said i::.. • ' ' that when he fell down, he injured his knee, so that he could not chase the deceased again. He just followed from behin~ as the mob assailed the de.ceased, who kept ·on running. towards his home. Th·e deceased finally reached his home. His father, (PW3), came out ind pleaded with the mob to stop beating·the·deceased . . ·Accused told PW! 3 that the deceased broke into his house and atpempted to steal therefrom. However, FW.3 let his son in, and :told the accused that everything was over, and the matter }' shonl_('l_ end there o 4 A;~tJsed and the mob thJ,m dispersed . .b.ccused was surprised (. to see· l_a ter being charged with the killing of the deceased. Accused denied that he was armed on the·day in question. I su~ed up the c·af~ _.to- the assessors. My sur:JJJ,ing-up _ notes are_·:qui_ te elabo:t"a te, I need not reproduce them in my ··-.-= . judgment.· There w-ere ·three assessors. One assessor was of the op:inion.that the accused committed this offence with the specific inten_tion, to wit malice aforcethought, and he ·advised me ~o convict the accused as charged. The second ~ssessor was of the opinion that the prosecution failed to prove the_ charge on t~e accused beyond reasonable doubt, and he advised. me to acquit the accused. The third assessor was of the view that.the accused killed the deceased, but not with malice afore thought. He advised me to convict the accused with the . 1·esser "offe_nce of man slaughter. I.have giv~n deep thought to all the ~vidence·adduced fiy both sides in t~is oase, As I have already discussed above, I was not impressed by the demeanour of the prosecution eye witne- sses in this c'ase. On the contrary I have been very much impressed by the _accused's demeanour. I am convinced he told the whole truth to .thi"s. court. Accused's testimony· has been fully supported by PW!6. I.have believed that the deceased, in the company of . . other people, went to accu§~d!s house and broke into his bed-~oom It was during small hours in the might, that is, ~t about 2.OO-am- This being the case, the accused was legally justified, both to arrest and asaault the deceased. I have believed that the accused shouted, thief. It was at night, on a week-end, when there · were many people returning from social activi~ies. The deceased . must have been an object of mob justice. This being the case, it is very unsafe to record a conviction of; murder on the accus.;d· ·. In order to do so there must be evidence to establish that accused acted in common intention with the mob to assail the deceased. Such evidence is lacking. Moreov~r, it has not _been established that the accused was armed with a club as alleged by the prosecution. 0 o,if cannot be qoncluded that accused effected the injuries on the deceased' s head as evidenced by the ~MR (EXH.PI). Infact it is not at all proved that the accused inflicted blows on the deceas~d other than the grappling when when the deceased tripped at the door, while he was escaping lawful arrest from the accused. That nature of assault 6n deceased is excusable, artd is not a subject of a criminal offence under the circumstances. In the final analysis, I find that the o~arge has not been proved on the accused beyond reasonable doubt. . .. /5 .... . - - . . .. . ... i. ' . ,I 5 Consequently, l acquit accuse~ of the charge of murder., and l ord~r that he should forthwith be discharged and released from prison unless further detained on another lawful cause. M.D.NCHALLA JUDGE 14/10/89 Coram: M.D. Nchalla, Judge Mr. Ndyanabo/Miss Kiwanga for Republ~c Mr. Ndyanabo/1 en_ga - for accused C Assessors - Absent out duly informed ·' Accu__sed also prese~t under custody. Mr. Bawazir - Court Clerk. C~@T: Judgment delivered in court at Dar es Salaam, this the 14th day_ of October, 1989. Right of appeal -fully explained. M.D.NCHALLA JUDGE 14th October, 1989. (_ COURT: Gentlemen assessors have been thanked and are accordingly discharged·. M. D. NCHALLA JUDGE 14th October, 1989. I ce:i.--rtif'y. that this i::i a tr,.,e copy of: the original I ·-- 1 --- DEPL'T.f ~~ISTRllR