20010601 TZHC Mtwara

IN Ci.71-IE HIGH COURT OE' T.A.i."-IZANIA AT MTWA..CU ·, CRIMIFii-iL SESSION C.11.SE N0 .. 9/,9 t..,,. . . TEE REPUBLIC V'.iRSUS F AUS•I'INE CHHIS:PIN MROPE JUDGMBNT The accused person, FAUSTIN .CBRIS"J:?IN ·MROPE, was brought befyre this Court to face an arraignment -of murder c/s 196 of the penal code... It is contended by the Republic, and denied by the accused · person, that on -or about the 12th of April,1998 at· Nangoo Villag~ within Masasi District in Mtwara Region the accused murdered one .J:UMA ABDALLAH .. Juma Abdallah is dead. On 3rd February, 2000, thi~ Court held a Preliminary Hearing during which the Republic put in evidence a report on Post-mortem examination~·:· The report was admitted by the ·court and marked ,Exhibit P'l .. 'I1he report shov1ed that on 15th Apr:.l 1998 three witnesses by the names of Arna.Di Rashidi, E 1625 Detective Cor1stable Hamisi and Bakari Amani identified the _ body of one Junm .Abdallah to the.medical Officer who conducted the autopsyo The cause of death given in the report 'made after the autopsy showed that Jurna .Abdallah died of Peritonitis a11d perforation ·of the s.mal~ intestip.es o From th_e identification of the body by the witnesses and the report.of the doctor who performed the autopsy a conclusion can safely be reade that the' death of Juma .Abdallah has been establish~d.- ' Even the accused. person himself does :not dispute the death of .,, JUMA ABD.AI.iLAH,, The report on Post-mortem exa1nination also gives the cause cf deatho 1rhis is given as "Peritonitis & Perforation of the small intestines., "Amplifying his report the doctor had this to say in length on what caused the death: "At operation perforation 1.,5cmx2cm at proximal ileum inflammation of fluid and faecal matter into the peritoneal . ca:vi i,y was found O o In layman's language this means the small intestines of JUMA ABDALLAH had a rupture of dimensions '1 .. 5cm x 2cm which made the contents of the small intestines spill into the abdominal cavity., • u/2 2. - It is this rupture and the spilling of the ·contents ·of the small intestines which caused the deatho After sett:ling the question on 1v.hat caused the death of JUM..i-1. ABDALLA.Ii we now cbme to the question on who caused the reath of JUMA il..BDALLAH. This is the moot point where the prosecution alleges the acct.lsed person is the one who caused the d.e_at.h of JUI"LA . .tillfoiLLA"9:, .. and the accused person denies this allegation" To resolve this question let us revisit :the evidence adduced during the trial. It was established b'y the prosecution, and admitted by the de,f ence, that on '12th April '1998 Villagers at Na..TJ.goo Village in Masasi District spent the whole day celebrating 1 since the day was· passover. I'fost of the Villagers speht the whole day d.rinlcing pombeo A few self-confessed teetotalers lik~ PW2 Dini Rajabu . ·• - Maliyatabu stayed at home. lt was led in evidence by PJ2 Dini Raj·abu Maliyatabu that round about 8., 3op. m. at night he heard coconuts falling f]'OID a coconut tree which was twenty five pac·es away in his neigb,bour I s grove. Thr neigl}.bour is one Andrea MichaeJ.-. It was· a dark moonless night, but :when PW2 went to the coconut tree to investigate he discern~4 the shape of~ man descending from the coconut tree. '1:he man l)icked two coconuts on reaching- ground and v,,ralked towards PWo 2. The man identified himself as Juma Abdallah.when asked to identify himself. Juma Abdallah _readily admitted he had stolen the coconuts ·and he agreed to accompany PW2 to the house of the ten cell leader-. On the way to the ten cell leader Fvl2 carried tne coconuts he had al!- egedly sto.len. At the ten cell !header's house PW .. 2 Dini Rajabu l"'laliyatabu f narrated how he .had caught Juma Abdallah stealing coconuts.· It is in evidence that Juma Abdallah reatl.ily agreed that he hai stolen the two. coconuts he was carrying., Apparently the ten cell leader did not want to be troubled that pight, since it is in evidence that he instructed PW2 Dini Rajabu Maliyatabu to teJ<e the alleged theif to the Village Executive Officer. Dini however refused to carry out these instructions and told the ten cell .leader he had no duty to take a thief to the Village Bxecutive Officer. PW1 and PW2 settled for waiting until the next morning for taking further steps against the alleged thief. Just as they were about to decamp for the night, Andrea Michael, the owner of the coconut grove from where Jurua Abdallah stole the two coconuts, came onto the scene$ The evidence of both PW'1 and PW2 is identical on the manner in which Andrea Michael ca.i11e onto the scene. ../3 .:... 3 .... Both say Andrea Michael, a man of big physical propo_rtions and . . known in the Village to have a foul temper, came to the ten cell leader's house and asked for nhis thief!t •· Both witnesses ,. told the .Court that neither themselves, nor the other Villagers who • . . r '. . had gathered at the ten cell leader's house, had the guts to talk ·back to Andrea Michael. Both witnesses told the Court that since it was dark, the ten cell leader w~nt inside h~s house, lit a wick lamp,and took it outside. Ten ten •~l~ leader ilL minated Juma Abdallah, and thenceforth Andf'ea Michael set upon Ju.ma Abdallah with fists to the upper part o~' the body. The evidence of the ten cell leader hov,ever varies on the roles of Andrea Michael and the accused in relation ~o assi3.ult on Juma Abdallaho Dini Rajabu M;liyatabu' P\12 told the. :court: that Andrea Michael hit Juma Abdallah with fists and then deliv~red the 'stomach· 1 kick before the accused person arr·i ved on to the s•erte, while PW1 Mohamed Awadh:i told the · court when Juma Abdallah was hit a.."ld kicked the accused person was already there and_paxticipated in.the beatingo Both witnesses however agree that after the stomach kick by .Andrea Michael the accused person together ·with .Andrea Michael went to one Amani Neluku 1vho is the grandfather of Jurna .Abdallah to report the theft and get reconciliation·;. Both agre:e that the two persons came without AII1ani Neluku whereby Andrea Mi•hael said a report to law enforcement authorities• was a waste of time so he (.tlndrea Michael)_ •i ordered the accused to slap Juma itbe.alah as a "Final punishment''e .:After the ttfinal punishment 11 which consisted of three slaps to the cheeks every body dis~Grsed. ·wnen all the Villagers left 7 the ten c~ll leader :book J\1ma .Abdallah to .tL'Tiani Rashidi. The latter t&ok Juma .abdallah to the Police and from there to Hospitalo At Ndanda Police Station, Juma 1·1.hdallah was received by PWo3 _Inspector Faustin Hokororoo In a surprising dereliction · ef ~duty, Inspector Hokororo gave the scantiest details of Polii'2/ involvement in a homicide casea His brief testimony consisted of telling the court that he saw .Juma 1ibdalla..11. in a bad condition inside a vehicle at Ndanda Police Station., The 11 bad conditionu which he saw consisted of the inability of Ju.ma ilbdalla.h. to rise from 1ivhere he lay, and the fact that his stoma.ch was swolleno Inspector Hokororo recorded a statement from Juma Abdallah(Exhibit J5)and thereafter he did not bother to follow up the case~ He told the Court that he left the conduct of tnvestigations into the case in the ,har1ds ( of B 8816 Detective . F~'!"geant Elias and E '1625 Detdctive Constable Hamisi. These vrnre however not called as witnesses so this Court does not have independent evidence of arrest and arraignment of the accused person •. · 4 This is the substance of the case for the prosecutiono · The defence consisted of ·tne ac6used person's; o~m testimony . · given under oa:th.. The substance of the accused I s defence is that he . ' went to the scene of the fight to jreconcile the parties involved· in the· case of theft and that after consultation with the thief's grandfather himself, .Andrea Michael, the ten cell leaq~r Pl:!1 · Mohamed ..:1.wadhi a,.'1.d PW2 Dini "Rajabu Maliyatabu it was agreed that the way to reconcile the matter was to slap Juma .d.bdalia.11 thrice on the cheek as a warning and thereafter let by-genes be bygones.. He administered the slaps and after the two slaps the ten'•2ll ... , leader gave the t,10 coconuts to . . uidrea Michael as a sign that the rriatter, had ended-c From the summary of the evidence it is evident the cause of death of· Juma .L"l.bdallah is rupture of the small intestines which -caused the contents of the small intestines spill into the abdominal cavity and thus causing death. What caused the rup,ture has been shown to be a kick to the stomach of the deceasE.d Juma .nbdallaho The kick was delivered by one ~i.na.rea Michael who is not accused of any crime in this case. The report on post--mortem examination . ' does not show frny other part of the body of the deceased which suffered Emy traw11a so ,-the death cannot be attributed to any other cause except the kick to the stomach. If the evidence shows that it is the kick to the stomach how does the accused person in the dock get cori..neeted with such a . serious charge as murder?. 'I'he argument by the prosecution, and the evidence led by the prosecution, makes en effort to link the accused as a joint offender by showing that he (accused) -participated in assaulting the deceased.. The other a.ssailant was -one .imdrea Michael. There are t11m sets of evidence of assault in this caseo The first set is that given by the prosecution witnesses r-- Mohamed Awadhi(Hs.n) a-rid Dini Rajabu Maliyatabu (PW2) • The~e generally gave evidence that the accused. helpE:d ..:i.ndrea Michael. in the assault, .though they differed between themselves as to the timing of the assault-whether it was before or after ..:mdrea. ,; Michael delivered the stomach kick and also as to the manner of the assault, whether it was made by using fists or it was a tripping up (NGvLi.Li;.) followed by slaps. This confusion is sigp.ificant,: and is not minor when talcen in conjunction with the defence story that the only assailant was .andrea t1.i:•hael an.d . the role of_ th-2 accused was in delivering "ti4o slaps as part of reconcilia.tion as mutually agreed by those involved ~,hich ,- included the. prosecution witnesses.·· .,_~ 0 .... /5 5 The defence story is that after the "reconciliation slaps" the tan cell leader gave the coconuts baek to .d.ndrea Michael and the matter ended there. Earlier· er .. I remarked t11at the confusion by the :Prosecution witnesses on the timing and manner of the assault was significant vJhenput against 'the defenc·e story. 'I'he key to this significance is.the coconutse ~h2se were seized as exhibits, and· if' it is true that the ten cell leadc;:rs gave them back to iindrea Michael after the slaps t;hen the defence story that the ten cell leader and Dini Malivatabu were pert to the reconciliation • .,. c,,, • efforts which included the slap~. That the prosecution witnesses did not mention what happened to" the coconuts and b~cause the ten cell leader let .imdrea Michael go that day and tho days thereafter . ·• makes it n1ore likely th2.t the defence story could in fadt be true. If this is :tt means the decis{on to slap Ju.rr1a .t.1.bdallah was mad2 vli th the participation of Mohamed i:1.~mdhi PWI) and Dini Rajabu Maliyatabu ) . (PW2) as alleged by the accused p\2rso·n. Giving back the coconuts to . .mdrea Michael makes the ten cell .leader a distant particip_ant in the assault and in effect an accomplice. So is Dini Maliyata.bu. Their evid.ence must be treated with cautioµ .. There is even need to doubt their description of the assault scene. Since theirs is the only prosecution evidence and I have found it less than credible by giding what they did with the coconuts until the accused person revealed what happened in his defence I find them economical with the truth as far as their evidence implicating the accused person :i.s involvedo They participated in a joint undertaking with the accused person to punish an errant coconut thief, and when the theif died they piled all tb.0 blame on the accusedo The absence of . . mdrea Michael is also a mystery c- The ten cell leader :PW1 Moho.med . .1.1-vadhi cannot fail to have 611 id.ea ,-•1:":.::re .tmdrea Mi~ha.El is hiding,. · There must be a conspiracy of silence to keep him away-., · ..ldded to this. is the fact that the accused went back to his Village on his volition. Mention must also be made of the fact that the arresting officers mysteriously failed to appear as sto.te witnesses and the only Police Officer who testified told the court he had nothing to do with the case except recording of a statement from: Juma .ilbdallah .. In the upshot I find the Prosecution evidence less than credible to base a conviction on such 2. serious chD.rgc as murder,. The lady assessor and one gentleman assessor ere also of the same opinion" . The other gentleman ·'assessor we.s of the opinion that the accused person was guit"~r of Ma...--islaughter.. Since I have found the prosecution witnesses to be self-serving, their credibility must be doubted.. Where there is doubt in a criminal trial, such doubt must be resolved in favq~u.... of the accused person. , :' ..... • .L'l.ccordingly I find the accused person NOI' GUILTY · of the offence of mu,rde~-. The accused person is accordingly acquitted. ··. ·. Dated this ~1st Ma;y,2001. JUDGE 31/5/200'1 ·· Date 1/6/2001 Co;ra'!l. Hon. W.S. Ma.!1dia,J For the Republic: Mro Mtinangi,Sll &. Mr. Elly ,SA Mr Mlanzi Counsel for the accused Accused: Present under custody Assessors: All(3) present B/c Sa.kina Order; ,Judgment . read in open Court thi.s 1st .June 2001. The asse.ssor,s are-. thanked and discharged. Wo S. Vi,lNDIA ..- JUDGE 1 .. 6.~-.,01