republic vs hamisi mohamed others 2006 tzhc 129 29 june 2006

H I H Got-1R i M B 8 y/^ IN THE HIGH COURT OF TANZANIA AT TUNDURU (SONGEA REGISTRY) CRIMINAL SESSIONS CASE NO. 14 OF 2004- THE REPUBLIC VERSUS: 1. HAMISI MOHAMEDI @ MUNJA 2; UPOLE MOHAMEDI 3. MOHAMEDI MOHAMEDI OMARI MOHAMEDI 5. ABDUL MOHAMED 6* KAISI BAICARI 20/6/2006 - HEARING CONCLUDED 29/6/2006 - JUDGMENT DELIVERED J U D G M E N T KAGANDA. J. The accused persons stood jointly charged with the offence of Murder on 5/5/2005 contrary to section 196 of the Penal Qode* The evidence directly implicating the accused persons was that of Hassan Hamadi Kibichi (r0w«V;, Rukia hashim (P.W«II) Jaffari Yakuh (P.W.III) and Hadija Zuberi (P.W.IV)* They alleged to have seen the deceased quarrel with the 1st accused who later via his wife invited the other give accused to the scene• They to joined hands by chasing the deceased/a nearby thicket and heard attacked him0 The deceased was later .. .* crying and followed by and another* The deceased was seen swollen all over the body and he complained of stomatch ache. He then claimed that, the accused persons had beaten him and soon he died while being rushed to Nakapanya hospital. 2 It was not disputed that there was a quarrel and a fight prior to the crime between the deceased and 1st accused* The offence took place on 9th January, 2 0 0 % It was not disputed that the accused persons were arrested on 10th January, 2003. JJjac, that thelst accused confessed to the Justice of peace of the comotion between him and the deceased* The prosecution case is based on circumstantial evidence because no witness testified to the effect that he actually saw any of the accused beat the deceased. In other words it is obvious that there is | no direct evidence to the fact, the court is therefore by infe­ rence empowered to believe on the evidence adduced for the facts to be proved by the prosecutionI The prosecution case had four witnesses, according to P.W.I who was in the company of the 1st accused Hamisi Mohaned @ Munja, Ally Hashimu @ Nguinu the deceased; l\Mwana Hamisi Mohamed and i Jaffari Yakub} P^WlIII, had visited Tulieni Village and went back to Masaninga area where they had farms. On arrival at P.W.I's house the 1st accused touched PoW,IIfs wenst beads accompanied by familiarity words because they were family friends« P.W.I responded by telling the 1st accused that:- "Shika Shika sina noma” meaning just touch them I have no problem. The 1st accused then answered "wewe uwe na noma si uneshi&a kushika shika kuna.” meaning, you can't have any problem because you are used to touching her vagina. The deceased, who was P.W.II's "brother found those words and 1st accused's behaviour to be iamroral and abusive. He then woroed the 1st accused hence the qu$:c£*el with words errapted. The 1st accused asked for an apology ^ut the deceased refused, the quarrel continued inspite of several apologies by the 1st accused. Both 1st accused and deceased in the company of P.W.I had consumed some good local beer commonly known as "Moshi" or ”Gongou. The 1st accused is said to have slopped the deceased on his face, in response the deceased picked up a piece of bamboo to attack the 1st accused but P.V.III Intervened and got hold of it* 1st accused’s brothers, 2nd accused to 5th accused and his uncle 6th accused got information from 1st accused's wife and they joined in at the scene of crime. The accuseds were seen chasing the deceased to a nearby thicket and soon after heard the deceased was ■" crying and complained of being beaten by his assailants and feeling stomatch ache0 He was helped by P . U . H I Jaffari Yakub and Mohamed Hamimu. P.W.I reported the matter to the village chairman and those two assisted P.W.III to take the deceased to Nakapanya Hospital but he died on the way. Similar evidence was adduced by P.W.II the wife of P.W.I and P.WoIII Yakub. P.W.II the deceased's sister testified to the effect that, she saw the accused chase him towards the thicket and soon after the deceased was head calling for help saying "Father Father mimi nipo hapa nir'cpigwa." He further stated thats- "Nimepigwa na wale oamaa waliokuwa wananifiikuza*ft Meaning father I am here I have been b n t c n by those people who were chasing me. F.W. III testified accordingly and alleged to have heard accused 'tst^the following words prior to Uhs oi?j?ence, that:- i 11Tu&imkuta yule Bwana ina*bi.di tukampige.n 4 Those words were stated to his brothers being 2nd accused to heard 5th accused* At the thicket 1st accused was . . saying nHuyu hapa nimemkamata njooni tumpige.5’ meaning I have cought him come and beat himc The leceased is said to have mentioned the names of those who actually beat him on his dying declaration or statement. Those mentioned were Upole 2nd accused, Kamisi 1st accused, Omary 4th accused and Kaisi 6th accused* P„W%IY was also present at PoW.I's house and she witnessed all the events. She also saw the deceased after being rescued from the thicket with a swallen body. She clarified on the fact that 2nd to 6th accused persons were summonedby 1st accused's wife to the event after failing to compromiseonthe quarrel between 1st accused and the deceased. The prosecution tendered a cautioned statement in which the 1st accused had admitted committing the offence together with 6th accused, and 4th accused. That evidence corroborates the four prosedution witnesses who alleged that the other accused were seen chasing the deceased together with 1st accused. The 1st accused also confessel to the Justice of Peace partially to the event. He stated at P.5 (untyped copy) that:- rtHapo kabla ya kujibu malingumu akanijia tena na kunivarnia, akaniuma meno hapa kwenye kidole. Mke wangit akaenda kuwaele- za kaka zangu, nami nikasnpiga ngumi miguu- ni, na baadae nikaenda taarifa kwa mwenye Kiti wa Kitongaji juu ya tukio hili • o o o o o M w e n y e k i t i ekarnvita rafiki yangu na kumhoji. Hapo akasema aa&a shauri hili muafi- ki^p^ kesho maana $aa hizi mmelewa0n - 5 - The '1st ^accused thus a<Tmitted fighting with the decease! while both of them were drunk as observed by the village chairman, The doctors report was that death was due to fractured skull and wounding on the body0 The report was not disputed by the defence together with the extra judicial statement. All accused denied committing the offence, for the 1st accused he admitted to all events leading to the Crime except for the actual beating of the deceased at the thicketo He disputed making a confession to the police but he was overuled by the court on a trial within a trial, because the statement was found to have been made voluntarily without threat promise or induce­ ment o As to his lemeanor the 1st accused was seen to be absent minled an I his counsel tried to pull him to the venue on several times likewise the court* The second accused denied committing the offence but admi­ tted to have received information from 1st accused’s wife on the event* He made a follow up and saw his brother 1st accused injured on his ear but he did not witness the actual wounding,* 3rd accused gave a defence of alibi, I do not give weight to it though it was not objectd by the prosecution,, I reject it because the accused did not comply to section 194- (4-) (5) and (6) of the Criminal Procedure Act N o 0 9 of 1985 o That Law provide thats- (4) “Where an accused person intenls to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his inte­ ntion to rely on such defence before the hearing of the case* i # (5)' *Vher-e an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case he shall furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed* j(6} ’"Tf ttit? accused raises flefence of alibi without having first f\imished the particulars of the alibi to the court or to the prosecution pursuant to this section, the court may in its discretion, accord no weight of any kind to the defence*” The accused did not give such notice to the prosecution nor “‘ the"*to«rt* Re,.claimed to have heard from 1st accused's wife of the event but did not participate on committing it* The 4th accused claimed to have been informed of the fight between 1st accuse! and the deceased by his sister inlaw who was 1st accused's wife* He made a fellow up an! found them at the village chairman' house discussing on the matter but the proceedings were adjourned to the following day* The murder took place without his knowledge and he was arrested following morning« Similar defence was adva­ nced by 5th accused who claimed to have spent the evening at Mr. Ohuma's place* He was like other five accused, summoned by 1st accused's wife anl when he tried to follow his brothers found them on their way back from the village chairman* The 6th accused alleged to have been at the 2nd accused’s house where he held a lengthy conversation with his uncles wife* He admitted to have been informed by 1st accused's wife of the fight between her husband anl the deceased* I feel obliged to comment on 1st accused's wife who in actual fact was an accessory before the fact* ,'1 • 7 That is so, because she was the one who incited the 2nd,3rd, 4th,5th.and 6th accused. With her summon those accused persons they wouldn't have known of the fight between 1st accused and the deoeas-el or they woull have known later when matters could have cooled down0 Infact she is an accomplice and she ought to have been charged together of the offence0 An accessory has been by the Oxford dictionary of Law, new edition £r that s- *One who is a party to a crime that is actually commitrted by someone else. An accessory is one who either successfully i incites someone to commit a crime or helps him to do so**’ i In^the case at hand she incited both 1st accused by providing -• , • support and the other accused by lll-information on that her husband had a fight with the deceased. The police are there­ foreadviced to be more keep to their Investigation on Criminal matters like the one at hand! The Learned Defence Counsel Mr. Mbogoro on addressing the Oourt submitted that the prosecution has not proved the case beyond reasonable doubt and as it was held in the case of Maruku Hamisi V R (1997) 'TLR® 1 the accused should enjoy the benefit of doubt. He vehemently argued that no prosecu­ tion witness* claimed to have seen the accused attack the deceased. On the issue doubtful evidence, he submitted that P 0W 0I,II and P*W0III's evidence was contradicting each other, on the dying declaration. That is as per P.W.III one Jaffari Yakub, he heard the deceased mention 1st accused, 2nd accused, 4th accused and 6th accused as his assailatit. - 8 With due respect, the learned counsel should appriciate tbat| the statement was made by a person who was fighting for life at the dying time* It is not easy for eye witnesses to crame ’each and every voice whichvas made under human weakness at that hour* The learned counsel also submitted that the dying defiJ^araticrrt should be looked at with caution as it was held by Justice Makame in, Afi&a • Mwambongo V R (1984) TLR 240* Th$. E a r n e d -counsel should note that, his lordship was dealing with a dying declaration which was made repeatedly by the decea­ sed that is why he held that:- ;tThe deceased’s persistence in implicating the appellant was a mere evidence of consistency and honesty but not of correctness.” That should be distinguished from the evidence in the present case because in this case the statement is said to have been hear to. several witnesses but it was made only once by the deceased* The issue is therefore that the statement was heard by several persons and have all testified on similar grounds as such one lannot question of the its truth. Mr. Mbogoro learned counsel correctly directed the court to look into the matter in the alternative* That is, basing on the prosecution evidence, it has been established sufficiently of the existence of a fight between the deceased and the 1st accused prior to the offence* According to P*W.I, P.W.II, P.W.III and IV that was the source of the problem which resulted into the death of the deceased. It was undisputed that the 1st accused and his brothers chased the decease 1 to the thicket and soon after the deceased was seen seriously injured unable to support himself* Also that he stated prior to his death that, it was those people who were seen chasing him that had beaten him to that state* Those mentioned by the witnesses and in the cautioned statement which make part of the * - p 2?osscuti.on evidence* let accused? 4th accused and 6th acauscd* It shoul.l be noted that there were serious of events before t&ii? offence committed and those events clear out any possible mistake to the identification of the accused by the prosecution witnesses together with the deceased* I therefore agree with the defenc-e counsel's submission anil the authority thereto« The of W ilson Jlyamhanga V R (^984) TLR* 340 which hell that:- "The stabbing by the appellant took place in the heat of possion generated by the fight and commotion, although at one point of the fight and commotion the appellant told the deceased "Lazima ufe leol” that ~ statement by itself is not evidence of prenoditated killing since the statement was made in the course of and during the fight and commotion and not before*" Likewise in the case at hand the 1st accused and his accomplice were in the heat of passion generated by the fight and commotion«, Conclusively the learned counsel cited the decision in the case of Moses Mungasiani Laiza Alias Chichi V R (1994) TLR« 222* That one I take positively for the case at hand as good authori­ ty „ That court held that among other things, "Where death occurs as a result of a fight an accused person should be found guilty of the lesser offence of Manslaughter and not Murder*11 In the case at hand it was clearly put by the prosecution witne­ sses that there was a fight prior to the offence0 The 1st accused and his accomplice without shifting the burden of prooftothem, had a'lmittel that, 1st accused had some wounds or injuriescaused by his opponct who was the deceased. | - 10 - - . l:-v With those '^bsdrvations I am satisfied that since the deceased •**eus- Xaust s-aen in good health at ,vthe village chairman's house " v .$* ,r)>" durins the proceedings- £& oaixftili^tion* That th'£se proceedings were adjourned to the following morning or day and all parties achats.!r Theo^ the 'ie-&eaaed seen being chased by accused to a hidden area in the thicket, where soon he was found helpless. The gentleman assessor© opinion differred a bit on that the "1st ^^s^aessor found all six accused guilty of Manslaughter where as the 3nd assessor found only the 1st accused guilty0 I have/ i A'* taken their opdjaion with respect and due care but I do not agree with any of the two, . Ily reasoning has been expressly put in this judgment earlier on that the deceased's dying declaration mentioned of • his assailants,, The four prosecution witnesses testified to the effect that, they saw his assailants chase him to the thicket,, heard That, soon after the deceased has ’’c: ctying helplessly. Also the dst accused's cautioned statement together with the extra judicial statement which were admitted as evidence for the prosecution. They all implicate those people responsible for the-deceased's death. X therefore come to the conclusion that, it was those accused who were seen chasing the deceased to the thicket who are responsible for his death. In the event I finl the 1st accused, Hamisi Mohamedi, the 4th accused, Omary Ilohamedi and 6th accused Kaisi Bakari guilty of the offence of Manslaughter contrary to section 195 of the Penal Oode and I accordingly convict them. The the 2nd accused Upole Mohamed, 3rd accused Mohamed Mohamet and 5th accused Abdul Mohamed I finl them not guilty to the offence charged or any other offence* 11 I therefore acquit them acoordingly1unless otherwise held legally they can be free forthwith® S.3. Kaganda, Judge I 29/6/2006 29^6/3006 Coramt II6cu "Kaganda * Sedekia - State Attorney for the Republic- Present i Mr* Mbofror'o Xtef-enoa Counsel for the six accused persons present^ j All accused persons present under tustody Assessors: 10 Adam Saidi Ausi 20 Ally Ally Mpenda. C/C Mshana. - Court: Judgment delivered and read over to the accused persons in the presence of the State Attorney and Defence Counsel, Right of appeal explained, S«Sc Kaganda, Judge. 29/6/2006 State Attorney: ( There is no recorl of preyious convictions for 1st accused. The offence carries a penality of li£e Imprisonmentun^er section 198 of the Penal Code. We submi.'fc tbai;the accused persons had i no legal right to terminate another persons life* 12 The socused were drunk and they consumed illegal beer known as "Gongo"♦ The offence of Manslaughter is rampant to this jurisdi­ ction,, I therefore pray for a severe sentence which will be a lesson to- accused and public at large* The aooused were supposed to have adhered to the village a adjourning the proceedings but they chose to continue with the fight hence they caused death to another. tTh^ accused were &eti£ra> as suoh they overpoviered the deceased and they ougbfc to have known so* We therefore pray for a severe 3e nteooe. Kaganda, Judge. - — 29/6/2006 Mitigations D/Counsel ist accused? I pray for a leniency, the accused is 31 years old* He is the ^st offender, he has a wife and two children. His father and family depend on him. He has been under custody for 3 years and six months* He is weak healthwise. 4th accused; He is first oftfencter and is 29 • .years old. He has a wife who depend on him* He has been under custody for 3 years and six months as such he has reported to the offence. The u* offence was triggered by the illegal beer known as "Gongo11. 6th accused: He is just 21 years old. He is first offender still single. He has been under custody for 3 years and six months as such he has reported, to the crime. A Xong jail sentence can spoil him instead of rehabitate him because he will be disposed to hard core criminals in prison0 A. li&kfc sentence would therefore be more meaningfull to him* The Learned State Attorney has prayed for severe sentence under section 1^8 of the Penal Oode* Life sentence is a maximum penairb^r the c^au^t has a discretion to pass a lesser sentence. 1• « * The Learned State Attorney has also submitted that the offence has. been rampjrfc, to this area but I submit that passing a severe sentence ds not the answer to the problem, I believe there are other contributing factors because the problem is mere social than being illegal* He has also submitted that the force used by accused was excessive but I submit that the issue not relevant at this stage. The accused all come from one family. S.S. Kaganda, Judge* 20/ 9/2006 Sentence The three accused were charged of Murder c/s 196 of the Penal Code* The court has founl them guilty of Manslaughter c/s 195 of the Penal Code* The Learned State Attorney has prayed for severe sentence as per requirements of the statute, also on that the offence seems to be preielent under this jurisdiction* All accused persons are first offenders and they are blood brothers* They have been under custody for 3# years now. It has been alleged 3?& that, the period of Incarsation has made them repent to the offence* I have considered the Learned State Attorney's submi— tion together with the Mitigating factors. I still hold that the offence is rampant in this area as observed in other two cases of Similar naturee Unfortunately the offenders are young men who are mostly needed for the development of this country, 'The State, at the same time is required to stop and prevent the spread of such behaviour among young men of this Society* I therefore Agree that there is need to pass a severe sentence will defer further commission whether under the umbrella of social m a t t e r s e c o n o m i c etc* I therefore sentence the 1st accuses! to jail Imprisonment for a period fine years from today0 For the 4th accused he is to suffer jail Imprisonment for a period of three years and for the 6th accused jail Impri­ sonment for 30 months as from today* SoSo Kaganda Judge* Right of appeal to the sentence0 SoSo Kaganda, Judge* 29/6/2006 I certify that this is a true copy of the original. D„Eo MRANGO DISTRICT REGISTRAR*