20060314 TZHC Bukoba

,, 1 './,, / -- ''. ,, ' . \ :~ I t ----~ "' JJ:1."~. - IN THE HIGH COURT OF TANZANIA ._ ~· I v ATBUKOBA tY ORIGINAL JURISDICTION Cf'';,;/' \ {BUKOBA Registry) \/ v ... e,, 1 HC. CR. SESS. CASE NO. 12 OF 2002 [/ THE REPUBLIC Versus -,- 1 ERNEST @ MUSHUMBA PASTORY --r ~, 13th March & 14th March 2006 _j - JUDGMENT RWEYEMAMU, J: The accused in this case Ernest @ Mu~humba Pastory is facing a charge of manslaughter c/s 195 of the Penal Code. He is alleged to have killed Ponsian Gervas on 11th Sept.! 1999 in Gwanseli village Muleba district of Kagera region. Pastoty Iwho pleads not guilty is I advocated for by Mr Rweyememu advoctte while the Republic is ·,; .,. ~. represented by Mr Kahangwa state attorney. The facts of this case are very briJ as some key facts were • I admitted at the PH stage and some wer at trial uncontroverted . I· These are: • I • Pastory and the deceased wer businessmen carrying on . • fish selling business . • On the fateful day 11/9/99, he two quarreled at the J Gwanseli fish market. They wer separated by the people there among whom were Pw 1 and Pw 2 the deceased's young brother and father respe tively. J~ • The following day i.e. on 12/9/99, the deceased fell and died; the cause of death as per postmortem report was l internal hemorrhage and ruptured spleen. r· .....,.~ • Pastory gave a cautioned statement followed by an extra judicial statement, admitting to have fought with the l deceased but denying that the fight they had on the 11th in the· market was the cause/source of the ruptured r spleen which caused the deceased's death. • The cause of the quarrel (first hidden by the prosecution ' T witnesses· during examination in chief but later admitted during x-examination), was that the accused had earlier bought fish from a woman and paid 10,000/=, but when the fish was finally brought to the market, the deceased re bought it at a hiked price. And that: • The accused reported the matter! of the quarrel and the I deceased to the ward executi~e, the deceased was adjudged guilty and ordered to refund the accused's ,. 10.000/~ plus a fine of 2000/= in total 12000/=was paid :7~ to the accused. This fact that after the uarrel the I - - I f accused sought help: and the d, ceased Pwl and Pw2 ; ]_~. attended mediation at the war~ executive, was first I' :~[~ I denied b the two rosecutio~ witnesses and onl I admitted during x-examination. I :~[ • The accused was also injured d ring the fight with the deceased as per his PF3. 2 The key factual issue for decision in this case is whether the accused's spleen ruptured during the fight with the accused or thereafter. The prosecution's version comes from the deceased's father and young brother. According to the two witnesses the deceased ·1 went about his business that day, sold all his fish and returned home in the evening. At night the deceased's house caught fire. The two -r witnesses and other people answered the fire alarm and helped the deceased save some of his properties. The deceased participated in l salvaging his property from his house which was completely burnt [ down. He thereafter left and spent the rest of the night at his fathers Pw2 where his younger brother Pw 1 was also staying. They slept. [ . Very early in the morning the deceased woke up normally (according r • to Pw 1) and went some few villages away to report the incident of the burnt house to the sungusungu commanderl ['• I I This fact of the fire and subsequent travel by the- deceased to 1: the commander, was hidden by the two witne~ses, not only during ]~ examination in chief but earliear. · The st~te attorney in his introductory facts; (probably derived from stbtements of the two I: rosecution witnesses to the olice durin inve~ti ation · stated th~t in the mornin i.e the 1th the deceased went to the villa e chair to J~ re ort the uarrel. The sto of the fire a d its aftermath the witnesses told reluctantly to the court.) Accor ing to the two it was ~C I • either before he reached there or on his retur that he fell and lost [ .speech. He was carried home (it is not clear b who where he died shortly after. 3 - ,._ - - , ~ rm.- - . -------- ..., There is another aspect of the prosecution's case which is contradictory. Pw 1 said the deceased appeared normal after the fight. that is, he did not say he felt any pains: After the fight at the fish market; during the night particularly when he was moving his properties from the burning house; or in the morning when he left to go to the sungusungu commander. But according to the deceased's father Pw 2 the deceased informed him that he was feeling pain on the chest. L. In defense the accused testified on oath as Dw 1 admitted all the facts but insisted that their fight was not the cause of the rupture I of the deceased's spleen. The defense called one witness a medical expert Dw2• .I That witness was called to explain the physical reactions of a. r person with a ruptured spleen; whether he: can feel no pain and carry on as the deceased. did. According to that doctor; it all depends on r the nature of the rupture. With ·a minor rupture, a person can live on r bleeding in the inside even for two weJks. That is if the rupture affects the cells only, but if the rupturd affects the blood vein a L person bleeds profusely and soon goes intb shock. Unfortunately the evidence did not answer the critical issue Jith certainty either way. C On the evidence, Mr. Kahangwa s bmits that the deceased's ...L~ spleen ruptured during the fight with the accused at the market on r~ · the 11th in the morning. That the decease bled internally and finally succumbed to the blow on the 1ith whe he fell down, dying soon after. Mr. Rweyemamu disagrees. His sub issions can be divided into two groups. 4 ''I + . .;:;..~. • !!14,_,, --f -~..I!-•~ - - - - - ~~"'-- The first is in respect of the key question - when did the deceased's spleen rupture. He submits that it could have ruptured in the night of 11th when the deceased was frantically moving his properties from the burning house, as that exercise must have involved considerable physical exertion when the deceased might I have been hit; or it might have ruptured on his way to or from the sungusungu commander. The second group of submission relate to the strength of the prosecution case gauged from credibility witnesses. One, he submits that the only witnesses Pw 1 & Pw2 being relatives of the deceased, r ~ are not neutral witnesses, they are witnesses with an interest to serve - settle a score with accused. Two, the two witnesses were not r truthful which I hasten to add is a fact, as revealed by the underlined r areas above. For example, they first denied knowledge of the cause of the fight at the market until pres~ed very much during cross r· examination. And as if that was natl enough· the two witnesses I . r contradicted each other regarding whether the deceased expressed feeling pain or not. According to cdunsel the evidence of the [ prosecution was unreliable, left a lot of doubts which doubts should be resolved in favor of the accused. Mr. Kahangwa responds on two !.. issues; one, that there is no law which p events relatives to testify or . I~ make their testimony unworthy of credit. Two that it is understandable the ·deceased would tell Pw 2 about his pain because l~ he was his father and not tell Pw1 his younger brother. 5 In summing up to the gentlemen assessors I informed them that the critical question for decision was the time and manner the l. deceased's spleen ruptured. If on the evidence they believe it was ruptured during the fight at the market, they should advise a finding .f. of guilty to the charge. On the other hand if they believed it was l ruptured either during the market fight; at night in the course of rescuing properties from the fire on the 11th ; or in the morning of i t 1th on the way to or from the sungusungu commander: That is if · ;f they entertain doubts as to when the spleen ruptured they should ' 1 ·1/ advise a finding of not guilty. I advised them that according to the '[· doctors' opinion all the t_hree versions were possible. I further advised them to consider the contradictions and inconsistencies in the ;1:- 1 prosecution's case, decide whether they were minor or fundamental. ·.r I i The assessors opinion were as follows; the 1st assessor advised or believed that the spleen ruptured during the fight but advised that the accused did not intend to kill so he is not g~ilty. The· 2nd assessor . I [] advised a finding of not guilty. He had the following reasons; The i • f I prosecution witness contradicted each other; U the deceased had [I .I been serious injured during the fight on 11th he could not have gone [ at the sungusungu commander alone, and t at the fight at the • market was witness· by many people as explai ed, why wasn't any [, • other neutral witness called to testify. The 3rd assessor opined that since the accused fought the deceased and a actor as opined that [' with ruptured spleen a person can die within day or later on, the rr .case was proved .. I thanked the gentleme assessors as their 6 _, . ,... _. . opinions provided if)sight into what are indeed critical issues for consideration. In my opinion· there are two issues calling for decision. One is whether on the evidence, it was proved beyond reasonable doubt that the accused's spleen ruptured during the fight at the market or thereafter. The other issue relates to the reliability of the prosecution witnesses and strength of the prosecution case. Regarding what I consider the key issues, the conclusion from the evidence is that it is hard to tell, when the spleen ruptured. The exercise of the night of 11th , during the fire rescue is not testified to with any certainty■- The only witnesses who testified were the ' deceased's relatives· who though permissible as Mr. Kahangwa submits, their reliability on the account of events is suspect as I shall soon demonstrate. Second, like the 2nd assessor, it is curious that I Pw 2 would let his son go some villages away alone to report the issue of the. burnt house, if indeed he was feeling sbme pain from the fight of the day before. Further, the evidence r~garding the fall which dwelt the deceased a final blow is scanty; Jho witnessed that faU? What kind of fall was it; who brought the de~eased home? And why didn't the prosecution bring the sungusun u commander or the person who witnesses the fall to testify? There are too many .I unanswered question. Had the postmorte been thorough, he indicating what kind of spleen rupture the dee ased had suffered, the evidence of rupture· would have established ith certainty the time factor; In the absence of that, and absence of witnesses to the fall on 1th, it is impossible to state with the certainty required, that the 7 . I • .. . • I ,1 ;' l l deceased's spleen ruptured on the 11th, after he fought with the accused. This conclusion suffices to make this court find the case l against the accused not proved beyond doubt. But there is more going against the prosecution case. l . It can not be denied that the two witnesses had an interest to l serve. Their son/brother is dead, before dying his house had been i burnt down and a day before, he had a fight with the accused, when the deceased was adjudged guilty and ordered to pay fine to the T •"- accused. Of course despite the above, they could have chosen to be witnesses of truth, but they did not. l Each gave fundamentally inconsistent versions, one story I during examination in chief, and another durirlg cross-examination as J: per underlined portions above. This court is puty bound to address i them .. See Mohamed Said Matula Vs Republit:I 1995 TLR 3 CA. the ~I reasons of their inconsistency is not far to findf They are out to settle • what they believe to be a score against the a1ccused. Now since the 1 two witnesses have_ shown themselves to tell falsehood, and then ]':'. change when pressed, this court has held thad 'Yn testimony of a witness where the Issue Is °ie of false evidence, · ,_T the falsehood has to be considered in weigh1. ,g the evidence as ! whole............ where it is glaring and fundamen a~ .... .its effect is to . ' ~-("'' : '. destroy confidence in the witness altogether..·.,, " i' :-,c i_ ' Mathias Timothy Vs Republic, 1984 TLR 86. In this case the inconsistencies and fal ehood by Pw1 & Pw2 · makes their testimonies suspect. May be ther was more they were 8 , I .. J .L hiding. The fact that the witnesses were hostile - from the events described above, coupled with the high degree of inconsistency - .l.. fears of their bias against the ac_cused can not be dispelled as held by CA Michael Haish V R 1992 TLR 92. There is yet another weak link. One has to wonder why neither the ward executive who settled the score between the deceased and accused on 11th , therefore saw the state of healthy of the deceased, nor the sungusungy commander who either witnessed the fall or J~ informed Pw 2 about; it were called to testify? Their evidence would have been neutral and may be, buttressed the prosecution's case. ~[ L. In view of all the pinpointed weakness of the prosecution's case, I find like the- 2nd assessor but for slightly more reasons, and -r:: . like the 1st assessor for different reasons, that the case against the accused has not been proved beyond reason,able doubt. I accordingly acquit him. R. M. RWEYEM JUDGE 14/03/2006 9