republic vs said so laliji 2007 tzhc 364 19 february 2007

IN THE HIGH COURT OF TANZANIA AT SONGEA ORIGINAL JURISDICTION (SONGEA REGISTRY) CRIMINAL SESSION CASE NO. 11 OF 2006 THE REPUBLIC VERSUS: SAID S/O LALIJI 06/02/2007 HEARING CONCLUDED 19/02/2007 JUDGMENT DELIVERED JUDGMENT: UZIA, J. The accused person in this case, is Said Laliji stands charged with the offence of murder contrary to section 196 o f the Penal Code. The Prosecution has alleged that on 14th day February, 2004 at about 1.00 hours at Ruvuma river at Matepwende village with Namtumbo District in Ruvuma Region did murder one Abdulasalam s/o Yazidu . The accused person plead “Not guilty to the charge”. The prosecution side brought three (3) witness to prove their case, (PW.2) informed the Court that he heard the deceased calling from Tanzania side of the river Ruvuma, while was at Mozambique side, being the fishman trainee o f the accused person, informed the accused about the call. The accused person responded to the call, and decided to sail across the river to Tanzania, he was in the company of PW2. Upon seeing the deceased, the accused started to utter abusive language to the deceased, demanding to be paid 5000/= Tanzania shillings. The accused insisted payment be done on that day. The deceased pleaded for another day, but the accused person refused and he started to beat the accused person with fists and kicks as a result the fight erupted between them. The fight lasted for about one hour, and finally the deceased surrendered and decided to go home. When was preparing to go home, while packing his properties, suddenly the accused picked an axe cut him with it on the deceased neck and caused serious injuries. When the deceased fell down unconscious, the accused took a big stone tied the deceased body with heavy stone and dumped it in the river. PW2 was threatened not to raise alarms or divulge information to any one, that, if he would do that, he would be killed. Having noticed the cruel acts done by the accused person, PW2 decided to escape from the accused persons house. He managed to escape in the night while the accused was asleep. He went to Matepwende village. He did not tell anyone about the incident. A week after, PW 1 arrived at Ruvuma river in search o f his relative one Abdusalam Yazidu (deceased). He was in the company o f other relatives. The first suspect according to them was the accused person who was suspected o f possessing the deceased bicycle. When they approached him, he denied to have a bicycle, he also denied to have seen the accused, later changed his statement and said that, he once saw the deceased. He decided to arrest him and sent him to Matepwende village. The village chairman referred the matter to Lusewa Police Station. The third prosecution was a policeman who informed the court that, the investigation led to the arrest of the accused person, and PW2 was made a witness. In his defence, the accused person denied to have involved in the incident. He remembered to have exchanged fish with flour with the deceased. On that day Selemani Amamu (PW2) was not present. The incriminating evidence by PW2 was out of grudge, there was a debt of 20 fish, which was supposed to be paid by him. That PW2 was not a fish man Trainee o f the accused person, he was cultivating a paddy field. All assessors were o f the opinion that P.W.2’s evidence was truthful, the Court can rely on it. There is no body else other than the accused person who killed the deceased. On the basis of the foregoing evaluation of evidence, I have noted that this case hangs on the PW .2’s evidence, who saw the actual killing; there is no doubt that PW.2 credibility and accuracy was not questionable in Court in the course of adducing evidence. The defence counsel tried had in cross- examination to impeach his accuracy, but PW2 did not change his statements in Court. He explained how the accused person maliciously inflicted on the deceased a blow which terminated his life. Although the deceased pleaded for mercy but the accused insisted on being paid the amount of money on that day. This Court finds that, malice aforethought was clearly manifested by the use of an axe after the fight had come to end, and the deceased surrendered. Malice aforethought was further demonstrated by an act o f the accused person of tying with stone the deceased body by using a fishnet and threw it in the river Ruvuma. There is no doubt that the deceased body could not be recovered for postmortem examination, but there is ample evidence pointing to the accused guilty o f the offence on the strength o f PW2 evidence in Court. I dismiss accused allegations that, he was citizen o f Mozambique, and did not cross the river with PW2 on the fateful day, therefore met the deceased and exchanged fish with flour peacefully. This Court finds all aforementioned facts as afterthought intended to hide the truth, that’s why he failed to make a follow on PW.2’s disappearance at his house, he suspected that he would be arrested by the villagers in connection o f the death. Having warned myself on the dangers o f acting on the evidence of a single witness. I am satisfied that, PW2 was a truthful witness, who, in my view, had no reason o f cooking such an incriminating story against the accused person. On the basis o f the above findings of fact and the applicable law, I am satisfied beyond reasonable doubt that the prosecution has proved its case against the accused person one Said Laliji. I accordingly find the said Said Laliji of the offence o f murder contrary to section 196 of the Penal Code, I duly convict him. L.M.K. UZIA JUDGE 19/2/2007 state Attorney: Under Section 197 CPA, the sentence is mandatory and under Section 322(1) he must be sentenced to death by hanging. Defence counsel: My Lord the accused person is the first offender. He has 8 children all depend on him. SENTENCE: The accused Said Laliji has been found guilty o f murder contrary to Section 196 o f the Penal Code. The Penalty for the offence of Murder is provided under Section 197 of the Penal Code which calls for death sentence. Similarly section 322(1) (2) CPA 1985 requires the Judge to pronounce to you, Said Laiiji that you shall suffer death by hanging. I so pronounce. i Right o f Appeal explained. JUDGE 19/2/2007.