19891108 TZHC Dar es Salaam

THE UNITED REPUBLIC OF TAHZJ..H'I.A 7 IN THE HIGH COURT OF T.AHZAff.IA AT DAR ES SALA.Al-II

ORIGINAL JURISDICTION CRIHIHAL SESSIONS CASE no. 30/87

THE REPUBLIC _versus l. HAMISI PROPELA SALUH 2. MOHAMED MZEE K.AISI Q,,har_g_~-t V.ll.U"der o/s. 196 of the Pena1 Code. RULING: l-1r.' Mse1em, l.earned counsel f'or. the accqsed persons has submitted that there is no prima faoie case which would re.quire the accused persons- to 1-:-iake their defence .• He revie'wed the evidence and said that none of the witnesses said anything concerning the f'irst accused Ramis Prope1a Sal.um and that alt~ough the second accused is said toh._"ffl3 been seen at the home of' PW1 and PW2 there is no evidence to show that he did anything to the deceased. He concluded that there was no case made out against the accused persons sufficient to require them to ma.~e their defence. In rep1y, Miss Barahomoka, learned State Attorney submitted that it was true that there was no mention of' the first accused :ln the evidence of' the Prosecution t-ritne·sses but that the second aocused was seen at the home -of the deceased. She concluded that the. second accused had a case to answer. There is no doubt that the :first·. aocused has no case .. to answer because the prosecution evidence does not touch him at a11. As for the second accuse4, although witnesses 'said that they saw him around the area near the scene of crime, namel.y at the house of PU1 and F1v2 and al.so al.ong a pa th near the house of' PW1 and HfJ_, . there is no .evidence. to show that he, in

any way, took part :i.n the assau1t of the deceased. The facts as presented by the wi ti1.esses are that a group of youths who included the 2nd accused 1;,ent to the house of PU1 to buy mosltl liquor • •••••• /2. - 2 - II . -'i· ,a'•~i ~. But they. clid not get any liquor. Then one of the youths i assaulted PW1 vii th a s_tick and all the ypuths ran away, Soon after that PW1 and PW2 heard the de.ceased Filbert.. Nch:1.mb:i. crying that he wao dyingo 111.e d;ece2.,<::ed came to the house where PW1 lived and entered the house. He was I I bleeding, This was about fifteen minutes from the moment. the youths left the house of PWlo I The cries of Nchimbi were heard only five ~-i.utes after the youths had run away from the house of PW1. PW2 saw the youths go and he identified two youths who included the second accusedo The deceased came through the sar:,e path which the youths had fellowed. Later on but not ~ong .:1.f'ter that, the second accused was-seen by PWJ run."1.ing along t:1e path ·which pas'ses very near to the home of PWJ. I"'ie v,as· w! J..'h ·-='r:' .... -- --~_.,____ ~-,..-----'· 1,"\~ ThEln these. youths who numbere...:. d. . .' )Und 6 began fighting over a shirt• On the above eyid;lnce even if' it is believed, a reason- . ·able tribunal direct;i;;.:..; itself properly on the evidence cannot convict. The tds·l; is whether a reasonable tribuha1 could convict on the 1,

ridence adduced., The. answer here is certainly in the negat:Lve because ther:e is nothing to connect ·the second accused with the an_:::ault 0£ the deceased. I theref'ore agree ·with the le.arr.Gd. co.._msel. f'or the accused that a case io not made out against the accused persons suf:ficient1y -to require them to make a defence -in relation to the o:f:fenoe charged. Consequently in terms·of' section 293 ( 1) of tr.0 Crim.,,..,<>, -i:'::-:::--~~---~- ,....-=-~~~ · finding o:f not gui.!. ~./ ;: v.J..' both accused persons• <-~--~~--·-··--•····~ --~ 8/11/89 Court: Ruling delivered. Aoc~sed and bet~ ~o~nsels present. Assessors th.ankA-1 AT DAR ES SALA.AE