Republic vs Baraka Ngani Jonas and Another (Criminal Sessions Case No. 68 of 1996) [2000] TZHC 610 (23 October 2000)

: ~ ~/ Two .s.ccused persons ncY11ely Bar Aka Jonas (her'd.n re fored to as the 1st accused) a,_"l.d Ba.ngome Nyabenda (2nd accused.) sta...11d cherged before this court of ,the offence ·of Hu.rd.er c/s 196 of the Penal Coo.e. '.rhey all pleaded not guilty to the c1L-:.rge thus the pro:Secution c2J.led in three (3) · witnes.::;es to prove its ca.sec _The accused were the only · de fence wicnesses as two of their Hi tness have :passed av:,a:;,r o The brief facts of th.ts case are that all the _two accused, the deceooed one Hikobiba Bonqventura, PH1 Guninzila i'rnest and PW2 Obeli Kuya v;ere all residence of Isurnbang;_tl_a village at Mfa,,1x110 in Mpand.a District. They knev, e2.ch other very wello It is not in dispute that on 1LirJ5/95 beinr.; a Gtμ1day WaB also a market day.. Doth accused persons and PW1 went to the ma:dzet on that day- ax1d retu.I'ned to their v·ill age during noon hours Q It i.s ho1:1ever unknown if the d.eceaced had also gone to the market. I·Iis wher_eabout on ·t 1 • .cat day are unknown be fore this court. .'here 2.s H/1 and the 2nd accused took the same route/ road \then coming back the 1st accused said he took a foot pc:tth which was sho,ter. It wc..s PW,i I s oJ.legation ho1:,ever that on his way back / horre he found the two accused. per.sons beating the deceased and. when he interv0.·ned and beg® asking them why they were doins so they star- ted beat·ing him as ,well.. He fainted from tbe boatings he received. On Gaining conscious the acr,u.sed persons had ran away and the deceased. had \1alked awa;Jo He went home passing by the deceased. house· and informed his wife th,:1t the deceased had been beaten up • • o-o/211

2 GO if he ciocs not retmn home s.,'.le shoulcJ. not be suprise. He however ' did not name who he s::i.w beating the decer,.sed. It 1 .J.s,s.PvJ1;s' contention that though the incid.ent took ·plz;.ce at the main road no one passed along that wey nor could he ,shout for help as the houses ore very far from the road. However hJ3 Detective ;:-ergent Edwarc. Eanoni who drew a sketch map which vas tendered in court as ::~xhibit P2 said the: :ce where houses ne;arby and was suprisecl why P\rJ1 arid the deceased failed. to shout for help a.ssocfo,ting it with over drtm.lceru1e:5so '::ell afte/ being in formed thc:,t her husband had been b1c:ab.ter.1 up by unlrnovm persons 1 the decc8.Sed. 1 s i:r.i.fe reported the s:::1IT1e to village .sycre- tvry \•;ho rep:rtc'd the sa'Tic a,;cin to the village c1airrnan p:120 P,J2 went to verify the same with the d.eceased 1 s wife, then went to P\•}1 as Bhe dj.d not know t·1ho ha.d beaten her husband whom had by then not returned home o It wctB ,·1hen PvJ1 mentioned the two accused person as having beaten him o.fter he asked them why they were beating the dece2.sed$ T..he accused persons ~ere arrested that nigl,.t and put lmder custodyo hhen a search v:aE conducted the n.:xt day the dcc,:ased bo 0 , was. found near a toilet of the Pentecostal church ,some 235 metrE!s from ' where he was alledgedly beaten up oy the accused persons accor<;ling to PH3o He c 1 .1arged. the accuBed who 1.vero already under custody o Ho\•1ever, the accused have refused meeting the dece.nsed and P\iJ1 on that day. L'hey even refu.sed of not seeing each other .qn that. day and both took different paths and rGturned at different hours from the market o '1 1 hey have even stated they have no grudges with PW1 now I the decea<ocd a thing which WW3 asccntained by PW2. as well., One v ✓ onders "; then why woulcl Pl/1 cook up such a story against them nncl. finds there was none,. Its not suprising therefore that the two gentleman 3f3Se- ssors conceeded Hith the prosecution side t)J.at the case had bee;n ' proved beyond rea.sonable doubt and where of the opinion that they should be fom1d guilty in th-::i.t Ptl1 saw them beat the deceaGed and they ctlso bit P:!1 who fointccJ only tlw.t thoy believed he v:as also dead when they left o It w,IB contended by the defence that if this court, finds that the accused ,.1ere the ones who bit t.he decca,scd then they c,3..'1 only be found guilty of manslaughter and not murder" However, I 1 ;i. iVIateru / 7. • 0 0 9 O .J 0

3 bitterly objected to thirs saying the case has not bum proved beyond 1easona.ble doubt bees.use t}1e::• q11ly eye \ .. Ji tns,ss ,_ P-11 had :his purpose to serve in the .. t he was the only would be .suspect., First he was the last witness who saw the deceased alive on that dci;y- as the accused persons refused to have seem him,. he and the doce22ed. where the only ones found 1r1ith bruises 2J3 well, as the accu,scid vhcre fou..d with none. Bo it could be Pt'1 and the deceased who •.,rere fighting and that they weren 1 t beaten by the two o.ccuscd. 1'.jain the fact as to why the dece.s.sed and PH1 did not shout for help while villagers arc nearby and that rio passerby pansGd ,,Qong for more then rn1 hour on such a busy road it beins; o. market d1-zy left n lot more to be desired. It was his final submission that apart from the lack of credi- bility of P.J1 ,;,hich shoud be looked in to very closely the postmor- tem report Exhibit P1 states the caur-oe of death WE'JS internal bleeding due to· a repturcd ploen which can bc cr:.tused by merely falling down wtl:thout even being beaten or by mere drunkenness as stated by PW3b ·. They prayed that oince the prosecution has failecl. to prove beyond . . . reasonable doubt that the ;;iccused perscms were the ones who. beat the accuaed to death them they should be o.cquitted of the o ffcnce charged with. I trully a,gree with.the submission of the defonce counsel Hr., Materu that even if this' c6'urt finds Pif1 as a crec:.ible witness and believe that ,he a.ctuaJ.1y S,:l.J the a.ccu.scd persons beat the deceased then they. should only be found guilty of manslaughter as th8y ~ did not intend to k:ill him .. T ..:.. say so 8.S \·re have been told that t :;ere was no hosj)ili ty between the d0c.:Jc.sed a.11.d the two accu.sed persohs so may be the a.ccused person.;3 stated tbe f:i.ght with 211 intention to steal and not kill if at all they fought the dece::IBedo V This has been cle,TI'ly staed in the C&Se of .J':.fJSS.C'J.if..Il_O_ ];l-l__L'._;-~~QJ(A __ &:. o;nIi~?§~ :? .. ( 1990) '"f,R p whereby the court Of Appeal held that when death occurs as a resuU o, .a fight., unless there are very exep- tio1ial circumstances,' tlle p9rson :jhb cau~ek death is guilty of . manslaughter and not murder. Ifo 1 .1evor •.:1: order for suc)1 conviction to stMd that is manslaughter this court has to find that there ... '· . was a conimon ,ir1tention and that ,the evidence of the only eye witness is credible.

:n the c.se of .YYk!n~S_1,:[d1(j''0n~ ('1990) TE\ 11+~ t'ho court held that as provided u/s 143 of the :Gvidcnce ct 1967 1 no (iL"rticuJ_2.r number of witnesses is required. for lhe proof of 2.JJ.Y. facto. -,ihz,t is importe.nt is the wi tncss 1 s opportu.."1i ty to soc wh;::1t he/she clo.irned to have seen and his/her crcdibili ty. Gi:m Hv1 ,3.;cid to be credible,. :ct -ms ur;:sli:•• ed by 111·. l-:ba.go that this witness shoulc1. be seen as Et credible one ,le he mcmtioned the accused persons by n.::imes thc;t very nisht cmd he saw trJem durine:; d2.y light so there can be no doubt a,5 to their identity~ Hr. l·'rbc=;go further u:;gucd that the tH8 Rccuse<l pcn,ons were not Iig'.1~~ ting tte c1.ecear:ed and Fli1 but· were actueJ.ly beating them that HcuS t:':::r tho two were injured oneto death an:d oneto loosing his conscious. '?his cxr,1 nins also why the ,\ccusod persons hac::. no bruises thernscl ves .. /orevcr there were no grudges between PW1 .· ond the accused persons o However, hr Viateru ulgu.ed that SGY.'VC-· ~- .. ,. •.crt from }'jcing ti·1e lest per.son h:1 ECe the deceased he was also injur-• . ::·.- -.- .... _ .. ssi'ble r.,e ',•J,°'"' -.he one· ·1;,Jho.·f(1u0'h+ +1,,., dec<'"'c·c' v~ _ • ·'-"'-' - . , .,,,-!v v ... "- : cu,, · '..o. "·; did he net shout for help while there where houses ;:;,. x·Ly :: E ~1j re?J_ly witnos.scid tho firght ·er 'beo.ting a_vid he ~DS beateni'. He olc;o snid ho.d, P':!1 actuoliy seen tho accu,sed persons beat the deceo.sed . why could he even not sto.te what they were v,cm:·ingo Vir 1-le,teru con= tendc:cd th::tt since he oven did not toll the dece.;sed v1ife t. 1 :10 persons wl10 the found b,eoo.t ing the decec;:,cd it v:a.s merely an after thought and just mc:ntioned n,:,mes vjhich c1rne into his heo_d Hhen quustioned ?Y Pt::2. It o.gree with l'ira Ilateru tl.1at the credibility of p;J1 is very for fetched for reE.1Son.s he hi:113 stated o l-16:te 1::ir::causc vihy did he no go to report to the village Gdministral:ors himself on the indj_dence OB ho two llas beaten to tho extent· cf fr,intj_ng he nearly died~ 1f it w:J.E that serious ond knew thctt the de_cco.sed 1-.rould r,1,'JSt likely die he would have been e:icpected to re 1 1ort to the village autly:ir:iti r,.r ,v, . ., sonaJly but he did not do so,. One vionders wby. I would hoad thot P\J'l can therefore not be Sccid to be a credible witness., I3ut even if I would fi..vl.d HJ1 to be Et credible witness there is 2.lso the qu~• estion of common intention which again I find mi.ssint; in this ca.sea Not only d.id the 1st accused person refuse to have returned throught the main road which the 2nd accused and Pi.11 went through 0 (I ~/5 0 r

.. 5 and could have actually met, but F.J1 does not Ci'l:.egorically state who between the two kickecl. or boxed or threw clovm tl:i..e <.k:ceased. He says they were just doing so jointlye In the caBe of DP~ V DLL.2. L/,URCNT r,9D/...'. .. J11'£0).rR.(199())•J;.,B, 11.5 whern the .isicrne of a single witness and common intention where discussed it WfIB held that, in the absence of evidence of common intention, it is not possible on ovicJ.ence to scy which of the accused jointly charged committed the offence, then all the accused persons must be given the benefit of doubt lfa.ving found the:cefore thnt not only can F:J1 be said to be a credible witness as he h,::cd his 01tm interest to serve nnd wou1d soy anything other than that ~ ,,hich would exculpate him from liability but thoro W3.S also no evidence of common intention to en3.blc r:w to convict the accU,seds of a lesser offence of 1:18.nslaug:..1tero It accordinsly proceed to hold that :L have been forced to depert from tho opinions of gentlcr;wn eBSessors for reasons stated above and it accordingJ_y acquit all ti1e two accuB0d persons of the offonco murder c/s ·196 of tho ponc.J. code as Gven tho offonce of manslau 6 hter has not seen proved beyond rea.sonablc doubt o '.1:ho fact that no weapon W8B found, no blood stains from point 1 0 1 to 1 A 1 could even me.sn that the doce.::1scd fell on his own e.nd may not hwu been beaten by anyoneo It is so ruled .·• 8.,.\ .. H .. · Ua11bura PP,}1(E.J) 23/'10/2000