Republic vs Euzebius Kamilembe @ Kenedy Alex (Criminal Sessions Case No. 20 of 1998) [2000] TZHC 249 (12 October 2000)

s -SLA IN THE HIGH COURT OF TANZiNIA MBEYA ORiGINAl. JURISD1CTION-(MlYA REGISTRY) C.RIMINAi SION C;WE IO.20/98 • THE PEPURLIC / • VERSUS EUZEBIUS. KANUMBE @ KEDY .ALgX: JUDGE1ENT: Wambura 6.1'% 0 (PRM(EJ) . LiizehiuS Namilembe stands charged before this court of the offence of Murder c/s 19 6 of the Penal Code which he pleeded not gUiitt5 The prosecution side thus called in six (6) witnesses to pi'oveit case while the defence called. only two (2) witnesses. It is an undisputed fact the on .26/11/95 during evening hours Jane.t Corad aged 10 years now a deceased., was sent to buy sal€ at PW2s shop .-(Thereza Joseph) by her father 0onrad Mweupe (pwi). Though she bought the salt she did not return home. The next day she was fOund in the bushes dead. It is also not in dispute that at the same time the accused 4so went to PW215 shop. However, whereas 1:'W2 ailedgedthab abs saw the d.Cceased who was wearing blue dress arrive at her shop and leave her s.hop after buying salt being in the company of the accused who was wearing jeans trousers 1 the reason which made her tell the de- ceased relatives to ask the accused here he left the child, the accused. alled.ged that he left the child, behind as they took different ways to go to their respective homes. when the villagers indlucling the deceased relatives being PW1 and p4 Salvatory llweupe the grandfather of the deceased who were led by P145 Jackson Bayona the village chairman went to ask the accused. as to where he left the child in the presence of P'T3 Jailos Mar.ufa and DWI John Marufa two different stories have come up0 The first version is that the accused replied that they pated ways with the deceased after leaving the shop. This was said. by PWI ,PW3 and P144. The second version is that the accused said he left the child eating fruts at a tree. This was said by PW5 who actually asked him and DV11. All these people alleged • • 0 ./2. : ! i

• 1 2 - to have been'esent'. when the accused. was being questioned. The first issue which this court will be" have to resolve is whether or not the deceased. left PW2s shop alone or in the company of the accused.E I will do that later0 • According to PW5 when the accused. told him that he left the child, eating fruts at a tree he asked the accused to show him the said tree and it was the accused who lcd the wdydp-to-the tree. At the tree they 'found 'l'ialf eaten fruits and salt which was spilt around. These • facts are not in •d,ipute. However 1 what has been disputed. here is who led. the 'way to the trod, for aocrding to PW3, DW1 and DW2 it was either ordere'dby, the village chairman ot oie Mzae Mkuhd.e 'to conc1U,,t a search in res$ct of the'ciiretion where the deceased aid the accused where seen hdading to and dpilt up in groups., P 1 ,45 has refused this saying he personally made' no suc,h orders and. that it whd' the accused who led thdth td.whe,re he left the child eating fruithe The second iSsUe to be resolved then is -iér whether or not the accused, voluntarily led. the villagers to where he left the 'deceased. it' has, been fu,rthr, contendd. that Q after arrIving at the tree where the deceased as eating fi'uith the accused, told. P 1 45 that while the decased was picking and. eating-'fruit iswhen he caught her and moved, with her to a±ìother place were they could. not be seen and raped her. Again they found, laid. 1 down grasses, blood and the .doceased feaces at the spot';' Yet the child was not there, P'6 inspector Joseph Nwekaile 'told., this court that the accused. admitted to have rared, the child. there The accused, an his witness who avoided this question where silent on the issue. )3ut PW5,DW1,PW3 and PJk all said the chila was raped.. It for this court to therefore rule 'as to whether it was the accused who raped the deceased, or not, making it a third issue to be resoivc1.. "..'aving 6ii0' them vhore he r;ped the child.', the accused allegedly then Droceeded, to show, them wheae ;-he left the deceased. He di,d. and the d,eceased,s body was found, lying down dead her legs wife apart, with a swollen and. blood stained vagina being half naked., her dress being pulled: to her waist. Now while P5,PW1 and, PVX said it was the accused, who showed then the deceased. body, DWI says it was PW5 who found the body. P'3 and. DW2 0 0 ./3.

3- said it was one Merderd now a deceased. who did so0 Thus again there in a forth issue to be resolved by this court, being who actually saw the deceased, first before-it I can rule out whether it was the accsed who murdered. the deceased or not. 0 As stated earlier it was Mr. Mbago's submission that the prose- cution has proved.that it wasthe accused who killed, the deceased and with malice aforethought because he raped a child of 10 years and being a person of sane mind, he ought to have foreseen the results. He thus intended to kill the child.. It was further contended by the prosecu- tion that the offence has bean proved beyond reasonable doubt because it is not in dispute that the deceased died of an abnomal death, being excessive bleeding. And that at the evening..before her death the dece- ased was sent by her father (Pi) to buy salt at PW2 's shop. PW2 saw the deceased arrive at her shop in. the company .of the accused and the two left together. S : Mr. Mbago asked this court to find PW2 as a credible witness for she even described what the accused was wearing a thing which was not disputed and showed the villagers the direction which she saw the two. heading to. The deceased. body was actually found. in the direction she saw them heading to,s.:.Moreyer, the accused admittedthathe.had.no grudges at all wl.th any..witiis..and.thus. PW2 had. no. reason of cooking, up a story agains.t the accused. '. . . . '•.' . . . . . It was further submitted. that the accused was the one who '. volu- .- ntariiy showed the villagers where the picked fruits for thçdecsed then caught her and took her to. another pLacc where he . raped her. and. later to the spot where he left the deceased. The deceased body was found. where he lef.t it. It was Mr. Nbagos final submission therefore that since it..was the accused who, was last seen with the deceased that evening at PW2 2 s : . 0 shop and they left together, and. it was the accused who voluntarily . led, the villagers to where the left the child eating fruits, and the salt she bought was actua.ly seen spilt around the tree then procee- . 0 d.ed to show then where. he raped the child and, finally where he. actu- ally left her, .bere..they was.found dead, then it was the accus9d who raped the deccase.o.dat'h as it is also'not in disute"±hat he- i returned home after 730 pm on the fateful day.

On the other hand, Mr Materu advocate for the accused at first objec- ted to the fact that the accused raped. the deceased. to death in that the accused was refusing to have left ?W?vs shop with the deceased. though admi- tting he saw her there (at the shop). The defence also refuses to have admitted. killing the deceased. and. that it was the accused. who led. the wy to where the deceased bod.y was found. It s their contention that the body was found after some search by all the villagers in the bush, the accused inclusive. And as for the fact as to where act'ially the accused left the deceased, Mr. Materu prayed. it be ruled. that the deceased, was left at the shop for it the accuseds word. against PW2s. It was his further contention that unless the court agrees that if was the acud who led. the villagers to where the decease body was and. that the body ±iot recovered by the search, the±i could be true that it 'as the accused who killed. the deceased. He however pointed, out tht it would: be very dangerous for. the court to hold so as there are alot of contr.dictions as to who actually saw the body first. - The defence further alledged that a part from the fact that the prosecutin has failed, to show the motive of the accused. in killing the deceased, hi coi'd\ict after committing the alledged offence should be looked into óloselre He alledged the accused. had a clean medical re- cord and Was not iiijured any where as ailedged by PW6. If a scuffle readily took place 'between the accused end. the deceased then he could have been bittenby the deceased. or skretched.j but this ijaz not the case MoreO'er' the accused ki not seen with any blood, stains and neither wag' the :de'ce5od. .khanga. .fomd in his room apart from the fact that he did not run away. It was his contetion. theref9re that arything could have'happened to the deceased. thereafter as it has not been proved that it was the accused who raped the deceased. in the bush. He urguad. that the injuries at her sexuol parts could have been caused. by any- thing which was burnt as stated. by Pw6. It was Mr. Materu?s final submission that apart from the fact that the deceased was seen with the accused who led them to the tree where she ate fruits, there is no collaboration at all and that even if this court &bill finds the accused guilty, it should be for manslaughter and not murder. This he said was because the accused only raped. the dece- ased. and it was through the rape.. that 'the deceased passed. away. The accused. can not therefore be said to have kIlled, the deceased with 3

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-S This is the version olledged. by P 1 ,45 as wall. I would thus rule out that the third version is the most probable truth as it has been said by both the prosecution and. defence witnesses and because PW5 was the one who actually asked. the accused and. whom I have found. to be credible to. The other r-ascn that has madame reach this finding is because the fruit tree was in the direction which the accused. was seen by, 'PU2 (whom I also found. credible) heading too with the deceased. In other words then it. Ia. qite.true that the accused left the shop with the deceased, to the d.irection...pointed out byPW2 up to the tree which had. fru.ith. '-Even if it is true that the paths. to the raid.ences of the -two iere of opo- site directions and not, of one direction as alled.ged by PW1 there was nothing to stop' the accused from going to the accused. direction first them return to the opposite path. The issue that follows then is whether it was th accused. who volu- ntarily led. the villagers to the tree which had fruitS. Again' we have two' diffôrcnt stories. :hereas the prosecution has alledged that it was 'ho accused who lcd them to thesaid tree and later to where he raped her and to where the deceased body was found, the defence disputed. 'this by alledging that the deceased body was found as a r&sult of a search conducted by the villagers, the accused. inclusive. Its'my finding that the accused led the villagers voluntarily (as he admits in court that he was not forced, to do any thing) to the said tree.. It is not in dis- pute that at the tree they found half eaten fruits and sp±lt - salt, if there was any search at all it must have began from this point whether by order or voluntarily. It can not be said therefore that, the accused had admitted the killing the deceased before that. He onlydmitted leaving the child, eating fruits at a troe before they went 'there. The villagers had no reasc-n to search for the accused then led them to whe- re he raped her after catching her while picking fruits, He said it was: hecauso the tree was very near the road and. he would be seen* in deed. they found the deceased stool end, blood at a place where grass was laid down incLicating peoplen had. either sat for slept there. He later showed them where he left the dcceo.sed. At this point we are again faced with the problem of deciding who actually 'saw the body first for we again have three different vrsions, V.Thile DWI (ata.i- sad) says it was PW5, PW5 salt it was the accused, . The sase was nar- rra:itecl by PW1 and PWk that it was the accued. who, showed them whe- re the decoascd body was. . .... -.

-7 - PW3 and DW2 said it was one Merdord now a deceased who saw the the body first. At first I thought it was an imaterial fact but having been warned of the dangers of admitting this fact which is a bit contradictory I had, to think twice and rule on it. It" is an undisputed fact that all along the accuod was close to the village chairman PW5 and PW3 and DW2 admit that at times they could. not heard what the two conversed as they wore.'behincl the two, th±le PW1 and PWL had a better reason of being 'closer to DW1 and P5 being relatives of the missing child., PT end DW2 had nbne they were just there our of curiosity like any other villagers, no wonder at times they remained, behind or if they were close enough they have pretended not to hear other details. This is no suprise for as it was rightly contended by Nra Mbagd they were living with the accused, who although he was not their brother they wore keen to give evidence which would be of assistance to him 0 Unfortunately though their story was not inconsistence with his (the accused). Again is true that PW1 . and. PW2 would give evidence to implement .... the accused with the death of th,eix child but this was supported by, PW5. DW1'% sLory stands alone. Jt :.hasbeèn hld in a number ofô''..es that whord prsecution Witnesses giye incOsistancc accouxts in their evidence thei d?ubts created should be resolved for the accusedvs benefit. One of such a case is the case of JEREMIAHSHhIVLTV1 (198) TLP 228. A can not dispute that. o icier, in the present case the incorsistency on this issee like the othec issues was more of the clefc- nce witness nd. not of the prosecutions side. I have held., above that i it was thd accused who led the villagers' vluntari1y,to.the sceie,. I proceed to 'held that it was the accused who voluntarily led PW5 to where he raped the deceased and to the spot that the deceased body .: .. was left. He imew where he loft her the previous evening and thats where she was found the next day. Only that sh was now dead.. The most contravential issue is whether or not it was the accused who raped the deóeascd to death. It is at this point where we have been left with dissenting opinions Whereas it is true that no one saw the accued rape the deceased, and it was thus the opinion of the first gentleman assessors that he should be acquitted of the offence' charged with; it is also not in ci.ispite . that no seoiil act are done

in public. For rape cases it is even worse. no wonder the accused. carried. the d.eceaed to a place v/nero he could not be seen by any Would bo per by 0 Now apart from the fact.that hè,was not seen all other rcunstan- tial evidence prove that it was the accused who raped the deceased even if we are to leave aside the question of admission and so the second. asse- ssor found. him guilty of the offence he stand charged. with. The defence as stated earlier cJdledged. it has not been p'ed beyOnd reasonable doubt that. it was the accused. who raped the deceased and. that the deceased. could have been injuried by any thiiig or nyb&dr else. More bece: the accused ha4 no traces injuries on hi body not even tooth bites nor: was ... found with any blood stains. I would hold thab expe- ctin'g"a.:child, of .10 yoars.to fight and. injurie the accused. who was' rn- pingLther.wouJd be. equivalent to expecting an ant to fight an elephant 0 This is because the child had full trust in the accused who she was very well acquinted. to, knowing he would, walk with her safely back home after eating fruits. She did not know that she was in the hands of a monste who had. a lust of assaulting her sexually as soon as hc, got the oppor- tunity, . Therefore a part from the shock and no matter whow hard' she kicked, hit and bit she was obviously fighting a loosing battle. ;: As for the look of blood stains,one would. not oxpect to fiid, then because it is in evidence that the accused. was seen washing treusrs the following day. it was also argued. that even the d.eceasec khanga was, i not. foud 'in the accused ..... corn but no one said. that the deceased. was wearing a khanga PW1 who sent her nor PW2 who saw her at the shop said nothing to that effect. As to that fact that the deceased, could. have been iajuried with anything that as burnt at ncr secual private arts I rule out the 7os1b1lity that It was a stick or an animal bite. At this point is whore we find the African 0 taboo of ffling to called spd.e a spade in sexual o'ffCno In 'a rape'case o btt±'nt object viould in a.resonablo men's standard'mind. impliedly bo an Oxet penis. I ha- ve failed to foresee a situation whereby it could be apart from the 'accused. who raped, the deceased. 'after going through the availabe cir- cunstential evidence in this case. Fortunately the defence counsel also'saw this and submitted that if any thing at most the accused can - only be said., to have raped the deceased and. should. he found guilty of the offence ofrnçnslaughter.

It is obvious therefore it was the accused who raped the deceased. The final issue which this court had to determine was whether the accused can be found guilty of killing the deceased with malice aforo- thought. It was the prosecutions contotiori that he should for follo-. wing tho. standard of a sane reasonable person he ought to have foreson the repercurssions of his acts. L.. .. As pointed, above the do fence has alleged he should. only be found guilty of manslaughter and not murder because it was through rope- that the deceased passed aiay I arn of a similar opinion. We can not expect a drunk person to use the standard of reasonable sane perhn. Its in evid.et• that. the accused had been drunking before h net the deceased and .. 1ciadd,efinately lost his sens.e of homou.r. It has also been held that the-.me-re know- ledgéhout the back ground and circunistences of the death of the dece- ased, compied, with the discovery ofthe dead body of the deceased. did not constitute sufficient circumstantial evid.nce to support a convic- tion of murder. This was held in the case of JOSEPH s/c_KANILIANGO & 185, that was because the accused motive had not been proved as in the case before us . ,. ... - For a person who has been charged of murder committed in persuance of rape the a essential element has been said. to be the credibility of witnesses as w s also held in thecase of BICHRD_MATENGULE VR (1992) TLR5, As I have stated earlier I have found. the two witness as credible one, they are PW2 and P15. Surely they are husband and wife but then it was.. from PW2s explaination as to the direction which she saw the accused and the Ic-ceased. heading to where the deceased. bod.y was seen. PW5as seen. PW5 was the one whom the accused is allodged to have shcm hcrc he picked fruits for the c1ild and later caught her and carried her to- a srot where he raped her then to where he actually left her and it was where the deceased body was actually found lying. He- was with the accused through out and. actually protected him from being beaten by the angry villagers. Apart from not asking then any ques- tions when the witnesses were at the witness box though given a chance to, the accused admitted, that he did not have grudges with any of the prosecution witness. For the above stated reacns I have no reason to doubt their testnionies and thereby found the-ni to be credi- ble witnesses, At this juncture let me just point out why I have had to analyse the evidence thorughly in writting this judge-me-nt because some might . .

be wondering why I. hve undergone all this. I have done so for its my duty as provided for u/s 312 (i) of the C 1 P.A. and emphasised in the case of JEP1LL'1 iIMWETA VR(1985)TLR 228. ihichroquires a trial court to single out in the :judget . the points fr'doterminatin eva luate the evidence and make findings of facts tier€ on. I conceed that the.deceased died in a very cruel mner being in great pains due to the at of being riped and then not even having a shoulder to learn onpq aroind. to.consde her. he could not even crawl from where she was lot to the road to seek assistance bec' use she was just too' week. .d..0kl0ft to die in"the cold. end fear of being eaten up by fierco' imalsJ I can imine the trauma which she went through until she 'die and. I am very pathetic to that but theI'o is nothing to implicate that the ajuseci rapd her with an 1ntetin of killing herb The accsod, was drunk and only 'wntd to satisfy'his Se- xual urge. He could not fdesee that such on act could kill the d,ece ased. no wonder he wanted. to run' away when he found her ' dead though we do not know what•'he expected of her there after. All this goes to prove that the accused had no intention of killing the cleceasedb It is for the lack of this intention that" I have beenade to differ with the opinions of all gentleman assessors and have found the accused. guilty of a less offence of m lahter instead of the offence of mder, May, I also point, out at thi jucture that there is a great lesson to be learmnt by all of us. We sould. never iquorie things or asüme things for grarted never, 'ever, "I' am saying this because had PW1 taken the intiative of searching for his 'daughtei"that evening he may have saved the life of the dceascd evn though she would have been raped. And, if she was still to pass away at least she would, be curdled in worm hands and not die in the cold. He did not do so and have accordingly lost a soul out of negligence. I would this cell upon all parents and. gaurdiens to be bery careful and make a follow up immediately n their children disappearance espe- cially in these days where wehav a lot of cases in volving child, abuses on both girls and. boys. Peaserchas in this case has proved that children are being abused by persons who a4e well known and acqui±ted to them. Hed the accused been a stranger tile deceased would d.efinately not agree to go to the bush to eat fruits waith him, She had her trust in him and. did not know the use of her sexual parts apart froi'n urinating so it 4W 4

I ii could not cliack into her mind that she could be secually abused. It is high time therefore that we stopped the taboo of hiding things from our children and speak openely to our children who are School goes or whom we believe we can send from point 'A to 'B clone end give them elementary sex education end wcrn.of being sexually abused to both girls and boys. S.t1.i. Wmbura PRM (EJ) We do not have any previous records of the accused.4 However the deceased. was a very young child, and rape cases have been many. We thus pray for a severe sentence to serve as a wa- ning to other 13eions who have similar behaviours. That is all. Mr. Materu; I pray that the accused does the mitigation himself. AccusdMiation; I pray for leniency as I did not do the acts. Sentence; Accused is sentenced, to serve an imprisonment term of ten years (10). This is because though he is a first offender he could have looked for an elder woman to satisfy his sexu-

• al urge who could. serve this purpose willingly. The act of raping a child of such a tender age was very brutal and thus deserves a stern punishment. Right of ADpeal against con- viction and sentence are accordingly oxplaineth Court; Gentleman Pssessors are thanked. and, discharged. accordingly. <I f I

SA,N. Wanhura PM1, (EJ) 12/10/2000 -. -------'---- --