Republic vs Khasan Abdallah (Criminal Sessions Case No. 7 of 1998) [2000] TZHC 247 (9 October 2000)

A - — hc IN THE HIGH COURT OF TAN2ANiA AT MBfYA • ORIGThAL JURISDICTION (NBEYA REGISTRY) CRG4INPL SESSION CASE NO.7/98 THE iEPUBLI VERSUS KH/SSJNCOABDALLMi: • JUDGEHENT: . (S.A.N._Wambura-PRM(EJ) . . The accused. one KhasEan bdallah stands charged. before this court of Murer c/s 196 of the Penal Code. He' pleaded: not guilty tà the charge chargd with. The brief undisputed facts of this case are t at the deceased one PbdaJ.lah Hassan was t he son of the accused aged (8) eigxit years who was lame and could not walk a long dithtànce and . ia atténding.theoli of nature whete.ver he was seated be it inside or outside. He couldonly z. walk a short distance by being held,. by cra'lirig ox by holding on to the 'rall, hbsewise he had to be lifted. It is unthsputed therefore the dece- ased was icak not only at the legs but even in the handsand in general he was of ill health with a small weak voice and very light o be cairied around. It . is again not indispute that the accused 0142) had been living with his brother Shabani and his wife 2ona d/o Ysin iPiJ2) and Mashaka Matiyampula (PW1) his wife and children and one Jumanne Abdallah another brother of, the accused in the same house only that on the fateful evening both the two brother where not present. - It is also undisputed that the accu.seds was living in the village with his two sons for two month before the accused came, to Npanda Hotel for, treatment and that he came with his children as their mother had ran away. The said children where first living at Tanibukareli with another-brother of his one Juma .ibdallah. (DW1) as there wasnt enogh room at ShaaniYs resident. •1t• when his brther went to farm with his wife that the two childran where taken to their father, at Mpanda Hotel. It is not quite clear if they had stayed for Oiilyá day or week or two before: the fate.ül evening but I will cothetO that later. . V V

£ 2 It is also not is dispute that at the fateful day the deceased. was punished by his father ixresective of whether he beat him by a rubber paticide or he pinched, the deceased. 9 Howe'ei' he ateboth meals and batheda PW2 (Zena) alledged'the bathe the two children and. dressed tl-,-iem but did not see bruises on the dased body though she was the one who a10 saw the accused. beat the child. that morning. Again it is not in dispute that on the fateful evening the two children were in the accused,s r&oi ready to' ' ; sieepo He had actually even covered, them when he realized that tie lamp, 'koroboi' did not have enogh kerosine. He thus told, his sister-in-law Zena (PW2) that he was going to' buy kerosine and, she replied okey though see did not look at him. .. It is not disputed that by then Mashaza (PW1) was not yet back"&iit. hi ....Wif.:fd:.. children apart from •Zena iThere all present and that the. accused was 'wearing a jacket... The d.ispite and only..issue here which, arises is * .. whether the accused left carrying the deceased as allegd by the proscition or not as it is being alledged by the defence. For it was on the accuseds return from the shop that he allegedly found his son missIng. oile the prose-,. cution has adduced evidence that no one entered. the accused room.and since the deceased could not walk..alone he could.not have left the fenced hos:e' with some t; and a tate and. walk up to the river unnoticed, more because he could, not walc at a long distance9 . . Prosecution conthnded. further that a part from the conduct of the accused who is alleged to be cril by.bating. his child and. rc ~ asoh for his wife running away he..mad.e no efforts to look for the child and was only sleeping while PW1 a nd PW2 searched. up to 12OO midinight. This seemed that h d id not care for the loss, of the child, or knew where the child, was.. It was finally submitted by the prosecution that according...to th deceased.; featurCs it, is quite c1çar that the deceased. was ..a bother to his father: and., hos e conduct clearly implies that it was the accused, who carr- ied the child. (hidd.ingiim, the coat) and threw him in the river and. thats why he took very long to etprn, rom the shop. t .They contended that he murderd the child knowing that the deceased was lame he could not rescue himself and.would. be carried away by the flowing water in the river. What a brutal death. Be it as it may the child was of course not found, that night asd was found floating in the river the next, day9 After being 9xam'ix2ed. the cause '7 • 0 • 9/.?•

• 3 - of death was said to be crowning. The deceased was thus'not beaten nor made to sufforcate. So as rightly held by Francis Kabed.i who ever carr- ied the child and' threw him in the river was well acquinted to the child and. thats why when the chftd was carried, he did not even cry. Now h vjho could that be0 Its the prosecutions, allegation that it w,s the accused who did, so. und.e.ri all circumstances of this ôase has who did so quoting thc case of. V (1993) ThR 179 has bittery obccted to to this on the other had the defence alledging that the accied was staying with his children for some two months alone and he was thus used to hi 'soiYs behav'ious, That if his.bohavious had been a bother to him he wouj4 have killed, his son while in the village. It also disputed. the alie.gation that the cld. could not walk completely saying he. could. move about. and. that. he had once been lost in.t.he village but they found him. The defence also dsputed the fict that the iccused had a flarsh conduot'touacds hisson (he deceased) sajing the act of beating the dece- ased frequently had not even been reported to his brother (DW1). More- over t te accused began E - oarclung for his child that same right then i'epoted. ti, incicnt to the chairman,, Police and. wntup.to his sbgo.ther (DW1) resident alone at 11.00 pm that samenight, retprxied. and, áontihued to se'ch whll he was sick. -He can not t,herefore'besaid t :h' en.ne4gent but he was tired, He did not even rmr. away and, iifact he $js ti'ie one who uent to take his songs body in thc river, he could not: be seem to- be an uncaring further. It was the..de.fence final submission that the accused. be adcuitte'd of the offence ci.arged with,;' because the prosecution has failed'to prove his guilt bejond reasonable douot • This is because apart from the fact that no one saw the accused leave with the child nd return alone, there where more people who could, d,o so while the accused was at the shojb being PW1 his wife and. PW2 who were Eults apart froin. the hildren and. the accuscds two brothers Shabani and Jumanne wliose 'whereabout are r unla-iown on. that f.tp.fuJ..ev'ening., '')orse because all this: had purposes to; do 'being bothe.rd by the d.cee.sed ill behavious. • - e gentleman assessors were of the opinion that though the accused was not seen carrying the said child but there was sufficient circumstantial evidence to p(Dvothe guilt of the accused. With outmost,and due rese Ibeg to '.' differ with the gentle- man assessors I will .proceed"to explain why as required by the liw I see B'JJUWSINGHV(i94)21EACA209,. admittedly this was d. diffi- cult case and. there is alot of suspicion against the accused. However, as submitted by the defence counsel thc-reis also a great posibility' that someone else carried the deceased and threw him in the river

• Lf —t .. . river because no one s .' tee 'ccused leave witi-' thed deceased and retur-. ning alone. Hod someone coma up with that evidence teen I would haiè been forced t think otherwise. i1owevr, this is not in evidence before this court. It has been held time nd. again that sus'pition no matter how strong can not be the s4e basis for 4anvictioñ in,a criminal offen€e and for a capital offence .lke the, one facing the accused the court has to satisfy itself that the prosecution has proved, its case beyg any reasonable doubt and where there is any doubt no other how slight that benefit of f doubt always goes to the accueda Thats the law and well established, principle of the court 491 TLR 175 and, JEPI-I JO} M1I'ENE VP (1986)TLR L.LF to mention a few cases.) Now since the accusea alledged to have left hischiJjd nsil and there is no evidence that he. was seen 1cavi1g with the chid while Use were other people when he left and the door to his room was not lpcked.,, no matter how long he took at. 'ihe. shop..there was obviously a • .. posibility that someope else could.,.have carried the deceased. and.throulvin • him in the river. More because if the child could, not walk why lid..'. the search take so long? Where were FWI and PW2 searching for. the hili while., the accused had gone to infoin his. brotheri, Its not quite cear'. Its even inth9 dark if PW2 realy lft,lhe house to fetch water.at the': top or river or never left her room completely. One wonders why would ?1.who has a wife decided to.wash his clothes that ..vening or why so serjous jn the search thefl the accused. as they wahted, this court. 'to believee "hue everyone was questioning the reason for the accu.seo divorce we dont .kfi'ow if Zena.s marriage to the acctiseds br ther.is todate in extence or not a Or,.when did PW1 ihabani and Jurnanne return. What .1 am trying to point out here is that .. while the accused ha only to inform his dcfence to the point of ising 'a posible. couxse the prosecution Is to. go far beyond :t1'1 that and. proveit case be.yorji. reasonb16 doubt. Just as I am pathetic to ftc orutal death the dece- ased had to under go, I regret to annuow'ice that I am not satisfied that the offence of murder c/s 196 of the Penal Code has been proved beyond. reasonable doubt s . I accordingly find. the. accused not guilty of the bffence. .chargcd with and is .beeby accordingly acquitted. 0

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