Republic vs Charles s/o Kawishe (Criminal Sessions Case No. 58 of 1987) [1990] TZHC 598 (12 November 1990)

\ I IN THB HIGH COURT OF TANZANIA A':' MOSHI ORIGINAL JUh!SD_ICTI01'J CEil''lINAL SESSION.:3 CASE Oo 8 _ OP 1987 (Original Crimi'nal Case (Po Io) No. 1 of "':JC? of the · District Court of Moshi ·Distri~t at Moshi) THE REPUBLIC .oeoooooooeooeoooooe•o•••••ooPROSECUTQR versus CHARLES s/o KAWISHE ••.•••••• o ••••••••••••• • ACCUSECJ \ JUDGMENT by the name of CHARLES s/o KAWISHE stands charged ) . . (with manslaughter c/s 195 of the Penal Code. It is alleged that on or about the 23rd dav of D-.;cember, 1986 at Mnazi Mmoja Bar..,_ at Majengo area, ~ . .Jshi t0wnsh:..p, 1V1oshi District, Kilimanjaro Region, the· accused unlawfully kilied one Francis s/o Malisa. . The accused· pleaded not guilty to the charge. In proving the charge of manslaughter the prosecution has got to e that it is the accused and no other that caused the death of the deceased· arid that he did so unlaw":ully. This is the on!y issue in this c·ase that the prosecution has got to prove because the rest . of ·ch'-' facts which might have ben issues are not disputed and a memorantluin to th.at effect· has been recorded and countersigned by the partis- and both c0nsel. The undisputed facts are that the named clec.:::used is actually dead and· that he died at the time alleged lri the information. !t has been clarified·' and aemi tted by both pa"rties ··that· the deceased was injured on 23/12/8l; but died later in hospitol dn 29/12/8 at K.c.M.C. hospital Where he had been a9mitt:0d for treatment. It is further admitted that the deceased died o·· violent death such· :!S s~~l-r.,n 4 .n the information' and_ supporb:d by the doctor's report both on PF .. 3 (Exh. P.2) and on the Postmortem examination report (Exh. P .1). Both of those reports are no disputed.· · ·· The docto'r•s repcrt on PF.3· is to the following effect 11 cut ·ivout1cl of size 2x2xl ·cm, head injury · : by blunt object appli2d wi·th great force.-"·· The nature and extent of injury sustained by the deceased has been described as "grievous harm, Brain laceration and big subdural haematoma were found". \

2 This exam.i.na.tion and report was made on the PF3 on 23/12/86 the day when j_ t is alleged the deceased was_ inj11r.ed by the accused. The postmortem rpcrt is to· t· · followj .,'.1 effect: "death due to cardi,n:-"'.':piratciry ai:-r"'s_t ecor..d_;Y to £,evL,ce head injury with parietal (L) epidural and s ubd ural haem a t;oma t!. This post mortem / examination and report was· made o!'l 3J./12/8e. I r ,, I The proscution has go~ to prove the remaiing issue in thas caso beyond reasonable doubt as :equired in c·<minal chargei- The accused has -no duty of.pro·d·g t., "1no..:.:,1ce. All the acc;Lsed -- .. ' has to do is merely raise a n.,a' .... :·:L''.c doubt in the minds of the I court, whereby he will be enti-':.L,d '.:o an acquittal. The. prosecution had caJ._led- several witnesses to testify dn ; the pro:.;0cutiono Howevc.i: all bu:: two of those witnesses turned • I hos til8 ·o.d M,r;o Hw.idunda, learned 2':c1.t Attorney, applied to ' .. this cc-urt to treat those wi tnessc-s · a~ hos til~ under section 13 . of the T.E. Act, r::.7 and for leave t0 _c:ross-examine them. Mr. Mwidundn submitted that the two proser:ution witnesses namely CLEHEi:--l'I' URH1.· NGlli"JA (P W2) and .;JO.:!EPH KIMATI {P oW.-3) gave evidence in court which markedly dif::P.rred _with wl';lat they had earlier on stated in thei statements which they made to police. Mr~ l'-1-Jiclun.da proceeded under sec.tion lf:.4 (l) (c) of the T,.E. Ac~, 67. The statement of P.Wo2 was first read. out in court. •' > The relevu.n t portion in P :w·~ 2 's s t:a teen t to police which contra.diets his testimony in cout-'.:· is the f9llowJ.ng: "Hapo mtuhumiw<.1 (msh tak.iwa) aliaq:i.za ·. po:-:ibc chibμku mbili kubwa na marehcmu nliagiza chibuku moja kubwa,na kusema ha7.a yeye anazo '· fedhn. Hnrehemu ali!T'••'"'"""'" ~ - .... c, .. , .. _ ·-••-·:: huna pesa na akatoa isharn yn mkono wa dharauo Hapo :".~ 1 .1-hmiwa ·alimwagia ,marehemu pombe aliyc..1kuwa nayo mkononi, na al:'.mwagia kichwani. Wote kwa hc.1sira walisimama na mareherm~. ::· 1.:'.;:inza kum 9 hika mtuhumiwa ·. . Charll:s· s/o Kawishe shati na m-!-.u'.,ur:i5.wa akamshika marehemu mikono .. . . yot0 mi1!.d.li.--..:..-------:-o Ndugu Kima'·h aliw·aamua _ na wakaachana na kulitolrnn mwanamke mmoja ambae allpiga yowe na kusema mnamwun b:1ba yangu na wakati huo wa~u wengi wal.ikuwa wamezingira pale na muda mfupi nilishtukia kumwona !Tl_arehemu yuko chin.i amelala chali sakafuni karibu na mlango mdogo---------. '' Pow,;;, ·made· his o o ••••• /3

; .... --• .,. 3 P.W.2 made his statement to police on 7/1/87, that is, two weeks ofter this incident occurred -on 23/12/Bi:; and when the• acusd was then in custody having been re-arrested on 27/12/Sh. F .w .,2 denied in his evidence at the trial that he made the statement reproduced above. He alleged that his· statement to I)olice was net read over to him, al though he signed it • . P.W.2 is an ed{cated person who schooled up to Std. X in 19i:;7. p{is class is equivalent to form VI education to-day. I was atisficd 'chat P W.2 ·was a hostile witness and I gr-anted Mr. widunda's. application t treat PoW.2 as a hostile witness and to cross-examine him. on the relevant portion of his statement to .Police •. I admitted the statement of.P'.w;..2 to police as a record ', document which forms part of the prosecution case. A similar application was made.by Mr. Mwidunda in respect of P.w.3. The relevbnt portion·of P.W.3 1 s statement to·police is in the following tes: "Nilikaribishwa na kunywa pombe na ndipo mtuhumiwa Chnrles Kawishe alitoa usemi'akisema au akimwambia mZJ.rehemu kuwa nimekwambia uwaonye wat6to ·wako wasiendelee .ufanya ujo hapa. Nilitaka kujibu lakini. Kgwishe (mshtakiwa) uka.nikataza nisiseme lolote. Nilirudi ndani hotelini •. • ~ , L kumsaidia yule kijana na nilitoka tena nikaja knywa pombe . .. . . k:idogo -na ndipo nikakuta marehem·u ameshamwagiwa pombe . . kichwani na hapo marehemu akimwuliza Charles Kawishe kwa nini um<.mimwagia pombe. Utaniua· leo na ndipo marehemu akia ... ·umesimnma alimshika mtuhumiwa shati na kumpiga ngumi moj a yu k~fua ·na hap·o mtuhum::..•,;:. ~'"':"'".::;liika marehemu mikono yote miwili-------. Binti wa marehemu akaja akipiga yowe ukis8ma kuwa Kawishe amernwua baba yangu na wakati huo alikuwa bado upigwa bali alikwisharnwagiwa pombe kichwani. Mtuhumiwa alitcka ghafla na kuinrukia rnarehemu akampiga kichwa na marehemu akaanguka chali kwenye sakafu sehernu ya uwani-----." . P.N.3 signed his statement to police although he alleged the same wns not read over to him. P.Wo3 made his statement on 31/12/88, that is, before PWo2o However, their •••• o/4

.. , 4 How8vGr 7 their statements_·to police which were made on different dab.:!S .:mJ in the absence of the other are but almost a replica to eadh other. It is however worthy to note that even P.W .. 3 made his statement tb police at -the time the accused was in remand for this offence. P.,W.3ts statement to police has also been produce~ and filed .:is c1 record cfocumen·t forming part of the prosecu'tion case. Tlii2' same treatment and procedure ude sections 1i::;3 and) 164 (1)· (c) of the Tanzania Evidenc-e Act No .. /l'!Jt:.7 ws applifd to Poif.3 1 s statement in similar manner as was dbne to P .. W.2's; . . . sttcm_en'c to·i-~~lce. AftGr p,"rceiving· that all the civilian· prosecution witnsses had decided to turn hostile, Mr. MwictUndt\a applied to drop th rest of·. such witnesses~ So, Mr. Mwidunda remained with only ·6~~ ···matcrinl witness on the prosecution who is the daughter of the deceased, one VUJ.v1ILIA D/0 FRhNCI$ MhLISA (P.Wol). The second -witness is a furtnal witness, a police officer who recorded the . . sttl'cemcmts of the prosecution witnesses Vfhich they mad~ to police, ) inclu:Ung th~ statements of P .. We2 and PoW.3. Vumilia (PaWol) told this court that she was at the bar of the e1ccus..:ad known as Mnazi Mmoja bar which is at Majengo area in Mc.,3hi town.. This was on 23/12/8h at 7 .30 P .. M. when Vurnilia first ntriv~d at that bare She found her father the deceased at thnt bar. The deceased was seated with a woman Mama Nchihiyo whu is now cteado They were drinking local brew known as mbege. Vumilia sat with une youngman known as Pius Asengao The accused was also pr<.:sent in the bar. He was seated somewhere in that bar al th0ugh r, .w .1 did not physically see accused at that .time. ·p.w.1 knew accused very well before this incident as P .. W.l lived -next to v.ccu·sed's bar. Hence the accused anct·i?.,W.l were neighbours• Then Mama Nchihiyo who was seated· drinking with the dec,:cciscd rose and passed near fl .w .. 1. Mama Nchihiyo spoke to P .W.l. an,: t'old her that she (Mama Nchihiyo) had been sent by accusod to call the deceased. P .. W.l then saw her father, the deceased, rising after talkin_g to Mama Nchihiyo. The deceased 'walked to the direction where the accused· was said to be seated.

( 5 ·- Theru were full eleotric- lights~ ;n n:-the bar both at the rear eclosur0 (uwuni) and in the ro9m- of the bar_house. The accused was seated at the rear encloure~·. A- few minutes l~,ter P .w .1 hurd shuuts 0f people ·quarrelfng:-: P . .. l heard i;>eople : shouting·-- "mwach~ huyo mze ... ". "'The shou·-: were -6min9 from the '·dirEictio·where ·her f°athr had. gone;· fw·.·i··qu'ickly rose a·nd ,. went .to obst::rve the shouts. Sh·e found her father 'Standing • r • . but· 'was drenched.- wit_h mbege from h1:fad to foot. The accused ·. was holding the .deceased: by ½1is~_shirt:' at the hest. P.W.l .! • ha'.rd clCC'USd ·telling the d_ece·ased-' thci°e wr9s . 11 ieo lazima . ·:niktipit·6. ", There was. r1_iiant eiedfric_. lig---at that 'spot and ' ··' P .w.·i: propurly identified the· accused a_nd her ather. It: ·was , .. :...· .... : : : .. .\ . : . ·right u:c ·the rear enc)."osure'·of _a_ccused 1 s Mnazi Mrnoja bar· at, • '! _., Ma'.jengo.: F:.w .1 plead.ed. with accused. thus· "s"hem_eji mwache · baba yarigu. •. 11 • P.eW ,1 · said _h;e ·_usd. t~ call; or. address the· a·ccused as Shehij! :°becaus,:/ one p-e1$<.m. £ :corn obo . was married to her young ·sistc.;r,. 'The c1ccused als.o hailsirom ·Rombo~ This fact was substantially admitted ·by the accused in his defence. The accused· released the ·qeeased after P oWl }'.lad peaded ,.with him to do-so. Then P.:w.1 held.her_ fathe.r py the hand and . .. . .. .. . ·:· they sturtcd walking .out" of ·tQ--.bar. -They _had just. reached the:c100r or 'gate of the Ccl9s~re ,when P.W,.3 appeared and fuld

• . . ciccuscd thus "w.hy have .. you lft h.irn fi:;ee when.t).e.has ._spla}:led ' . l. • ~ . • • . I • ; ·.pombe ·on·y.our shirt-Z" .. £?.W.3.was_,doing _9_u~ins5; in accused_'s bar. He wa/ rurinilig an hotel. therein either as a business partner •• . ' l with ti1G accused or a tnant of the accused. P.W.3 1 s statement was nimecl. at the deceased. Upon hearing this statement. the ; . ' .· ... I • • •,• ,. accusecl replied in the following' words · 11 Ni sawa. watu kama: hawa Then accused immediately : , fol l0w12cl Po W .,1 ang ,ier -father, th_e ? e9eas ed", be.f o_re they went . '.o:ut-of -t:hd encl9sue of.the bar. A.ccμsed reached PoW.:t. and -:.,• .-, pull.eel ne.r aside an putted _her. on. the cheek, ?Ut P .w.1 did riot fa.11 .cl-own. Then the .acc~sed c:aught- the deceas,ed by the .shirt ut his rieck .and, pul_ed. him _toviard_s. him f ac,e to face and . butted him. heavily thre t,imes and left .him.. The deceas_ed . . ' . . f~il dowri'·pros:~rate on ·the cemented floor '?f the .bar .en.closure. He fell face ....... o/6

He fell face upwards· and was unc:·onscious. ·p .w.1 cried out for help. Ho.ny · people came round. P .w.1 wa9

able to mention the names of 1-'.W.2~ l:'W .• 3·and others who wee with accused at the scene. l:' .w.1 Vividly· ·and' candily i narrated how this incide11t occurred • .- I. am quite satisfied that· she was physically pres_ent at this incident and' she properly identified everything that she was .:tl)l2 t0 see at the material time. Her story and_ ·· f description corresponds with what is contained in the statements of P.W.2 urid P·w.3· which .. they made t police which statementJ . ' . : ; . . . ·' . '/ were .i:-oad out 'and produced befo_re the subqrdinate cour.t duirig committb.l · pro.cec}ings and therefore those statements qi::e infa,ct P.W.1 iaid she was assisted by some people like Baba Eri and ·otm.ns Shne and they took the deceased to police- station · where they 'l9dged a complaint against the accuseci •.. Pi'.,3 was issuec1 to the deceased ·and· they transported him to hospital · whe_re ·he wcis treated· and discha.rged. However, during. t~~· night ) . . .: .. : · the. dcceci.s<.:!d vomitted and was complaining ·of heada_che. 6ri 24/1'2/BG _ the deceased was taken back to Mawenzi Government hospitnl 'for treatment. He was treated and was sent back home. He· wns treuted of he.ad injury. However, de<;:eased 's condition deteriorntcd day· in day out, and or. 25/12/8,:; he was sent back at Mawenzi hos pi ta'l for treatment. This time. the deceased was refrr-2J to KCMC C{)llS':1ltant hospital where he was admitted in 'th~ in.tensiye care uni to On 2F:/l2/8~ deceased I s head was operated upon und · on· 29/12/8~ the· deceased id in hospital from h_ead injury us i:iclicated n the l?ost Me>rtem Report (Exh. P .l) an:d .. in P.F 41 3 .. (. E}¢,.. bl .•. 2J ·o : ~ i-:i.w.1 said that on·.2,:3/12/.B<f•W-..3. ,h.d._t-~mplained .. to the de.ce.nt:i°~d .th·nt his c1_1ildren '(deceased •s children)- had created .. - d:isturbnr'lce in the bar of accus·ed at Mnazi Mmoja. A baraza ~·;.; . : . <. had bi::"cn convened to discuss the· complaint by P oW.3. This happcne{i in accused's abs:_ence·. · The matter was discussed and it ts ull,e:g_ed it was settled amicably, although this is not prov;ecl v.s P.w.r did ·not take pert· in the discussions on .· ... , .

• - ,._ l. .. :, -· 7 Th-; ssiJ c-0mplaint and discussions held on the said complaint on 23/12/86 is a fact which is not i'n dispute. P.W.l said_that she has spoken th truth. She is in good terms 'with 'the .a.ccused ·and even with P.W.3. F9r that reason she could· not falsely implicate the accused with this charge. I for one nm quite satisfied that P .w.1 has told only the .· truth to this c0urt. I· observed her closely as she testified before ·me. She· is benign and· a· candid woman. Her demeanour is so itnpr-2s si ve 1 ThQ police (,ffier ·who recorded the statements of i? .!J!.2 and P.W.3 and thuse of the rest of the prosecution witnesses is· one X · No. B 2835 D/Sgt. Mika (P oW.4_). He is just a formal witness who described the procedue he adoptl:!d in recording t • • • the'stutcm, ... mts of Pow·~·2 and P.W.3 which th'ey made to him. P·o·w.4 denied to have threatened oWo3 in aking his statement to him' cl$ .h8 alleged in °his '·testimony in this case. P .. W.4 said thut l1c recorded the statements f P.W.2 and P.,Wo3 by way of asking them questions wh:i.ch they nswered freely and -voluntarily. At the ,0ncl of their s'tatemehts he read over to them those statera::nts. and .they found them ·to be correct and· thereby he invitGd '.them'· t countersign their statements Which they did. . - l ·2.m ui;o· ·satisfied that ~ .W.4 adopted the correct legal procedt.lre in recording-'the stateents of .W.2 and P,W,3 and those s tb.-cements Were voluntariiy made. P .Wo4 is related to 'rieither .th8 decaSed nor· the 'accus'd. He is a Mineru by tribe, whil0 thu deceased and the accused are of Chagga tribe. There is· no incacatf~~- th-at P .W,4 could· have acted with intri§ue in recor,:1ing the s\atements of P.W.2 ac(P.W.3 or of ariy witness at all in .this case. I also obse\1ed P.W.4'S demeanour. He appears to be a very honest person who has voluntarily retired from' the police Force. . : ? . ! ' . -Then -there· i·s the defence· 0f the accused who testified on uath. He had no witness to call on his defence •. He said that hG was also at Mnaz'i Mmoja bar at the material time. That · bar belongs to him. There is an hotel or restaurant in that bar which is run by l? oWo3. Accused admittede•o•••/8

8 Accused u1mi tted that he was seated with· the deceased, I? .w.2, ~ .w.;. n Joep~ MJt~~· ·'th~~;,•:::taigThc,::g~!ig~::~ haJ :.:.:::.::.:.:-cJ ·: . ...:. ··.hr:- r'.-.·":;c':sc ,,· ... :-:, ~ ,~ ·1 .·f,.c ·.1'; t;ic :-:'isur'.:•.:;c. th1:;t also cidmitted that they discussed the complaint which P.W.3 had ie~~~a(t~.: t~! Jei; ,;-.:!that day abou:~ the. dis.turbance that f the chilc1ran of -the deceased had committed in_ accused 1 s bar and r in the hot'?l run by P .W.3 in accused's bar house. Accused said- tht h tulc.l the deceased .that the said complaint was no longer an issue for discussion because it had been settled amicably betwen PW. 3 who was ,his elder and the jeceased o However, the accusi.x1 warned the deceased that he would report his .. .. . ., chilJren to police· f0r prosecution if they repeateg maing distru:Jcincc in his bar. Then, accused said, t):le deceased orderc<l rnlx:yo from Marna, Tatu the bar maid,. and also the ( accused ordered mbege from Mama -'.3_tu at that same time. Let me ·stop Q bit and ponder-about this ordering of mbege by the deceasd ;::mcl uccused simultaneously from Mama Tatu. This piece of ,1vidunc;e tallies with what is contained in P oWo2 1 s · and P.W.3 1 s stc::it_ements which they have disowned, at leas that piece of evidence. Why d·oes this piece of vidence coFrespondent with n.s:Lrnilnr ev:idence in the statements of P.W.2 and P.W.31 Is this n coincidence? No. It is a coherenc.e. An unbroke chain. A consist~nce on the same matter which negatives error or coincidence. That is how I see and understand it, and much more as I wiil.l have occasion to discuss later in my j ud gm.en -t:. The, L\cc:isod• ·continued. He said that when M.ama T_atu brought the mbcg<.:::, she brought it in two cups.. As she was about to place those cups of mbege at the table where this group of people sat, then one of those cups slipped from her hands and the rnbcge spilt off. At this juncture, accused said,· things .. happe:nec1 cis we read in the faJ'!lous novel 11 Dunia Uwanja ;"'a. fu)o". Thi:.!t is, Mama _Tatu -poutect mbege from .the cup that Slipped .from her hands. This .caused even the second cup to slip from her hands. Mbege splashed on this group of people who in turn ~)ruptly rose to.escape from the splashing rnbege and as they did so they poured the mbege that was already on the table. So, it was.ooooo•/9 ) «I

, .. 9 S0, it y,a~ a process o'f mb~9e P.lshing as it were. The aci::ysccl ''said that the deceased had the most rnbege splashed or

• .. ·" spit t en his had and most pai;-t. 0f his body. This piece of evidence also tallies with what P oW.2 and P oW3 said in thei.t statc:;rnL:nts t::, police, and ulso it tallies with what roW.l has tes tifi(;•:l. Accuscc1saiJ · they rose up .in order to clean. up thms,elves :: .. =.:·:.•: . .... . ·,, from the rnbeyo splas. Also at,_ that v.ery, time it was dri_:zzling. s0, they moved their seat to ano_ther l,oc;ation .right in the har, but ri0ht at the rea~- -iJ·</f the bar. Accused admitted there ,_.. was 1'-'ctricity in his bar both in the rooms an.j c1;t the. rear enclosure (uwani) where they were seatedo The lights were. _on • . .. Immecli0.b.:ly aft;;r this potnbe splashing incident then some . -· . ··-, . . . . people s·c;,1rts:d thr0wing stones, bottles anJ mang0es· in the bcir. • . • • • ':'! . It turn0;,l out that the aid stones and l)ottles were dir_e,cted to , .. the nc;cu,ccl. Accused said he had to run an_d escape from _being hit . -.<. .. . #,, • ,· with ston2s. He went and lock,ed himself in a store iri that bar. Accust.::J so.iJ even his employee_s in the bar had stones thrown a.t them 2-nd they had . to lock th ems elves in ohe room. Accused said the:;re .wds such a great commotion tht the people Who·were i ~ .•• 'drinkins moge in his bar ran_ away and dispersed. Later, aq::used- said he s_neaked out of the bar :and ran from . the br-.:-1s.ing an exra ordinary: passage, as he put .ito ___ ._He went t,/h,is·:·:residence far _from the· _bar but rig~t .in Majengo areao He picke4,hi~ cr and drove back to hia bar at Mnazi,Mrnoja. Just as h•::! came there. a group of about. ten (10) youths started . .. . . •, . throwing stones at him agc>ino Accused said he identified three children of th.e deceased who were among the group of ten ( 10) 'yo_uths tho.t wre tht.'_oJNin.g· stones at himo , I really wanted to know why the childrn of the: deceased and other youths would have c1·i:tc.1ck0d the accused immediately after this incident of mb(;ge splashing at which he was present. Why was no other person 0ttacki2d? Accused vainly attempted ,,.,_ explanation that it is b!cause the children of the deceased were angry with accused who had reported them to their father, the deceased, for making Jisturbance.in his bar. So, those ■ o• ■■■ o ■ /10

.. 10 So, thos,· children wanted to punish. the accused in revenge. This is incredible? I just -'t believe that explanation • .. It is only n gullible person thnt could believe such a story. Why should those children wait and attack.;..the accused after the pornbc splash? Why did they not do so ea·rlier? And why did they 2.im at the accused only, riot at P oWo3 who is establishd to havG rforrod the complaint to the.deceased about the decenscc1 1 s children 1 ·s disturbant which ·they are alleged to hvc meld,:: in accused's bar 'bn that day ·during the day'? The accused had becm absent when the said dis turbancas made and:: when PW.3 complained to the deceas2do PoWa3 would have b_een the tnrgc:-1:: of the said youths:· not the acc.used. Accused continued with his testimony. He said that. when the youths threw stones at•·h-i:m and at his car, he turned and · drovC;: bi:tck· to his residence and slept till the next morning on 24/12/86. lie decided tb g-o to the· poli'ce tation at Majengo. He wurit' ·l:h2rel 'at :10.00 a.m.- He found the ·:off.icer Incharge.: _c,f Maj<;:11'go -pol·ic "stati·on, one Malamso. Accus·ed said he reported tho dis -curbtmce and throwing of: stones in· hi-s bar by the children .of th deceased.·· Rccused· said that he asked the police not. to fegis 'i::er his complaint but merely hear his report, for f.uture acticn b-::cntise he did not .want. to prosecute the c}).ildren of the dece.:i.s,d wh·o· was his neighbour.,· Accused aid the police at Majcn00 ngre0d to act as accusd asked them to do.o Accused ask;;;:d rJi;. Nalamso to· -accompany .. him to his Mnazi Mmoja bar simply to observe: the dist'L!,rbance that had been created by th·ch:i.ldron of .. the deceasedo ,The .said Police Officer Incharge accortll)a,ni'-'<.l the accus.ed to the bar. and they started observin9. As the:y \•Terc, still·.ob.serving a police_ sergeant from Majengo police stntion arri·ved and informed. Mr. Malamso that a report . . . . ,., had been lodged at police station Majengo that the accused t1ad assault~J one Francis- Malisa so the accused was wanted at police a station. Er .. Mabrnso then told the accused to go with the police S8rgennt to Jv'Jajen.go police st_ati<?n, leaving Mro Malamso still obs crving at ace used 's bar. on this piece of evidence o I haye to stop apd ponder .. ) ' '· i

11 I get a~ irtkling that the p6lice at Majengo were dancing to ·accused,-- ·tunt=o 'They a·cted to his directions o · .)•Jhy'? Perhaps 1· this expl"ains the. manner in which this case was poorly investi<Jted .1.:lpcn by suppressing most of vital evidence-. I am not surprised because this case. :l-,_s clearly one of a contest between the rich ( accsed )' an:d the poor ( the deceased).· I have . . . closely" f ollowd -these· pr6"ceedings, all: the vta'l. ti tbi·ts i the semblu.nc:<::: of fae,:ts as seen from the record ··and intririsicaily . . . . . . perceived during thes i6ceedings t the ·trial, I cannot be ........ wrong- .th.it justice has b'een de,lil,:erately stiffled right from the inception of thi_s case, r,am· the best judge. of _facts perceived. in this cuse l;>y the use ·.of, the 9rdinary human .senses which I .had the exclusive, datag''and. ;opportunity· to apply. · The' ncc.us.ed continued-. 'l,'hat when he was escorted to Majengo · .... ' .police. s ;culton he was explained that the -decea_sed had complaned theri,:? ngains,t him that he (accused) beat· the. d~ceased on the . ~ ; ... previous night 13t his Mnaz;i. Mmoja bar ·and injured himo As ,this was :bGing said the deceased came at the police station and found the accused. Accused said that· the deceased asked the · olice to release. the accused bcause h_e did not want to prosecute •him. :. Accused said he saw the deceased injured on his head near his l,:!ft· ear as he was bandaged thereono Accused said that the P?lice at Majengo agreed and released him. They did not tell him to come back to the police station to repqrt. _so, the accused s.:1id he left the police.station apd·went with the deceased and they st"arted drinking mbege ;together at accused •s second bar·i.,.hich is known as Makanda bar,.which is also in Maj8n·;o c1rea. Accused said. the deceased then told him, that he injur8J himself ·accidentally· when he knocked himself .at the door of Hno.zi Mmoja bar- on 23/12/86 ·as he was going out of that bnr when the youths started throwing stones in that bar. Then accused and the deceasec). parted. The accus·ect left for Milimu.ni tc, his home village for Christmas where, however, he was foll(;wed by the fl-Ol-ice from Majengo police station who arrested him on 27/12/8 in connection with this offence • . Accused alleges •• o ••• /12

,K• -:-.:•: ·, .. ~ Accused alleges ·that the deceased was out and about on 24/12/06 and that they drank pombe. t0gether. · What a lie! . From the doctor's report on PFo3· and. P.·M.R .. it j.s incredible that the ckccusc.1 c.ould have been able. to drink J2ombe with such intensive injury.; Ju.S;o accus·ed alleges· that 'the ·deceased· injtind- himself on the. he~ when .he b.umped his head on the door at . accusg:d 1 -s b,.rr'. This evidence is. as. well incredible judging it in the light of that credible evidence.narrated by P.W.l and also from t)"le desc;ription of injury in the PF .. -3 and PoM.-R; ;I have· carefully observed the accus,ad testifying before me.; _With alt my experience on the bench for twenty two ( 22) years, -.I . am qt:i:Cfo satisfied that the accused cotnpletely lied to this : I.:. court .::.s regards how the deceased g.ot injured. Accused's demanour. did not impress me as .truthful • . . The accused denied that he had any grudges with the deceased nor with l?.,W.,1. The accused gave· a hopeless .explanation why P.Wl would seek t6 falsely implicate him in this charge. Accused ) said this was .be.cause P .W .. _l -wanted· to serve her y9un9 brothers who crcnt0d disturbance in his bar from being prosecutdd I just clon I t get the sense and relevance of. this explanation- •. : The police could not act on PoW.1 1 s statement without investigating on- the complaint which the accused had reported to the poli_c.: wout th0 children of the deceased that they created disturbance in his bar • . -.I clo·not'believe that PoW .• l is,so wi_<::ked that she would have ' : . . fal,sely implic.ated. the accuse(\ with this serious charge simply to s8rvc her brothers from proecuti,on for .qoing disturbance in· the bar of i:lccused o Unless there- was an alleged or established·grudg~ between the accused __ and PoWol then it is not just for a •court of law to assume or suspect that P .W.l did what .. the accused alleges o :. I ·summed -up this case to the three assessors in this cas'.e. ·r did so meticu1ously and for qUite sometime as e1idenc;~c1 from- my summing ·notes. I exp-la'ined to the assessors the ·burden of· proof and! th·e s tanda:rd of proof thereof. I explainedo•••ooo•/13

l 13 I explained the ingredients of the offence of manslaughter. I . ' reminc:,~cl ·them that the decision of this case depends he.avily on crec1ibili ty of witnesses and their evidence. I informed them that thG evidence of P.Wo2 and PoW.3 who were treated as- hos tile, \1itness should not be· relied upon in convicting the accused. I c1lso informed the assessors tha1: the evidene3 of P.W.l who is related to the deceased should be treated with

• . ·great_ c.:1ution and cir<;:umspectiono I also informed the assessors of th,~ clan0ers of cc,nvicting on the uncorroborated evidence of PoW.l who is a single· witness and with, some interest in the case, hLi'vJcver, n0t an interest to serve us she (PoW.1) is not an accomplice nor u persori who stands to be prosecuted if she failed to give a satisfactory explanationo I informed the assessors that in any case corroboration in this case is requir,.,c1 just as r1 matter of practice not of law. If they believ12c1 in the evidence of P oWol and that th_ey, did not entertain any '-oubts that the accused cc,mmi tted' this offence, then they could just find the accused guilty of the offence with out any corroborc.tion to the evirjence of PoWal. 'l'h,,:; assessors ull of them concurred that the· prosec-μtion evi1.lcnc<:! hus failed to establish the charge on the accused bey011.d r0ascnable doubt and for that reason th-= acc;;,used was not guil·i:y .. ·:_ Th2y advised me to acquit the accused. The assessors capi tal:i_zt:;d on· the fallowing matters in their c0ncurrent opinion. That i?VJ.1 said -she was seated with one Pius Asenga at the bar when this incident happened. Why was Pius Asenga nqt called to b::::s-i:::i.fy in this case, Also they queried why no sketch plan of the sc2n was drawn and produced in this case. Also they querid why the police officer wJ:lo. investigated this ._<:::ase : '.. . did not -t:cistify to say or conti·rm that he visited the scene of crime n:f-i:cr this incident occurred. Also tney queried why i?.W.l who Su.id. that ·she was also butted by t;he. accused was not injucd and did not go to police to complain and be issued with a PF.3 so thut she wuuld have gone to the hospital for tre.:1tmcmc and she should have produced that PF.3 in these procG12din9s. Lastly, the ••••••• /14

i .. :'· '_ - rt f_. ~.---_ - I : -, . ' ·•,;r•, 11'': fl('-.· JJ.,, ~- ' ,,,.':' : ;_ ..

, ! , #-~:: ~,. ~-- - it,,t, ,, '!·· I .• : • ~ 14 ' Lastly, the assessors said they did not find the evidence of· a

• single witness (f? oW.al) to be strong .enough to convict the accused on it with this offence • I have s·eriously considered the evidence of both sides Which I have endeavoure9 to disc.uss and evaluate above. I liave a'iso seriously considered the concurrent opinions,. of the three wise ass-2ssors. The concurrent opinion of three assessors cannot · be li0htly thrown over b_oard. They are the majorityo However, while I arn duty bound to co_nsider seriously and with great respcd:: ·che concurrent opinions of the three assessors in this case, yc~t I am also quite conscious of the cardinal duty of the courts of doing justice and that. justice should also be seen to be done. Justice must prevail at any cost.even if the heavens fall. It is not the question of !'low many people say what is the decision of a case, but rather what is the just decision in -thE/ case. I have di;fferred with the concurrent opinion of the assossors in this case purely on the principle of natural justice that jusb.ce must not only be done but must also be seen to be done. Indee.d, if I side_d with the assessors and acquitted
• the accus1:.:d in this case, ppimafacie justice would have been dorte. But.alas! If_I did so people would leave this court shaking their heads vigourously in utter disbelief, .and they may not hav12 ccnfidenc_e in 9ur courts any more. They would _ believe that who-ever has the mo,ney has justice under any circurns tances e The inte.rgri ty and confidence of our courts has got to be safe guarded and preservedo Hr. haruma, learned defence counsel, submitted in his: closing speech_ that P oWol is a single witness on the prosecution whc~sc QVidence is soley depended upon in convicting the accused . ' in thi.s case. l"!ro Maruma submitted that PoWol is a person with inter(,st to serve in this case·because ,$he is the daughter. of thu cluceased. PoWol's testimony required corroboration as a matter of practice. Mro Marum.a cited the decisions of this, court in the fellowing cases: BARTHOLOMEO DANIEL .V_o Ro .(1969) HoC .. D. No. 300. .... ....... ... ...... .. .. . _ _,,. ···--:--·~~ In that case.ooooo•/15 1 I i ', I L

. " ·--- ,...-- 15 ln thc1·i:: c$,se the celebrated Chief Justice ( as he then was) Mr. Georges interpreted the meaning .of the te.rm "interest of ones own to serve." This term w~s first applied in the Englifh case in R. v. Piate.r (19·6r.,) 4.4 Cr. Re. P.83. These words are applied to an accused ·person: or. a c.;:-on witness who has a .}r,o-l:.iv_ for not speaking th~ truth., hc;1.t. is, unless such person gives an accep.table 'exp1an:atio'n· .in ..relat;i.on to the. of~~nce charged he or --he c:an ·be h·eld ·criminally li,aple. for tha~- offnce. so, from the abv~· xplariatioh or interprtation a_ person with ari j_nterest of his own tlserve in a' case i,s one who can .';.;. prim<l faqt be imputed. to be an ac.complice!· A wtn'9ss is '·not a person wth an interest of his own to se.-ve mere_l~ because he } , happeNI to.·be - .te1ated. to the comp1•inant OZ ~ the acx:usted. ' . . ; . . . · -p,erson. If the law of· evidence so· provided,. then proof of offences would .. gre·atly be hampered and rendered incapable_. cjf~~. f'"/ . seY;ral incidences. I· _the ref ore, with respect, do not agree· with Mr:•, Maruma that P.w.1 is a'·person with an interest of her own ·to s2rve in this case simply because she happes .to ·be the dμghter of the deceased. I only agr~·e witl: Mr. Maruma that P .W.~ 1 s evidence· requires ·corroboration· as· a matte·.t 'of· ..•. _·. praccc, the same· hedng 'the e•hctnce of· a ·sngie eye ·witness on .. the prosecution. Mr.t! Maruma also cited the case of KULE s/o 'KIMWAt- 1 A v. R.- 1972 H.C .. p. No. 157 which ·deals with two elements, one of a person with .....,__... .... w, ........ ,-••.Ja ........ - an interest of his own to serve in· the matter ·-and that of evidence of a s in9lc witness. With respect, the circumstances relating to the crown witnes·s ·in ·point in Kule's case (supra) are '• d,i;fferent from FoW.1 because P.W.l is not a witness with an -._nterwst of her cwn to serve in this case.· A$ I have already discussd abov, P.Wl is not alleged 9r __ prov·ec1 to have had any rudge with th accused. so, P .w..1. woul.d unlikely have. any interest in ::falsely implicating this seri~us charge on ''the accused. · P .W.l 's evidence. is quite ~r;;;:dible •. She was present at the s.cene of crime at the rnateri2l time. She saw and properly idenified the accused . as he. butted her father at close range and in bright electric ligl1t. No questio~ or••••• ■ /16 ',,. j: :i; ) .;.,.· , -! •-i,;. .:1 $; :.il . ;.1 i:~ -,·'-i ?i ··;t .. ; .•'t ',1 ,;,J, !"' • I I,• r -;. • .t1 I t?'1 .. ' ,, •I

j .,' j,, . '' t(, i .,I ' ·' ··- . '. 16 ;._ No qu:c:s t.ic.ih: or 1 fs-i·a1cri· id~~t-; ty arises. Moreover, there is a lot of 6rroboration to P .W.l 's evidence in this case.· First there is tn0 report by the deceased which he made to the police at Maj engo to_ the effect that he was assaulted by the accused. That report is not disputed and accused supported it in his defence. There are also circumstances, that is .circumstantial evidene, as has al;eidy ben discussed above, ·Which corroborates P.W.l's evidet;1ce. That-the accused was attaGkcd by th 1 e deceased '.s sons on; ethe day in question immediately aftt;;r,:th'-' deceased had mbege poured on him. To me this is when accused beat the deceased and fell him down. -The children of the J-JCCuSCd ,who; wer:e many. came to the scene and after learning . . ·.' t.; . • i th2t it 'Jas the accused who assaultd ·. their father turned on the accuset'! anc1 attacked him.with stones and bottleso Other circum·tm1ces ae that The cl8ce2sGd was at accused's bar seat1 with accused drink~ng tog, .. d::her cit the material time. They were drinking :mbege.

• ,::,.'.l'hc •cl8cew.sed was actually injured on the material day and time and was treated at Maenzi hospital as supported by ~ PF.3 ·(Exh ,2)i . - Accused WuS arrested in response to the deceased 's complaint. :· He wns arrested on 24/12/SG and was released on bail L<1ter accused. who is believed to nave absconded was traced from his .home village and wqs re-arrested on 27 /12/SF, and . . was locked· up before the death of the deceased who died on 29/12/Si:;., The1cc ··was a complaint made on that day that the children of the ·deceased had cqmmitte1 some disturbance in the bar of th::,; ·accused ( a_t the scene of crime) and that a baraza was conv2n0:d to discuss the complaint. The discussions about tho:t complaint continued up to the time of this incident .. Accu.s0u c1ppears to have been angered by the said disturbance which ·was committed i his bar by the deceased •s children in his c:JJsence. When accused came tu his bar 'and was inf0rmed by his business partner (PoWo3) about the alleged disturbuncc he picked word with. the deceased and summoned him for questioning which culminated in the fight whereby uccusecl butted the deceased and injured him seriously on the he:ad., These •••••••••/l7 / i , ;

t:.;,;.· X' ·, . : .. ~ . tt: J ,. t,

.~ ;, t."f ;;· ' l· - - :-;, . L(:/ ,. T; ~~·-' ___ -: .. -. , ··. f_ ,._ 17 These circumstances coupled with the evidence of P.W.l and also with some relevant facts in the s_tatements of I? .w. 2 and P.W.3 which they made to police afford a coherent chain or n12xus irresis.tibly pointing .to the accused's guilt in this \ case. I have seriously warned myself of the dangers of acting on Je evidence c,f a single wi_tness which, however, as far as tam concerned the same is corroborated •. I am satisfied that the evidence of I? .w.1 is credible and is sufficiently corrobo:cQt8d · as I have endeavoured to show. I am al_so aware of :th<:: provisiuns of section_ 143 of- the Evi_dence Act-, r:.,7 which provides: "Subject to th_e provi:sions of ?ny. other: written law, no particular number of witnesse hall in any case be required for the proof of any fact." Ind2cd, I admit that a lot of material eyidence was omitted or otherwise suppressed either inadvertently or deliborately:in order to defeat justice. This was possible ·"'\ and. likely because the accused had intimated right before b_utting -the deceased that he could use money to defeat justice even if he killed the deceased.. This is what appears to have . been the case in this case •... !!'he accused has been out on bail since July· 1987. He is ostensibly a rich man owning two bars· . ' . ., . . •, in MajenrJo• He owns Makanda bar and Mnazi Mmoja bar. All the material witnesses that were to testify for the prosecution in this case ure ·customers .. of the acC"'us,=,rl r1+: his bars. ·I am not surprised that PoW,,2 and P.W.3 and the rest·turned hostile in· this cuse. As I said in the foregoing paragraphs this case is one between a poor man (deC-""'ed) and a rich or influcnti.::i.l person ( the_ accused),, The deceased was just a poor muson or builder from.Old Moshi who happened to be employed by acchsed on several occasions to.repair and build acused's houses. What influence could the deceased have t his neighbours in .the f ac of the financially' powerful accused who also resids in the same area. · But this is the burni·ng question that all of us are boun-:1 to answer: ShriuJr1 iuHro . ~ .. /18 ·;- _. ·., .. ,., ,'. ... ··) ·f: : 1 './1;:~ ..,, (,•, ' ·, ;~ 11 Ji "<t ·J,'WIJI . ,_' '·t. •" '''#! <)j . •--!,, :l:, ·. !.~ . .,. ·,.;. . -~ --~ •. 1.w . l,\i .:.-!- . . \I : A ·v4· ·-.~ .m ;~ ·t ~'i;.

,/ ?'; ,, w :1 -·I ·) .j' '1 ;~ J ~ • . ·r :~ •. -~- ,~r; . -~~ ,.( hi ·);t:' ... '., ,· .. ~ ff!·.J

18 .... Should justice be sacriir , . at the alter of affluence and finnncial strength? Where will the :':inanci -1_1y .. :-"'eak get their : justice? I think I have bel.abcured much to give the true picture in this cc1s6, · o.nd I feel I shculd step here lest I. be branded a Compnssi"6n"ist in the -rie of justice;, It is fr the fbregoing reasons that I have differed with the concurrent opihions of the three assesso-s in this case. I am quit satisfied that the prosecuticn h,s established the charge oi manslaugh"ter. on the accused bey0nd reasc,nable doubt,. The accus0d butted the deceased on the head three times with great fore~~ He had no justification in doing so. He therefore did so· riiwttii1y. The deceased sustained severe injury as a result: of ·th""· as·sault which amounted to grievous hari:n. The deceas~J died as a result of that ihjury. The accused therefore caus,J thri Jenth of the_.deceased unlawfully., The Rccus_ed is lucky th6t he was· charged with_ a lesser offence of manslaughter, 1: .... otherwis\i h0 cuuld have been convicted of murder. In the final analysis, ·1 convict the accused with the offence of mans laughter 12/11./90 JUDGE 11/11/90" Corum: M. Do Nchalla, J. with same assessors.· For R.::pli'Jl:i..c ;,,; Mr. Mwiduda ..:. S/A For hccused - Mr. Sha.yo Junior holdihg brief of.. Mr ■ Maruma. Mr. Mtei - Court Clarkb Mr. Mwi<.lunda .... State Attorney: The accused is a first offender. --......-.,, .. _ca,....---......7 .. •----- ·- ' Mr. Shu_Yo.) u1:_0,r in ,mi:tigati'2_rl. _for accuse Th0 accused iS a first offender. The ac.;cu.c:<=>d is married with four s.mall children who depend on himo J He.has young broth:~rs :Ln private Secondaiiy Schools and he is ,paying school fees fur them. The parents of the-accused are very old; they depend totully on the accused for their livelihood- The offence.o ■■ o ■ •/19

6ffenc<2· in this case occurred by bad luck because there was no prior grudge between the deceased and the accused. Moreover, it was because of alcohol which the accused and the d_eceascc1 had been drinking. that the quarrel ensued between and .. the deeased. The accused repents for what the da}'.in question which resu_lted in the death for these reasons we pray for a lenient s ·ntence on the accused •. : cutus ·: NIL ,.,... ____ ~~ SEN,TENCE The accused has been convicted with the offence of il.titght.t.c c/s 195 of the Penal Code, Cap. 16. He is a st off,mder and much has been said in mitigation by ·the I have seriously considered all those factors accuse90 Alth0ugh it is established that '. ·, ' there was. ,no prior• grudge 9etween the accused and the deceased and thcit this offence happened at a pombe shop (bar) where the accuse, . .l' cu1.J t,he deceased:' had been drinking mbege together, yet the force that the accused applied in butting the deceased and him . in letting £drop heav_lf on the cemented floor aggravates this offence. Also the utterances of the.accused immediately before he attucked the deceased clearly show that accused valued his money more than the life of the deceased. Accused uttered these words '\J<:1~.u ha1.ya hata nikipiga nikaua nitalipa fedha". These words show uccusecl's premeditation in committing this offence. Under the circumstances, deterrent and exemplary sentences must be meted 0ut to offenders of accused's calibre who hold up their weal th in dcfiQncc of the law. In the circumstances I sentence accused to seven ( 7) years imprisonment. (Mo JUDGE 12/11/90 u1A •. •·• I Court: Judgrnent ••• o •• /29

jt :· .. •. '• I :.~\ ... ·· . . ·/·_," ·.tnC presence of the parties, thi• the 12th daY of Nc,veinber, 199 0 •. • R,igh t of appeal e>eP 1ained • · Mi/J½ (M• Do _Nchalia) JUDGE ;;..-- 12/11/90 (t-'io Do· Ncnalla) JUDGE ;.......- 12/11/90' / ~ ' ~u"''6·(: t>+' .,,.. il\·•:&< :'