Republic vs Philimon Abdallah Chotunganga (Criminal Sessions Case No. 33 of 1989) [1990] TZHC 266 (29 October 1990)

T I!1Li • ATIRITG. . . OUGINe.L J72ISDICTIQN . . . (itheya. Hegis try) . CBIE1LtL 33Ic41 Ci3. NO. 33. OF 1989 TEJtThLIC ?HI M i, QN 41TLB CHOG fl9Gt 4MIIDR - Contrair to Section 196 of the Pei Code. UDGN . . .10 An Olan called Jas$njle, iiaki1ika )t his honie village_of Rungemba Ifunda, Iriiiga mtrict to loolt his stolen 34 head of ca.ttla, On the 14t13. day of Feb'uy, 1986 he reaøhed a village olled Igula, Xaniaiii area, in th# aaa District of Iringa., . He went and asked for shelter in the hoifl of one Donata. •.. . . . . •iwaamusu (P.Iv). He -told his hostas his problem and Shod her a letter he, was Ldven by his vi1la authorities as a t peri.t to go around other villages to %)k for his lost cattle. On 15/2/86 early in the morning 12j hostess gave him a . 2Q child to escort him to the nearby villlgos where cattla were _. • kept to look for his catle That ohi is Pf.III, Isack Nya.to.. The oidman went around with Pf.III f o he whole morning but '. • did not got the cattlo. In to aftnoon they dispaired and • .•. decided to return home. But orx the jy at about . • . • • accused person Phulimon Lbdallah Chqiganga. Lngrily the accused.. . asked P1.III thy he had taken the ol4nn to the accuSed's cattle. : The accused was one of the people soctod to have stolen ... • ,' a1cjlika s cattle. Uhon PIi.III denjj to have taken the aldan •. .. . I to cicusod ts cattlo acousod called IV a liar. • . 30 Th3 accused was holding a sho'ban. The gun is alleged to. • have boon borrowed from PJ..V the prous day. 4ocusod told PW.V • <. 1 ho was gOing to shoot baboons with .,c gun, • • • . The oldman pr000edod with the fari whulo accuSed was still . • • arguirg with P.III. L.ccusod thratnod that ho WOuld kiji P'i.IIX with the olditan. P(.III tlioght -t4t the accused was kidding. . . But acousod told ?..Ifl to gait foim -thoro whilo accused wont to kill th3 oldman first and than would come babk and kill • • • • p • fl too Than to his surp.riao .III saw tho accused person. • • / follow the oldman find a hoot him to 4ath. PJ.III th3n knew • 40 • accused was serious. Pi.III ran a.y through -the bush to thei •

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-.25- Ithou> nd - t1o&.him. that if ho told anybody whatappenod accused would kill P.III liko he kjlld the oldman. ocusod thon froquontod PJ,Ifl's houo and ropoc tad those oats- toi-vozy otr day in the presence of PJ.IIi's mother, PJ.IV and 5istor PW. 1 J1t. PJ.III wae so scrod that he dooided to loavo the villago and go to live with an aunt of his rt £pwapwa. The dec ed's Zaily members got worried !thy the deceased vne not returning homo. On 5/5/86 the decoasod's son reported his father's disappearance to the police, toam of policemen led by 10 PJ.1, No. B.7843 Station Sergeant 2ashid wont to the accused's villaGo to investigato the case. There tiaoy yore tipped by about the villagersthat had happened. villager itho had gone to look, for honey in the forest saw a human skull, bones and hair scattered all over the place. PJ.VI , Jane Pyato told the polico she had hoard a gun shot from the placo Vaoro the bones had boon found. The policemen wont with the villagers to the scone and collected

• the bones. They wore broken into pieces • 'ibose bpnos voro tondorod in court ca x1iibit P3. They wO?C sent to the Oovornmei± Chemist for oxa.mina - tion and tho chemists report is that thoy 9 0 1 are human bones. This report, - tondorod in Court ap Jxhibit P4 1 dId not however state whose bones they aro or )Jow old they are. The gun alleged to have boon used to uhoot the deceased with was soizod from its Isidory Lwinai.u, with throo rounds of a.mmi.ition and one oartridgó. It is alleged that when theso police investigations str -tod the accused poreon smelt a rat and from the village and went to Ktibwa. i.zssagos were spread Al over the country that the accused was wanted. In Juno 1986 lie was arrostod at itibwa. On 2016186 the accused person, handicufci wa handed over to 30 one No. (.9698 Dotectivo Constable Bar-clomow l.uahi to be brout to Iringa. Buses from tibwa to Iringa 1avo ktibwa. vory ocrly in the morning. ihile waiting for the bus the accused person outwitted the lousy policeman and manao to escape, ocusod was arres-tod again at his home village o - i 17/1/88. The yough Isack Nyato iiao had gono to kpwapwa. for his safety was called, Ho came and gave the polia(-lU la s -ta -tomont which ho has repeated in court. The accu.ed waq tionharo&-wi -thJi.1 Contrary to Section 196 of the Penal Cede. lie pleaded Not Guilty -to -the charge and Gavo a sworn state- 40 ment in his dofeioe o called no tss0 Eis dofonbo is that 0

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• 4jç. . donis - to O )o'oWd P1.V. shot jj,un. On tho day and timo the offonco vas coniittod the ocuod says ho was not ct the 8cino. o says - " - kQ had boon at a sitting oa11d by ?.f.IV Donata with two tonUloaior 8 r so that they, bo reconciled with PJ.IV as -they yorj not living in good torras, lie alloo3 that the sittin was adjouxned because P..IV's oiiildron and husband wore rbsont, ccuaod donis to iaVe escaped froc the cus -tody of PJ.II, DeteCtive Constable Ba.r -tholoiow. 1e allegos tho policerian is aban.oith was the one who _in. hen accused was in the bus aridLas 1 od to pay his fare ho told the conductor ho was in polico ostody they did not find i'J.II in the bus. So the conductor dropped the accused at the ju.notion o±' t.io orogoro/Dodoa oad. Then he looked for asal labour which ho did up to 12/12/87 when ho roturnod to his village. No was arrested on 17/1/38. Thô ?ts axo ly.n against hiu, the accused says for various grios, P1s III, IV and VI are lying boouso ho reported theti to John Nyato when they e.hangod his calf and reported that it had boon stolo. That. Tcn Nyato is PT.IV's husband and PJs III and IVs father. PW.V coousod says is lying boo .e-aac od -- 20 once hired his cattle drawn plough and lost it. The learned Counsel for the defence, 1.r 0 . £; konwa. subr.iittod N that the P1s should not be bliovod as thor failed to report the killing to the police, lso they have rugos aa-inst the 'N aootwod a Uo arguos that the dad body of Jasiriilo La1dli1cn was not found and there is no evidence th t thoso bonos tendered in cout are his roains4 kzkilika oould still be alive, ho argues, In reply i..r. Son,wa.ji, learned 3enio:' State .'ttorney subd -ttod that PaIII act ally saw accused killing - ho docesxi, There were 30--- hunen bones found at 'the scene of -the shoting and there was no inforrtion of s000ne Olso killed or di3appearod in that N village or the surrounding villages. The accusod throatod I'J411, IV and VT and that is why they fcrod to report. Ho suba.ts furthor 'that acc.iseds ecnpo fran 'the villago shows his guilt mind. The accusodts doi'noo of an alibi, Ire Sonwaji argues should not be coridorod as no notice was given as required by the law. .nd af-tor suaming up the case to ny gentlemen assessors they bot# are of the opinion that the aocDd person is guilty of 40 murder as charged. 10

• 27 131i -V8 *h.- joq Tyt<, PJ.III, Donata L aunusu PJ.IV and Jane Nyc -to, rj.vi are lying against the accused bocauso they have grudges against huia. PJ.VI, Jane admits that they are not living in good tcrm with the accuaed pi'aon, argux1 by the learned 3onior State attorney their grudge is minor compaod to the accusation for murder. I do not beliova that these Ps are lying against the accusod .porson. Had they wan -ted to lie becauso of -their alloged grudges against the accused teso Pits would not have kept quiot about the idiling of the olciman until the docoasod 's rol3tivos -to rortod his disappearance to the Police,, ocording to the tos -timony of the accused himself PJ.IV had asked their ton-'r toll-leader to reconcile her family with -the accused. I do boliove'that a woman with such a hoart wanting to be rcó-onoiled with her enemies would lie and i1ioato the one she wants to be reconciled with in a x.rdor case. The argument th -t thso ?18 are not croditorthy becauso of their failure to. roport the ziuxlor immediately has boon satisfactorily explained by the P1s. They foarod accusod who constantly t:treatnod to ill Vaow, if they roportod the kil1ir 20 tho police. Such fears cro not uncommon among villagers in this oouiitry and sometimes oven witnessos fear to t35tify in court if they are threatoned by accused persons or their rola -tivos. I therefore find no reason to disb.jovo these Ps. The eatie applies to P.V, This witness - told this court ho lent tho acusod his gun becaüso they are friends and accused - more than once cultivated P.V's shamba without any ohargos..But_ accused alleges ?W.V. is lying against " 'AM bocauso accused once lost PU,Vts hoo or cattle drawn plough4 But I do not believe the acousods s -tury. P.V can not be o unroasonablo and sttçid 30 and instead of swing th.a aused t< oorponsatc him for the loss of his plough say ho lent his gun to accused a fact which incriminates PweV hirolf as ho knows that londing someone his gun is an offonce. ccuscd arg i uw too that He could not have N boon lent the gun by P1.V while lie had no rounds of ammunition, But rounds of ammunition are easier to come by -than a gun. If one can borrow a. gun it is easier to bog for rounds of ammunition. I therefore believe PJ,V's tostiony that ho lent his gun Jzhibit p.1 to the acousod person on 14th FobMIary ., 1986 cn accused returned it to him in th. n ~~ , ht of 15th 3¼bruary, 1986. 11

• 28 - 1 ausd PLxt the dofonoo of an alibi. tis has been -olaza llo rl~ d by the lonod Counol for the Ropübli. It is truo under Sootion 194 (4) (5) (6) of the Criminal Procodure Lot 1985 whore an accused porsori intends to rely upon an alibi in his clofonco ha oujvt to ivo to the Court and the prosecution a notice of such intention before tho hoarin of the case or furnish the prosecution with the particulars of the alibi bofoe the closing of the prosecution case. If the accused does not coirply with oi'thor of 'the above conditions. t L be court may in its discretion accord no woiht of any ldnd to the defence, io In this CaSQ the defence did not furnish tho court or the prosecution with such a notico. Nor cUd the defonao OVOI cross- oxamine PJ,IV Donaa on the alibi while the ausod person alloos it is she who called him toothor with their two . respective ten—lo U—Io.ados to bo..ro o1d at the timo. when the accused is a.11ood to Lavo commit -tad the offonco. None of the ton el1ieadors a.11eod to have boon, at the mootjn with the accused and PJ SIV was even called as a. witness. For thoso reasons plua tha a r1nin' proeution Qvideno that the 20 acousod person was at the scone of the crime when the crime was committed I accord no woit of any ld.nd of th d1cfeno< of an alibis on there is the issue of the acou.aod oscapinr from the custody of Pil,11 9 Jhilo ?J.II alleGes that the accused escaped him while they wore witinC for Vao bus veri early in the morning at itibwa accused says ho did not escape, ..e alloos it is P1.11 j.o was not found in the bus and accuad had to b4 dropped for fai1in' to pay the fare. There is a contradiction in t-l-,a ae'od.s S. story hero which ickos ma not boliove the cöcusod, First 110 '• :-30 says PJ,II was not found in the bus by th9 conductor, then ho says 'Pi.II was in -the bus near the door while accsed was near the driver, flow can ?I.II jus -t disc.pp.iar from the bus suddonJ.y and loavo the accusQd he had come all the way from Irina. to ibwa to colloct7 The auscl al1ees too to have boon told that ho was noodd at IrinGa Police Station for an offonco whj.ch ho will be told when they roach there. Had ho boon innocent as accused vlAimelia would, have o . . , mu to Irinda Police Station to ask what they had noedod him for instead of oin to the .11ao till lie wma arrested ator a year and a. half. I 40 therefore do beliovo Pi.II that aocuqQa escaped from 'him at stibwa..

400 —29- / hired a. 3un from ?j.V. Thii -t on 15/2/86 a.t abott 3.00 prn the

• • -( c-ccusod shot the docoa.sod with a Gun siniJi' to if not the sane as that he was lent by I'J.V. That accused on evora.l occassions throatonod P-1s III, IV and VI that if thcy rioni:ionod that ho had killed the ciocoasd ho would lddl ther..i like ho Cid the deceased 0 . I also find as proved that the deceased never re -turned to his hos toss P1.IV or to his home at Run;oDba and that is y his children oaz1y in iay, 1986 reported to 2olice., i nnd to that -the accsod escaped to -tibwa. when these invostiations 10 started and he wa-s arros -tod in Jun, 1986 and handed over-to Lfl He escaped frorn the custody of r1.ii and roturno - o his vi11aCc ore ho continued hidinG till 17/1/88 when ho was re—arrostoci and charod, The .cousod's act of shoo -tinr tho-d-ocoaed is un1awfu1 .- By the weapon he usoci, a shot un the accused had the nalioo aforethowjat to cause the death of the docossod. s I have pointed out earlier the loarned Co50i for tao accusod contends that there is no evidence that the docoaBod is dead as his body was not found* He could bo still a.livo 20 loarnod Counsel aruos, In R. v .dvadi Sy1rostor 9 (1967) 4.130 and R, ir, .ani Zophaiva Kimwori 1968) .C.D. n,5 9 it was hold by this court tha.t "The fact of death is provable by circuii -tancfa1 ovidonce not ih3tandinG tho fact that noihor the body or any trace 9EZZ' has been found rind accused has not confessod to
• the wxonrjoin," The facts in the Kinwori case cited bovo zorQ sjmi1zritioe. wit:a our present ca-so, In that casa accuod was charGed with 30 murdor. The illoGoc1 victim had been u.00untod for for the lazt three years. She was soon with the accused, her husband from ou she was sepora -tod, shortly boforo ho:? disappoaraio More 'as very stronG circuras -tancial evidence tat accused had murdorod. his wifo but the bod had novr boon feud and ho denied killinG ior. Locusod was convic-od of murdor ant sentenced to death by - hanGinG. S In our oso the doccasd was soon boinG shot at with a. shot £un by the acoi.od person - oordinG to ?J.III the deceased was short and he fell down. Then P'II ran aa-y to save his doar ME life. Then accused wont to P(.III and threatened PIIII \

• ••. ••"-.. - . 30 '.1 fltht aoou)d had killed tho docoasod PJ,Ifl would ho killed too like the decoasod. The cocuol trt 'L2JII several times in the prosonco of ?iLs IV and VI. Thoso throats wore a]o fimz-tion by th ccusod that the docoasod was doado ftor boinc shot and falliñ don the docoasod has never boon soon aai.n. Had ho miraculously not dIed from the un shot I final no reason why the deceased would not havo ono to his • hostesS to soek assistance to o to tie hospital or to o bock to his hoo in Ifurida for around fu.r years now. Istoad 10 huiin bones partly eaten by what is guossect to ho wild animals woro found at the scone of the s1iootin. Thoro is no evidence of somoono killed or disappeared in the villaro or noibbourinj viuloos.. Though the docoasod's body was not found and ho has not boon hoard of for over four years now tho circunstona.l evidence in this case lead to no other reasonable bothosis -than that the accused caused -the death of the docaaod. I thoroforo,1ik my Gentlemen assessors unanimously dic1 do find the accused person 'uilty of Lurdor and convict hira accordinZl,-, ,r# S • 20 (s.) L. B. Ichoe J1JDG 29/10/90 r. Sonwa: No previous convictions. .• 1con: 1 have nothinG to say. SBNTO NCS The accused person is son-toncod to dcath. He shall suff3r doath by haniinr. 30 jo B • iu0ho10 JUDGB 29/10/90

p —31- • QRDR f. ±*4.O3$ O- b oc1 to to Polico Vao will docico w.iothor iW,V sti].l (2) ThO bones to b roturnod to tIo d000asodlg i'ola -tivos if oy need taoi for burial. If +oy do not tIoy bo do - royod. L. B. cho JUDGE

• 29/10/90 urtg Ri6jht of appoal 1iod. to ±o acouod person, L. B. LeiLazo 3UDG1 29/1 0/9 0 • Court: saaors ar tank quatoc to La'ro. • • • 'N .T MUM L. 3. cho • 29th October, 1990 • 3JGi LI