l'N THE HIGH COURT OF TANZANIA AT MOSHI. ORIGINilL Jt.JRISDICTION (ARUSH.A REGISTRY) CRIMINAL SESSIONS CASE NO. 53 ·_OF 1989. MKWAWA, A-g. 2.:. .. .... ...,.· •f .... ·-.-~ ..... :':~ .J THE rt.8PUBLIC Versus

1. .ALF.A. s/o ALLY 2o' N.ALINDWA D/0 EEKIJ.sL J U D G ME N T: I The two accused persons, namel1 ALF:AN s/o .ALLY (hereinafter to be referred as 1st accused) and NALINDWA D/0 EZEKIEL (hereinafter to be refered 11is liind accused) are jointly charged .with the offence of mu.rier• • contrary to section _196 of the Penal Code. They have. all denied/the charge. The prosecution set out to. prove the· charge beyond all rea'so n·able doubt by adducing evidence .. · / .. Taking into cbnsideration the nature ot this case, nmely the evidence against the accused persons cosists mainly of the deceased's statement to the Folice and his own naratiNe· to two persons who arrived at the ;cene of crime in respmse to his alarm, ,.I have decided to break this case ino two pieces of primary,viencs. The first piece of evidence will consist the deceased's o,n na:i"at'iver;to the prosecut- ion's witnesses i-1ho,are all not eye - witnesses to the assault incident. This piece of evidence is in respect of four witne;sses. The last piece of evidence cnsists ainly of the statement the deceased made to the police. This st-atement was tendered in evidence .as Exhibit P 2. I should also mention that the facts in this case a:r.e· rl:lther sc..r.t1.t.;r and simple. It is in the evidence of PW 1 RAJf.BU SALIMU and PW 4 ABDALL4H RASHID! LIMO that on the fateful night, on or·about -11.30 p.m., they heard some one raisig an alarm. It is in the evidence of PW l·ad· PW 4 that upon heaing the alarm they rn towards where the alrm ~as coming from and thereupon they found the deceased ·standing outside thee._ house of the 2nd accused crying out for help. It is common grountl that although there are several homesteads neighbouring the house of the 2nd accused including that of PW 3 FADHIL MWITA, the •village ................... /2 ••••

2 == chairman; PW 4 and PW 1 were the only persons who arrived at the scene in response to the alarm raised by t.he deceased. Thereupon the deceased, wbo seis §~~ked meat and soup at the village pombe shop, t-0ld them that he had gone to the 2nd' accused to collect his money as the former (nd,ccused) had much earlier on, as a matter of fact before sun se,t, passed at the pombe shop and collected cooked meat and so_u·p eu$ she did not pay for it. It was in the evidence 'of PW l and P,\j 0 4 that the deceased 1 .,1.ho was bleeding .P,.,om a he1.t cut - wound went onlt.ell them that the 2nd accused ,-1ho re-fused to give him his money struck him on the head with'a hoe and disappeared. I was further stated by PW 1 and PW 4 that though they suggested tohe deceased that they should report the incident to the village chairman, the de•ceased turnE>d down the su1;gestion - and alleged that he would do that without their assistance. PW 1 and PW 4 told this court as that on that fateful evening they wre armed with a torch. It in further in their testimony that with the .assistance of the t orc;:h they w·ere able to see a lock hangin from a closed door suggesting that there· was no . person i.nside. It was further in the evidence of PW 4 that when he came out of his house in response to the alarm raised by the deceased -· the first person he met was 1st accused who is a watchman. PW 4 stated that on that relevant night the accused (1st adcused) was on his place of work taking _watch. According to PW 4 the aforesaid accused looked quite normal and !ffitldfled. PW 3 who is the village chairman·told this court that on August 24, 1987 at.about 6 a.m. the deoPased went to his house and complained to him that the 1st accused and the second accused had assaulted him when he went to the house of the 2nd accused to deme:ind for his money. According to PW 3 the deceased told him that a hoe an1 ? knie were used during the attack. Thereupon, he referred him (deeeaaed)in writing to the Sonje Police Station. There was also the evidence of PW 2 JUMA CHAMBO. It is common ground that the latter is the husband of the 2nd accused though at the moment the two are on separation. PW 2 old this court that in the ' morning of August 24, 1987 when he was going to the Sunja Primary Court where he is a court assessor he met with the deceased who told him that he was going to the Police Station to report that the previous night he was assailed. According to PW 2 the deceased told him that he had gone to the residence_ of the 2nd accused -to demand for his money. Thereupon he found th. ,1st acc_u~~!'.1 st.ting on a bed. Withou~ a word ··~··········•13 ' ..

== 3 of greating the 1st accused PO:'W~ on him and knocked him off his feet. While h~ was 1 lying on the ground he was hit on the head by a hoe and stabbed by a knife en the buttocks. As if that was out enough the 1st accused ramanaged his pockets arJ4 made away with his shs. 700/=• This is briefly the evdence in the first primary piece o evidence. I nowi-ithrn to the second piece of e-vidence relied by the prClsPcution . ·(· in establishing the-ir case. As I had alre91y st3teA this niece (l~ evidence cicnsist 8 of the statement hich the deceased made to the ~ ,· Police. This statement was tendered in Qvidence ~ Exhibit P2. I should perhaps digress for a while and print out here that this statement was tenderE·d in court by PW 5 Police constable ISSA who was ihvestigating this case at its initial stages wen it was before a Primary Court as a robbny @lt8F{f@e.~ It is common ground that this statement wars recorded I by W.P 12o3 Police constable CELLINA. This factor nijitwithstanding ..:; objection was not taken to the admission of the aforpsaid statement ?nderstandbly because this tatwent is bing treated as a dying ,.. declqration. In his statejllent to the police the deceased, i;f I may ··: :- .. briefly stte it, stated that on th~ relevant date the 2nd accused calle~ at his place of business and took en credit cooked meat worth

shs. 30. The 2nd accused'stayed with him until he finished his work. Thereupon they all set out for the house of thE· 2nd accused. On their wa~ they met with the 1st accused who accompanied them as well on their -: ,. journey, Having arrived at the end of the journey, namely being in the house of the 2nd_accused, the deceased demnnde1 for his money (Shs. 30i=) To his great horrow and dismay the 2nd accused declined to repay the loan of meat takn. A debate ensued thereater whreupon the 1st accused tr.ld the deceased. that he t,1as not ci:~~~~\e+'or the money as he had previously on the day sold gcat. Before he h!:>d said anything in rply the 1st accused poun6ed on him and started be&ting him •. The 2nd .:1ccused joined in the scuffle and struck him with a panga on the head~ The blow sent him crushing to the ground. Before he got \ . ' on his feet the 1st accused struck him on the buttocks with a knif~• As if that was not ehough the 1st accused ransacked his trous·er pockets and made away with shs~ 1500. Briefly, this is the second and last piece\ of evidence of the case for the prosecution. I will now turn to the case for the defence. In a nutshell all the accused persons~ denied the charges before them. Beginning . . ~ . with 1st accused, in his stat·e·men·t upon affirmation he told the court ••.•• - •. ~~~ ..••••... · .• /4 ••• l.

/ ' . •. 4 th1t he is a night wtchman and heh~~ beri employed by a religious org,misation. He recalled :t .. hat on 8 \he night in question he was at his place work sincP 6 p.m. and did noLan:v moment leave his place of work. He also recalled hearing the alarm raised by the deceased but he did not answer the alarm instiad h~ remaine~ at his place of work. Tis bit of evidence finds, support in the testimony .cf P_W 4 T,,ho con+'frmeri it in material particular •. He asked the curt t~ ismiss the slleation. of the deceased as that was a mere fabricationaand should net be given any considerati@n • .. During cross-examination by the learned senior State Attorney, Mr. Mono, the 1st accused denied having any love connections with the 2nd accused. He fu_rther told the· cour,t that PW 2 has always been suspecting him to be having an adulterious association with the 2nd accused and at one incidellt the matter was referred to the ten-cell leader. The 2nd accused, like the 1st accused aBlso gave her statement in defence upon oath. She recalled that on August 23, 1987, she ietu- rned to her house from the'shamba' (farm) at 4 p.m. She thentkea bath and £-mbarked en pN·paring her evening meal whidh was ready by ( . 8 p.m. She went tc bed immediately after having her meal as sh~ was \ VE•ry exhausted. by a fiaJlli day's work at .her _shambac She c,gtegorically, denied hearing the alar!Tl raised by the deceased. She admitted, however, ·: ;·., that she had left the fastened lock hanging and it was visible from , , 'I l outs.ride •.. She further told the court that the lock was not left where it was incidentaly but upon de~ign. She alleged it was quite safe to 'T' leave it hanging from outside as that assured hero+' its s?ety. During cress-examination by Mr. Mono for the Renublic, the 2nd ·, • • I accused told the court that she is not the only person in her villgge who is known by the name of Nalindwa. She stated that there is another person who is known by the sall),e nal)'le and that she is now married. She categorically denied bein? a girlfrh·nd or having had any sexual connection with ei'ther the deceaseg or the 1st accused. She admitted t--his:t her relations with 'PW .2 were strained !"and that the ·tatter had thrown ' her out of thEL matrimonial. home .on the allegations of willful refusal to prepare meals f?r PW 2 •. dri further cross-examination she '!.·:)r: He told the court that the panga (Exhibit P3 and the ladies rae (Exhibit P4) were not \he items seized from her house when PW 5 searched her house. She emphatically stated that PW 5 had M\M a .................... /5 ••••

1

'. ,, 7 - .. for the meat she·· frad collected from" hi~~ · :Tfl'E• deof.laSJ'd did riot ide11tify I . . or mention the.2nd accuseq as an assailant. The name of the 2nd .. . \ ( < accused was repeated by the deceased's narative to PW 3 F4DHIL and PW2 JUM.A and even in his deposition to the police - Exhibit P2. The deceased had therfore been consistent in l1is allegation that the 2nd accused was his assailant on that fateful night • .Though the decE,ased made no mention of the 1st accused's involvement in the attack when he was narating his story to those who answered the alarm he raised (PW 1 and PW 4), he did so to PW 2 -JUM.A CH.Aimo and PW3 FADHIL the village chairman. It will however be recalled that this story was narated several hors often the lleged assault to be more precise this ,was in. the morning of August 24, 1987. From m;;- foregone analysis I m now in- 1 a.PJS>§ii-'!lii@Al.to say that the deceased•s dying decla:... ration - Exhibit P2 has been sufficiently corroborat•d by the evidence of all the pros,ecution witnesses in S•o +'ar as the linkinp.; o-f the 2nd accused with the attack is ~~ncerned.' ut, I will hesitate to hnl the some in so fa .as connecting of .the 1st accused ··ith the atteck or to the offence. The defence of the 1st accused is frirther supported b the evidence of PW 4 ABDALLAH who said that the accused had kept vigil at his place of work. / In the light of the foregoing coupled with the fact that the deceased was found just nine paces away from the '·house of 2nd accused I do not hesitate to f:ind her sufficiently identified as the deceased's ' . - assailant on that fateful evening. I am further satisfied that the deceased is dead and his death was due to the head injury he suistained that night. This latter factor ta• not been disputed by the- partie,s. All in•all the only question that is no left f6~ determination is whether there is evidence to show malia aforethought~ When death ccurs in circumstances like this instant one, the person who oeQs-,f8 death will normally, unless the-re are special reasons to the contrary be fou.nd guilty of manslaughter and not murder. The case of R. V. lQ!:lli._WlMJ\WP. {1968) HCD 49 is rele~ant. I tnust .confess that this is a difficult case. It is with great reluctance and only after conside- rable reflection that I have ·decided to.differ in my•mind as to the question of malice aforethought and the ll.~~d 'requires mE> to resolve . the doubt in favour of the accused. In arriving 8t this decisjon Tam ..... ~ ...................... /8 ... .

,· 8 fr"-- .. d by the decision in R.· V. JOSEPH S/0 BYARUSHENQO & Another (1946) E.A.C.A _18 a_nd R. v. Krnr, ARAP SEREM (1940) E.A.C ... A 73. On the evidence available I find the second accused not .,guilty of murder but guilty of manslaughter c/s 195 of the Penal Code.- As a result of the afo_r __ esaid analysis I hereby acquit the 1st :a!Jcused of the offence of m=dro The 1st accused is _to be set at liberty unless lawfuly detained for some other purposes. J.J. MKWAWA, Ag.JUDGE. ' 21/10/1990; This judgment is.delivered in open Court at Same this 23rd day of October, ·1990e Corqm: Mkwawa, Ag. ·J. J.J. MKWAWA, Ag. J U D .G E. 23/10/1990 Mr. Mono, Senior State Attorney, f'or the Reoub-lic. Mr. Shay0 for both accused: persons·. Both the accused persons are present under custody·. Alt the Assessors are present. Court:· The judgment is delivered. Mr. Mono, Senior State Attorney for the Republic The accused is a first offender • Mr. Shayo: ..... .·.•1, My lord, I hav@ only a• little··to say. · In passing se-ntence I invite your honourable court to take into consideration the pre•vealing circu- mstancs of the case. That i~ all. S E N T E N C E: In passing sentence to the accus@d I h~ve taken into consideration that the accuse-d hAs an ~nblemishet,record. I have further taken into consi- deration that she has _been in custodial confinement since August, 1987. · .••.••.......... , •.• I 9 . .. .. ~ .. '• ... .. . . ••••

IJ 9 == I have also taken into consideration the very nature of the case itself. Having taken into consideration all the aforesaid factors I now sentence the accused to five (5) years imprisonment. JJM/vm ·I hereby J .J. MKWAWA, .Ag.JUDGE. 23/10/1990. C€rtify this to be a t_e coy of the Original, \y/1' (M.L.K. Kannonyele) \ DISTICT REGISTRAR, AR USHA. . ,i . ' ·t,);j. :Al'. •,v l •' .