Republic vs Gesuge and 5 Others (Criminal Sessions Case No. 134 of 1981) [1982] TZHC 575 (27 October 1982)

RLC-i IN THI HIGH COURT OF TANZANIA AT MUSOMA ORIGINAL JURISDICTION (Mwanza Registry) CRIMINAL SLSSIONS CASE NO. 134 OF 1981 THE RELUI3LIC versus 1. u Ku: & FI OTHERS CHARGE - Murder Contrary to Setion196 of the kenal Code. JUDGMENT CHUA. J: In this case six persons, namely Chamriho Iramba, Geeu.ge Kiratya, Wikonza Nyakyoma, Mangoni Nyamisendo, Murima Mugisi and Sanati Mtaki were jointly charged with the murder of S'tei.hano Nyamera Contrary to Section 196 of the lenal Code. After the eidence of Jarioba John Mboyi (kW.i) was recorded it 'transpired that the first three accused persons were not im-1iea'ted in the oommision of the offence, and since 1W.1 was the only eye wi$ness to the killing., the lear'ed State Attorney had no alternative but to withdraw the charge against triose three accused persons. Thisjud. ment itherefore in res.ect of MwangoniNyamisenda MaHma Mugisi and Sanati Mtaki horeinafter to be referred to as the 4th, 5th and 61h accused er Sons. In this case the death of Stei-Ioano Nyamera is not disi-uted. The j-rosecuion also has not fail(--d to bring tc this court evidence which kroved that death beyond mere Jera.dventure. Warioba John Mboyi (k ii) Saa Bits Shilini (IW.2),Tabu Ste-hcn (W3), Lucas Nyawera (lW.5) and Id. Hamisi (IW.6) have 11 deosecl scoing.the body of Stelhano Nyamera and confirmed that he was dead. T odd to this evidence the Iot Mortem Iamintion rep)rt reared. by Doctor C. 1. Mange was tendered in court and it showed that no external m-rks jf violence wereoted on the deceased bat. that death rrsulted drooi damage cf the cervical Bi.ine. I therefore conclude 'that it. hs boon 1-roved as a fac that Sthano Nyanera-is dead. What is dis1uted in this case is whether the accusd are the ones who caused the death of Ste1-hano Myomera. . In order to resolve this issue it is necessary to outline the evidence whict was adduoed by the irosution and the de.f once. For the 1-rosecution the star witnees on whom the whole case deend9 11 j:Wapioba John Mboyi. He told this court that on 1 7/1/1980 at about 4 # 00 -.m. at Nyangera village he had been cutting poles for rel-airing his house. He saw the 4th, 5th and 6th accusr'i ersons 1-assing at a fast lace going towards Hunyeri area. He noted that the 4th accused earned a gunwbile the 5h and 6th accusd persons carrid sticks of the size comaab1e to the hakdle of a hoe. He became curious and thought that these people might have been chasing wild animals. He decided to follow them. As he went he met the let, 2ndand 3rd accused 1-ersons going to théooj'te direction i.e. going towards Nyangera village - but he did not talk to them, He then noted that the 4th, 5th añd6th accused had suddenly come to a halt. He then heard the 6th accused, say to the 4th accused Ierson:— "Tmekupa Ukama*da wa Mgambo unangojea nini?" Thereupon he saw the 4th acou.ed hit the deceased with the butt of the . The deceased was hit. above the rigb shoulder and fell clown. Then all the three ece.d -kersone hit the decease When he had falle±i down. . 9. . . t . . ./2.

V 2- IW.1 stated further that by that time he was afflicted with tub- culosis as a result of which as he crouched down be that he sh&uld not be been by the accused he involuntarily burst into a orAdmodic cough whih lead to his been spotted. He was immediately held uj at gun point and sent to the scene of crime where he was shown the dead body of the deceased.. He was then told that he should not under the iain of death ifeveal what he had seen. The accused are reported to häve'told.hirnt "Huyu mta au- kuwa anatusumbaa sana. Kila tukiLneleka anaudi.. KWa hio tumeamua kufanya hivyo. ', The witness gods on to sa that beaue of the threat and the leadership pQsitions held by the accUsed, the 4th accused being a rnillitiamenthe 5th accused Chairman and the 6th accused Secretary, he did not bell any one He however states that on 18/1/1980 he Aeoret].y, told the sister of the deceased before the body of the deceased was found. He aLso told the kolice at a later date whieh unfortunately he did not sécify. His statement to the lolice was recorded on 25/2/1980. So one may assume that the witness informed the lolice on or slighly before the . 25/2Jl8O. Thei'e was evidence from Tabu Stei-hani (}W.3) the wife of the deceased, that on the day in question, the 5th and 6th accused had ordered that the d eà ease /bWerrest e d and. sent to the office ofthe gatd Secretary (Eva'ist Kazirhabi Ma.esa44) to be charged with failing to wci'k in the village sharnba. The Ward Secretary has told this court that on noting that the deceased elderly and lame, he set him free. Lvidence ahowed that the deceased by virtue of his being lame was sent to the Ward Office on a bicycle and after he was released he was seen waiting for a lift on a bicycle to be returned home. The defence of the accused persons cosis±ed of unsworn statements and theJubmissinns of their 'larn defence c-:.unscls The 4th accused statedhat ater sending the arrested people to Hunyari Wordhe handed them oJer to the Ward Secretary ant left at about 5.00 p.m. The 5th a=Usk on his part stated that after he had ordered the arrest of people who did not want to work in the village shomba, th se j-eole were sent to the Ward Secretary while he and the 6th accused remained in their office at Ny era until evening when they left for home. The 6th accused repeated subeta tially what the 5th accused stated. Learned Counsel for the 4th accused submitted that IW.i was not a credibte witness. His reasons were as follows;- IW1 did not niake his stateLent until 25/2/1980. If he were a trUthfi1 witness, submitted leard counsel, he ought to have told the kolice much earlier Whereas W.1 in his statement to -the lolice s-oke of two groups of, people going towards the same direction i. e. from Huyari to Nyangera, here in court he seke of tw .r.ou.s gcing to ooste directions, one going from Hunyari to Nyangera and the accusd persons going towards Hux)yarj, 1W.1 si-oke of the deceased having 'been hit on the right shoulder and haiing been beaten up by all the 3 accUsed Persons while the lost Mortem examination re.ort shows thot the deceased suffered only one injury- damage of the cervical s.ine. The Ward Secretary stated t.o:mt he released the deceased at 400 .mo and the 4th accused was cne of the millitiamnen in attndancc there. How theti could the murder have been committed at 4.00 Am. as assertqd by W.l, asked Mr. Sandhu learned counsel for thn 4th accuceth Mr. Semzaba on behalf of the 5th and 6th acusrd sabndtted that IW.1 was not a credible witness because of the following reason: IW.l does not exi-lain how the deceased arrived at the scene of crime thus making his story incredible. The sketch plan of the scene of crime tendered in court as exhibit showed that kW.l was standing 80 laces away from the scene of crime. How then could be have hethd the words alleged . . . . . . . . /3

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• 3- to have been tittered by acctisedNo•.6to accused No.4. (3) 1W.1 had a gudge with accused No.5 .ard. 6 becaee they in their capacity as Chairman and Secretary had denied him a loan and his brother had divorced the sister of accused No6. I now will review the whole testimony of k.l in the light of sub- missions of the learned defence counsels. 1W.1 asse:rted that he delayed to report to the kolice because of the threat on his life but at the 'sme time said that he secretly told the sister of the deceased on 18th January, 1 98O4 that was more dangerous, to tell the kolice who would be able to guard his life or tell the sister of the deceased who could have let out the secret and offer no protection to him. His explanation is u.nsatis- factory and leaves a lot to be desired. If he was able to tell the sist'er of the deceased he ought to have secretly informed the lolice who would have arranged for his protection. His silence up to 25/2/1980 is cause for concern. What is even more d.istu'bing in this case is the difference betweenwhat kW.l told the lolice and what he has stated in court. - From the statement whidh 14.1 made to the lolice which was tendered in court as an exhibit it is cle.ax that there is a crucial difference between what l-W.1 'told the lolice and what he has told this court. In his statement to the kolice 1Wl stated that he saw two groups of people going towards Nyangera village and then after a while he saw the 4th, 5th and 6th accused going towards Hunyari 110 'hen states that the 1st group of i-eople who obnsisted of the 1st; 2nd iici 3L1 accused met with the 4th, 5th and 6th accused and started talking Then after a while yet another grout arrived there followed by the d.eceae'd At that stage the deceased was assaulted on orders of the 6th acused.- The 4th aoused used the butt of the gun while the rest of the people used sticks- So it will be seen that according to what • W.l told thc lolice the deceased was assaulted by all the 6 accused peel-ic who were charged in this case plus others whom he does not specify in number or reveal by names This is quite differér't from what he told the court In court he has exdluded the 1st, 2nd and 3rd acused persons from blame. He appears to have had strong motive for excluding them because he admitted that the 1st accused was his paternal cousi while the 2nd accused was his maternal unclei. This aspect of the case shows that 1W.1 was indeod an unreliable witness Further reasons for discrediting 1 1 4.1 are to be fouhd n the lost Mortem examination Report- Whereas asserted that the deceased was hit with the butt of the gun above his right shoulder ahe ost Mortem report does not refer to an injury of that nature. Furthermore while kW.1 stated that the deceased was assaulted by all the 3 remaining accused the kot Mortem report shows that the deceased had only one injury-- damage to the cervical spine. Yet another reason for doubting the testimony of 1.1 is inrespect of time. Huflyari waP said to have been at least 8 to 10 niles away from Nyangera village. The Ward Secretary stated that' he released the deceased at 500 p.m. while kW.l says that he saw the accused assaulting him at 4.00 .m. Even after considering the fact that time in rural areas is a matter of a rough guess, it is improbable that the deceased would-have reached the scene before 6.00 p.m. if he was walking l.W.l offered no explanation at all as to how the deceased reached the scene of crime and that may be explained by his desire to exclude some of the persons he may have seen that day from liability.. The above were the main reasons why 111.1 has been treated as an inc- redible witness. For a serious charac like Murder which attracts the death sentence the court cannot rel-.r an tile evidence of 1W1 to cbnvict the accused persons. As there was no other cvidhce adduced by the proseatiori which would connect the accused with the death of the deceased all the three gentlemen assessors advised me that the abcused should be acquitted, I with great respect agree with the gentlemen assessors and declare that the charge has not been proved, beyond reasonable doubt. The accused az-c. S •1 i.• •

-4- ac6ordthg.1y acquitted and should be set fre.e unless they are otherwise legally detained in resect of another rnattr. 1? IL L.J. CHUA JUDGE rA MUS M 27 b ek, 12: Iz