REPUBLIC v RUGISHA KASHINDE AND SIDA JIBUGE 1991 TLR 175 (HC)

 

REPUBLIC v RUGISHA KASHINDE AND SIDA JIBUGE 1991 TLR 175 (HC)

Court High Court of Tanzania - Tabora

Judge Korosso J

15 November, 1991

Flynote

Criminal law - Murder - Standard of Proof - Alleged identification of accused -

Accused present in village - Not arrested until days later - Whether guilt proved

beyond reasonable doubt - Penal Code, s.196. D

-Headnote

The accused persons stood jointly charged with the offence of murder on 20/1/87

contrary to section 196 of the Penal Code. The important evidence directly

implicating the accused persons was that of one Kulwa d/o Lumwecha E (PW1) and

one Ngwalu d/o Seni (PW2). The former alleged to have seen the deceased, her

mother, lying on the ground and the accused persons assaulting the deceased. She

testified to have seen the accused persons felling the deceased and slashing her with a

panga. F

It was common knowledge that the offence took place on 20/1/87. It was also not

disputed that the first accused was arrested on 21/1/87 and the second accused was

not arrested until 25/1/87. There was an evidence that the second accused was absent

from the village between 20/1/87 and 25/1/87. G

Held: (i) The alleged identification of the accused persons took place on 20/12/87. It is

surprising that the first and second accused should have been arrested on 21/1/87 and

25/1/87, respectively, especially considering that there H was evidence that the

second accused was absent from the village. The prosecution incidence has not

established the fault of the accused persons beyond reasonable doubt. Accordingly the

accused person are not guilty as charged.

Case Information

Charge dismissed. I

1991 TLR p176

KOROSSO J

[zJDz]Judgment

A Korosso, J.: The 1st Accused, one Rugisha Kashinde and the 2nd accused one Sida

Jibuge stands jointly charged with the offence of having murdered the deceased, one

Geni d/o Satte in the village of Kondamoyo in the District of Urambo, Tabora Region,

on 20th January 1987.

B One of the persecution witnesses was one Kulwa d/o Lumwecha (PW1). She

testified that the Deceased was her mother with whom she lived in the village of

Kondamoyo for many years until the date of the incident, she knew both the 1st

Accused and 2nd Accused. She remembered that sometime back the 1st Accused and

2nd Accused had C ever lived with her uncle named Shija. She recalled that on the

night in question her mother, the Deceased made a big fire outside their house. The

fire was so bright that it illuminated an area up to 27 paces from where they had sat.

About 9.00 p.m. they were still seated beside the big fire when she happened to see

the 1st Accused and 2nd D Accused at a distance of 27 paces. She saw the 2nd

Accused carrying a panga as well as a torch. She saw the 2nd Accused carrying a

panga as well as a torch. The Deceased was just then heard asking as to who were

those persons approaching there. The 1st Accused and the 2nd Accused continued

walking towards them, until they E reached them. Both approached PW1 and then

asked her to where was their mother. PW1 pointed at the Deceased. The 2nd Accused

reacted by trampling on her back so that she fell to the ground. She got up and ran

away, followed by her sister one Ngwalu (PW2). PW1 saw her mother, the Deceased

running too. The 2nd F Accused seized PW1's cloth as a result of which it came off

and she continued running still having an underwear on. In the course of her

running, she saw her mother, the Deceased lying on the ground and the 1st Accused

and 2nd Accused were seen assaulting the Deceased. She ran safely until she reached

her sister's home. Her sister Holo d/o G Mbeja and PW1 raised an alarm, which

attracted people to the scene. The 1st Accused and 2nd Accused were not amongst the

person who went to the scene in response to the alarm.

Another witness was one Ngwalu d/o Geni (PW2). She testified that the Deceased was

her mother. She knew both H Accuseds as her neighbours, in the village of

Kondamoyo. On the night in question, the deceased, and herself were seated beside a

fire when the 1st Accused and 2nd Accused happened to go where they were. On

reaching them, the Accused had asked as to where was their mother. PW1 asked the

2nd Accused to speak in Sukuma I language because she didn't understand Kiswahili.

The 1st Accused told the 2nd

1991 TLR p177

KOROSSO J

Accused speak Sukuma. The 2nd Accused repeated the question in Sukuma language.

PW1 pointed at their A mother, the Deceased. The Accuseds felled the Deceased to

the ground and they slashed her with a panga. PW1 and PW2 ran away as they raised

an alarm. They finally reached the home of their sister one Holo where they met on

the way being with her husband. The 1st Accused was amongst the persons who had

responded to the alarm. B She mentioned the 1st Accused and the 2nd Accused as

having been responsible for the assault of the Deceased.

Another witness was a one No. 3013 D/sgt. Mbaga (PW3). PW3 testified that on

21/1/87, he was at the Police C station when the Deceased was brought there having

some cut wounds on the head and on her right thigh. The Deceased died in hospital

in the morning of 22/1/87. PW3 went to the village to visit the scene. He contacted

one Kulwa (PW1) whose statement he had recorded. The statement of Kulwa (PW1)

was produced and marked Exh. P1. The said Kulwa (PW1) had mentioned the 1st

Accused and the 2nd Accused as having been the suspects. Both D Accuseds were

consequently arrested.

In his defence the 1st Accused denied the charge. He deposed that on the night of

20/1/1987 he was asleep in his E house when one Samike Renagala who told him

that the Deceased had been attacked. The 1st Accused get outside where he

accompanied other persons to the house of the ten cell leader by the name of Maduka

Mpalamino. They arrived at the scene where they found the Deceased bleed on the

head and side. The Deceased mentioned one F Jamadas as having been the habit of

accusing her as a witch before and that on many occasions she had reported one

Jamadas to the ten cell leader. He went on to aver that at the Police station one Kulwa

d/o Lumwecha (PW1) had also mentioned one Jamadas and unknown persons as

having been the suspects. He admitted to had made two G statements to the Police

Station produced and marked Exh. D1 and exhibit D2. He said that at the Police

station one Kulwa (PW1) had also mentioned one Jamadas. The 1st Accused was also

arrested by the police one mere suspicion that he had attacked the Deceased. H

The 2nd Accused giving on oath, denied the charge. He testified that he knew the

Deceased as they lived in the same village. On 25/1/87, he was arrested at the home of

one Ituju where he had stopped on his way home after he had been from his shamba.

He was taken to the ten cell leader without being told what he had done. At the

home of I the ten cell leader he was informed that he was the suspect.

1991 TLR p178

KOROSSO J

A Policemen were present. He was finally taken to the police station where he was

interrogated and his statement was put down by D/Sgt. Mbaga (DW3). In his

statement to the police, he utterly denied responsibility for the murder of the

Deceased. He denied having ever gone to the house of the Deceased. He denied

having ever gone to B the house of the Deceased on the night in question. He denied

to have had any enmity with the Deceased.

He went on to aver that about 6.00 p.m. on 20/1/87 he ever went to the house of

the 1st Accused bringing with him 3 chickens for safe-keeping. He admitted freely

signing on the statement Exh. D3, yet he totally refuted the C evidence that he had

ever told D/Sgt. Mbaga (FW3) that on 20/1/87 he had taken 1 chicken to the 1st

Accused, for the purpose of using it for food. He admitted that he was in the habit of

putting on black clothes. He expressed the belief that he had been arrested merely on

suspicion that one of the attackers had put on black clothes. He admitted D that

PW1 and PW2 knew him, however, he rebutted their evidence that he and the 1st

Accused had the Deceased on the night of 20/1/87. He stressed that PW1 and PW2

had sought to implicate him in the crime chiefly because their original suspect, one

Jamadas Kakomala had been let out. He said he had not gone to the scene on E the

night in question as he had not heard the alarm alleged to had been raised then.

After I had finished reading out the summing up to the Honourable Assessors, I

kindly invited them to give their opinions on the case. The two Honourable Assessors

were unanimous in their view that the evidence had not F established the guilt of

the Accuseds beyond reasonable doubt.

Having gone through the evidence fairly carefully, I find myself in full agreement

with the two honourable assessors.

The important evidence directly implicating the 1st and 2nd Accused is that of one

Kulwa d/o Lumwecha (PW1) G and one Ngwalu d/o Sani (PW2). Both PW1 and

PW2 claimed to had been with the Deceased outside their house where there was

allegedly a big fire. Both claimed to had clearly identified the 1st Accused and 2nd

Accused as having been the two persons who had attacked the Deceased. If it were

true that PW1 and PW2 had mentioned the H Accuseds on the night of 20/1/87,

how came that 1st Accused was arrested on 21/1/87 though PW2 had seen the 1st

Accused being at the scene. It is still a surprise that the 2nd Accused should have been

in the village of Kondamoyo without being arrested until on 25/1/87 if PW1 and PW2

had really mentioned the Accused on the I night. There is no evidence that the 2nd

Accused had been absent

1991 TLR p179

in the village between 20/1/87 and 25/1/87. There have been no evidence of a ten cell

leader, village secretary or A village chairman as to whether or not PW1 and PW2

had ever mentioned the 1st Accused and the 2nd Accused on the night of 20/1/87.

In view of this doubtful in conclusion evidence as thus against the Accuseds, I feel

constrained to declare the guilt of B the 1st Accused and 2nd Accused has not been

proved.

I accordingly find the Accuseds not guilty.

I dismiss the charge and acquit the 1st and 2nd Accused of the offence of murder c/s

196 of the Penal Code. C

Order accordingly.

1991 TLR p179

D