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R. v. Amsi Marangi and another, Crim. Sass. 25-A-69, 7/10/69, Platt J.



R. v. Amsi Marangi and another, Crim. Sass. 25-A-69, 7/10/69, Platt J.

The accused Amsi Marangi and his son Ramadhani were jointly charged with murder of Safari Gwandoo on the 2nd June, 1968. The prosecution alleged that the 2 accused, who had a longstanding hard quarrel with the deceased’s family, had been seen beating the deceased with a stick, as a result of which he died. The accused denied being involved. The prosecution’s case depended largely on the evidence of three witnesses. The witness Boo Tlatla (PW. 1) testified that on the Sunday morning in question the deceased had called at his house and had then gone away. Shortly afterwards the accused Ramadhani called on him and then followed the direction that the deceased had taken. After a little time Boo heard shouts and going to that direction, he saw the two accused from 3 paces away beating the deceased with sticks on the head. When the deceased fell down Boo, being afraid ran away and hid, retuning home sometime later. He never reported what he had seen. The witness Neema Ami (PW. 5) on seeing some people standing by a path went to see what they were doing. He approached to within 15 paces and saw the accused standing holding sticks with the deceased lying down between them. Like Boo, Neema was unseen by the accused. Neema ran home and said nothing. In court, a stick was produced which belonged to Amsi Gadiye (PW. 2). At about 9 p. m on the Sunday in question the accused Ramadhani had called for the return of a debt of Shs. 2/- which Amsi Gadiyo owed him. Amsi Gadiye repayed it. And then the accused Ramadhani took away his stick without permission. It appears that Amsi Gadiye did not especially mind, and shortly afterwards he went to the shops. When he retuned at about 2 p.m. he found that the stick had been retuned

in as broken condition with what appeared to  be blood on it. Amsi  Gadiye threw it away as useless and did not mention the incident to anyone. All three witnesses kept quit until, at a second meeting held in the village concerning the murder, it was said that if anybody, knew of the deceased’s death and did not tell what he knew he would be condemned by an oath.

            Held: “The witnesses who thus gave their information all told this Court that the reasons why they had not at once informed the authorities what had happened were because, the two accused were well known to be bad people and that they were afraid. It is somewhat difficult to accept this excuse. Both accused had been arrested guite quickly and at least the witnesses ought to have spoken out at the first meeting. Neema added that he was afraid that he would be accused. Amsi Gidiye stated that he had thought that probably the accused Ramadhani had killed a snake with his stick and therefore he did not connect the deceased’s death with his broken stick. The assessor discredited all these excuses. He thought them most impossible especially that of Amsi Gadiye, and thought that it could well be that these witnesses might have taken part in the fight. It certainly seems strange that as neither Boo nor Neema had been seen by the accused, that they could not have gone to the authorities and reported the matter as is the usual custom, even as Amsi Girwana did. Neither accused left the village nor could they easily have been apprehended. This is not a case where the witnesses were under any compulsion (See M’NDUYO M’KANYORO V. R. (1962) E.A. 110). The law relating to such a situation as this is that witnesses who, though they may not be accomplices in the strict sense of that word, may nevertheless give evidence which is tainted and ought not to be accepted without corroboration. So in HODULRASULT S/O JIVRAJ vs. R. IT. L.R. 667 it was held: (as noted in the head note).

“When a witness admits that he was cognizant of the offence as to which he testified, and took no steps to communicate his knowledge with a view to preventing the commission of the projected offence he must ordinarily be taken to be in sympathy with the criminals and so to be a witness upon whose evidence a Court should only act after the closest scrutiny.” R. vs. GAS IBRAHIM 13 E. A. 104 is example where witnesses who were present at the commission of the crime and might have committed it, and who failed to report it for he reasons that they were trying to evade the authorities were held to require  corroboration. In contrast R. vs. LIFA MAHEGA 13 E.A.C.A. 102. Shows that the evidence of witnesses present at the scene of the rime and who failed to report the fact at once being under the accused’s influence … could be relied upon. It seems that each case must depend upon its own merits and while not every witness who delays in reporting a crime must be considered as an accomplice or even one not any better than that of accomplice, if there are circumstances indicating his sympathy with the criminals, it would be unsafe to depend on his evidence without corroboration. With these principles in mind I return to the evidence. To begin with the witness Qarasi Bua (P.W.6) described the meeting of the deceased, and Ramadhani with Boo in very different terms to that of Boo himself. According to Quarasi he had found Ramadhan talking to Boo before the deceased came. Indeed Ramadhani was still there while the deceased visited Boo. Ramadhani was seen with a different stick by Quarasi to that which Boo described. Qarasi Said that the stick Exhibited was not like Ramadhan’s which Boo thought it was. The witnesses who saw Ramadhani all described his dress in very different terms and Boo and Neema described

Amsi Marangi’s dress in different terms. The descriptions are irreconcilable and while such discrepancies are not always important it was possibly another indication in this case that the evidence is not sound. These discrepancies seen against the back ground of great reluctance to give information until a threat was issued of condemnation of an oath contribute to the general ruling of doubt expressed by the assessors, that the witnesses might have been parties to the offence themselves. At least they may have been sympathizers; as such I would not consider it safe to rely on their evidence without corroboration. It appears to be a case more akin to Gas Ibrahim’s case that Lifa Mahega’s case.” Accused acquitted.

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