Kashinde 111

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY (SITTING AT TABORA) CRIMINAL SESSIONS CASE NO. 103 OF 2023 THE REPUBLIC VERSUS KASHINDYE S/O LUPONYA @ MADUKA @ KASHINDE LUPONYA @ SHINJE LUPONYA JUDGMENT Date of last order: 13/03/2024 Date ofJudgment:22/03/2024 KADILU, J, The accused person in this case is charged with murder contrary to Sections 196 and 197 of the Penal Code, [Cap. 16, R.E. 2022]. The prosecution side alleges that on the 19th day of September 2022, the accused murdered one Maria Masanja @ Lata at Ugowola village in Ufuluma ward within Uyui District in Tabora Region. The facts leading to the case go this way. Before the deceased was murdered, there was a family member, Shija Maduka who was sick and when possessed by demons' spirit, he used to run to the deceased claiming she was bewitching him. On the fateful date of 19th September 2022 during night hours, the accused who is Shija Maduka's brother, armed with a machete invaded the house of the deceased and seriously assaulted her into different parts of the body causing her death. The deceased's son, Juma Hoja Maduka who was in the same house with the deceased at the time of the invasion saw the accused assaulting his mother and rushed outside the house raising an alarm for assistance from the neighbours. The matter was reported to the police whereby the accused was arrested and detained at Uyui Police Station. After the investigation, the i accused was arraigned in court facing the charge of murder. When the information was read over to him, he pleaded not guilty. The prosecution called six (6) witnesses and tendered a postmortem examination report of the deceased to prove that it was the accused who murdered the deceased. When the prosecution case was closed, the court found the accused with a case to answer and he was called to enter his defence. The accused defended himself under oath and called three (3) witnesses. He did not tender any exhibit. When the matter was called on for hearing, the prosecution side was represented by Mr. Merito Ukongoji, Dickson Swai, Ida Lugakingira, Tunosye Luketa, and Nurdin Mmari, learned State Attorneys whereas the accused person was represented by Ms. Agness Simba, the learned Advocate. Among the six prosecution witnesses, two of them came forward and gave direct evidence to the effect that they saw the accused cutting the deceased on the neck which caused her death instantly. Ms. Nyamizi Hoja Maduka (PW1), testified that the deceased was her mother who was murdered on 19/9/2022 at about 19:00hrs when she was cooking in the outdoor kitchen while her mother, brothers, and sisters were peeling off groundnuts. She told the court that there was solar light and they sat just close to one another, about 5 footsteps apart. PW1 elaborated that her mother was pregnant. According to her, she heard her brother Juma Hoja (PW2) telling her, "Tazama huku," /look at this side) and when she turned back, she saw a person had already arrived. PW1 went on to testify that the assailant was a male person who had put on a black shirt with strips, a black trouser, and a cap, and he had a 2 machete. She said he was a person she was familiar with because he is her brother (Mtoto wa baba mkubwa). PW1 stated that the accused started to cut her mother on the back of her neck. Seeing that, she got afraid and ran towards where her father was and told him that someone was cutting her mother. At that time, the father was with PWl's stepmother and they all went to where the mother was. They did not find anybody there except the deceased who was lying on the ground surrounded by a lot of blood. PWI identified the killer as Kashinde Luponya, the accused herein. It came up during cross-examination of PWI that her mother got a letter sometimes back directing her to leave the village within 3 days as she was a witch. The latter was thrown outside their house. A few days later, her mother was killed. PW2 was Juma Hoja Maduka who testified that on 19/09/2022, his mother, Maria Masanja was killed at about 19:00hrs. He stated that at the time of the incident, they were outside their house peeling off groundnuts when he suddenly saw a person coming from the back of the house. PW2 left quickly and stood aside. He heard the attacker saying, "Namuua mama yenu na literally meaning, I am killing your mother and others. PW2 saw the assailant holding a machete and a torch. He told his sister Nyamizi "angalia huku." PW2 explained that the person wore a cap, a black shirt, and a black trouser. He went on to state that he knew the person who attacked her mother as a son of their elder father. He started to cut PW2's mother on the back of her neck. He said, it was Kashinde who had cut his mother and he was able to recognize him because he was 3 familiar with the accused, and the incident happened at a spot that was hit with solar light Hoja Maduka Ndebile (PW3) testified that he was the husband of the deceased and that on 19/09/2022, he was at his young wife's house when he heard his children shouting and running towards him. He met them and Nyamaizi (PW1) told him that Kashinde had invaded them at home. He went to his 1st wife's house and found her killed. He added that the deceased was pregnant. Her neck and forehead were cut with a sharp object. The next day the police and a doctor went to his home. They interrogated members of his family and the doctor examined the deceased's body. PW3 went on to say that before his wife was killed, he saw a letter attached to the tree near her house indicating that his wife and her colleagues were witches and that they should leave the village. They reported the matter to the Village Executive Officer (VEO) and thereafter to the police. PW4, Mussa Manusela Mayala, the VEO testified that in September 2022, Hoja who is a resident of his area went to him and requested the VEO to go to his home to witness a threatening letter addressed to his wife, Maria Masanja. The letter directed Maria to leave the area within 3 days, otherwise she would see. The letter stated that Maria was a witch. Mr. Hoja's family and he reported the matter to the police. The police interrogated Maria who said she could not suspect anybody as the author of that letter. On 19/09/2022 at 20:00hrs, PW4 received information from Mr. Hoja Maduka who informed him that his wife was smashed by using a machete. He went to Hoja's house and found his wife had fallen in front of the door. 4 Her body was bleeding excessively and it had wounds on the head, at the cheek, and on the back of the neck. The police officers went to the crime scene with the Ward Executive Officer and investigated the matter. The police officers arrested Kashinde after Hoja's children told them that they saw Kashinde smashing their mother (Maria Masanja) using a machete. Happiness Mwangalila Majula (PW5) was a medical doctor who conducted a postmortem examination of the deceased's body. She testified that on 20/09/2022, she was at Uyui District Hospital and the head of Police Investigation of Uyui District went there and informed her that there was a murder incident at Ugowola village. She went to Ugowola with Dr. Said and Mwaseba who was the head of the investigation. At the scene, they found the body of a female person lying with wounds on the back of the neck, on the right-side cheek, near the left ear, on the head, nose, and her hands had wounds too. Her two right-hand fingers were cut off. The stomach was swollen which was an indication that the deceased was pregnant. After the examination, PW5 tendered a postmortem examination report which was admitted as exhibit "Pl." It shows that the cause of death was excessive bleeding due to injuries on various parts of the body. PW6, G. 2269 - D/CPL Rajabu testified that on 20/9/2022, he was informed that there was a murder incident at Ugowola village. He went to the scene with the OC-CID and two medical doctors, Said Mpanduji and Happy Majula. At the scene, they found the body of a female person lying on the ground with wounds on the neck, on the face, at the cheek, head, and hands, and two fingers were cut off. The doctors conducted an examination of the 5 deceased's body and thereafter, they handed the body to the family for burial. At that time, the accused was already arrested so, they left with him. In his sworn defence, the accused (DW1) denied having committed the charged offence and he raised a defence of"alibi." He contended that on the fateful day, he was at Ugangala village where he had gone to buy chickens from Mndekela. He stated that he stayed at Ugangala until about 19:00hrs when he left and arrived home at 20:00hrs. DW1 went on to testify that after arrival at home, his mother asked him if he heard about the death of Maria Lata to which he replied that he did not. He then accompanied his mother and father to Maria's home along with other youths. DW1 informed the court that he was arrested by the militia on the next day at about 7:00hrs on the ground that one of the deceased's children informed them that DW1 killed the deceased. He was taken to Ugowola Police Station. He further said that he did not know why Hoja's children said he was the one who killed Maria Lata. DW2 was Kashindye's friend, Mndekela Mangi Ngidingi who testified that on 19/09/2022, Kashinde went to his home at Mtimboa Hamlet to buy chickens. He was from Ugowola and he arrived at Mtimboa at 18:00hrs. DW2 stated that from Ugowola to Mtimboa is about an hour's walking distance. According to DW2, Kashindye was on a bicycle and he took the chickens and left at 19:00hrs. DW2 added that on 20/09/2022, he was called by the village Chairman of Ugangala asking him if Kashindye was at his home on 19/09/2022 to which he replied in affirmative. The Chairman told DW2 that Kashinde was arrested being accused of murdering Maria Lata. 6 Rehema Joseph is Kashindye's mother and she testified as DW3. She stated that on 19/09/2022 Kashinde went to Mtimboa to buy chickens. He went there at 17:00hrs and returned home at 20:00hrs. When he arrived, he found DW3 and her husband in a hurry going to Ugangala where they were informed that there was a murder incident. They left with Kashinde, but while on their way, he passed through the centre and was escorted by his friends to the incident. Kashindye found DW3 and her husband in Ugangala where they all slept. On the morning of 20/09/2022, DW3 left Ugangala and went back home. After a while, she was called and informed that Kashinde was arrested. DW4, Amos Luponya Maduhu testified that Kashindye is his brother. On 19/09/2022, he returned home from school and his mother told him to follow his brother Kashinde where he was herding cattle. It was about 16:00hrs. DW4 stayed with cows and Kashinde went to Mndekela's home at Mtimboa saying he was going to buy chickens. In the evening, DW4 returned the cattle at home. Shortly, his mother received a phone call and was informed that Maria Shija had been killed. At that time, Kashinde arrived and left with their mother and father and went to Maria's home. After the closure of the defence case, the learned State Attorney, Mr. Merito Ukongoji, and the defence Counsel, Ms. Agness Simba, made their final submissions. In brief, Mr. Ukongoji submitted that the accused committed the offence whereof he caused the death of Maria Masanja and that he murdered the deceased with malice aforethought as amply testified by PW1 and PW2 who saw the accused killing the deceased. He further submitted that all the prosecution witnesses were not on bad terms with the 7 accused so, they had no reason to tell lies against him. They were with the deceased during the incident and they identified the accused using solar light from the bulb which was on top of the door. Mr. Ukongoji went on to submit that the witnesses testified about the distance and intensity of light that prevailed at the scene during the incident. The distance was less than 20 meters in which PW1 and PW2 had the accused under observation for quite some time. They saw the accused approaching the deceased and they could see clearly what he was carrying. PW1 and PW2 told the court that they were familiar with the accused as they are relatives and they lived together in the Hamlet. Mr. Merito referred to the case of Amos Sita NgiHvR., Criminal Appeal No. 438 of 2021. Mr. Ukongoji went on to contend that although the accused has raised a defence ofi'a/ib/' and produced witnesses to corroborate his testimony that he was in Ugangala Village and not at the scene, he has not proved his defence of a//#/sufficiently because the place where he was and the area of the incident are in the same village. The distance between the two places is close (an hour's walking distance). In the circumstance, Mr. Merito argued, the defence of alibi cannot stand. According to him, the defence witnesses have failed to account for where the accused was at the time when the incident occurred. Mr. Merito added that there was no justification as to why the accused did not arrive at the scene immediately. The learned State Attorney said, on the other hand, that the prosecution witnesses PW1, PW2, and PW5 told the court about how the accused was mentioned at the earliest stage of the incident. In his view, the witnesses are, therefore, trustworthy, and the 8 defence witnesses did not state why the accused was associated with the incident among the many other youths in the village. Based on the strength of his submissions, Mr. Ukongoji prayed the court to convict the accused and sentence him accordingly. Responding to Mr. Ukongoji's submissions, the learned Counsel for the defence, Ms. Agnes Simba, argued that the prosecution evidence has not sufficiently proved the case against the accused beyond reasonable doubt. She submitted that the prosecution witnesses gave contradictory evidence in several aspects. The learned Advocate gave an example that prosecution witnesses told the court that the deceased was killed while PW1 and PW2 stared at the accused while the deceased uttered no word. In her view, that was contrary to human experience. She referred to PW1 and PW2 as well as PW4's evidence and said were contradictory, especially on the state of light that prevailed and the distance between where the incident occurred and where PW3 was. According to the learned Advocate, PW4's evidence was unreliable as he contradicted himself significantly about how the incident was handled. His evidence also contradicted PW5 and PW6's testimonies. Ms. Agness said, PW5 gave yet another contradictory evidence about how the postmortem was conducted. She failed to establish that she attended the scene of the crime. She was brought to court by notice to testify about the postmortem examination conducted by the late Dr. Said, but PW5 testified as if she was the one who conducted the examination. Ms. Agness submitted in addition that all prosecution witnesses talked about a letter that was written to the deceased threatening her to leave the 9 village as she was a witch, but no single witness talked about how the said letter was investigated and the author arrested. Further, the accused has raised and proved the defence of alibi which showed that the accused was not at the scene when the incident occurred. The learned Advocate reminded the court about a settled position of the law that the accused is never convicted based on weaknesses of his evidence but on the strength of the prosecution evidence. She cited the case of Christian Kale & Another v R., [1992] TLR 302. She therefore prayed this court to afford the accused the benefit of doubt and acquit him. From the totality of the evidence presented, I am indeed satisfied that the following facts have been established, firstly the deceased person is dead, and the cause of death is excessive bleeding, as per the autopsy report (exhibit Pl) tendered by Dr. Happiness Mwangalila Majula (PW5). I am also satisfied that the accused was identified at the crime scene by PW1 and PW2. The two prosecution witnesses knew the accused by name and appearance even before the tragic incident as he is the son of their elder father whom they lived together. They used to know him by his name Kashinde Luponya and they were familiar to the accused. In addition, the defence side is not challenging the credibility of witnesses, particularly PW1 and PW2. This court has considered the fact that PW1 and PW2 mentioned and described the accused at the earliest possible moment. In discussing her credibility, I am guided by the decision of the Court of Appeal in the case of Chacha Jeremiah Murimi & Others v R., Criminal Appeal No. 551 of 2015 in which the Court had time to consider the io ability of the witness to name a suspect at an early stage. The Court had this to say: "The ability of PW1 to mention and describe the second appellant at the earliest possible moment is an assurance of her reliability. ...We took the same position in our earlier decision ofJaribu Abdaiah v Republic [2003] TLR 271 and Marwa Wangiti Mwita & Another v Republic [2002] TLR 39. In Marwa Wangiti Mwita, this court observed thus; the ability of the witness to name a suspect at the earliest opportunity is an important assurance of her reliability, in the same way as unexplained delay or complete failure to do so, put prudent court to inquiry." See also the cases of Mafuru Manyama & Two Others v R., Criminal Appeal No. 256 of 2007, Kenedy Ivan v R., Criminal Appeal No. 178 of 2007, John Gilikola v R., Criminal Appeal No. 31 of 1999 and Yohana Dionizi& Shija Simon vR., Criminal Appeal No. 114 and 115 of 2009. In the instant case, the court had an opportunity to assess the credibility of PW1 and PW2 and I find no reason to discredit them. In the case of Goodluck Kyando v R, [2006] TLR 363, it was held that every witness is entitled to credence and his testimony should be accepted unless there are good and cogent reasons for not believing him. Testimonies of PW1 and PW2 were corroborated by the evidence of PW5 who established after postmortem examination that the cause of the deceased's death was excessive bleeding. Not only that, but also there was solar light at the scene that enabled the two prosecution witnesses to correctly identify the accused person. ii Furthermore, they saw the accused as they sat just close to each other, about five (5) footsteps apart, and they consistently described him as having put on a black shirt with strips, black trouser, and a cap (kofia). The incident took about a minute during which it enabled PW1 and PW2 to have the accused under their observation before he disappeared. I am therefore convinced that the evidence about the identification of the accused in the circumstance of this case was watertight and thus within the ambit of the cases of Rashid Ally v R., [1987] TLR 97 and Waziri AmanivR.r [1980] TLR 250.1 am also persuaded that PW1 and PW2 were so consistent that there is nothing to suggest that in implicating the accused with the offence, they were mistaken in identifying him at the crime scene. There is no evidence that the two witnesses were on bad terms or had quarreled with the accused before the incident hence, a revenge against him. For the stated reasons, this court finds that the prosecution has proved that it was the accused who killed the deceased. The question now is whether the accused caused the death of the deceased with malice aforethought. Section 200 of the Penal Code, [Cap. 16 R.E. 2022], provides that malice aforethought shall be deemed to be established by evidence proving any one or more of the four circumstances, enumerated under that provision. As far as the facts of the present case are concerned, only Section 200 (a)-(c) are relevant and I quote: "(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not, (b) knowledge that the act or omission causing death will probably cause the death ofor grievous harm to the same person, whether 12 that person is the person actually killed or not although that knowledge is accompanied by indifference whether death or grievous harm is caused or not, or by a wish that it may not be caused, (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years;' The Court of Appeal has also stated factors that guide the court in deciding on the existence or otherwise of malice aforethought. In Enock Kipela v R., [1999] TLR 9, it was stated that: "... usually, an attacker will not deciare his intention to cause death or grievous harm. Whether or not he had that intention must be ascertained from various factors, including the following: (i) the type and size of the weapon, if any used in the attack, (ii) the amount of force applied in the assault, (Hi) the part or parts of the body the blow was directed at or inflicted on, (iv) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose, (v) the kind of injuries inflicted, (vi) the attacker's utterances, if any, made before, during, or after the killing; and (vii) the conduct of the attacker before and after the killing." As I demonstrated above, I am satisfied that the prosecution evidence has sufficiently established that the accused caused the death of the deceased on the cause of suspicion that Shija Maduka who was sick and when possessed by a demon's spirit used to run to the deceased claiming she was bewitching him. The accused drew up his machete, invaded the house of the deceased, and assaulted her seriously on different parts of the 13 body causing her death. In the circumstance, I am of the view that the accused's defence of alibi purportedly corroborated by his witnesses, was nothing but a figment of a story purely calculated or conceived to exculpate himself from the crime committed, and of course to mislead this court. That is, the accused and DW2 contradicted one another in some crucial aspects. While the accused testified that DW2 lives at Ugangala Village, DW2 testified that the accused went to his home at Mtimboa. The accused has not proved his defence of alibi because the place where he was and the area of the incident are in the same village, and the distance between them is just close making it easy to move between the two places. Much as the defence evidence was contradictory, in law the accused has no duty to prove his alibi. It suffices if it can raise a reasonable doubt on the prosecution case. With respect, the defence of alibi set up by the accused in this case has not raised any reasonable doubt on the cogent and sufficient prosecution evidence. There is unshakable evidence from PW1 and PW2 that the accused caused the death of the deceased. They had a correct identification of the accused at the scene of the crime as there was full solar light and they knew the accused even before the incident. In the upshot, this court finds that the accused killed the deceased, Maria Masanja @Lata with malice aforethought. I, therefore, find him guilty of the offence of murder, and I accordingly convict Kashindye Luponya @ Maduka for the offence of murder contrary to Section 196 of the Penal Code, [Cap. 16 R.E. 2022]. JUDGE 22/03/2024 14 Judgment delivered in open court on the 22nd Day of March 2024 in the presence of Mr. Steven Mzava, State Attorney for the Republic, and Ms. Agness Simba, Advocate for the accused person, also present under custody. Mr. Steven Mnzava, State Attorney:- Since there is only one penalty for a person convicted of murder, I urge the Court to sentence the convict according to the law. KADILU, M. J. JUDGE 22/03/2024 MITIGATION: Ms. Agness Simba, Advocate: The convict has no previous criminal record and he has stayed in custody for a long time. I pray for a lenient sentence. KADILU, M. J. JUDGE 22/03/2024 SENTENCE As there is only one mandatory sentence for a person convicted of murder, my hands are tied by the requirement of the law. I, therefore, 15 sentence Kashindye Luponya @Maduka to suffer death by hanging as per Section 197 of the Penal Code, [Cap. 16 R.E. 2022], The right of appeal is fully explained. CADI LU, M. J. JUDGE 22/03/2024 16