ALEX MASANJA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL SESSION CASE NO. 54 OF 2023 REPUBLIC VERSUS ALEX MASANJA @ MALISA JUDGMENT 14h March & 15h Apri~ 2024. S.M. KULITA, J. The accused person, one Alex Masanja @ Malisa stands charged with the offence of Murder, contrary to Sections 196 and 197 of the Penal Code [Cap 16 RE 2022]. It is alleged by the prosecution that, on 16th February, 2023 at Masagala village, within Kishapu District, in Shinyanga Region, the accused person murdered one Mereciana Lazaro Malisa @ Ng'walu. The facts presented by the prosecution which gave rise to this trial are the following; that the deceased was living with her grandchild and the accused who calls her as aunt. As they were living together, the accused had been using the deceased's bicycle. It happened that the Accused came back home late, the thing which caused 1 misunderstanding between him and the deceased. The said misunderstanding caused the accused to leave his aunt's home. It then happened that, a few days later the grandchild also left the deceased alone at home, as she had to go somewhere else to take care of her sick sister. It is alleged that, during that time the accused person, regularly used to call her and ask as to when she would return back to her grandmother (deceased). That, on 27th February, 2023, Fatuma (the deceased's grandchild) returned back home at Masagala. Thereat she found the door open and her grandmother dead inside, nearby the entrance door. From there, neighbours and Police were informed and investigation started. During that time, somebody Matana was caught having the deceased's bicycle. In an effort to reveal as to how the deceased's bicycle came into his hands, Matana showed a sale agreement proving that he bought the same from the accused person. Thereby, the accused person was arrested and interrogated whereby he admitted to have committed the alleged murder. The accused person was then taken to the Justice of Peace where he maintained his confession on the commission of the offence. The accused was thus arraigned to court for murdering Mereciana Lazaro Malisa @ Ngwalo. 2 When the information of murder was read to him during Plea taking and Preliminary hearing, the accused person pleaded not guilty to the information. Further, on 12th March, 2024 when the case came up for trial, the said information for murder was reminded to the accused person who pleaded not guilty thereto. In discharging the duty of proving the charge against the accused, the prosecution side called 9 (nine) witnesses and tendered 7 (seven) exhibits. The evidence of the prosecution and defense sides can be summarized as follows: The 1st witness for prosecution namely A/Insp. Salvatory Sekondo (PW1) testified that, on 17th February, 2023 he together with other Police Officers from Maganzo Police Station, attended the murder incident at Masagata village. He said that while at the scene, he managed to take down witnesses' statements whereby the accused herein was mentioned as a suspect. PW1 added that, information showed that, apart from killing the suspect, the Accused also stole the victim's bicycle and that the said suspect was living at Mwigumbi in the same District, Kishapu. He said that, they decided to go to Mwigumbi to trace the accused person. There at Mwigumbi they got the information that the accused had sold the victim's bicycle to one Matana Busalu (PW4). 3 PWi went on stating that, they managed to look for and get the victim's bicycle from the purchaser. The said bicycle was seized and certificate of seizure was filled. PWi tendered to court as exhibits the said bicycle and the seizure certificate. The same were admitted without objections as Exhibits Pi and P2 respectively. When cross examined PWi stated that, he did not account for chain of custody over the seized bicycle and that, he has not tendered the sale agreement for the said bicycle. The 2nd witness for Prosecution, one Fatuma Deus (PW2) testified to the effect that she was living with the victim who was her grandmother. She added that, the accused person together with his wife joined them in January, 2023 after he had introduced himself to the victim as the son of Masanja who is the victim's brother. PW2 went on stating that, it happened that the accused person took the victim's bicycle and returned with it during the midnight, the thing which angered the victim. That led the victim to stop the accused from taking the said bicycle again. According to PW2, this misunderstanding caused the accused person to leave the victim's house. 4 PW2 further stated that, she also had to travel leaving the victim alone as she had her sister who was sick at Shilabela village in Old Shinyanga. PW2 stated that, while she was at Shilabela, the accused person called her two times asking as to where she was, and informing her that he visited the victim at her home and that the victim greets her. She went ahead stating that, when she returned home, it is when she found the victim lying dead inside her house, nearby the entrance door. She added that, after she had passed the information to neighbors and officials, search was conducted in the victim's house whereby they also witnessed the deceased's body at the scene. PW2 added that the victim's phone and bicycle were missing. Solo Mbende who testified as PW3 stated that he is the Suburb Chairman of the area in which the scene of crime is located. He added that, on 17th February, 2023 at about 1900 hours while purchasing commodities at shop, he received a phone call from one Charles who informed him on the murder incident. The witness added that, he went to the scene and confirmed it. He then informed the local militia (Sungusungu) and Police. He asserted further that, he met Charles at the victim's house who told him that, he also got the information from PW2. PW3 went on stating that, while there the Policemen arrived with 5 a Doctor for investigation. Thereafter, the Police allowed them to proceed with burial. The 4th Witness one Matana Busalu (PW4) testified that he lives at Mwigumbi where the accused person also lives. He stated that, on 17th February, 2023 while on the way to his home, passing nearby the Village Chairman's office, he decided to go and greet him. He said that, at the office he also managed to see the accused person. He asserted further that, the Chairman told him that, accused person was selling his bicycle, thus they were waiting for the intended buyer who had gone to look for money. PW4 stated that, as he also was interested with the said bicycle he decided to buy it. He entered into agreement for sale with the Accused which was witnessed by the Village Executive Officer (VEO) and the said Village Chairman. He added that, those said witnesses signed the sale agreement as witnesses while he signed as a Purchaser. He further said that the accused person signed as a seller. PW4 tendered the said sale agreement to court and the same was admitted without objection as Exhibit P3. PW4 further stated that, on za= February, 2023 he was informed by VEO that the bicycle that he had bought was a stolen property, so he had to return it to her. He went ahead stating that, he complied with the order whereby after reaching at the VEO's office he was arrested by 6 Police Officers who were already there. When cross examined by the defense Counsel, PW4 stated that, the accused had a bicycle which he has been using daily but it is not the one that he sold to him. Grace Fumbuka (PW5) stated that she is VEO for Mwigumbi Village. She said that on 17th February, 2023 she together with the Village Chairman witnessed a sale agreement for a bicycle whereby the accused person was selling it to one Matana Busalu (PW4). She went ahead stating that, a few days later, Police informed her that, the sold bicycle was a stolen property, thus, they were in need of the purchaser. PW5 called the purchaser who agreed to return the said bicycle to the office. She said that upon the purchaser returning the bicycle to her, it was seized by Police. PW5 added that, she asked by police to sign the Seizure Certificate that they had prepared. PW5 identified Matana Busalu as the purchaser and the accused person as the seller of the bicycle in question. PW5 said that she knows Matana Busalu, the one who had purchased the said bicycle as among the citizens in her village. The witness identified the bicycle that was sold to Matana (PW4) by the accused person on that material date. PW6 one Charles Mayala testified to the effect that, he is a Medical Doctor who conducted Post-Mortem Examination on the victim's body on 18th February, 2023. He went ahead stating that, he went to the scene 7 with Police and found the victim's body lying down. It had with blood clots. He further stated that, the deceased's relative one Holo identified the victim and that, his investigation on Post-Mortem revealed that the victim had a wound on the left part of her head caused by hit of blunt object on it. It also had cut wounds on her three fingers of the left hand. PW6 concluded that, the cause of death was loss of blood that led to lack of oxygen flow in the body. PW6 tendered to court the Post-Mortem examination report and the same was admitted as exhibit P4. Another witness for Prosecution was a Police Officer namely G 2112 D/Cpl Clemence. This witness who testified as PW7 stated that, he is among the Police Officers who had gone to the scene of crime where the victim was murdered. He added that, his duty in that matter was to draw a sketch map of the scene. He went ahead stating that, he drew the first map on 18th February, 2023 while at the scene. He further narrated that, he then drew it properly on 19th February, 2023 while in the office. Further, he prayed to tender them to court and they were actually admitted Exhibit P5 collectively. When cross examined PW7 stated that, the two sketch maps are actually the same, as the later one was drawn properly with tools while in the office at the Police Station. H 5888 D/Cpl Onesmo testified as PW8. His testimony is to the effect that he is a Police Officer who was assigned to investigate this 8 case. He said that, he started by tracing the where about of the accused. He came to realize that, he was at Sikonge in Tabora Region. He thus went thereto and managed to arrest him at the witchdoctor's premises. He said that the accused person started running to escape them, once he saw them arriving. PW8 added that, as soon as he was arrested the accused person admitted to have killed the victim. PW8 stated to have taken the accused person to Sikonge Police Station and conducted interrogation with him. He said that, after he had given him all of his rights, the accused person confessed to have killed the deceased. The witness testified that the Accused person told him that he did kill the deceased after he had been so asked by the victim's daughter. PW8 further stated that in his caution statement the Accused person also admitted to have stolen a bicycle and a mobile phone, the properties of the deceased. After trial within a trial being conducted, the witness prayed to tender the accused person's caution statement as exhibit. It was admitted as exhibit P6, reasons to be in this judgment. PW8 went on stating that, after the accused had confessed before him, he informed his boss who made a followed up on a place where the bicycle was sold and managed to get it back. The last witness for Prosecution was Kabisi Joel Mahona (PW9). This witness testified that, he is a Primary Court Magistrate who is also a 9 Justice of Peace. He said that on 23rd February, 2023 he recorded the accused person's Extra Judicial statement. He stated that, in it, the accused person confessed to have killed the victim herein. PW9 prayed to tender to court the said Extra Judicial statement as exhibit. After the trial within a trial being conducted, the court admitted the same as exhibit P7 while reserving the reasons in this judgment. On these nine witnesses as I said earlier, the prosecution case got closed. In terms of the provisions of section 293(2) of the Criminal Procedure Act [Cap. 20 RE 2022] the accused person was found to have a case to answer. After being addressed in terms of section 293(3) of the same law, the accused person opted to testify himself on oath together with one other witness. The Accused person, Alex Masanja Malisa testified as DW1. In his testimony he stated that, he lives at Mwigumbi Village in Kishapu District. The said person alleged that, on 16th February, 2023 he was at Mwigumbi and on 18th February, 2023 he was at Sikonge in Tabora Region for cultivation. He added that, while at Sikonge on 2pt February, 2023 he was arrested and taken to Shinyanga Police Station whereby he was detained for the allegations that he murdered the victim herein. 10 DWl denied to have been freely interrogated and confessed before the Police Officer and Justice of Peace. He said that he denied to have killed the victim. He added that he had never even lived with her in the same house. The Accused admitted the signature on the sale agreement of the bicycle being his, contending that, the bicycle that he had sold was his property. When cross examined DWl admitted that what VEO and Village Chairman have testified concerning sale of the bicycle is correct, and that he sold the same so as to get bus fare for him to travel to Sikonge for agricultural purposes. Having completed to give his testimony, the Accused person (DWl), through his Advocate addressed the court that he had no witness to call, hence prayed to close his case. That marked the end of both parties' evidence. In view of the above evidence, the following issues call for determination: - 1. Whether the victim met unnatural death (if yes), 2. Whether the accused person is responsible for the death of the victim (if yes), 3. Whether the accused person, with intention (malice aforethought) killed the victim. 11 Concerning the first issue, whether the victim met unnatural death, it is not in dispute from both sides' testimonies that Mereciana Lazaro Malisa @ Ng'walu is dead. According to the Post Mortem Report which has been admitted as Exhibit P4, as well as the testimony of the Doctor (PW6), the cause of death of the victim is Hemorrhages, that is, failure of circulation of Oxygen in the body due to loss of blood that had been caused by the wounds that the deceased had sustained on the left part of the head and fingers. The admitted Post Mortem Report (Exhibit P4) which was tendered by the Medical Doctor (PW6) shows that, the deceased's body was found with blood clots due to the wound on the left part of the head and three fingers of her left hand. Further, the investigator of the case (PW8) who had also visited the scene of crime prior to the arrest of the accused, testified to have observed signs of violence at a place where the victim's body was found lying. He testified to have found the house utensils outspreaded over there. Such violence signs at the scene, bleeding, as well as wounds on the head and fingers of the victim imply that the victim met with unnatural death. As there is no evidence disapproving this fact, I find no 12 need of dwelling much on this issue. It is thus positively answered that the deceased, Mereciana Lazaro Malisa @ Ng'walu met unnatural death. Concerning the second issue, whether the accused person is responsible for the killing of the victim, the prosecution side relies on circumstantial evidence and the Accused Person's confessions. This is because, there was no any prosecution witness who testified to have seen the accused person killing the deceased. The issue is whether that available evidence suffices to conclude that, the accused person is responsible for killing Mereciana Lazaro Malisa @ Ng'walu. The law provides that, for a conviction to stem on circumstantial evidence, it must be the evidence that leads to, no other conclusion than only one that, the accused person committed the offence. See, Juma Salum Singano v. Republic, Criminal Appeal No. 172 of 2008, CAT Dar es Salaam in which it was held; "We agree with both learned counsels that, to sustain a conviction on circumstantial evidence the evidence must irresistibly point to the guilt of the appel/ant" 13 Further I am alive with the holding in the case of ALLY BAKARI & PILI BAKARI V. R. [1992] TLR 10 (CA) that; "Where the evidence against the accused is wholly circumstantial the facts from which an inference adverse to the accused to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be drawn" The above quoted principle of law calls for all facts which leads to an inference that the accused is guilty, must be proved beyond reasonable doubt. As such, it is a right time now to verify as to whether these conditions have been met in this case. The first evidence we have is that of PW2, the victim's granddaughter who was living with the victim/deceased and later on they were joined with the Accused, who testified that, the accused person went into misunderstanding with the victim because he was forbidden to take the victim's bicycle following his act of coming home late with it, when he was living at the victim's home. Testimony showed that, this misunderstanding caused the accused to leave the victim's home without saying bye to the victim. 14 Secondly, PW2, granddaughter of the victim testified that, while she was at Shilabela, Old Shinyanga, where she had gone to attend her sister who was sick, the accused had been calling her asking for her whereabout and the date that she would come back. Upon scrutinizing this evidence, you can note that it is when the Accused learned that she (PW2) was away from the victim's home. Hence, he used that opportunity to execute his plan, that is killing the deceased. The said PW2 further stated that the accused told her through a mobile phone that he visited the victim and passed the greetings from her (victim) to PW2. This situation brings doubts as to whether the accused was faithfully greeting PW2. As to what happened thereafter, that is murder of the victim, it means the Accused was assessing for a better time to execute his murder mission, taking into consideration that he already had misunderstanding with the victim. Thirdly, exhibit PS which is sketch map of the scene shows that the victim had been assaulted while at the entrance door inside her house and fell down at the same point. This evidence is cemented by the testimony of the Investigator of the case (PW8) who visited the scene of crime just after the murder incident was reported. This modus operandi, that is, assaulting the victim at the entrance and entering into 15 the house to steal the properties shows that the one who invaded the victim had a knowledge that the victim was alone in her house. Further, the evidence of PW2 that, as soon as she entered the victim's house she noted that the victim's phone and bicycle were missing cements the fact that, the invader knew that the victim was alone in the house. Had the invader had no knowledge that the victim was not alone in the house, he would have not hit the victim just at the opening of the door, knowing that such act would give rise to anyone in the house, that they would have risen an alarm. This situation connects the accused with the murder of the victim. It means that, before executing his intention to kill he did search for and got knowledge of the absence of PW2 at the victim's home, meaning thereby the victim was alone at home. Fourthly, the victim's stolen bicycle. The evidence shows that PW2 who was living with the victim, while leaving for Shilabela to visit her sick sister, she had left the bicycle (Exhibit Pl) at the victim's home, but when she returned back, she met the murder incident and the said bicycle missing. When the said bicycle was seized from Matana Busalu (PW4), the said PW2 managed to identify the same being her 16 grandmother's. This shows that, the one who stole the bicycle is the one who had involved in the killing of the victim herein. Fifthly, the evidence shows that, the victim was murdered in the night of 16th February, 2023. Further, the evidence which is not disputed by the accused person shows that, the bicycle was sold on 17th February, 2023. The accused himself added that, he left for Sikonge in Tabora Region on 18th February, 2023. These series of events within such a short period of time shows that the accused was hurrying in escaping from the offence he had committed. Lastly, the testimony of the arresting officer CPW8)that he went to arrest the accused at Sikonge in Tabora Region. The evidence shows that, as soon as the accused saw the Policemen, he started running to escape the arrest. It thus follows that, had the accused not committed any crime, he would have not tried to escape the Police Officers. In his defense to this circumstantial evidence. the accused person testified to have never known the victim at all. This testimony could have somehow put things into scrutiny only if at all the accused person would have pinpointed grudges he had with PW2 who testified to have 17 been living with him (accused) and shortly thereafter seen the accused entering into misunderstanding with the victim, concerning the bicycle in question. Otherwise, I find this fact by the Accused with no truth. Again, the accused person never rejected to have sold the said bicycle in question to PW4 while witnessed by the Suburb Chairman (PW3) and VEO (PW5) of the area. Upon referring the testimony of PW4 that he had never seen the accused with that bicycle (exhibit Pl) before, the accused (DW1) was thus required to testify on how the said bicycle came into his hands. To the contrary, the accused person just claimed to have owned the said bicycle without tendering any document or calling a witness to prove the same. On that account, it follows therefore that, all the highlighted pieces of circumstantial evidences show that, the accused herein is responsible for the killing of the deceased. This conclusion is cemented with the evidence in exhibits P6 and P7 which are the caution statements and extra judicial statements respectively, in which the accused person is seen to have confessed killing the victim. In these confessions, the accused person is seen to have given detailed accounts on how he had planned and actually executed his killing mission. 18 Had the accused person not been the one who killed the victim, he would have not been able to give such a detailed account in the said confessions. For example, the record shows that, the accused person was not taken to scene after the incident but in his confession statements he stated to have hit the victim on head when she was opening the door for him, and that the victim fell down on the spot there at the entrance door of her house. The said Exhibits P6 and P7 also transpire that the incident led to the overspread of the housewares at the scene. That was also the testimony of the prosecution witnesses who had managed to reach at the scene after the incident. This posture had been known by the Accused because he is the one who had committed the said murder. As such, this issue has been answered in affirmative that, the accused person herein is responsible for killing the victim. Concerning the last issue, whether the accused person killed the victim with malice aforethought. This issue tends to prove whether the accused person is guilty of murder or manslaughter. In the case of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994, CAT at Mbeya, the law is settled that, in establishing 19 the intention to kill, courts should take into account the following factors, among other things; "1. the type and size of the weapon/ if any, used in the attack/ 2. the amount of force applied in the assault· 3. the part or parts of the body the blow or blows were directed at or inflicted in/ 4. the number of tnows; although one blow may, depending upon the facts of the particular case/ be sufficient for this purpose/ 5. the kind of injuries inflicted,' 6. the attacker's utterances: if any, made before/ during or after the killing/ and 7. the conduct of the attacker before and after the killing" The evidence on record clearly tells it that, the accused person used deadly weapon namely, "blunt object". More abominably, he inflicted blow on critical part of the body, that is, head of the victim. This was the observation and testimony of PW1, PW8 and the Doctor (PW6) who conducted Post Mortem investigation. It follows therefore that, inflicting a fatal blow on the head of a person, which is a delicate part of the human body, by using a blunt object, implies that the accused person had the intention to kill the victim. 20 On that account, I am of the considered findings that, the prosecution side has managed to prove its case at the required standard. In the results, I find the accused person guilty of Murder, contrary to the provisions sections 196 and 197 of the Penal Code [Cap 16 RE 2022] as charged and I accordingly convict him forthwith. S.M. KULITA JUDGE 15/04/2024 DATED at SHINYANGA this 15th day of April, 2024. S.M. KULITA JUDGE 15/04/2024 21