theresia zakaria and jeremia judgment

Axweso Boay Hhau (Pw1), a resident of Arri village and the deceased's father, testified that Theresia Zacharia was his daughter in law, married to Gwandi Axweso, his son. They lived one kilometer from his residence. That his son disappeared since 01.11.2022. On 30.11.2023 got information that his son's clothes were found scattered in the farm. He identified two sweaters; one brown in colour and the other with purple colour. They had dry blood stains. He called Theresia Zacharia, the first accused person to look at them. She did not identify them. He became suspicious and went to report to Damiano Qamara (Pw2), the Hamlet Chairman. Axweso Boay Hhau (Pw1), Damiano Qamara (Pw2), and a group of mourners went to the place where the clothes were found, they identified them and commenced a search. During the search, they found a pair of trousers and a t-shirt at the nearby farm. They raised an alarm and more people gathered. When it became dark they stopped the search and vowed to proceed the following day. On 01.12.2022, Axweso Boay Hhau (Pw1), Damiano Qamara (Pw2), and other people proceeded with the search. Before the coming of police officers, they probed Theresia Zacharia as to what happened to her husband, and she told them that she killed her husband. And when they 3 entered their house, they found dried blood stains on the bed and on the top of the roof in the first accused person's bed room. When probed further, she went on showing them the place where they buried the deceased body. In course of further search, they came across the deceased mobile cellular phone and one shoe. Upon the arrival of the police, Theresia was arrested and taken to the police station. G. 8686 D/CPL Imran (Pw4) deposed that the police interviewed her and she admitted to have killed her husband using an axe. Again, she showed the police officer where they buried the body, but the body was not found there. Finally, she said that the body was taken by the motorcycle to Dongobesh swamp "titio" or "Bwawani'� On another incident, police officers brought her and people asked her questions, and she told them that she killed him for he did not provide her with her upkeep to cater her needs. Also, that they were not in good terms, for there was an on-going dispute that their younger child resembled one Jeremia, and that it was Jeremia who was providing for her upkeep. Jeremia denied his involvement. Later on 20.12.2022, the first accused person appeared before Estomihi Keneth Haule (Pw3), a Resident M agistrate in the primary court, the justice of peace to whom she confessed. 4 After conforming with a Guide for Justices of Peace' (the CJ's Guide), Estomihi Keneth Haute (Pw3) recorded an informed first accused person's extra judicial statement. Estomihi Keneth Haute (Pw3), narrated that after the police notified her that the suspect wanted to record an extra judicial statement, she asked her to leave her room and she remained with the suspect. She found out that the suspect was conversant with Kiswahili language and addressed her in that language, so they did not need an interpreter. She introduced herself to the suspect and likewise the suspect did to her. She examined her body and found that the suspect had no scar and that she was prepared to give her statement voluntarily. She recorded her statement, where the suspect told her that on 03.11.2022, together with Jeremia Lahay, they killed the deceased with an axe and buried him. That after two days, Jeremiah came with two people (thugs), excavated the deceased's body, and cut him into two pieces and parked them into two different bags. Jeremia and the two people left and she never knew where they went. When the extra judicial statement was up for admission, it was objected on three folds; one, that the Justice of peace (JP) did not sit at 5 the District Court as provided by section 54 of the Magistrate Court Act, [Cap. 11 R.E 2019] (the MCA); Two, that the JP did not comply with the O's Guide on taking extrajudicial statements by the JP; and three, that the statement seemed to have been prepared before the actual recording of the statement before the JP, as it contains typed and hand written versions. In the aftermath, this court overruled the objection for the JP complied with the guide, that section 51 of the MCA does not expressly state where the JP shall sit when recording the statement, and that the typed version contained basic information that JP was duty bound to extract from the suspect in compliance to the CJ's Guide. The said extra judicial statement was admitted and marked as exhibit P.1. After it was established that the accused persons had a case to answer, Theresia Zacharia and leremia Lohay defended themselves on oath. They did not summon witness or tender exhibit. Theresia Zacharia (Dwl), a resident of Arri village, testified that on 2.12.2022 left her home place, when she was back, she heard that there was an incident, (she did not specify the incident). She was asked as to the whereabouts of her husband and replied that he travelled. One 6 month later, police officers came and arrested her on 02.12.2022. On 03.12.2022 took her to court. Police officers tortured her with electric shock (here the witness was not lifting her face). On 20.12.2022 police took her to a primary court, where she told the magistrate that she did not know anything. She testified further that her husband travelled on 12.11.2022 but he never told her where he was going. She refuted the evidence that she attended the villagers' meeting. Before she swore, she cried, and at some points she covered her face. She also admitted staying together with her husband and lived close to her in laws. That she had no quarrels with her in-laws, and that they loved her. She denied to know Jeremia, the second accused person. She concluded that she had no duty to know the whereabouts of her husband. Jeremia Lohay (Dw2) a resident of Arri village, testified that on 02.12.2022 people raised an alarm for help, and commenced a search for Gwandi S/o Axweso. They did not recover Gwandi S/o Axweso's body. On the same day, he was arrested at the meeting by police officers at 06:00 pm for being suspected to have killed him. Police interrogated him 7 but he denied to have been involved in anything. He denied to have sexual relationship with Theresia, nor having a child with her. To prove the offence of murder, the prosecution is bound to establish beyond reasonable doubt that a person alleged dead is actually dead and his death was unnatural and the accused person is the responsible and that the accused caused death with malice aforethought. The Court of Appeal in Mohamed Said Matula v. Republic [1995] TLR. 3 held that- "Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence." (Empasis added) Given, the settled position of the la w, issues pertinent to the case under considera tion, are- 1. Is Gwandi Axweso dead? 2. If it is established that Gwabdi Axweso is dea d, whether his death was unnatural. 3. Are the accused persons responsible for Gwandi Axweso's death? 4. If the a nswer on item 3 is in affirmative, then, did the accused persons kill the decea sed with malice aforethought? 8 caution is taken on the danger of acting on such evidence." (Empasis added) I had time to consider the extra judicial statement (exhibit P.1) during trial and found that it was a confession of guilt, and that the statement was recorded in compliance to the law. Estomihi Keneth Haule (Pw3), the Justice of Peace, a woman magistrate, was categorical that she inquired as to whether the suspect volunteered to give her statement and she confirmed that she was ready to record the same voluntarily and that she was not threatened or coerced to confess. She signed to signify her voluntariness to confess. She was informed as to her rights; that the said statement could be used against her in court of law, and she was prepared to make her statement notwithstanding, thus she knew the fate of her making the statement. Estomihi Keneth Haule (Pw3) complied to all the requirements as per the CJ's Guide. She examined the suspect's body and the suspect was fine. I therefore, I find no good reason to fault Estomihi Keneth Haule (Pw3) testimony that the first accused gave her statement freely and voluntary. I have no doubts in mind that Estomihi Keneth Haule (Pw3) recorded the extra judicial statement in compliance of the law. 13 Even after the extra judicial statement was admitted, the defence raised a complaint that the first accused may have been forced to confess as the 0SC did not write to the justice of peace to notify her that the first accused person wanted to confess. The defence referred to the "a Guide for Justices of Peace' (the O's Guide). I read the CJ's Guide, with due respect to the learned defence advocate, it does not state that the 0SC must refer the suspect to the JP with a letter but it says in most cases that is usually. Paragraph 6 of the CJ's Guide reads, thus, - ''A prisoner wishing to make a statement may be brought to the office of a justice under police escort and usually bearing a letter from the Officer-in-Charge Police, to the effect that . the accused, who is under arrest in connection with an alleged offence wishes to make a voluntary statement to a magistrate or Justice." The word "usually" means in most often, frequently, habitually, generally, ordinarily, mostly, or normally. It does not anyway mean always or every time. Thus, the suspect who wish to make a confession may be brought to the Justice of Peace bearing a letter or without it, as it was in the presence case. Thus, the police's act of bringing the first accused person to Estomihi Keneth Haule (Pw3), the JP, without a letter does not connote that she was forced to confess or render her confession in admissible. 14 I wish to emphasis that there is no scintilla of evidence to suggest that the Justice of peace fabricated the evidence to vindicate the first accused person. To disown the confession, the first accused deposed that the police tortured her using electric shock. She did not explain as to who tortured her. She made a complaint during her defence while covering her face. Her demeanor was questionable she could not be trusted. Had she been tortured using electricity as she alleged she would have scars, marks, or injuries. Estomihi Keneth Haule (Pw3) deposed that she examined the first accused person's body and found no scar. I have already pointed out that, I had no reason to hold that Estomihi Keneth Haule (Pw3), the JP, lied on oath that the first accused gave the statement as a free agent and had no scar. I am alive of the settled position of the law that an accused person has no duty to prove her innocence but to raise a reasonable doubt in the prosecution's evidence. I rejected the allegation of torture for three reasons; one, that the first accused person's allegation of torture was not backed by physical marks on her body, as pointed above; and two, she did not complain to the justice of peace before she (the JP) recorded her (the first accused person's statement. I wish refer to Hemed Kigodi v. 15 "Tarehe 3/11/2022 nikiwa na Yeremia Lahay, tulimpiga na shoka shingoni na kumuua a/iyekuwa mume wangu aitwaye Teobali Akwesso. Mimi ndiye nilitangulia kumpiga marehemu na shoka na Yeremia akamalizia siku hiyo. Tulichimba shimo na kumzika nyumbani kwangu. Tarehe 5/11/2022, Yeremia alikuja na bodaboda na majambazi wawili; wakamfukua marehemu na kumkata kiuno na kuweka sehemu hizo mbili yaani kiuno Kwenda miguuni kwenye mfuko wake na kiuno Kwenda kichwani kwenye mfuko wake. Baada ya hapo wakaondoka na sikujua walikoelekea. Yeremia ni baba wa mtoto wangu na tulimuua mume wangu kwa kuwa alikuwa ananigombeza ndipo Yeremia alinishauri nimuue. Baada ya Yeremia kuondoka tuliendelea kuonana na kila nikimuuliza alikopeleka mwili wa marehemu, ananiambia amemtupa mbali kabisa. Ni hayo tu" Literally to mean: "On 3/11/2022 together with Yeremia Lahay, we attacked by an axe on the neck and killed the used to be my husband one Teobali Akwesso. I was the first to attack the deceased with an axe the Yeremia finalized on that day. We dug a pit and buried him at my home. On 5/11/2022, Yeremia came with a commercial driven motocycle with two bandits; they exhumed the deceased body and halved it, the part from the waist to the legs was put on one bag and the other part- from the waist to the head to the other bag. After that, they left and I didn't know where they were heading to. Yeremia is the father to my child and we killed my husband for he 17 she admitted to have killed her husband. I have no doubt that the statement was made by the said accused as a free agent, as it was made before familiar people and what was admitted at police the accused made it as a free agent. Further, the first accused person did not raise it that she was threatened or that she did not admit, instead she preferred to lie that there was no such a meeting. As to the other inculpatory circumstances, I wish to state that, the first accused person's demeanour contradicted her spoken words. In the case of Yasin Ramadhani Chang'a vrs. The Republic [1999] TLR 489 it was observed that: "Demeanor is exclusively for the trial court. However, demeanor is important in situation where from the totality of the evidence adduced, an inference or inferences, can be made which would appear to contradict the spoken words" When the first accused person was speaking of the torture by electric shock at the police station, did not lift her face. Also, when she was telling the court that she told the JP that she knew nothing about murder incident, she covered her face. The first accused person's demeanor explains that the first accused person was either lying or was not in harmony with what she was testifying. 22 In connection to the demeanor, the first accused person showcased two conflicting personas in her defence; that of a wife and at the same time that of a cold-hearted woman. She claimed to have participated in the search of her husband, but, this court was taken by surprise to hear that she had no duty to know the whereabouts of her husband. The two cannot co-exist, she will not be considered to care about her husband and at the same time she proclaims to have no duty to know the whereabouts of her husband. In addition, she deposed that she did not take part at a search for her husband and refuted the evidence that the villagers met to search for her lost husband. I am of the firm view that, oral confessions and the cited inculpatory facts corroborated the extra judicial statement. The Court of Appeal in Paschal Kitigwa v. R., [1994] TLR 65 observed that- "Corroborative evidence may be circumstantial and may well come from the words or conduct of the accused. '' If the confession requires corroboration, then the conduct of the first accused in concealing the truth of the incident and in refuting that the villagers never met to search for her missing husband afford such 23 corroboration. The second accused was callous to her sudden disappearance of her husband. Should one be charged with murder when no body is discovered? To prove murder as stated above, the prosecution has to prove that a person alleged killed is actually dead. In the present case, the prosecution alleged that Gwandi S/o Axweso is dead. However, the prosecution did not produce the body of the deceased. It is settled in my mind that a deceased's body is a mere proof of a fact that the victim or person is actually dead and can be very useful in determining the cause of death and any possible link to the killer. But the production of the deceased's body is not the only evidence to establish death and the cause of death. The court of Appeal observed in Leornard Mpoma v. R., [1978] LRT that- "... death may be proved by circumstantial evidence without the production of the body'� There is also no doubt that the cause of death may be established without medical evidence. See the case of Mathias Bundala vrs. Republic (Criminal Appeal No. 62 of 2004) 2007 TZCA 16 (16 March 2007) 24 seen alive. However, after some time one set of confirmed human remains were found at the village of the accused. The accused had persistently claimed that his father had travelled. In R. V. Mgumbo S/0 Bwanyigeta, like in the present case there was no proof that the remains were the accused father's body. I wish to insist that in the absence of the best evidence of death, death would be proved by circumstantial evidence or else crafty killers would get away with murder. The issue is therefore whether there is circumstantial evidence to establish that Gwandi S/o Axweso is dead. The prosecution seeks to rely on the first accused confession. The first confessed before the JP and orally before the villagers that she killed her husband. She confessed as free agent. There is no better evidence than that of the accused person who confessed provided he or she made the confession freely and voluntarily. The first accused explained how they killed Gwandi S/o Axweso and buried his body within their shamba. She further narrated how, after two days, the second accused exhumed the body, cut it into two pieces, loaded it to his motor cycle with help of other people she called thugs and moved it to the swamp "titio" at Dongobesh. The first accused stated that she did not know the exact place the body was left to decompose. 26