R Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT SINGIDA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 27 OF 2023 THE REPUBLIC VERSUS MAHIDI MAGANGA………….….……………………………...……………..ACCUSED JUDGMENT Date of last Order: 01st July, 2024. Date of Judgment: 12th July, 2024. E.E. KAKOLAKI, J. The accused person herein Mahidi Maganga charged of Murder; Contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2022], is accused to have murdered one Makani Edward on the night of 02/05/2022 at Mauki village, Rungwa ward within Manyoni District in Singida Region, when attacked him with machete. Briefly it was prosecution case through PW1, PW3 and PW4’s testimonies that, prior to the deceased’s attack by machete at his home on the night of 02/05/2022, a meeting was convened at Maganga family’s home whereby family members discussed as to who was responsible for death of their relative one Juma Maganga who passed away at Katavi on the 1 01/05/2022 and buried at Mauki village on the same day of 02/05/2022, before it was concluded that, the deceased Makani Edward was responsible for bewitching him. It is also alleged in that meeting an ultimatum was entered to execute him, the result of which soon thereafter was invaded and cut with machete on his head, back, face and hands to death. Following that killing a report was made at police and team of investigators including officers from the Regional Crime Officer (RCO) for Singida Region and Itigi Police Station led by ASP Gabusa, headed to the scene of crime on the same night and arrived in the morning whereby an investigation of crime was mounted after observation of the deceased body including interviewing different people. It was in that course an informant disclosed to them of the involvement of Maganga’s family in that murder whereby one Bukwelu Maganga and his fellow Lufunga Charles were arrested in connection with the said murder in which upon interview Bukwelu Maganga admitted to have knowledge of the plot to murder the deceased while mentioning his bothers Mahidi Maganga (accused) and Mzalendo Maganga (who is at large) to have been his executors who thereafter fled from the village to Tabora to their relative to avoid being arrested, before the police team traced and arrested the accused Mahidi Maganga at Igunga with the aid of Ramadhani Hamis 2 Mihambo (PW1) and brought him back to Itigi Police Station. It is alleged further when arrested at Igunga, the accused Mahidi Maganga recorded his caution statement (exhibit PE2) before D/Sgt. Raphael (PW2) confessing to have killed the deceased. In the course of investigation also a doctor from Rungwa Health Center was called, examined the deceased body at the scene of crime and prepared a Report on Post Mortem Examination (exhibit PE1) establishing the cause of death to be due to Severe brain injury. A sketch map of the scene of crime (exh. PE3) was then drawn by G. 245 D/Cpl. George (PW4) in which at the conclusion of investigation the accused person was arraigned before the District Court of Manyoni together with Lufunga Charles for Murder offence as hinted above, while Ramadhan Hamis Mihambo facing a charge in the same court of Aiding a suspect to flee from hands of justice. It appears the accused Lufunga Charles had his charges terminated by the prosecution. When the accused person was called to answer his charge he flatly denied all the accusations levelled against him, disclaiming to have caused deceased death as on the fateful day he was at their family home mourning death of his young brother Juma Maganga whom as hinted above died at Katavi on 01/05/2022 and buried in the village on 02/05/2022 before they heard a hue at about 21.00 hours coming from deceased’s home who was also their brother in law only to find him killed 3 and that later on attended his burial, before he later left to Igunga on 06/05/2022 to sell his cattle where he was arrested on 08/05/2022, brought back to Itigi and later on indicted with murder. As he denounced the accusation against him, the prosecution called in Court four (4) witnesses to prove their case against him and relied on three (3) exhibits as mentioned above. The prosecution team was led by Mr. Almachius Bagenda assisted by Mr. Hussein Mkeni and Anyimike Mwamsiku, all learned State Attorneys while the accused’s defence marshalled under learned advocate Mr. Cosmas Luambano. After closure of the defence case both parties indicated their willingness not to make closing submission hence prayed the court to proceed preparing its judgment basing on the evidence in record. Having considered both parties evidence which I am not intending to reproduce in wholesome but the relevant parts only when addressing issues herein, the main issue pending for determination before the Court is whether the prosecution has proved the offence of Murder against the accused person as charged under sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2022]. Section 196 of the Penal Code, which essentially creates an offence of Murder provides and I quote: 4 196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. From the above exposition of the law, for the accused to be found guilty of the offence of murder, three ingredients must be proved. One, whether the person claimed to have been killed is actually dead and his/her death is unnatural. Second, whether the accused person(s) is /are responsible for his/her death and third, whether the alleged murder was actuated with malice aforethought. This Court is therefore enjoined to address whether the three ingredients have been established by the prosecution in this matter. But before delving into discharge of that noble duty, it is imperative that I revisit the principles guiding proof of criminal matters. It is a common law under section 110(1) and (2) and 112 of the Evidence Act, [Cap. 06 R.E 2022] that, whoever alleges existence of any fact and calls the Court to enter judgment in his favour has to prove existence of that fact and the burden of so proving lies on him. Further to that section 3(2)(a) of the Evidence Act sets the standard of proof in criminal matters to be that of beyond reasonable doubt. The burden of proof never shifts unless otherwise provided by statute or any other written law. It is so since suspicion alone is not sufficient to prove accused’s guilty, more so in serious offence such as murder. See also the cases of Mohamed Said Matula Vs. R [1995] T.L.R. 3 (CA) and Nathaniel Alphonce Mapunda 5 and Another Vs. R, (2006) TLR 395. It is it also trite law that, the accused has no duty of proving his innocence but rather raising doubts to the prosecution case. See the case of Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, (CAT-unreported). It is so as conviction will never be premised on weakness of defence case but rather strength of prosecution case. See the cases of Mohamed Haruna @ Mtupeni and Another, Criminal Appeal No. 259 of 2007 (CAT-unreported). With the above principles in mind, I now proceed to address the main issue by examining the evidence as submitted by the prosecution to see whether has managed to prove beyond reasonable doubt that Makani Edward is dead and died of natural death and that, it is the accused person who murdered him with malice aforethought. By so doing I will start with the first ingredient as to whether the said Makani Edward is dead and if so his death was unnatural as alleged. In this issue the prosecution relied on the evidence of PW2 the police officer from Singida RCO’s office, PW3 the doctor from Rungwa Health Centre and PW4 the investigator of the case as well as the Report on Post –Mortem examination of the deceased body (exhibit PE1). It is was in PW3’s evidence that, on the 03/05/2022, he was asked by the police officers to conduct autopsy to the deceased’s body and called at the scene of crime. He said, the body was identified to him by his relatives Holo and Mwasiti as that of Makani Edward @ Mwanza 6 and that, he observed cut wounds on his face and chin caused by sharp object and another on the rear part of the head caused by blunt object. Other cut wounds according to him were found on the right hand and back side suggesting to have been caused by sharp object. He concluded in his testimony that, deceased death resulted from Severe Head Injury. His evidence is corroborated by the Report on Post-Mortem examination of the deceased body (exhibit PE1) prepared by him with the same observations on the wounds sustained by the deceased and the cause of death. Further corroborative evidence is found in the evidence of both PW2 and PW4 who attended the scene of crime and observed the cut wounds on the deceased body. From their evidence this Court is satisfied that, the deceased Makani Edward is actually dead and his death is unnatural for being cut with sharp object and hit on his head with blunt object, hence the findings that the 1st ingredient is established by the prosecution beyond reasonable doubt. Next for determination is the 2nd ingredient as to whether the accused person is responsible for the deceased’s death. From the evidence adduced in court it appears to me that, the prosecution is relying on accused person’s confession as obtained from his caution statement tendered by PW3 and admitted without objection as exhibit PE2 and 7 circumstantial evidence on his conducts allegedly after commission of an offence as adduced by PW1, PW3 and PW4. To start with accused’s confession during the trial D/Sgt. Raphael (PW2) informed the Court on how on the night of 02/05/2022 was instructed by the RCO for Singida Region to join efforts with the police officers at Itigi Police Station within Manyoni District to investigate murder incident that had happened in Rungwa village, Mauki suburb within Itigi area whereby in company of Cpl. Ismail also from the RCO’s office joined the Itigi investigation team under ASP Gabusa and went to the scene of crime with other officer after briefing with him. He said at the scene they observed deceased body and interrogated several people and in that course one informant informed them of the involvement of Maganga’s family in executing the deceased basing on superstitions beliefs after convening a meeting and concluded that, he was responsible for bewitching and causing death of their relative one Juma Maganga who had died at Katavi on 01/05/2022 and buried in the village on 02/05/2022. It is through that information this witness testified, one Bukwelu Mangaga who allegedly attended the said meeting was arrested as Mahidi Maganga and Mzalendo Maganga who executed the deceased with machete as per the information obtined had fled from the village. According to PW2 upon interrogation with the said Bukwelu it came into their light that, one of the said two 8 attackers Mahigi Maganga had hidden at Tabora to his relative one Ramadhani (PW1) whom they had to pursue and arrest at Tabora town on the night of 06/05/2022 led by the said Bukwelu. And that the said Ramadhani (PW1) admitted to have received Mahidi Maganga at his home and assisted him to register a new phone number using his NIDA identity card in a bid to disguise his identity before he left to Igunga where he took hide at his uncle. He told the Court that, with assistance of the said Ramadhani under superintendence of ASP Gabusa they managed to trace and arrest the accused Mahigi Maganga at Igunga in a village on 08/05/2022 at about 14.30 hours before they took him Igunga police station whereby ASP Gabusa ordered him to record his caution statement the order which he complied with as the recording started at 16.00 hours and ended at 18.00 hours, when they left with the accused and PW1 to Itigi via Singida where he dropped as the said statement was handed to ASP Gabusa. This witness who said when said caution statement was recorded the accused was in good health with no injuries tendered it in Court as exhibit PE2 without objection from the defence after he had informed the Court on how the same was taken in observance of accused rights. PW2’s version on the arrest of the accused person at Igunga is corroborated by PW1 who informed the Court on how he received the 9 accused person Mahigi Maganga whom they had known each other three years back before the arrest and that, he was requested by him to register for him a new phone number using his NIDA identity the request which he heeded to after he was informed by him that he (accused) together with his brother Mzalendo had killed their bother in law Makani Edward. And that he was arrested on the night of 06/05/2022 by the police officers from Itigi whom he led to Igunga where the accused had taken hide and finally was arrested and together with him taken to Itigi and later he (PW1) was charged of Aiding the suspect of murder to flee from hands of law, convicted and sentenced to pay fine which he managed to pay. On the arrest of Bukwelu and leading the police team to Tabora to trace Mahidi who had fled from the village PW2’s story was corroborated by PW4 who confirmed that, on the 06/05/2022 the police team of investigators led by ASP Gabusa, with aid of Bukwelu left Itigi to Tabora to search for Mahigi. It is also this witness who informed the Court that, while at Itigi Police Station when ASP Gabusa came with the accused Mahidi Maganga he received his caution statement and kept it in the police case file and that, he went further to interrogate him orally of his involvement in the murder of Makani Edward, whereby the latter confessed to have killed him. And when cross examined as to who was arrested first at the scene of crime this witness made it clear that, it was 10 Bukwelu Maganga and Lufunga Charles as Lufunga remained at the Police station when Bukwelu accompanied the investigation team to Tabora. In his defence the accused person (DW1) denounced the allegation of fleeing from the village soon after the incident of Murder of Makani Edward on the 02/05/2022 whom he identified as his bother in law and that he did not kill him. He testified that, on the said night of 02/05/2022, while at home mourning his bother Juma Maganga buried on the same day, having received information of the killing of Makani Edward, like other mourners attended the scene of crime where he stayed till next day morning and awaited for the investigation procedures to be completed and the burial conducted before he went back home to continue mourning his brother’s death and spent two days there before he left for Igunga to sell his cattle that were under care of his uncle one Tungu Luhende where he was arrested on 08/05/2022 at 14.00 hours and taken to Igunga Police station. According to him, they reached at Igunga Police station at about 16.00 hours and stayed there up to 18.00 hours before they left for Itigi without recording his statement and arrived at Itigi Police station at about 21.00 hours where he was interrogated concerning murder incident of his brother in law Makani Edward but denied any knowledge. He denied any knowledge of Ramadhan Hamis Mihambo (PW1) before or to have passed at his home Tabora allegedly on route to Igunga. This witness told the 11 Court that, following his denial of the accusations was subjected to torture with serious beatings using hoe stick handle (mpini wa jembe) and sustained serious injuries on his both legs. He showed to the court a big scar on the lower part of his right foot. Due to continued beatings he said some papers were brought to him and forced to sign them in which he complied with. Generally he denied any knowledge of the contents of the said caution statement (exh. PE2) for being obtained involuntarily. When cross examined as to whether there was a reason for PW3 to testify lies against him on the fact that, he fled soon after the incident of murder and that he was not in the village on 03/05/2022, DW1 said there was none. And further on torture as to whether there was a documentary proof of his assertion that he sustained the alleged injuries during the recording of exhibit PE2, he said had none. From both parties evidence there is no dispute that the accused person was arrested at Igunga on the 08/05/2022 at 14.00 hours and taken to Igunga Police Station where they arrived at 16.00 hours and left for Itigi on the same date at 18.00 hours. What remains in dispute is the issue as to whether he recorded the said caution statement while at Igunga and not Itigi as claimed him and whether it was made involuntarily? On the issue as to whether it was recorded at Igunga Police Station and not Itigi Police Station, I find the accused’s contention that it was made at 12 Itigi Police station though involuntarily to be an afterthought. I so do as that fact of torture being so vital and effecting evidential value of the said exhibit PE2, the same ought to have posed to the witness PW2 for his clarification or raised before admission of exhibit PE2. It is a trite law that, failure to cross examine the adverse party connotes nothing than admission of the evidence adduced by him/her. This sound principle of law finds refuge in plethora of authorities including the cases of Nyerere Nyague Vs. R, Criminal Appeal No. 67 of 2010, Martine Misara Vs. R, Criminal Appeal No. 428 of 2016, Ismail Ally Vs. R, Criminal Appeal No. 212 of 2016 and Sebastian Michael & Another Vs. The Director of Public Prosecutions, Criminal Appeal No. 145 of 2018 (CAT- unreported). In the case of Martine Misara (supra) the Court of Appeal held thus: ’’It is the law in this jurisdiction founded upon prudence that failure to cross-examine on a vital point, ordinarily, implies the acceptance of the truth of the witness evidence; and any alarm to the contrary is taken as an afterthought if raised thereafter. See: Dam ian R uhele v. R epublic, Criminal, Appeal No. 501 of 2007, Cyprian Athanas Kibogoyo v. R epublic, Criminal Appeal No. 88 of 1992, George M aili Kem boge v. R epublic, Criminal Appeal No. 327 of 2013, Nyerere Nyague v. R epublic, Criminal Appeal No. 67 of 13 2010 and I sm ail Ally v. R epublic, Criminal Appeal No. 212 of 2016 (all unreported).’’ Applying the above principle in the circumstances of this case, since the accused failed to cross-examine PW3 on such important fact, he is estopped to bring such contention at this hour that, his statement was not recorded at Igunga Police Station but rather at Itigi Police Station as this Court draws an inference hence a conclusion that, it was recorded at Igunga Police Station as deposed by PW3 in his evidence. On similar vein I also find to be an afterthought appellant’s claim the cautioned statement (exhibit PE2) was obtained involuntarily after being subjected to torture. I so find as confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, that it was either not voluntarily made or not made at all. See the cases of Twaha Ali and 5 Others Vs. R, Criminal Appeal No. 78 of 2004, Paul Maduka and 4 Others Vs. R, Criminal Appeal No. 110 of 2007, Sulemani Hassani Vs. R, Criminal Appeal No 364 of 2008 and Nyerere Nyague Vs. R, Criminal Appeal No. 67 of 2010, (All CAT-unreported). If an accused intends to object to the admissibility of a statement/confession, must do so before it is admitted and not during cross examination or during defence. See the case of Nyerere Nyague (supra). In this case since the accused failed to challenge admissibility of 14 the caution statement during its admission stage he is estopped to raise it now as this Court is satisfied that, exhibit PE2 was obtained voluntarily and I so hold. Having so found the next issue for determination is whether accused confession obtained through exhibit PE2 can safely be used by the Court to base conviction on the charge of murder facing him. As a matter of law a conviction cannot solely be based on repudiated/retracted confession of accused person as it is desirable for the Court to look for corroborative evidence before acting on it to his detriment. See the case of Dickson Elia Nsamba Shapwata and Another Vs. R, Criminal Appeal No. 92 of 2007(CAT-unreported). However, the settled law now is that a conviction on a retracted uncorroborated confession is competent if the court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot but be true. See the case of Hatibu Gandhi and Others Vs. R [1996] TLR 12 (CA). In this case as found above the accused’s repudiation or retraction of exhibit PE2 during his defence is an afterthought hence the same cannot be said to have either been repudiated or retracted. Despite of that fact I find it unsafe to rely on it to base accused’s conviction without establishing first whether what is contained therein is nothing but the truth, the duty which I am now embarking on to discharge. What is discerned from exhibit 15 PE2 is the narration of accused person’s life history, when did execute the deceased person after the plan was set in the family meeting held at their home and the reason for such killing as well as to how he fled from the village and assisted by PW1 to register new phone number in a bid to disguise his identity before he took hide at the traditional healer at Igunga, where he was arrested and later on recorded his statement while at Igunga Police Station. He said on the 02/05/2022 after burial of his young brother Juma Maganga as a family convened a meeting attended by Mzalendo Maganga, Bukwelu Maganga, Lufunga Charles, Bundala Maganga, Mahidi Maganga (himself), Nyamizi Maganga and Sana Maganga, whereby a discussion was on who was responsible for witchcraft practices in their village. They concluded that it was Makani Edward who was also responsible for bewitching their father and his bother one Juma Maganga who had passed on at Katavi and buried in the village on 02/05/2025, hence should be killed. It was in that meeting the narration continues the accused and one Luvinga Charles promised to execute the plan as there was no need of spending money to hire the murderer. It is narrated further that, on the evening of that day of 02/05/2022 while holding his machete and Luvinga possessing a stick went at the deceased place whereby found him outside before the accused attacked him with machete on head, face and his back and the two disappeared until when 16 sometimes later on he heard a hue coming from there but he never went back to witness what had happened. He said, afraid of being arrested on the 03/05/2022 he fled to Tabora to one Ramadhan Hamis @ Mihambo (PW1), his relative and informed him of what had happened while asking his help including facilitation of registration of new phone number in which he agreed and used in NIDA identity card to register it before he moved to Igunga to the traditional healer one Tungu where he was arrested on 08/05/2022 and recorded his caution statement while at Igunga Police Station. With the above narration which I find to be so detailed on how the said murder was executed and the motive behind it, I believe the same could not come from any other person than the accused person who had knowledge of what happened, hence satisfied and proceed to make a finding that, the confession contains nothing but the truth. It is settled law now that the very best of witnesses in any criminal trial is an accused person who confesses his guilt. See the case of Paul Maduka and 4 Others (supra). In the present case since the accused person confessed in his caution statement to have killed the deceased using his own machete, I find he is responsible for the deceased death. I so find as his confession is corroborated by his conduct of fleeing from the village soon after commission of an offence which confesses too for fear of being 17 arrested, the evidence which is corroborated by evidence of PW1 who confirmed to have received him at Tabora before he went to Igunga to take hide after being assisted to change even his phone number. On corroborative evidence based on accused conduct, I find solace in the decision of the Court of Appeal in the cases of Pascal Kitigwa v Republic (1994) TLR 65 and Mboje Mawe and 3 Others, Criminal Appeal No. 86 of 2010 (CAT-unreported) where the Court observed that, corroborative evidence may be circumstantial and may as well come from the words or conduct of the accused. The 2nd ingredient and issue I find is answered in affirmative. Lastly for determination is whether the accused executed the said murder with malice aforethought. Circumstances under which malice aforethought can be inferred is illustrated in section 200 of the Penal Code and it includes accused’s intention to cause death or grievous harm to a person whether such person is dead or not. In the present case it is deduced from accused own confession that, before executing the deceased on 02/05/2022 a family meeting was convened and plotted to kill him believing to have been involved in witchcraft practices. The act of convening and meeting and plotting to kill the deceased on belief of bewitching their family members including their father and late Juma Maganga who died at Katavi and buried in the village on 02/05/2022, the 18 plot which was executed by the accused himself on the night of the same date, no doubt is a conclusive evidence that the killing was actuated with malice aforethought and I so find. Thus the 3rd ingredient is established and issue is answered in the affirmative. The three ingredient having been established, I find the prosecution has proved their charge beyond reasonable doubt hence the accused person is guilty of the offence charged with. I therefore proceed to convict him with the offence of Murder, contrary to section 196 and 197 of the Penal Code, [Cap. 16 R.E 2022] as charged. It is so ordered. Dated at Dodoma this 12th day of July, 2024. E. E. KAKOLAKI JUGDE 12/07/2024. SENTENCE The accused has been convicted with both counts of murder. The law is settled that, once the accused person is found guilty and convicted of Murder the only prescribed sentence is death by hanging. In this matter since the accused person Mahidi Maganga is convicted of Murder, I hereby 19 sentence him to suffer death by hanging as provided under sections 197 of the Penal Code, [Cap. 16 R.E 2022]. It is so ordered. E. E. KAKOLAKI JUGDE 12/07/2024. Court: The Judgment has been delivered at Dodoma via video conference today on 12th day of July, 2024, in the presence of the accused in person and their advocate Mr. Cosmas Luambano, advocate for the accused person, Mr. Almachius Bagenda, State Attorney for the Republic, all appearing from Singida and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 12/07/2024. 20