Republic vs Mapela Mayunga Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA CRIMINAL JURISDICTION SITTING AT MPANDA CRIMINAL SESSION NO. 85 OF 2022 REPUBLIC VERSUS 1. MAPELA S/O MAYUNGA rV 2. WILLY S/O LISA @ LUKABA JUDGEMENT MWENEMPAZI, J In the vast and rugged terrain 6fT the Miele District in Katavi Region, a tragic incident unfolded on the l7Lh day of February 2022, shattering the serene tranquility of the Big Game Reserve Area. The deceased, James Chacha Kalomba, a dedicated game ranger known for his unwavering commitment to wildlife conservation, met a grim fate at the hands of assailants whose identities would send shockwaves through the local Sukuma pastoralist community. 1 Among those implicated in this heinous crime were two individuals whose names echoed through the hills and plains of Miele. The culprits were named to be Mapela Mayunga and Willy Lisa @ Lukaga. These men, known for their intimate knowledge of the land and the herds that graze upon it, found themselves thrust into the centre of a murder investigation that gripped the region. Their arrest marked a turning point in the case, a moment where the delicate balance between, human livelihoods and wildlife preservation collided in tragic circumstances,' Mapela Mayunga (later to be addressed, as' DW1) recognized for his skill in navigating the intricate paths of pastoralist life, and Willy Lisa (to be addressed as DW2), a figure whose presence resonated deeply within the Lukaga community, suddenly found themselves entangled in a web Of suspicion.and accusation. The implications of their alleged involvement in the murder of the deceased were profound, stirring emotions of disbelief and sorrow among those who knew them. As the' investigation unfolded, questions loomed large over the motivations behind such a violent act and the implications for the delicate ecosystem that the deceased had dedicated his life to protecting. The intersecting narratives of human existence and wildlife preservation came 2 sharply into focus, revealing complex dynamics of coexistence and conflict that defined life in the reserve and its surrounding areas. In the aftermath of this tragic event, the story of DW1 and DW2 became a poignant reflection of broader issues facing communities living at the interface of conservation and livelihood. Their journey through the justice system would not only test the limits of local law enforcement but also raise fundamental questions about the future of conservation, efforts in Tanzania and beyond. As I delve deeper into the events surrounding the murder of the deceased, the lives of DW1 and DW2 emerge as compelling narratives of human frailty and resilience against the backdrop of a majestic yet unforgiving wilderness. Their story serves as a stark reminder of the complexities inherent in the pursuit of justice and the preservation of natural heritage in a rapidly changing world.' Brief facts reading to the present case can be explained as follows. That on the 14th of February, 2022, the deceased together with Co-game warden and some Village Game Scout (VGS), were patrolling the Big Game Reserve area at Inyonga in which the deceased was the leader. As part of their responsibility, patrolling the reserved areas also aimed at 3 removing invaders who time and time again trespass to the reserved areas. What began as a routine patrol to safeguard the region's rich biodiversity, tragically culminated in a heinous act that would forever alter the lives of those involved. On the 17th of February, 2022 the deceased and one Village Game Scout (VGS) known as Corince Charles (PWl), were still patrolling the reserved area, they ran into the accused persons/grazing ''■'S’-. cattle herd, and they arrested them and tied up their hands and marched them to the camp. ' Upon marching towards the camp site/ the two murder culprits whose hands were tied up, managed to untie themselves and ran away; they then came back armed with sticks and attacked the deceased person by biting him unmercifully on different parts of his body, and the eyewitness the Village Game Scout (VGS) managed to escape on his heels to inform other rangers about the incident leaving the deceased being attacked by the culprits/’Thereafter, the culprits gathered their cattle herd and went away with them. The other game rangers after being informed about the incident, reported the event to the TAWA in charge and also to the Inyonga Police Station. Thereafter arrangements were made to go back to the scene of event. As 4 they reached at the area of the scene, they found the deceased has already lost his life, thus, the search for the culprits was initiated and they were caught and taken to Mpanda Police station and the body of the deceased was taken to Mpanda Referral Hospital. As the culprits were already apprehended, they were arraigned before this court for the offence of murder contrary to Sections 196 and 197 of the Penal Code Cap 16 as revised in 2022. Meanwhile^ it was. undisputed that the deceased is indeed dead, and the postmortem report which was tendered as exhibit and this court admitted it as Exhibit P4 revealed that death of the deceased was. due-to the. injuries on the head which was caused by being hit with a heavy, object leading to the fracture of the skull. When the information was read over to the accused persons, they protested against the charges and asserted their innocence. At the hearing of the case, Mr. Gregory Muhangwa learned State Attorney represented the Republic, Mr. Eliud Ngao learned advocate represented both accused person. As per Exhibit P4 which was tendered in evidence by PW7, MR. HIMERY ANDREA MSIGWA, medical expert it revealed that the deceased was indeed dead, that his skull was fractured and brain had spilled out and so 5 death of the deceased was due to the injuries on the head which was caused by being hit by a heavy object leading to the fractured of the skull. The scene of the crime was drawn by PW3, G.5483 D/Cpl. HAMAD and he tendered the same in evidence in which this court admitted it and marked it as Exhibit Pl. Now that the deceased has been confirmed to have losfthis life jn an unnatural way, the most important question is, whowasperpetrator and whether he had any malice aforethought, of which this was the duty of the prosecution side to prove that the accused -persons lined up as suspects to this scenario are the ones who have ended the life of the deceased maliciously. VV:. In the attempts..ipf furnishing their duty without leaving any stone unturned, the prosecution side summoned several witnesses including the only eye witness PW1, CORINCE CHARLES KAPAMA who testified on the way the event happened as indicated in the brief facts hereinabove. Although his testimony varied to same extent with the brief facts. According to him after they had arrested the trespassers, in which the two suspects herein were among the offenders, they tied up their hands and started marching to where they had set a camp at a place known as "Kona Nne". But the herd of cattle were moving fast and the deceased told him 6 (PW1) to untie the suspects so that they would assist them in controlling the herd, and at the meantime, PW1 had to run ahead and stop the cattle from moving away from the herd. He added that, as he was about 100 metres away, heard an agony scream seeking help and as he glanced from the distance he was, he saw the suspects hitting the deceased with sticks on different parts of his body. He therefore ran towards him to help him, and he too was bitten by the culprits and the deceased flee away injured while having his weapon. PW1 too managed to escape and found his way to the other rangers and he informed them about the incident. When cross examined, PW1 insisted that the culprits untied themselves the ropes they tied up them with. And that he was about a distance of a football pitch when the assailants were assaulting the deceased person. Meanwhile, PW2, SUPERINTENDENT AMOS ARON only testified on what he was told that it happened at the Big Reserve Area, and that he had participated in the search of the deceased body, and the tools he had which were the GUN and the GPS Machine. He also testified that he was told of the suspects who were arrested and that he instructed his police officers to interrogate them. PW4, JAPHET KAROMBA WILBERT a relative of the deceased, testified that on the 18/02/2022 he received a phone call from his brother Gabriel 7 Chacha Karomba who told him that their relative JAMES CHACHA KALOMBA who was an officer of TAWA working at Katavi Region, Miele District has passed away. PW4 testified further that he too informed other relatives including EMMANUEL BILASAO who is also an officer of TAWA at Singida. At this juncture, it is notable that the prosecution case highly depends on the testimony of PW1 and the Caution Statements of the two suspects recorded at the Police Station. PW5, WP. 10523 D/C JENIVA AUGUSTINE DAUDI. She was ordered by her superior to record the statement of DW1 which was admitted in evidence as Exhibit P2. She testified: that, DW1 told her his name, tribe and his place of domicile. That he also told her about the family he has, that he has a wife and eight children. That he has attended school up to standard III but he doesn't know now to read and write. PW5 added further that, DW1 confessed to have committed the offence. She testified that, DW1 told her that he left for the game reserve looking for the place to graze his cattle. That, he was accompanied by Willy Lisa (DW2) and another person who is a child of Mwanakunju. That, when they were in the Game Reserve, they were arrested by one TAWA Officer and a village scout. That, after being arrested they were handcuffed and taken together with 8 their cows to a camp, but after walking for some time, they discussed that they ambush the soldier (TAWA Officer) who had a gun. That, they had the discussion after the handcuffs had been removed so that they can assist as there were many cows. PW5 proceeded that, DW1 narrated to her further that, the Village Scout known as Corihce had gone ahead of them to control the cattle, while he and DW2 had agreed on attacking the deceased, DW2 took a log and used it to strike the soldier (deceased) on the head and befell down and they continued assaulting him, meanwhile the .Village Scout ran away. That, they over powered the deceased and;.after severe assault, they carried him and abandoned him near a pond while the gun and the item like phone were thrown into the pond. PW6, WP 9800 D/CPL ELIZABETH who recorded the caution statement of DW2 which was tendered and admitted as Exhibit P3, testified that DW2 told her his name, age, tribe and residence and that he is a peasant but still lives with his parents as he is not married yet and has no child. She added that, DW2 told her that his biological father is Lisa Lukaga. She added that, DW2 narrated to her further that, on 03/02/2022 he was instructed by his father to take the cattle herd to their Lubaga, in the Inyonga Game Reserve. And in doing so, he communicated DW1 because 9 he too had plans to. take his cows to his Lubaga. Therefore,'they joined together and took their cows to Lubaga. That, as they were at the said Lugaga, they heard a knock, it was TAWA soldiers accompanied by the village Game Scouts (VGS), and that, they were arrested and placed under guard together with their cows. They were then handcuffed; then, the task was too much for the deceased and the VGS and therefore, the two suspects had to be uncuffed so that they may help to lead the cows to At’.)-,; the destination they were heading. ' ? The witness further testified that, DW2 told her. that they started to communicate in Sukuma language with DW1, arranging on how to escape; and they then decided to attack the deceased, in which he (DW2) took a stick and used it by hitting the deceased on the head, and he fell down while carrying a gun and gadget resembling a phone and by that time the VGS was leading the cows and after seeing the assault he ran away, Thereafter, they pulled the deceased dose to the water pond; and the gun he had was thrown into the pond, and they ran away, he finished by telling PW6 that, the event happened on 17/02/2022 and they were arrested the next day. In their defence, DW1 testified that on 17/02/2022 he was at home and at around 10:00am three people came in civilian attire and placed him ip under guard and arrested him. That, they told him to accompany them, and after a distant walk, they arrived where the car had been parked and they covered his eyes with a mask and took him to Inyonga Police station where he was remanded. DW1 testified further that, after a while, he was taken to another room which had three people who asked him if he knows how to read and write. He answered in a negative. One of the three left the room but he returned instantly holding papers and told him tosign. DW1 attempted to know what was written out they just-made him sign the papers. Thereafter, he was taken back to the remand where he stayed for two months and four days. . . i-, ■; <' •<; • - .7 i V; •; ' •! -rjiif. '••• DW1 proceeded by testifying that, on the day he was taken to court, another person was brought as his co-accused of which he never knew him before. DW1 said, while at the court is when he learnt of the offence he is being charged with, that they are suspects of a murder offence. When . cross examined, DW1 insisted that he does not know any game reserve as he: does not: own any cows or rather keep any livestock and that, he has stayed at Ilunde for five (5) years, and he does not know any person named Corince. He also stated that he does not know anything about the allegations he faces of murder and he prayed for this court to ii release him as he believes to be innocent. According to the witness he never confessed to have killed the deceased. DW2 testified that, on 17/02/2022 he was at his father's home just sitting shiftlessly. After a while, he decided to go to the center of the village, and he was arrested. He added that, he was arrested by people in civilian attire and he was taken to Inyonga Police Station where he was put in remand and later on taken into an interrogation room: V/hile in the room, he said, they asked his names and then one police officer left the room but came back with papers and asked him tosign.'DW2 did sign, and he was taken back in remand where he stayed for a long time approximately two months and five days. After staying for that period, he was then taken to court, where he was.joined: with a person he never knew before and the charges of murder was read to them although they were not told who they had murdered. When cross examined, DW2 said he knew DW1 from the date they met in court, and that he has never admitted to anyone that he has murdered the deceased. The present case, as demonstrated hereinabove is pegged on the testimony of the eye witness (PW1) whose testimony contradicted the fact of this case as narrated earlier, I will elaborate more on this. It also 12 depends on the accused persons' caution statements (Exhibit P2 & P3). The two statements were both admitted without objection, but they were later on retracted by the accused persons through cross examination and in their respective defence. An important question that has to be answered is whether, PWl's testimony can serve as corroboration to the purported confessional statements of the accused persons and if conviction can be based upon them without corroboration having being repudiated. . ""■V I will start with the testimony of PW1. It is true that in terms of the decision in Mohamed Said Matula vs Republic 1995 TLR 3 (CA) in which it was held that, where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter. In the brief facts which were read in court it was revealed that the assailants' hands were tied up after being arrested but they managed to untie themselves and ran away and returned instantly being armed with sticks and started beating the deceased person, and PW1 seeing what has 13 happened, he escaped on his heels and went to report the incident to other TAWA officers. This is contrary to the testimony of PW1. He firstly testified that they untied the accused persons so that they would help them in controlling the herds of cattle. And as he Was at a distance equivalent to the football pitch he saw the accused persons attacking the deceased, he went to assist him but managed to escape the culprits as he and the deceased went separate ways. -X' The brief facts and the testimony of PW1 already are inconsistent and contradict each other in which it piakes.me hesitate to rely upon the testimony of the said witness, as the contradiction is my firm holding that does go to the root of the matter, that what really happened at scene of crime. Nevertheless, assuming that the culprits untied themselves and that they had to fight for thd.ir freedom, and that PW1 went to assist the A..... < deceased, was it possible for him to escape the turmoil without being injured even slightly? To me that does not ring a bell in my mind. I therefore regard PWl's evidence as unreliable and completely worthless. In Shibobe Seni & Another vs Republic (1992) TLR 330 the Court of Appeal of Tanzania held that: - 14 "Once the confessions are repudiated, albeit during the defence stage the trial judge should suo motu check on their voluntariness, validity and/or seek corroboration thereof/' It is the principle as it has been decided in various decisions such as in the case of Zakayo Shungwa Mwashilindu & Two Others vs Republic, Criminal Appeal No. 78 OF 2007 (unreported), that it was WfeK ■ J/ too late for the accused persons to challenge their caution statements /ft (Exhibit P2 and P3) after the same were admitted without objection. The delay however, did not deprive the accused persons of their right to retract them through their defence, and that is what they chose to do. Therefore, having retracted their confessions, in practice, they require corroboration. And, neither of the confessions can corroborate the other. See: (John Cherehani & Another vs Republic, Criminal Appeal No. 189 of 1989 (Unreported) and Mkubwa Said Omar vs Mz (1992) TLR.365. In this case, both accused persons in their defence did testify that they were made to sign papers which were brought to them separately. Being under restraint and accusation of murder, the term "being made" could imply to many aspects in which makes me hesitate to rely on Exhibit P2 and P3 respectively. That snatches from the prosecution, whatever weight 15 deserved to be accorded by the court, to the said exhibits. This follows the decision in Stephen Jason & Others vs Republic, Criminal Appeal No. 79 Of 1999 (Unreported), in which the Court of Appeal held that: - "Where an accused claims that he was tortured and is backed by visible marks of injuries it is incumbent upon the. trial court to be more cautious in the evaluation and considerationbfthe cautioned statement even if its admissibility had not been objected to, and such cautionedstatementshould be given little ifnot, noweight at all." M1'1 In similar vein, I accord little weight to exhibits P2 and P3. That being the ,.A. case, as I earlier hinted, I hold that Exhibits P2 and P3 required corroboration before being acted upon, and PWl's testimony can not serve as corroboration for it is unreliable evidence. That leads me into holding that the prosecution side has not managed to prove its case beyond reasonable doubt against any of the accused persons. Both accused persons are hereby acquitted of the offence of murder under section 312 (3) of the Criminal Procedure Act. I proceed to order immediate release of both accused persons from custody unless they are held therein for other lawful cause. 16 It is ordered accordingly. Dated ajid delivered this 04th day of July, 2024.