Judgment Peter Lameck 2

Page 1 of 14 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CRIMINAL SESSION CASE NO. 78 OF 2022 REPUBLIC VERSUS PETER LAMECK JUDGMENT Date of last order: 24/06/2024 Date of Judgment 05/07/2024 MWAKAPEJE, J.: The accused, Peter Lameck, is charged with Murder contrary to sections 196 and 197 of the Penal Code, Cap.16. R.E. 2022. It is alleged that the accused, on 22nd March 2021, at Bwina Village within the District of Chato in Geita Region, did murder one Isasizye d/o Mwinula. On 25th July 2022 when the information was read over to the accused person, he entered a plea of guilty. Nevertheless, in light of the serious nature of the capital offence with which the accused is charged, the prosecution prayed for the case to be heard on its merits, leading the court to record a plea of not guilty. In attempting to prove the charge, the prosecution called six witnesses and tendered the Extrajudicial Statement, Caution Statement, and Post-mortem Examination Report as exhibits PE1, PE2, and PE3, Page 2 of 14 respectively. Briefly, the prosecution witnesses' testimony painted a grim picture of a tragic family saga. The accused and the deceased were close relatives; the accused referred to the deceased as his aunt. From birth, the accused had never known the warmth of his parents. His grandfather had informed him that his parents had passed away when he was still young, a misfortune he was told was caused by his aunt, Isasizye Mwinula, through witchcraft. The family tension escalated when the accused's son also passed away. In his grief, the accused became convinced that, indeed, his aunt was responsible for the deaths of his parents and his son. The pain of these losses and the belief in his aunt's malevolent influence festered within him, culminating in a burning desire for retribution. On the night of 22nd March 2021, at about 2000hrs, it is narrated that the deceased visited the accused person at his house while drunk, asking the accused if he was aware of the person responsible for the deaths of his son and parents and informing him that he was next in the line. The accused ignored her, believing her statement was out of her drunkenness. Nevertheless, at approximately 2100hrs, the accused left his house armed with a knife, driven by the intention to kill his aunt before she could harm him further. Upon arriving at her home, he found a hoe Page 3 of 14 at his aunt’s house and struck her multiple times. His aunt, grievously injured, fled to her neighbour Hatari Msimu's house, where she collapsed. The commotion woke up PW4, Getrude Petro, and PW5, Jackson Hussein, who heard someone shouting, "He is Peter, and he has murdered his aunt and urging the call the of the police!" PW4 and his family members rushed to open the door just to find the body of the deceased lying at their doorstep, with the accused standing nearby. PW5, who is about six paces from the house of PW4, also responded immediately to the screams and managed to secure the accused, who sat still with his weapon (hoe), never ran and was near where the deceased collapsed. He, therefore, tied him, and when inquired, he confessed to having killed his aunt for the misfortune he believed she had caused to his family members, including his father, mother and son. PW5 tied him with ropes until the village authorities and police arrived to arrest him. The autopsy done by PW6, Dr Hiten Rana, revealed that the cause of death was severe brain injuries consistent with the injuries inflicted on the head, chest, back, face, mouth, and right hand, as detailed in Post mortem Examination Report admitted as Exhibit P3. During the investigation, the accused confessed in both his extrajudicial statement and caution statement and never changed his former position as to his involvement in the killing of his aunt; both were admitted as exhibits PE1 Page 4 of 14 and PE2, respectively. He, in short, was self-confessed about killing his aunt, driven by anger and the belief that she was responsible for the deaths of his parents and his son. In his defence, the accused person reiterated that he had acted out of fear and anger, believing that his aunt intended to kill him as well as she did to his other family members. He further claimed that on the night of the incident, he went to his aunt's home to confront her about her repeated threats, which had haunted him for years. During the confrontation, he snapped and picked up a hoe, striking her more than ten times. His confession detailed the relentless attack, fueled by years of pent-up rage and sorrow. Now, against this background, the key issue for determination is whether the accused killed the deceased with malice aforethought. Before delving into deliberating on the issue raised, I must state that there were no eyewitnesses to the accused person striking the deceased. Therefore, it is imperative to determine definitively whether the accused person is indeed responsible for the death of Isasizye Mwinula. It is trite law that when the evidence is circumstantial, for one to be convicted, the same has to lead to none other than the accused in the commission of the crime. In the case of Samwel Marwa @ Ogonga vs The Page 5 of 14 Republic, Criminal Appeal No. 74 of 2013: Court of Appeal of Tanzania at Mwanza (Unreported), it was observed that: “To pin liability on the basis of circumstantial evidence, the evidence must lead to no other conclusion except that the accused is the person who committed the offence he is charged with. If the evidence is capable of more than one explanation, it does not meet the standard of proof set in this principle.” Also, conditions for grounding convictions were enhanced in the case of Mustapha Maulidi Rashidi versus The Republic; Criminal Appeal No 241 of 2014: Court of Appeal of Tanzania at Mtwara (Unreported), where it was stated that: “(i) In a case depending conclusively upon circumstantial evidence, the court must, before deciding upon a conviction, find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. (ii) It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. (ii) In order to ground a conviction on circumstantial evidence, it must be incapable of more than one interpretation.” Furthermore, in the earlier case Gabriel Simon Mnyele vs Republic (Criminal Appeal 437 of 2007) [2010] TZCA 97, it was said that: “It is common ground that for circumstantial evidence to found a conviction, it must be such that it irresistibly points to the guilt of the accused. From the authorities, we are settled in our minds that when Page 6 of 14 a case rests on circumstantial evidence, such evidence must satisfy three tests:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: (iii) the circumstances taken cumulatively, it should form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and none else.” In the present case, the accused himself admitted to beating his aunt and chasing her to PW4’s house. The deceased was found at PW4’s doorstep, and when PW4 opened the door, they discovered the deceased lying there. The accused was heard screaming, alarming the neighbourhood that he had killed his aunt and that the police should be called. Neighbours saw him standing beside the deceased’s body with a hoe in his hand, which he used to attack her. He openly informed his neighbours that he had killed his aunt. He was arrested at the scene and did not attempt to escape. Throughout the investigation, the accused consistently confessed to the crime, both to the police and to the justice of the peace. He never altered his statement from the very first day the murder information was presented to him on 25th July 2022. Even in his defence, he maintained his confession, admitting that he was the one who committed the act. The chain of evidence remains unbroken, as referenced in the case of Gabriel Simon Mnyele vs Republic (supra), and all incidents point solely to him. All in all, his statements to the police Page 7 of 14 and justice of the peace corroborate what was observed and heard by PW4 and PW5, as well as what he stated in court. Therefore, it is justifiable to conclude that the accused caused the death of Isasizya Mwinula, as all the facts unequivocally point towards him. Having established the culpability of the accused in the demise of the deceased beyond any reasonable doubt, the next pertinent question is to ascertain the presence of malice in the commission of said act. Typically, indicators of malice aforethought encompass the intention to end a life, the intent to inflict serious bodily harm resulting in death, premeditation of the fatal act, as well as the specific weapon and force employed in the execution of the deed as far as section 200 of the Penal Code, Cap 16 R.E. 2022 is concerned. These factors were expounded in the case of Enock Kipela vs The Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7 as referred to in the case of Mark s/o Kasimiri vs Republic (Criminal Appeal 39 of 2017) [2020] TZCA 170, where it was among other things, held that: "...usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained by various factors, including the following: (1) The type and size of the weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) part or parts of the Page 8 of 14 body or blow or blows are directed at or inflicted on; (4) the number of blows, although one blow may be sufficient for this purpose; (5) the kind of injuries inflicted, (6) the attacker's utterances, if any, made before or after killing, and (7) the conduct of the attackers before and after killing." [Emphasis supplied] Pursuant to the guidance mentioned above, I will now discuss the factors in question seriatim in relation to the issue at hand. To begin with the first, the accused himself admitted that on the night of the incident in question, he departed from his residence to the home of the deceased carrying a knife, despite his claim that he intended to engage in a discussion regarding the threats made by his aunt. This assertion aligns with his confession, extrajudicial statements, and testimony during cross- examination. However, upon arriving at his aunt's residence, he came across a hoe and proceeded to utilise it to harm the deceased. In violent situations, a hoe becomes a weapon if used with intent to harm, and the characteristics of a hoe make it capable of causing significant injury or even death, as was the case in the present case. Secondly, according to the evidence on record, the accused person struck the deceased with a hoe, causing her to run to the neighbours for help. He himself admitted that after the initial blows, the deceased fled towards the house of her neighbour, Hatari Msimu. Not satisfied with this, Page 9 of 14 he chased and continued to attack her with the hoe. The blows were so severe that he eventually screamed for help upon realising the helpless state of the deceased. In the current situation, while the precise magnitude of the force exerted by the accused using a hoe to inflict injuries on the deceased could not be determined, it was nevertheless substantial when targeted at the vulnerable areas of the deceased's body, i.e., the head, chest, and face, resulting in a fatal outcome. Thirdly, according to PW6 and Exhibit PE3, the Post Mortem Examination Report, the deceased was struck in multiple parts of her body, resulting in her tragic death. The summary report indicates the following injuries: a cut wound on the left chest measuring 10x2 cm, a horizontal cut wound on the left side of the upper lip, two cut wounds on the left side of the head measuring 3x1 cm and 9x1 cm, a cut wound on the back of the skull measuring 5x2 cm, an open fracture on the back of the skull measuring 3x3 cm with brain material exposed, and bruising on the right side of the face. Ultimately, the cause of death was determined to be a severe brain injury, also known as traumatic brain injury (TBI). According to the Merriam-Webster Medical Dictionary (2006), TBI is defined as an injury to the brain that results in significant impairment of neurological functions caused by external forces such as a violent blow or jolt to the head or body or a penetrating injury to the brain. Considering Page 10 of 14 the Post-Mortem Examination Report and the evidence on record, it is evident that the deceased suffered multiple injuries, with the brain being the most severely affected. Fourthly, examining the parts of the body where she was struck and the nature of the wounds, it is evident that she received numerous blows. The accused stated that he initially hit her at her house, and when she ran, he pursued her until she collapsed. He admitted that the blows he inflicted would have caused her severe pain. In his caution statement, he confessed to hitting her more than ten times. This is corroborated by the Post Mortem Report, which indicates that the deceased sustained many blows, not just one or two. Fifthly, as stated, the deceased suffered injuries to various parts of her body, including the head, back, chest, hand, face, and mouth. In my humble opinion, the variety and distribution of these injuries suggest a violent and traumatic event, potentially involving multiple impacts or forces applied by the accused person. The pattern and location of these wounds indicate a sustained and brutal attack rather than a single incident. The injuries to critical areas such as the head and chest imply a deliberate attempt to inflict maximum harm. Additionally, the presence of defensive wounds on the hands suggests that the deceased attempted to shield herself from the blows. The combination of these factors strongly Page 11 of 14 supports the conclusion that the deceased endured a prolonged and vicious assault. Sixthly, when the accused struck the deceased with the hoe, the commotion awakened the neighbours (i.e., PW4 and PW5). They were roused by the sound of someone screaming for help, specifically stating that he was killing his aunt and urging them to call the police. Responding to this alarming cry, the neighbours hurried to the scene, only to find the accused standing near the body of the deceased, still holding the hoe he had used in the attack. This horrifying sight left no doubt that the accused was the perpetrator of the violent act. The neighbours' prompt arrival and their subsequent testimonies further corroborate the sequence of events and the accused's culpability in the brutal assault on his aunt. Lastly, in his own testimony, the accused stated that after having dinner with his wife, he left their home and went to his aunt’s house. He carried a knife with him because he was purportedly deeply troubled by his aunt's words, which suggested he would be the next to die after the deaths of his son and parents. Driven by anger and fear, he confronted his aunt, and in the process, he began shouting that he was killing his aunt. Following the violent attack, he remained at the crime scene, seated and showing no intent to flee, where he was subsequently arrested by the authorities. Page 12 of 14 In my humble opinion, this behaviour of the accused person demonstrates a disturbing sense of satisfaction and resolution. His actions imply that he believed he had achieved a form of justice or retribution by killing the person he perceived as wishing him harm. His willingness to stay at the scene of the crime suggests he felt his mission was complete and that he had successfully eliminated the threat posed by his aunt. This chilling sense of accomplishment underscores the premeditated and deliberate nature of his actions. From the foregoing discussion, it is evident that there is no element of the accused being provoked. In the case of Saidi Kigodi @ Side vs Republic (Criminal Appeal 281 of 2009) [2011] TZCA 137, it was stated on provocation that: “We are of the firm view that the defence of provocation is available to a suspect who kills at the spur of the moment, in the heat of passion, before he has time to cool down.” [Emphasis supplied] From 2000hrs to 2140hrs, the accused person had ample time to cool off from the moment his aunt made the troubling remarks, if indeed she did, to the time he decided to act on his intentions. This cooling-off period clearly indicates that the actions by the accused person were premeditated. In my opinion, the accused harboured malice aforethought in the killing of his aunt, motivated by his belief that she was responsible Page 13 of 14 for bewitching and causing misfortunes to his family, which, according to him, resulted in the deaths of his loved ones. This court of law cannot condone such an act of killing another person based on witchcraft beliefs. The rule of law must prevail over superstitions and personal vendettas. The accused, in his caution statement, admitted that his other relatives were aware of his belief that his aunt had bewitched his son and parents. Furthermore, during cross-examination, when asked if there were other means to resolve the matter, he acknowledged that there were indeed alternative ways to address his grievances. To me, this admission highlights that the accused had options to seek resolution through lawful and non-violent means, yet he chose the path of brutality. His decision to take the law into his own hands, driven by unsubstantiated beliefs and malice, is both unlawful and morally reprehensible. The premeditated nature of his actions, coupled with his refusal to explore other avenues for resolving his concerns, underscores the gravity of his crime. In the end, I am convinced and not hesitant to state that the accused person has been proven to have killed the deceased, Isasizya Mwinula, with malice aforethought, and the same has been proved beyond a reasonable doubt in accordance with section 200 of the Penal Code Cap. 16 R.E. 2022. I, therefore, proceed to convict the accused