Baton judgement clean

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT NJOMBE, CRIMINAL SESSION CASE NO. 70 OF 2019 THE REPUBLIC VERSUS BATON S/O MANGULA @ BARAKA S/O MANG'ITA..................... 1st ACCUSED AMIRI S/O PAMIKE @ MJAPANI..................................... ........... 2nd ACCUSED ODILO S/O MGAVILWA @ MKINGA............................................. 3rd ACCUSED JOSEPH S/O ROITA @ MENGO..................................................... 4THACCUSED JUDGMENT 27" June and Off" July, 2024 I.C. MUGETA, J: On 28/4/2017, Costa Pamike was brutally murdered. His wife Olipa Ngoda (PW8) watched helplessly as the murderer's axe cut deeply into the deceased's skull. The doctor who testified as PW9 confirmed the cause of death as excessive bleeding secondary to deep cut wounds. The report on postmortem examination was tendered as exhibit P7. Therefore, no doubt the deceased died unnatural death. Considering the weapon used and the body part where the axe blows were directed, definitely, the assailant had malice aforethought. The incident took place at night but according to Olipa she identified the two murderers due to light from a solar lump in the room. One of Page 1 of 9 them, she testified, was Odilo Mgavilwa (the 3rd accused person) with whom she was familiar. She was not familiar with the second one but she noted his face and on the identification parade held on 18/5/2017, she identified him and he is the 1st accused person. Following this murder, the accused persons are charged with murder contrary to section 196 and 197 of the Penal Code. In the charge sheet it is stated that the incident occurred at Uhuru village, Ikuna Ward. The first accused person, per the evidence of Yesaya Sudi (PW1), was arrested upon a tip from an informer that he is one of the murderers. The evidence to prove the allegations against him is that of Olipa Ngoda who saw him at the crime scene by aid of light from a solar powered lump. It is settled that visual identification is the weakest evidence. Therefore, visual identification of a stranger evidence can only have probative value if corroborated with a valid identification parade. An attempt to tender the ID parade was made by ASP. Raphael Bernard Mlangwa (PW10). However, it was rejected on procedural irregularities. Therefore, there is no evidence that the 1st accused person was at the scene of crime as the evidence of Olipa falls short of acceptable criteria of a correct identification of a stranger for want of identification parade. Page 2 of 9 The caution statement of the 1st accused was admitted as exhibit P6. In that statement, the 1st accused admits to kill the deceased while in the company of the 4th accused person. I have considered this statement in light of the evidence of Olipa Ngoda that the 1st accused person was with the 3rd accused. It is my view that the statement and the evidence of Olipa contradicts. Therefore, either the statement is false or Olipa Ngoda lied. This contradiction is irreconcilable and as the rule goes, the contradiction ought to be resolved in favour of the 1st accused person. I find him not guilty. The 2nd accused person is brother of the deceased. He is charged because Olipa Ngoda testified that she saw him at the scene of crime outside the house under a tree. In his defence the 2nd accused,challenged the evidence of Olipa Ngoda as a lie. Firstly, because she did not mention him as a murderer to the children who opened the door of the room in which she had been locked and restored her to liberty. Olipa testified that the murderers had locked her in a room and she yelled for help and her children who slept in a nearby room came to help her. Indeed, in her evidence she did not testify to have told those children who the murderer was. Page 3 of 9 Secondly, that she did not name him to the village chairman Ahazi Kihombo who was one of the first persons to arrive at the scene of crime. Her evidence and that of Ahazi Kihombo (PW6) is similar on when she named the suspects. Ahazi, who is the Ikuna Village chairman, testified that on arrival at the scene of crime, he asked Olipa if she knew the murderers and she replied by making a yes nodding of the head without mentioning them. This was around 02:00 hours. However, she mentioned the murderers in the morning before the police in the presence of Ahazi Kihombo. The prosecution has argued in the final submissions that this was for security reasons. Indeed, Ahazi Kihombo testified to that effect without mentioning the security threat concerned after testifying that on his arrival he found many other people at the scene of crime. This reason lacks credence since a lot of people had arrived at the scene when Ahazi arrived. Therefore, the complaint of the 2nd accused is true. There is no evidence that Olipa Ngoda mentioned the identified murderers to the earliest responder to her yell/call for help. The explanation for the delay is untrustworthy. In his defence, the 2nd accused also testified that he participated in the burial of his brother. That he stayed at the deceased's residence Page 4 of 9 mourning the loss from 28/4/2017 - 1/5/2017 when he left for his residence at Lole Village. He disputed the evidence of PW7 (CpI. Amos) who investigated the case that he escaped from the village. The evidence of CpI. Amos that the 2nd accused person escaped is a general statement. He gave no details as to how he missed the 2nd accused at the village during his investigation. In my view, as he was not familiar with the 2nd accused, his escape from the village ought to have been confirmed by a person familiar with the 2nd accused which is not the case. Lack of such evidence makes his claim a mere allegation which can be made by any person with interests to serve. I disregard PW7's evidence that the 2nd accused person escaped from the village after the murder. Did Olipa Ngoda see the 2nd accused at the scene of crime as she claims? The evidence of Olipa Ngoda versus that of the 2nd accused person ought to be decided on the ground of credibility of each witness. It is settled that each witness is entitled to credence unless there are reasons to disbelieve him. Olipa Ngoda did not testify on the fact that the 2nd accused escaped from the village nor that she did not see her at the burial ceremony. Therefore, the 2nd accused cannot be blamed for not cross examining her Page 5 of 9 on this issue. This leaves his defence that he was at the burial and the mourning of the loss of his brother uncontroverted. In determining the credibility of a prosecution witness, his/her evidence ought to be viewed generally in relation to the evidence of other witnesses. The general evidence of the prosecution include that of Insp. Peter Makoye (PW2) who inspected the scene of crime and drew the sketch plan. Olipa said she identified the 2nd accused by solar bulb light at the compound. However, the sketch plan (exhibit Pl) does not show such source of light. Consequently, as the evidence of the 2nd accused person that he attended the burial and mourned the loss of his brother is undisputed, I find the evidence of Olipa Ngoda that she saw the 2nd accused at the avocado tree immediately after her husband was murdered incredible. The defence evidence of the 2nd accused person raised a reasonable doubt in the prosecution evidence against him. What about the 3rd accused person? Did he murder the deceased? The prosecution has presented two stories about the murder. That which is given by Olipa Ngoda on the one hand and that which comes from the caution statement of the 1st accused (exhibit P7) and the caution of the 4th accused person (exhibit P6) on the other hand. The statements say the Page6of9 murderers are the 1st and 4th accused persons while Olipa Ngoda said it is the 1st accused and the 3rd accused. The two stories are conflicting and irreconcilable. Olipa testified that she is familiar with the 3rd accused person and by help of a solar power bulb in the room, she saw the 3rd accused cut the deceased with an axe on his head. In his defence, like the 2nd accused, the 3rd accused also denied the allegation adding that he participated at the burial of the deceased. This evidence is also uncontroverted. Again, Olipa did not mention him as a murderer to the people who responded to her yell for help. She mentioned him to the police in the presence of Ahazi Kihombo. As a village chairman, Ahazi Kihombo did not testify on efforts he made to trace the culprits which would have helped to confirm the theory that the 2nd and 3rd accused persons escaped as testified by PW7. As I have not trusted Olipa Ngoda on her story against the 2nd accused person, I cannot trust her story against the 3rd accused person. Further, Olipa did not identify the 3rd accused at the identification parade. In her evidence she said there was no need to identify him because she had named her. Indeed, that is the law. However, her Page 7 of 9 evidence contradicts that of PW10 who said the purpose of the parade was to identify the suspects including the 3rd accused. The charge against the 3rd accused has not been proved. The evidence associating the 4th accused with the charge is that of the 1st accused in his caution statement which I have already found as unreliable. Another evidence is his statement which also is incredible for one major reason. He was arrested due to information in the caution statement of the first accused person where he is mentioned as Joseph. However, there is no evidence that the 1st accused person is the one who led the police to the arresting of the 4th accused person. The charge has not been proved against the 4th accused person considering his evidence in defence that he was arrested almost a year later for other offences only to find himself being joined in this case. In the event, I hold that no sufficient evidence has been tendered to prove the charge against all the accused persons. I accordingly acquit them of murder charges under section 196 and 197 of the Penal Code. T-.oUR I.C. MUG ETA JUDGE 08/07/2024 Page 8 of 9 Court: Judgment delivered in open court in the presence of the accused persons in person, Ms. Happy Homo, Ms. Neema Msafiri, Mr. Frank Ngafumika who also held brief of Mr. Octavian Mbung'ani, learned advocates for the accused persons, Cecilia Mkonongo, Principal State Attorney, Gines Tesha and Tito Mwakalinga, Senior State Attorneys and Elise James, State Attorney for the Republic. Sgd. I.C. Mugeta Judge 8/7/2024 Page 9 of 9