R vs LUFUNGA Two Others

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL SESSION CASE NO. 76 OF 2022 REPUBLIC VERSUS LUFUNGA LUSAMLA MANDALU JOFREY EDWARD MAEGA ERICK MORIS SIKAPONDA JUDGMENT Date: 7 June 2024 & 20 June 2024 SINDA, J.: The accused persons Lufunga Lusamla Mandalu, Jofrey Edward Maega and Erick Moris Sikaponda are together charged with the offence of Murder contrary to Section 196 and 197 of the Penal Code, Cap 16, R.E. 2019 (the Penal Code). It is alleged that the accused persons on the 3 October 2020 at Ntungwa village within Momba District in Songwe Region murdered one Robert Mandalu Ndulu (the Deceased). 1 When the charge was read over and explained to the accused persons, they denied the charge and the facts constituting the offence. Hence, the case had to go full trial. It is undisputed that the Deceased died unnaturally. The evidence presented by the prosecution revealed that the Deceased died of excessive bleeding from multiple cut wounds. In addition, all witnesses from the prosecution and defense testified to the unnatural death of the deceased. Now, the question is whether the accused persons committed the offence they stand charged with. In proving its case, the prosecution called six (6) witnesses and the defence called three (3) witnesses. At the hearing, the prosecution was represented by Ms. Prosista Paul and Mr. James Mwenda, learned State Attorneys. The accused persons were represented by Mr. Godwin Mwakyusa, learned Counsel. The summary of evidence captured from the witnesses from both sides is as follows: Ms. Hadija Said Mwema (PW1) stated that she is a chemist by professional and a Manager - Southern Zone, Mtwara at the Government Chemist Laboratory Authority (GCLA). Her responsibilities are to supervise 2 the laboratory analysis of various samples such as DNA, poisons and illicit drugs. She further stated her other responsibilities are to supervise the administration of various laws that the authorities administer such as laws on genetics, chemicals and the authority itself and to give evidence in court. She informed the court between 2020 to 2021, she was the Deputy Director of Forensic Science at the GCLA headquarters in Dar es Salaam and her responsibilities were to supervise the analysis of forensic samples including DNA, poison and illicit drugs. That, on 9 November 2020, the GCLA headquarters in Dar es Salaam received two Exhibits “A” and “B” which were sealed from the Forensic Bureau which is under the Tanzania Police Force. The two exhibits were accompanied by the letter of the Officer Commanding Criminal Investigation Department (OCCID) Momba District dated 4 November 2020. That, Exhibit “A” was a t-shirt of the third accused person and Exhibit “B” was a piece of the Deceased jacket. The letter wanted the GCLA to conduct a DNA profile of the two exhibits and compare if they are identical. After analysis and testing, it was confirmed that Exhibit “A” and Exhibit “B” had a male genetic makeup, and they were identical. After observing that, a professional report was prepared and submitted to the police force. 3 During cross examination she stated that she was not the one who conducted the tests, but as the supervisor she supervised the process. She further stated that they used the whole piece from the deceased’s jacket (Exhibit “B”) during testing and remaining of the t-shirt of the third accused (Exhibit “A”) was returned to the police force. PW1 then prayed to produce a report on the conducted DNA test, which was tendered and marked in court as Exhibit PE3. PW2 was one Scola Masayu Ndulu, she stated that she is a resident of Sante village where she lives with her husband. On 3 October 2020, at 07:00am she was outside her home and she saw the second and third accused persons pass by. The third accused passed by her house and sharpened his machete. She mentioned that the third accused was wearing a pair of jeans, local tire shoes and a long-sleeved gray pullover. She added that the Deceased is her biological father. That, the Deceased and the first accused passed by her house at about 08:00am. The Deceased was driving the first accused on his motorbike. The first accused was carrying an axe. The Deceased told her they were headed to a witch doctor. 4 Shortly after, one Teddy passed with a motorbike. After sometime Teddy came back saying that he found the Deceased with multiple cut wounds in his head and was killed in the forest. They went to the scene of crime and found the body of the Deceased and she recognized him as her father. She mentioned that the Deceased was wearing a trouser, shirt and a red jacket. At the scene of crime, she saw the third accused had changed clothes from the ones he was wearing earlier. After investigation, the three accused persons were arrested. During cross examination, she stated on the material date she saw three other people that she didn’t know, aside from the accused persons and the victim passing by her house. She further stated that she got the news of the death of the Deceased from Teddy. PW3 is one Teddy Morris Tadeo, he stated that he lives in Ntungwa village. He has been a deputy village executive officer since 2019. On the morning of 3 October 2020, he was headed to Mazinde where he kept his goats accompanied by one Erick Sebastian on his motorbike. They reached Mazinde and on their way back to Ntungwa, Erick Sebastian went ahead but after a short time PW3 caught up with him. PW3 left Erick Sebastian with 5 the goats and upon reaching the forest he saw a motorbike on the road. After observation, he saw a body nearby and he recognized the body as that of the deceased. He thought the deceased had an accident. The deceased had multiple cut wounds on his head and hand. That’s when he realized that the deceased did not have an accident but rather killed. The leaders, villagers and police were informed and arrived at the scene of the crime. During cross examination, PW3 stated when he left the scene of crime he didn’t go back to the village and that the first people to arrive to the scene of crime were Frank and Sadock. PW4, one E2782 DT SGT Roger stated that on the 3 October 2020, he was informed of the murder incident that happened in a forest between Ntungwa village and Sante village. He went there accompanied by another policeman and a doctor. Upon arrival at the village executive office they found a lot of people who claimed to have brought a suspect. They handed the suspect to the police and went to scene of the crime. At the scene of crime, they found the Deceased and his motorbike. PW2 pointed out that the third accused person had changed his clothes. They arrested the third accused and asked him of the clothes he wore earlier. They went to the accused’s house together with some villagers, and found a gray pullover with 6 black cuffs. The cloth had blood stains on it. PW4 then prepared a certificate of seizure which was signed by the accused, PW4 and another policeman. They left with the third accused together with the exhibit. He drew a sketch map as the search for other suspects continued. At the scene of the crime they left with the deceased jacket, helmet and motorbike. PW4 stated that these exhibits were taken to Tunduma police station. During cross examination, PW4 stated he is not the investigator of this case. He further explained that for a search to be conducted a neighbor needs to be present, and the neighbor was Sadock Mwakyusa who also signed on the certificate of seizure. And that, the local leaders were not present during the search. He added, before entering the third accused’s house they weren’t searched. Then, PW4 prayed to produce the certificate of seizure, which was tendered and marked in court as exhibit PE4. PW5 was one E6578 CPL Rashid, he stated that he retired on 1 July 2023. On 5 October 2020, while still working, he was summed by the Chief of intelligence and given a murder case. He went through the case file to collect evidence as the suspects were already arrested. On 9 October 2020, he prepared a charge sheet and brought the accused persons to court. He was later given the exhibits, a piece of jacket and a piece of a gray t-shirt to be 7 taken to forensic bureau for further investigation. That, he went to the chief chemist on the 4 November 2020 and the results came out on 4 October 2021. During cross examination he stated the deceased was cut by a sharp object but he did not see the actual object that was used. And he was given a piece of jacket and a t-shirt but he was not able to see the actual jacket. PW6, Frank John Mpepo, he stated that on 3 October 2020, he was in Ntungwa village. Around 08:45am he was informed by PW3 that he came across an accident and there was one casualty. After arriving at the scene of crime he found the Deceased and after observation he recognized him and saw cut wounds on his face and hand. They informed the village leaders and the police concerning the incident. PW2 came with her husband saying the first accused killed the Deceased since he was the last person to be seen with him. The first accused was arrested and handed to the police. PW6 stated there was information that first accused was not the culprit and that the perpetrators were the second and the third accused, who were also eventually arrested. PW4 then went for an inspection at the third accused 8 residence together with other villagers. PW4, PW6 and the third accused all entered in the sitting room and found a pullover with blood stains, hidden near the roof. PW4 then filled the certificate of seizure. He added that only four people entered inside the accused’s house i.e. the accused himself, PW4, PW6 and Sadock. During cross examination, he stated that he went to the crime scene together with Sadock. He added that himself and Sadock are not neighbors of Erick. And that, he does not know who removed the red jacket from the deceased. Following a ruling on prima facie case, the accused persons were invited to enter their defense. DW1, one, Lufunga Lusamla Mandalu, stated that he was arrested while at home by people from Ntungwa village, accused of killing the Deceased. He was beaten and asked to show his axe and he did as he was asked. They took the axe but he did not sign any document. He was then taken to Ntungwa village. He added he did not ride on a motorbike with the Deceased, as he was at home. He did not carry the axe but they found the same at his premises. He continued by faulting the prosecution witnesses and their 9 failure to bring exhibits in court. He also added that he was remanded by police for 9 days and no statement was taken before being taken to court. He continued that he had no problem with the Deceased. During cross examination, DW1 stated that he doesn’t know PW2 and he has no quarrels with her. He further stated that she has no reason to fabricate this case against him. DW2, Joffrey Edward Maega stated that he has been charged with murdering the Deceased but he does not even know the Deceased. That on 3 October 2020, 13:00Hrs he went to Ivuna village to buy merchandise for his shop. On the way, his motorbike broke down and he took it to the garage. At around 17:47Hrs while still at the garage he was fetched by the ward executive officer who brought him back to his office, and told him he was under arrest. Then the police came and brought him to the police station where he was beaten. When he asked why he was being beaten, he was told that he killed one Robert. He was kept in lock up from 3 October 2020 to 9 October 2020. He added that he did not sign any document nor write any statement. He did not see the sketch map of the police nor the axe. He concluded by saying that the witnesses are not truthful since all of them claimed he was arrested but they did not mention who arrested him. 10 During cross examination, he also stated that he had no quarrels with PW2 nor the village leaders. DW3, one, Erick Moris Sikaponda, stated he is charged of a murder that happened on 3 October 2020. He added that he doesn’t know anything concerning the said murder. That on the material date he was at the crime scene, after being informed by his village leader. They found a lot of people there and were not allowed to get closer. Afterwards the doctor allowed them to identify the body. The doctor found the Deceased in possession of 500,000/= Tshs and a mobile phone. He added that he did not see the doctor nor the police in court. And that he did not have an axe or any sharp object and he did not pass by PW2’s house. He further stated that he did not have a t-shirt with blood stains and he was never searched. He concluded by saying the prosecution witnesses gave false testimonies and also failed to bring the said exhibits, to wit, t-shirt, Deceased’s Jacket and the axe. During cross examination, he stated that he is not in good terms with PW2 and that’s why she fabricated this case against him and it’s not true that he changed clothes. He further stated that his house was actually searched. 11 Having heard witnesses from both sides also considering exhibits put forth before this court, the pertinent issues to be discussed is whether the accused persons killed the Deceased, Robert Mandalu Ndulu and whether the prosecution discharged their duty in proving the case as required by the law, that is beyond reasonable doubt. Before discussing the issues raised, I think it is important to determine whether the deceased died an unnatural death. Records show that the deceased was found dead in the forest with multiple cut wounds on his head and palm, proposing that he was attacked using a sharp object. Similar was the observation of the doctor who examined the body at the scene of the crime, and filled a Post Mortem report. Unfortunately, the doctor was not present during trial to tender the post mortem report and the same was only admitted in court during plea taking. However, although the doctor’s testimony and the said report were of significant importance, in their absence the available evidence was enough to convince this court of the unnatural nature of the death of the deceased. Particularly the evidence of PW2, PW3, PW4 and PW6 who in different times after hearing of the incident went to the crime scene and saw how the deceased was brutally wounded with multiple cut wounds surrounded by a 12 pool of blood. This is enough proof to show the deceased died an unnatural death, with or without the doctor’s testimony and the post mortem report. That aside, and now discussing the issues raised earlier, it is trite law that when a charge of murder is preferred against an accused person, the onus is always on the prosecution to prove not only the death of the deceased but also the link between the alleged death and the accused person. See: Mohamed Said Mutula vs Republic, [1995] TLR 3. Considering the evidence on record, I can confidently say that the prosecution presented two main kinds of evidence in proving the offence against the accused persons. First is the last seen principle and second is circumstantial evidence. Starting with the former, the last seen principle, PW2 saw the first accused passing by her house riding with the deceased on the deceased’s motorbike, heading to the Ntungwa village passing through the forest. Where the accused was carrying an axe. That was a few moments after the second and third accused had passed by PW2’s house. Evidently so, the first accused was the last person to be seen with the deceased before he was found dead. The law is settled that: 13 “where a person is alleged to have been the last to be seen with the deceased, and in the absence of the plausible examination to explain away the circumstances leading to the death he/she will be presumed to be the killer.” This was discussed in the case of Amani Rabi Kalinga vs Republic, Criminal Appeal No. 474 of 2019, where the CAT referred to the case of Mathayo Mwalimu vs Republic, Criminal Appeal No. 147 of 2008. Therefore, in the absence of any other leads, proof or suspects (save for the other two accused) concerning the death of the deceased, it is my opinion that the last seen rule has been well established against the first accused person in relation to the murder charges against him. Moving to circumstantial evidence, the Court of Appeal in the case Ndalahwa Shilanga and Buswelu Busaru vs Republic (Criminal Appeal No. 247 of 2008) pointed out conditions that have to be met for circumstantial evidence to be considered by the court in finding the accused liable of the offence charged as hereunder: i. The circumstance from which an inference of guilty is sought to be drawn must be cogently and firmly established; ii. Those circumstance must be a definite tendency unerringly pointing towards the guilt of the accused: 14 iii. The circumstances taken cumulatively, should form a chain so, complete that there is no escape from conclusion that within all human… the crime was committed by the accused and not one else. Revisiting evidence and testimonies during trial, with regards to the first accused, having observed that the last seen principle has been decided in affirmative against him, it is also true that the evidence against him is purely circumstantial. Mainly because he was not seen committing the offence, but the circumstances surrounding the crime suggests his involvement. As for the second and third accused persons, according to PW2 the two accused passed by her house at about 07:00Hrs in the morning, where the third accused came over to her house to sharpen his machete. They then headed towards the forest. Shortly after, came the first accused and the deceased as shortly explained, headed the same direction. It wasn’t until few hours later when news spread of the death of the deceased at the forest found between Ntungwa and Sante villages, coincidently the same direction the accused persons and deceased went. Furthermore, the third accused, Erick Sikaponda, apparently changed his clothes from the ones he wore earlier when he passed by PW2’s house. And after a thorough search at his premises, the said clothes were retrieved 15 covered with blood stains. The same (cloth), together with a piece from the deceased’s jacket were taken to a government chemist for further testing. The result showed, the blood from the third accused cloth, to wit sweater, matches that from the deceased jacket. This evidence incriminates the third accused. And having found that the second and third accused were together on the material day, then the second accused too, is part and parcel in the commission of the crime. Hence as far as circumstantial evidence goes, it has been well expounded by the prosecution as provided in the case of Ndalahwa Shilanga and Buswelu Busaru vs Republic (Supra). At this juncture, having found the deceased died an unnatural death and having found the two issues raised have been decided affirmatively against all three accused persons, it is my belief the prosecution proved their case at the required standard. Nonetheless, there have been contradictions in the prosecution evidence. For instance, PW2 claimed she got news on the deceased’s death from PW3 while PW3 refuted that contention. I agree with the argument of Miss Prosista during her final submissions, that this contradiction is not material to disregards prosecution evidence because the root of the case was the murder of the deceased and who murdered him – not who reported the 16 incident. As most contradictions from the prosecution do not go to the root of the matter, I will not consider them in reaching my decision. Moving forward and as stated earlier, the duty of proving the case in criminal matters is vested on the prosecution. But one cannot completely ignore the defence evidence. The first accused claimed on the material date he was at home and he was arrested at home. The second accused stated he was in Ivuna village and he did not even know the deceased. Whereas the third accused, claimed to not be involved with the murder, as he heard of the incident just as how the rest of the villagers did. Most prosecution witnesses provided detailed accounts on the incident and managed to move this court, but it is quite obvious that PW2, Scola Masayu Ndulu was the key witness since she is the one that saw the accused persons and the deceased moments before the deceased was found dead. I find no reason not to believe the evidence of this witness, since she did not give this court any reason not to be believe her. The same was discussed in the case of Goodluck Kyando vs Republic [2006] TLR 363, to wit: "It is trite law that every witness is entitled to credence and must be believed, and his testimony accepted unless there are good and cogent reasons for not believing a witness.” 17 Besides, aside from the third accused whose evidence is rather doubtful due to many contradictions, the rest of the accused mentioned there was no reason as to why the said witness would fabricate this case against them. Consequently, I therefore find the accused persons Lufunga Lusamla Mandalu, Jofrey Edward Maega and Erick Moris Sikaponda guilty for the offence of murder they stand charged with under section 196 and 197 of the Penal Code, Cap 16, R. E. 2019 and I proceed to sentence them to death by hanging. Right to appeal explained. DATED at MBEYA on this 20 day of June 2024. A. A. SINDA JUDGE 18