mwanamaria

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CRIMINAL SESSIONS CASE NO. 115 OF 2023 REPUBLIC VERSUS 1. JUMA S/O MOHAMED @JUMA@MWANAMARIA 2. KASHINDYE S/O MASHAURI® MAGENDELA JUDGEMENT Last order: 03/09/2024 Judgement date: 12/09/2024 MANGO, J The second day of January 2023 marked the end of the life of Veronica Kijolo @Kidutu, a Tanzania lady who before meeting her death, was a resident of Chekeleni Village, Vumilia Ward within Urambo District in Tabora region. It is alleged that, she was assaulted by machetes to death. After investigation, information of murder contrary to section 196 and 197 of the Penal Code, [Cap 16 R.E 2019] was filed against six accused persons namely Juma s/o Mohamed@Juma @Mwanamaria, Kashindye s/o Mashauri@ Magendela, Matheo s/o Michael Nkumbi, Daudi s/o Marco@Nkumbi, Hamis s/o Athuman@Hamisi and Latifa d/o Maiko Nkumbi. 1 Facts of the case provides that, on the fateful night, the late Veronica slept together with her granddaughter namely Yudit Martine. The accused persons accompanied by another person who couldn't be identified by Yudit, entered into Veronica's bedroom. Immediately after they entered Veronica's bedroom, the person who couldn't be identified by the eye witness, assaulted Veronica by a machete on her neck and right shoulder. Veronica died instantly. On 5th September, 2023 the case against Latifa d/o Maiko Nkumbi abated under section 224A of the Criminal Procedure Act, [Cap. 20 R.E 2022] following her death which occurred on 29th July 2023. Matheo s/o Michael Nkumbi, Daudi s/o Ma rco@ Nkumbi and Ha mis s/o Athuman@Hamisi were discharged via Nolle Prosequi entered in their favour on 9th November 2023. At the time of trial only two accused persons remained. The two accused persons are Juma s/o Mohamed@Juma @Mwanamaria, Kashindye s/o Mashauri@ Magendela. The two, stand charged With the offence of murder contrary to section 196 and 197 of the Penal Code. The Republic was represented by Winlucky Mangowi and Joseph Makene learned State Attorneys while the accused persons were represented by Stellah Nyakyi learned advocate. It is trite law that, in a Criminal trial, the duty to prove accusations levied against the accused person(s) is vested in the prosecution and in discharge of that duty, the prosecution needs to prove the case beyond reasonable doubt. That the accused committed the offence. Such standard of proof is provided for under section 3 (2) (a) of the Evidence Act, [Cap. 6 R.E.202. For the offence of murder to be considered to have been proved beyond 2 reasonable doubt four elements must be proved beyond reasonable doubt. The four elements are, that a person died, his death was not natural, that it was the accused through his acts or omission that caused the death of the deceased person and that in doing so the accused person had malice aforethought. In the case at hand, the prosecution managed to prove beyond reasonable doubt that Veronica Kijolo Kidutu died and her death was not natural. Evidence to that effect is found in the testimony of the doctor who examined the body of the late Veronica Kijolo Kidutu, Dr. Nivone Erasto Kikaho, PW1, and post mortem examination report which was tendered without objection as Exhibit Pl. PW1 testified clearly that upon examination of the body of the late Veronica, she found it to have a very big cut wound at the back of the neck and right shoulder. According to the nature of the wound, she is of the opinion that, it was caused by a sharp object. As to the cause of death, the Post mortem report indicates that the deceased death was caused by Haemorrhagic Shock secondary to deep cut wound. Thusz the first and second elements have been proved on the required stand. On the issue whether it was the accused who caused the deceased death, the prosecution had one witness, G4838 D/CPL Muksin who testified as PW2 and a statement of Yudith Martine which was tendered under section 34(B) of the Evidence Act, [Cap. 6 R.E 2022]. PW2 testified on how he generally investigated the matter and found out that it was the accused persons who killed the deceased. According to him, the accused persons were identified by Yudith Martine at the time of commission of the offence. Unfortunately, Yudith couldn't testify before the Court because, after her grandmother's 3 death, she moved to a place where she couldn't be traced. Her statement was tendered under section 34B of the Evidence Act and admitted as Exhibit P2. The contents of the statement made by Yudith before the police indicates that, on the incident night she managed to identify the persons who entered into her grandmother's room to be Juma s/o Mwanamaria@Juma Mohamed@Mwanamamalia, Kashindye s/o Mashauri@Kashindye s/o Magendela@Mashauri, Bibi Mapengo, Farida w/o Daudi and one person who she couldn't identify by his name. The witness stated that, the person who she failed to identify had a machete and he was the one who assaulted the deceased to death. According to the statement, the persons who were named by the witness, were familiar to her as they used to visit her grandmother's house several times. The statement mentions Solar light to be the source of light which enabled her to identify the said persons. The prosecution had no other witness thus, the statement of Yudith is the only evidence that has been adduced to prove that it was the accused persons who killed the deceased and that the killing was intentional. The Accused persons generally denied to be responsible with the death of the late Veronica. I understand that the accused persons are not duty bound to prove their innocence thus, a general denial cannot any how lead the Court to draw adverse inference against them. This was clearly stated in the case of Christian s/o Kale and Rwekaza s/o Benard V Republic [1992] TLR where the Court observed that: "an accused ought not to be convicted on the weakness of his defense but on the strength of the prosecution '1 The only issue that remains in this matter is to assess whether, the statement of Yudith establishes beyond reasonable doubt that it was the accused persons who killed the late Veronica. In assessing the evidential weight of the statement in establishing the accused persons responsibility in commission of the crime, I sought guidance from the decision of the Court of Appeal of Tanzania in the case of Philimon Juma line Agala@J4 Versus Republic Criminal Appeal No. 187 of 2015 Court of Appeal of Tanzania at Mwanza in which the Court discussed intensively factors that need to be considered when assessing the strength of identification of an eye witness. The Court had this to say on that aspect; ",.. a number of factors has been recognized as affecting the accuracy of an identifying witness. These fail into three major categories. The first category pertains to the eyewitness and includes factors such as uncorrected visual defects, fatigue, injury, intoxication, presence of a bias, an exceptional mental 13 condition such as an intellectual disability or extremely low intelligence, age (if the eyewitness is either a young child or elderly). The second category relates to the. event witnessed and includes the effects of stress or fright, limited visibility, distance, distraction, the presence of a weapon (weapon focus), disguises, whether the eyewitness was aware at the time that a crime was occurring. The third category pertains to the identification Itself. This category includes such factors as the length of time between observation and identification, any instance in which the eyewitness failed to identify the suspect or gave an inconsistent description, the value of lineups compared to show-ups, the value of photo Identifications, compared to in-person identifications, and any exposure of the eyewitness to influences such as news reports or interaction with other witnesses."(Emphasis added) In the case at hand I assessed three issues, the visibility, whether the Witness properly identified the accused persons, the age of the witness and existence of other issues that may lead to mistaken identity, biased identification. 5 On whether the conditions at the scene of crime was conducive enough to enable the witness identify the accused persons properly, I found the prosecution to have failed to establish of intensity of the light at the scene of crime. This is evident from the fact that, the identifying witness did not explain the Intensity of the alleged solar light that enabled her to identify the accused person. Intensity of the light which enabled the witness to identify the accused person is among necessary issues that need to be considered by the Court in order to avoid convicting an accused on mistaken identity. Lack of intensive light can be established also by the fact that, the witness failed to anyhow identify the person who assaulted the deceased on the reason that he was a stranger to her. It is my considered view, had the light being intensive enough the witness would have described the said person who did such a cruel act to her grandmother. Failure to describe even the colour of the clothes this person wore, his height and general appearance of the person suggests that the light was not that much intensive and perhaps identification of the accused person was not a result of being seen during commission of the offence. The statement, P2, establishes another issue which perhaps led the witness to mention the accused persons to be among the persons who broke into their house and assaulted the deceased to death. She stated in the last sentences of the statement that, the accused persons had ai misunderstanding with the late Veronica as they were suspecting her of bewitching Daudi Marko who was formerly the fourth accused person. This part of the statement suggests that, the witness made a biased identification based not on pure visual identification but, based on suspicions caused by a 6 sour relationship that existed between the deceased and some of the accused persons. Despite that, I warned myself on the age of the witness, who was 9years at the time of recording the statement and the fact that the Court had no opportunity of satisfying itself as to whether the witness understands the necessity of telling the truth. Given the fact that her statement was tendered under section 34B, the Court had no opportunity of assessing the demeanor of the witness and the accused persons had no opportunity to cross examine the witness. With such observations, I find it to be unsafe to rely on the contents of the statement to convict the accused persons without any corroborative evidence. In such circumstances. I find the prosecution to have failed to establish their case against the accused persons beyond reasonable doubts. The accused persons are here by acquitted. Dated at Tabora this 12th September 2024 Z. D. MANGO JUDGE 7