a3 LOTI ASWILE

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL JURISDICTION CRIMINAL SESSION CASE NO. 47 OF 2021 REPUBLIC VERSUS LOTI ASWILE MWAIPOPO JUDGMENT Date of Last Order: 21/05/2024 Date ofJudgment: 09/07/2024 NDUNGURU, J; The accused person, Loti Aswile Mwaipopo is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2019 (Now R.E 2022). It was stated in the particulars of offence that; on the 2nd Day of November, 2019 at Ndolezi village within Mbozi District in Songwe Region the accused did murder one Amos Antony Mgogo. The accused person pleaded not guilty to the charge. Upon entering a plea of not guilty, the case went to a full trial. At the hearing, Mr. Joseph Mwakasege assisted by Mr. Elibariki Mpinga, i both learned State Attorneys represented the Republic while Ms. Caroline Luhungu assisted by Mr. Kelvin Kuboja, both learned advocates represented the accused person. The prosecution paraded four witnesses namely; Sifa Antony Mgogo (PW1), Gilmon Mwakitalima Kayinga (PW2), Jackson Japhes Kalumuna (PW3), and H. 8514 D/CPL Frank (PW4). Also, one documentary exhibit, a post mortem report (exhibit Pl) was tendered. On his part, the accused person gave evidence on his behalf. He did not have another witness to call nor tendered any exhibit. The prosecution evidence, in summary, goes as follows; PW1, Sifa Antony Mgogo the sister of the deceased testified that on 02/11/2019, she and Amos Antony Mgogo, her young brother (henceforth the deceased) were in the farm digging potatoes, then the accused person appeared and was also digging potatoes in the nearest farm. Thereafter, the accused asked for the deceased to go for picking fruits. They thus went together. Later on, the accused returned alone while wet. PW1 asked him (accused) the whereabouts of his young brother, he replied that has gone back home. Then, PW1 and the accused person left the farm each going to his respective home. PW1 did not find the deceased at home, and she was 2 asked by their grandmother on where she has left him. She went to the accused person's home as they were neighbours to ask again the whereabouts of the deceased, but the accused insisted that he has returned home. Then, PW1 told her grandmother about the left together of the deceased and the accused person. The grandmother also relayed the information to one Gilmon, a militiaman and other neighbours. They together went to the accused person's home to ask him the whereabouts of the deceased. That, in the first place, he denying to know anything about the deceased but later on upon being threatened by Gilmon the accused person went with all those persons to the river. Thereat, the accused person entered in water and removed the deceased body. Also, PW1 said that she saw the deceased body with a sharp wound at the neck. Then, Gilmon took the accused person to Tunduma Police Station. When cross examined, PW1 said that when she was on the way back to home, she met one Baba Emmanuel whom she did not mention during evidence in chief. That the accused was their neighbour and he used to visit their home as they lived in harmony. PW2, Gilmon Mwakitalima Kayinga, a militiaman in Ndolezi village also a neighbour of the accused person and the grandmother of the 3 deceased. Testified that on the incident date, on 2/11/2019, one Enel Kalinga, a grandmother of the deceased went to his home seeking for help as the accused person has left with her grandson, but when he is asked the whereabouts, he denied. PW2 went to pick a ten-cell leader. They together went to the accused person's home. The accused was found sleeping. When awakened, he was seen in wet clothes. The accused person was asked the whereabouts of the deceased. He denied to have been with the deceased, though another young man was insisting that he left with him. PW2 threatened to beat the accused with a club it is when he admitted to have been with him, but told them that he has fallen into the river. PW2 further inquired the accused person who revealed that he had killed the deceased and hidden his body in the river. Then, he led them to Mlowo river where he removed the dead body of the deceased. That, the persons who were present at the scene wanted to harm the accused but PW2 served him and took him to Vwawa Police Station. PW2 further stated that on the next day he was told and saw the deceased body with a sharp wound at the neck. When cross examined if he beaten the accused, PW2 replied that he only threatened to beat him but did not do so. He denied to have been told by the accused that he did the act out of his sound mind. He 4 also said that the accused was their neighbour and they leaved with him harmoniously. PW3, Jackson Japhes Kalumuna, medical doctor of Tunduma Health Centre, testified that on 03/11/2019 he received the deceased body for post mortem examination. Physical examination revealed to have a sharp wound at the upper part of the shoulder close to the neck. That the wound was 5 cm deep. And clot blood was oozing. Also, that cause of death of the deceased was failure of supply of oxygen/cardia Pulmonary. PW3 also tendered a post mortem report admitted as exhibit Pl. On cross examination, replied that chest and neck are two different parts of the body. Insisted that cause of death was lack of oxygen caused by deep wound that made the blood to drain into lungs. That he did not indicate if the dead body was picked from water. PW4, H. 8514 D/CPL Frank, police officer who investigated the case gave evidence that he was assigned the file for investigation on 05/11/2019. He visited the scene of crime and wrote statements of the witnesses. That the investigation revealed that the deceased was killed by the accused as was a last person seen with the deceased. And that 5 he was the one led the people to the place he had hidden the body. Also that the body was found with 15 cm deep sharp wound. In his defence evidence, DW1 testified that on the material date when he was on the way to Mlowo river for fishing, he met the deceased with his sister (PW1). That the deceased followed him where he was fishing. That the deceased took his hook trying to fish, but he fell into the river. That in the river there were pieces of trees. Then that he tried to remove him from the river, but unfortunately, he found him dead. That he left the place and went to his home. Then that a militiaman and other persons went to his home. The militiaman started beating him with a stick telling him to show where he had hidden the deceased. That he took those people to the river then he was told to enter into the river where he did so and removed the deceased body. Then he was taken to the police station by a motorcycle. It was his insistent that he did not kill the deceased but he himself fell into the river. That marked the end of the evidence of both sides. When going through the above evidence, it is apparent, undisputed that the deceased died of unnatural death. It is also undisputed that, the deceased was found dead in the river while having a sharp wound at the 6 right lung, this is according to exhibit Pl, and it is the accused who showed the place and picked the body from the river. It is further undisputed that the deceased met his death when he was with the accused. The two sides, that is the prosecution and the defence sides however, part the way; while the prosecution gives evidence incriminating the accused to be the one who killed the deceased, it is the accused version that the deceased fell into the river and the wound was caused by the stick/tree that was in the river. In the premises, the issue for determination is whether the accused murdered the deceased. According to the available evidence, there is no direct evidence adduced to prove that it is the accused person who killed the deceased. In that regard, a note should be taken at the outset that the prosecution wants this court to find the accused guilty of the offence based on circumstantial evidence. The law about circumstantial evidence is trite in that for circumstantial evidence to be relied upon in convicting an accused, the chain of facts and circumstances must be incompatible with the innocence of the accused, and he should be incapable of giving an explanation or any reasonable hypothesis other than that of guilt. This 7 position was illustrated in the number of decisions including the cases of Abdul Muganyizi v R (1980) TLR 262, Magendo Paul & Another v R (1993) TLR 219, Hamidu M. Timotheo v. Republic & Another (1993) TLR 125 and Hassan Fadhili v R (1994) TLR 89. In Abdul Muganyizi V R (supra) for example, the Court of Appeal of Tanzania held that: "...the exculpatory facts must be incompatible with the Innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of guilty." Again, the CAT in the case of John Magula Ndongo v R. Criminal Appeal No. 18 Of 2004, at Dar es Salaam (unreported) had this to say: ”,.... And it is necessary before drawing the inference of guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference." With that principle of the law about the case at hand, the evidence by PW1 is that the accused is the last person to be seen with the deceased. That piece of evidence was also corroborated by the accused in his defence that he was with the deceased at the river, but fell into water when he was trying to fish. 8 There is also PW2's evidence that the accused admitted to him that he killed the deceased and following the admission, he led to the discovery of the deceased body. The accused defence on this evidence is that he was beaten by PW2 and forced to show the place where he had hidden the deceased's body. I find the accused defence of being beaten irrelevant as it led to the discovery of the deceased body. My stance, of discarding the accused evidence is in line with the decision in the case of Miraji Idd Waziri @ Simwana & Another vs Republic (Criminal Appeal 14 of 2018) [2020] TZCA 387 (7 July 2020) where it was held inter-alia that confession reading to the discovery is relevant even where there is an allegation of involuntariness. In addition, the allegation of threat by itself does not make admission irrelevant until it is established to the satisfaction of the court that the threat has read to untrue admission. See section 29 of the Evidence Act, Cap. 6 R.E 2022. In this case, since it is the accused who led to the discovery of the deceased's body into the river cannot render the evidence of PW2 that the accused admitted to have killed the deceased inadmissible. Moreover, as a general rule, the burden of proof of certain facts is shoulders by the one who alleges. This is per section 110 of the 9 Evidence Act. In this case, therefore, it is upon the prosecution to prove that the accused person killed the deceased. However, as regards the circumstantial evidence as illuded above, once the chain of facts and circumstances have been adduced to the effect that it is the accused person who committed the offence, then it is upon him to give a reasonable or probable explanation to the contrary. As I have shown above, that, the deceased met his death while he was with the accused. The accused admitted to PW2 that he killed the deceased. Then the accused led to the discovery of the deceased's body by removing it from the river. His explanation that the deceased fell into the river is unreasonable and improbable. As a result, it is my conviction that the accused person killed the deceased. Having so found, it follows the question of whether the killing was with malice aforethought. Malice aforethought is described under section 200 of the Penal Code. And it is said to have been established when there is evidence proving any one or more of the four circumstances in paragraph (a) - (d) of section 200. These circumstances are like; an intention to cause death or grievous harm, knowledge that the act or omission will probably cause death, an intention commit a graver 10 offence punishable for imprisonment not less than three years, abetting or aiding a person committed or attempted to commit an offence. Besides, malice aforethought or intention to cause death, can be established by factors such as; type and size of the weapon, if any used in the attack, the amount of force applied in the assault, a part or parts of body the blows were directed at or inflicted on, the number of blows, the kind of injuries inflicted, the attacker's utterances, if any, made before, during or after the killing, and the conduct of the attacker before or after the killing. See Nassoro s/o Khamis Ngwele vs Republic (Criminal Appeal 188 of 2017) [2020] TZCA 53 (12 March 2020) (TanzLii). In this case, the accused insisted in his evidence that the deceased fell into the river of which I have already rejected. Besides, there are conducts of the accused person which are incompatible with the unintentional killing of the deceased person. The conducts such as; PWl's evidence that the accused called the deceased and left with him to the forest with the view of going to pick fruits. The defence evidence however, the accused said that it was the deceased who followed him to the river. I could not agree with this piece of defence evidence, the reason being that, PW1 has demonstrated herself as a ii credible witness due to her capability of giving a coherent and focused story which made PW2 and other persons stick with the accused until when he led them to the river and removed the deceased's body therein. It was also PWl's evidence that after the accused left with the deceased, he returned while his clothes were wet. This was corroborated by PW2 and the accused himself when he testified that he tried to remove the deceased from the river but found him dead. PWl's evidence makes the defence by the accused that the deceased was trying to fish when he fell into the water to be a lie. Another conduct is when the accused knew that the deceased has dead in the river, he did not tell anyone but left and went to his home. It is my view that an innocent person who had not been intentionally involved in the killing could not have left the deceased body in the river while knowing that he had died. It is more unimaginable that the accused knew the deceased as his neighbour and they were together. In that regard, an innocent person could not have the confidence to go home to sleep while knowing there is a young boy dead in the river. The most disturbing conduct which suggests against the innocence of the accused person was the conduct of not disclosing the information of the deceased to fall in the river until when he was threatened. 12 Though he complained that he was beaten to admit but it is undisputed that the accused knew about the death of the deceased even before he was threatened as he testified that he left the deceased in the river while already dead. Therefore, the fact that the deceased had died and his body was in the river was not due to the threat or the alleged beating. The defence that the deceased fell in the river might have raised doubt on the prosecution evidence if the accused had given the information willingly before being arrested. The conduct of remaining mute and trying to deny to have gone with the deceased makes the prosecution evidence to be trusted that it is the accused who killed the deceased maliciously. Moreover, there is evidence by PW3 that the deceased body had a sharp wound about 5 cm this also makes this court to find that the killing of the deceased by the accused was intentional. I have taken into consideration the contradicting evidence of PW4 who sad the wound was sharp of 15 cm. Nevertheless, I am of the view that the contradiction is normal it does not go to the root of the case. And it was PW3 who measured the wound during post-mortem examination, thus, PW4 was giving evidence on what was told by PW3. Also, I consider the contradiction could have happened as a mistake due to the lapse of time 13 as the offence was committed and investigated by PW4 in 2019, which is about 5 years now. In the cumulative events and chain of circumstantial evidence stated above is incapable of any interpretation other than the guilt of the accused. Thus, I conclude that the accused person killed the deceased maliciously. Owing to the above analysis, this court finds that the prosecution has managed to prove the case beyond reasonable doubt against the accused person that he murdered the deceased (Amos Antony Mgogo). In the circumstances, I find the accused person guilty. Consequently, I convict him of the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2022. D.B. NDUNGURU JUDGE 09/07/2024 14 SENTENCE The offence of murder has only one sentence. The sentence is provide for under section 197 of the Penal Code. The said section provides: ’797 A person convicted of murder shall be sentenced to death" (emphasis added) From the wording of the statute the sentence imposed is a mandatory not discretionary. That being the position of the Law, I have no option/alternative rather to impose the statutory sentence. I hereby sentence the accused person one Loti s/o Aswile Mwaipopo to suffer death as per section 197 of the Penal Code (Cap 16 R.E. 2022) I further direct that he shall suffer death by hanging as provided for under section 26(1) of the Penal Code, (Cap 16 R.E. 2022) Order accordingly. D.B. Ndunguru JUDGE 09/07/2024