a5 MUSSA MPANDACHALO

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL JURISDICTION CRIMINAL SESSION CASE NO. 78 OF 2022 REPUBLIC VERSUS MUSSA S/O CHARLES MPANDACHALO JUDGMENT Date of Last Order: 24/05/2024 Date of Judgment: 10/07/2024 NDUNGURU, J; The accused person, Mussa s/o Charles Mpandachalo is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2019 (Now 2022). It was stated in the particulars of the offence that; on the 19th Day of June, 2021 at Mwaka area - Tunduma township within Momba District in Songwe Region the accused did murder one Loveness d/o Daniel Kayange. The accused person pleaded not guilty to the offence. i Upon entering a plea of not guilty, the case went to a full trial. At the hearing, Mr. Joseph Mwakasege, learned State Attorney represented the Republic while Ms. Caroline Mseja, learned advocate represented the accused person. The prosecution paraded four witnesses namely; Imelda Samwel Mwakipesile PW1, Daniel Mofat Kayange PW2, G2620 D/CPL Yona PW3, and Julai Wende Mwalangwa PW4. Also, the prosecution tendered two exhibits; a sketch map (exhibit Pl) and a post mortem report (exhibit P2). 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 testified that she lived in the same premises as co-tenants with the deceased, who was known as Loveness or Mama Tracey and the accused person. That on the incident date, 19/06/2021 at night she was called by the accused person seeking help on the claim that his wife (the deceased) was sick. Having entered the room, in accused's premises she found the deceased lying on a piece of cloth (kitenge) while the other piece of cloth (kanga) was tied to the iron bar on the top of the door of the bedroom. That the deceased was lying half-necked, while her eyes were open, and she could not speak. 2 That, the other things in the living room were not in good order indicating there was a fracas. That when she (PW1) tried to ask the accused person what happened to the deceased, he did not say anything. She then called the landlord who lived in the same premises. The landlord also asked the accused person what happened, but the accused replied to have known nothing. Then, they (PW1, the landlord's wife, the accused person and the try cycle rider) took the deceased to the hospital. On the way, they again asked the accused person what had happened, this time the accused replied that she was threatening to hang herself. That at the hospital they were told that the deceased had already passed away. When cross-examined, PW1 said that the accused did not tell them at the first instance what happened to his wife. PW1 also said that at the time she was called by the accused person she did not know if the deceased had already died as the eyes were open. When asked if it was the accused who killed the deceased, PW1 replied that she did not state in her evidence if it was him. On his part, PW2, Daniel Mofat Kayange the father of the deceased testified that on the incident date at night, the accused together with his parents went to his home to inform him about the 3 death of his daughter. Upon asking the accused person about the cause of death he said that she had hanged herself. Later on, upon continuing to ask, the accused replied that his wife had administered drugs. Then they got confused about the different versions of the cause of death given by the same person. They decided to go to see the place where the hanging had allegedly taken place. Upon the accused showing the place, they got suspicious and thus, restrained the accused and called the police who arrived and arrested him. Then PW2 witnessed a postmortem where he was told by the medical officer that the deceased did not hang herself but the death was due to a lack of oxygen caused by being pressed on her neck. Also that the deceased body had marks/bruises around the neck. On cross-examination, PW2 said that he believes it is the accused person who killed the deceased due to his two contradicting statements and the fact that the accused and the deceased lived together. When asked if he saw a piece of cloth (khanga), PW2 said that he did not see it when entered the accused's premises but he saw a chain and bag. The third witness was PW3, G2620 D/CPL Yona. He testified that as an investigation police officer, on 20/6/2021, he was told by the Officer Commanding Criminal Investigation of District (OC CID) about 4 the apprehension of the accused person for suspecting him of killing his wife. They went to the scene and took the accused to the hospital where the deceased body was kept. PW3 witnessed the investigation of the deceased body. The body had marks on the lower neck indicating to have been caused by a strong object and the right eye had a blood clot. Also, PW3 was told by the doctor that the death of the deceased was caused by oxygen blockage. He measured the deceased body which was 155 centimetres. Then he went to the accused's home where he drew a sketch map and measured the length of the door frame from the vent to the floor which measured 156 and from the top of the door measured 152 cm. PW3 went on stating that in the accused's house he saw a plate with two spoons suggesting that two persons had eat together. And there was a handbag on the table and a chain looking like a bag handle. That the length of the door could not suggest a person to hang herself thereat. PW3 also testified that further investigation revealed that the cause of death was strangulation then that the first person who entered in the accused's premised to assist the deceased found her at the dying stage. Also, that in the situation that the deceased was with accused only it was the accused who strangulated her. PW3 identified exhibit Pl. 5 During cross examination, PW3 said that he did not find the said cloth (khanga). When questioned if the said hand bag and a chain were tendered in court he replied negatively. The last witness for the prosecution case was Julai Wende Mwalangwa PW4, the medical officer who conducted post mortem examination and filled a report, that is exhibit P2. He testified that on 20/6/2021, at the hospital was assigned to examine the deceased body. After being identified by the deceased relatives and before conducting the post mortem, there were two versions of either the deceased to have administered poison or hanged herself. The investigation on the body could not suggest either way. That had it been death by poison, the deceased could have vomited or would have found with excretion. About the version of hanging herself, PW4 stated that physical appearance of the body had no wound nor swollen part nor neck separated by a rope tying nor a tongue protruded out of mouth. But the right eye had a red spot/blood clot normally caused when a person dies of asphyxia. PW4 also said that further investigation revealed that at the base of tracheas of the deceased body there was bruises marks and the cartridge of the tracheas had tense caused by strong press. PW4 thus 6 came to the conclusion that the deceased death was caused by lack of oxygen due to oxygen obstruction. Also, that such brokage cannot be caused by a person herself it must be caused by another person. During cross examination on whether the tense of tracheas can be caused by object like cloth, PW4 replied that it cannot be caused by cloth rather a hard object pressed by force. Also, that cause of death was not by hanging rather by strangulation. In turn, DW1 in his defence evidence averred that on the incident date the deceased prepared and they had dinner together. Then, him and their (the deceased and the accused person) only child left for sleep leaving the deceased at the living room waiting to watch the movie she loved most. DW1 was awakened by the cry of the baby, when he carried the baby to her mother for feeding opened the door of the bed room only to find the deceased swinging around tied a cloth (khanga) on the iron bar of the vent of the door. That he untied and lay her down on the cloth (kitenge). At that time the deceased was at a critical point. He gave her the first aid and went to call the neighbours for assistance. The first neighbour to come was one Imelda (PW1) who helped to dress up the deceased as she was half necked. Then came the landlord who helped to call a try cycle rider and his wife to take the deceased to the 7 hospital in accompany of PW1. At the hospital, DW1 being asked and answered that the deceased had tried to hang herself he was asked to go to police station to collect a PF3. On return from police station, he was told about the death of the deceased. Then he gave the information to his relatives including the parents' in-law and he told them that. That the next day his father in-law wanted DW1 to go to his home to show where the deceased hanged herself. That he arrived at his home found his father in-law and other persons. He showed them the place and narrated the whole story of what happened to the deceased including giving her the first aid since those persons found a glass of water and an empty packet of drugs in the living room. That, one of the persons was dissatisfied with the narration he gave to them, thus, his father-in-law called the police who arrested him and took him to the police station. That they also collected a cloth (khanga), a glass, and an empty package of the drugs. DW1 denied seeing a hand bag and a chain. That he was suspected of having killed the deceased because before marrying the deceased, she had another man who had been helping his father-in-law with development. Having seen the summary of the evidence for both sides, I have noted that there is no dispute that the deceased died an unnatural 8 death. This is according to the prosecution and the defence evidence. The line of dispute is drawn from when the prosecution paraded witnesses to adduce evidence that the deceased death was caused by strangulation while the defence evidence is to the effect that the deceased hanged herself/committed suicide. Due to the rivals above, this court is confronted with two issues for determination as follows: i) Whether the deceased death was due to strangulation or by self-hanging. ii) If the answer in (i) confirms the first version, that is the deceased death was due to strangulation, it will follow the question of whether it is the accused person who strangulated the deceased, hence murdered her. In determining the issues above, the guiding principles in criminal cases like this are, the burden of proof lies to the prosecution. This is per section 110 of the Evidence Act, Cap. R.E 2022. Also, the standard of proof is beyond reasonable doubt. This is per section 3 (2) (a) of the same Act. 9 I Starting with the first issue, the prosecution evidence relevant to the issue under consideration is that of PW3 and PW4. According to PW3 in his investigation by seeing the place, that is the iron bar of the door for entering in the bedroom, the deceased allegedly hanged herself, he said that the length of the deceased body measured 155 cm while the length of the frame of the door from the vent to the floor measured 156 cm. That comparing the lengths of the deceased body against the height of the door it was impossible a person to hang there. PW4 stated that before venturing into the examination of the deceased body there were two versions of the cause of death. One being administering poison/drugs and the other being self-hanging. According to PW4, none of the versions caused the death of the deceased. He gave expert reasons about the signs of the two causes of death. That in the former cause, it would have been found that the deceased had either poison smell, vomiting or excretion. While in the latter cause, signs like the tongue protruding out of the mouth and separation of the back of the neck cervical and trachea due to the tying of a rope. PW4 however, said that, according to his examination the deceased death was caused by strangulation as there were 10 marks/bruises at the base of the tracheas and the cartridge of the tracheas was pressed (tense) caused by a strong press. In his defence evidence, DW1 said that the deceased hanged herself with a cloth tied on the iron bar at the top (vent) of the door. That he untied her and lay her down. There is no explanation about the height of the door. Also no explanation as to where DW1 stood in order to untie the cloth. This makes me to believe the PW3's evidence that the height of the door could not support a person to hang there. Again, the circumstance like the evidence by DW1 that when he opened the door he found the deceased swinging does not make sense since swinging means there was no place to lean on or rest on. But if the door was closed means there was a door to lean on. Much important is the expert explanation offered by PW4 that the deceased cartridge of the trachea was dense which is caused by a strong pressing. The accused version as to the cause of death of the deceased is thus rejected and this court finds the prosecution version that the deceased was strangulated a correct version due to the evidence and the reasons assigned above. On the conclusion made in first issue, it is time now to resolve the second issue of whether is the accused person who strangulated the 11 deceased, hence murdered her. Again, the guiding principle is that of he who alleges must prove. And the prove is beyond reasonable doubt. I should make it clear at the very outset that, in this case no direct evidence was adduced by the prosecution side. All the witnesses, adduced evidence to set a chain of circumstances pointing finger to the accused to be the murderer of the deceased. The rule regarding circumstantial evidence is not provided in the evidence statutes. It is a case law made rule. Substantially, the rule requires 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 explanation or any reasonable hypothesis other than that of guilt. This 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: 12 "...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 Court of Appeal of Tanzania 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." The evidence by both parties, that is the prosecution side specifically PW1 and PW2 and the defence side by DW1, that the deceased was a wife of the accused person and they lived together with their child, who was eight months of age. It is also according to PW4 evidence that strangulation cannot be effected by a deceased herself. That strangulation should be cause by another person. In that regard, it was upon the accused person to explain how the deceased was strangulated and who did so if it is not him (the accused). 13 The accused acted in the manner raising suspicion to his innocence. According to PW4, the press was by force. This creates a bad motive of a person who committed the act. It was PW1 evidence that the accused person did not in the first instance say what happened to his wife (the deceased) though PW1 was called to assist and she found the deceased in a critical condition. In my concerted view, the accused later explanation to PW1 and PW2 that he found the deceased hanged herself is a cooked story. It thus raising much probability against his innocence. Again, the accused averment about the deceased hanging herself have been already found to be a mere story in the preceding issue because, the proof from PW4 was that the death of the deceased was caused by strangulation. I have also considered the conduct of the accused person which infers him to have involved in the strangulation of the deceased. That is the two versions of the cause of death which he gave to PW2. It is the evidence that, he firstly said the deceased hanged herself then changed the story that she poisoned herself. On that fact, a question raises, if she really hanged herself, what was the reason for the accused person not disclosing the fact at the first instance, what was the reason of hesitation. 14 I have also considered that there were contradictions in the prosecution evidence in which PW1 said she saw a piece of cloth tied to the door of the bedroom while the same cloth was not seen by PW2 nor PW3 but all of them went to the scene. However, the contradictions did not go to the root of the case as the evidence of PW3 explained to the satisfaction of the court that the length of the door did not support a person to hang thereat. It is also my reasoning that there was no statement as to the presence of the chair or any instrument used to stand on for hanging or by a person untied the cloth from the iron bar. In my view, if there was evidence about presence of any instrument, would have made this court to believe that there was considerable height enough for a person to hang. There is also a claim by the accused that the deceased had another man before married to him and that that man was doing development to the father-in-law. However, the claim does not make sense. Because, the story cannot be linked with the accused allegation of the deceased hanging herself. Though it was the accused person's father-in-law who called the police upon the accused given contradicting versions of the cause of death, it cannot be said that the evidence by 15 PW4 that the cause of death was strangulation was coached or cooked. The accused also gave evidence that he found the deceased swinging but started to untie the cloth which the deceased covered herself and then untied the cloth used to hang herself. Again, this brings confusion ————————-----------------------------------------------------------------------I and corroborates the prosecution evidence on the conduct of the accused person since the explanation is improbable. Notwithstanding the finding that the deceased was strangulated, and it is the accused who strangulated her, the question to be discussed is whether the strangulation amounted to murder. A person is guilty of murder when causes a death of another person with malice aforethought. This is per section 196 of the Penal Code, Cap. 16 R.E 2022, which provides that: "196 Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder." 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 16 or grievous harm, knowledge that the act or omission will probably cause death, an intention commit a graver 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, there is evidence by PW1, the first person to arrive at the scene he told this court that she observed things in no order suggesting a certain fracas. It is also the evidence of PW3 that at the scene they found one plate and two spoons suggesting that two persons had eat together. From this evidence it is my considered view that the accused and the deceased were in good terms before a fracas occurred. It is also my observation inferred from PW1 evidence that the accused 17 and the deceased engaged in a fight which caused the accused to strangulate the deceased. My reasoning is also supported by the conducts of the accused which in all fours do not indicate any sign of intention to cause the death than a remorseful person. This is due to the reason that, the accused remained with the deceased until met his death. He called PW1 for help. In assistance of PW1 and the wife of his landlord took the deceased to the Hospital. Thereat the Hospital he was asked to bring a PF3 where he rushed to find it at Polce Station. In accompany of his relatives, they went to his parents-in-law to inform them about the death of the deceased. Furthermore, it appears from evidence of PW1 and the defence that the accused tried to give the deceased a first aid. PW1 told this Court that when entered the room beside the laying down of the deceased there was a glass of water and drugs. Are about these drugs the accused said that he tried to give first aid to the deceased though on his account that when he untied her from where she hanged herself. In the premises, it is my findings that the prosecution has failed to prove beyond reasonable doubt that the accused, with malice aforethought killed the deceased. 18 Owing to the above analysis, I find the accused person not guilty of murder. Alternatively, I find him guilty of manslaughter of LOVENESS D/O DANIEL KAYANGE. Consequently, I convict him of the offence of Manslaughter contrary to sections 195 and 198 of the Penal Code, Cap. 19 SENTENCE The accused before this court one Mussa s/o Charles Mpandachalo is convicted for Manslaughter c/s 195 and 198 of the Penal Code. Section 195 of the Code creates the offence of Manslaughter whereas section 198 provides for statutory sentence for the offence. The statutory sentence for the offence is Life Imprisonment. The law provides for it being the maximum. The law does not provide minimum of it. Taking into account the wordings of the provision and the long time interpretation of it, the sentence is not mandatory, but discretionary. It is the position of law that whenever the court is vested with discretionary powers, those powers must be exercised judiciously. In that regard there are factors which the court must take into account when exercising its discretion. The factors are contained/obtained in the case laws and others in the Judiciary Sentencing Guideline. But again the court must take into account the mitigating factors and aggravating factors when sentencing the accused person so as to arrive to appropriate sentence. I have considered the aggravating factors as i submitted by the learned State Attorney. In fact, there is no any aggravating factor raised so to say. Apart from the blanket prayer that the accused be given appropriate sentence according to the law. Mitigating for the accused person, Ms. Mseja learned counsel told the court that the accused is the first offender. Notwithstanding what happened, the accused tried his best to serve the life of the deceased. That having noted the condition of the deceased is going worse, he got out calling his neighbours for help. He with the neighbours took the deceased to the hospital. That at the hospital he was told to go to pick PF3 to the police station. He obeyed and then returned to the hospital where he met the deceased to have passed away. Further that the accused has been in remand prison since 2021 to date almost three years. That during their marriage they were blessed with one child who at the date of event was only eight (8) months and it is the accused who has to take care of it following the demise of the mother. The counsel prayed the court to give the accused the most lenient sentence. I have considered the conduct of the accused particularly after notice the condition of the deceased was going worse, his zeal to rescue his wife as submitted by the learned counsel. All these conducts of the accused 2 give impression that though the accused committed such an offence it was out of his negligence. He did not foresee the outcome. He is very remorseful for what happened. I have further considered the whole circumstances surrounded the commission of the offence to wit there was no weapon used or any dangerous weapon. That means the gravity of the offence is quite diminished. I have assessed and find it as a low level of seriousness of the offence and the sentence to that level ranges from four (4) years to absolute discharge. The maximum being 4 years. So I hold that the appropriate sentence is four (4) years. Deducting three (3) years the accused has been in remand prison remains one (1) year minus one third of. I have considered the fact that the accused is the first offender. Further the way he tried to rescue the life of his wife. Again the accused personal factors that it is the one now who is now responsible to take care of the sibling left behind by the deceased. I hereby discharge the accused on condition that he should not commit any criminal offence for a period of (12) Twelve months as per 3 section 38 of the Penal Code (Cap 16 R.E 2022) for offence of Manslaughter contrary to section 195 and 198 of the Penal Code (Cap. 16 RE 2022). It is so ordered. D. B. NDUNGURU JUDGE 10.07.2024 4