JUDGMENT SELEMAN

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (IN THE SUB-REGISTRY OF MWANZA) ORIGINAL JURISDICTION AT MWANZA CRIMINAL SESSIONS CASE NO. 49 OF 2022 THE REPUBLIC VERSUS SELEMANI S/O OMARY @LOTI ………………………………….…... ACCUSED PERSON JUDGMENT 30th August, 2024 CHUMA, J. One Happiness Emannuel died on 27th July, 2021 on account of grievous injury allegedly to have been inflicted by the accused person on 22nd July, 2021 at Nyegezi Kona area within Nyamagana District in Mwanza Region. At the instance of the death, the accused person was arrested and charged with murder contrary to sections 196 and 197 of the Penal Code Cap. 16 [R.E 2019] (now R.E. 2022). The accused denied the charge hence a trial was ensued. With a view of proving the charge against the accused, the prosecution summoned six witnesses and tendered three exhibits to wit, a Postmortem Report (P1), Dying Declaration (P2), and Police Form No. 3 (P3). The defence on the other hand had the evidence of the accused person only. 1 At the commencement of the hearing, Ms. Jaines Kihwelo, Naila Chamba, Deogratias Rumanyika, Sara Perias Berasi, Thabitha Zakayo, and Adam Mulusuri, all learned State Attorneys appeared representing the Republic. The accused person was represented by Mr. William Muyumbu, learned counsel. The prosecution started with Emmanuel Christopher (PW1), the deceased’s husband. On 21st July, 2021, when PW1 was at Amy Club with his friends Alex and Mike, the accused arrived and asked for TZS. 200.00. After being given the money, he left them to spend the night. At around 5:30 hours, PW1 went back home where his wife opened a door for him. He changed his clothes and went to work as he was a bus conductor. After two hours, to be precise at 6:30 hours, Alex called PW1 informing him that his wife was attacked. He rushed back home only to find his wife with injuries on her ear, cheek, and mouth. When PW1 inquired from Alex, he was told that it was the accused who attacked his wife. PW1 took his wife to Nyegezi Police Station, they recorded their statements and after being issued with PF3, they went to Butimba Hospital for treatment. Ngusa Masanja (PW6), a medical Doctor at Nyamagana Hospital, attended to the deceased person. His evidence was that the deceased had an injury on her right ear. He gave her antibiotics and discharged her, for, she was not seriously sick. Despite the treatment, the deceased’s health condition kept on deteriorating 2 hence PW1 sent her back to her parents in Sengerema. On 29th July, 2021 at 7:00 am PW1 was informed of the passing on of his wife. Further, on 31st July, 2021, Felister Mbaga (PW2), a medical officer working at Sengerema Hospital, conducted a post-mortem examination and found the deceased body with injuries on her mouth and right ear and the body was emitting pus. According to PW2, the cause of death was that she suffered injuries to his head. Such results were filled in the Post-mortem Examination Report which despite objection from the defence, was admitted under section 169 of the Criminal Procedure. Reasons for such an admission will be exhibited shortly. The prosecution had also the evidence of the investigator one D/SGT James (PW3). He had no direct evidence linking the accused but he coordinated the investigation process especially the examination of the deceased body. There was evidence from Ester Philipo (PW4), the deceased mother whose evidence was mainly affirming that her daughter was injured and on 25th July, 2021, she took her to Sengerema hospital for further medical attention. It is PW4 who informed PW1 of the passing on of the deceased. PW5, Detective CPL Credo, was the last but one prosecution witness to testify. On 22nd July, 2021 while at Nyegezi Police Station, he met PW1 and the 3 deceased who was injured. PW5 recorded their statements and gave them PF3 for treatment. The deceased statement, a dying declaration, was tendered and admitted as exhibit P2. In his defence, the accused disassociated from the charges stating that on 27.7.2021 he was arrested by the police officers on the allegations that he committed the offence of grievous harm. However, on 15th September, 2021, he was arraigned before the District Court of Nyamagana facing the charge of murder. I have carefully considered the evidence supporting and against the information of murder. At the outset, the prosecution and the defence side are not in dispute that Happiness Emannuel died on 27th July, 2021. Likewise, according to the testimony of PW1, PW2, PW4, PW6, and exhibits P1 and P3, it is evident that the deceased's death was instigated by the injuries she suffered after being attacked on the face and head. Simply put, through such evidence, the prosecution proved that the deceased’s death was not natural. As such, it is now the right moment to determine the following issues: (a) Whether the accused person injured the deceased person hence caused her death. (b) Whether the accused killed the deceased with malice aforethought 4 For a start, it is imperative to state the obvious cardinal principle that in the criminal justice system, the burden of proving a charge against an accused person is on the prosecution. There is no obligation on the part of the accused to prove his innocence. As such, it is incumbent upon this court to direct its mind to the evidence produced by the prosecution in order to establish if the case is established against the accused person. On whether the accused injured the deceased, there are two pieces of evidence tendered by the prosecution, there is evidence of PW1 and dying declaration (exhibit P2). As for PW1’s evidence, it is common cause that he did not witness the accused committing the offence. His testimony against the accused was largely hearsay, for, the name of the accused was mentioned to him by Alex. Thus, PW1’s evidence was hollow, useless, and inadmissible. In the case of Vumi Liapenda Mushi Vs. Republic (Criminal Appeal No. 327 of 2016) [2018] TZCA 197 (12 October 2018), the Court of Appeal made the following remarks on hearsay evidence: “It is evident from the record that PW1, PW2, PW4, and PW5 did not witness the incident. Their evidence was indeed hearsay. Hearsay evidence is of no evidential value. The same must be discredited”. 5 In the same way, it is an undeniable fact that a person named Alex was a material witness in this case as he would testify not only what he told PW1 but also what he saw at the scene. But for unknown reasons, the prosecution during the conduct of the case failed to bring this important witness. The omission entitles this court to draw an adverse inference. This is consistent with what has been held by the Court of Appeal of Tanzania in its numerous decisions. See for instance, the cases of Azizi Abdallah Vs. Republic (1991) T.L.R. 71, Haji Bakari Hassan Vs. Republic, Criminal Appeal No. 365 of 2004 (unreported), and Sungura Athuman Vs. Republic (Criminal Appeal No 291 of 2016) [2018] TZCA 466 (19 November 2018). In Azizi Abdallah, the Court held among others that: “The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution" Next for the court’s consideration is the legality and weight attached to the dying declaration (exhibit P2). Before delving into the nitty-gritty of the matter, it is not insignificant to state the reasons behind the admission of the statement. 6 In respect of tendering and admission of exhibit P2, it is common ground that the defence objected to the prayer under Section 34B (2) (d) and (e) of the Evidence Act Cap. 6 R.E 2022, for, the prosecution failed to serve the defence with a notice. This court, having satisfied on the import of section 169 (1) of the Criminal Procedure Act (herein under CPA) that the admission of exhibit P2 would specifically and substantially benefit the public interest without unduly prejudicing the rights of any person, exercised its discretion powers by admitting the statement. Further reasons for the admission were spared but they will be explained shortly. Section 34B (1) and (2) of the Evidence Act is couched in the following terms: 34B.-(1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written or electronic statement by any person who is, or maybe, a witness shall subject to the following provisions of this section, be admissible in evidence as proof of the relevant fact contained in it instead of direct oral evidence. 2) A written or electronic statement may only be admissible under this section- a) N/A b) N/A 7 c) N/A d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; e) if none of the other parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence: (emphasis added). Thus, as correctly argued by Mr. Myumbu, before the prosecution seeks a statement to be tendered, the precedent conditions specified under section 34B (2) must be complied with, and amongst them are, service of the notice on the accused and issuance of ten days' notice to the court and the opposing party prior to the date of hearing. There is a plethora of authorities that have given true interpretation of the requirements. In the case of Six Ilanga @ Msaka Vs. Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23rd February 2024), the Court of Appeal held the following: “Among those preconditions of proper recording dying declaration are: first, the maker must sign; second, issue ten (10) days' notice to the court and the opposing party prior to the date of the hearing; and third, the recording person must indicate that he read its contents to the maker …” 8 See also the case of Adinardi Iddy Salimu and another Vs. Republic, Criminal appeal No. 298 of 2018 (unreported) There is no dispute in this case that the dying declaration was listed as one of the exhibits intended to be relied upon by the prosecution. It is also clear that there was no formal notice served on the accused person in line with section 34B (2) (e) of the Evidence Act. For the foregoing state of affairs, the question is whether this court was justified to overrule the objection and invoke section 169 of the CPA in admitting exhibit P2. Section 169 (1) of the CPA vests the court with discretionary powers to admit evidence that has been obtained in contravention of the law only if such evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights of the accused. However, as held in Jibril Okash Mohamed Vs. Republic (Criminal Appeal No. 331 of 2017) [2021] TZCA 13 (11 February 2021) and many other cases, the law is clear that when exercising the discretionary powers, the court is required to satisfy that the conditions stipulated under section 169(2) of the CPA, which provide for the scope within which the discretion powers is to be exercised, are conjunctively complied with. Such conditions go thus: (a) The seriousness of the offence 9 (b) The nature and seriousness of the contravention or failure. (c) The extent to which the evidence that was obtained in contravention in consequence of the contravention of or in consequence of the failure to comply with the provision of any law, might have been lawfully obtained. (d) All the circumstances of the offence, including the circumstances in which the evidence was obtained. From that legal position, it is clear that section 169 (1) and (2) of the CPA was properly invoked in the admission of the dying declaration because firstly, it was in the interest of justice to do so, secondly, considering the nature of the offence the accused stands charged, it was proper to admit the statement so that its weight and reliability could be assessed when making findings in the judgment. Thirdly, there was no evidence from the defence establishing that the accused would be prejudiced by the court receiving evidence that was obtained contrary to the law. Back to the merit, the issue is whether, through exhibit P2, the prosecution successfully proved that it was the accused who injured the deceased and eventually caused her death. I have carefully gone through the dying declaration; in fact, I have not seen the place where the deceased named 10 the accused and that he was responsible for attacking her. The witness not only failed to name the accused but also in her statement she did not mention the name of anyone else. More so, PW5 who tendered the statement did not explain how the deceased managed to give that information given the fact that, according to the witness's own admission, he received the deceased who was in a critical condition. In the case of Emmanuel Eliabi @ Sanga Vs. Republic (Criminal Appeal No. 327 of 2021) [2024] TZCA 3 (2 January 2024), the Court held for the dying declaration to be considered it has to be made freely out of consciousness or while sober. The prosecution had the responsibility to prove the status of the deceased at the time of making such a declaration. In view of the circumstances, I am certain that the dying declaration left a lot to be desired and the same cannot be relied upon to prove that no one other than the appellant harmed the deceased. Summing up, it is clear that, apart from the evidence of PW1 and the dying declaration which is not sufficient, there is not much prosecution evidence worth grounding the appellant's conviction. Since the prosecution has failed to prove that the accused attacked the deceased, the discussion of the second issue on malice aforethought has been rendered superfluous. 11 Consequently, I hold that the prosecution failed to prove the case against the accused person beyond reasonable doubt. He is hereby found not guilty and is accordingly acquitted as per Section 235 of Criminal Procedure Act. Right of appeal explained. It is so ordered. W. M. CHUMA JUDGE 12 Judgment delivered in open court before Agnether Annicet Learned counsel holding brief for William Muyumbu, Learned Counsel for the accused person and Mr. Felician Daniel State Attorney for the Republic this 30th day of August, 2024. W. M. CHUMA JUDGE 13