Judgment Shija Lutonja murder 2 CH

IN THE HIGH COURT OF TANZANIA ORIGINAL JURISDICTION MWANZA SUB-REGISTRY AT MWANZA CRIMINAL SESSIONS CASE NO. 69 OF 2021 THE REPUBLIC VERSUS SHIJA S/O LUTONJA ……….…………………………………. ACCUSED PERSON JUDGMENT 6th May, & 23rd August, 2024 CHUMA, J. In the instant case, the accused person namely Shija Lutonja (who shall be hereunder referred to as an accused person), is charged with the offence of murder, contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R. E. 2002]. It is alleged by the prosecution side that, on 28.9.2018 at Mwamagili Village within Misungwi District in Mwanza Region, the accused person murdered one Nyanda Manyhamilu (hereunder shall be referred to as the deceased person). However, the accused person denied the allegations by pleading not guilty to the charged offence. In the event, the prosecutios side parraded five (5) witnesses namely, Isack Kikuyu (PW1), Wilson Saimon Membe (PW2), Milembe Lumolumo (PW3), F.4345 D/CPL Narcis (PW4) and H. 81 D/C Michael (PW5). The prosecution tendered two exhibits all of which were 1 admitted. These are Postmortem Examination Report (Exhibit P1), and Sketch Map (Exhibit P2). The defence called no witness apart from the accused himself who testified as DW1 and tendered no exhibit. When the matter was placed beore me for trial, Ms. Jaines Kihwelo along with Ms. Naila Chamba, Mr. Deogratias Rumanyika, Ms. Sara Perias, and Ms. Tabitha Zakayo, learned state Attorneys, represented the Republic while Mr. Amri Linus learned Advocate, represented the accused person. The brief evidence from the prosecution's witnesses are as follows: PW1 a retired Assistance Medical Officer who was stationed at Misungwi District Hospital testified that on 29th September 2018 in the morning, he was instructed by his supervisor to join the Police and all went to the scene of crime in Mwamagili village. At the scene, he examined the body of a male person (the deceased person). After the examination, he prepared a postmortem examination report which was tendered and admitted in court as exhibit P1. PW1 further testified that the findings of the performed examination after inspecting the body suggested, that the deceased sustained multiple injuries on his head, and neck and cuts in his hand. He concluded that the cause of the deceased’s death was excessive bleeding caused by the injuries inflicted by a sharp object. He further testified that the death occurred on the 28th of September, 2018. 2 When cross-examined by Mr. Linus, PW1 testified that he does not have a registered number as a doctor because first there was no such requirement while practicing as a doctor but when it was introduced, he applied for the same but unfortunately, he retired before getting the number. PW1 further stated that he obtained the post mortem form from the police, and conducted a physical checkup without using any tool. He saw the deceased body inside the house near the door and it was dried. PW1 was told by the relative that the crime occurred on the 28th, around 20:00 hours but he filled the report on the 29th of September, 2018 the day he carried out the postmortem examination. PW2, who identified himself as the Village Executive Officer (VEO) for Mwamagili village who served at the time of the murder incident to date,stated that on the 28th of September, 2018, he was at Misungwi and he was informed by Mr. Ngimila Kaji through a phone call that Mr. Nyanda Manyhamilu who was a hamlet leader was killed by unleashed with a machete (“panga”). He informed the OCCID of Misungwi, who promised to join them (the police) the next day early in the morning (29th September 2018) to visit the scene of the crime as the crime happened during night hours on 28th September 201. That he saw a dead person whose body was lying down. He further testified that the body had so many wounds, 3 that he continued with the investigation and it was when the widow stated the scenario on how the crime happened. According to that widow she was asked by a certan person if the house belonged to a Hamlet leader while the other one attacked the deceased who was inside the house. And that , the widow managed to recognize one person by the name Shija Lutonja. PW2 further testified that after some time someone went to his office and asked for a letter so he would be able to apprehend the accused with the help of militiamen in the Kiziziba A village because the accused was hiding there and he did that, he identified the accused at the court’s dock. In cross-examination, PW2 testified that they reached the scene of the crime around 9:00 hours though he was not sure as he did not check the time, he described the body was attacked with a machete by looking at it, he informed the police that the accused whereabouts discovered after being informed by the person whom he wrote a letter, and the accused was arrested on 19th November, 2018. PW3 the deceased’s wife testified with the help of an interpreter by the name of Ms. Neema Moris, that she was one of the deceased’s wives however on the fateful day the second wife was not around as she went to her village. She testified that the deceased was killed on 28th September 4 2018, when they were having dinner. That while there one person came and asked if it was the house of a hamlet leader, she replied yes it was then another person showed up and went to the house where the deceased was having dinner, followed by the one who was outside their house, the accused, unleashed a machete (“panga”) and hit her on the head. This alerted her and the deceased who attempted to scamper for safety. Lucky eluded the deceased as the attackers got the better of him and stabed him with machete (panga ). She then ran to her villagers for help. PW3 stated further that she was able to identify Shija Lutonja who held the panga with a help of a bright solar torch that shone at the scene, making the identification easy, since he was from the same village and was known to her very well. She identified the accused person who was in the dock. In cross-examination, PW3 testified that her husband was attacked on the head, shoulder, and hand, when she was recorded at the police station there was an interpreter along with her daughters and sons, she was not the one who wrote rather it was the police who asked her questions. She did not see the attackers killing her husband as she was outside and her husband inside but she saw the attackers and the accused 5 assaulted her with a machete too. Assailants also had a torch; they were within a very short distance of the accused. PW4 a detective police officer who is based at Misungwi Police Station in Misungwi District stated that on 20th October 2018, he received a file of murder case of the deceased namely Nyanda Manyhamilu, and was instructed to carry out an investigation. He recalled that on 20th November 2018, he was informed by Fred Mpandula ASP that accused Shija Lutonja was the culprit and was apprehended on 19th November 2018 and was in a cell. He testified that he went through the accused caution statement whereby he found other assailants and managed to arrest them too one Nkola Lukwaja the deceased’s young brother, Joseph Charles, and Mwamagili but they were released as the deceased did not recognize them at the scene of crime. So, his involvement in this murder incident entailed carrying out an investigation. In cross-examination, PW4 testified that he was not the one who recorded the accused statement, and the eye witness did mention that the accused was not alone there were some other people. He knew the accused before the crime, and there was no necessity to conduct an identification parade as the accused already confessed to the crime. 6 PW5 testified to the effect that while at the station along with other police officers he was informed by the Officer Commanding the Investigation (OCCID) that a murder incident had occurred at the Mwamagili village. He together with Bahati Mashauri rushed to the scene of the crime and managed to draw a sketch map of the scene of the crime on 28th September 2018.The sketch map was tendered and admitted in Court as exhibit P2. He went on testifying that the deceased was killed by a sharp object by his assailants and found the body lying down in the corridor near his room. In cross-examination, PW5 testified that he handed over the map to the OCCID. After the closure of the prosecution evidence, this Court ruled that a prima facie case was established sufficiently enough to require the accused enter defense, and addressed the available rights in terms of sections 293(2)(a) and (b), (3) and (4) of the CPA, whereas he opted to enter defense on oath without calling the witness. Shija Lutonja (DW1) in his defence after an oath stated that he lives at Mwawile Village in Misungwi District a father of five children and two wives. That he never moved from Mwawile to anywhere. On 28.9.2018, he was at his place and it was on 19.11.2018 when he went 7 to buy some maize from one Sopra at the center. While there three people along with two police officers arrived and Maliwa Wales pointed at him leading to his arrest and was taken to Misungwi Police Station where he was interrogated after five days and later after two days he was arraigned before the court for a murder case. There was a feud of farmlands between him and Maliwa Wales because he trespassed into his land in 2007, as result opted to lodge his complaints at Inonelwa Primary Court, and won the case, in 2010 he again filed a land case at the Ward Tribunal which was heard ex-parte as Maliwa failed to show up regardless of being served with a summons. He never attacked anyone, he did not know the deceased or his place, and he came to know him for the first time in the police station as the police mentioned him. He finalized his testimony by denying the charge against him. In cross-examination, DW1 stated that he does not do farm work at night, stated that he had a quarrel with Maliwa, and Maliwa did not testify against him before the court. He lived in Mwawile but was arrested at Mwagiligili village and he did not bring his wife who was with him on the day of the crime, he was arrested and all the evidence was at his residence. 8 That marked the end of the evidence on defense side. After the closure of the evidence on both sides, the counsels did not opt to make final submissions. The crucial issue to be determined herein is whether the prosecution’s evidence has proved the charge against the accused person beyond reasonable doubt as the law requires. However, I am aware that, the conviction of the accused person of an offence he is charged with should never be based on the weakness of his defense but rather the same must arise from the strength and cogency of the prosecution’s evidence. On the other side, the law is well settled on the part of the accused person since he merely has to deny involvement in the offence he is charged with. This is an ancient canon of law as highlighted in the legendary commentaries made by Sarkar on Sarkar’s Laws of Evidence, 18th Edition., M.C. Sarkar, S.C. Sarkar and P.C. Sarkar, published by Lexis Nexis. On page 1896 of the said commentaries, the learned expertly states as follows: “…. the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is an ancient rule founded on consideration of good sense and should not be departed 9 from without strong reason …. Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party…” [Emphasis added]. In respect of criminal cases, this principle is as old as the criminal law itself, and courts have, countless times, laid an emphasis on its observance. In Joseph John Makune Vs. Republic [1986] TLR 44, it was held: “The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case. The duty is cast on the accused to prove his innocence. There are few well- known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities ….” The mighty significance of this requirement was yet again discussed, in George Mwanyingili Vs. Republic, CAT-Criminal Appeal No. 335 of 2016 (Mbeya-unreported), wherein it was reaffirmed as follows: “We wish to re-state the obvious that the burden of proof in criminal cases always lies squarely on the shoulders of the prosecution unless any particular 10 statute directs otherwise. Even then, however, that burden is on the balance of probability and shifts back to prosecution.” This being a murder charge, the prosecution’s immense responsibility is to prove, not only that the accused unlawfully caused the death of the deceased, but also that the accused was equipped with an ill intent of causing the said death. In legal parlance, this ill intent is known as malice aforethought. The question before the court is whether the alleged offence was proved beyond a reasonable doubt. It is incontestable from facts gathered in this trial, that the case against the accused is centered on visual identification by recognition and circumstantial evidence. That none of the prosecution witnesses adduced evidence to the effect that they saw the accused committing the offence of murder. However, the prosecution side alleged that the accused was seen at the scene of the crime with a machete and entered the deceased house, screaming loudly seeking help, and when people gathered, he was already dead, his body lying down lifeless. On the other side, the accused person has strongly denied the allegation in his defense. As I have stated earlier, the case against the accused person is centered on circumstantial evidence. I am aware that, it is cardinal law, in our jurisprudence, that conviction in respect of an offence can be founded on circumstantial 11 evidence, only if such evidence irresistibly leads to the conclusion that it is the accused and no one else who committed the crime. In other words, the facts adduced by the prosecution must be incapable of any other interpretation than that the person in the dock is guilty of the offence charged. In R Vs. Sadrudin Merali, Uganda High of Court Cr. A. No 220 of 1963 (unreported), Sir Udo Udoma, C.J. "… It is no derogation to say that it was so for it has been said that circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics". Applying the above legal position in the instant case since it arises from the testimony adduced by PW3, Milembe Lumolumo, who stated in court that on the fateful day (28.9.2018) it was dinner time when someone came and asked if it was hamlet leader house she replied yes then another went straight to the house where the deceased was having a dinner and it was the accused person who dares the PW3 not to do anything otherwise she will also face the consequence, she managed to recognize the accused because she knew him before and there was a solar light as both the accused and the deceased had torch in their hand. I have 12 gone through the testimony of PW3 (pages 34-36 of the proceedings) to satisfy myself if at all the same can warrant conviction against the accused. From the outset, I find the testimony of PW3 is not sufficient to warrant conviction. The reason being that, if at all the deceased had a torch at the scene PW3 managed to identify the accused therein. However, PW3’s testimony is silent on the clear intensity of the torch her husband had holding as well as the distance from where the accused person was. However, PW3 in examination in chief appeared to suggest that (page 35 of the proceedings) that she had also a torch and the accused had also a torch, whereas, at the start at page 34 of the proceedings, PW3 stated that it was only her husband who had a torch which assisted her to identify the accused at the scene. In my settled view, the noted inconsistency renders this court to disbelieve her testimony if at all she managed to identify the accused person at the scene of the crime committing the alleged offence. In the case of Aloyce Maridadi Vs. Republic, Criminal Appeal No. 208 OF 2016 (CAT- MTWR) (Unreported) on page 7 the Court had this to state; ”Good reason for not believing a witness include the fact that the witness has given improbable or implausible evidence or the evidence has been 13 materially contradicted by another witness or witnesses…” In the instant case and having in mind the above legal position, since there is no evidence suggesting if at all the intensity of the light of the torch held by the deceased or PW3 as alleged later was heavier compared to that held by the accused at the scene. Therefore, under these circumstances, this court is skeptical to rely on such weak evidence to convict the accused person on a mere identification by recognition because the bandits used to hide their identity, hence the bandit can't go at the scene with a torch having a weak light. The reason is that, visual identification by using a torch the Courts need to take such evidence with precaution and I am being guided by the Court of Appeal in the case of Masanja Lupilya Vs. Republic, Criminal Appeal No. 444 OF 2017 (CAT-SHY) (Unreported) on page 10 the Court of Appeal cited with approval the case of Hamis Hussein & Others Vs. Republic, Criminal Appeal No. 86 OF 2009 (Unreported) where it was stated; “We wish to stress that even in recognition cases when such evidence may be more reliable than the identification of a stranger, clear evidence on the source of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone 14 whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made.’’ In the instant case, the intensity of the alleged torch was not stated anywhere to prove the fact that the accused was positively identified at the scene of the crime. More so, if at all the deceased, PW3, and the accused had a torch at the scene as testified by PW3 (see pages 34 and 35 of the proceedings), in my settled view that the one who holds a torch is in better position to see where he points a torch. Otherwise, the evidence on record indicates to suggest that, PW3, the deceased, and the accused had a torch at the scene of the crime. Under common sense, where there are more than two lights from the torch in the same direction while the accused pointing a torch at the place where PW3 and the deceased were raises some doubts if PW3 managed to identify the accused. On this shortfalls, I am guided by the Court of Appeal in the case of Masanja Lupilya Vs. Republic (supra) on page 12 where the case of Michael Godwin And Another Vs. Republic, Criminal Appeal No. 66 OF 2002 was cited and the Court held; “It is common knowledge that, it is easier for the one holding or flushing the torch to identify the person 15 against whom the torch is flushed. In this case, it seems to us that with the torch light flushed at them, PW1 and PW2 were more likely dazzled by the light. They could therefore not identify the bandits properly.” I wholly subscribe to the above legal position and place it in the instant case, I say so because the accused’s defense that he was not at the scene of the crime seems to raise doubts against the prosecution evidence suggesting to implicate him. That his defense was to the effect that, he never moved from Mwawile to anywhere. And on 28.9.2018, he was at his place and it was on 19.11.2018 when he went to buy some maize from one Sopra at the center, it was then three people along with two police officers arrived and Maliwa Wales pointed at him and he was taken to Misungwi Police Station and was interrogated. In my settled view, I find the accused defense has raised some serious doubts that at the material date, he was not at the scene of the crime as alleged by the prosecution side. Another reason to justify that, the accused was not positively identified at the scene is that the circumstance of the occurrence of the alleged incident indicates the incident had occurred in a violent at night and the accused is alleged to be known by PW3 before the incident. In the case of Philipo Rukaiza @ Kitwechembago Vs. Republic, 16 Criminal Appeal No. 215 OF 1994 (CAT-MWZ) (Unreported), the Court of Appeal had this to state and I quote; “We wish to say that, it is not always impossible to identify assailants, even every violent one, even at night, and even when where the victims are terrorized and terrified. It is evidently because of this truth that even bandits who scatter terror and are in danger in barbaric acts sometimes take the precaution of disguising themselves with various artifices. The evidence in every case where visual identification is what is relied on must be subjected to scrutiny, due to the regard being paid to all the prevailing conditions to see if, in all the circumstances, there was a really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility of error has been dispelled. There should be a mistake in the identification notwithstanding the honest belief of another truthful identifying witness”. Applying the above case law herein, the circumstances of the matter at hand indicate that the intensity of the alleged torch used by PW3 and the deceased was uncertain compared to the torch used by the accused person, and more so, since the alleged incident had occurred in horrible circumstances in my settled mind under those circumstances, I find the 17 accused person was not properly identified at the scene as alleged by the prosecution side. Having said so and after finding the testimony of PW3 who alleged to have seen the accused at the scene to have been weak to warrant a conviction, I eventually find the testimonies of the other prosecution witnesses (PW1, PW2, PW4, and PW5) deserve to be hearsay evidence. In the event, their evidence cannot warrant conviction against the accused person since they were not at the scene of the crime. All said and done, I am satisfied the prosecution evidence falls far short to prove the alleged offence of Murder against the accused person (Shija Lutonja) contrary to section 196 of the Penal Code in the required standard. Consequently, I find him not guilty, and is hereby acquitted interms of Section 235 (1) of the Criminal Procedure Act. In the event, I order the accused person to be released from the prison forthwith unless he is held by other lawful cause. It is so ordered. Right of appeal explained. Dated at Mwanza this 23rd day of August 2024. W.M. CHUMA JUDGE 18 Judgment delivered in open court before Mr. Allen Mbuya State Attorney for the Republic and Mr. Pauline Michael holding brief for Mr. Amri Linus advocate for the accused person this 23rd day of August 2024. W.M. CHUMA JUDGE 19