Republic vs Elikana Paul Pamasi Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA CRIMINAL JURISDICTION SITTING AT MPANDA CRIMINAL SESSION NO. 60 OF 2022 J REPUBLIC W .A'/: ', s, VERSUS 1. ELIKANA S/O PAULO @ PAMASI 2. SAGUDA S/OMATHIAS @ HUSHI 13/5/2024, 15/08/2024 ■ 1 JUDGMENT MWENEMPAZI,J. The accusedpersons are charged with the offence of Murder contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2019. It is alleged by the prosecution that the accused persons together on the 9th day of March, 2020 at Kapanga Village within Tanganyika District in Katavi Region, murdered one JUMA S/O SALU@CHELEHANI. i When the information of murder was read over and explained to the accused persons, both of them denied to have committed the offence. And at the preliminary hearing conducted under the provisions of section 192 of the Criminal Procedure Act, [Cap. 20 R.E.2022], the accused persons admitted only to their names and that they were arrested for the offence they are charged with at this court. At hearing the Republic was being represented by Mr. Kizito Kitahdala, the learned State Attorney and the accused persons were being represented by Ms. Helen Haule, learned Advocate. The Republic called nine (9) witnesses and the defence called (3) witnesses. Also, the prosecution tendered four (4) exhibits while the defendants tendered one (1) exhibit. According to the evidence, the accused persons and the deceased knew each other arid they were all residents of Kayenze Village, located at Kapanga Ward in Tanganyika District within Katavi Region. They are peasants as well as businessmen involved in livestock business. The latter profile features best in the profile of the 1st accused person and the deceased. On the 10th day of March, 2020, the deceased's body in this case was found lying on the ground in the bush by a child who was grazing cattle. It was the 2 son of the villager of Kapanga Village known by the name of Saganya Nengo. The kid informed Mr. Ezekiel Zefania, the hamlet chairman about the discovery he has made, and the chairman in turn called the Village Executive Officer, one Said Mustafa Wambali (PW1). The latter went with the said hamlet chairman to the scene where they found the person lying down already dead. The situation prompted them to call the police at Katuma '•‘yvx. ■ if .:-!,- . Police Post. They came with the medical officer from Katuma Dispensary who conducted post mortem examination and then after the villagers were allowed to bury the body of the deceased. As it was revealed earlier, the Said Mustafa Wambali (PW1) called the police, and the person who received the call was H. 2439 CpI. Batromeo (PW2). He is the one who, in turn, called the OC-CID the police at Tanganyika District. The OC-CID instructed PW2 to gb to the scene of crime accompanying the Doctor. At the scene on the date, apart from the body of the deceased they also found a jacket, stick and plastic sandals, commonly known as yeboyebd. The items were taken by the police who visited the scene of crime. This is the police who also drew a sketch map of the scene and recorded the witness statement of Said Mustafa Wambali (PW1). 3 Sele.rn.an All Ntenjela, PW7 testified that he is the one who examined the body of the deceased. He testified that he did that at the scene of crime. At the scene of crime, he found the body of the deceased lying down with blood around. The body had wounds on the head and at the neck. There was a fracture of the occipital bone. The wounds were huge and there had been profuse bleeding. In the post mortem examination report, which was admitted as exhibit P4, cause of death is recorded to ^"Haemorrhagic shock due to severe bleeding atthe head and neck" With the evidence on record there is no doubt that Juma s/o Salu @ Chelehani died unnatural death as a result of being hacked by a Machete. According to evidence by said Mustafa Wambali (PW1) and H. 2439 CpI. Batromeo (PW2) at the scene of crime people failed to identify the deceased and it remained a mystery in so far as the person (s) who had perpetrated the said death. Later, the body was identified by a passerby from Kayenze Village who unfortunately was not mentioned by name by the witness, to be that of Juma s/o Salu @ Chelehani. The relatives discovered the missing of the deceased and they received news that a person was found dead at Kapanga. They sought permission to exhume the body but were denied due 4 to corona, a pandemic at the time. This observation brings us to the question as to who was the perpetrator of the death of Juma s/o Salu @ Chelehani. It is the relatives of the deceased who assisted to unlock the mystery as to the person who may be the possible culprit and perpetrator of the death. As per the testimony of Shija s/o Jenga (PW5), he is the in-law of the deceased. a. 'f They had communicated with the deceased that on 06/03/2020 he will travel to Mwese with a mission to purchase cows. He knew persons who had been intimated to him by the deceased that he wilt accompany them, namely Nchibila s/o Bubinza and Elikana s/o Paulo. PW5 also Went to the auction on the 15/05/2020. He could not meet his in-law on the day. Since he knew persons who had been intimated to him by the deceased that he will accompanying them, namely Nchibila s/o Bubinza and Elikana s/o Paulo, PW5 started to look for the information from Nchibila s/o Bubinza who informed him that he left Juma s/o Salu with Elikana s/o Paulo on the way to Kayenze on the date they travelled from Mwese to Kayenze. It was on 09/03/2020 and that they last communicated on the date at 15:00 hours. PW5 also called Elikana s/o Paulo and inquired on the whereabout of Juma s/o Salu. The latter said Juma s/o Salu returned to Mwese to purchase more cows. Elikana S/O Paulo told Shija s/o Jenga that the cows which had been 5 bought by Juma s/o Salu earlier were sold to him. PW5 decided that they should meet with Nchibila s/o Bubinza on the 16/03/2020. He then reported at the police, Katuma Police Post. There, he met Juma, a police officer and together, they designed a strategy to look for Elikana s/o Paulo the first accused herein. On the same day, he met one Nkwabi s/o Salage who had also given four goats to Juma s/o Salu so that he leads them with his cows. They joined force to look for Elikana s/o Paulo; together they reported at the police, received RB number and went to look for Elikana s/o Paulo at Kayenze. There, they could not find felikana s/o Paulo, the first accused, thus they left for Mpanda; they slept there and the, the next day on 17/03/2020 in the morning they were able to arrest him while in the Ally's Bus which travels between Mpanda and Mwanza. He was about to leave for Mwanza. Elikana s/o Paulo was taken to Tanganyika Police Station, where upon interrogation by G. 8430 CpI. Emmanuel he narrated how they were able to murder Juma s/o Salu in collaboration with the second accused, Saguda S/O Mathias @ Hushi. The story, whose content contained admission to commit the offence he is suspected to have been involved, led to the arrest of 6 Saguda S/o Mathias© Hushi, the second accused person. He was arrested at Kayenze village. In the statement by Elikana s/o Paulo which was admitted as exhibit P2 he stated that on the 5th March, 2020 at 12:00 hours he met Saguda s/o Mathias @ Hushi at Kayenze village. Saguda asked to borrow money Tshs. 50,000/= from Elikana s/o Paulo who told him he has no money. He told Saguda s/o Mathias the available cash is Intended to purchase cows at Mwese. He informed Saguda s/o Mathias that there is already an arrangement to travel to Mwese, where he will be accompanying Chibula s/o? and Juma s/o? Saguda s/o Mathias told Elikana s/o Paulo that he has no money and he is in search of a way to obtain the same. He informed him that when they will be returning from Mwese, Elikana s/o Paulo should inform him so that he intercepts them at Kapanga village. His (Saguda s/o Mathias) plan is to kill Juma s/o Salu and take money. Indeed, on the 05/03/2020, Elikana s/o Paulo, Juma s/o Salu and Nchibila s/o Bubinza travelled to Mwese. They were able to procure six cows. Until on the 08/03/2020 Elikana s/o Paulo had not been successful to buy any cow. The same day they decided to return to Kayenze. The journey 7 commenced on 09/03/2020. On their way, Nchibila s/o Bubinza left them as he had a motorcycle. Also, he only carried a goat on the motorcycle. After Nchibila s/o Bubinza had left, Juma s/o Salu received a call from Nkwabi that eight cows have been found they are on sale. Juma s/o Salu @ Chelehani decided to sell his cows to Elikana s/o .Paulo for Tshs. 2,200,000/=. Elikana s/o Paulo was able to pay Tshs. 1,800,000/= and remained owing Juma s/o Salu Tshs. 400,000/=. Nchibilq s/o Bubinza at the Up­ time had left and did not know the ongoing transactions. Nkwabi also had instructed Juma s/o Salu to take with him his four goats. As part of an agreement, Juma s/o Salu had to escort Elikana s/o Paulo up to Kapanga Village. Then, Elikana s/o Paulo called Saguda s/o Mathias informing him of the transactions which had just been concluded. Saguda s/o Mathias in turn told him to call once they approach a hill near Kapanga Village so that he fulfils the mission to kill Juma s/o Salu and take the money. At around 20:00 hours, Elikana s/o Paulo sent a message to Saguda s/o Mathias that they are approaching the agreed area. After they arrived near the stone at the hill, Saguda s/o Mathias came to intercept them. He was using a motorcycle belonging to Washa. He was alone, he was wearing black 8 gumboot and a black long jacket hiding a machete under it. He disembarked from the motorcycle, took out the machete and went towards Juma s/o Salu where he hacked him with the machete from behind the neck. The victim screamed asking for help. It was at the place near a big stone on the side towards Mwese. At first, the Juma s/o Salu attempted to run away/tout he succumbed and fell down. Then, Saguda s/o Mathias went and finished hirh/killed him. He searched the deceased's pockets, took the money and told Elikana s/o Paulo that he should take the remaining Tshs. 400,000/= and warned him not to tell anyone. The 2nd accused,- Saguda s/o Mathias @ Hushi also recorded a cautioned statement. He had a similar account which varies on the role of Elikana s/o Paulo. He stated in the statement that Elikana s/o Paulo is the one who finalized by striking : Juma s/o Salu with a stick. Elikana s/o Paulo hit the deceased with a stick on the head. According to Saguda s/o Mathias, out of Tzs. 1,800,000/=, he gave Elikana s/o Paulo Tshs 400,000/= and he parted with Tshs. 1,400,000/=. 9 Although the accused persons retracted their cautioned statements still this court found that the same were made at their volition. The details contained in the said statements exhibit P2 and exhibit P3, the latter being a statement made by Saguda s/o Mathias @ Hushi were such that nobody could have made a clear, chronological account of the events as they did unless he has a direct observation of the events as they uncover. In this case, the accused persons planned and executed the plan. After arrest they have narrated what they did and how they did. At this point, I think it is imperative that we look'at the defence by the accused persons. Saguda s/o Mathias @ Hushi in his defence testified that ?<•#/,’: '<i---' <s' 1 ?'>;• he was tortured by the police and was forced to sign documents purported by the police to be his statements. He even tendered medical certificates as exhibit DI. He testified that at first, he was treated at Kibo Dispensary the wounds which were sustained during interrogation. At Kibo Dispensary he was treated on 20/03/2020 and later was taken to Katavi Regional Hospital at the 30/03/2020. In both cases he was being treated wounds. However, in the adduced evidence, he testifies that he was tortured by the police who tied his scrotal balls and also used stick to strike him at the soles io of the feet. The narration of what happened shows he was seriously injured and the affected areas were legs, on the, soles and scrota. However, to my surprise, the 2nd accused when he went to the hospital never complained of the injuries on the scrota which in my view is a more serious injury compared to the soles of the feet. Although the documents follow chronology of the narration given, I am surprised, the police officer who assisted him was not called to testify and verify the account given by the defendant. If compared to the contents of their admission and discrepancy in the alleged torture, I find the story by the prosecution, which in large part of it comes from the admission by the accused person, has not been shaken by the defence. That the defence could not raise doubt that they were involved in the murder of the deceased. I am aware of the position of law as observed in the case of Paul Maduka and others versus Republic Criminal Appeal No. 110 of 2007 Court of Appeal of Tanzania (Mwanza) where it was observed that "The very best of witnesses in any criminal trial is an accused person who confesses his guilt. However, such claims of accused persons having made confessions n should not be treated casually by courts of justice. The prosecution should always prove that there was a confession made and the same was made freely and voluntarily. "■ Looking at the confessions or admissions in exhibit P2 and P3,1 find that the flow of narration and details contained in them is a true account of what happened and it could not have been revealed if the accused persons were not free agents. Nor the recorder could not have known without the account from the persons who experienced the facts on firsthand and directly. I find it to be a true account of events from the mouth of the persons who experienced the events. Apart from the admission, the evidence adduced by PW7, the medical doctor who examined the body, points at the areas which it has been testified that the victim received attacked from the assailants, the 1st and 2nd accused: Back of the heck and head. That is where there were injuries/wounds and as result of bleeding, the victim experienced haemorrhagic shock and died. In my view, the said evidence corroborates what is contained in the cautioned statements, Exhibit P2 and Exhibit P3.in the case of 12 Mboshuo@Dominic Munyakoge and another vs. Republic [1995] T.L.R.97\t\Nas held that: "Courts look for corroboration when, in the light of all the evidence, a witness is worthy of belief. The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm or support that which as evidence is ’’•''va-V'71 • S'':- sufficient and satisfactory and credible" . 'pf " • ''O\_ J’ Also, the circumstantial evidence points directiy to non-other than the accused persons. At first on the 05/03/2020 the two met at Kayenze village and planned. Indeed, the 1st accused person went to Mwese with the said Juma s/o Salu and Nchibila s/o Kulwa. They were able to purchase cows at Mwese as confirmed by PW8 Canisius Andrea Kilinde and PW9 Nchibila s/o Ku I wa. PW8 assisted them to buy and obtain permits and they left. Later PW9 left the 1st accused and Juma s/o Salu behind. It is obvious, Elikana s/o Paulo knew what he stated and so is Saguda s/o Mathias @ Hishu. Under the circumstances, the question as to who perpetrated death of Juma s/o Salu is answered in the affirmative that it is the 1st accused and 2nd accused persons who are charged in this court. 13 As to whether they had malice aforethought, the answer is positive. Striking a person behind the neck with such a force causing fracture of the bone is an act by a person who has an intended goal. In their statements they killed Juma s/o Salu in order to take money. As the evidence goes, they worked together to ensure that the mission is achieved. For that matter section 200(a) of the Penal Code, [Cap 16 R.E 2022] -is squared applicable; the accused persons had an intention to cause death to Juma s/o Salu so that they can take money he was possessing. V ; ■ Under the circumstances, I find both Elikana s/o Paulo and Saguda s/o Mathias @ Hushi guilty of, the offence of Murder contrary to law and I accordingly convict them with the offence of murder contrary to section 196 of the Penal Code, [Cap 16 R.E 2022]. It is ordered accordingly. Dated and signed this 15th day of August, 2024. T..M, MWENEMPAZI JUDGE 14 Sentence: The convicts are sentenced to death by hanging as per section 197 of the Penal Code, [Cap 16 R.E 2022]. T.M. MWENEMPAZI JUDGE 15/08/2024 Judgment delivered virtually, the judge being at the judge's chamber at Sumbawanga High Court and Ms. Flavia Shiyo, Learned State Attorney and Mr. Eliud Ngao, Defence Counsel and the 1st and 2nd accused being at Mpanda Resident Magistrate's Court. 15