Judgment Bundala final

IN THE HIGH COURT OF TANZANIA ORIGINAL JURISDICTION MWANZA SUB-REGISTRY AT MWANZA CRIMINAL SESSIONS CASE NO. 144 OF 2021 THE REPUBLIC VERSUS BUNDALA S/O SHIJA ……….…………………………………. ACCUSED PERSON JUDGMENT 12th April, & 12th July, 2024 CHUMA, J. The 4th day of November, 2019 is remembered when the life of SELE D/O SHAGEMBE was terminated at Kifune Village within the Misungwi District of Mwanza Region. It was alleged that she was killed by her son Bundala Shija who slaughtered her using a machete (panga). It is further alleged that the tragedy happened in front of the accused two sons who were living with their deceased grandmother. Following the incident, the accused and one Nkwabi Lukalasa were arrested for being associated with the killing. The latter was released by the police in the course of the investigation for lack of incriminating evidence. According to the information filed before this court, it was alleged that on 4th November, 2019 at Kifune Village within Misungwi District in Mwanza 1 Region Bundala s/o Shida, the accused murdered one Sele d/o Shagembe. The accused denied the charge hence the trial ensued involving a total of five prosecution witnesses, one defence witness, and two exhibits (a sketch map - P1 and postmortem report - P2). Ms. Jaines Kihwelo, Sara Berasi, Thabitha Zakayo, and Mr. Deogratias Rumanyika appeared to represent the Republic. The accused person was represented by advocate Chiwalo Nchai. The hearing commenced with Paschal Gerald Kalinga (PW1), a medical doctor currently working at Misasi Dispensary. He testified that on 5.11.2019, the OC-CID of Misungwi Police Station approached him requesting for post- mortem examination. PW1 went to the scene and examined the deceased body which had multiple cut wounds on the limb and head which caused Maxilla and Mandible's bones exposed. According to his findings, the death was caused by severe acute hemorrhage on a cut wound and internal bleeding in the skull. He tendered the postmortem report which was admitted as exhibit P2. PW2 (Busondole Simoni), the deceased’s neighbor, testified that on 4.11.2019 at around 20:00hrs, Mashaka Bundala (PW5) went to his house and informed him that they were invaded at their home and he managed to 2 identify one person who is their father (the accused). PW2 went to the scene and found the deceased still alive. He raised an alarm and people responded. On 5.22.2019 Tumaini John Mzungu, investigation police officer at Misungwi Police Station (PW3) was assigned by OC-CID a case file to investigate the deceased death. He recorded the caution statement of the accused who denied having committed the offence. He also collected a sketch map of the scene of the crime (admitted during the preliminary hearing as exhibit P1) which was prepared by E.2885 D/C Vicent. The prosecution also had the evidence of Jacob Bundala (PW4) who told the court that, he was living with their grandmother (the deceased) together with his young brother (PW5). On the material date around 20:00hrs, the accused went with other two people and started chasing their grandmother. She fell down and started to cut her with a machete. With the help of solar power illuminating the scene of crime, PW4 managed to identify his father who in turn slapped him and told him to go inside. Lastly, PW5 (Mashaka Bundala) stated that he used to live with his grandmother who is now dead. On the fateful night, while eating dinner, people arrived and started chasing them. He saw his father through a solar 3 light carrying a machete. He later saw his father slashing his grandmother with a machete. PW5 went to PW2 telling him about the incident. In his defence, the accused whose evidence was largely evasive testified that he was not the one who killed his mother. He took considerable time to explain the misunderstandings that were already or not resolved in their family and thus said that the charges against him had been fabricated. It was the defendant's defense that the prosecution evidence from PW4 and PW5 should not be believed because they failed to make a proper identification. In a murder case, the offence is said to be committed where any person who, with malice aforethought, causes the death of another person by an unlawful act or omission. This is in line with section 196 of the Penal Code, which provides thus: “196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission commits an offence of murder.” An unlawful act or omission is defined under sub-section (2) of section 195 of the same Act as follows: “195 (2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether the omission is or is 4 not accompanied by an intention to cause death or bodily harm.” In the case of murder, the act or the omission has to be “accompanied by an intention to cause death or bodily harm.” It is therefore the intentional killing of a person by another person which defines the killing of another person as being murder. In a murder charge, the prosecution is therefore required to establish the fact of the unlawful act or omission (actus reus) and that of malice aforethought (mens rea or intention). There is no onus of proof on the accused’s side. Having carefully considered the evidence on record, there is no doubt that the prosecution and the defence side are at one in respect of the death of the deceased Sele d/o Shagembe who passed away on 4th November, 2019 at Kifune Village within Misungwi District in Mwanza. The fact was well established by PW1, PW2, PW4, and PW5 as well as the post-mortem report (exhibit P2) which shows that the deceased death was unnatural and caused by severe acute hemorrhage on a cut wound and internal bleeding in the skull. For the foregoing fact, the issues calling for determination are as here under: (a) Whether the accused person killed the deceased. 5 (b) Whether the accused killed the deceased with malice aforethought. Regarding the first issue, it suffices to say that the burden of establishing the guilt of the accused always rests on the shoulders of the prosecution. There is no obligation on the part of the accused to prove his innocence. The evidence of PW4, PW5, and PW2 formed the basis of the prosecution’s case incriminating the accused person where PW4 and PW5 alleged to have identified the accused at the scene of the crime. The question is whether the accused was properly identified. I am inclined to start with the obvious principle that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence is watertight. In our all-time honored case of Waziri Amani Vs. Republic, [1980] T.L.R 250; the Court of Appeal stated that no court can act on the evidence of visual identification unless all the possibilities of mistaken identity are eliminated and the evidence is absolutely watertight. It laid down the prerequisite conditions that must be established before the evidence of visual identification is acted upon to find an accused person's conviction, they include the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, 6 whether there was good or poor lightning at the scene; and further whether the witness knew or had seen the accused before or not. However, the guidelines on visual identification were never meant to be exhaustive, for, each case has to be decided on its own facts. It is not in dispute that PW4 and PW5 are children of the accused and were grandchildren of the deceased. As such, identification of the accused therefore was more of recognition than identification by the stranger. The Court has pronounced itself countless times that that recognition is more satisfactory, more assuring, and more reliable than the identification of a stranger. In the case of Masamba Musiba @ Musiba Masai Masamba Vs. Republic (Criminal Appeal No. 138 of 2019) [2021] TZCA 270 (28 June 2021), the Court of Appeal made the following pronouncement on the evidence of recognition: “The appellant himself does not dispute it because he said in his evidence in chief that the deceased was his friend. As such, the identification of the appellant was more of the recognition than identification by the stranger. In Athumani Hamis @ Athuman v. The Republic, Criminal Appeal No. 288 of 2009 (unreported) where the Court dealt with the identification of the appellant through recognition said: - "Under the circumstances where the appellant recognized the 7 appellant because of knowing him before, and given the conditions which made the complainant recognise the appellant, it is safe to say that there was no mistaken identity of the appellant In the Kenyan case of Kenga Chea Thoye v. The Republic Criminal Appeal No. 375 of 2006 (unreported)f the Court of Appeal of Kenya held that:- "Recognition is more satisfactory, more assuring and more reliable than the identification of a stranger”. However, even in situations where a person being identified is familiar to the identifying witness, he is required to give clear evidence which leaves no doubt that the identification is correct and reliable. See the case of Elia John Vs. Republic (Criminal Appeal 306 of 2016) [2019] TZCA 303 (30 August 2019). According to PW4, on the fateful night, he managed to identify the accused who is his father with the help of a solar light that was illuminating like electricity. He saw his father wearing a black coat accompanied by two other people. According to him, they started chasing the deceased and after catching her, the accused was seen cutting the deceased's head and hand. After the accused saw PW4, he slapped him and told him to go inside. Mashaka Bundala, PW5, testified that on that material date, there was bright solar light 8 in the house they were in. The light enabled him to identify the accused who arrived with two other people hiding. PW5 saw the accused attacking the deceased with a machete. Soon after the incident, PW5 went to give information to Busondole Simoni (PW2) who arrived at the scene of the incident. Considering such pieces of evidence, I am of a firm view that it meets the threshold tests underlined in the case of Waziri Amani (supra) that, there was no mistaken identity of the accused. In the way PW4 and PW5 narrated the chain of events that occurred before and during the incident, it seems clear that they had the accused under observation for considerable time and the act of the accused slapping PW4 and ordering him to go inside was an assurance the witness observed the incident and identified the accused at a very close range. The evidence that there was bright solar light is proof that there was good lighting at the scene of the crime which enabled proper identification of the accused. Above all, both witnesses are not strangers since the accused is their father. Similarly, it is evident on record that the accused was named by PW5 to PW2 at the very earliest opportunity after the incident. Such an act, as held in numerous decisions of this court and the Court of Appeal of Tanzania, is an assurance of the witness's credibility and reliability. Among them is the case 9 of Masali Lukanya and Luswaga Leonard Vs. R Cr Appeal No 625/2021 on page 13 and Marwa Wangiti Mwita and Another Vs. Republic [2002] T.L.R 39 where the Court held that the ability to name the suspect at the earliest opportune moment is an all-important assurance that the witness is reliable. A similar stance was stressed in the case of Jaribu Abdalla Vs. Republic, Criminal Appeal No. 220 of 1994 (unreported) that: - “In matters of identification, it is not enough merely to look at the factors favouring accurate identification, equally important is the credibility of the witness. The conditions of identification might appear ideal but that is no guarantee against untruthful evidence...” Disassociating from the charges, the accused stated that the case against him was fabricated and he was not properly identified as there was no solar light and the witnesses did not have enough time to observe and identify him. The accused doubted the testimony of PW4 and PW5 that it was contradicting particularly on the number of people involved in the incident and the type of attire he was seen wearing on the fateful night. In principle, the accused does not assume any responsibility to prove any fact in his defense. However, to exonerate himself from the charges, the 10 defense he is giving should raise reasonable doubt against the prosecution case as opposed to fanciful impossibilities. His defense that charges against him have been fabricated due to a bad-blood relationship appears to be a remote assertion because he admitted that he had no problem with PW3 and PW4. Likewise, the complaint on recognition evidence is incapable of denting the prosecution evidence because there is no cogent reason raised for disbelieving PW4 and PW5. This is consistent with the stance expounded in the case of Goodluck Kyando Vs. Republic, [2006] T.L.R 363, that every witness is entitled to credence and his testimony must be received and accepted unless there is cogent reason to hold otherwise. PW4 and PW5 despite their young age managed to explain step by step what happened before and during the incident. Whether there were two or three culprits at the scene or whether the accused wore red clothes or otherwise, will not change the fact that the accused was properly identified and named shortly after the incident. Considering all the circumstances, it is worth finding that the accused was properly identified and he is the one who killed Sele Shagembe. Next is, whether the accused killed the deceased with malice aforethought. Considering what I rehearsed above, it is now common 11 knowledge that the deceased died a violent death. As such, I find it significant to address the concept of malice aforethought as provided for under section 200 of the Penal Code. The section reads: S. 200 Malice aforethought is deemed to be established by evidence proving any one or more of the following circumstances: - i. an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not; ii. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person; iii. an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; iv. An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. (Emphasis supplied). There is an unbroken chain of authorities giving proper construction of section 200 of the CPA. In the case of Amosi Maiko Mbodele Vs. Republic, Criminal Appeal No. 158 of 2004 (unreported), the Court held that Under section 200 of the Penal Code, an intention to cause death of, or to do grievous harm to any person is an essential element in a charge of murder. 12 Given the evidence of PW2, PW4, and PW5, the nature and extent of the wound inflicted, as well as the part of the body to which it was directed (cutting the deceased's head and hand.) and the weapon used in the killing, I am confident that the element of malice aforethought killing the deceased has been established. Consequently, I hold that the accused committed the offence as alleged, for, it has been proved beyond all reasonable by prosecution. I therefore find the accused guilty as charged and convict him for the offence of murder of one Sele Shaghembe under section 196 and 197 of Penal Code [Cap 16 R.E.2022]. W. M. CHUMA JUDGE SENTENCE Bundala Shija, the accused person has been convicted of the offence of murder contrary to sections 196 and 197 of the Penal Code [Cap.16 R.E. 2022]. The sentence for offence of murder is well known which is death by hanging. In the premise, that this Court has entered conviction against the accused 13 person, I consequently, proceed to sentence the accused person to suffer death by hanging under sections 196 and 197 of Penal Code [Cap.16 R.E.2022] read together with section 322 of the Criminal Procedure Act, [Cap 20 R.E.2022]. The right of appeal fully explained to the accused person. W. M. CHUMA JUDGE 12.07.2024 14 Judgment delivered in open court before Ms. Magreth Mwaseba Senior State Attorney for the Republic and Mr. Chiwalo Samwel Nchai Learned counsel for the accused person this 12th day of July, 2024. W. M. CHUMA JUDGE 12.7.2024 15