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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CRIMINAL SESSIONS CASE NO. 8 OF 2023 REPUBLIC VERSUS JAHA JUMA ©HUKUMU JUDGMENT Date of Last Order: 09/09/2024 Date of Delivery: 13/09/2024 MANGO, J. Jaha Juma @Hukumu, the accused herein, faces a charge of murder contrary to Section 196 of the Penal Code, [Cap 16 R.E 2019] as punishable under Section 197 of the same Code. The prosecution alleged that, on 29th day of January, 2Q21 at night hours at Nsogolo Village within Urambo District in Tabora Region the accused did murder Majaliwa s/o Charles, The accused pleaded not guilty to the offence of murder as a result, a full trial was conducted. The prosecution enjoyed services of Mr. Winlucky Mangowi and Mr. Joseph Makene, learned State Attorneys while the accused was represented by Mr. Herbert Zugumi, learned advocate. The background facts show that, on 28th day of January 2021, around 16:00 hours, the accused person, Jaha Juma ©Hukurnu and Mrisho s/o Hukurnu together with other two persons who were not identified by Frank went to i the residence of one Frank s/o Charles @ Kwandi and inquired on the where abouts of Majaliwa Charles. Frank Charles Kwandi and Majaliwa Charles are siblings, Frank being the elder brother of Majaliwa. Frank asked the four persons as to why are they looking for his young brother. They told him that they suspect Majaliwa to have stolen their trouser and sandals. After such response, they left. At around 1.7:00 hours of the same day they came back. This time they had Majaliwa with them and they said they are taking him to the office of the Village Executive Officer. While still at Frank's residence, they were beating Majaliwa with thick sticks on his head, neck and other parties of the body. At Around 20:00hrs the deceased was found injured on different parts of the body and unconscious. He was abandoned alongside the Majaliwa proved futile as he met his death before even the journey to the hospital had commenced. Investigation was conducted and as a result the accused person was arrested and charged with murder contrary to section 196 of the Penal Code. In their efforts to comply with Section 3 (2) (a) of the Evidence Act, [Cap 6, R.E 2022], the prosecution summoned five witnesses namely, Frank Charles @ Kwandi who testified as (PWl), Mohamed Athumani Sodangu (PW2), Siriamungu Jeremia Nayubuha (PW3), Neema Kishumu (PW4) and G 7723 DSGT Francis (PW5).The prosecution also tendered one documentary exhibit Pl (the post-mortem Report) of Majaliwa Charles (deceased). According to the testimony of PWl, PW2 and exhibit Pl, there is no dispute that Majaliwa Charles died and that his death was not natural. In his testimony, PW2 stated what he observed during examining the deceased's 2 body. He stated that, he found wounds on the left ear and back of the deceased. The deceased's stomach and his two palms of the hands were swollen. After thorough examination, PW2, found the deceased death was caused by internal bleeding. The nature of wounds suggested that, they were caused by a sharp object. His observation and conclusion as to the cause of the deceased's death were recorded in the post mortem report. Exhibit Pl. The only issues that need to be proved is whether the accused killed the deceased and that, at the time of killing he had intent to cause the deceased death. In this, the prosecution had the testimony of PW1, PW3, PW4 and PW5. PW1, Frank Charles @ Kwandi testified that he saw J a ha Juma Hukumu, Mrisho Juma Hukumu and two persons who were not familiar to him beating the deceased with thick sticks; According to him, by the time, the accused and three other persons were beating the late Majaliwa, they were accused him of stealing their trouser and sandals. They passed at PWl's residence while beating the deceased alleging that they are taking him to to the Village Executive Officers office. Unfortunately, he later found his young brother badly injured and unconscious. He was actually abandoned on the road sides nearby Nsogoro Primary School. The deceased died after a short while. The witness thinks that, it was the accused who killed his young brother because he saw him beating the deceased few hours before his death. PW3 Siriamungu Jeremia Nayubuha stated that on 28/01/2021 evening hours while he was coming from Izimbiri to his home place, When he reached 3 his home place, Nsogolo, he heard noises from the residence of his father in law Haji. He went close to the place and saw three persons interrogating the deceased. Among the 3 persons, he knew only one Mrisho Hassan Hukumu he didn't know the other two persons. According to PW3, the two persons were beating Majaliwa from the waist line to the legs while Mrisho Hukumu was beating Majaliwa from the waist line to the neck. PW3 asked people who gathered as to who is being beaten, they told him that it was Majaliwa. This witness saw also the accused, Jaha who arrived at the area on a luxurious bike. He however did not state anything on the accused participation in beating the deceased. He merely stated that Mrisho said they were taking Majaliwa to the village office. When they were leaving, the accused were behind them pushing his bicycle. PW4 Neema Kishumu the VEO of Nsogolo village, it was her testimony that on 28/01/2021 during evening hours she was called by Vena nee who informed PW4 that he has arrested a thief, Majaliwa Charles who stole a trouser and sandals. He also informed PW4 that he was with other villagers they have beaten DW1 a bit. PW4 told them to bring the deceased to her office, later Venance called and said they were nearby the Nsogolo Primary school with Majaliwa, PW4 told them that they should bring him at the office which is close to her house but they never complied with her order. PW5 G 7723 DSGT Francis a police officer stated that on 29/01/2021 stated what he did during investigation. According to him he arrested the accused due to the information he received from the office of the Village Executive Officer. 4 When invited for defence, the accused (DW1) being led by his advocate gave his testimony on affirmation. He stated that on 28/01/2021 while coming from his house with bicycle he found a crowd of people nearby the residence of Hamida Kadagwa he parked his bike on the road side, when people dispersed, he continued to push his bicycle and started to ride to Mashineni area. He testified that, from there he didn't know what transpired until after four days that is on 31/01/2021 while at Nsogolo centre when he was arrested by the VEO and two militia people. On arrival at VEOs office, the VEO handled DW1 to the militia men with instructions that he should be taken to Usoke police station and later charged of murder contrary to section 196 of the Penal Code. It is the trite law that the prosecution is placed with a heavy burden than that of the accused. The principle was emphasized in the case of Joseph John Makune vs. Republic [1986] TLR 44 at page 49, where the Court of Appeal held that; "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a 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 second principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt." 5 My analysis of the prosecution evidence reveals that the same does not establish beyond reasonable doubts that it was the accused who killed the deceased. I hold so because the two witnesses who allegedly witnessed the beating of the deceased which probably led to his death, gave contradictory stories. While PW1 stated to have seen the accused, Mrisho and two other persons, PW3 stated to have seen only Mrisho and the two persons who were not familiar to the residents of Nsogolo village. PW4, the VEO mentioned Venance to be the person who informed her that he arrested the deceased and have beaten him a bit. PW2 stated that the wounds found in the deceased body were probably caused by a sharp object. In its totality, prosecution evidence does not establish beyond reasonable doubt that it was the accused who murdered the deceased. For the reason, the accused person, Jaha Juma @ Hukumu is hereby acquitted. I order the immediate release of the accused person, Jaha Juma @ Hukumu, from the remand custody unless he is otherwise lawful held. The right of appeal is hereby explained to whoever aggrieved with this decision. Dated at Tabora this 12th day of September 2024 Z. D. MANGO JUDGE 6