Final Judgment Mataiga

IN THE HIGH COURT OF TANZANIA ORIGINAL JURISDICTION MWANZA SUB-REGISTRY AT MWANZA CRIMINAL SESSIONS CASE NO. 65 OF 2022 THE REPUBLIC VERSUS CHACHA MATAIGA @ MTURUTUMBI ……….……… ACCUSED PERSON JUDGMENT 20 September, 2024 th CHUMA, J.: The accused, Chacha Mataiga@ Mturutumbi, is facing the charge of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2022. The prosecution alleged that on 5 October, 2021 at the Igelegele area within Nyamagana District, Mwanza Region, the accused murdered his biological son Enock Thomas Chacha. After the information was read over and explained, he entered a plea of not guilty hence trial commenced. To discharge the burden of proof beyond reasonable doubt against the accused, the prosecution had six witnesses and four exhibits. Ms. Jaines Kihwelo, Naila Chaba, Sara Persi, Thabitha Zakayo, Mr. Adam Murusuri, and Deogratias Rumanyika, all State Attorneys represented the Republic. The 1 accused person had the services of Mr. Chiwalo Nchai Samwel, a learned advocate. The testimony of Mabere Mikoko Kilate (PW1), a ten-cell leader, was that on 4 October 2021 around 20:00 hours he was approached by one Sabina with her child who inquired about the whereabouts of her husband, the accused person. Heeding to Sabina’s concern, PW1 instructed his child to escort her to the accused person. Later at 01:00hrs, the accused person accompanied by Sabina returned to PW1 quarreling on who had taken their child. Owing to what had turned out, PW1 asked two men to take the accused and his wife to the Militia officer, Christina Mnanka (PW2). The witness testified further that at 05:00hrs, he was informed by PW2 that the accused confessed to the whereabouts of the child, now the deceased. Ultimately, with the help of the accused, the police officers and other people managed to find the deceased body. Further to PW1, there was evidence of Christina Mnanka Matias (PW2), the Militia Officer. She unveiled that on the fateful date after interrogation, the accused in the first place denied having any clue regarding the disappearance of the deceased. But later, he confessed to have killed the child and when he tried to take up to his heels, they successfully held him 2 under custody. Following the accused person own confession, he took them to various places but in the end, they found the deceased body. On 6 October, 2021, Oscar Ottoman Muhina (PW3), a medical doctor at Bugando Hospital conducted a postmortem of the deceased body, and the report was tendered and admitted as exhibit P1. PW3’s examination bore that there was a survival fracture of vertebrae number two and five. Therefore, the deceased death was caused by suffocation due to compression of the neck areas. Joseph Laurent (PW4), a police officer, after successfully stopping the citizens from attacking the accused, being led by the accused went to the scene where the body of the deceased was found. After the arrest, PW4 interrogated the accused person who confessed that he killed the child. It is also PW4 who drew the sketch map of the scene of crime (exhibit P2). The prosecution had the evidence of PF. 22808 Assistance Inspector Eliwangu (PW5). She recorded the accused caution statement which, despite resistance from the defence, was admitted as exhibit P3. Reasons for its admission will become apparent in due course but at this juncture, it surfaces to note from PW5’s evidence that the accused person confessed to the killing. 3 Finally, the prosecution had on the list the Justice of Peace, John Baptist Mgonya (PW6). The substance of his evidence was that in the Extra Judicial Statement (exhibit P4), the accused confessed to the killing of the child. In his defence, the accused maintained his denial that he committed no offence. He contended that on the material date, the deceased left with his mother and it is not true that he led the police officers and other people to the place where the deceased body was found. Regarding the confessional statements, the accused stated that he was beaten by the people and police and then forced to sign them. Having examined the evidence for and against the charge of murder and before proceeding with the determination of the issues on merit, I think it is momentous to determine the reasons why I decided to admit the caution statement. It is common ground that, the defence objected to the admission of the cautioned for being involuntarily taken by reason that the accused was beaten and forced to sign the statement. It is a cardinal rule in situations where admission of confessional statements is objected to on account of voluntariness, the accused owes no duty to prove that he was tortured into recording the statement rather, the prosecution proving that the alleged confession before the police officer or 4 justice of the peace was but voluntary. There is an unbroken chain of decisions and one such authority is the Court of Appeal decision in Bujiku Mzigo Vs. Republic (Criminal Appeal No. 512 of 2021) [2024] TZCA 446 (11 June 2024). After analyzing the evidence given during the trial within trial by TPW1 and TPW2, it seems clear that the prosecution side succeeded in proving that during the recording caution statement, the accused person was a free agent. Complaints that the accused was beaten and forced to sign stood as blank statements for being not backed up with evidence. More so, there was tangible evidence that even the scars the accused was seen with seemed to have been acquired before he was arrested. Therefore, the complaint that the accused was not free at the time of taking the caution statement is misconceived. Back to the merit of the case. The issue before this Court is whether the prosecution has discharged its burden of proof beyond a reasonable doubt in respect of the charge of murder against the accused contrary to Section. 196 of the Penal Code. Weighing the evidence from both sides, it seems there is no doubt on the cause of death that Enock Chacha met a violent one. This was confirmed by PW3 and the postmortem report (exhibit P1) that the deceased died from suffocation due to compression of the neck areas. The 5 prosecution account was supported by the accused who successfully identified the body of the deceased as his son Enock. Under the circumstances, the following are issues worth to be determined: (i) Whether the accused caused the unlawful act or omission (ii) Whether in causing death the accused acted with malice aforethought Starting with the first issue, there is no doubt that the prosecution case relied heavily on circumstantial evidence as there was nobody who witnessed the accused committing the offence. It is therefore pertinent to initially restate the basic principles governing the reliability of the circumstantial evidence. In the case of Jimmy Runangaza Vs. Republic, for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt. Other tests that must be satisfied are such that: (a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (b) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (c) the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that the crime was committed by the accused and no one else. 6 Bound by the principles, the pertinent aspect that stands for my determination is whether or not the available circumstantial evidence in the case at hand irresistibly points to the guilt of the accused. The prime evidence relied upon by the prosecution to prove that the accused was responsible for the murder of the deceased came from PW1, PW2, PW4, and the confessional statements (exhibits P3 and P4). The testimony of PW2 and PW4 was to the effect that the accused confessed to committing the crime and was the one who went to show the area where the body of the deceased was placed. To satisfy whether or not the accused person made a statement, this Court has unfettered duty to inquire if at that time the accused was a free agent. It is the law that, an oral confession made by a suspect before or in the presence of reliable witnesses, be they civilians or not, can be used to find conviction against the suspect, as long as the words imputed to him were said by the suspect as a free agent. This is consistent with what the Court of Appeal held in the case of Posolo Wilson @ Mwalyego Vs. Republic, Criminal Appeal No. 613 of 2015 (unreported), that: “It is settled that an oral confession made by a suspect, before or in the presence of reliable witnesses, be they civilian or not, may be sufficient by itself to found conviction against 7 the suspect (see for example, The Director of Public Prosecutions v. Nuru Mohamed Gulamrasul, [1988] TLR 82). Also, in Mohamed Manguku Vs. Republic, Criminal Appeal No. 194 of 2004, the Court expressed that such an oral confession would be valid as long as the suspect was a free agent when he said the words imputed to him. There is no dispute that PW2 and PW4 were Militia Officers and police officers respectively. It is a legal principle that although sungusungu are not policemen, in real life, they have more coercive power than ordinary citizens and are therefore feared. Therefore, a confession to members of ‘sungusungu' militia needs corroboration. This was held in the case of Ndalahwa Shilanga and Another Vs. Republic, Criminal Appeal No. 247 of 2008 (unreported). However, the court reached that decision after considering various circumstances including the number of militiamen present at the scene of the crime and the manner in which they handled the situation. In short, deciding whether a maker is a free agent or otherwise has a bearing on the circumstances of each particular case. In this case, things are quite different. The accused was a free agent at the time he confessed to PW2 that he committed the offence because it was 8 only him and his wife present. In his defense, the accused admitted that after leaving PW1, he and his wife went to PW2 (Militia Officer) where they found her alone. The accused and his wife continued to disagree about who was left with the child, as such, they were kept in custody. In addition, there is no hint on record suggesting that the accused was in any way intimidated, unduly influenced, or forced before making his statement. PW2's explanation is self- explanatory as to how he was told by the accused about the murder incident. I can do no better than quoting her words: “Kitu nilichokifanya cha muhimu baada ya kuona huyu mama ni mgeni ilibidi mimi nijikite kwa huyu mwanaume nikwambia wewe kimusi naomba umpe mama mtoto unakataa na amempeleka wapi hana wenyeji mama watu katoka Kigoma kampa nani mtoto wewe ndio mwenyeji naomba mfuate mtoto ulipoweka ulimkabidhi huyu Kimusi aliendelea kukataa lakini nilibembeleza nikambembeleza nikambembeleza kwa muda mrefu sana sana tu maana ilikuwa kama saa 9 hivi kwenye makadirio nikaendelea kumbembeleza bembeleza mpaka saa 11 ivi kasoro ivi basi ndio akanikubalia…… akanikubalia akasema mtoto kweli nimemnyonga nikamuuliza umemuua ee ile tu alivyotamka ilibidi mimi nichukue simu nikapiga Polisi kwa mkuu wa Kituo nikasema bwana hili liko juu ya uwezo wangu kuna mtoto hapa amepotea sikutamka 9 moja kwamoja nikawaambia naomba muwahi wakasema dakika 5 tunakuja kiukweli hawakuchelewa lakini alikuwa ameshakiri mbele yangu...” From the above extract, I am confident that all elements of intimidation which could have led to the fear on the part of the accused and therefore he could not have freely and voluntarily given his statement were eliminated. Not only the accused confess in front of PW2 to have committed the offence but also, according to PW1, PW2, and PW4, he was the one who led to the discovery of the body of the deceased. All the witnesses together said that after the confession from the accused, they accompanied the people, the accused, and his wife to the scene. He took them around in about three places where the first time he took them to a compound and said he put the deceased body there but when they looked at it, they didn't see it. They wandered around for a long time, later they went to the bush where the accused showed them the body of the deceased child. The law is settled that the oral confession made by the accused which eventually led to the discovery of the deceased body is the irresistible inference that he murdered the deceased. This was held in Mboje Mawe & 3 Others Vs. Republic, Criminal Appeal No. 161 of 2010 (unreported), and many others. 10 There was also evidence of a caution statement (exhibit P3) and an extra- judicial statement (exhibit P4) in which the accused confessed in detail how he executed his son's murder. I am aware that the evidence was retracted so by itself cannot warrant the accused conviction, for, it needs corroboration. However, since there is an independent oral confession that alone suffices to prove that the accused committed the offense. Another corroborating evidence was the conduct of the accused after his confession. The testimony of PW2 was that before the accused led the police officers and other people to show the body of the deceased, he tried to escape but they managed to put him under control at the earliest stage. The accused conduct of running away gives the inference that he knew what went wrong at the scene of the crime. A similar situation was discussed by the Court of Appeal in Chalamanda s/o Kauteme Vs. Republic (Criminal Appeal 295 of 2009) [2012] TZCA 154 (19 March 2012), it was held that: “Our assessment is that the appellant's conduct strengthened the prosecution's case. If there was any need for corroboration the appellant's conduct after the commission of the crime and his evasive answers as to where he was coming from on that night provided ample corroboration (see MASUMBUKO s/o MATATA AND TWO OTHERS V R. 11 consolidated Criminal Appeal No. 318, 319 & 320 of 2009 (unreported)”. The accused line of defence pointing a finger at his wife that he was the one who got rid of the child on the day of the incident and therefore he is not responsible for the murder seems to have no basis to raise reasonable doubts against the prosecution evidence. Given the fact that the accused admitted to being involved in the murder, making such a second version of trying to exonerate himself from liability is nothing but an afterthought. Next, the second issue is, whether the accused killed the deceased with malice aforethought. Under section 200 of the Penal Code, malice aforethought is deemed to be established by evidence if the prosecution succeeds in proving 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; 12 iii. an intent to commit an offence punishable with a penalty that 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. In the case of Enock Kipela Vs. R, (Criminal Appeal No. 150 of 1994) [1999] TZCA 7 (10th June 1999; TANZLII), the Court of Appeal while interpreting section 200 of the Penal Code, pointed out possible indicators capable of establishing malice aforethought, namely: (i) the type and size of the weapon used, (ii) the amount of force applied, (iii) the specific injuries inflicted, (iv) the attacker's utterances and (v) behavior before, during, and after the attack. With the evidence presented, there are indeed factors that contribute to a conclusion that the accused actions on the charge of murder were accompanied with malice aforethought as asserted by the prosecution. This is reinforced by exhibit P1, the evidence provided by PW1, PW2, and PW4 as well as the accused confessional statements regarding the injuries sustained by the deceased, the amount of force applied, and the part of the body to which it was directed (neck/spine fracture of C2 and C5). 13 Furthermore, the accused action of trying to escape is indicative of guilt and an attempt to evade accountability for his actions. This supports the prosecution's assertion that the accused murdered with malice aforethought. Consequently, I hold that the prosecution has proved beyond reasonable doubt that the accused committed the offence. I, therefore, find the accused guilty as charged and convict him for the offence of murder of one Enock Thomas Chacha contrary to sections 196 and 197 of Penal Code, Cap. 16 R.E. 2022. W. M. CHUMA JUDGE SENTENCE Chacha Mataiga@ Mturutumbi, 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 14 the accused 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]. It is so ordered. The right of appeal is fully explained to the accused person. DATED at MWANZA this 20th day of September 2024. W.M. CHUMA JUDGE 15 Judgment delivered in open court before Ms. Jaines Kihwelo State Attorney for the Republic and Mr. Chiwalo Samwel Nchai Learned counsel for the accused person this 20th day of September,2024. W.M. CHUMA JUDGE 16