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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CRIMINAL SESSION CASE NO. 102 OF 2023 (From P.I No. 06/2022 in the District Court of Kaiiua at Tabora) REPUBLIC VERSUS 1. MABULA S/O JOHN ©LUSUTIRA 2. LIMBE S/O NDUGALI@MASANJA JUDGMENT Date of Last Order: 13/08/2024 Date of Delivery: 12/09/2024 MANGO, J. The accused persons, Mabula s/o John @ Lusutira and Limbe s/o Ndugali @ Masanja are jointly charged with the offence of murder of one Gilbert Mayunga @ Dotto contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E 2022]. According to the information filed before this Court, it is alleged that, on 6th May 2022 at Ufugala area within Kaiiua District in Tabora Region, the above named accused persons did murder one Gilbert Mayunga @ Dotto. The accused persons pleaded not guilty to the offence of murder, the trial commenced against them. When the case was called for hearing, the i prosecution was led by Mr. Winlucky Mangowi who was later joined by Joseph Makene, learned State Attorneys, whereas Mr. Saikon Justin, learned advocate represented the accused. It is alleged that in May, the Wildlife Officers had a special activity of evicting illegal residents at Nyasa Forest Reserve. The forest being recently categorised as a forest reserve, it has many trespassers who have refused to vacate the area despite the fact that they were well informed, sensitized to vacate and were also supported by the Government in establishing new residencies out of the forest reserve. The eviction activity ought to have commenced on 5th day of May 2022. However, the same couldn't commence on that particular day as so many invaders gathered and were armed traditional weapons. On 06th day of May 2022, the day of the incident they re-organize again for the operation and they managed to evict the illegal residents from the forest reserve demolishing their shelter. While on their way back, they were attacked by people with a locally made gun commonly known as the gobole. The deceased was shot to death. After the matter being reported to Kaliua Police station, injured person as well as the body of the deceased were taken to the hospital and the body of the deceased was examined. The Report on Post Mortem Examination revealed that, the death was dueto severe internal bleeding. During investigation, the accused persons were arrested and they were later charged with murder contrary to section 196 of the Penal Code. In proving the case against the accused persons, the prosecution paraded 4 witnesses namely: Daniel Ezekia Mwansembo (PW1), Jaredy Makongoro (PW2) and James Geze Kamana (PW3) and MG591693 Masha ka Ada mu 2 Mpalisi (PW4). The prosecution also tendered one documentary exhibit Pl the post-mortem Report of Gilbert Mayunga@Dotto (deceased), It is from this evidence the court found the accused persons were found with a case to answer. In brief, PW1 Daniel Ezekia Mwansem a medical officer testified that on 7//05/2022 he examined the body of the Gilbert Kayunga. The body was swollen especially around the stomach and chest areas. There were 4 small wounds on the stomach nearby the chest. On the back around the waist there were 6 wounds caused by penetration of hard object. He discovered that the deceased's death was caused by severe internal bleeding on the chest and abdomen. He filled Postmortem report in which he recorded particulars of the body he examined, his observations and the cause of death. Postmortem examination report of the late Gilbert Mayunga dated 7th May 2022 was admitted as exhibit Pl. PW2 Jaredy Makongoro a game ranger testified that on how the activity was implemented. As to what transpired on the incident day, he merely stated that they were attacked by gunmen but he couldn't identify any of the persons who attacked them. However, as a result of the attack Mashaka Abraham got injured and Gilbert Mayunga was shot to death. PW3 James Geze Kamana had a similar testimony to that of PW2 but this witness stated that he managed to identify the two people who attacked them. He said that, the two people came from the forest towards the road and started shooting to the car with a local gun commonly known as gobole. 3 PW3 identified the persons who shot towards their vehicle by their physical appearance and the clothes they wore on the incident day. According to him, the first man had a green T-shirt and black trouser, he is short in height and white in complexion. He added that the person had a scar on his forehead. The second man, had a black shirt and a grey trouser. PW3 couldn't know whether they both shot the guns towards them or only one of them shot because immediately after he saw them targeting their vehicle, he laid down. As to the distance between their vehicle and where those people emerged from the bush, he stated that it was about 10 metres. The witness identified the accused persons in the dock as the persons who shot at them on the incident day. Lastly is MG591693 Masha ka Ada mu Mpalisi PW4, a militia man whose testimony was similar to that of PW2, additionally, PW4 stated that he was shot and upon medical examination it was discovered that he was shot and injured by many bullets on his back but no bullet managed to penetrate into his body. PW4 didn't recognize the people who shot at them. The testimony by PW4 marked the end of the prosecution case. In his defence, the first accused person Mabula s/o John ©Lusutira testified as DW1. He denied the accusations against him and narrated a different story as to why he was arrested. According to him, he was arrested on 14 May 2022 at Uyungu division, kizinga street while repairing bicycle. At the time of his arrest he was accused of assaulting a woman with machetes. He was taken to Kaliua Police station and after seven days, he was taken to the court accused of killing a woman at Igombe by assaulting her with machete. DW1 claimed that accusation against him in this case are not true because 4 he stayed at the police station from May up to June, when the second accused was brought and they were later joined together as co- accused in this matter. DW2 Limbe Ndugali, the second accused testified that, he was arrested on 2nd July 2022 by wildlife officers and taken to wildlife office, later he was taken to police station. They told DW2 that a scar on his face was caused by a bullet shot, he denied and insisted that he had a scar since his childhood as a result of a developed tumor on his face. DW2 narrated that when he was taken to the police station he was asked if he knew Mabula DW1, he denied. He knew Mabula at the time the police were torturing him. He said it not true that he was identified by PW3 at the scene of crime, he had never seen PW3 before his arrest and being taken to the police station. Having gone through testimonies of witnesses from both parties in this case, I wish reiterate the predominant legal principle in determining criminal cases that, it is the duty of the prosecution to prove the case against the accused persons beyond reasonable doubts. 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 ofprobabilities. The second s principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt." In the present case, the accused person are charged under section 196 of Cap 16 which creates the offence of murder. The section provides: "Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder." According to the cited provision, four elements need to be proved in order to establish the offence of murder. First, there must be death of a person. Second, the death must be a result of an unlawful act or by an unlawful omission. Third, the prosecution's evidence must satisfy, beyond reasonable doubt, that the accused is the one who killed. Fourth, the killing must be preceded evil intention. In the case at hand, there is no doubt that Gilbert Mayunga @Dotto is dead. This is evident from the testimony of PW1, PW2, PW3, PW4 and Exhibit Pl, post mortem report. There is also no dispute that the death of the deceased was unnatural. Therefore, issue for determination is whether the accused persons with malice aforethought murdered the deceased. Evidence show that the only person who saw the accused persons at the crime scene is PW3, who according to his testimony, the accused persons were 10 metres away from the car in which PW4 had bordered. He stated that couldn't know whether they both shot the guns towards them or only one of them shot because immediately after he saw them targeting, he laid down. This witness informed this court that he identified the culprits because 6 on the previous day they also attended the meeting which was conducted between the wildlife officials and the inhabitants. He also described physical appearance of the persons he identified at the police and before this Court. Since the witness did not know the names of the persons he identified, the investigation ought to have conducted identification parade to ensure that the accused persons are indeed the persons that were identified by the witness at the crime scene. In the case of Francis Majaliwa Deus and 2 Others v. Republic, Criminal Appeal No. 139 of 2005 (unreported), the Court of Appeal explained the importance of conducting identification parade as provide under Rule 232 of PGO. It also went on citing with approval the case of Amitsingh Bhikamsing Thakur v State Of Maharashtra [2007] INSC 10 (5th January 2007) which explained the rationale of holding an identification parade in the following terms - "The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses who can claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons Without any aid or any other source. The test is done to check upon their veracity. In other words, the main objective of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime...... It is desirable 7 that a test identification parade should be conducted as soon after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade." In the case at hand no identification parade was conducted. Thus what PW3 did was dock identification of the accused persons which is completely unreliable. In the case of Francis Majaliwa(sup'ra), the Court of Appeal cited with approval a Kenyan case of Gabriel Kamau Njoroge versus Republic [ 1982-88] 1 KAR 1134,1136 in which the Court had this to say on the status of dock identification which is not preceded by identification parade; '-Dock identification is worthless (the Court should not rely on a dock identification) unless it has been preceded by a properly conducted identification parade..." I also refrain from relying on dock identification made by the prosecution witness, PW3, on the reason that, the witness is not familiar to the accused persons, he merely mentioned physical appearance of the accused person before the police but the alleged identification was not verified by a properly conducted identification parade. Therefore, I am of a considered view that, prosecution has failed to prove the case against the accused persons on the required standard. For that reason, the accused persons, Mabula s/o John @Lusutira and Limbe s/o Ndugali @Masanja are hereby acquitted. 8 I order the immediate release of the accused persons, Mabula s/o John @Lusutira and Limbe s/o Ndugali @Masanja, from the remand custody unless they are 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 9