green

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CRIMINAL SESSIONS CASE NO. 22 OF 2023 REPUBLIC VERSUS X. SAI DI MOHAMED @ OMARY 2. BROWN BETWEL @ M WAKE J A 3. GREEN AMBISON @ KASONGWA JUDGEMENT Last order date: 05/09/2024 Judgement date: 12/09/2024 MANGO, J The accused persons Said Mohamed @ Omary, Brown Betwel @ Mwakeja and Green Ambison Lusajo stand charged of murdered contrary to section 196 and 197 of the Penal Code, [Cap. 16 R.E 2019], It is alleged that, on the 19th day of March 2022, the accused murdered one Oscar Robert Elias. The incident is alleged to have taken place at Uyogo Village within Urambo District in Tabora region. Brief facts as can be discerned from testimonies of the witnesses indicate that, the late Oscar Robert Charles was a resident of Majengo ya Tabora area, Urambo district in Tabora Region. He was cohabiting with Happiness 1 Samwel who was recognized by Oscar's family to be his wife and their relationship was blessed with two children. He worked for a living as a petty trader. On the incident day, 19th March 2022, the late Oscar Robert Charles Elias left his home place to Uyogo village in order to sell his products at the auction market. After he left, he never came back home again. Oscar's disappearance was reported to the Police and Uyogo Village Government leaders. Serious search efforts: were made by the Uyogo village government leaders and residence of both Majengo ya Tabora and Uyogo village. On 24th March 2022, the first accused was arrested by people's militia and upon being searched he was found in possession of items suspected to belong to the late Oscar. The first accused and the seized items were handled to the police. On 28th March 2022, the deceased body was found in a forest at Uyogo Village. Through investigation, the second and third accused persons were arrested and charged with the offence of murder they stand charged todate. During trial the Republic was represented by Winlucky Mangowi and Joseph Makene learned State Attorneys, the first and third accused was represented by Stella Nyakyi, learned advocate while the second accused was represented by Emmanuel Lazaro, learned advocate. In proving the case against the accused persons, the Republic paraded 8. Witnesses and tendered one- documentary evidence, the post mortem examination report which was admitted via PW1, Valentine John Numami as Exhibit Pl. According to the contents of Pi and testimony of PW1 Oscar Robert Charles died and his death was caused by Head Injury and Traumatic Brain Injury. PW1 testified further that, with the nature and the part of the 2 head at which the injury was found, it is not possible that the same was caused by mere falling of the deceased on an object. With such evidence the prosecution managed to prove that Oscar Robert Elias died and his death was not natural. Such findings move the Court to assess the remaining elements of the offence of murder which are whether the it was the accused persons who killed the late Oscar and if at the time of such killing they had malice aforethought as required in the section creating the offence of murder, section 196 of the Penal Code [Cap. 16 R.E 2019] under which the accused are charged. The contents of the testimonies of PW2 to PW8 suggest that, the accused persons are responsible with the murder of Oscar on two grounds. First, the alleged confession by first and second accused, second, the first accused was found in possession of the items that allegedly were in the hands of the late Oscar at the time of his disappearance. I will reproduce the testimonies of the seven witnesses for ease: reference. PW2 Happiness Samwel, a wife of the late Oscar testified on the manner he left home and mentioned the items carried by him on that particular day to be 10 bottles of Young and only lotion (5 being green, 5 red), One red bag which was sewed by a hand thread on zip sides, 3 mats, and one perfume, Marquis. The witness mentioned the colours of clothes that Oscar had put on, be a yellow T-shirt, Black trouser and a pair of sandals made of a tyre. She said also that her husband travelled to llyogo by a bicycle. A similar testimony is found in the evidence of PW5 Samwel Paulo who stated that on the incident day, the deceased passed by his home place to have his bicycle 3 tyre repaired. He also stated to have seen the items carried by the deceased and the manner he dressed, that is, colours of the clothes he had put on when he passed by his house. PW3, Odwen Atutusye, the village executive officer of Uyogo Village testified on the manner he with the assistance of local militia popularly known as Mgambo, managed to arrest Green and seized items suspected to belong to the late Oscar at his house. He stated that he seized the items tendered as exhibit P3 in the presence of Green's wife namely Grace Nkuba on 24th March 2022. He also testified as to how he handled the accused person Green to the police together with the items he seized. In addition, the witness testified on how he led the villagers of Majengo Tabora area and Uyogo village in searching for Oscar, the search which enabled them to discover Oscar's body on 26th March 2022. PW4, Method Elizeus Lungu, SSP testified on how he led his investigation team after the discovery of the deceased body. Since he did not perform any specific investigation task, I will not state much on his testimony. PW6 G. 4838 D/CPL Muksin tendered a seizure report P2 purported to be filled by him after he conducted search in the house of Green at Ukoyogo village, PW7 F3631 SGT Lusajo, exhibit keeper of Urambo Police Station, tendered the items that were seized from Green which were admitted as Exhibit P3. According to PW7 he received the items from PW6, G.4838 D/CPL Muksin and kept the same accordingly. An attempt by PW8, D/CPL Hassan to tender the cautioned statement of the first and second accused person was successfully objected by Advocate 4 Nyaky and Lazaro on the reason that, the two statement were recorded contrary to section 50(1) of the Criminal Procedure Act. The statement of the first accused person indicates that it was recorded on 28th March 2022 while the accused person was arrested on 24th March 2022. No any reason has been adduced by the prosecution to justify the delay in recording the statement. Similarly, the statement of the second accused who was arrested in the afternoon of 31st March 2022 was recorded on the morning of 1st April 2022 after the expiry of more than four hours from the time of his arrest. The prosecution did not attempt to seek extension of time from the Magistrate as provided for under section 51(1) (a)and(b). It is trite law that a cautioned statement recorded in contravention with the law cannot be admissible in evidence unless there exist special circumstances that prevented the investigation from complying with the legal provisions. The Court of Appeal when faced With a similar scenario in the case of Manoja Masalu & Another vs Republic (Criminal Appeal No. 143 of 2020) [2024] TZCA 409 (6 June 2024) expunged from record the cautioned statement recorded on contravention with the law. In the cited case the Court of appeal explained in detail the requirements of section 50(1) and 51(1) (a) and (b) of the Criminal Procedure Act. It held that; Section 50 (1) of the CPA provides that, the period avaHable for interviewing a person Who is in restraint in respect of an offence is the period of four hours commencing at the time when he was taken under restraint in respect of the offence. Section 51 (1) (a) and (b) of the CPA proffer that, where a person is in lawful custody in respect of an offence during the basic period available for interviewing him, but has not been charged With the offence, and it appears to the police officer in charge of the investigation, that it is necessary for a reasonable cause, that the 5 person be further interviewed, he may extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; and or, either before or after expiration of the original period or that of extended period, make application to a magistrate for a further extension of that period. In the case at hand neither of the options provided for under section 51(l)(a)and (b) was resorted to by the prosecution, thus, the Court refrained from admitting as evidence, cautioned statements that were recorded in contravention with legal provisions. From the summary of prosecution evidence given above, the only evidence that connects the accused with the death of the Oscar are the items allegedly seized by the PW 6. In assessing whether this piece of evidence is capable of establishing the offence against the accused persons, I found the same to be not water tight to the extent of satisfying the Court that it was the accused persons who murdered the late Oscar. I hold so on the following reasons, the witness who allegedly saw the deceased with the items seized from the first accused did not anyhow identify the items tendered as Exh. P3 before the Court. It was expected that, Happiness Samwel, PW2, who was aware of some peculiar features of the items, such as the bag which allegedly had hand stitches on the zip sides, would have been able to identify the bag by the said peculiar feature. PW2 who seized the items from the first accused's house was expected to identify the items tendered as Exh. P3 and confirm if the items are the same to those seized by him. Unfortunately, the prosecution did lead any of its potential witnesses to identify the items by some peculiar features they mentioned in their testimony. Second, prosecution witnesses contradict themselves as to who seized the items from the village. While PW3 stated to have seized the items, PW6 6 alleges to have seized the same items from the house of first accused person. When cross examined PW6 stated that he didn't conduct search he merely filled the seizure report from the information he received from PW3. In other words, the seizure report contains false information that the search was conducted by PW6 while the witness neither searched the first accused house nor did he anyhow witness the said search being conducted. Section 42(l)(b) of the Criminal Procedure Act, [Cap. 20 R.E 2019} which provides for emergence search as allegedly done in this case, does not empower private persons to conduct such search and seize items from a building. The section reads; "42. -(1) A police officer may- (b) enter upon any land, or into any premises, vessel or vehicle, on or in which he believes on reasonable grounds that anything connected with an offence is situated, and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be" According to section 42(1 )(b) the search can only be executed by a police officer. In addition, PW3 who conducted the search and seized the items did not record anywhere the items seized and the person from whom the search was conducted. Thus, the seizure report, Exhibit P2 was filled by relying on mere words of PW3 as to what transpired during the alleged search. Such evidence cannot be relied by the Court to convict the accused person. In that regard, I find the prosecution evidence to have failed to establish the offence against the accused persons and they are hereby acquitted. The right of appeal explained. 7 Dated at Ta bora this 12th day of September 2024 Z. D. MANGO JUDGE 8