tati

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CRIMINAL SESSION CASE NO. 41 OF 2023 REPUBLIC VERSUS TATI S/O MASENGWA JUDGMENT Date of Last Order: 13/08/2024 Date of Delivery: 12/09/2024 MANGO, J. The accused person, Tati Masengwa is charged with the offence of murder of one John Makanza contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E 2019], According to the information filed before this Court, it is alleged that, on 13th September 2021 at Making! village within Kaliua District in Tabora Region, the above named accused did murder John Makanza. The accused pleaded not guilty to the offence as a result, the trial commenced against him. When the case was called for hearing, the prosecution was led by Messrs. Win lucky Mangowi assisted by Joseph Makene, learned senior state attorneys, whereas Mr. Herbert Zugumi, learned advocate represented the accused. i The brief fact goes that, on 13th September 2021 at Making! village within Kaliua District in Tabora Region during night hours the deceased, his wife, together with their children were at home sleeping, suddenly the deceased and his wife heard a bang and front the door was broken they woke up, the door Of their room was also broken, they saw one person holding a machete entered inside their room. The person ordered them to cover their bodies. Only two people were in the room, that is, the deceased and his wife. The deceased wife managed to recognize the accused through solar light which was switched on in their room. The accused threatened the deceased with a machete which led her to cover her face. Soon after she covered her face, she heard her husband shouting seeking for help. When she uncovered her face, she found her husband snoring and there was a lot of blood in the bed, the deceased already died. To prove the case against the accused/ the prosecution paraded 3 witnesses namely: Dr. William Benedict Kaijage (PW1), H.980 D/CPL Alifa (PW2) and Modesta Kasekelei Mbuke (PW3) and two documentary exhibits to wit; cautioned statement of Tati Masengwa and post mortem of John Makanza. PW1, Dr. William Benedict Kaijage testified that, he Is a medical doctor. On 13/09/2021 he conducted postmortem examination of the body of the late John Makanza. He stated that, the deceased body had big cut wounds in three areas, right hand side the entire palm was chopped off, there were also a big cut wound on the left arm elbow and there was a big cut wound from the face to the top of the head to extent that the skull was broken and the brain poured out. In his opinion the wounds were caused by a sharp 2 object and findings revealed that the deceased death was caused by severe haemorrhage. He tendered Postmortem examination report of John Makanza dated 13/09/2021 which was admitted as exhibit Pl. The testimony of PW1 and contents of exhibit Pl establishes that John Makanza died and his death was not natural. What remains in successful proof of the offence of murder is whether it was the accused person who killed the decease and whether at the time of killing him the accused had malice aforethought. The second prosecution witness (PW2), H.980 D/CPL Alifa the Police Officer stationed at Kaliua police station testified to the effect that he recorded the cautioned statement of the accused person. He stated the manner he recorded the statement which indicates that, the statement was recorded in compliance with the law. According to PW2, the accused confessed to have killed the late John Kayanza who was his father in law on the reason that, the deceased was bewitching his daughter namely Mwajuma who also happen to the accused's wife. The cautioned Statement of Tati Masengwa was admitted unopposed as exhibit P2. During cross examination PW2 was not cross examined on the confession made by the accused. He was mainly cross examined on the accused health at the time of recording the statement and why the accused was not taken to a justice of peace. It was PW2's response that, the accused was not ready to be sent to a justice of peace. Since being sent to a justice of peace requires the accused's voluntariness, he couldn't force him. As to the accused's health condition, PW2 stated that in his observation he saw the accused to be of good health. He also inquired 3: from the accused if he had any health challenge. The accused responded to be of good health thus, he proceeded recording his statement as instructed by the OCCID. Modesta Kasekelei Mbuke (PW3), the wife of the deceased John Makanza testified that John Makanza was assaulted with machetes to death on 13/09/2021 at around 01:00hours when the two were sleeping at their home. She narrated that on the fateful night, the door of the verandah was banged followed by the bedroom door, then a person whom she identified through solar light as Tati Masengwa the accused, entered their bedroom wearing a t-shirt with drawings on the chest and he did not cover his face. PW3 proceeded to testify that, when the accused entered their room he found them uncovered, so he told them to cover themselves by saying "funika nguo mama na baba" the words may be translated which as "mom and daddy, cover yourself". The witness stated that, when the accused was saying so he was also raising up the machete he had carried in one of his hands. PW3 and the deceased covered themselves together. After they have covered themselves, the accused started to assault the deceased using a machete, PW3 heard her husband making noise "mama yangu! mama yangu!" meaning, "my mother! my mother!" After the incidence she uncovered herself and ran outside crying for help, she went to inform her son, Simon, that his father has been assaulted by machetes she also informed neighbours regarding her husband's assault. 4 The testimony by PW3 marked the end of the prosecution case. Thereafter this court made a ruling on whether Tati s/o Masengwa had a case to answer or not in terms of compliance with section 293 (2) and (3) of the Criminal Procedure Act, [Cap.20 R.E.2022]. In its ruling delivered on 14th August 2024 the Court found the accused to have a case to answer and invited him to enter his defence. The accused defended himself under oath and he had no any other witness. According to his defence, he had no hand in the murder of the deceased. He was merely informed of the deceased's death on 13/09/2021 and he went at the scene of crime as a relative of the deceased family. When the Police officers arrived, they interviewed relatives of the deceased including the accused and later they took them to Ulyankulu police station During his interview he denied to be responsible with the crime but after being tortured he had to insert his thumb print in four pieces of paper. According to him he does not know what is contained in the papers because he does not how to read and write. The court called upon the counsels from both sides to file final submission for and against the offence of murder. Only the prosecution managed to file their final submission which, at this point I see no reason to reproduce as I will consider the submission in course of determining the case at hand. Having considered the evidence for and against, final submission filed by prosecution, this court finds the issue that needs determination in this case is whether the prosecution has proved the offence of murder against the accused to the required standard by iaw. 5 It is trite law that, the standard required in proving criminal offences is beyond reasonable doubt. This is gathered from section 3 (2) (a) of the Evidence Act, Cap. 6 R.E.2022. The same doctrine has been stated in a number of court decisions such as in Hemed v. Republic [1987] TLR 117, in which the Court stated that, in criminal cases the standard of proof is beyond reasonable doubt. Therefore, it is an established principle that the onus of proving a criminal case is beyond reasonable doubt which duty is vested in the prosecution. The burden of proving the offence beyond reasonable doubt does not shift to the accused person- In present case, it is undisputed fact from the evidence on record that killing had occurred, the deceased is John Makanza and the cause of death as per exhibit Pl is severe hemorrhage. The only issue that need to be established is who killed John Makanza. In Mohamed Matula v. Republic [1995] TLR 3 the court observed that; "Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his Innocence." In the light of the principles underscored above, and considering the ingredients of offence under the charging sections, it is the duty of the 6 prosecution to prove beyond reasonable doubt that that it is the accused person who killed the deceased. In proving the accused's responsibility with the death of the late John Makanza, the prosecution tendered the cautioned statement of Tati Masengwa and had testimony of the eye witness, Modesta Kasekelei Mbuke. The accused challenged the cautioned statement on the reason that it was procured under torture. I have gone through testimony of PW2, H.980 D/CPL Alifa who recorded the statement of the accused person, especially his testimony during cross examination. The testimony does not establish that the accused was tortured prior to recording his statement. In the case of Nyerere Nyague vs Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012) the court observed that: "as a matter of principle, a party who fails to cross-examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said." Since PW2 was not cross examined on voluntariness of the accused during recording his statement, the cautioned statement was admitted during trial unopposed, this Court cannot presume that the statement was not made voluntarily rather the Court should presume that the statement was procured voluntarily. 7 In the case of Nyerere Nyague supra, the court had this to say on the status of unopposed confession and when exactly should an objection to cautioned statement raised; "a confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, either that it was not voluntarily made or not made at a!.....if an accused intends to object to the admissibility of a statement/confession, he must do so before it is admitted, and not during cross examination ordering defence. ...in the absence of any objection to the admission of the statement when the prosecution sought to have it admitted, the trial court cannot hold a trial within trial or inquiry suo motu, to test its voluntariness/' Since the accused did not object admission of the cautioned statement so as to enable the Court to conduct a trial within trial to ascertain voluntariness of the accused during recording the statement, attempts to challenge voluntariness during his defence amounts to nothing than an afterthought. Moreover, the accused confession is not the only piece of evidence against the accused person in this case. His confession before the police is corroborated by the testimony of PW3 who identified the accused at the scene of crime. PW3 stated clearly that she identified the accused to be the person who broke into their bedroom and assaulted her husband to death. The witness stated expressly that she is familiar with the accused as he is the son in law of the deceased. He married the daughter of the deceased's 8 senior wife. The witness explained well that, she managed to identify the accused via the assistance of solar light which was switched on, she described the clothes that the accused put on in a fateful night, the items that the accused had in his hand that is, a machete in one hand and a torch on the other hand. She mentioned also the words that the accused spoke, he told them to cover their bodies as he found them not covered when he entered the room. All these establishes that the accused was; properly identified by PW3 at the scene of crime, in the case of Waziri Amani v. R [1980] TLR 250 the Court of Appeal held that; "a few of the matters to which the trial judge should direct his mind before coming to any definite conclusion on the issue of identity. If at the end of his examination the judge is satisfied that the quality of identification is good, for example, when the identification was made by a witness after a long period of observation or in satisfactory conditions by a relative, a neighbour, a dose friend, a workmate and the like, we think, he could, in those circumstances, safely convict on the evidence of identification." A similar holding was reached by the Court of Appeal in the case of Chacha Jeremiah Murimi & Others vs Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019) observed that: "In the present case, PW1 said that she was able to identify the second appellant; first by recognition, as she knew him prior to the incident; second by aid of bright moonlight on the fateful night, and lastly by the fact that the second appellant was carrying machete with 9 which he used to cut the deceased, and by description of his physical appearance. Additionally, in the identification parade the second appellant was unhesitantly identified by PW1. In assessing her demeanour, the trial court was impressed by PW1 as honest and truthful witness. In cross examination, the witness did not shake. She was consistent that she only recognized the second appellant as one among those who killed the deceased. She also identified him in the identification parade. In the circumstances, we are satisfied that the second appellant was positively identified." After I have excluded all factors that would have led to a mistaken identification as it can be seen in the analysis of PW3's testimony, I find that the accused was properly identified by PW3 at the crime scene. Since evidence on record establishes that the accused confessed to have committed the offence of murder during interrogation at the police station and, he was properly identified at the crime scene, this court has no iota of doubt that, the accused person is guilty the offence of murder contrary to section 196 of the Penal Code. Consequently, I hereby convict Tati Masengwa for the offence of murder contrary to sections 196 of the Penal Code [Cap 16 R.E 2022] sentence him to suffer death by hanging until he dies as prescribed under section 197 of the Penal Code, [Cap. 16 R.E 2022]. Dated at Tabora this 12th day of September 2024 Z. D. MANGO JUDGE io