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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL SESSION CASE NO.49 OF 2023 REPUBLIC VERSUS EMMANUEL JUTO @ KALAI JUDGMENT 26/08/2024 & 23/09/2024 KINYAKA, J.; Vide the information lodged in this Court on 23'^ November 2023, the accused person, Emmanuel Juto @ Kalai stood charged with the offence of Manslaughter contrary to sections 195 and 198 of the Penal Code Cap. 16 R.E. 2022, hereinafter the "Penal Code". It was alleged by the prosecution that on the 6^^ day of December 2021, at Kikondeni, Matuli Village, Ngerengere Division within the District and Region of Morogoro, the accused person, unlawfully killed one, Amina Ramadhani Kiparamoto, hereinafter the "deceased". The prosecution evidence was adduced by Loko Shomari Loko, the deceased's husband who testified as PWl, Kipuyati Mtambo Mbega, the owner of the cattle who testified as PW2, Kassim Daudi Mtinge,the Chairman of Kikondeni Area who testified as PW3, Mosses Velentine Mtikile, the then Officer Commanding Station (OCS) of Ngerengere Police Station who testified as PW4, and 4837 D/CPL Chediel Charles Mchami, the Police Investigation Officer who testified as PW5. The evidence of the prosecution through PWl was that, on 6^^ December 2021 at 14:00 hours when PWl and the deceased were in their farm, they saw many cows entering into their farm while being herded by the accused and other two children. PWl and the deceased were chasing the cows out of their farm, when he witnessed the accused beating his wife with two sticks at her back and three sticks on her head. PWl witnessed his wife falling down struggling while lying on her back. Upon his shout for help, his neighbours at the farm arrived, one of them being Bryson Bwire. It was Bryson Bwire who called the Chairman of Kikondeni Area, PW3 who arrived at the scene of crime and witnessed the deceased lying on her back lifeless. PW3 informed the Village Executive Officer on the incident who reported the same to PW4,the then OCS of Ngerengere Police Station. The evidence that the Doctor conducted post-mortem examination on the body of the deceased and confirmed her death as a result of the beating, was marshalled by PWl, PW2, PW3, PW4 and PW5. PWl, PW2, PW3, PW4 and PW5 witnessed stick marks on the deceased's head and her back with stains of blood within the marks. PW3, PW4 and PW5 testified that they went to the direction where the cows were taken, through to PW2's cowshed and that on arrival, they found the cows but they did not find the accused person. They communicated to PW2 who confirmed to have known the accused person as the shepherd who was herding his cows. PW2 testified that the accused person was herding his cattle with his two children and was informed by his brother, George Mtambo Mbega that on the date of the incident, the accused left home with the cows and PW2's two children. According to the testimonies of PW2, PW3, PW4 and PW5, the accused vanished after the incident. PW4 and PW5 testified that they were looking for the accused person in cooperation with the accused's close people and managed to arrest him on 28^^^ July 2022 after seven months of disappearance. PW2 and PW5 informed the Court that the accused was arrested by PW5 at PW2's home in Diguzi, Matuli Ward in the District and Region of Morogoro at 22:45 hours. On account of the evidence of the prosecution witnesses, the Court found the accused with a case to answer and he was invited to defend himself against the charge of Manslaughter laid against him. Being the only defence witness, the accused person testified on oath that he had never been to Kikondeni Area, the place of incident, and that on 6^^ December 2021, he was in Diguzi. He denied to have any association with PW2 including being his worker herding PW2's cows though he informed the Court that he was engaging in herding cattle. He stated that there was a dispute between his family and PW2's family. He admitted to know PW2's children Leboi and Kagese and PW2's brother, George as he was living with them at the same street. He admitted to have been living in Diguzi but with his brother, one Mwaruka Juto. He admitted to have been arrested at Diguzi on 28^^ July 2022 at 22:00 hours when he was asleep at the home of Mr. Mtambo and was taken to Ngerengere Police Station. He denied to have vanished and instead testified that he was in Diguzi at all times. He also denied to know PWl and to have beaten the deceased. Upon the closure of the defence case, the parties preferred to fiie final written submissions. The Court ordered them to file the same by 30^^ August 2024. While the prosecution lodged their written submissions, the accused who was duly represented by Mr. Jovin Manyama, learned Counsel, did not file the same. Apart from summarizing the evidence on record, the prosecution analyzed the facts of the case by being guided with three issues namely; whether one Amina Ramadhani Kiparamoto is dead, whether the death was unnatural and whether the accused is responsible for the deceased's death. As to whether the deceased died, the prosecution submitted that PWl, PW2, PW3, PW4 and PW5 witnessed the deceased's body lying on the ground when already dead. It was their submission that the body of the deceased was handed to her family for burial and the same was buried at Ikwaba Village, Matuli Ward in the District and Region of Morogoro. Fortified by the decision in the case of Waziri Aman v. R., Criminal Appeal No. 55 of 1979 on pages 7 and 8, the prosecution submitted that the Court may still rely on the evidence of other witnesses to prove death of the deceased not necessarily by post mortem examination report. On whether the deceased's death was unnatural or otherwise, the prosecution relied on the testimony of PWl, the deceased's husband that the deceased was mentally and physically fit and was cultivating in their farm on the date of incident, but died an unnatural death as a result of the assault by the accused person who beat the deceased with sticks on the top of her head and at her back. The prosecution relied on the decision of the Court of Appeal in the case of Moi Ikwambe Matiko @ Moi v. R., Criminal Appeal No. 491 of 2020 on pages 16 and 17 which cited with approval the cases of Yohanis Msigwa v. R.(1990) TLR 148, Aziz Abdallah v, R.(1991) TLR 71 and Mathias Bundala v. R., Criminal Appeal No. 62 of 2004 at Mwanza on page 16. As to whether the accused person was responsible for the death of Amina Ramadhani Kiparamoto, the prosecution relied on the testimony of PWl who witnessed the accused assaulting his wife causing her death which is corroborated by the accused's act of hiding after the incident from 6^^ December 2021 to 28^^ July 2022. Relying on section 10(2) and (4) of the Evidence Act, Cap. 6 R.E. 2022, the prosecution reiterated that the accused's act of hiding for eight months until his arrest is a relevant fact to prove his attempt to escape from being arrested for killing the deceased. The prosecution added that the defence of af/t/and the accused's total denial was aversive and self-serving defence which they prayed to be accorded less weight as per the decision in Leonard Joseph @ Nyanda v, R., Criminal Appeal No. 186 of 2017 on page 16. They argued that no person is pointed to the killing of the deceased than the accused person and his denial was a human nature to evade the problems he faced. Relying on the case of Magendo Paul and Another v. R.(1993)TLR 219,the prosecution argued that the case was proven beyond shadow of doubt as the evidence is so strong against the accused as to leave only remote possibility in his favour which can easily be dismissed. Upon considering the evidence fronted by both the prosecution and the defence side, I am now called to determine whether the case against the accused person has been made out to the required standards. As the law demands, the crucial issue for consideration and deliberation in determining the foregoing question is always whether the prosecution has established all ingredients of the offence of Manslaughter against the accused person [See the decision of the Court of Appeal in the case of Hussein Maluiu Ellas Hussein and Two others v. Republic, Criminal Appeal No. 263 of 2021, on page 23]. It is the law that, in order for the offence of Manslaughter charged under section 195 of the Penal Code to be proved, it requires the existence of an act or omission by a person; and that the act or omission of that person should cause death of another person. Under section 195(2) of the Penal Code, the unlawful omission should amount to culpable negligence to discharge a duty tending to the preservation of life or health, whether the omission is or is not accompanied by an Intention to cause death or bodily harm. The above position was also stated in the case of Lusungu Duwe v. Republic, Criminal Appeal No. 76 of 2014 [2014]TZCA 162(16 June 2014), where on page 11 through to 12 of its judgment, the Court of Appeal underscored: "The offence ofmanslaughter is deemed to be proven where the prosecution advances evidence capable ofestablishing that:- 1. The deceased had died; 2. The death of the deceased was uniawfuiiy caused by the accused, and 3. The unlawful act or omission which caused death of the deceased was unintentional and without knowledge that death or grievous bodiiy harm was a probable consequence." From the evidence on record, it has been clearly established that there was unlawful act that led to a loss of life. It was reliably testified by PWl that his wife who was in good health before meeting her death was beaten thrice by a stick on the top of her head and twice at her back which resulted to her ka- fall lying on her back. He informed the Court that he tried to flutter the deceased but she did not wake up but lied still on the ground. PW3, PW4, and PW5 who went to the crime scene on the same day confirmed that they found a woman lying down lifelessly having stick marks on top of her head and at her back with blood marks within. PWl, PW3, PW4 and PW5 all testified that Doctor Lugome conducted post-mortem examination and informed them at the crime scene that Amina Ramadhani Kiparamoto was dead. PW3 stated that the Doctor informed them in the presence of PWl, PW4 and PW5 that the deceased died from the assault by sticks. I am alive to the fact that the post mortem examination report was not tendered in evidence and that Doctor Lugome who conducted the same was not called to testify before the Court. However, in the circumstance of the evidence of PWl, PW3, PW4 and PW5 as explained above, the absence of the post-mortem examination report and testimony of the Doctor did not impair the weight of the prosecution in proving the cause of unnatural death of the deceased. The evidence of PWl who witnessed the accused hitting his wife with a stick at her back and on her head, and that of PW3, PW4 and PW5 who witnessed the body of the deceased at the scene of crime few hours after the incident, and who were informed by Dr. Lugome on the cause izr of death of the deceased, proved that the deceased died from unnatural cause. In holding as I do, I am fortified by a scintilla of the decisions of the Court of Appeal including the decision in the case of Moi Ikwambe Matiko @ Moi (supra), where on page 16 of the decision, it was held that cause of death can be proved by other cogent evidence, direct or circumstantial, from which to arrive at a conclusion as to the cause of death. Similarly, in Jacob Mwashitete & Others v. DPP, Criminal Appeal 24 of 2019 [2022] TZCA 69(25 February 2022), the Court of Appeal held: "The prosecution did not tender medical post-mortem report In this appeal before us. We do not think this failure will doud and cast doubt on what caused the death of Salum Gambi The position of this Court has always been an autopsy report or a post-mortem examination report Is not the only proofof death or cause of death. In YUSUPH SAYI, MALISHA SAYI & MACHILU SAYI V. R., CRIMINAL APPEAL NO. 589 OF 2017 (TANZUI) we said: "It Is settled that the cause and Incident ofdeath can be proved by directevidence from eye-witnesses who saw or handled the deceased's body or even circumstantial evidence...In the Instance case the testimonies of PWl, PW2and PW4 sufficiently proved the cause and Incidents 10 ofdeath. While PWl and PW2 adduced evidence on how the deceased was hacked to death on the spot, PW3, who went to the scene In response to the alarm, confirmed to have found the mutilated lifeless body ofhis mother lying on the ground. From the uncontroveited evidence analyzed earlier above, I am satisfied that the deceased died unnatural death immediately after she was hit by stick on her top head and her back. The question that remains for determination is whether from the identification made by PWl, it was the accused person who was responsible for the deceased's loss of life. The foregoing hinges on a settled principle that in criminal trials, the prosecution is required to not only establish beyond a shadow of doubt that the offence was committed but also that it is the accused person who committed the offence. [See the case of Antony Kinanila & Another v. Republic, Criminal Appeal No.83 of 2021[2022]TZCA 356(16 June 2022)]. In the present case, it has been reliably testified by PWl that he witnessed the accused person while in four steps away beating his wife with sticks on top of her head and at her back after they chased the cows herded by the accused out of their farm. That was 14:00 hours in a broad daylight. Reading from the evidence of PWl, the eye witness who had sufficient time to observe the accused person while herding the cows into their farm, hitting 11 'tzr the deceased with a stick, and taking the cows outside the farm after the incident, I find that the accused was clearly and sufficiently identified by PWl and there was no mistaken identity. [See the case of Eliapenda Zephania Zakaria Kicheche v. Republic, Criminal Appeal No. 675 of 2021 [2024] TZCA 728(14 August 2024)]. I have also positively considered the evidence of PW2, PW3, PW4 and PW5 that after the incident, the accused vanished and returned to the house of PW2 after almost seven months and was arrested on 28*^ July 2022.1 agree with the prosecution that under section 10(2) and (4) of the Evidence Act, the accused's act of hiding for ai! the seven months from 6^ December 2021 until his return in July 2022, is a relevant fact to prove that he escaped from being arrested and prosecuted for the assault of the deceased. In reaching the above finding, I have also considered the evidence of DWl, who testified that he knew the brother and two sons of PW2 as he was living with them at the same street. I have also considered DWl's testimony that he was arrested on 28^^^ July 2022 at 22:00 hours at Mtambo's home, though he did not mention the full name of PW2 whose full name was Kipuyati Mtambo Mbega. Again, DWl testified that he was living in Diguzi with his brother, Mwaruka Juto. It was expected that the accused would be arrested 12 at his brother's home and not at Mtambo's home. The piece of DWl's evidence reveal that the accused's denial of his relationship with PW2 and that there was a family dispute between his family and the family of PW2, did not shake the prosecution evidence that it was the accused who assaulted the deceased on the date, time and place of incident in the course of herding cattle belonged to PW2. Ail the same, I have taken into consideration the defence of the accused person(DWl) denying commission of the offence including the defence of afibi \r\ arriving at the above conclusion. DWl testified that on the date of the alleged incident, he was at Diguzi and had never been in Kikondeni area. However, the accused neither lodged a notice nor furnished particulars of the alibias required under section 194(4)and (5), of the Criminal Procedure Code, Cap. 20 R.E. 2022, hereinafter the "CPA" before the trial or before the prosecution case was closed. Not only that the accused failed to give notice or furnish the prosecution with particulars of aiibi, but also he failed to call any witness to testify that he was in Diguzi at the time and date of the incident. Although the requirement to give notice or to furnish particulars of aiibi \s designed to disclose to the prosecution such defence and for the prosecution W 13 to investigate the truthfulness of the defence, it appears to me that raising such defence without prior notice and/or furnishing particulars to the prosecution, amounts to an afterthought. It is also tantamount to denying an opportunity to the prosecution to prepare its case in relation to such defence. I therefore accord lesser weight to the same considering the defence's failure to call another witness to support DWl's claim that he/she was with the accused in Diguzi. In the case of Hassan Shabani Ugoya v. Republic, Criminal Appeal 60 of 2022 [2022] TZCA 262 (11 May 2022), the Court of Appeal amplified section 194 of the CPA and held on page 11 through 12 of its judgment that; ''According to this provision, whenever the accused intends to reiy on the defence ofaiibi, he shouidserve a notice to thateffect to the court and the prosecution before the hearing ofthe case and ifhe faiis to do so, he shaii furnish the particuiars ofthe aiibi to the prosecution at any time before the case for the prosecution is dosed. However, even if the accused faiis to furnish such particuiars, the court may in its discretion, accord no weight to such defense. That notwithstanding, the presence of the accused person in Kikondeni Area was ably proved by PWl who eye witnessed the accused herding cows in 14 their farm with two children, assaulting his wife, and leaving the farm after the assault. The evidence was circumstantially supported by the evidence of PW2 who testified that the accused is his worker who herds his cattle in Kikondeni Area. PW2 was informed by his brother who was at the cowshed/camp that the accused left with the cows and PW2's two children on the date of incident but the two children and the cows returned to the camp without the accused person. I have also considered the evidence of PW3, PW4 and PW5 that they followed the cows to PW2's cowshed/camp and found the cows and the children, but the accused person was not there. This was immediately after the incident that occurred at the deceased's and PWl'sfarm. It follows that, in my whole consideration of the evidence on record, I am boldly convinced that it is the accused person who committed the unlawful act of assaulting the deceased on 6^ December 2021 at 14:00 hours at Kikondeni Area, in Matuli Village, Ngerengere Division within the District and Region of Morogoro which consequently led to the death of Amina Ramadhani Kiparamoto. In view of my above findings, I hold that the prosecution managed to establish all ingredients of the offence of Manslaughter contrary to sections b- 15 195 and 198 of the Penal Code against the accused person. Consequently, I find the accused person, Emmanuel Juto Kalai guilty of offence of Manslaughter contrary to sections 195 and 198 of the Penal Code and I proceed to convict him forthwith. It is so ordered. DATED at MOROGORO this 23^^ day of September 2024. 0/? cO H.A. KINYAKA A ■z. JUDGE X K > 23/09/2024 Judgement delivered today, 23''^ September 2024 in the presence of Mr. Shabani Kabelwa, learned State Attorney, the accused person in person and his Advocate Mr. Jovin Manyama. H.A. KINY|\KA JUDGE 23/09/2024 16 SENTENCE I have considered the antecedents advanced by the prosecution and the mitigation by the defence. I have also considered that the accused person is the first offender with no previous conviction and has already served more than two years in remand. However, I have considered the manner in which the offender assaulted the deceased in the delicate parts of her body namely, the top of her head and at her back. The conduct demonstrates gross negligence on part of the offender. Further, on witnessing the deceased's fall and helpless, the offender ran away and vanished without offering any assistance or reporting the incident which again demonstrate high level of recklessness on his part. I have also considered the fact that the offender chose to assault the deceased and not her husband irrespective of the fact that both PWl and the deceased were chasing the cows outside the farm at the same time and place. The accused person chose to assault the deceased who was a woman knowing that she was vulnerable and would not be able to fight back. The punishment imposed on a convict of the offence of Manslaughter Is provided for under section 198 of the Penal Code. Given the circumstances, I would have sentenced the accused person to ten (10) years imprisonment. 17 However, considering that he has already spent 2 years and two months in remand, I hereby sentence the offender, Emmanuel Juto @ Kalai to 7 years and 10 months'imprisonment in jail. The sentence shall run from today, the 23^^ day of September 2024. UF 00^ C H.A. KINYAKA O -y ■z X VjZ JUDGE i > 23/09/2024 Right of appeal to the Court of Appeal fully explained, H.A, KINYAKA JUDGE 23/09/2024 18