REPUBLIC VS PETER MWAKIPOKILE JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 01 OF 2023 THE REPUBLIC VERSUS PETER MWAKIPOKILE ------------------- JUDGMENT Date of last Order: 03/10/2024 Date of Judgment: 30/10/2024 LONGOPA, J.: The accused person one Peter Mwakipokile stood charged with an offence of manslaughter contrary to Sections 195 and 198 of the Penal Code, Cap 16 R.E. 2022. It was alleged that on 1st day of September 2022 at Chidachi area within the District of Dodoma in Dodoma Region did unlawfully kill one Aisha Ramadhani Mtinangi. The accused person denied to have caused any unlawfully killing of anyone. It was at that juncture that the prosecution rallied total of four (4) prosecution witnesses and the defence had only one witness, the accused person himself. During the hearing of the criminal session, the prosecution 1|Page enjoyed the services of Ms. Bertha Kulwa, Ms. Magreth Tlagray and Zubeda Lyaumi, learned State Attorneys while the defence enjoyed the legal services of Mr. Nkumwike Yongolo, learned advocate. PW 1, Shukrani Livius Sanga testified that on 01/09/2022, one Gladness Peter Mwakipokile knocked his door at 23:00 hours seeking for assistance as there was a fight between her mother and father. PW 1 informed this court that he entered the accused’s house in accompany of another person where they found accused at the kitchen veranda outside the house while deceased was in the kitchen inside the house and informed him about the purpose of visit being to resolve the dispute. It was calm when they entered the house and accused informed them that the spouses just exchanged words. The reason for such fight was lateness to return home of the deceased and being improperly dressed. Further, PW 1 stated that on 05/09/2022, he was informed of death of the accused’s wife. In cross examination, PW 1 stated that he did not find any ongoing fight at the accused’s home on that night. It was PW 1 evidence that he did not know if the deceased was beaten by the accused though he saw a bruise on deceased’s leg with blood. The deceased was standing up straight thus she was capable of doing anything. PW 2 was one Mr. Said Mwakaje who stated that on 01/09/2022, one of the accused’s children visited his residence knocking the door around 23:00hours and upon opening PW 2 was informed about a fight of the 2|Page accused and his wife. It was PW 2’s evidence that he entered the accused’s house with PW 1 where they found Mr. Peter at the veranda of the house. The situation was very calm. According to PW 2, they were informed accused’s wife had returned home at those unholy hours while drunk thus a scuffle. PW 2 said that they also saw the accused wife standing in the kitchen side of the house. Peter said they had a dispute. It was PW 2’s testimony that the deceased was improperly dressed as she was half naked. She had a scratch/bruise on the left leg. However, calmness and peace prevailed when they left. In cross examination, PW 2 stated that it was around 23:00hours when the dispute conflict happened. The accused’s wife was dressed very improperly as she was almost naked due to fact that most of the body parts were exposed seen and she appeared so drunk. PW 2 stated that accused’s wife did not complain about anything when they met her at that night save that she was drunk. The third witness (PW 3) was one Dr. Samwel Boniphace Magesa stated on 02/09/2022, he attended the deceased who was complaining about pains on abdomen and leg and stated to have beaten by her husband. PW 3 stated that upon examination, he found bruises in some parts there is possibility that same blunt object might had been used to hit her on the body. The bruises were very minor except on some parts showing blood clotting. 3|Page It was PW 3’s testimony that the deceased went to hospital as an Out-Patient but later on changed to the Emergency Medical Department on the complaints of pains thus two laboratory tests including Ultra sound and x-ray were conducted to establish if there was anything inside the body and found nothing wrong as no bones had been impacted. The results were normal that nothing wrong was impacted internally. It was PW 3 testimony that thereafter they examined blood pressure where ECO test was conducted thus found the patient was Hypertensive and the right chamber of the heart had malfunctioning thus high blood pressure. PW 3 stated that on 07/09/2022, he was called to examine the body at mortuary where he found that Aisha Ramadhani Mtinangi was dead. The Post Mortem examination was conducted both the external observation which revealed nothing as the former bruises could not cause death of a person. The physical observation did not reveal the cause of death. According to PW 3, when the body was opened found all the organs were normal in colour and samples were taken. We filled in the Postmortem Examination Report. The cause of death was concluded to be cardiogenic shock. Cardiac arrest that resulted from beating/physical attack. Thus, PW 3 tendered Exhibit P. 1. According to Exhibit P.1, the cause of death is described as shock. PW 3 stated further that the actual cause of death was cardiogenic shock. 4|Page The patient had risk of heart disease as per Ultra sound and Eco blood pressure tests. Heart attack is caused by psychological trauma. There are various types of shock but the deceased is only believed to had cardiogenic shock. In cross examination, PW 3 stated that psychological trauma or stressful events can cause death. Cardiogenic shock may be caused by different sources. One of them is stress others are the hypertension can cause the shock that is cardiogenic shock. According to PW 3, The persons with obesity as it was for the deceased have risk cardiogenic shock. There was no need to conduct the Pathogenesis of cardiogenic shock. Further, PW 3 reiterated patient’s hypertensive complications may result to shock. As per PW 3, failure to use the hypertension medicines makes the pressure uncontrolled leading to stroke, organ damage, kidney and brain, heart attack etc. According to PW 3, The cause of death is “cardiogenic shock due to physical attack” which would clearly and entirely fit in statement/clause D of the postmortem report. PW 4, one F. 7287 D/SGT Lawrence on 06/09/2022 at around 10:00am he was assigned a Police case file with Ref. No. DOM/IR/10783/2022 for murder offence from the Officer in Charge Criminal Investigation Department (OC-CID) and interrogated the accused 5|Page person on the alleged commission of the offence but he denied to have committed the offence. PW 4 stated to have recorded a statement of the accused person’s son called Emmanuel Peter. According to PW 4, Emmanuel Peter informed him that on 01/09/2022 saw the accused beating the deceased that resulted for the children to call for help to resolve the fight. On 02/09/2022 the deceased attended medical examination at Dodoma Regional Referral Hospital returned home after treatment. Also, on 04/09/ 2022 the condition of the woman deteriorated and she returned to hospital. She was treated and returned home to her mother at Chang’ombe Dodoma. On 05/09/2022, the condition deteriorated, she was taken to the hospital where she succumbed to death while attending medical treatment. According to PW 4, Emmanuel Peter informed the police that the accused questioned the deceased as to her lateness to return home thus they exchanged words that lead to a fight between the two. As a result, the accused allegedly used sticks, fists and kicks to beat the deceased. PW 4 reiterated to have witnessed Post Mortem examination which was physical observation and the opening of the body. The only conclusion by the medical doctor was cause of death is shock as all the internal organs were in normal state as well as external physical examination revealed nothing wrong on the deceased body. It was PW 4 testimony that he recorded a statement of Emmanuel Peter dated 06/09/2022 which was 6|Page tendered, admitted and marked as Exhibit P2. PW 4 stated that in accordance with contents of Exhibit P. 2, it is the accused who beat his wife one Aisha Ramadhani Mtinangi using sticks, fists and kicks that led to death. During cross examination, PW 4 stated that having considered the totality of statements on file including the contents of Post Mortem examination Report he was convinced that an offence of murder was committed as there was malice aforethought. The mens rea existed and the actus reus was the beating. It was PW 4’s evidence that National Prosecutions Service analysis of evidence made them prefer a manslaughter charge. PW 4 stated further that in Exhibit P 2, the name of person who beat the deceased is Peter Austin Msumba. The accused in court is Peter Mwakipokile which might mean the same person though they are different. Having addressed the accused person in terms of Section 293(2) (a) and (b) of the Criminal Procedure Act, Cap 20 R.E. 2022, the accused entered a defence. DW 1 stated it is true that on 01/09/2022 he had a dispute with my wife thus exchanged words but he never beat the deceased. The reasons for exchange of harsh words between the two arose out of the fact that the deceased came home late at 23:00 hours while wearing indecent clothing and being drunk. According to DW 1, it was such questioning that made the deceased angry thus she stated 7|Page attacking him by harsh/unpleasant utterances that the accused was not a real man as she went to meet real men who can impregnate a woman. DW 1 testified that he went out of the house at the veranda to avoid any possibility of fight as he knew his wife wa hypertensive and had abandoned the high blood pressure medication. It was his evidence that upon arrival of the neighbours he invited them inside the house to meet his wife who was at the kitchen and asked them to advise the wife to go to sleep as he could not fight with her as she had high blood pressure. In cross examination, DW 1 stated that it was the exchange of harsh utterances that his wife was making that led the children to think there was a fight. It was DW 1’s evidence that though his wife used to drink, on material date she was so drunk, dirty, improperly and indecently clothed. It was the first time she had used abusive and insulting language against him and he called her relatives on the same night whereby they had promised to talk to her next morning. It was DW 1’s testimony that he is a good father though he does not the whereabout of his two children namely Vanessa and Emmanuel as he was in custody for about nine months and he has not travelled outside Dodoma to look for them in Mbeya where they allegedly went for the last time as bail conditions were not allowing him to free movement. 8|Page That was the totality of evidence on record for both the prosecution and defence cases. It is pertinent for this Court to consider whether such evidence on record establishes the guilty of the accused person for offence of manslaughter he stands charged. It is pertinent to state at the outset that the law places the burden of proof on the prosecution and the standard of proof is that of the proof beyond reasonable doubt. Section 3(2) (a) of the Evidence Act, Cap 6 R.E. 2022 is articulate on the standard of proof. It sates that: (2) A fact is said to be proved when- (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists; These principles were articulated at length in the case of Anthony Kinanila & Another vs Republic (Criminal Appeal 83 of 2021) [2022] TZCA 356 (16 June 2022) (TANZLII), at pages 14-15, the Court of Appeal reiterated that: It is trite but important to observe that, in order to determine the culpability of an accused person in a criminal case, several principles must be considered. First and foremost is the cardinal presumption that the accused 9|Page person is presumed innocent until the contrary is proved. (See Article 13(6)(b) of the Constitution of the Republic of Tanzania, 1977 Cap 2). Moreover, in line with the above- stated principle, in any criminal trial, the prosecution bears the burden to prove beyond reasonable doubt not only that the offence was committed but also that it was committed by the accused person or that he participated in the commission of the offence to the extent or degree as prescribed by law. Put in other words, it is the exclusive duty of the prosecution in any criminal trial to place the accused person at the scene of the crime. As to the standard of proof which we shall also have the opportunity to consider in the instant case, the prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt and here, one should not waste time trying to invent a new wheel as that is exactly what was stated by the House of Lords in England way back in 1935 in Woolmington v. DPP [1935] AC 462 from where our present general principles of criminal law and procedure emanate. In respect of these important principles, it was pertinent and mandatory duty of the prosecution to establish beyond reasonable doubt that the accused person committed an offence of manslaughter. To arrive 10 | P a g e at this juncture, the prosecution must lead in court evidence that proves all the ingredients of the offence of manslaughter. The offence of manslaughter is provided for under Section 195 of the Penal Code, Cap 16 R.E. 2022. It provides that: 195.-(1) Any person who by an unlawful act or omission causes the death of another person is guilty of manslaughter. (2) Any unlawful omission is an omission amounting 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 ingredients seem to be mainly two. First, there must be death of a person. Second, the death must be caused by unlawful act or omission of the accused. Thus, that death must be associated with the accused to have been perpetrator of such death. It is not disputed that one Aisha Ramadhani Mtinangi is deceased. This is established through both documentary and oral evidence of all the witnesses. All the witnesses for the prosecution and defence testified that there was death of Aisha Ramadhani Mtinangi on 05/09/2022. PW 1 stated to have been informed on death of one Aisha Ramadhani Mtinangi and participated in the burial ceremony. Similarly, PW 2 and PW 4 confirmed 11 | P a g e the same. Similarly, PW 3 had a pivotal role as he is the one who conducted the Post Mortem examination of the deceased body and filled in the Post Mortem Examination Report, which was admitted as Exhibit P.1. Indeed, the defence did not dispute on occurrence of death of Aisha Ramadhani Mtinangi. It is thus not disputed that there was a death of one Aisha Ramadhani Mtinangi on 5th September 2022. The only point of departure is whether or not the accused’s action or omission did lead to the death of one Aisha Ramadhani Mtinangi. The prosecution’s evidence is to the effect that accused’s action is responsible for the death hence the offence of manslaughter. PW 4 oral evidence is to the effect that it is the beating of the accused inflicted on the deceased that led to death. PW 4 tendered Exhibit P. 2 to cement the assertion that the accused did actually beat his wife using sticks, fists and kicks. The contents of Exhibit P2, which is a statement of the accused’s son one Emmanuel Peter admitted under Section 34B (2) of the Evidence Act, Cap 6 R.E. 2022 is to the effect that it one Peter Austin Msumba who did beat one Aisha Ramadhani Mtinangi. According to PW 4, Peter Mwakipokile and Peter Austin Msumba might be the same person. This is the major evidence connecting the accused to the offence. The accused before this Court is Peter Mwakipokile. In his defence, DW 1 denied to have a name of Peter Austin Msumba. He informed the 12 | P a g e Court that his name is Peter Mwakipokile and his father is one Austin Mwakipokile Lupogo. Thus, the name contained in Exhibit P. 2 raises doubt that the alleged assailant of the deceased is the same person stood charged before this Court. There was no evidence whatsoever led by prosecution at least to establish that one Peter Mwakipokile is the same using the name of Peter Austin Msumba who was named in Exhibit P. 2. The denial by the defence on the name of Peter Austin Msumba raises doubt that Exhibit P. 2 might be referring to the different person altogether. Indeed, that falls within the duty of the defence to only raise reasonable doubt. In Bathromeo Vicent vs Director of Public Prosecutions (Criminal Appeal No. 521 of 2019) [2024] TZCA 186 (18 March 2024) (TANZLII), at pages 10-11, the Court of Appeal stated that: It is well settled that in criminal trials, the duty of the accused is to raise doubts on the prosecution case. In the circumstances of this case, we are convinced that the defence case put holes in the prosecution case against the appellant. The differences of the names appearing in the Information and that revealed in Exhibit P. 2 which in absence of proof that it refers to the same person makes the prosecution’s evidence doubtful. 13 | P a g e The second important aspect in respect pointing on the participation of the accused in death is that of Exhibit P. 1. The emphasis was placed on the cause of death to be cardiogenic shock caused by psychological trauma as a result of beating allegedly the deceased received from the accused on 1st September 2022. I have carefully examined the contents of Exhibit P. 1 which revealed that the cause of death is shock. However, oral evidence of PW 3 stated that the cause of death was cardiogenic shock due to physical attack. Thus, oral testimony is different from the contents of the Exhibit P. 1. In my settled view that this evidence falls short of establishing correlation between the death and the accused. The evidence of PW 3 has the following limitation. First, shock may be of different nature and are attributed to different causation. Shock falls into four main categories of hypovolemic, neurogenic, cardiogenic and vasodilatory/distributive shock. It was PW 3 evidence that Exhibit P 1 stated that cause of death was shock which without explanation may mean any of the stated categories of shock. However, he emphasized that the deceased in the instant case died of the cardiogenic shock. It is a law that Exhibit P. 1 which is Post Mortem Examination Report has its basis on sections 10 and 11 of the Inquest Act, Cap 24 R.E. 2019.Basically, the law requires that a medical practitioner should make a report thereof in writing in a prescribed form. Indeed, PW 3 a dully 14 | P a g e licensed medical practitioner made a report by filling the Post Mortem examination Report dated 7th September 2022. As the contents of Exhibit P. 1 are lucid that cause of death is shock, it is settled opinion of this Court that PW 3 was excluded in law to provide oral evidence to qualify the nature of shock to be “cardiogenic shock due to physical attack.” This oral testimony contravened the well-entrenched principle under Section 101 of the Evidence Act, Cap 6 R.E. 2022 that exclude any oral evidence to vary, amend or subtracting the contents of the documentary evidence when that matter is required to be in writing. The principle was illustrated in in Charles Richard Kombe t/a Building vs Evarani Mtungi & Others (Civil Appeal 38 of 2012) [2017] TZCA 153 (8 March 2017) (TANZLII), at pages 10-11, the Court of Appeal instructively held that: Once it is shown as in this case that the contract was reduced into writing then in terms of S. 101 of the Evidence Act, Cap 6 R.E. 2002 (the TEA), a party to such contract is not permitted to adduce oral evidence for the purpose of contradicting, varying, adding or subtracting from its terms. In view of the foregoing, therefore, the 2nd respondent is barred from adducing oral evidence for the purpose of subtracting that written contract. 15 | P a g e As the contents of the Post Mortem examination Report are contained in writing as per requirement of the law, the maker of the same is precluded from varying, adding or subtracting the contents thereon. Second, Exhibit P. 1 has been corrected with a correction fluid on two main areas. One on the cause of death where it appears that there were several words after shock as the cause of death and on item relating to external aperture. Two, in cross examination, PW 3 stated categorically that he does not remember the date when he made the alterations in the document whether on the date, he filled in the Post Mortem examination report, prior to committal proceedings or after committal proceedings. As the authenticity of the Exhibit P.1 is highly doubtful as the maker of it cannot recall when the alterations were made, reliance on the same to establish cause of death comes into question. I shall therefore accord no evidential weight to Exhibit P. 1 in relation to cause of death. Evidence of PW 3 is an expert opinion which is not binding on the court. In the case of Daudi Anthony Mzuka vs Republic (Criminal Appeal 297 of 2021) [2023] TZCA 165 (30 March 2023) (TANZLII), at pages 18-19 the Court of Appeal restated circumstances where the trial court would rely on expert opinion. It stated that: It is trite that the evidence of an expert is not conclusive rather a non-binding opinion which can only be acted upon 16 | P a g e the court being satisfied that it was beyond circumspection. This Court and its predecessor have pronounced themselves in various decisions on the non- binding nature of evidence of experts including medics like PW3 in this appeal where it is found that there are good reasons for doing so. See for instance: Hilda Abel v. Republic [1993] T.L.R 246 and Nyinge Suwata v. Republic [1959] EA 974, to mention just a few. The evidence of PW 3 is therefore considered to lack credence as his oral evidence contradicts the documentary evidence, he made which was admitted as Exhibit P1. Also, failure of PW 3 to state with certainty on the dates when the amendments/ corrections were made to the Exhibit P.1 raises more serious doubts as to the authenticity of the same. Such evidence cannot therefore be considered to be reliable and credible. It is unreliable evidence. On the other hand, defence evidence is lucid that there was no fight except exchange of words between the accused and deceased. This is corroborated by the evidence of PW 1 and PW 2 who stated that immediately upon being informed of existence of a fight they rushed and arrived at the accused’s residence where they found no fight at all on 01/09/2022. 17 | P a g e In totality of the evidence having discredited the evidence of PW 3, there is nothing on record to establish the cause of death to associate it with the accused person. Thus, the offence of manslaughter against the accused was not proved to the required standard. In the circumstances, I am of the settled view that the accused person is not guilty of the offence of manslaughter. I shall proceed to acquit the accused for the offence of manslaughter as there is no proof on record to find him guilty. The accused should be set at liberty forthwith. It is so ordered. DATED at DODOMA this 30th day of October 2024 E.E. LONGOPA JUDGE 30/10/2024. 18 | P a g e