final JUDGMENT ERICK NGUKU Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF MOSHI AT MOSHI CRIMINAL SESSIONS CASE NO. 31 OF 2023 THE REPUBLIC VERSUS ERIC PAUL NGUKU JUDGMENT 31st Oct. & 15th Nov. 2024 A.P.KILIMI, J.: The accused persons namely, Eric Paul Nguku stands before this court charged with the offence of Murder contrary to section 196 and 197 of the Penal Code Cap. 16 R.E. 2022 (the penal code). The particulars of this charge reckoned by the prosecution were to the effect that, on 28th day of April ,2023 at Tukunyema, Kingereka area within Hai District in Kilimanjaro region, the accused person did murder one Selemani@ Babu Garmaa. The accused person pleaded not guilty to the above charged offence. Thereafter, the prosecution was introduced to be presented by Mr. Diaz Makule and Mr. Frank Wambura Learned State Attorneys, whereas the 1 accused person enjoyed the legal aid of Mr. Lernard Mashabara learned advocate. To prove the charge levelled to the accused person, the prosecution paraded six witnesses. Briefly the facts discerned from their testimonies were to the effect that; ASP Daud Kimashi (PW1) on 28/4/2023 at 05:15am was awaken by his tenants to see the incident which frightened them, he attended the call when he opened his gate, he saw a body of male person laid on his back, he tried to check whether he was still alive, upon checking he suspected he was dead. He phoned Inspector Mary Bonzu who was on duty that day and informed her about the incident. She and other police officers came, picked up the victim and rushed him to Hai District Hospital. PW1 later was told by people attended the scene that one Jonathan Mhina saw the accused with the deceased last night. He searched for him and when found, he admitted to be with the accused person last night. Then PW1 mounted the search of the accused person accompanied by Jonathan Yusto Mhina, and when they found him, he acknowledged to be with the deceased that night, then PW1 sent all of them, accused person 2 and his companion Jonathan Mhina to Bomang’ombe police station for further investigation of the said incident. Christina John (PW2) is the tenant of PW1, she testified how she saw the victim after opening the gate and decided to awaken PW1, also she said being there she saw the accused person peeking on the victim and, upon asking him why he was peeking on him, he came closer and told her that he was looking the man laid on the ground as he was with him yesterday at Kingereka area drinking liquor together. Another witness is Jonathan Yusto Mhina (PW3) told this court that on 27/4/2023 at about 10:00am while passing at Tukunyema area, he saw Eric the accused person randomly whipping the deceased all over his body using a stick while accusing the deceased that he has stolen his gas stove, he then left them as he did not want to interfere in their business. Another witness Lilian Willneva (PW4) testified that on 28/4/2023 at around 4:00 am, she witnessed a search which was conducted to the room of one Mang’ati, she was able to identify Erick Nguku (accused person), Joseph Mbowe, and Garmaa the (deceased) accompanied with one woman whom she did not know. PW4 was told the reason for the said search was that, the accused person had alleged the deceased to have stolen and sold 3 his gas stove to one Mang’ati. She further said after they searched Mang’ati’s room they found nothing. She further said, after that, she then saw accused person striking the deceased whom in order to rescue himself he told them that he sold the said gas stove to one Prosper Mbowe. She further said she saw the accused person while beating the deceased, he also pushed him in the pond of rain water. Another prosecution witness was Prosper Joseph Mbowe (PW5) who said on 28/4/2023 at about 05:00am while at his home asleep, he was awaked by the knock of his gate, and upon opening the gate, it was Mzee Willneva Ringo whom he knew, being with other three people and one of them was sitting on the ground. Mzee Ringo told him that the young man who was on the ground said he had sold to him a cooking gas stove. PW5 looked that young man who was on the ground wet and trembling and told them that, he did not know the said young man as he never saw him. He then urged them to send that young man to police station. The last prosecution witness is Dr. Abdul Mussa Msuya (PW6) a medical practitioner at Hai District Hospital. He testified that on 3/05/2023 while on his duties, a Police Officer named as Gaudencia approached him and requested him to examine the deceased body of one Selemani Babu 4 Garmaa. In his examination, he found the body had bruises in its back and swelling on left parietal area and he had no injuries. He concluded that the cause of death was due to beatings by a blunt object which caused the head injury, internal organ injury and a severe pain. He then tendered Post mortem examination report “PMER” which was admitted by this court as PE1. In his defence, the accused person Erick Paul Nguku (DW1) had no witness, he told this court that on the fateful day he arrived at his home late at midnight, he found two people who are tenants in the house being outside, they told him their fellow tenant named Rachel her gas stove has been stolen; thus, she has left with the boy named Jose in search of one Babu Garma who was seen carrying that gas stove. He took a rest to his room and later at around 4:00 am, he phoned Rachel who told him that they were still in search of the gas stove and they were now heading to the house of Mzee Ringo. The accused decided to follow her and joined them in search of the gas stove. He took the role in the search of the room of one Mang’ati. DW1 further said he did not enter the room on the said search but he stood on the door, those who entered for search found nothing therein, he 5 saw Joseph Mbowe wanting to whip Babuu Garmaa (deceased), the said fracas awakened the landlord named Mzee Ringo who came and asked Garmaa where the stove was, Garmaa replied to him that he has sold the same to one Prosper Mbowe. Then they moved with Mzee Ringo to the House of Prosper Mbowe who denied knowing the deceased and nothing was sold to him. After that, the accused decided to leave the said search team and returned to his home. DW1 further told this court that later on while at his work place, one police officer whom he named by one name as Kimashi approached him and told him that he was wanted at the Police Station. he accepted and they went together, upon arriving at police station, he was locked up and later was told that he was accused of murder. Having recapitulated what transpired at the hearing as above, at the outset I wish to be guided as usual by the settled law that the burden of proof in criminal cases lies with the prosecution and the burden does not shift to accused person, moreover the standard of proof to establish the charged offence is beyond reasonable doubt. In Pascal Yoya @ Mganga vs Republic (Criminal Appeal No. 248 of 2017) [2021] TZCA 36 (24 February 2021) (TANZLII), at pages 16-17, the Court observed that: 6 “It is a cardinal principle of criminal law in our jurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden of proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence. See the cases of W oolm ington v. Director of P ublic P rosecutions [1935] AC 462; Abdi Ally (supra) and M oham ed Haruna @ M tupeni & Another v. R epublic, Criminal Appeal No. 25 of 2007 (unreported). In the just cited case of M oham ed Haruna @ M tupeni & Another (supra) the Court stated that: "Of course, in cases of this nature the burden of proof is always on the prosecution. The standard has always been proof beyond reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence” As stated above the accused person has been charged in this court for the offence of murder, the said offence is provided under the penal code Cap. 16 R.E. 2022 as follows; 7 “196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” From the import of the above law, this court in disposing this matter will direct itself to prove the following issues; first; Whether the death of aforementioned deceased occurred and was unnatural, second; Whether the death was caused by unlawful act or omission of the accused person and third; Whether the killing was actuated by malice aforethought. To start with the first ingredient stated above, according to the evidence it is undisputed that the Selemani Babu Garmaa died and his body was attended by Dr. Abdul Mussa Msuya (PW6) a medical practitioner at Hai District Hospital, who examined the body on 3/05/2023 and certified on the causation of death in this court as a witness and tendered a post mortem report which was admitted as PE1. Therefore, I am settled that the death of one Selemani@ Babu Garmaa is undisputable, however I reserve to ascertain whether the said death was unnatural or not. 8 The next ingredient raises an issue which should be answered according to adduced prosecution evidence and this is whether the death of the deceased was unlawfully caused by the accused person. According to the evidence of PW1 and PW2 above, they both found the victim (deceased) laying on the ground near the gate of the house of PW1, PW1 tried to check on him to see if he was alive or not and phoned police officers on duty who came and took the victim, this was on 28/4/2023 at 05:15 am according to PW1 and PW2. From the prosecution evidence recapped above, I have the following observation; first, neither PW1 nor PW2 knew whether the said victim was still alive or dead, despite the fact PW1 tried to test his pulse, still it cannot be concluded that he was dead or he was still alive by the said test he applied. Second, PW1 told this court he phoned Inspector Mary Bonzu who was on duty on that day about the incident. She came at the scene while accompanied with other police officers and PW1 explained to them how they found the said person. Then police officers took the victim and rushed him to the Hospital. I have considered the prosecution evidence, no police officer came to testify in this court that he/she was among the police 9 officer(s) who took the victim to the hospital and upon reaching at Hai District Hospital, the deceased when attended whether he was still alive or dead; Third, no any medical practitioner was brought to this court to show that he attended the victim/ deceased on 28/4/2023 immediately after being sent to the hospital so as to prove the condition of the victim and to say whether he was alive or dead. Fourth; The medical Practitioner who came to testify in this court as shown on facts above is Dr. Abdul Mussa Msuya (PW6), he did the post mortem to the body of Selemani Babu Germaa (deceased) on 3/05/2023, this means the same was done after 4 days from when the deceased was found on the ground laying by PW1 and PW2. Now from the above analysis what I have grasped from the prosecution evidence, the prosecution has not proved when exactly one Selemani Babu Germaa died, whether at the time he was found laid outside the house of PW1 or he died at the hospital, according to the above evidence this remained unknown. Now having observed as above, the next issue to be determined is whether there is any circumstantial evidence which connect the accused 10 person with the death of the deceased. The basic principles governing reliability of the circumstantial evidence was insisted in John Shini vs Republic (Criminal Appeal 573 of 2016) [2020] TZCA 1747 (TANZLII) the court referred its earlier decision of Jimmy Runangaza vs Republic, Criminal Appeal No. 159B of 2017 when the Court remarked at page 13 and had these to say; "In order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt. (See Simon Musoke v. Republic, [1958] EA 715). Sarkar on Evidence, 15th Ed. 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidence, such evidence must satisfy the following three tests which are: 1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established; 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and 3) the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else." 11 Now back to the evidence of this case at hand, being guided by the principles established above to see whether there are evidence irresistibly points to the guilt of the accused person. There are different versions of evidence adduced by the prosecution which endeavoured to point the accused person when was seen striking the deceased; the first version is that of one Jonathan Yusto Mhina (PW3) who said on 27/4/2023 at 10:00 at night he saw the accused person whipping the deceased all over his body with a stick but he merely passed and he did not do anything. When this witness was cross examined by Mr. Mashabara, he said he knew the accused for a long time but they are not friends and he did not interfere with their dispute. I have considered his evidence, what I see, I think his evidence remained uncertain and cannot directly connect the accused person to the causation of death of the deceased, in my view, the PW3 as the eyewitness on unfavourable condition which was at 10:00 hrs, then mentioning only the above factors and leave the other factors which are important cannot eliminate all possibility of unmistaken identification. In the case of Shamir 12 s/o John vs Republic, Criminal Appeal No. 166 of 2004 (unreported), the Court of Appeal held, inter alia, that: " It is now trite law that the courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient details the most salient factors to be considered. These may be summarized as follows: How long did the w itness have the accused under observation? At w hat distance? In what light? W as the observation im peded in any w ay, as for exam ple by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the observation and the subsequent identification to the police? W as there any m aterial discrepancy betw een the description of the accused given to the police by the w itnesses w hen first seen by them and his actual appearance?” [ Emphasis is mine] 13 Applying my mind to the above decision in lieu of the above evidence of PW3, I cannot reach a firm conclusion that his evidence was water tight in identifying the accused person. Nevertheless, he was unable to state the size of the said stick or tendered the same in this court, also he did not state the time he witnessed the said whipping of the deceased to cause him severe injury to the deceased, since he merely said he was just passing and looked on them. In my view under the existed circumstances knowing the time used for such whipping and the size of stick was of great essence. Furthermore, he did not report the incident anywhere or to anybody, it was until he was followed by PW1 and join him to hunt for the accused person. In my view his failure to report or tell anybody what he saw as a reasonable person, prudently I think in the circumstances of this matter affect the assurance of his reliability and credence. Another evidence is the evidence of mere seeing the accused person on said night, the first one is that of the PW5, who said he saw the accused person when he came to his home with other three person led by Mzee Ringo. However, on the course of testifying he pointed to the accused person as a sign of identifying him. I have considered his reply 14 when asked, he said he did not know him before, however he was not consistent to identify the accused because upon being cross examined, he said the one he identified do resemble with the accused person. In my view, this witness was a dock identifying witness; thus, his evidence cannot be reliable because he was a stranger to the accused person, thus unless there were identification parade to such effect, I cannot hold that he successful identified the accused person. (Seen Mussa Elias and two others vs Republic, Criminal Appeal No. 172 of 1993, CAT (unreported). Other evidence is that of PW2, she said, she saw the accused person peeking to the victim, upon asking him, he came closer and told her he was looking the man lying on the ground as he was with him last night. I have considered her evidence; I cannot ascertain at what exactly time and place they were together with the deceased at the said night. Be that as it may, the same cannot connect him to the death of the deceased unless corroborated. The last version of evidence pointing the accused person, is when the accused person was identified in a group of people being with the deceased alleging him that he stole a gas stove, PW4 Lilian Willneva told 15 this court that she saw the accused person whom she knew before being a member in the said group of four person who wanted to search the room of Mang’ati, that was on 28/4/2023 at 4:00 am, she also said she saw him striking the deceased after they missed the stolen gas stove, also she saw accused pushing the deceased in a pond of rainwater situated on the road. I have considered the above evidence; I have asked whether it connect the accused person with the commission of the charged offence. In my view, it does not connect him, I reserve my reasons which now I give. Although the accused person was seen striking the accused person, it cannot be said the said striking caused the death of the deceased, this is because despite the fact that the said stick used to strike the deceased was not tendered in this court to know the strength used to hit the deceased, as depicted above it was still unknown at what exactly time the deceased died. Therefore, as said above, the fact that no police officer from the group of police officers who picked up the deceased from where he was found came to testify, and the fact that even investigators of this case were not brought to testify in this court, in my view it raises a lot of 16 questions than answers. For instance, questions may be whether the victim was dead at the time they took him or died after some hours or days upon being sent to the Hospital, whether investigator drew the sketch map, whether investigator interrogated witnesses who saw the accused striking the deceased, why it was after 4 days post mortem was conducted from the time deceased was moved from the scene. In my opinion the time of death of the deceased was very crucial under circumstances of this case, because it could enable me to gauge the time of alleged actions inflicted to the deceased and the cause of death. For the foregoing, I saw there is unfilled gap which requires explanation, since PW6 merely attended the dead body of the deceased after four days. Thus, from the above unanswered questions, I am sorry to say that this was the poorest investigated case. I am mindful each case has its own circumstances, but this being one of the cases which attract maximum punishment, it was expected investigation machinery to deploy much concern and seriousness investigation. I am inspired by the words of the court in Mashimba Dotto @ Lukubanija versus Republic Criminal Appeal No. 317 of 2013 [2014] TZCA 271 (TANZLII), when the Court of Appeal had this to say regarding murder cases; 17 "There is no dispute that murder is a very serious offence which upon conviction attracts the death penalty. That being the case, it is always expected that its investigation and eventual prosecution would always be done with great care and seriousness” I am forced to say so, because serious questions raised above could have been answered by police officers who attended the scene or those investigated this matter. In my view in the circumstance, this is a fit matter I should draw an adverse inference to the prosecution case in this regard. (See; Azizi Abdalla vs Republic, [1991] T.L.R. 71, Wambura Marwa Wambura vs Republic, Criminal Appeal No. 115 of 2019; Priva Constantine @ Shirima vs Republic, Criminal Appeal No. 437 of 2020 and Boniface Kundakira Tarimo vs Republic Criminal Appeal No. 351 of 2008 (both unreported) to mention the few. In Boniface Kundakira Tarimo vs Republic (supra) the court had this to say; "It is thus now settled that, where a witness who is in better position to explain some missing links in the party's case, is not called, without sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only permissible". 18 The remaining evidence is that of the medical practitioner PW6, in my view, what I supposed to extract from his evidence and the exhibit PE1 he tendered, is to see whether there is connection between the cause of death and the alleged acts said was done by the accused person. I have considered what PW6 testified before me in court; first it differs with what he wrote in exhibit PE1, here in court he said; “Upon examining him I found he had bruises in his back and swelling on his left parietal area and he had no wound on his body. I then concluded that w hat caused his death w as due to being beaten by a blunt object w hich caused him head injury and internal organ injury and a severe pain. I then filed up a postmortem form report and handed over to the police officer.” [ Emphasis is mine] But, in exhibit PE1 he wrote the cause of death was a severe pain and internal injury, thus the fact he said here that another cause of death was by being beaten with a blunt object was not in his report. Second, PW6 contracted himself on what he said in examination in chief and what he wrote in exhibit PE1 with that he replied after being 19 asked by the counsel for the accused person. When asked by Mr. Mashabara PW6 replied as follows; “In order to know internal injury you should conduct an x-ray to see w hether there is internal injury or you can use a CT Scan but for Garm aa (deceased) w e did not do that. Yes, the deceased body w as not exam ined by CT scan, or x -ray as in our hospital w e have no pathologist. We only look the body by observing as we have no specialist; In respect to the deceased, I looked only the outer part of the body. What is the cause of death can be seen only by looking as per my education on forensic. I cannot determine by looking your outer part body on how your brain is composed. I did not exam ine the inside of the deceased body; I only examined the body just by looking physically. “ [Emphasis is mine] From the extract of reply of PW6 above, means he cannot understand whether the internal organs were injured as he said at the first instance in examination in chief, because in cross examination he said 20 internal organs injury cannot be seen from the outside unless CT Scan and X-ray is used which were not used to examine the body of the deceased. I am aware PW6 evidence being an expert opinion does not bind me. In the case of Republic vs Kerstin Cameron [2003] TLR, 84 at pages 128 and 129 the Court inter alia stated that; “The duty of an expert is to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the court to form its ow n independent judgm ent by application of these criteria to the facts proven in evidence." The court went to state; "... since the evidence of an expert is likely to carry more weight than of an ordinary witness, higher standards of accuracy and objectivity are required of him and should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise and should never assume the rule of an advocate." [Emphasis is mine] 21 Moreover, in the case of Daudi Anthony Mzuka vs Republic (Criminal Appeal 297 of 2021) [2023] TZCA 165 (TANZLII), at pages 18-19 the Court of Appeal stated 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 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.” From the above authorities, and the facts that PW6 oral evidence contradicted the documentary evidence PE1, I am settled his oral evidence and exhibit PE1 tendered lacks credence and thus cannot be considered to be reliable and credible. Having observed so, the same cannot provide any assistance to this court to form opinion on the death of one Selemani@ Babu Garmaa (deceased). 22 Back to the evidence of PW4, I am aware about the doctrine of last person to be seen with the deceased might cause grave suspicion to the accused person, but in itself cannot be conclusive proof that he killed the deceased according to the circumstances of this matter. (See Lukas s/o Njowoka vs Republic Criminal Appeal No. 220 of 2008 and Richard Matenguta vs Republic, Criminal Appeal No. 73 of 1991 (Both unreported). This is because in this matter the last person to be seen according to the evidence of PW4 was not the accused person alone since he was accompanied by other persons. Moreover, the said unfilled gaps by the prosecution in between the time the deceased was found alone helpless and the time the said group dispersed. A lot to be desired might arise under the circumstances. Lastly as said above, under the circumstances of this matter, time of the death of deceased and cause of death were of most essence, since the prosecution have failed to prove them as shown above, I hesitate to believe that the prosecution has connected the accused person with the death of the deceased for the flimsy evidence remained uncorroborated. As I reserved to say on nature of death, I now say that I am of the settled mind that the prosecution failure as stated above, triggers other option 23 that the deceased might have died by any other cause. All said and done causes doubts which becomes advantageous to the accused person. In conclusion therefrom of what I have said above, it follows therefore, that there is no cogent evidence incriminating the accused person with the offence charged. Thus, I am settled circumstances which have been established by the prosecution did not form irresistibly conclusion that is the accused person caused the death of the deceased. (See Julius Justine and Others vs Republic, Criminal Appeal No. 155 of 2005 CAT (unreported). On the whole, and on account of what I have discussed hereinabove, I am settled the prosecution has failed to prove the charge against the accused person beyond reasonable doubt. Consequently, I hereby found him not guilty for the offence of murder charged and I acquit him for this offence forthwith, further I proceed to order the accused immediately be set free, unless he is otherwise lawfully held in prison. 24 It so ordered. DATE at MOSHI this day of 15th November, 2024 X JUDGE Signed by: A. P. KILIMI Court: - Judgment delivered today on 15th day of November, 2024 in the presence of Mr. Frank Daud Wambura, State Attorney whereas in defence side in the presence of Mr. Leornard Mashabara learned Advocate for Accused Person, accused person also present. Sgd; A. P. KILIMI JUDGE 15/11/2024 Court; Right of Appeal explained Sgd; A. P. KILIMI JUDGE 15/11/2024 25