Jg Museven Sonoko 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ORIGINAL JURISDICTION MWANZA SUB-REGISTRY AT MWANZA CRIMINAL SESSIONS CASE NO. 20 OF 2022 THE REPUBLIC VERSUS MUSEVEN SONOKO @ MZEEE ……………………………………..…..…. ACCUSED JUDGMENT CHUMA, J. Museveni Sonoko @ Mzee was arraigned before this Court facing the charge of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R. E. 2019. The prosecution alleged that on 23rd July, 2020, in Ibanda area within Ilemela District, in Mwanza Region, the accused murdered one Angelina d/o Khamis. The accused pleaded not guilty to the charge resulting in a trial hence this judgment. Conduct of the case had assistance from trained minds where the prosecution side was represented by Ms. Jaines Kiwelo, Naila Chamba, Sara Perias, Tabitha Zakayo, and Mr. Deogratias Rumanyika and Adam Murusuli, all learned state Attorneys. Mr. Erick Tumaini, a learned advocate, represented the accused person. Proving the charge of murder, the prosecution marshaled six witnesses and three exhibits namely, the Postmortem Examination Report 1 (exhibit P1), sketch map (exhibit P2), and caution statement of the accused (exhibit P3). The defence side had lonely evidence of the accused himself and tendered PF3 which was admitted as exhibit D1. The prosecution’s case commenced with the testimony of Modesta James, PW1. She testified that at the time of the incident, she was living with her five children including the deceased and her husband who turned out to be the accused. On 22nd July, 2020, around 21:00 hours PW1 went out and returned around 23:00 hours. She found the door open when she called her daughter Salome, she replied while at her neighbor’s house known as Lazaro where she used to go to study because the distance is only about 10 steps. She further testified that she asked her daughter why she left the door open outside their house. The response was that she locked the door from outside and her two siblings were with her until when they fell asleep, it was then she took them back to their house and locked the door. After that, they went inside only to find one kid missing (deceased). They later found the deceased body at the crude construction with a wound on the left side of her head. Following such happening of event, one Salome ran to her neighbor (Lazaro) who had a solar torch that had a very strong bright light, so they went inside the crude construction and found the body lying down lifeless. The deceased was 2 severely injured on the left side of her head and her underwear was taken off and there was blood oozing from her private parts (anus and virginal). They raised the alarm and people gathered at the scene of the crime. The prosecution had also evidence of Lazaro Paul, who was featured as PW2. He testified that he lives in Ibanda area with his family and a neighbor of Modesta James whose daughter was killed on 23rd July, 2012. On a fateful day at 00.00 hours when he was at home, he heard Modesta’s voice shouting “Mtoto, mtoto, mtoto”. He went outside where he was told by PW1 that her daughter had been wounded and she was inside the crude construction. PW2 went to the scene and found the deceased lying down and had a big wound on the left side of her head while blood was oozing from her private parts. PW2 then reported the matter to the chairman who in turn informed the police. Next on the list was F.1157 D/SSGT Hashim, PW3. His evidence was to the effect that on 23rd July, 2020, around 7:00 hours, he received information of a murder from Insp Shamila who was in charge of the investigation department at Ilemela District. Through intelligence information, PW3 managed to carry out a swoop along with D/C Keneth and the hamlet leader who directed them to where the suspect was 3 conducting his activities. After the arrest, PW3 handed over the accused person to D/C Patrick at Kirumba police station. Dr. Emmanuel Ezekia Maige (PW4), a medical doctor, examined the deceased body and concluded that the source of death was Traumatic Brain Injury (TBI) because of the injuries inflicted by a heavy object on the left side of the head. He also observed that the hymen was not intact, blood clots were seen on the external area and the anus was open to the extent that feces came out. The examination report was admitted as exhibit P1. There was also evidence from E.1870 D/CPL Rashid (PW5) that he drew a sketch map of the scene of the crime (exhibit P2). Upon being informed of the incident by the Officer Commanding the Investigation (OCCID), PW5 along with other police officers rushed to the scene of the crime. In one of the rooms in the crude house, they found a dead body lying down. Lastly in the list of the prosecution witnesses was E.5406 D/CPL Patrick (PW6), a retired police officer. On 23rd July, 2020, he recorded a caution statement of the accused person at Kirumba Police Station. According to him, the accused confessed that he killed the deceased and he even showed the witness where he conducted the crime. 4 In defence, the accused denied having committed the offence. He stated that he had love affairs with the deceased’s mother and on the material date he was all day long fishing at the lake. Speaking on the alleged confessional statement, the accused testified that in the police interview room, he was beaten, tortured, and coerced and then he was forced to append his signature on pieces of paper which was in the possession of a police officer. As proof of such of the alleged torture, the accused tendered a PF3 which was admitted as exhibit D1. Having analyzed the evidence from both sides, it seems there is no doubt that on 23rd July, 2020, one Angelina Khamis was killed in Ibanda area within Ilemela District, in the Mwanza Region. With that settled fact, the following are vital issues for determination: (i) Whether the accused person killed the deceased. (ii) Whether the accused killed the deceased with malice aforethought. Regarding whether or not the accused person committed the offence, it is not contentious that neither of the witnesses adduced direct evidence to the effect that they saw the accused committing any act that led to the demise of the deceased. For instance, the testimony of PW1, who is the mother of the accused, was mere hearsay evidence where she narrated what she was told by her daughter named Salome that on the 5 material date, the accused arrived at the scene of the crime accompanied by two other people. Since it is hearsay evidence, it cannot in any way prove the charges against the accused. Likewise, for PW2, PW4, and PW5, their evidence based on what had happened after the murder. PW2 helped PW1 to report the incident while PW3 visited the scene of the crime and arrested the accused person. Further, PW5 drew the sketch map while PW4 examined the deceased’s body and described the cause of the death. Even exhibits P1 and P2 offered nothing of probative value to link the accused with the death of the deceased person. Under the circumstances, the only evidence establishing a link between the accused person and the act of killing is that of the retracted caution statement that was recorded by PW6. The germane issue therefore is whether this Court can solely rely on the confessional evidence to warrant the accused conviction. The law on the value and reliability of retracted caution statements has been legendary for quite some time now. As a matter of judiciousness, a retracted or repudiated confession can be acted upon if it is corroborated. The same stance was stated in the case of Ali Saleh Msutu Vs. Republic [1980] TLR 1, the Court of Appeal of Tanzania held the following: 6 "It has long been an established rule of practice in East Africa, including this country, that a repudiated confession, though as a matter of law may support a conviction; generally, requires as a matter of prudence corroboration as is normally the case where a confession is retracted”. In the Director of Public Prosecutions Vs. Jilala Mahembo Jihusa (Criminal Appeal No. 539 of 2021) [2024] TZCA 38 (14 February 2024), the Court of Appeal stressed further that it is unsafe for a court to convict solely based on repudiated or in this case retracted confessions unless they are corroborated with any other independent piece of evidence. It also added that a piece of evidence that requires corroboration cannot corroborate the otherwise insufficient evidence. I had time to go through the accused caution statement and it is obvious that he explained many things while confessing that he committed the offence. He unveiled details about his life, especially where he started his life, the level of his education, and his relationship with the family of the deceased's mother. Having on board the foregoing facts, the question is whether the retracted confession was corroborated. There is no qualm saying that the answer is in the negative. There is no material and independent evidence 7 on record capable of corroborating the accused confessional statement. The evidence of the six prosecution witnesses was whole hearsay which cannot warrant conviction because that type of evidence also needs corroboration. I am aware that the truth is not discovered by a majority vote and therefore the prosecution has the discretion to choose witnesses deserving to be called and testify. But in this case, they had a great responsibility to call PW1's daughter because it is said that she saw the accused shortly before the incident. Unfortunately, the prosecution, for unknown reasons failed to summon the witness. Consistent with what the Court of Appeal held in Aziz Abdallah Vs. Republic [1991] T.L.R. 71 and many other decisions, it is the settled position of the law that, where a party fails to summon a material witness to fill the gap or explain an important point, the court is entitled to draw an adverse inference. Application of the principle in the prevailing circumstances is no exception. Similarly, in discharging the burden of proving the case beyond reasonable doubt, under ordinary circumstances, it was expected that the prosecution could strive to obtain expert opinion evidence like a DNA test to satisfy themselves as to whether the body of the deceased or her clothes had traces of the accused person since the whole incident involved physical contact. Furthermore, if the accused had the intention to confess, 8 it was expected that he could be sent to the justice of the peace where his confession would not have serious hurdles as it is in the context of a caution statement. Having found that there is no other evidence to corroborate the caution statement the court may still convict if it finds that the confession contains nothing but the truth, and after warning itself of the danger of convicting without corroboration. But in determining whether or not the confession contains the truth, all the circumstances of the particular case must be taken into account, including whether the confession is retracted or repudiated by an accused person. In this circumstance, this Court after warning itself finds comfort in holding that the confession requires corroboration which is missing in this case and hence there is no evidence with sufficient weight upon which this Court can ground a conviction of the accused for the offence of murder. Taken together, all those conclude only one thing the prosecution failed to discharge its legal obligations to prove the charge of murder against the accused person. In the end, the first issue is answered in the negative that there is no proof that the accused committed the offense of murder. As such, the determination of the second issue on malice aforethought has been rendered nugatory because it has a bearing on the deliberation of the first 9 issue. That said and done, the accused is not found guilty and is hereby acquitted from the charge of murder as per section 235(1) of the Criminal Procedure Act and should be released forthwith from custody unless otherwise lawfully held. Right of appeal explained. It is so ordered. DATED at MWANZA this 3rd day of October, 2024 W. M. CHUMA JUDGE 10 Court Judgment delivered in open court before Mwanahawa Changale State Attorney for the Republic and Erick Tumain advocate for the accused person this 3rd day of October, 2024. W.M.CHUMA JUDGE 11