Mvulila

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CRIMINAL SESSIONS CASE NO. 114 OF 2023 REPUBLIC VERSUS 1. MVULILA S/O ALLY 2. HARUNA S/O JUMA@HAMISI JUDGEMENT Date of last order: 09/09/2024 Judgement date: 18/09/2024 MANGO, J Third September 2022 was a very sad day for the family of Bhamba s/o Kiberiti following the death of their father. It is alleged that, at the night of the incident day, the family of the late Bhamba Kibiriti was sleeping in their house located at Ukondamoyo village within Urambo district in Tabora region. The door of their house was broken and two persons entered the house. The two persons ordered Bhamba Kibiriti to give them money that he obtained from selling a plot. Bhamba responded that, he had not sold any plot thus, he had no money. The two persons assaulted him with blunt part of machetes and thick sticks popularly known as 'mikoma' They also woke up Kibiriti Bhamba, the deceased's son, and his siblings and made them 1 witness their father being tortured. Kibiriti Bhamba managed to identify the two persons to be the accused persons in this case. Later the deceased gave them TZS 500,000/-. Craving for more money, the accused persons inquired from Kibiriti Bhamba, as to where his father keeps his money. Unfortunately, Kibiriti Bhamba didn't know where his father keeps his monies. Bhamba Kibiriti told the accused persons that his children knew nothing about the place he keeps his money. First accused got irritated by the response and attacked the deceased with a thick stick on his fore head. A fight between the two started and the deceased was overpowering the first accused. In the process of rescuing his co-accused, the second accused shot the deceased to death. Investigation was conducted, as a result, the accused persons were arrested and charged for contravening the provision of section 196 of the Penal Code. During hearing, the Republic was represented by Winlucky Mangowi and Joseph Makene learned State Attorneys while the accused persons were represented by Herbert Zugumi learned advocate. In proving the accusations levied against the accused persons the Republic paraded witnesses and tendered seven exhibits. Kibiriti Bhamba testified as PW1. In his testimony, he stated that, it was the accused persons who broke into their house and killed the late Bhamba Kibiriti. According to him he managed to identify the accused persons through solar light. He also stated that, he knew the accused persons before the incident day. He alleged that, he had worked for the first accused person several times. He explained that, the first accused used to hire PWl's trolley for different activities such as carrying bricks and fetching some water. With regard to the second accused 2 person, PW1 does not know where the second accused reside but he used to see him at the first accused person's house. The witness stated that the incident took a bit longer period and the accused persons had not covered their faces. He mentioned even the colour of the clothes that the accused persons wore on the incident night. According to him, the first accused, Mvulila, wore a red Tshirt, black coat and dark blue trouser. The second accused, Hamis, wore a black trouser, black shirt, a cap and long black shoes, 'boots'. As to the distance between the witness and the accused persons on that particular night, the witness stated that, the accused entered their room and ordered them to hide themselves under the bed at a gun point. Later, they ordered them to come out and made them to move to their father's room which is about three steps from their room. They then moved them from their father's room to the verandah where their father was shot to death. PW2, G 3834 DCPL George, armorer of Urambo police station, testified on how he received exhibits from D/ CPL Hassan, PW6, and SSP Lungu, PW4. He also testified on how he handled the exhibits to H5193 D/PCL Emanuel, PW5 who took the exhibits for forensic examination and the manner he received them after examination. According to his testimony, he received the first exhibit, one spent bullet cartridge from D/CPL Muksin on 3rd day of September 2022. It had a mark Al and he was informed that it relates to a case which has been registered as URMB/IR/984/2022. He registered the exhibit in the exhibit register and gave it register No. 8/2022. On 8th September 2022 he received a gun and eight bullets from SSP Lungu. The gun was a shot gun with number 60571 registered in Tanzania with 3 number TZCAR38838. The barrel and buttstock of the gun were cut off. It was marked A. The bullets were eight and they were marked Bl to B8. He was informed that, the two exhibits relate to a case registered as URMB/IR/984/2022. He registered the exhibits in the register and gave them register number 9/2022. On 22nd October 2022 he handled the gun and one spent bullet catridge to H. 5193 D/ Emanuel now D/CPL Emanuel as per instructions given by the OCCID, SSP Lungu. D/CPL Emanuel took the exhibits to the forensic bureau for forensic examination. When handling the two exhibits to D/CPL Emanuel, he kept them in two different brown envelope and wrote case number which they relate on top of the envelopes. On 28th October he received back the exhibits. When he opened the envelope, he saw one more extra exhibits which were two spent cartridge obtained during forensic examination. He entered particulars of the two spent cartridges in the exhibit register and gave them register number 11/2022. He then kept the exhibits in Urambo police station armory, his office. The witness tendered the exhibits and they were all admitted without objection. The gun was admitted as exhibit Pl, Eight bullets as P2, one spent cartridge alleged to have been collected at the scene of crime as exhibit P3 and the two spent cartridge obtained during forensic examination as P4. PW3 ASP Paulo Metusela Mgema, a ballistic expert from Ballistic department of the Police forensic bureau testified on the manner he received the exhibits, examined them in accordance to the request contained in the letter from the requesting institution, OCD Urambo Police Station. According to his testimony, he received two exhibits which are one gun purported to have 4 been taken from suspect possession, which he labelled as exhibit K-l. He stated that the Gun was a shotgun Greener serial number 60571 registered as TZCAR 38838 Calliber 12bore whose barrel and buttstock are cut off made in Birmingham England labelled as A. The second exhibit which he labelled as QI, was one spent cartridge caliber 12 bore labelled Al purporting to have been collected at the crime scene. The exhibits were handled to him on 24th October 2022 by H. 5193 D/C EMMANUEL from Urambo District Crime Office. He also handled to him a letter with letter reference No. UMR/CID/C.5/4/4/VOL.XXIV/22 dated 22nd October 2022. According to the letter, forensic bureau, Ballistic Laboratory was requested to examine if exhibit KI is working properly and whether exhibit Q-l was fired from K-l. He examined the gun visually and found it to be shotgun greener with serial number 60571 registered as TZCAR 38838 Caliber 12bore whose barrel and buttstock are cut off made in Birmingham England. Visual examination of exhibit QI was conducted and showed to be one spent cartridge caliber 12 bore. Further examination of exhibit KI was conducted and it showed to be in a good functioning condition. He fired two live ammunitions caliber 12 bore from the laboratory stock. The ammunitions were successful fired and the test fired cartridges were marked as T1 and T2. The witness compared the recovered test fired cartridges caliber 12 bore (T1 nsT2) and Exhibit QI one spent cartridge caliber 12bore labelled Al by using Comparison Microscope and found sufficient matching of pin impressions, 5 ejector marks and breech face characteristics. Due to the matching features, he is of the opinion that exhibit QI was fired from exhibit KI. The witness tendered the report on his examination which was admitted without objection as Exhibit P5. PW4, METHOD ELIZEUS LUNGU SSP, the then OCCID of Urambo District testified on how investigation of this matter was conducted in general. He specifically testified on the manner the accused persons were arrested and Exhibit Pl, P2 and P3 were obtained. According to him, the spent cartridge was seized at the scene of crime by CpI. Muksin on 3rd day of September 2024. He was present at the time the cartridge was collected and he was the one who assigned CpI. Muksin to collect exhibits that will be found at the scene of crime when he visited the place with his investigation team. He stated that, CpI. Muksin is an expert in collecting exhibits at the crime scene as he is the forensic expert of Urambo Police station. When the cartridge was collected it was marked Al. By that time, the first accused was already arrested. He was arrested by the local government leaders and people militia leaders. The second accused was arrested on 6th September 2024 by a team of investigators who were searching for him following being mentioned by Kibiriti Bhamba and the first accused person. Few days after his arrest, the second accused led the police to the place where he had hidden the gun which was used on the incident day. The place was at rice farms located at Majengo street of Urambo district. The gun, eight bullets together with a bush knife were seized and a seizure report to that effect was drawn. The seizure was witnessed by police investigators who accompanied PW4 to the 6 place led by the second accused. The process of searching and seizure of the gun and the eight bullets was witnessed by the street chairman of Majengo street one Frederica Itogozya. The witness tendered a seizure report which was admitted without objection as Exhibit P6. Seizure report P6 was signed by the second accused person as the person searched and from whom the items were seized, the seizing officer SP LUNGU who testified as PW4, Frederica s/o Itogozya the hamlet chairperson of Farm 12 hamlet, G. 8765 D/CPL Ramadhani, A/Inspector Charles and G.4838 D/CPL Muksin as persons who witnessed the search and seizure of the items from the second accused persons. PW5 H. 5193 D/CPL Emmanuel testified on how he carried the exhibits from Urambo Police station to the forensic bureau and returned the exhibits to Urambo Police station after forensic examination was carried out. His testimony is merely a replica of the testimony of PW2 and PW3 on how they handled and received exhibits to PW5. In brief, PW5 stated that he was instructed by SSP Lungu PW4, to take the exhibits for forensic examination. He took the exhibits from Urambo Police station armary on 22/10/2022 and it was PW2 who handled the exhibits to him. SSP Lungu gave him a letter which was addressed to the forensic bureau. He carried the exhibits by himself and handled the same to forensic bureau. The exhibits were received by PW3. After examination, PW3 handled to him the exhibits and the report from the forensic bureau. Upon arrival at Urambo police station, he handled the exhibits to PW2 and the report to the OCCID. PW6 G.4838DCPL Muksin testified on his participation in investigation of this matter. He also testified on how he collected Exhibit P3 at the scene of crime. He stated that the spent cartridge was at the verandah of the deceased house. He collected the spent cartridge, he labeled it as Exhibit Al. Upon their arrival at Urambo Police station, he handled the same to PW2 G.3834 DCPL George, the armory keeper for safe custody. As to the physical appearance of the scene of crime, he observed that, the verandah had a lot of blood and the verandah door had holes resulted from bullet shots. The witness also testified on how the gun, exhibit Pl and the eight bullets exhibit P2 were found and seized. He stated that, it was the second accused Haruna Juma Hamis who led the investigation team to a place where he had hidden the gun and the bullets. The second accused led them to a rice farm located at Majengo ya Tabora area Kiyumbi Ward in Urambo District. Before proceeding to the farm where the gun and 8 bullets were found, they passed through the street chairman, Frederick Itogozya and involved him in the search and seizure of the gun and the bullets. He collected the exhibits as a forensic expert of Urambo Police station and marked the gun as Exhibit Al and the bullets as exhibits B1-B8. He described the exhibits he seized in this matter by their specific features and identified exhibit Pl, P2 and P3 before the Court by their distinctive features he mentioned in his testimony. The witness also alleged to have recorded cautioned statements of the accused persons and that they confessed to have committed the offence. He however did not tender cautioned statement of any of the accused persons. He also tendered the post mortem examination report of the late Bamba Kibiriti which was admitted without objection as exhibit P7. According to exhibit P7 the deceased's death was caused by Haemorrhagic shock 8 secondary to intra-abdominal injury, visceral injury, traumatic brain injury secondary to cut wound. PW7, Melania Kibiriti, the sibling of the deceased stated to have heard an alarm for help which was raised by Renatha, the wife of her brother Bhamba Kibiriti on the incident night. When she was about to go to Mbaba's house in response to the alarm, she heard a gunshot so, she had to go back to her house. When she felt it was safe, she went to his brother's house which is about 30 steps from her house. Upon arrival she saw the first accused person. According to PW7, the first accused person attacked her by kicking her legs and made her to fall down. He then stepped on her neck thus, making her fall unconsciousness. She mentioned the first accused person as the person she saw at Bhamba's place when she was at the hospital where she was admitted for treatment. When cross examined as to why she didn't mention the first accused person at Mbamba's house after she gain consciousness, she said at that particular time she was incapable of speaking. She described also the clothes that the first accused had put on the incident night. She stated that, the first accused wore red shirt, black coat and dark blue trouser. That was all from the prosecution. In his defence, the first accused person testified as DW1. He denied to have committed the offence. He stated that, on the incident night, he heard an alarm for help. He alleged to be a member of mwano group, a special group of villagers who responds to alarms for help whenever raised. He woke up and joined the team of villagers who woke up and gathered to offer assistance in response to the raised alarm. According to him, he joined the group which was led by the person namely Gemo Jackson. They moved 9 towards the southern part of the village and when they crossed the main road they found many people gathered at one place. They later got to know that the place was the scene of crime through the village executive officer, one Lahabona Petershika. The village executive officer directed them to divide themselves in groups and proceed to search for the persons who attacked Bhamba Kibiriti and if possible the reasons for the attack. He also participated in searching for the persons who committed the crime and the reason thereof. The first accused person alleged that he was in a group which was led by Gemo Jackson again. Their group conducted search in two hamlets, Utusini and Utusini A. They were later called back to the scene of crime. They were informed that, the victim of the offence had passed on and that someone was identified at the scene of crime by Melania. The leader who gave the villagers such information mentioned the first accused as the person who was named by Melania. He was then arrested and charged with the offence murder in relation to death of the late Bhamba Kibiriti. He stated further that previously two people were charged together with him, Haruna Juma Hamis and Magazi Maguye. He alleged that, he was not familiar with his two co-accused as he knew them when they were charged together in this case. The second accused testified as DW2. His testimony is similar to that of DW1 as far the issue of familiarity between him and the first accused. According to DW2 he was arrested on 6th September 2022 for a traffic offence. His motorcycle was found with two traffic issues, the indicator was not working properly and mudguard was torn apart. He spent one night in the police 10 lock up and he was ordered to pay a fine of TZS 30,000/-. He paid the fine but was not released. To his surprise next day he was taken out of the lock up and interviewed by a police officer he mentioned by a single name as Zumbe. The police officer asked him if he knew Nyorobi Mashauri and if he had ever been at Mbaoni village. He declined to have been at Mbaoni Village and to know Nyorobi Mashauri. On 13th September 2022 he was taken to Court and he found out that he was charged with armed robbery case together with Nyorobi Mashauri. He mentioned the case to be Criminal Case No. 39 of 2022 before Urambo District Court. On 3rd April 2023, they were acquitted. However, he was not released as they said he had another case. He was then charged in this case together with Mvulila and Magazi. According to him he didn't know Mvulila prior to their being charged together in this matter. He alleged that, the testimony of PW1 that he used to see him at Mvulila's place is a mere fabrication as he had never even visited Ukondamoyo Village. On the weapon and the bullets, exhibit Pl and P2 which were allegedly found in his possession, he stated that, it was not found in his possession. It was actually found in possession of the said Nyorobi Mashauri and that, the owner of the weapon identified Nyorobi to be the person who invaded him and stole his gun. He denied to have his hand in the death of Bhamba Kibiriti. That was all from the defence. It is trite law that, in criminal cases, the prosecution bears the duty to prove the case beyond reasonable doubt. The law, section 3(2)(a) of the Evidence Act, [Cap. 6 R.E 2019] provides expressly that disputes facts in criminal cases need to be proved beyond reasonable doubt. It reads; 11 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' In the matter at hand there is no dispute that Bhamba Kibiriti died and his death was not natural. This is evident from the contents of the Postmortem report, exhibit P7, the testimony of PW1 and that of PW7. The two witness testified to the effect that the late Bhamba Kibiriti was killed by a gun shot. The post mortem provides clearly that the death of Bhamba Kibiriti was cause by Haemorrhagic shock secondary to intra-abdominal injury, visceral injury, traumatic brain injury secondary to cut wound. The two pieces of evidence establishes beyond reasonable doubt that Bhamba Kibiriti died and his death was not natural. The only issues that need to be proved by the prosecution is whether the accused persons are responsible with the injuries inflicted to Bhamba Kibiriti which later caused his death. If that will be in affirmative, the prosecution also need to prove that by the time the accused person inflicted the injuries they intended to kill him. This moves the Court to the process of analyzing evidence contained in Court record which has also been summarized in this judgement. Evidence tendered by the prosecution in proving that the accused are responsible with the murder of Bhamba Kibiriti basically rests on two types of evidence, Identification of the accused persons at the scene of crime and being found with the weapon which was used to kill the deceased. 12 It is well established position that visual identification should be acted upon with great caution. The Court of Appeal of Tanzania in the case of Philimon Jumanne Agala @ J4 vs Republic (Criminal Appeal No. 187 of 2015) [2016] TZCA 2089 (26 October 2016) had this to say on the weaknesses and strength of visual identification; '...eyewitness visual identification evidence is of the weakest character and most unreliable. Though totally relevant and admissible, it should be acted upon cautiously after the court has first satisfied itself that such evidence is watertight and all possibilities ofmistaken identity or fabrication have been eliminated.' In this case the accused persons are alleged to have been identified by PW1, Kibiriti Bhamba, the son of the late Bhamba Kibiriti. As reflected in the summary of his testimony, PW1 testified on most important aspects of visual identification as highlighted in the case of Waziri Amani vs Republic (Criminal Appeal 55 of 1979) [1980] TZCA 23 (6 May 1980). According PWl's testimony he had enough time to observe the accused persons. The second accused person forceful entered the room in which PW1 and his sibling slept two times. The first time he ordered them to hide under the bed, the second time he took them out of their bed room to their father's room where the first accused was assaulting their late father. They spent some minutes there where the accused persons were allegedly assaulting the deceased and later they moved to the verandah and the second accused person moved to the door way leaving the first accused with the late Bhamba Kibiriti. All this time the witness was observing the accused persons who were familiar to him and who had not covered their faces. 13 I considered the time at which the incident took place, it was at night where the family of Bhamba Kibiriti was sleeping. In this I assessed if there was any source of light and its capacity to enable proper identification. PW1 testified on the existence of bright solar light which was switched on that particular night. He said they always switch on solar light for protection of the animals that they were keeping at their home. With the issue of distance between PW1 and the accused persons, evidence establishes that the distance was very small. This is evident from the fact the distance between even the rooms of the witness and that of their father was only about three steps. Now for a person who entered the room in which PW1 and his sibling were sleeping, to the deceased's room then to the verandah, it's obvious that the distance between the accused persons and PW1 was not that much big to the extent of causing mistaken identity. I found it necessary to check whether there were any disputes or misunderstanding between the accused persons and the family of Bhamba Kibiriti since sometimes eye witnesses may be driven by their mindset and result to mistaken identity. Evidence on record does not establish existence of any dispute between the Kibiriti Bhamba and or his family with the accused persons. In assessing more as to whether PW1 did nothing but correct identification of the accused persons, I found that PW1 was not the sole witness who identified the first accused person. The first accused person was identified with PW7 Melania Kibiriti. PW7 gave a similar description as PW1 on the manner the first accused dressed on the incident night. She also stated to have seen the first accused and that the first accused even attacked her to 14 prevent her from assisting his late brother. This establishes that, the first accused and PW7 had a very close contact. This witness also knew the first accused as her village mate for a long time before the incident night. I am of a considered view that, the first accused was properly identified by the two witnesses as being among the persons who broke into Bhamba Kibiriti's house and killed the deceased. In reaching to that conclusion, I considered also the defence advanced by the first accused person that he did not attack the deceased rather, he responded to the alarm raised by the deceased's family and took part in patrol conducted by the villagers in search for the culprits. I understand that, the accused is not duty bound to prove his innocence. However, the defence need to create some doubts in the prosecution's case. Unfortunately, the defence advanced by the first accused did not raise any doubt to the prosecution's case. He failed to summon any of the villagers who were with him during the patrol so as to back up his testimony as to his whereabouts on that particular night. In that regard, I find no doubt that the first accused was at the scene of crime as indicated in the prosecution evidence. On the part of the identification of the second accused, the same is corroborated by the discovery of the weapon which was used by the second accused to shot the deceased. According to PW4 SSP Lungu, the second accused led the investigation team to where the weapon was hidden. The weapon was examined by the ballistic expert PW3 who found the same to be the weapon which was used to fire bullet which its spent cartridge was collected at the scene of crime by PW6. 15 The seizure certificate, exhibit P6 indicates clearly that the gun was seized from the second accused person. It is PWl's testimony that, the second accused was armed, he had a gun on his hand on the incident night and he was the one who fired at the deceased when he saw his co accused being overpowered by Bhamba's family. Unfortunately, in his defence, the second accused opted to rely on general denial and he did not state anything regarding his finger print that appears in the seizure report, exhibit P6. His silence on how his finger print was made to appear in exhibit P6 makes the prosecution evidence to be the sole evidence in that aspect. According to the prosecution evidence as it appears in the testimony of PW4, the report was filled after the items that appears therein were seized and the second accused together with other witnesses who signed there in, they inserted their signatures signifying that they witnessed the search and seizure of the items listed therein. I considered also the defence advanced by the second accused that he was merely implicated in this case after been charged with other two offences, traffic case and the criminal case number 39 of 2022 before Urambo District Court. Unfortunately, the second accused failed to establish the existence of the alleged traffic case. With regard to Criminal Case No. he did not establish if the same involved the gun which was admitted in this case as Exhibit Pl and how the same exonerates him from the accusations in this case. In that regard, I am of a considered view that the second accused was found with the gun which was used to shoot Bhamba Kibiriti and he was properly identified at the scene of crime as the person who shot Bhamba Kibiriti and caused his death. 16 The last issue is whether the accused person had intent to kill the late Bhamba Kibiriti on the incident night. It is evident from prosecution's evidence that the two accused person did not intend to kill the deceased, they merely wanted to steal some money from him. However, in the course of stealing, murder of the deceased occurred. The law section 23 of the Penal Code, [Cap 16 R.E 2019] establishes the principle of common intention which makes parties to unlawful common intention guilty of the offence committed in execution of the unlawful intension. The relevant section reads; 'When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution ofsuch purpose an offence is committed ofsuch a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.' The Court of Appeal of Tanzania in the case of John Steven & Another vs Republic (Criminal Appeal 292 of 2013) [2014] TZCA 224 (24 September 2014)had this to say on the dictates of section 23 of the Penal Code; 'It is dear that the section denotes action in concert and necessarily postulates the existence of a pre - arranged plan and that must mean a prior meeting of minds. It must be paraphrased that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case, of course, based on the evidence on record.' Evidence in record establishes that the accused person broke into Bhamba Kibiriti's house with intent to rob his money. It is also evident that in the course of executing their unlawful purpose they used a gun to threaten the deceased and his family. The death of the deceased was a result of the second accused action to rescue the first accused from the arms of the 17 deceased and his family. In such circumstances, first and second accused persons are all equally responsible with the deceased's death. With such evidence I am of a considered view that the prosecution managed to establish the case against the accused persons beyond reasonable doubts and I find the accused persons guilty of murder contrary to section 196 of the Penal Code, [Cap. 16 R.E 2019] and convict them as charged. Given the fact that, the Court has no discretion in sentencing the accused persons who are convicted of murder contrary to section 196 of the Penal Code, I hereby sentence them to suffer death by hanging as provided under section 197 of the Penal Code, [Cap. 16 R.E 2019] Right of appeal explained to the parties Dated at Tabora this 18th day of September 2024 Z.D. MANGO JUDGE 18