CRIMINAL SESSION CASE MAGEMBE CHARLES KIDUKU

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSIONS CASE NO. 00016723 OF 2023 REFERENCE NUMBER 202406192000016723 REPUBLIC VERSUS 1. MAGEMBE S/O CHARLES © KIDIKU 2.CHARLES S/O KIDIKU © NDAKI @ ILANGA JUDGMENT 26th & 10th October, 2024 M. L. KOMBA, J.: I was informed like 18:30 hours that KWANDU LIMBU was died and I arrived at the scene at 19:00hrs. Tamba who informed me he had cattle who went at the river for water drinking. Villagers held the son of Kwandu, Magembe Charles Kidiku, the 1st accused to be responsible for the death of his mother. It was 16/6/2023 at Tingirima village within Bunda District, a woman aged 64 years was found floating in river Tirina within Tingirima village. Villagers Page 1 of 21 raised an alarm and people gathered at the scene and police was informed who when he arrived, he ordered the body to be removed from the river waiting for examination which was conducted on 17/6/2023. Police suspected son of deceased (the 1st accused herein) and the husband of deceased (the second accused herein) to be responsible of the killing and were charged. Both accused denied to commit the crime hence matter went to a full trial. During hearing, prosecution, Republic was represented by Ms. Monica Hokororo (PSA) and Mr. Jonas Kivuyo (SA) while Mr. Emmanuel Werema appeared for 1st accused and Mr. Godwill Mweya was for the 2nd accused. Both were advocates. The first prosecution witness was Malulu Joseph Pius (PW1) who is hamlet leader of Mobimahe hamlet. He testified that on 16/6/2023 around 18:30 hours while at his home he received a phone-call from one citizen call Tamba Makikira who informed him that there was a body seen floating in river Tirina which is at the border of Serengeti and Bunda District. He went at the scene and found the body floating in the river and there were crowed of people. He decided to inform village chairman (Samweli China) and the acting Village Executive Officer (Omari Lugatiri). He said the two arrived at the scene around 20:00 hours. He went on testifying that it was Page 2 of 21 Chairman who informed Isenye Police post (Bunda) about the incident. Isenye post was nearby the scene and police responded. It was his testimony that when police arrived at the scene, he ordered people to remove the body from water and it was that moment they (people around the scene) discovered the body was of Kwandu Limbu Sasa, their village mate. While at the scene, latter it was discovered the son of the deceased, the 1st accused, was at their home he did not show up at the scene. He testified that villagers decided to brought the 1st accused at the scene who was sleeping with his children, at the scene, he said the 1st accused also discovered that the body was his mother. PW1 continue with his testimony that villagers interrogate the 1st accused who informed them he participated in the killing of her mother together with his father, the 2nd accused. They were informed by 1st accused the reasons for killing was love affairs (wivu wa mapenzi) and a land dispute which his father brought from relatives of his wife but the said farm was taken by wife's relatives. That action upset the second accused. At 02:00 hours citizen decided to take 1st accused to Isenye Police post and was under police custody. In the following morning, he testified that police and doctor went to the scene where the body was left and after Page 3 of 21 examination doctor found the body had a cut in her face on the left side near to the eye and the neck was loose like she was strangled. This witness assisted police to make a sketch map. When cross examined by Mr. Werema he informed this court that he was informed of the existence of the body into the river at 18:30 hours and he arrived at the scene at 19:00hrs. He was informed by Mr. Tamba who send his cattle for water drinking. He clarified that the distance from deceased home and the scene where the body was found was 200 meter and the distance form deceased home to market (mnadani) is like 5 kilometers and river Trina flow in different direction from where market is located. He confirmed that the whole story was told by 1st accused. Being a leader and a citizen of the village witness confirmed Charles the second accused was not in the village for a long time. When crossed by Mr. Mweya this witness confirmed that there was an alarm in that day and many people responded to alarm. When 1st accused asked whereabout of his mother he replied she went to the market and at that night Magefnbe was taking care of his children (3 and 5 years). Page 4 of 21 The body of Kwandu was examined by Marry Emmanuel Paulo, (PW2) a clinical officer from Isenye Dispensary who testified that on 17/6/2023 she received a phone call from police and was informed that there was person died and police wanted a body to be examined. It was her testimony that she finds the body laying aside river Tirina and after examination she discovered extreme bleeding from face on left side and the neck was loose. She informed this court that cause of bleeding was sharp object. She further observed the death occurred 12 hours ago. She tendered Post mortem Report which without objection was admitted as Exhibit Pl. During cross examination she confirmed that she was informed by people at the scene that death occurred 12 hours ago. She could not know that through body examination and she said the cause of death was due to the wound which cause internal bleeding. When further cross examined, she testified that she suggested the cause of death was internal bleeding because the wound had blood. It was physical examination. Frank Dausen Shoo a policeman appeared as PW3 and testified that he is in-charge of Isenye Police Post which operates 12 hours only as it is small police post and not a police station. They open at 06:00 hours and Page 5 of 21 close at 18:00 hours. He informed me that on 16/6/2023 around 20:00 hours while at his home he received a phone call from hamlet leader who informed that there was body found floating in Tirina River and he suspected the person was dead. When he visited the scene, he ordered the body to be removed from the river and found it was a body of a woman and was discovered her name was Kwandu. He informed Bunda Police Investigation department and leave the place. He further informed this court that when he left the scene, he was informed that people went to the house of the deceased and found her son who upon interrogation the son who confess to participate in killing and he wanted to show the place he hides clothes. It was the 1st accused who then was sent to Isenyi Police Post around 02:00 hours. It was his further testimony that investigation team from Bunda Police went to Isenyi and upon interrogating the suspect, Magembe was willing to show them the second accused and place where the clothes were hidden. When cross examined, he testified that when he went at the scene, he only ordered the body to be removed from water and his investigation revealed nothing and that's why he informed OC-CID Bunda for other steps. PW3 further informed this court that what he testified was story from the citizen Page 6 of 21 as he left at the scene around 21:00 hours to go back to his working station. When further cross examined by Mr. Werema he informed this court when he received information about the murder he was at police post. He went on testified that 1st accused confessed to participate in the murder while was in police post though he did not record his statement. PW4 was a retired police officer, Bwire Mateko Njagi who record the caution statement of 1st accused who also was arresting officer. He testified that on 17/6/2023 he was assigned to interrogate 1st accused who was in police lock up. He testified that 1st accused knew that his offence was murder and after warning him, witness said accused told him that 1st accused collaborated with his father, the 2nd accused to kill the deceased, it was night so it was 2nd accused who knocked the door of the house where deceased was, she opened the door and 2nd accused entered after greetings 2nd accused strangulate the deceased and deceased becomes weak and blood started to flow from the nose. The two took the woman outside the house. Witness said he was informed that the two accused took deceased to the bush and 2nd accused cut the deceased on the head and she died. Then they wanted to bury her but the hole was small to hide the Page 7 of 21 body they only managed hide bed sheet, mosquito net and mattress which they used to carry the woman. Witness was further informed that the two accused took the body of woman to the Tirina River and throw it into the river. The second accused disappeared and Magembe the 1st accused went in the house of his mother where there were his children. There after there was an alarm (yowe) but the 1st accused did not respond to alarm. 1st accused went on informing PW4 that people followed the 1st accused at home, they took him to yowe where he found the body of his mother, Kwandu Limbu. After that, the 1st accused informed people who responded to yowe that it was him and his father who killed his mother. This witness tendered caution statement which was admitted as exhibit P2, Nevertheless, I reserved full digest of it in the later stage. When cross examined witness testified that he did not went to the scene but was informed by police who went to the scene that deceased was dragged from the small bushes to the river. When asked why he did not take 1st accused to justice of peace he responded that he did not confess to murder his mother as he is aware a person who confess to kill is taken Page 8 of 21 to justice of piece. He insisted he recorded what he was told by 1st accused and not otherwise. This court ruled that accused persons were implicated and they have a case to answer. Both they defended under oath. DW 1 was Magembe Charles Kidiku, 1st accused, who informed this court that he has two children (3 years and 5 years) but he doesn't know whereabout of his wife as he left home. Since disappearance of his wife, his children are taken care by his mother, Kwandu Limbu who is dead and was informed of her death on 16/6/2023 around 23:30 hours. He went on testifying, that time (23:00 hours) people went to their home while he was sleeping, they arrested him, tied his legs with rope, put him on the motorcycle and took him to the river. At the river he said those people show him a dead body around the river. They use light from motorcycle and managed to identify the body was of her mother. He went on informing this court that he was then taken to Isenye Police post around 00:00 hours and in the morning was taken to Bunda police station in lock up. Around 10:00 hours he was taken by police who had a gun to another room where he was forced to put his thumb on papers Page 9 of 21 which he failed to read as he doesn't know how to read neither to write. He testified further that he doesn't know how his mother died as he was taking care of his children. During cross examination he confirmed that he did not hear any alarm (yowe) on that 16/6/2023 and said there has been no yowe since he started to live in Tingirima village. He had no doubt when he did not see his mother for the whole day because it was normal for her mother to return later when she went to the market and sometimes, she sleeps to her relatives. DW1 insisted he did not confess before any person and has never saw Afande Bwire before. DW 2 was Charles Kidiku Ndaki Ilanga, who is 2nd accused in this case, this witness was very brief. He confirmed he has two homes in Tingirima and Kamkenga and he has two wives one is Kwandu Limbu who was living in Tingirima village and she is deceased the second wife is Asha Ruben living in Kamkenga Bunda. He informed this court that he was aware of the death of her wife after his arrest 20/6/2023. He was arrested from his home Kamkenga. Page 10 of 21 When cross examined by State Attorney, he informed this court that when his wife died this witness was not in Tingirima Village. His relatives are in usukumani and were not aware of the death that's why he was not informed. He further clarified that police beat him but he was not interrogated and he recorded nothing. He was further informed that the dead body of his wife was found in the river. Having gone through the evidence adduced by all witnesses, I find the pertinent issue to deal with is whether the prosecutions proved their case beyond reasonable doubt. It is cardinal principle of criminal law that the duty of proving the charge against an accused person always lies on the prosecution because a person is not guilty of a criminal offence because his defence is not believed, rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt. See Gaius Kitaya vs The Republic, Criminal Appeal No. 196 of 2015, Joseph John Makune vs Republic [1986] TLR 44 and Pascal Yoya @ Maganga vs Republic, Criminal Appeal No. 248 of 2017. In Mohamed Haruna © Mtupeni & Another vs Republic (Criminal Appeal 259 of 2007) [2010] TZCA 141 (4 June 2010) the Court stated that: - Page 11 of 21 'Of course, in cases of this nature the burden ofproof 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.’ Accused persons herein are charged with the offence of murder contrary to section 196 of the Penal Code. In proving their case, prosecution has to prove elements of murder. There is plethora of authority that provides for essential ingredients of the offence of murder. In criminal jurisprudence, in order to be victorious, the prosecution has to prove the followings elements that establish the offence of murder; one; There is the death of a person, two; The said death was caused by unlawful act or omission, three; It is the accused who caused the death of deceased, four; The accused acted with malice aforethought. Regarding the first and second elements, it is undoubted throughout prosecution and defence evidence that Kwandu Limbu died and that his death was abnormal. Despite the fact that accused persons did not dispute the deceased death as they too testified on that, the evidence of PW2 and exhibit Pl (post-mortem examination report) proved that the deceased death was due to severe injury on neck, lack of sufficient air and marks on Page 12 of 21 the right ribs. The issue to decide now is whether the deceased was murdered by accused persons charged in this case. In this case there is no eye witness, prosecution relied on caution statement of the 1st accused which is exhibit P 2. I had time to read the whole of Exhibit P2 which has explanation of what happened in that day. I look on compliance of the law and found the Exhibit P2 was made under section 58(4) and confirmation section show the statement was made ' under section 57 and 58. According to PW4 the recording started at 11:30 hours and finished at 14:10 hours. It was prosecution testimony (PW3) that the 1st accused was arrested and taken to police post at 02:00 hours i that was 17/6/2023 then PW4 recorded Caution statement of the 1st accused (Exh P2). I am aware that the confession evidence, Exh P2 faced a stiff objection on its admissibility on the manner it was procured and the timing when it was recorded, that it was procured beyond the provided statutory time. I reserved my final deliberation whether the said exhibit P2 is legally worth of consideration for the prosecution's case. I have found it pertinent to reproduce the said relevant section (Section 50(1) 8i (2) of the Criminal Procedure Act, (CPA) dictating the recording of an accused person's statement: Page 13 of 21 5O .-(l) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence; (b) if the basic period available for interviewing die person is extended under section 51, the basic period as so extended. 51 .-(1) Where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge of investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may— (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration of the original period or that of the extended period, make application to a magistrate for a further extension of that period. It was prosecution's submission that investigation team from Bunda arrived at Isenye and started investigation. Police were looking for second accused, the bedsheet, mosquito net, mattress and other material used in commission. Thus, following such investigation going on, 1st accused Page 14 of 21 statement could not be promptly taken down as he was still assisting in the investigation process. Section 50 (2) of the CPA, clearly states what is to be reckoned and not to be reckoned in computing such time. In my reading to the testimony of PW3 and PW4,1 have not been able to find any evidence what investigation going on with the said 1st accused to make them delay record his statement promptly as per law. By the way, when cross-examined about clothes of accused and other items, PW3 denied to know anything about clothes. In the cause of hearing of the case, none of prosecution witness testified what was recovered that night or where they were taken by 1st accused to reveal what was hidden. So, it is my considered view that there is no legal justification as to why the said statement was late recorded from the accused person. Further, am aware of the decision in Chacha Jeremiah Murimi & Others vs Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019). However, requirement of section 50(1) was not relaxed. This being a court of record, is obliged to ensure that the law is complied. The requirement of four hours has been interpreted in the case of Mohamed Juma @ Mpakama vs Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019). Adherence to the law in Page 15 of 21 investigation process is not a matter of choice but compliance of law. In the current matter, there was reluctance/ relaxation on the manner the 1st accused person was supposed to be dealt with immediately after being procured. That said, the admitted exhibit P2 in this case, lacks legal evidential weight for its consideration as its procurement was in contravention of the law. The spirit of the rights the provision seeks to protect, it cannot be said that the omission is among those which are curable under section 169 of the CPA. These elaborate provisions were not superfluously added to the Act, they had specific purpose. See Bulabo Kabelele and Another vs Republic, Criminal Appeal No. 224 of 2011. This being a court of law and court of record, I have to make sure the provisions of law are adhered. My mind is settled the omission rendered the statement's admission in court improper and I shall not consider it in this judgement. After I neglect the exhibit P2 it remains oral admission which was done by the 1st accused. The accused was said to confess before PW1 and PW4. It is settled that an oral confession of guilt made by a suspect before or in the presence of reliable witnesses, be the civilian or not, maybe sufficient by itself to ground conviction against the suspect. See The Director of Page 16 of 21 Public Prosecutions vs Nuru Mohamed Gulamrasul, [1988] T.L.R. 82. In Mohamed Manguku vs Republic, Criminal Appeal No. 194 of 2004, quoted in Posoho Wilson @ Mwalyego vs Republic, Criminal Appeal No. 613 of 2015 the Court insisted that such an oral confession would be valid as long as the suspect was a free agent when he said the words imputed to him. It means therefore that even where the court is satisfied that an accused person made an oral confession, still court should go an extra mile to determine whether the oral confession is voluntary or not. See Chamuriho Kirenge © Chamuriho Julius vs Republic (Criminal Appeal 597 of 2017) [2022] TZCA 98 (7 March 2022). Involuntary confession is provided for under section 27 (3) of the Evidence Act, Cap 6 which states: '(3) A confession shall be held to be involuntary If the court believes that it was induced by any threat; promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority.' As indicated, from testimony, 1st accused testified before PW1 and PW4 that he witnessed his father, 2nd accused killing his mother. The issue now is whether the 1st accused was a free agent when giving his statement Page 17 of 21 before prosecution witnesses. Starting by PW1 he testified that when they recognized the body, they noted deceased son (1st accused) was not among them at the scene and citizen decided to follow him at his home where he was sleeping with his children and upon interrogation 1st accused confessed to participate in killing her mother. All these were done after the police has left. Police left the scene at 21:00 hours and the interrogation by the PW1 and citizen was done between 21:00 to 02:00 hours then they took the 1st accused to Isenye Police post. Reason for interrogation from the testimony was because he did not respond to yowe (alarm). However, I noted five (5) hours were spent by citizen to interrogate the accused. Can a reasonable man say confession by accused was voluntary? Under this circumstance the answer is no. On the other hand, PW4 informed this court that he was told by the 1st accused that they were with his father, at the night and they went to Tingirima where the deceased was living, because it was night, Charles (2nd accused) knocked the door, diseased opened the door and Charles entered. Magembe remained outside while peeping. The confession made to PW4 revealed that crime was committed at night. However, the testimony of PW1 revealed that around 18:30 hours the body was already found in Page 18 of 21 Tirina River. How is it possible to knock the door at night and perform all the process and the body to be found at 18:30 hours. If what was narrated by PW 4 has to be considered by this court then I find contradiction on prosecution on the time crime was committed. When PW4 informed this court that crime was committed at night, PW1 testified that the body was discovered around 18:30 hours when one of the villagers take cows for water in Tirina river. In Yusuph Nchira vs The Republic, Criminal Appeal No. 174 of 2007 the Court stated that: - ' The appellant had only to raise doubts on his presence at the scene ofcrime and the prosecution had to prove its case beyond reasonable doubt The appellants story need not be believed. He had only to raise a reasonable doubt and not to prove anything.' In his defence 1st accused complained he did not record anything that is, he was not interrogated but there were papers which he was forced to sign. He further testified he cannot read neither write and his father stays at Kamkenga as testified by PW1 that 2nd accused in this case was not in Tingirima for long time. Page 19 of 21 It has to be remembered that this is a criminal case. Not only the criminal case, this is a murder case which when proved his punishment is capital, is death by hanging. So, the standard of prove must real be beyond reasonable doubt. See Yustas Katoma vs The Republic (Criminal Appeal 242 of 2006) [2008] TZCA 72 (14 July 2008). If the body was discovered at 18:30 hours, at what time does the crime committed as PW4 informed this court that the crime was committed at night. Prosecution evidence leaves doubts for other inferences to be drawn. The doubts always are decided in favour of accused persons. See, DPP vs Stephen Gerald Sipuka, Criminal Appeal No. 373 of 2019, Hilda Innocent vs Republic, Criminal Appeal No. 288 of 2019 and Republic vs Mashimba Silingi, Criminal Sessions Case 33 of 2022 and Vitalis Sindano & 7 Others vs The Republic, Criminal Appeal No. 61 of 2023. In the circumstances, with much respect, I hold that, in totality, the prosecution did not prove the case against accused persons herein beyond reasonable doubt. Page 20 of 21 Eventually, I find MAGEMBE CHARLES @ KIDIKU and CHARLES KIDIKU @NDAKI @ILANGA not guilt and acquit both of them from the offence of murder contrary to section 196 and 197 of the Penal Code [CAP 16 R.E 2022]. I order MAGEMBE CHARLES @ KIDIKU and CHARLES KIDIKU @ NDAKI @ILANGA to be released from custody unless each of one is lawful held. Right of appeal is fully explained. M. L. KOMBA Judge 10th October, 2024 Page 21 of 21