CRIMINAL SESSION CASE GODWIN RICHARD MICHAEL

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSIONS CASE NO. 00009820 OF 2024 REFERENCE NO. 202404152000009820 REPUBLIC VERSUS GODWIN S/O RICHARD @ MICHAEL JUDGMENT OS818c 16th October, 2024 M. L. KOMBA, J.; It was morning of 04/7/2023 when Wakirya, a prostitute returns to her room after a busy night of selling her body. When she arrives, she found the door was closed but padlock was broken and left on floor. She opened her room and did not find her two children whom she locked in when going to her lovers. While wondering without knowing what to do she was informed that there is child found dead at shop owned by a person called Mkaka. All these happened at Magunga village. PW2 a Clinical Officer on 04/7/2023 examined a body of Edward Wangwe, a child and as per Exhibit Pl, Edward died due to severe pain after injury. Republic arrest and accuse above named person of murder and arraigned him before court of law for trial. Page 1 of 16 During trial, Republic was represented Ms. Natujwa Bakari and Ms. Joyce Matimbwi both State Attorneys while Mr. Daudi Mahemba was Advocate for the accused person. Let us see the bundle of evidence from prosecution. PW1, Moses Mwaulamba, Inspector of police testified that he was at home and he received a phone that there is a child found at the shop of a person called Mkaka and was suspected he was dead. Together with other police visited the place and found the child. There were many people at the scene and he interrogate some of them. He went on testifying that while at the scene, one woman told him that the night of 03/7/2023 she went to her business and leave children in her room, she locked her children in the room. In the morning when she returned, she found no children in her room and when he saw the child outside the shop, she confessed that the boy was her son. This witness took the child to nearby health center for examination. When cross examined, he informed this court that Wambura Mkaka was not in his shop when the dead body was found that morning. He further informed this court that there was another child who was found injured in different place. That injured child was taken to hospital though he did not know the name of injured child. Page 2 of 16 Another prosecution witness is PW4, WP 9367 D/ Coplo Jackline who record witness statement of Wakirya Magangila on 04/7/2023 at Buhemba Police Police Post. She is also investigator of this case. Wakirya is said to be a mother of two children whose one was said to be found dead outside the shop owned by Mkaka as per testimony of PW1. WP Jackline as recording officer she records witness statement of Wakirya and prayed to tender witness statement on account that she failed to locate Wakirya so that she can appear before this court as witness. PW4 informed this court that she was told by Wakirya that she suspects his son was murdered by Godwin, accused. When cross examined PW4 informed this court that he interrogated only one witness, who is Wakirya, PW4 did not went to the scene and she was told that the body was found outside the shop which she doesn't know the owner and she did not make a follow up to know the name of shop owner, she did not know where the surviving baby was found neither know the condition of that child thereafter. When further cross examined, she informed this court that Wakirya was living in guest house called Peter Container but she did not interrogate any person in that guest house neither the owner of the guest house nor Page 3 of 16 attendants. She never entered in any room in the said guest house and confirmed her testimony about the incident was what has been told by Wakirya, specifically, she acknowledges that it was Wakirya who suspect Godwin, the accused in this case. Apart from objection from defence counsel, the witness statement of Wakirya was admitted as Exhibit P3. D/Cpl Basilius of Butiama police station testified as PW3 and informed this court that on 29/7/2023 around 00:30 hours while at his home he received a call from OC CID that he was needed at the office and was ordered to go to Magunga village to arrest accused of murder. Around 01:00 hours he was at Buhemba village and pass to at Buhemba Police post where they get more police and went to Magunga village. Informer pointed the house, they knocked and found the accused was alone. OC CID informed him his offence and arrest him. After the arrest, police searched the house but they found nothing. They took accused to Butiama police station and this witness was assigned to interrogate the accused. By that time accused was at the police CRO but was not registered in detention book. He went on testifying that he took accused into a room and after talking to him and provide him with his rights, he recorded caution statement where accused narrate what happened on 03/7/2023. According to this witness, Page 4 of 16 he was informed that accused was in a bar near to the village office where there is a place women sell their bodies, he found a woman who is familiar. He gave her TZS 10,000/ and went to bar waiting for time they agree. Later that woman denied to go with accused and started to utter abusive words to the accused whereby accused was annoyed. He keeps on informing this court that accused told PW3 that at night accused went to the room of that woman, he broke the padlock so that to see what was inside. When he entered, he found two children but that woman was not around. He decided to wound the children as he had knife so that it become a lesson to her. On the process one child died on the spot and another was wounded. He said he took the children to different places. When he finishes recording, PW3 read to accused his statement and accepted the narration, he said accused signed. He was guided by section 52 up to 57 of the Criminal Procedure Act, Cap 20. When cross examined, he informed this court that accused admitted to commit the crime that he killed one child and injured another. When asked about the name of the injured child he declared he don't know even the name of the deceased, he don't know age of children and he don't know their mother. He doesn't know anything about the presence of village chairman during arrest and confirm when they arrested the accused, they Page 5 of 16 (police) did not search the house of accused. When asked about the statement he recorded, he insisted that he read to accused and the signature in the statement was of accused. He clarified that he recorded statement under section 58 which need accused to tell the story. When further cross examined about what he recorded, he said he knew what happened as he was informed before the interrogation and record caution statement while insisted that he is working in Criminal Investigation Department (CID) so he had some information. Accused was the only defence witness, DW1 Godwin Richard and testified that he was arrested on 29/7/2023 and was taken to Butiama Police Station. When was in lockup, Afande Basil asked his names and residency and he was informed that he was accused of murder which occurred in Magunga. DW1 denied that allegation and claimed that there was no murder in their village because leaders always announce the death and young people participate in preparation of the grave. When he denied to commit the offence, he testified that Afande Basil told him that when young boys got money, they disturb others and threaten to throw him in river Kirumi. Page 6 of 16 He went on testifying that he heard testimony of PW1 and PW2 and PW3 but what was testified by Basil was not true and claim that the story was written by Basil after knowing his name and village and other personal particulars which he responded positively and insisted he did not record any statement, he did not confess before Basil. He denied to know Mariam and wonder where PW4 got that information. He clarified that he was searched when he was arrested. When cross examined, he insisted that on 04/7/2023 nobody died in their village and there was no announcement as usually do while denying to know Wakirya. When further cross examined, he informed this court that there is possibility those statements were not recorded by Wakirya while maintained he did not record caution statement. Having summarized the evidence adduced by both side during trial, it is now the noble duty of this court determine whether the offence has been proved as charged. Upon a charge of criminal offence being preferred against an accused person, the onus is always on the prosecution to prove not only the commission of the offence but also the link between the said commission of offence and the accused person. The onus never shifts away from the Page 7 of 16 prosecution and no duty is cast on the accused person to establish his innocence. See Longinus Komba vs Republic, (1973) TLR 39. The standard of proof is one beyond reasonable doubt. By that, it means the proof of the charge against an accused person must not leave a shadow of any reasonable doubt that the person charged did actually commit an offence in the manner stated in the information. Prosecution had no an eye witness though not every crime is proved by an eye witness, see Florence Mwarabu vs The Republic, Criminal Appeal No. 129 of 2023, CAT at Dar es salaam. PW4 testified the she records statement of Wakirya Exhibit P3. Before I narrate the content of what was recorded let me first reiterate requirement of the law when witness failed to appear in court. The recorded statement may be tendered and relied upon fulfilling certain condition as provided under section 34B (1) and (2) (e) of the Evidence Act, Cap 6; '34B.-(1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written or electronic statement by any person who is, or may be, a witness shall subject to the following provisions of this section be admissible in evidence as proof of the relevant fact contained in it in iieu of direct oral evidence. Page 8 of 16 (2) A written or electronic statement may only be admissible under this section- Ca) where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or ifall reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) If the statement is, or purports to be, signed by the person who made it; (c) if it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he willfully stated in it anything which he knew to be false or did not believe to be true; (d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and (e) if none of the other parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence.' Page 9 of 16 It was insisted in Adinard Idd Salimu and Another vs The Republic, Criminal Appeal No. 298 of 2018 that for the statement to be found legal procured the conditions must be complied cumulatively. Let me now analyse whether Exhibit P3 met requirement of the law. On 08/10/2024 when trial was in progress and PW3 finished his testimony and when prosecution was about to call PW4; State Attorney, Ms. Natujwa informed this court that the next witness intends to tender statement of another witness which was recorded under section 34B (2) of the Evidence Act, Cap 6. They have failed to procure her but the statement was read during committal. I don't know if this can be termed as notice under section 34B (2). The law requires notice and statement recorded to be served to the other party who within ten days may file objection or otherwise. Prosecution served this court with summons and affidavit that chairman failed to locate witness. There is no notice served to accused as required under 34B (2) (e) so as to enable him to exercise his statutory right to object its admission in the evidence against him. I know this was not raised by defence counsel during trial but this being court of record has to make sure the law is adhered by both parties during trial. See Benjamin T. Mangula & 20 Others vs Tanzania Zambia Railway Authority & Another (Revision Application No. 418 of 2022) [2023] TZHCLD 1142 (9 Page 10 of 16 March 2023) and Sibonike Anyingisye Mwasalemba vs Teofilo Kisanji University (teku) (Misc. Civil Appeal 2 of 2020) [2020] TZHC 4075 (25 November 2020). The fact that statement of witness was served to accused during committal and form part of exhibit in committal proceedings is not a substitute of notice envisaged under section 34B (2) (e) of the Evidence Act which categorically requires prior notice to be given to the accused so as to enable him to exercise the right to oppose the statement to be relied upon by the prosecution. In addition, the omission to comply with the mandatory statutory requirement cannot be remedied by the failure by the defence counsel to raise this issue. As said, courts should not close eyes when there is illegality because it has the duty to ensure there is proper application of laws. See Adelina Koku Anifa and another vs Byarugaba Alex, Civil Appeal No. 46 of 2019. Since there was no notice issued as required by law, I find it is not safe to consider Exhibit P3. See further analysis on application of section 34B (2) in Adinardi Idd Salimu and Another vs The Republic, Criminal Appeal No. 298 of 2018. Having done with Exhibit P3 and PW4, let us see what was testified by PW3 who was a police officer. PW3 informed this court that he recorded Page 11 of 16 caution statement (exhibit P2) of the accused person after he arrested him from his home. I carefully study the testimony of this witness and found the following discrepancies; One; When they went to arrest accused, he testified that they searched the house of accused and found nothing in connection with murder. However, when cross examined by defence counsel he testified that they did not search the house of accused. Two; While under examination in chief he testified that while recording statement of the accused he relied on section 52 up to 57 of the Criminal Procedure Act but when cross examined, he testified that he records under section 58 of the Criminal Procedure Act which need story and not questions; Three; while in examination in chief he informed this court that he read to accused the statement when he finished recording but when in cross examination PW 3 informed this court that he gave statement to accused so that he can read and accused read. Exhibit shows police read statement to accused. Page 12 of 16 Four; Exhibit P2 has information that recording officer read the statement to accused before he finishes recording but at the verification part the statement show accused read his statement and found correct. Five; While in cross examination PW3 informed this court that he knew what happened before he records statement of accused he used his means to get information as he is working in CID. As hinted, tendering of caution statement was objected by accused person on the base that he did not record anything when he was arrested and he signed nothing. I find very difficult to believe the testimony of PW3 on account of variances in his testimony and specifically when he informed this court that they did not search the accused while they do and he got the story of what happened before he recorded the statement. How is it possible this court to believe him in the rest of his evidence. It is settled that a witness who tell a lie on a material point should hardly be believed in respect of other points. See also Zakaria Jackson Magayo vs The Republic, Criminal Appeal No. 411 of 2018, and Mohamed Said vs The Republic, Criminal Appeal No. 145 of 2017. I know there are major and minor contradictions and; in our legal system only major contradictions which goes to the root of the case are Page 13 of 16 considered. See Sebastian Michael & Another vs The Director of Public Prosecutions, Criminal Appeal No. 145 of 2018. PW3 is the one who record caution statement of the accused in which prosecution relied confession therein. If PW3 contradicted his mind on whether they searched accused or not I find possibility what was recorded was not told by accused. That is to say, if he lied to this court that he did not search the house of accused it is also possible to lie that the story was narrated by accused as in defence, accused clarified that he was asked his particulars only. Accused person insisted that there was no death on 04/7/2023 in Magunga village and there was no announcement in relation to burial as it was the duty of young people to make graves. Fron that above analysis, I find risk and not safe in relying to exhibit P2. Further, I study the testimony of prosecution and I find it was PW2 who examined the body of deceased and tendered Exhibit Pl which is post mortem report. When studying exhibit Pl, I noted the examination was done around 07:00 hours and the body of diseased was introduced to PW2 by a police D/Cpl Haruna. The question is how Coplo Haruna know particulars of the deceased while he is not the father neither the mother of Page 14 of 16 that child. It has to be remembered that PW1 testified that a person who is said to a mother of the child was at the scene when PW1 find the child near the said shop. If the mother was around at the scene, why police did not take a child and her mother to health center for examination. A reasonable man may ask whether post mortem examination which was done by PW2 was done to Edward Wangwe whom is said to be killed by Accused in this case. I find the answer is in negative as it was not established how Coplo Haruna know that the child is called Edward while PW1 who went to the scene with Coplo Haruna testified that the mother was at the scene but was not in a good condition and failed even to mention that age of the child who was found dead. It has to be remembered that the duty of the accused person is not to show his innocence while in court, rather, his evidence has to cast doubts on prosecution, see Lack s/o Kilingani vs Republic (Criminal Appeal No. 402 of 2015) [2016] TZCA 688 (29 July 2016). This is another doubt on whether there was a death on that day as nobody ./ testified about the burial and identification of the body of the child was not proper. Prosecution failed to parade even a village chairman/ street chairman of the place which the said incident took place. Page 15 of 16 In the upshot, I have found serious deficiencies in the prosecution case. I have gone through the testimonies of the prosecution witnesses and found their testimonies are tainted with contradictions and lie and it is not safe for this court to rely upon their testimonies. Therefore, I am left with no other evidence to support the conviction of the accused person for the murder of Edward Wangwe. For the reasons, I endeavoured to explain above, I am of the opinion that the prosecutions have failed to prove their case beyond reasonable doubt as required by the law. Ultimately, I find Godwin Richard @ Michael not guilt and acquit him of the offence of murder contrary to section 196 of the Penal Code [CAP 16 R.E 2022]. I order the accused person to be released from the prison unless he is otherwise lawful held. Right of appeal is explained. Mk M. L. KOMBA Judge 16/10/2024 Page 16 of 16