CRIMINAL SESSISSONS CASE CHAINA ABEID

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSIONS CASE NO. 000016414 OF 2024 REFERENCE NO. 202406142000016414 REPUBLIC VERSUS CHAINA S/O ABEID JUDGMENT 07th & 15th October, 2024 M. L, KO MBA. J.: Chains Abeid is charged of murder contrary to Section 196 of the Penal Code, Cap 16, R.E 2022 which is punishable under Section 197 of the same Code. The prosecution alleged that on 03rd day of March, 2023, at Kigera Etuma within district and municipality of Musoma the accused murdered one Abdul Idd. The accused pleaded not guilty and the matter proceeded to full trial. Throughout trial, the accused was well represented by Mr. Emmanuel Werema learned advocate. The prosecution enjoyed the legal services of Ms. Monica Hokororo (PSA) and Natujwa Bakari (SA). Page 1 of 16 In efforts of establishing the guilt of the accused person beyond reasonable doubts, the Republic called a total of five (5) witnesses, through them, two exhibits were tendered (Pl and P2). Let's see the testimony of witnesses. The first prosecution witness was F. 3052 Sgt Ally who recorded statement of Nyamanda Bita Magere who was said to witness what happened in the lake. Sgt Ally was working at Police Post in Kigera Etuma. The said Nyamanda was not traced by process server hence prosecution prayed, under section 34B of The Evidence Act to tender statement recorded two days after the incident and form part of the evidence on their side. Apart from objection that prosecution did not labour much in looking for the witness and the recording officer failed to identify statement. This court basing on summons, affidavit from the process server and force number which was used to identify the exhibit, this court admitted statement of Nyamanda as Exh Pl. PW2 was Bahati Masatu is a fisherman who uses engine boat in his activities and stays at Kurukiri Island where he conducting his fishing activities. He informed this court that he once employed accused and the deceased to fish for him using engine boat. He went on testifying that on 02/3/2023 the two, Chaina Abeid and Abdul Idd (deceased) leave the Page 2 of 16 Island around 15:00 hours and went into the lake for fishing, it was evening and is normal for them to stay in water over night. In the day after when the boat approached the island, he said he found accused alone. When asked whereabout of his fellow, accused replied he jumped into water. When he further inquired, he was informed there was no fight among the two. Following that answer, he testified that he decided to go in the lake at the place where Abdul was said to jump but find nothing. He surrendered Chaina to police and keep on looking for Idd till 8/3/2023 when the body was seen floating on lake water. When cross examined by Mr. Werema witness said he have nine (9) years' experience in fishing industry and the deceased, Abdul was in service for six (6) days only. He went on testifying that he did not believe what he was told because Abdul was of sound mind and insisted that it is only Chaina who know what happened in the lake. He further testified that he was present when the body was examined and practitioner informed the public that a cause of death is lack of oxygen. The crime was investigated by SP Silvanus Matemu, who was paraded as PW3 and testified that he was informed by PW1 that on 03/3/2023 around Page 3 of 16 17:30 hours he received a person who is suspecting of killing or harm his fellow while fishing. He testified further that citizen were furious and the safety of the accused was in stake. Following that information, he ordered the suspect to be sent to Musoma Police station. Upon interrogate the suspect he doubted his story and decided to open the file. He went on testifying that on 08/3/2023 he was informed by PW1 that fishermen and other villagers found the body on water, he decided to go to the scene and found the body still in water, it was removed in his presence. As he saw the body, he testified that he was a man and the body was swollen, it was examined at the scene as the body was in bad condition. In due cause of investigation, he informed this court that in police file there was statement that deceased was beaten and thrown in the water. When the body was recovered, PW3 ordered the file of murder to be opened. When cross examined, he testified that Chaina was taken to police post by furious citizen (wananchi wenye hasira). He testified that Chaina is suspected of killing and the cause of death is water. The body of the deceased was examined by Johanes Fulgence Joseph (PW4) who informed this court that his physical examination of the body revealed that body was swollen without any wound serve for small bites on Page 4 of 16 both ears. He informed this court that the cause of death was suffocation as the deceased was in water. The examination was conducted on 08/3/2023 and the finding was recorded on the post mortem report Exhibit P2. PW5 is the police who received the suspect who was sent to Kigera Etuma police post by PW2. He introduced himself as J. 1534 CpI Petro and testified on 03/3/2023 around 17:00 hours while at Kigera Etuma police post he received the two people who said they were from Kurukiri Island in Musoma Rural and those people informed him that some body was drawn in water. After he report the matter to his in-charge, he was ordered to take accused to Musoma Police Station in the office of OC-CID. He testified that the means of transport was motor cycle. When cross examined, PW5 said Chaina report the incident to police that there is a person who drawn in water and that person was with (him)Chaina. PW5 clarified that they report to police so that police can become aware of the incidence. He said they (police) retain Chaina so that they can continue with investigation. Upon found with a case to answer, accused give his defence under oath as DW1 (Chaina Abed) and testified that he is a fisherman and his activities is Page 5 of 16 done in the Lake Victoria, Kigera Etuma. On march 2023 he went to the lake with Madungudanga (Abdul Idd), the deceased; they used engine boat which was owned by Bahati Masatu (PW2). They usually go for fishing around 15:30 hours and return the following day. In that day they did the same, they leave island around 15:30 and by 19:00 they were already set the net and were waiting for fish. It was his testimony that after being done with setting the fishnet he set the food but Abdul did not eat he was drinking local spirit (moshi). Accused eat his portion, proceed with the story till 20:30 then he sleeps. He went on informing this court that he wakes up on 05:30 hours and wake up Abdul so that they can pull the fishnet. They pulled the net together but before they finish, deceased complained of stomach pain, he was advised to eat in vain and he decided to sleep. Accused completed the process of pulling fishnet and started to go back to the camp (island) where they reside. It was his testimony that when they were near to the land, deceased stood up in the boat, put off his clothes and said he want to clean his face and wash his body so that people could not notice that he was sleeping. Deceased bend to take water from the lake, he testified that when he Page 6 of 16 bends, he falls in water. By that time their boat was in motion, was speed as it use engine and he was controlling it. Following that incident, DW1 make a u turn to follow deceased at the place where he falls, he manages to saw him, he gave his hand and he catch it but he failed to pull him. He decided to go to the island and report to their boss, PW2 for assistance. He said he informed their boss that Abdul falls into water. DW1 went on testifying that PW2 took machine boat with other people include DW1 and go to the lake for the purpose of looking for deceased. DW1 show the place and they started to look for Abed but in vain. They returned to the island, report to village chairman and the police were informed by that chairman. Accused went on testifying that he went to Kigera Police post by boat and report the incident. While at the police post he said his boss arrived. DW1 denied to beat neither to push Abeid in water while insisting that if he had any intention, he could do it while in deep water where there were no people around. He maintained that the two (DW1 and Abeid) were in good terms. During cross examination he said he has 10 years' experience in fishing and he was fishing on majora not in timba where people can swim. Majora is deep water. About his experience in swimming, he testified that he Page 7 of 16 knows little about swimming and cannot dive. He confirmed to be with Abeid on 02/3/2023 before his death and noted that the death was not normal. Explaining why he did not rescue him when he turns the boat to the place Abeid fall he explained that there were waves and after he noted is incapacitated, he rushes to the island and inform other people. The place where Abeid falls has medium water and was not very far from the land, when further cross examined, he said he surrendered personally to police and his boss found him at police Post. As presented by prosecution that accused is charged of murder contrary to section 196 and 197 of the Penal Code. The charge is serious because it involves a death sentence penalty to the convict unless the same is not proved on the standard required by the law. At this early stage, I wish to point out that in order to win conviction, the prosecution must prove their case beyond any reasonable doubt as required of it under section 110 of the Evidence Act, CAP 6 R.E. 2022, short of that conviction will fail as it is not the duty of accused to defend, rather, evidence led by the prosecution must incriminates him to the extent that there is no other premise than the fact that the accused person committed the offence with which he stands Page 8 of 16 charged. (See Anthony Kinanila and Another vs The Republic, Criminal Appeal No. 83 of 2021 (unreported). In the case at hand, the accused is charged of murder and section 196 reads; 'Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder'. Both prosecution and defence witness testified that Abdul Idd @ Madungudanga is dead. This court admitted Exh P2 showing the body of deceased was examined by PW4 and confirmed Abdul was dead and the cause of death is suffocation in simple words is lack of Oxygen. That being settled, it is the duty of the prosecution to prove the case against the accused person herein at two stages; first that it is the accused person who killed the deceased and secondly, that accused did commit the killing with malice aforethought as stipulated under section 200 of the Penal Code, Cap 16. There is no doubt that on 02/3/2022 accused went fishing with deceased. This fact was testified by PW2 and confirmed by other witnesses including DW1, accused person, that he was together with Abdul in machine boat while fishing. The same story has been narrated by PW5 who transported accused to Musoma Police Station. What has to be proved by prosecution is Page 9 of 16 accused has killed deceased. Prosecution relied on the statement of a witness, Exh Pl, witness is Nyamande Bita Majaje whom they failed to parade in court as witness and resort to section 34B of the Evidence Act, Cap 6 R. E. 2019 by tendering the statement of witness which was recorded by PW1 on 05/3/2023. Prayer to rely on witness statement was objected by defence counsel on ground that prosecution relaxed in finding the witness. This court overruled the objection and admitted the statement of Nyamanda. Let us see what is provided by the law for a witness who cannot be found, how his recorded statement can be admitted in evidence and acted upon by the trial court but certain conditions have to be met. This is prescribed under section 34 B (1) and (2) (e) of Cap 6 which stipulates as follows: '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. (2) A written or electronic statement may only be admissible under this section- Page 10 of 16 (a) 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 if all 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) I f 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.' It emphasized on the mandatory requirement of the law that, for a statement to be admitted in lieu of oral direct evidence, the conditions Page 11 of 16 stipulated under the cited provision must cumulatively be complied with. (See: Willy Jengela vs Republic Criminal Appeal No. 17 of 2015, Mhina Hamis vs Republic, Criminal Appeal No. 85 of 2005 and Adinardi Iddi Salimu and Another vs The Republic, 3 Criminal Appeal No. 298 of 2018. The issue to be answered is whether Exh Pl met conditions of reception in the evidence. The answer is in the negative and I am settled on that because notice to use witness statement was issued while hearing of the matter begin. When addressing the court that each side in court is ready for hearing it is when Ms. Hokororo prayed for additional witness and gave notice (to court and to defence counsel) that the 1st witness intends to tender statement of another witness whom was not in court. Mr. Werema objected the prayer but he directed his points on relaxation to find witness and non-disclosure of the same during committal. This court overrule objection as found in ruling. It has to be known that committal stage is different with trial. At committal list of witnesses and nature of their evidence is read on assumption that all witness will appear during hearing and cross examined. Intention to rely on statement of witness whose whereabout is unknown has different procedure and it start at the trial stage when confirmed that prosecution failed to locate the witness. Page 12 of 16 The above cited section 34B (2) (f) provide that, the other party should respond to notice within ten days or else the matter may proceed. In other words, the law provides ten days for court to accept objection over notice. In the case at hand, on 04/10/2024 leader of prosecution team, Ms. Hokororo (PSA) addressed this court thus; 'Ms. Hokororo: The matter is coming for hearing today I have four witness and ready to proceed. However, we pray to give notice to add witness under section 289 (1) of Cap 20 we pray to add F. 3052 Sgt Ally of Kigera Police Post is police who record statement on Nyamanda Bita Majaje, statement which were read during committal. We further wish to give notice under section 34B of Cap 6 that we shall use statement of Nyamanda Bita as part of evidence. We are compelled to use statement because the said witness is nowhere to be seen, Nyamanda is fisherman has no permanent resident and summons was returned from village Executive Officer. Together with this elaboration I supply your court with Notice under section 289, Notice under section 34B, Statement of Nyamanda and summons together with its affidavit. That's all.' From the caption above, State Attorney was ready for hearing and ready to rely on witness statement on account that defence side are aware as it was read during committal. That is misinterpretation of the section. I find defence were not given enough time to analyse and object the intended Page 13 of 16 witness statement as this court was supposed to accept objection any date within ten days from 04/10/2024 but prosecution prayed to proceed. It is true that defence did not object basing on requirement of the time, the omission to comply with the mandatory statutory requirement cannot be remedied by the failure by accused/defence counsel to raise issue of time allowance to object or notify the other party because it was incumbent on this court to ensure that the law is complied with to the latter before acting on Exh Pl. See Adinardi Iddi Salimu and Another vs The Republic, 3 Criminal Appeal No. 298 of 2018 (unreported). It is finding of this court therefore, that defence side were not given time as required by law and therefore I find Exh. Pl was wrongly procured and I shall not consider it. Prosecution paraded PW2 and PW3. While in court PW3 testified that he interrogated the accused when he arrives at Musoma Police station where he was informed that deceased jumped into water because he was hungry as he failed to hold his situation till when they reached to the island. PW2 was informed by accused that deceased jumped into water. Both of them testified on hearsay, none of them was at the scene to point that it was accused who killed deceased. They have heard deceased jumped into water. PW4 testified that cause of death was suffocation and the body was Page 14 of 16 swollen. Basing on PW4 examination, deceased died while in water. The question who killed deceased may be said has got an answer. He died in water. What is not known is how he entered into water. What does the accused informed this court about the incidence, accused testified as DW1 and said when deceased wanted to wash his face he bends and he fall. He tried to return to the place and found him, wanted to rescue him by giving his hand but he didn't not manage he was using only one hand, then water waves moved Abdul. He went on informing this court that he rushed to the island and informed PW2 who, together with accused and other people who not subject of this case return to the place and find nobody. Accused said it was him who show PW2 the place where Abdul ft >. ,4 « < falls. This was confirmed by PW2 when cross examined that accused show ‘' A' * J him the place where Abdul falls and he believed that and searched but in vain. After some days the body of Abdul was recovered while dead. Accused managed to find Abdul in water but failed to take him out of water, just like other witnesses DW1 deserve credence unless there are reasons for not according it. See Allan Duller vs Republic, Criminal Appeal No.367 of 2019 (unreported). Page 15 of 16 To this end I find the prosecution has failed to prove malice to the offence levelled against the accused, that is malice in murder. So far as prosecution proved and accused did not deny to be with deceased in a boat and the fact that accused tried to rescue and failed and managed to show the place to PW2 and reported the incident to Police this court is satisfied that accused cause the death of deceased without intention and I find the accused person guilt of a lesser offence of manslaughter. That being so I hereby convict chaina abed to the offence of manslaughter contrary to section 195 of the Penal Code. M. L. Komba JUDGE SENTENCE After considering aggravated factors and mitigating factors submitted by both side, accused is hereby sentenced to four (4) months imprisonment. Right of appeal is fully explained. M. L. Komba JUDGE 15th October 2024 Page 16 of 16