clemencia judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BIHARAMULO ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 91 OF 2023 THE REPUBLIC VERSUS 1. CLEMENCIA KARO LI 2. MAZEYOSE DAUDI @ WALIE JUDGMENT 13th & 21st November 2024 KIWON DE, J.: The accused persons, Clemencia d/o Karoli and Mazeyose s/o Daudi @ Walie stand changed with murder contrary to sections 196 and 197 of the Penal Code, Capl 16 (R. E 2022). It is alleged by the prosecution that the accused persons on 22nd January 2023 at Murulama village within Ngara District in Kagera Region, did murder one Daudi s/o Francisco. On arraignment in court, both accused persons pleaded not guilty and the prosecution managed to parade a total of seven (7) witnesses and tendered seven (7) documentary exhibits; where exhibit Pl is a post­ mortem lexamjnation report, exhibit P2 is the extra-judicial statements of the second accused Mazeyose Daudi @ Walie, while, exhibit P3 is a Chief Government Chemist Report, exhibit P4 is a certificate of seizure of the can/bottle from the second accused Mazeyose Daudi @ Walie, where P5 and P6*are paper trails as to chain of custody on handling of the samples which were sent to the Government Chemist Laboratory for analysis of the alleged ppispn and exhibit P7 is the Sample Receipt Notification. Following the' act of the accused persons distancing themselves from criminal liabil^tyJ the prosecution was duty bound to prove the case beyond; reasonable doubts. It is now a settled legal principle that the burden^proof in Criminal cases lies on the prosecution and it never shifts as it has beenl stated in several authorities of the Court of Appeal such as in the cases of Said Hemed V. R [1987] T. L. R 117 and Mohamed Matula V. R [1995] T. L. R3. The prpsecutiorj evidence in nutshell is that PW1, Gordian Andrea Beyanga, a medical doctor, told the court that on 24th January 2023 he went to mortuary at Rulenge Mission Hospital where he carried out post­ mortem examination of the deceased body of Daudi Francisco. He said the cause of d'eath was due to food poison and so, he conducted medical surgery of the| deceased body and removed part of the liver and intestine 2 for further cherriical analysis by the Government Chemist to ascertain if there was poison in those organs. The witness said the internal organs of the deceased body like liver and intestines were seen abnormal for they had black spots. The body was wet and turned reddish. Thereafter, he filled in a post-mortem examination report which was admitted in evidence as exhibit Pl. According to PW2, one John Zacharia, he was the hamlet chairman by then, he said on 22nd January 2023 at night, the young men, sent by the ten-cell leader. William Elikana, woke him up saying Daudi Francisco was dead; so, he went to the scene of crime and found truly, the said person dead. The witness said further that the ten-cell leader told him that he suspected the^death of Daudi Francisco was due to food poison. He told the court that he| went to the place the food was poured and experienced pungent smell' similar to that in the room. This prompted him put the accused persons junder restraint. He said he interrogated them while they were with the ten-cell leader, William Elikana. It is from this interview, the witness ;said the first accused made oral confession that she gave money and sept the ■ second accused to buy poison and the first accused confessed to have been given money, bought the poison and they gave 3 the deceased; in the food (banana/ beans). The reason being that the deceased sold: farms without involving them. Moreover, PW2 said the second accused person told them that the poison can or bottle was thrown in the latrine pit, so, they went and picked it out. It was sent t:o the police station with the suspects. In re-examination, PW2 denied to have beaten the accused persons during interrogation, he said they confessed the offence, they lived with the deceased, knew him and the smelling poisonous food was poured outside the house. Whereas, PW3, the justice of the peace, said he recorded extra judicial statements of; the second accused who confessed the offence. The statements were admitted in evidence as exhibit P2. The evidence of RW4, a Government Chemist, is that he received samples of pieces: of liver land intestine of the deceased body and the bottle/ can suspected to contain poison used to kill Daudi Francisco from the Chief Government Cherpist Lake Zone office for analysis. After the due process, he found that in the bottle/ can there was found pesticide called cypermethrin and|the same poison was found in the liver. He testified that the poison after being absorbed in the intestine, shifted to the liver. The final analytical report was admitted in evidence as exhibit P3. 4 The other prosecution witness was PW5, Detective Corporal Jilala, an investigation officer of police. He is the one who said received the suspects at Rulepge police station, went to the scene of crime, sent the deceased body to hospital, supervised post-mortem examination, handled the samples and transmitted to Ngara police station and he sent the second I accused person to the justice of the peace. He also seized the poison can from the second {accused. The witness tendered paper trails of the chain of custody whibh were admitted in evidence as exhibits P5 and P6. When he was cross-examined by the defence counsel, he said he found it not important ! to take the food sample which food was suspected to contain ppison. Furthermore, PW6, Detective Seargent Lucian said he received the samples from F>W[5 for safe custody and then PW7, Corporal Marco is the one who sent the samples to Mwanza. He tendered in court the Sample Receipt Notification which was admitted as exhibit P7. When the prosecution case was closed, the court found that there was sufficient evidence enough to require the accused persons to enter defence. Both accused persons defended themselves and had no exhibits to tender; They denied to have committed the offence. They said the deceased died a natural death due to his long-time illness of swelling legs 5 and stomach.'The second accused raised a concern that at the interview with the hamlet! chairman, they were beaten by the ten-cell leader one William1 Elikana and the militia man. He said people threatened them with machetes, the militia man beat him using the flat side of the machete which acts led! them to make oral confession. The second accused (DW2) said on the way to the justice of the peace, PW5, a police‘officer, threatened him not to state differently from what he confessed before him. He said from that, he gave the extra judicial statements due th the prior threats. From the evidence of both sides, the major issue for determination is whether ithe prosecution case has been proved beyond all reasonable doubts. To constitute ah offence of murder under section 196 of the Penal Code, Cap 16 (R. E 2022), the prosecution evidence must prove that the unlawful , act of jkilling a deceased person was actuated by malice aforethought. Also, in law, to sustain conviction of murder, the prosecution has to lead evidence from credible witnesses to prove death of the person named in the information, that such death was unnatural, that the death was caused by an unlawful act or omission by the accused person and finally, that the accused person caused the death of such 6 person with malice aforethought. If the information involves more than one accused I person, then the prosecution has to establish common intention of the accused persons to execute the unlawful act. In the case atihand, it is not in dispute that Daudi Francisco actually died. This is proved by the evidence of PW1 Gordian Andrea Beyanga, a medical doctor. He said he went to mortuary and conducted post-mortem examination bf1 the deceased body. The report on post-mortem examination Wasi admitted in evidence as exhibit Pl. Besides that, PW2 one John Zacharia and PW5, Detective Corporal Jilala testified that they went to the scene of crime and witnessed Daudi Francisco dead, therefore, the evidence sufficiently proved the death of Daudi Francisco. As to the natdre of death of Daudi Francisco, the available evidence indicates that it was unnatural. According to medical evidence of PW1 Gordian Andrea Beyanga, the medical doctor, the death was a result of food poison which led to failure of body organs like kidney to function properly. In exhibit Pl, the post-mortem examination report, the cause of death is renal failure due to food poisoning. Apart from that, i PW4, Costantine Christopher Mulima, a Government Chemist,! said the death of Daudi Francisco might have been due to 7 cyperniethririi type of poison (pesticide) which he found in the laboratory chemical analysis as per report admitted and marked as exhibit P3. For that matter, Daudi Francisco died unnaturally. From that, it follows the issue as to whether it is the accused persons who perpetrated the unlawful act. In law, it is not only to prove the death of the person but tlpe prosecution evidence must connect the accused to the commission of the offence. In Mohamed Matula V. R [1995] T. L. R 3, it was stated that on the information of murder, the onus of proof lies on the prosecution to prove not only death but also the link between the said death and the|accused person(s). In this case, all of the seven (7) prosecution witnesses who were brought and testified in court, did not eye witness the accused persons killing the deceased perspnl by poisoning the food. The prosecution's evidence is solely based on | the extra judicial statements of the second accused person, Mazeypse Daudi @ Walie, the oral confession of the accused persons before: PW2 John Zacharia and circumstantial evidence. It is now settled legal principle that circumstantial evidence can form the basis of I I conviction of the pccused persons if such evidence is watertight. In Paulo Magendd V. R [1993] T. L. R 219 it was settled that for the conviction 8 to be grounded on circumstantial evidence, the same must irresistibly point out to the guilty of the accused person. However, oetore grounding conviction of accused persons based on the circumstantial:evidence, the law has set principles to be considered. In the case of R V. Kerstin Cameron [2003] T. L. R 84 the court stated that to| ground; conviction on circumstantial evidence, the following principles apply: a. Thatievidence must be incapable of more than one interpretation. b. The facts, from which an inference of guilty or adverse to the accused is sought to be drawn, must be proved beyopd reasonable doubt and must clearly be connected with the facts from which the inference is to be drawn or inferred. c. In : murder case, evidence should be cogent and compelling as to convince a jury, judge or court that upon |no rational hypothesis other than murder can the facts be accounted for. In this case, the prosecution relies on the circumstantial evidence on reasons Sthat the accused persons are the ones who were present when 9 Daudi Francisto died, they took care of him including giving food, there was a poison (pesticide) bottle or can make Dudu which poison as found by PW4 in the deceased liver. The witness, PW2 said this can/ bottle was thrown!in the!latrine pit and the second accused shown them the same, they picked it lup. I I The evidence shows that it contained some powdered poison. That being not enough, PW2 said there was food (banana/beans) poured outside|the deceased house. He said it had a pungent smell similar to that felt in the deceased room. This made PW2 suspect that the accused persons, had poisoned the deceased through the said food. Even P\(V4 testified that the poison had been absorbed by the intestine and shifted to the liver. Unfortunately, the investigation officer, PW5, Detective Corporal Jilala said he did not pick up the poured food for the purposes of taking it to the Chief Government Chemist Laboratory to analyze (it to see to it if there was truly such poison in the food. He said he found it not important so to do. So, it is uncertain whether the said food contained poison or not. Thus, it is not proved that the poison got into the deceased body through eating poisoned food. It should be borne in mind that the deceased person is said to have been killed by|the accused persons through giving him a poisoned food. Thus, it was necessaijy for the prosecution to prove by evidence that the food I 1 'll 10 I 1 found poured butside the house, having poison smell similar to that found in the deceased room, contained the same poison. Failure to prove the same casts doubts if the cypermethrin poison found in the deceased liver got into the deceased body via food. In criminal cases, where there are material doubts, the same have to be resolved in favour of the accused persons. In Mabula Makoye and another Versus Republic, Criminal Appeal No.227 of 2017 [2020] TZCA 1)762 (28^ August 2020), it was held inter alia that where the prosecution evidence casts doubts, then such material doubts have to be for the advantage of the accused persons. Reverting to the|e*fra judicial statements of the second accused person, these were I admitted I I at the trial as exhibit P2. The law is clear that once the document; is; admitted in evidence, it forms part and parcel of the evidence. But) it is also the position of the law that admissibility of an exhibit is one thing and the weight to be given to it is another thing. This principle was'stated in the case of Steven Jason & 2 others vs Republic, Criminal Appeal No. 79 of 1999 Court of Appeal of Tanzania, where it held inter alia that: "Admission of an exhibit in question is one thing and the weight to be given to the evidence contained ii therein is another thing. This depends on the totality of; evaluation of the evidence at issue and other pieces of evidence available on record." In this case, extra judicial statements of the second accused person were recorded on 25th|January 2023 while the accused persons are said to have confessed before PW2, the hamlet chairman right from 22nd January 2023. Then the| suspects were sent to Rulenge police station on 23rd Januar^ 2023 at 17: 00 hours. In law, though there is no specific time to take thfe: extra; judicial statements of the suspect, but the same has to be done wiithin a Reasonable time or as soon as it is practicable. If there is a delay, the prosecution must give plausible explanation, otherwise, the extra judicial statements are doubted. In Awadhi Gaitan @ Mboma Versus Republic, Criminal Appeal No. 288 of 2017 [2020] 7ZCA 205 (5th May 2020), it was held that, I quote: "\There is no specified time by the law on when an extra judicial statement can be recorded after the arrest of a suspect but it has to be as soon as practicable. Delay for taking accused person for making his extra judicial statementputs the prosecution under duty to give explanation for the delay. If no sufficient explanation 12 is given renders the delay unwarranted." In the present; case, PW5 said he attended almost every duty including visiting j scene of crime, sending the deceased body to hospital, supervising post--mortem examination of the deceased body on 24th January12023 an<i sending the second accused to the justice of the peace on 25th| January |2023. However, when he was cross-examined by the defence counsels, he admitted that there were other police officers at Rulenge police station. He said this was due to his experience in work. But mete escorting the suspect to the justice of the peace does not require) experienced police officer. Any other police officer could timely send th'e second' accused person to the justice of the peace because he had confessed the offence right from 22nd January 2023. Therefore, this was unwarranted delay which casts doubts if the second accused was [a free agent when he gave such statements before the justice 'of the peace. In his defence, DW2 (the second accused person) said he was beaten by the ten-cell leader, one William Elikana and the militia man who used sticks and people threatened them with machetes while a militia man beat him with the flat side of the machete that is why they decided to confess. The ten-cell leader and the militia vrox\ were not brought to court 13 to testify if the accused persons voluntarily made oral confession before them. At the trial,' PW2, John Zacharia made a general denial that they did not beat the accuseo persons forcing them to orally confess the commission of the offence. But he admitted that when he interrogated the accused persons, the ten-cell leader William Elikana was present. This also casts doubt as to the voluntary oral confession by the accused persons. Leave that alone, DW2 said on the way to the justice of the peace, PW5, Detective Corporal Jilala threatened him to state what he had confessed before him and hot to state differently. So, he said he gave his extra judicial statements before the justice of the peace due to the prior threats. Just as Lhave pointed out earlier above, this unwarranted delay to send ithe second accused person to the justice of the peace and done by the same police officer, makes me believe that the second accused person was not a free agent when he gave his extra judicial statements. It follows that they cannot ground conviction of the accused persons. Apart from that, the second accused person implicated his co-accused, the first accused. In law, under section 33 (1) of the Evidence Act, Cap 6 (R. EI I 2022), confession by one accused person implicating the other can be relied to ground conviction if it is proved that he said the whole 14 truth and voluntarily. But under sub-section (2) of the Act (supra), such : I conviction should not solely base on such confession of the co-accused person unless the Same finds corroborative evidence. This is a condition precedent if the court wants to rely on accomplice evidence. In so far, I (lave discredited the extra judicial statements above, the same which implicated the first accused person cannot be relied to convict her. In the information of murder, this is a very serious offence which upon conviction; attracts capital punishment namely, death penalty. That being the casej it is;always expected that its investigation and eventual prosecution would always be done with great care and seriousness. In this case,! investigation was not thoroughly done. Bearing in mind that the accused persons denied the allegations of killing the deceased, the prosecution had a tough task to prove the case at the required standard in criminal cases. Since it is not proved that the accused committed the offence, then the issue of malice aforethought does not arise here and I will not discuss it. From the aggregate of the foregoing observations, this court finds the prosecution has failed to discharge its duty of proving the case beyond all reasonable doubts as there is no evidence to prove that the accused persons were the ones who put poison on the deceased food. 15 Consequently, I find and hold that the accused persons, Clemencia Karoli and Mazbyese paudi@ Walie are not guilty of murder under section 196 of the Penal Code, Cap 16 (R. E 2022). They are hereby acquitted. F. H. KI I ONDE JUDGE 21.11.2024 Court: Judgment is delivered in open court in the presence of Ms. Evarista Kimaro, i State; Attorney for the Republic, Mr. King Manase, defence counsel !for the first accused person, Mr. Christian Byamungu, defence counsel Tor the [Second accused and Grace Mutoka (RMA) this 21st Novembier 2024 and the right of appeal is explained. VONDE JUDGE 21.11.2024 16