Republic vs Raphael Simzosha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL JURISDICTION CRIMINAL SESSION NO. 99 OF 2022 REPUBLIC VERSUS RAPHAEL S/O CREDO @ SIMZOSHA @ ALEXANDA CREDO @ STIMA JUDGMENT 25/09/2024 & 09/10/2024 MWENEMPAZI, J. This case, is set against the backdrop of rural traditions and the law's long reach, promises to be a compelling exploration of human nature and justice. The essence of a transaction turned tragic, a deal between Simzosha and Machiya Elias, known as Gidoganya, that spirals into violence. The information filed against the accused person Raphael s/o Credo @ Simzosha @ Alexanda Credo @ Stima is that on the 28th day of April, 2022 at Nkwilo plateaus-Kisula village, within Nkasi District in Rukwa Region, did murder one Machiya S/O Elias @ Gidoganya. 1 When the information was read over to the accused, he protested his innocence. Hence, full trial. Whereas Ms. Exaveria Makombe learned Senior State Attorney and Mr. Jackson Komba learned State Attorney and respectively represented the Republic, Ms. Tunu Mahundi learned advocate represented the accused person. It was established and consequently proved that the deceased is indeed dead. This proof was done by PW3, Almachius Ally Laurian, a medical expert who confirmed the death of the deceased and that, his death was due to severe bleeding as a result of a cut wound suggestively by a sharp object. He filled the Report on Post Mortem Examination and tendered it as evidence, and it was admitted without objection and was marked as Exhibit P1. The contents of the report indicates that the deceased's body was found with a deep cut wound around the neck and some bruises on the back. Thus, it is undisputed that the deceased died unnatural death. Hence, remained a duty on part of the prosecution to prove that, the deceased's death was the accused's contrivance as alleged in the information. 2 Inter alia, the prosecution's evidence against the accused person is pegged to the doctrines of recent possession and that of the last person to be seen with the deceased. That, some few days after the deceased's death, the search for the assailant began and in due course, the accused herein was arrested on the 27th day of May, 2022 at Mahongole village at Mbeya rural area and taken to Rujewa Police Station where upon being searched he was found in possession of a black Tecno cellular phone suspected to be owned by the deceased. The certificate of seizure used to seize the said phone was tendered in evidence without objection and was marked as Exhibit P5. In proving their case against the accused person, the prosecution examined nine (9) witnesses; the first witness, PW1 was Ester Tende Kibina. She was the deceased’s wife, being in grief for the loss she encountered, she took the stand on the witness’ dock and testified under oath that, on the 27th day of April, 2022, the accused person went to her residence and told her husband (the deceased) that he has two cows he wants to sell, as it was her husband’s business of buying cows from different people from different areas, the deceased agreed but wanted to see the cows first and so they slept in order to start off afresh the next morning. 3 PW1 added that, the following morning, the two (accused and deceased) went off heading to the accused’s village where the cows were. Unfortunately for PW1, that was the last time she ever saw her dear husband again. Still being in grief, she stated that when it reached on the 30th of the same month, she had to tell her in-laws about the silence of the deceased as he has not returned home and he is not reachable in his cellular phone. PW1 also inquired the deceased’s young brother called Morgan about his brother, and they had to report about the missing of the deceased to the village executive officer and the same gave them a letter which permitted them to search for him. She finalised that, Morgan and their other relatives started looking for her husband as he left for Mpete, Milimani. That, they searched for three consecutive days and found the body of the deceased thrown in a whole pitiless. It was Morgan who phoned her and conveyed the sad news that they did find the deceased but he has already‘stretched his bed’. In cross examination, PW1 stated that her husband had left with some money in the tune of one million and five hundred thousand only (1,500,000/=). And that, he also had a black phone which was burnt by fire on the top right-hand side. But neither the phone nor the money he had were found at scene of crime. The prosecution side sought leave of 4 the court to show the said phone to PW1 and indeed she did recognise it to be the very cellular phone that belonged to her husband. PW2 was Morgan Elias Jibunge. Being under oath he stated that on the 27th day of April, 2022 he was invited by his brother (deceased) to help him peel maize as he had already harvested. That, while at his residence, the accused came and joined in helping carrying the maize from the deceased’s farm to his household. For that day, PW2 left for his home and the accused remained at the deceased house. PW2 proceeded that, on the 30th of the same month, his sister-in-law (deceased’s wife) phoned him and said that her husband has not returned home since he left and that he is not reachable in his cellular phone. PW2 and other close friends to the deceased had to start searching for their friend after being given a green light to do so by the village executive officer through a permit letter he drafted. PW2 continued that, they started by going to the accused’s residence at Nkwilo Milimani, but they did not find neither the accused person nor the deceased person, they however found the accused’s uncle. Upon asking the him if the accused person had returned home with the deceased, the said uncle answered them that he just heard that the 5 accused person had come home with a ‘sukuma’ man but he never saw him. But he advised them to go to his homestead, PW2 and the group did go to the accused’s house and found his wife, and when she was asked the same question, she admitted that the accused returned home with a Sukuma man but she never saw him again. PW2 and his colleagues had to inform the Mpete village executive officer who drafted an introductory letter which they carried to the Muze Police Station and recorded their statements there. As they could not be at peace, on the 01st day of May, 2022, the group went back to the hill, specifically at the accused person’s house. While there, they spread in search of the deceased, whether dead or alive. Not long, about 10 metres from the accused’s house, they saw blood spots and streels of something being pulled, and not too far, they saw a trench in which it logs, stones and tree leaves, as they moved closer, there was foul smell and suddenly they saw legs of a human being, PW2 recognised them to be the legs of his brother. Therefore, they phoned the police post of Muze, and they arrived with a doctor who examined the body and permitted them to take the body for burial services. PW4 was Anthony Noel Salimu, the hamlet chairman of Ipulala. He too being under oath testified that he was phoned by the OCS-Muze 6 Police post on the 07th day of June, 2022 and was asked to accompany them to the scene of crime which occurred on the 28th of April the same year, as the culprit has been apprehended and he is going to lead them to various points at the scene of crime. PW4 added that, the suspect took them to his house at the hill, and then led them to where he had hidden the body of the deceased which is about 40 steps from his house, and thereafter he showed them the weapon he used, to wit; he firstly used a club and finished up by slaughtering him by a knife. He then showed the club he used and the knife, it was however unfortunate that the bush knife was not found and the money which he had taken and hid it on the ground at the farm. PW4 did identify the certificate of seizure used to seize the things found with the suspect, as he signed on it and also, he was able to identify the weapons they got from the suspect. Glory Simon Umbella a police officer from Muze Police post was the fifth witness, she stood on the witness box as PW5 and being under oath, she testified that she is in the department of Investigation. She stated that on the 01st day of May, 2022 she was informed by the OCS one Inspector Valentine Kaluinze that there is a crime which occurred at Nkwilo village. Upon being informed, she and other police officers 7 prepared themselves and went to the said village on the hills being accompanied by a doctor. As they reached there, they were embraced by a group of a ‘sukuma’ men. They then went to the scene of crime where the doctor examined the body and confirmed that he was dead unnaturally. PW5 concluded that she then drew the sketch of the crime scene being assisted by the village chairman known as Willaim Charles Kamoje. PW5 also indentified the sketch map in which she prayed to tender it as exhibit and it was admitted without objection, of which it was marked Exhibit P2. PW6 was also a police officer working in the department of Criminal Investigation in the RCO’s office in Rukwa Region. Inspector Mazaba Gasper Warioba testified under oath that, on the 08th of May 2022, he was assigned a case file with number MUE/IR/67/2022 which involved murder that occurred on the 28th day of April, 2022, whereas the suspect is Raphael Credo Simzosha and the deceased person is Machiya Elias. PW6 proceeded that, he started investigating and managed to discover that the suspect is at Mbarali District in Mbeya Region. On the 26th of May, 2022 he communicated with the OC-CID Mbarali District about the whereabouts of the suspect in his District and requested his assistance 8 in apprehending the suspect. On the 28th of the same month, PW6 received information from the police officers of Mbarali that they have apprehended the suspect with the name of Raphael Credo Simzosha. PW6 then requested a picture of him to be sent for they did not know his appearance and he had the wife of the deceased, PW1 to identify the suspect as she had seen him before. And indeed, she identified the suspect as the same person who she had last seen with her husband. The identification was done on the 02nd day of June, while the next day a police officer was sent to^rearrest the suspect and bring him to Sumbawanga and that on the 05th day of June, 2022 the suspect who is now the accused before this court was brought to Sumbawanga Police Station. PW7 was E. 8265 Detective Sergent Roman. He was the arresting police officer whose work station was in Mbarali District. Being under oath, he stated that he was assigned by his superior to search for the suspect of a murder which had occurred at Sumbawanga. He said his superior was informed by the police officers from Sumbawanga. PW7 then set a trap via his informers and succeeded to apprehend the suspect who turned out to be Raphael Credo Simzosha, and took him to the police station at Mbarali. While there, PW7 searched him and found 9 a cellular phone black in colour in which the make was TECNO and it had one Vodacom Sim card in which its number is 0757-139782. He added that the imei numbers on the phone were; (i) No. 356022196459712 (ii) No. 356022196459704. PW7 then filled in a Prisoner Properties Receipt (PPR) in which it shows the belongings of the person arrested, and that upon being realised, he/she will be given back the properties found with him/her. But in his case, he said the phone was not returned to the suspect because it was alleged that the deceased had a cellular phone at the time the event occurred. PW7 prayed to tender the PPR and the phone in evidence as exhibits in which they were admitted as Exhibits P3 and P4 respectively. G4940 D/Cpl Steven was PW8. He was the one assigned to go and rearrest the suspect at Mbarali Police station in Mbeya Region. He too like others testified under oath that, on the 03rd of June, 2022 after being assigned the said task, he took off on the same day and successfully arrived at Rujewa Police station where he met the suspect and rearrested him, as he has been told his name was Raphael Credo Simzosha. PW8 then inquired if he had any properties during his apprehension, he was told that they found a cellular phone with him. Therefore, PW8 filled in a Seizure Certificate and seized the said phone 10 for he was informed that the deceased had a cellular phone at the time of his death and it was not found thereafter. PW8 then prayed to tender the Seizure Certificate in evidence and it was admitted without objection and marked as Exhibit P5. PW8 winded up that, on the 04th day of the same month, he started the journey back to Sumbawanga and arrived on the 05th day and handed him over to the OC-Cid of Sumbawanga for his task was accomplished. The last prosecution witness was Ass. Inspector Gilbert Paulo Mshamo, PW9. on the 05th day of May, 2022 at around 08:00 hours, he was assigned a murder file case with number MUE/IR/67/2022 and was told that the suspect is known as Raphael Credo Simzosha and he is being remanded at the lock-up awaiting to be interrogated. PW9 added that the Detention Register showed that the suspect was handed over at 05:40 hours the same day. PW9 proceeded that he took the suspect into the interrogation room, and he was in a good condition. He told him all his rights before recording his statement and the suspect was ready and willing to record his statements after being made to understand the nature of the statement and that it might be used as evidence against him in the court 11 of law. PW9 prayed to tender the statement as evidence and it was also admitted without objection and it was marked as Exhibit P6. PW9 finished up that, on the 07th day of June, 2022 they took the accused person to his village so that he leads them to the crime scene. The accused person led them to where he dumped the deceased, and took them to his house and showed them where he had hidden the knife, it was in nylon package, and then showed them a club/stick which he had it stacked into a thatched wall. As for the machete, it was not found. PW9 state that, they inquired from him as to where he had hidden the money, and the accused person took them to farm where he had dug- hidden the money, but it was not there. Therefore, after identifying all the objects, PW9 prayed that the club/stick be admitted as evidence, it was admitted and marked as Exhibit P7. The knife was admitted as Exhibit P8, and the Certificate of Seizure seizing the weapons found at the accused’s residence was also admitted in evidence and was marked as Exhibit P9. At the closure of the prosecution's case the court ruled out that a case to answer has been established by the prosecution. The accused was invited to make his defence. 12 The accused person defended himself under oath as DW1. He stated that he would neither have witnesses nor exhibits to tender. He testified that he was at Maohongole village in Mbarali District since the 25th day of August, 2021 until when he was apprehended on the 27th day of May 2022. That upon being apprehended by the Mbarali Police officers, he was not told the offence he had committed but, he was taken to the police station at Rujewa. While there, he was rearrested by another police officer from Sumbawanga and transported back to Sumbawanga where he learned of his alleged offence of murder in which he was accused of murdering a person known as Machiya Elias, a person he never knew at all. He insisted further that, this case against him is fabricated as he was not in Sumbawanga when the offence was committed. That, the statement alleged to be recorded from his words, is the results of threats and torture that he underwent while being held remand at the police station at Sumbawanga. DW1 added that items which were tendered in evidence were all shown to him by the police officers, and they forced him to accept them as the weapons he used to murder the deceased. He insisted even the whole scenario of how he murdered the deceased was a made-up story that he was forced to state as it was his story. 13 He concluded by submitting that, he has never known the deceased and even before moving to Mahaongole village, he was residing at Kasu village and not at Nkwilo Milimani as it was testified by the prosecution witnesses. He also insisted that the witnesses were too contradictory in their testimonies in which he urged this court not to consider their evidence as they were not credible witnesses at all. And finally, DW1 prayed for this court to acquit him as the prosecution side has failed to the charges against him to the required standard of the law. During final submissions Ms.^Makombe submitted that it has been proved that the deceased has unnaturally met his death. She also conceded that no<one has seen the accused person murdering the deceased person and in that, their case is basing on circumstantial evidence. However, she submitted that basing on the circumstances and the testimonies of their witnesses pointing out PW1, PW2, PW6 and PW7 as key witnesses to their case and the exhibits they had tendered in evidence, their duty has been fully furnished to the required standard of the law, and for the defence to rise the defence of alibi at the stage of defending the case, it was contrary to the law. She insisted by urging 14 this court to find the accused person guilty as charged and proceed to convict and sentence as the law requires. On the other hand, Ms. Tunu submitted that her client has been wrongly accused of the offence that he has not done. As he was truly not present during the commission of the offence. That the prosecution had failed proving its case beyond reasonable doubt. The only issue for determination is whether there is sufficient evidence on record to the effect that, the deceased's death was the accused's contrivance. As earlier hinted that the present case is pegged on the doctrine of recent possession and the last person to be seen with the deceased. Starting by the doctrine of recent possession, there are elements which are required to be proved for this doctrine to be a success. Under the doctrine of recent possession, if a person is found in possession of property recently stolen and gives no reasonable explanation as to how he had come by the same, the court may legitimately presume that he is a thief or a guilty receiver. The doctrine applies in murder cases as well. 15 In the case of Mustapha Maulidi Rashidi vs Republic, Criminal Appeal No. 241 of 2014, the Court of Appeal of Tanzania held that, for the doctrine of recent possession to apply as a basis of conviction, it must be proved, first, that the property was found with the suspect, second, that, the property is positively proved to be the property of the complainant, third, that the property was recently stolen from the complainant and lastly that, the stolen thing constitutes the subject matter of the charge against the accused. It was insisted in the above cited case that the fact that the accused does not claim to be the owner of the property does not relieve the prosecution to prove the above elements. In the present case, a phone made of TECNO was the key aspect in leading to the apprehension of the deceased. PW1 stated that the deceased had a phone when he left their home. She went on to describe the phone as a black phone which has a cover burnt by fire on the right top side. Therefore, the prosecution side showed this phone to PW1 and she indeed recognised it as her husband’s phone. Again, PW7 was the first police officer who arrested the accused person, he testified as he apprehended the accused person, he had to search 16 him and record his belongings on a receipt known as PPR. PW7 said he found him in possession of a black TECNO phone which was burnt on the top right side. PW8, added to it that as he was assigned to go and get the accused from Mbeya, he reached at the police station where he was held and upon rearresting him, he was handed a PPR and a phone which was black in colour and its cover was burnt on the top right side. He said he was told that the deceased had a phone at the time of his death; which phone was not found, and that he has to seize the phone found in possession of the accused person. One may ask, how many black phones are there? But I would ask too, how many black phones have a cover burnt by fire on the right top side? Could be one phone in every ten thousand black phones. To me this is a peculiar feature and a special mark distinguishing the phone from others. Principles of identification require that, there should be positive identification of the lost property by the identifying witness who is supposed to give peculiar and special marks distinguishing his/her property from other similar items. In the case of Ally Zuberi Mabukusela vs Republic, Criminal Appeal No. 242 of 2011 the Court 17 of Appeal held that, in all such cases the claimant should make a description of special marks on an item before it is shown to him and allowed to be tendered as an exhibit. Nevertheless, the accused person was the last person to be seen with deceased while alive. In this, the testimonies of PW1 and PW2 were cogent as they both testified that on the 27th day of April, 2022 the accused person came to the deceased house. PW1 said that, the accused told the deceased that he has two cows that he wants to sell to him. Therefore, the following day they left together, and that was the last time she saw the deceased. Similarly, PW2 stated after first meeting the accused at the deceased’s house, two days later he was informed about his missing. Upon the efforts of searching for the deceased, he managed to inquire about the deceased from the accused’s uncle, wife and children in which they all admitted that the accused was with the deceased last before his disappearance. In Mathayo Mwalimu & Another vs Republic, Criminal Appeal No. 147 of 2008 (unreported) CAT at Dodoma at page 5 held that: - 18 “Anaccusedpersonwilbepresumedtobetheki ler,ifheis alegedtohavebeenlastpersontobeseenwiththedeceased, intheabsenceofaplausibleexplanationtoexplainawaythe circumstancesleadingtodeath.” In his defence, the accused person failed plausibly to explain away the circumstances that the prosecution has associated him with the death of the deceased person. In that regard it is highly impossible to consider him as a person who was not responsible for the demise of the deceased person. To this juncture, I am fortified that there is sufficient evidence on record to the effect that, the deceased's death was the accused's contrivance. Now, was the act done in malice aforethought as per Section 200 of the Penal Code Cap. 16 R. E. 2022? As the records before me reveals, the accused intended to sell his cows to the deceased. On the fateful day, he grabbed a club/wooden stick of about five feet long, a machete and a pocket knife. One would think, in a business of selling cows, what were those items for? It is my holding that the accused person had malice aforethought of ending the life of the deceased. This is even shown by his acts as he firstly hit the deceased on the back with the wooden stick, and then dragged him to a trench, then slaughtered him by his throat 19 with the machete which was blunt and so he finished off with the pocket knife. Apart from that, the appellant's conduct of escaping to a different city and village proves that malice aforethought has been established. See, Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994 (unreported). Consequently, I am satisfied that the prosecution proved the case against the accused person beyond reasonable doubt, that he killed the deceased with malice aforethought. Therefore, I find the accused person Raphael s/o Credo @ Simzosha @ Alexanda Credo @ Stima guilty for the offence of Murder of the deceased, one Machiya s/o Elias @ Gidoganya. He is therefore convicted of the offence of Murder Contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E.2022. It is ordered accordingly. Dated and delivered at Sumbawanga this 09th day of October, 2024. T.M. MWENEMPAZI JUDGE SENTENCE: There is only one sentence for a person convicted with the offence of Murder c/s 196 of the Penal Code, [Cap. 16 R.E.2022]. The 20 Convict is sentenced to suffer death by hanging as per section 197 of the Penal Code, [Cap 16 R.E 2022]. T.M. MWENEMPAZI JUDGE 09/10/2024 Judgment delivered this 09th day of October, 2024., Ms. Exaveria Makombe Senior learned State Attorney and Mr. Jackson Komba Learned State Attorney appearing for the Republic and Ms. Tunu Mahundi, learned advocate appearing for the accused person; the accused person T.M. MWENEMPAZI JUDGE 09/10/2024 Right of appeal explained. 21