Bebinaso

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BIHARAMULO ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 103 OF 2023 THE REPUBLIC VERSUS PIUS MALISERI @ BEBINASO JUDGMENT 15th & 22ndNovember 2024 KIWONDE, J: The accused person, Pius Maliseri @ Bebinaso, stands charged with murder contrary to sections 196 and 197 of the Penal Code, Cap 16 (R. E 2022). In the particulars of the offence, the prosecution alleged that the accused person on 15th March 2023 at Nyamigere village within Biharamulo District in Kagera Region, did murder one Suzana d/o Majaliwa. On arraignment in court, the accused person pleaded not guilty and the prosecution has managed to bring nine (9) witnesses (PW1-PW9) and tendered one documentary evidence, a post-mortem examination report which was admitted in evidence as prosecution exhibit Pl. 1 The accused person defended himself. During hearing of the prosecution case, PW1, Bahati Barnabas Mping'wa, who, at first introduced himself as a medical doctor but later on, it was found that he is a Clinical Officer, testified that on 23rd March 2023 he went to’.the; scene of crime and found a female deceased body lying on its back; The witness said it was identified by the deceased mother to be the dead body!of Suzana d/o Majaliwa. Also, PW1 said he carried out an autopsy. iHe tendered in evidence the post-mortem examination report which was admitted as exhibit Pl as pointed earlier on above. According to the medical evidence of PW1, the cause of death was due to severe haemorrhage. Then, PW1 told the court that the deceased body had a tong tie, right leg and parts of the vagina (vulva) cut-off. The evidence Of PW2, Isaya Benezeth, a village chairman of Nyamigere is that on 16th; March 2023 Majaliwa Kagina, a deceased father, reported to him saying That his daughter, Suzana d/o Majaliwa got lost since 15th March 2023. The witness said the deceased father told him that the girl was taken away by the accused person, Pius Maliseri @ Bebinaso whom PW2 knew. So,! he advised the matter be reported to police station. Besides; that, PW2 said on 19th March 2023 he convened a meeting involving;two hamlets of Mkuyuni and Kinyanzige for the purpose of 2 tracing ithe| lost accused and the child. The witness said while in the meeting, jope Jacobo Marco called and told Deogratias that he saw Pius Maliseri©Bebinaso at Nyakanazi. Whereas, the witness further testified that on/;22?d March 2023, he was told that the accused was seen at Kahama.IHe said one Kazingo Lukaguza arrested and returned back the accused' person tp the village. Apart from that, PW2 said on 23rd March 2023, he was informed that the deceased body was found. When he went to the scene of crime, he saw it but the tongue, a right leg (from the knee downwards) and the private parts were cnopped off. The other prosecution witness, PW3, one Yamola Majaliwa told the court that the last time, he and Suzana were watching television. The accused person, Bebinasb bought Suzana a sugar cane worthy TZS 200, carried her on his shoulders and took her away and she did not come back home until he saw her dead. This witness, PW3 said he knew Bebinaso as he lived nearby their home. He said the accused chased him and Wilbard as he had a stick. As to the identification of the accused person, PW3 said it was at night when Bebinasb took Suzana away and there was a moonlight. However, this witness, said he could see what was going on as it was still not dark 3 (PaHkuwa bado panaona'). Then he said they called and told their mother that Suzana was taken by Bebinaso. When he was subjected to cross-examination by the defence counsel, PW3 replied that Bebinaso took Suzana from the place they sell sugar cane and he saw the accused sitting there. The prosecution witness, PW4, Deogratias Gaspar, a hamlet chairman said on 16th March 2023 he was told that Majaliwa Kagina complained that the accused^ left with; his daughter. On 19th March 2023, they had a meeting and while there, Jacobo Marco told him that he saw the accused person at Nyakahazi and on 22nd March 2023 he was told that the accused person was seed at Kahama. He said the accused was brought back to the village and he!iwas at the Ward Councilor, so, he advised that he be sent to Kalenge.police station. Furthermore, hW4 said on 23rd March 2023, he, the police officer in- charge {(DCS) jof Kalenge police station, one Jordan Mkuwele and the medical;doctorz went to the scene of crime. He said he saw the deceased body without tongue, right leg and private parts. He told the court that after post-mortem examination they were given the dead body for burial services; 4 Leave tfile witnesses above, PW5, Majaliwa Kagina testified that his daughter! Suzana got lost on 15th March 2023 and his children told him so when hecameiback from the market at 19:00 hours. He said his children, Yamola and Wilbard had told their mother that Bebinaso bought Suzana a sugar cane and took her away. When they followed him, the accused chased them with a stick. Following such information, PW5 reported the matter to! ^e hamlet chairman on the same date but he was told to wait until 16^1 March 2023. He said on 23rd March 2023, the child was found dead. This witness said the deceased body had a tongue, private parts, a leg, second hand and teeth missing. The evidence of PW6, one Dominic Gozbert was of similar story as that of PW4. Whereas! PW7, Jacobo Marco said on 19th March 2023 he was going to Nyakanazi Center where he met Pius Maliseri @ Bebinaso who looked different! jand suspicious. According to PW7, the accused told him that he was suspected to have taken away Majaliwa's daughter. Not only that but also, PW8 Jordan Mkuwele, the police officer in-charge (OCS) qfi Kalehge police station said Majaliwa Kagina reported to him about the event and that it was said that the accused person took away the child! Suzana d/o Majaliwa. On 23rd March 2023 he was told that 5 Suzana d/o Majaliwa was found dead, so, he went to the scene of crime and the'dead body was identified by the parents to be of Suzana d/o Majaliwa.' This! witness said the right leg from the knee downwards, a tongue and the private parts were cut-off. He said after the post-mortem examination thp body was sent to Kagina's home. Finally, PJA/9, Detective corporal Thomas of Biharamulo police station, he said he1 found everything already done, so all what he narrated he was told by other people. In defence, DW1 Pius Maliseri@ Bebinaso said before the event he lived in Kinyapzige, Kalenge Ward. He said he remembered nothing about 15th March 2023. However, this defence witness said for the last time he met Majaliwa-s children at Akajoli at 16: 00 hours. He bought them sugar cane, gave theijn and he went to one Mwala for drinking soda; he said he stayed there for|three hours and at 19: 00 hours he went back home. Moreover, DW1 said the next day when he was cultivating farm for John Lutambi,|Busongbye Kagina went to him saying among the children DW1 bought sugar cane did not sleep at home. The defence witness said he continued harvesting maize and went back home at 16: 00 hours and later on, he went to weed cassava for one Side Mchau. He said when he went back home at; 17:00 hours, he found people gathered at his house. He 6 said his1 Ichiiditen told him that those people were tracing him on allegation's that he lost Kagina's child. The defence witness went further to testify that he left for Ruganzu in fear thatj those people would harm him. Also, the witness said the following ;oay he went back home; is when his wife advised him to go to KahamaJ He was arrested there at Kahama and brought back to the village and sent I to the Ward Councillor. He defended himself that he merely bought the children sugar cane and left. When he (was cross-examined by Ms. Edith Tuka, Senior State Attorney, DW1 relied that; Suzana d/o Majaliwa got lost from the day he bought them sugar cane and was found dead. He asked for forgiveness for he has five children. From the] evidence of both sides, the issue for determination is whether the prosetutiop has proved the case against the accused person beyond reasonable doubts. To constitute an offence of murder under section 196 of the Penal Code, cap 16 ;(R. Ej 2022), the prosecution evidence must prove beyond reasonable doubts that the accused person killed the person named in the information with malice aforethought. ' I ■ 1 I 7 Therefore, the prosecution has to lead evidence to establish death of the person, ,tlpat such death was unnatural, that the death was caused by an unlawful,| act or omission by the accused person and that the accused person caused the death of such person with malice aforethought. In the case at hand, it is not in dispute that Suzana d/o Majaliwa, a girl said to De seven (7) years old actually died. This was proved by the evidence. | of PW1, Bahati Barnabas Mping'wa, a Clinical Officer. This witness went to the crime scene, found the deceased body and carried out a post-mortem examination. Also, PW2, ope Isaya Benezeth Kamugisha, a village chairman of Nyamigere village went to the crime scene and saw the girl in question dead in ||the bush, PW4 Deogratius Gaspar, a hamlet chairman of Kinyanzige top saw the deceased body, PW5, Majaliwa Kagina, the deceased, father: saw his daughter dead, PW6 Dominic Gozbert also testified tihat he went up to the crime scene and saw the deceased body and PW8, Inspector Jordan Mkuwele eye witnessed that the girl was found dead. Tljiis, it is evident that Suzana d/o Majaliwa died. As to the nature of the death of Suzana d/o Majaliwa, the prosecution evidence |shows that the death was unnatural. The medical evidence of PW1 Bahati Barnabas Mping'wa, the Clinical Officer indicates that the 8 cause of|cieath!was severe bleeding (haemorrhage) which led to failure of some vital organs from proper functioning as they could not get blood. During hearing, PW1 told the court that the deceased body had a tongue, right leg (and parts of the vagina cut-off. According to the; exhibit Pl, the post-mortem examination report, the •lid '' 1 I cause of (death was due to hypovolemic shock as a result of ischemic injury of vital organs (leading to multi-system organ failure and death. From this evidence; it' is obvious that the death was unnatural. From that, it follows the issue as to whether it is the accused person who perpetrated the unlawful act. In law, it is not only to prove the death of the persdn but the prosecution evidence must connect the accused to the commission or(tne offence. In Mohamed Matula V. R [1995] T. L. R 3, it was stated that on the charge of murder, the onus of proof lies on the prosecution to( prove not only death but also the link between the said death arid the (actused person. In this case, all Of the nine (9) prosecution witnesses did not eye witness the accused killing the deceased person. The prosecution evidence is solely circumstantial. It is settled legal principle that circumstantial evidencei can form the basis of conviction of the accused person if such evidence] is watertight. In Paulo Magendo V. R [1993] T. L. R 219 it was 9 settled that for the conviction to be grounded on circumstantial evidence, the same) must irresistibly point out to the guilty of the accused person. In me present lease, save for the PW3, all other witnesses were told that the girl v^asitakeh away by the accused person 15th March 2023 until when she was|||found dead on 23rd March 2023. But PW3, one Yamola s/o Majaliwa; ^testified that he saw the accused person for the last time when they were watching television with Suzana d/o Majaliwa and Wilbard at the place! they isell sugar canes. He said it was at Kajoli near the bar. This witrj^ss said, he saw the accused whom he knew as he lived nearby them at home. He named the accused as Bebinaso. According to this witness, the accused bought Suzana d/o Majaliwa a sugar cane at TZS 200 and he took her away. Besides that, PW3 said the accused | carried the girl on his shoulders and the girl did not come back home anymore until when the witness saw Suzana d/ o Majaliwa dead in the busim III: When this witness was cross-examined by the defence counsel, Mr. King Manase,||! PW3 replied that when the accused took away Suzana d/o Majaliwa!] it was at night but he saw the accused as there was moonlight. Unfortunately,; the witness had no further explanation as to the intensity of light.iiln criminal justice, it is not enough that the witness mentions the 10 source of light which enabled him to see and identify the accused person but alsb'pha's to state the nature of light, if it was bright or dim. Howevei^ the ^witness, PW3 said it was still not dark {palikuwa bado I panaona}. He said he saw the accused sitting there and even when the accusedjfook away Suzana d/o Majaliwa, the accused chased them having a stick. The' evidence proves that the witness was able to see him. From there, the witness testified that he and Wilbard called and informed their mother that Suzana d/o Majaliwa was taken by Bebinaso. The witness named the accused to have taken away his sister at the earliest time. The faildte :of PW3 to state the nature of light would bring doubts as to proper identification of the accused person. But the accused person himself, • in defence, admitted to have at the last time met the children of Majaliwa'),Kagina at 16: 00 hours at Kajoli. By so indicating the time, helps the courtjto; believe that the accused was seen and identified by the PW3. He also admitted that he bought them sugar cane. These included Suzana d/o Majaliwa, the deceased. Also, thdi accused admitted that from that day he met these children, Suzana d/o) Majaliwa got lost and she was found dead six (6) days later on. ii Though>|the accused said he knew nothing about 15th March 2023, he just remembered the last time he met the children of Majaliwa. Also, he said after buying them sugar cane, he left and went to one Mwala to drink ■I i । soda where! he stayed for three (3) hours and at 19: 00 hours he went back horpe.| Yet, he agreed that people went to his home on 16th March 2023, the! nextday, saying the child Suzana d/o Majaliwa got lost the day before, jhis proves that the child got lost on 15th March 2023. Apart tro;m that, PW5, said his daughter got lost on 15th March 2023 and he was toldisolwhen he went back home at 19: 00 hours. Now, since the child got! lost after the accused bought them sugar cane and was found dead. Irillaw, it is this last person seen with the deceased while alive who is regarded jto have killed the deceased girl. In Mathayo Mwalimu and Masai Rengwa Versus Republic, Criminal Appeal No. 147 of 2008 [2009] TZCA 53 (2nd November 2009) TanzLII and Mark Kasimiri Versus Republic, Criminal Appeal No.39 of 2017 [2020] TZCA 170 (24th March 2(326!) TanzLII, it was held that the accused person being the last I 'i i person to be seen with the deceased while she was alive, he is presumed to have filled that person unless he offers plausible explanation. In this case, I was unable to find such reasonable explanation by the accused person. 12 Besides tihat, the accused person is associated with the killing of Suzana d/o Majaliwa due to his conduct after the event. The prosecution evidence such as:|that of PW7, one Jacobo Marco is that the accused fled to Nyakanazi. this witness met him there on 19th March 2023, but later on, the accused rah away. The prosecution evidence further shows that the accused^|escaped and went to Kahama where he was arrested and returned 11 back to the village. These facts were not disputed. Even in defence,11 the accused admitted to have run to Nyakanazi and then to Kahama i When heidetended himself, the accused said he went to Nyakanazi and Kahama as ne was afraid of the furious people who used to gather at his home on|the allegations that he lost Suzana d/o Majaliwa. He said he was afraid that they would harm him. HoweveifU if] the accused person was innocent, he would not run away I 1I from Jacpbg Marco (PW7) when he managed to get to Nyakanazi and or, he would: have reported the threats to police station or his local area leaders. Instead, he further escaped to Kahama. This shows that he knew that he Had | committed the offence. 13 The oth^r implicating evidence is that when the accused person was cross-examined by Ms. Edith Tuka, Senior State Attorney, he prayed for forgiveness |on reason that he has five (5) children. Technically,| this indicates that the accused person asked for forgiveness for the Gjffeipcejhe committed. Therefore, his defence that he just bought sugar cape;) gaye it to the children in question and left or that he ran to Nyakanazi and Kahama being afraid of furious people, does not shake the prosecution) evidence. This makes me believe and conclude that the accused !|Der)son killed Suzana d/o Majaliwa. I now tuifn to the issue of whether the unlawful act was done with malice aforethodght. Ordinarily, the accused person cannot declare his malice aforethought. But in law, the malice aforethought can be inferred from the conduct of the accused person before or after the incidence. In Pascha|| Kitwiga V. R [1994] T. L. R 65, the accused person fled away after the|kill|ing: of the deceased person. So, it was inferred that the act of fleeing to, another place immediately after the killing, constituted malice aforethought oh the part of the accused person. This principle was also elucidated in the cases of Obadia Kijalo Versus Republic, Criminal Appeal No.95 of 2007 and Masalu Kayeye Versus 14 Republic i [Criminal Appeal No. 120 of 2017 [2020] TZCA 302 (12th November 2020) TanzLII. In this case; the accused person fled away to Nyakanazi then to Kahama until wh[en |ne was arrested and the deceased body was found with a tongue, [fight leg from the knee downwards and private parts (vulva) cut­ off, whk^i njieahs the killing was for taking off the deceased organs. At the trial, especially, in cross-examination, it was shown that the deceasedi body organs might have been chopped off by the fierce animals. But the,[selection of certain parts only of the deceased body makes me believe that these organs were not removed by wild animals. Therefore, it can b(2j safely inferred that the killing of Suzana d/o Majaliwa by the accused; Ipefson was with malice aforethought. Before I| peh-dff, I should state that there were minor contradictions of the prosecution evidence as to the deceased body organs removed therefroiiip. Utner witnesses mentioned a tongue, right leg and private । parts only to have been chopped off. But PW5 added that the teeth and second panp were missing too. But this[|does hot go to the root of the prosecution case and it does not erode the credibility of the witnesses. 15 For the Reasons and observations stated above, I am satisfied that the circumstantial evidence irresistibly points out to the guilty of the accused person. ^he| prosecution case has been proved beyond reasonable doubts. The accused person, Pius Maliseri @ Bebinaso, is hereby convicted of murder under section 196 of the Penal Code, Cap 16 (R. E 2022). F. H. K NDE JUDGE 22. 11. 2024 Court: Jjjidgjment is delivered in open court in the presence of Ms. Edith Tuka, Se^iojr State Attorney, Ms. Evarister Kimaro, State Attorney for the Republic}!Mr. King Manase, defence counsel and Grace Mutoka (RMA) this 22nd November 2024 and the right of appeal is explained. > F. H. KIWONDE JUDGE 22/11/2024 SENTENCE: I have considered both prosecution's aggravating and , iI1 I defence;|mitigating factors on sentence and I agree with them that in 16 murder, thejonly sentence is death by hanging. Therefore, the convict, Pius Maliseril @ Bebinaso is hereby sentenced under section 197 of the Penal Code, Cap 16 (R. E 2022) to suffer death by hanging. Ill I Right xof ^ppbalto the Court of Appeal of Tanzania is explained. 22. 11. 2024 17