CRIMINAL SESSIONS CASE MATUNDARI MARWA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSIONS CASE NO. 00009762 OF 2024 REFERENCE 202404152000009762 REPUBLIC VERSUS MATUNDARI S/O MARWA @ MASHERE.......... 1st ACCUSED ROBERT S/O CHARLES @ KIUMBE.................... 2nd ACCUSED JUDGMENT 10th & 30th October, 2024 M, L, KOMBA, J,: On 31 July, 2022 a body of unknown female was found dead in a small bush near Nyabisare Pre School (Shuie shikizi). It was taken by Insp Majuto Damas Kasuga, PW6 and kept in Musoma Reginal hospital. Later on, 11/8/2022 two people who were looking for their relative went to Musoma Central Police, after explaining the purpose of their visit, they were shown a picture which was found at the scene and recognized the deceased person to be Benadetha aged 21 years who was married to one Matundari and they were living in Misumo village. Page 1 of 23 The prosecution alleged that on 31st day of July, 2022, at Nyabisare area, within the District and Municipality of Musoma in Mara Region, the accused persons above named murdered Benadetha Martin. The accused persons pleaded not guilty to the charge and the matter proceeded to full trial. Throughout trial, the 1st accused was well represented by Mr. Evance Njau learned advocate and the 2nd accused was represented by Mr. Daudi Mahemba, learned Advocate. The prosecution enjoyed the legal services of Ms. Monica Alex Hokororo, Principle State Attorney being accompanied by Ms. Agma Haule and Ms. Natujwa Bakari learned State Attorneys. It was PW3 Nyabisare street chairman (Shida Ngige Mahitaji) who informed this court that on 31/7/2022 noon hours he received a call from a citizen who informed him that there is dead body around pre-school. He went at the scene and found the body was covered by clothes, he decided to inform police who went at the scene and found PW3 there. He said, when the body was uncovered by police, he noted the body was of woman and had a cut wound on her neck and there were some items around. The items were collected and taken by police as indicated in exhibit P4 which was certificate of seizure and Exhibit P5 a bag with woman clothes and Page 2 of 23 other items. When cross examined by defence counsel this witness said at the scene there was no blood. Martin Yakorwanja Hesakwi is father of the deceased appeared as PW4 and testified that he has two (2) wives and seventeen children (17) one of his children is Benadetha who was married in Misumo village by 1st accused and was dead. He testified further that on 31/7/2022 he received a call from 1st accused who was informed him that his daughter wanted to visit her father. After few days he was informed by wife of 2nd accused that his child, Benadetha was not seen and on 11/8/2022 he was informed that there was a body of dead woman at mortuary and on 12/8/2022 he went to mortuary and saw the body of his child, Benadetha. He informed this court that the body had a big wound at the neck. He went on testifying that after the process he was allowed to proceed with burial but 1st accused who was the husband of deceased did not participate in burial ceremony and the 2rd accused who was husband of another daughter run away after the burial. When cross examined, he testified that Benadetha Martin was married to Matundari Mashere, in the year 2020 and was buried in the village of her husband. He confirmed he don't know who killed his daughter but he Page 3 of 23 suspects Benadetha's husband, the 1st accused inhere as he did not participate in the burial ceremony of his wife. He also suspects 2nd accused because he run away immediately after the burial. The crime was investigated by F 7748 D/Sgt Enock (PW2). He said while on his normal duties on 11/8/2022 he received citizens who were looking for their relatives, when he showed them a picture of the body found dead, they recognized that it was their relative. In the following day, relatives and police (PW2 and incharge RCO) went to mortuary where the body was identified to be of Benadetha Martin who was married to Matundari Mashere and they witnessed post mortem examination. He went on testifying that doctor said cause of death was extreme bleeding from the wound. Post mortem report was admitted as Exh P2. As investigator, he testified that they got information on whereabout of suspects and on 16/8/2022 they managed to arrest three people in connection with the murder, they were Robert Charles, Mikindo Nyamazuru and Joseph Magesa. Through his investigation he testified that he discovered that the crime was committed by Matundari and Robert Charles (the 1st and 2nd accused persons herein) and on 28/8/2022 he got information on whereabout of the 1st accused who was arrested by F. 6665 Page 4 of 23 D/Sgt Hamis and H. 290 D/Coplo Samwel. 1st accused was interrogated by this witness and his caution statement was, though objected, admitted by this court as exhibit P3. When interrogated 1st accused admitted to participate into the killing of the deceased. It was his testimony that the 1st accused showed the police locus in quo and also the second accused. According to Sgt Enock, both accused in different time showed the same area where deceased was cut and the place they hide the body. This witness said in the following day he took 1st accused person to Justice of peace who was Ward Executive Office of Nyasho Ward. In cross examination he said he was not the one who took accused to court of law when 1st paraded to court while insisted that Exh P3 was signed by 1st accused himself. Sketch map of the scene was prepared by H. 8076 D/Cpl Emmanuel who testified as PW1. He informed this court that on 29/8/2022 he was assigned the duty to draw sketch map, he took accused persons who were in lock up and went to the scene, Nyabisare. He testified that the 2nd accused show him the place they hide the body of the deceased and he send him back and took the 1st accused from the car who show the same Page 5 of 23 place where they hide the body. While assisted by 1st accused, he draws the sketch map which was admitted as Exhibit Pl. On the same day, 29/8/2022 1st accused was taken to justice of peace, Tiginga Evarist Ndongo who testified as PW5. He testified that he is Ward Executive Officer (WEO) of Nyamatare Ward in Musoma Municipality and that in the year 2022 he was WEO at Nyasho ward. He went on testifying that on 29/8/2022 police by name Enock went to his office and told him there is a person who wanted to confess. He received that person and after introduction and information about the accused rights, he said 1st accused informed him he was arrested on 28/8/2022 while he was at his home and started to give his story about his wife. That on 30/7/2022 there was misunderstanding among them (him and her wife), they were reconciled and his wife agreed to went back home but she didn't. On 31/7/2022 he said he received a phone call from 2nd accused that he saw 1st accused wife with a bag and from there he explained what happed till the deceased, the 1st accused wife met her death, extra judicial statement was admitted as exhibit P6. When cross examined, he acknowledges not to be aware of the Chief Justice Guidelines on recording extra judicial statement. He further Page 6 of 23 acknowledged that Nyasho ward is far from Musoma Police central as there was other wards before Nyasho, there was Primary and District courts where Justices of Peace are found although he could not establish the distance of ail those offices. He further informed this court that he was not aware that is not allowed to use his office. PW6 was Insp Majuto Damas Kasuga who in the year 2022 was OC-CID of Musoma. He informed this court that on 31/7/2022 he received a phone call from citizen that there is a body lying around Nyabisare pre-school and seems like is dead. He decided to go and upon arrival he found many people including PW3 a street chairman who show him a body which was half covered by clothes. He uncovers the body and noticed it was a woman. Clothes which covered the body had blood stains but he said, the environment had no stains. He found the said woman had wound on her neck (she was slaughtered). He uncovers the body to allow people who gathered to identify the body but in vain. He went on testifying that besides the body there was a bag and some items including woman clothes. He seized the items and filled seizure certificate (exhibit P4 and P5) and the body was taken to mortuary. As acting OC-CID on 12/8/2022 while investigation was under way, while in Page 7 of 23 office he received citizens who claimed to be relatives of the deceased, one of them was PW4 Martin, a father of deceased who mentioned the name of the deceased after he saw the body in mortuary. He said PW3 consented for the examination of the body to be conducted. Because the death was not normal, the body was examined in the presence of PW3, PW6, F 7748 D/Sgt Enock and somebody called Fatuma. While examining the body they took blood sample and exhibit P7 was admitted. On further examination in chief witness informed this court that on 15/8/2022 he received information from informer who was living in Nyabekwabe village that there are four people who are suspecting to be involved in murder of Benadetha he was given names to be Matundari, Robert, Joseph and Mekindo. Under his capacity he decided to make arrangement to arrest them. At night they went to the village and started with the house of 2nd accused, Robert. They found accused in his home, they arrest and search and found a bedsheet with blood stains in the metal suitcase, it was seized. He filled search order which was admitted as exhibit P8. They went to the house of another suspect who was Mekindo Nyamilizo and managed to arrest him and the search revealed nothing. Page 8 of 23 Having a blood sample from the deceased and the bedsheet from the house of second accused, on 24/8/2022 he was ordered to take samples to Chief Government Chemistry, Mwanza Office (CGC). He said he took three samples, sealed by laklri and labeled "A" the blood of deceased, "B" a bedsheet from the Robert house and "C" three deceased clothes to CGC Mwanza Branch. In the effort to look for accused, he informed this court that on 29/8/2022 he was informed by D/Sgt Enock who was investigator of the case that Matundari was arrested and ready to show the place where murder took place. He said they took Matundari, the 1st accused and Robert the 2nd accused while going to the scene. They were led by 1st accused and were shown the place where they slaughter the deceased and the bush where they hide the body. He said it was the same place where they found the body of Benadetha. While on the way this witness informed the court that Matundari explained to him what happened before the two slaughter his wife. During cross examination he testified that he was not forensic expert but sgt Enock is gazetted forensic expert. He went on clarified that he had no search warrant when searched the house of 2nd accused but he believes Page 9 of 23 the OCS order is enough. He did not concentrate with 2nd accused when at the scene but 2nd accused had no role the scene was shown by the 1st accused. PW7 was Lucy Atanasio Kessi, receptionist at CGC Mwanza who on 24/8/2024 she received sample and letter from Insp Majuto of Police Musoma. Samples were; 'A' was blood of deceased 'B' was bed sheet with blood stains suspected to be the blood of deceased and 'C' was clothes believed to be of the deceased. She acknowledges to receive a sample by issuing sample Receipt notification which was admitted as exhibit P9. After the process on 05/10/2022 she took samples to main office in Dar es salaam. When cross examined this witness clarified that when she took sample to Main offices in Dar es salaam, she had no dispatch neither did her sign chain of custody while acknowledging that she received sample in August and sent them to main office in 05 October, 2022. PW 8 was Daudi Jacob Ngasa a Chemist from CGC main office Dar es salaam who informed this court that on 05/10/2022 he received a parcel from PW7 who is working in Mwanza Branch. When opened the parcel he found three samples marked 'A', 'B' and 'C' which means 'A' is blood of Page 10 of 23 deceased, 'B' was bedsheet with blood found to accused and 'C' was deceased clothes with blood. After his laboratory test, he concluded that the probability of chances of DNA profile of sample 'A' not being related with sample 'B' is one out of billions. The probability of chances of DNA profile of sample 'A' not being related with sample 'C' is one out of billion and the probability of chances of DNA profile of sample 'B' that being related with sample 'C' is one out of billions. In simple language, he said there is direct relationship of DNA in sample 'A' and sample 'B'; and blood in 'B' was the same in sample 'C'. This witness prepared a report which was admitted as Exhibit PIO. When cross examined, he clarified that he was not tasked to check when the sample was extracted so he did not examine on that angle. When required to give their defense after being found with the case to answer pursuant to section 293 of the CPA, the first accused Matundari s/o Marwa @ Mashere informed this court that he was arrested on 25/8/2022 and taken to Musoma Police central where he was tortured three consecutive days and was sent to hospital. He denied to commit the offence charged neither to record any statement while in police but he was given a paper to sign. He went on testifying that when they took him to Ward Executive Officer, Page 11 of 23 he found a paper on the table and was commanded to sign the said paper. He denied to know second accused and only know him during the burial of his wife. In cross examination he testified that he put thumb print in exhibit P3 after he was forced to do so but police did not interrogate him. Actually, he clarified that it was police who took his thumb and press on the paper. He denied to know PW3 as was not a street chairman while insisting that he participated in mourning of his wife and he was present when blood sample was taken from the deceased body. When further cross examined by State Attorney, he confirms he did not trace his wife when she left to their home in all those days till when they found the body in mortuary. Robert Charles @ Kiumbe testified as DW2 who informed this court that he was arrested the night of 15/8/2022 and taken to Musoma Police Central and was informed was accused of murder of Benadetha. He denied to participate in the killing but he participated during burial of Benadetha. Having heard the witnesses' story there is no scintilla of doubt that Benadetha Martin is dead, and her death was unnatural one, this is in accordance with the evidence of PW2, PW3, PW4 and PW6 who witnessed the body of Benadetha at the scene and later on post mortem examination of the deceased body and testified that it was the body of the Benadetha Martin, it had a cut wound on her neck. This evidence was corroborated with the Post Mortem Report (Exhibit P2). The issue for determination is who caused the deceased's death. To begin with, it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 read together with section 3 (2) (a) of the Evidence Act [Cap 6 RE 2019]. In this case at hand there is no eye witness, the prosecution relied on Forensic DNA Profiling Test Report, Caution statement of the 1st accused and Extra judicial statement of the 1st accused to prove their case. Starting with the Forensic DNA Profiling Test Report (the DNA test report). It was testified by PW6 that the blood sample was prepared by a doctor in the presence of PW2, who is said to be a forensic investigator who had a storage kit. Sample was stored in Musoma Reginal Hospital and the DNA test report was presented by PW8 who is gazetted and qualified chemist. The extract of blood sample and other samples was received from PW7, the samples were "A" blood of the deceased, sample "B" bed sheet with Page 13 of 23 blood stains seized from the 2nd accused house and "C" deceased clothes which had stains show that A is human blood, "B" and C is stains from human blood. And further examination revealed that blood A and the blood found in B and C relates each other and the probability of chances of DNA profile of sample 'A' not being related with sample 'B' and 'C' is one out od billion as per exhibit PIO. That is to say the blood stains found in bedsheet relates the blood stains found in clothes and the sample blood. That means a bedsheet which was seized by PW6 from 2nd accused house had deceased blood. Where the bed sheet found is next question. It was the testimony of PW6 that he searched the house of 2nd accused and found a bedsheet with blood stains. Then the bedsheet is found in CGC Mwanza and then main office in Dar es salaam. The question now is whether the bedsheet found in 2nd accused house and seized by PW6 is the same examined by PW8. The answer is not in affirmative as prosecution failed to show how that exhibit was handled from seizure to examination in CGC main office. The chain of custody from seizure to examination of the exhibit is supposed to be intact. Chain of custody has been defined by Justices of Appeal to mean chronological documentation and or paper trail showing the seizure, Page 14 of 23 custody, control, transfer, analysis and disposition of evidence, be it physical or electronic. They went on clarifying that, the idea behind recording the chain of custody is to establish that the alleged evidence is in fact related to the alleged crime rather than, for instance having planted fraudulently to make someone appear guilty.' Read Paul Maduka & Others vs Republic, Criminal Appeal No. 110 of 2007. Prosecution maintained that 2nd accused was found with bedsheet with blood stains similar with blood of the deceased. However, the evidence is not clear as to how the bedsheet subject of this case found its way to PW8 who eventually gave scientific explanation of its examination in court. As it is, by sequence of events there was a broken "chain of custody" in the handling of the bedsheet which raises doubts as to whether the bedsheet which was found in the house of 2nd accused is the same which was examined by PW8, not only that was the same, it was intact from seizure to examination. In his testimony, PW6 failed to explain where the bedsheet was in all those days before it reached PW7. White bedsheet is a common item, the issue that it had stains which suggested to be blood make that bedsheet very unique, important and easily to be tempered. Does stains found in bedsheet during seizure are Page 15 of 23 the same stains found when the bedsheet is examined? The answer is no as bedsheet passed in different hands before it was examined and worse enough, it was taken to CGC by a person who said he seized it and who suspected the stains to be blood. In the absence of paper trail, this court found risk as there is possibility of tempering with bedsheet as it is easy to make blood stains in any white bedsheet. There is doubt in the whole process of seizure and examination of the bedsheet, which was not tendered in court any way, which is claimed to be found in 2nd accused house and had blood that relates to deceased. Chain of custody was broken. Therefore, I find risk to consider Exhibit PIO in this case. See Paulo Maduka and other (Supra), Magesa Chacha Nyakibali and Another vs The Republic (Criminal Appeal No. 307 of 2013) [2014] TZCA 298. Facts and circumstance in the case at hand is not among the situation that principle in Paulo Maduka has to be relaxed. See Joseph Leonard Manyota vs Republic, Criminal Appeal No. 485 of 2015. Another evidence in prosecution case was extra judicial statement which was admitted as Exhibit P6 and tendered by PW5, Ward Executive Officer of Nyamatare which was recorded while he was working at Nyasho Ward. Page 16 of 23 This document is prepared under section 62 of the Magistrate Court Act, Cap 11 R.E 2002 in which Justices of peace has to adhere to Guideline issued by the Honorable Chief Justice. The section reads; '62 (2) The appropriate judicial authority may, from time to time, issue instructions not inconsistent with any law for the time being in force for Hie guidance and control of justices of the peace in the exercise of their powers, functions, and duties, and every justice of the peace shall comply with and obey such instructions'. [ Emphasis is mine] While in court, PW5 testified that he knows nothing about the guideline in recording extra judicial statements. In numerous decision it was directed that when Justices of the Peace are recording confessions of persons in the custody of the police, they must follow the Chief Justice's Instructions. The section is couched in mandatory terms. Before the Justice of the Peace records the confession of a person, he must make sure that all eight steps enumerated therein are observed. Points to consider includes; (i) The time and date of his arrest (ii) The place he was arrested (Hi) The place he slept before the date he was brought to him (iv) Whether any person by threat or promise or violence he has persuaded him to give the statement. Page 17 of 23 (v) Whether he really wishes to make the statement on his own free will. (vi) That if he makes a statement, the same may be used as evidence against him. See Japhet Thadei Msigwa vs Republic (Criminal Appeal 337 of 2008) [2011] TZCA 108 and Chamuriho Kirenge @ Chamuriho Julius vs Republic (Criminal Appeal 597 of 2017) [2022] TZCA 98. I had time and carefully study the testimony of PW5 and read Exhibit P6 which was recorded by Justice of Peace in this case. While in court, PW5 informed this court that he reminded the accused that the statement he wants to be record will be used in court of law and the 1st accused answered 'no problem'. Reading the front page of exhibit P6 where there are numerical points to be considered by justice of peace, exhibit show PW5 tried to ask questions and record the answer given by accused but at paragraph 8 about the use of statement when recorded the accused did not respond to that issue whether he know and accept or he did not agree. It was insisted in Jumanne Manze vs Republic, Criminal Appeal No. 601 of 2021 that; Page 18 of 23 'in testing compliance with Guidelines or Rules, parties have to look at Hie contents and substance rather than expecting verbatim expressions of the guidelines'. The content of Exhibit P6 is considered and it show the accused was not informed of the use of his statement in court of law. I find that was very important issue to be shared to accused person, leave alone the fact that paragraph 5 was not asked to accused and recorded on the date exhibit was prepared which is also contrary to guideline. Further, I noted that Exhibit P6 was not read to accused after it was recorded. There are two reasons why justices of peace have to observe the Chief Justice's Instructions; One, if the suspect decided to give such statement, he should be aware of the implications involved. Two, it will enable the trial Court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntary. Non-compliance will normally render the statement not to have been taken voluntarily. See Japhet Thadei Msigwa vs Republic (supra). Following all these short falls, I find the evidence of PW5 is inadmissible and exhibit P6 was not legally prepared. It is therefore not safe to make the base of conviction of accused persons. Page 19 of 23 The remaining issue for determination is whether the remaining evidence can sustain the conviction. As said, there was no eye witness in this case and prosecution relied on documentary evidence and the remaining is caution statement of the 1st accused, exhibit P3. This was recorded by PW2, investigator of this case. In that exhibit, the 1st accused narrates that; 'Benedeta aiiniambia kama ni begi baki naio na ndipo akaanza kukimbia kuelekea vichakani ambapo ni karibu na shuie ya msingi shikizi ambapo mimi niiimfukuzia kuelekea huko aiipoenda na niiipomkaribia aligeuka kuniangaiia kama nimemfikia ambapo aiijikwaa na kuanguka...,.aiizimia....hakunyanyuka. .... na baada ya mke wangu kutokugeuka mimi niiimgeuza iakini akawa hajitambui iakini akawa anatokwa damu puani na mdomoni kidogo mimi niiianza kumpepea Hi apate hewa safi ambapo tuiikaa hapo kwa zaidi ya saa mbiii na mvua iiikuwa inanyesha iakini kwa muda wote huo mke wangu hakuamka na tuiipomchunguza zaidi tuiibaini kuwa tayari ameshafariki. Hivyo mimi nikamuuiiza Robert tufanyeje..... tumkate kwa panga shingoni Hi ionekane kuwa ni vibaka wamemfanyia tukio' Simple interpretation from the above excerpt is that, the 1st accused was chasing his wife in due cause, the wife fall down and was bleeding from the nose and mouth. 1st accused noted his wife fainted and started to give her oxygen. He paused for two hours at the scene only to find his wife was Page 20 of 23 dead and decided to slaughter her to make look like she was attacked by robbers. 1st accused and 2nd accused who, as per exhibit P6 were at the scene noted Benadetha was dead. If that was correct that Benadetha was dead following bleeding from the nose and mouth, why the accused and his fellow decided to slaughter her. What 1st accused did was confession and section 29 of the Evidence Act provide that; 'No confession which is tendered in evidence shall be rejected on the ground that a promise or a threat has been held out to the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be made.' In the narration, 1st accused said Benadetha was dead when she falls down, if that was the case then, they needed not to slaughter her bearing in mind that PW4 testified that they lived in harmony and 1st accused provides all necessities to her wife. That status was proved by 1st accused when cross examined by State Attorney and is captured in Exhibit P3. The fact that Benadetha was already dead and accused decided to slaughter her, has no truth in it because there was no need to kill the deceased. Am Page 21 of 23 settled, that is untrue admission which courts was warned to act upon. Read Thadei Mlomo and Others vs Republic [1995] T.L.R. 187 and Nyerere Nyague vs Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012). Not only that, caution statement need collaboration for it to form base of conviction. In the case at hand, there is no further evidence to collaborate caution statement, which, as I found, it contains untrue admission of guilty. See Mashimba Dotto Lukubanija vs Republic, Criminal Appeal No. 317 of 2013. The interests of criminal law, has always been this: the guilty are convicted and accordingly sentenced and that the innocent are declared so and acquitted. Outside this, is not the interest of the criminal law and its justice and that has to be done even if the heavens fall but justice is seen done. That was said by my colleague F. H. Mahimbali J. in Republic vs John Simon @Kadaso and Another (Criminal Session Case No.87 of 2022) [2024] TZHC 1789 (30 April 2024). Generally, I got the impression that the case was poorly investigated, the exhibit was poorly handled hence no collaboration of little available evidence. This is a murder case. There is no dispute that murder is a very Page 22 of 23 serious offence which upon conviction attracts the death penalty. That being the case, it is always expected that its investigation and eventual prosecution would always be done with great care and seriousness. My prudent move me to remind investigators and prosecution the above strong words by Justices of Appeal which were recorded in Mashimba Dotto Lukubanija vs Republic (supra). All being said and done, I found the prosecution failed to prove that it was accused persons paraded in this court who killed Benadetha with malice aforethought. I find the two accused persons, Matundari s/o Marwa @ Mashere and Robert s/o Charles @ Kiumbe not guilty and acquit them of the offence of murder contrary to section 196 of the Penal Code [CAP 16 R.E 2022]. I order both accused persons to be released from the prison unless they are otherwise lawful held. M. L. KOMBA Judge 30/10/2024 Right of appeaTTS explained. M. L. KOMBA Judge 30/10/2024 Page 23 of 23