ROLLEX FRANK

% THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL CASE NO.000008516 OF 2024 REPUBLIC COMPLAINANT / APPELLANT / APPLICANT VERSUS ROLLEX S/O FRANK @ROLLEE RESPONDENT / DEFENDANT JUDGMENT BADE,J IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ ARUSHA SUB- REGISTRY] AT ARUSHA CRIMINAL SESSIONS CASE NO.8516 OF 2024 REPUBLIC VERSUS 1. ROLEX FRANK @ ROLEE 2. HASSAN IDD FIRI @ MACHAPATl JUDGMENT 16/10/2024 & 28/10/2024 BADE,J. The accused persons were charged with the offence of murder,contrary to section 196 and 197 of the Penal Code, [CAP 16R.E 2022]. The particulars of the offence are to the effect that, on 25/07/2023 at Majengo D area within Monduli District in Arusha Region, the accused persons murdered one Msafiri s/o Iddy @ Mbongoo and dumped him in a farm. The charge was read and explained to the accused persons, who pleaded not guilty, calling for a full trial. Learned State Attorneys Lilian Mmassy, Neema Mwijage and Eva Manga appeared for the State while the accused persons were represented by learned counsels Kampitipiti Mgalula and Kennedy Mapima, Advocates. In proving the charge against the accused persons, the Republic summoned a total of eight (8) witnesses and tendered one exhibit, a Postmortem report which was received in evidence as Exhibit PI. The accused defended themselves, but they did not bring any witnesses. The first prosecution witness was Mariam Rajabu Ally, who testified as PWl. She testified that on 24/07/2023 around 5 pm, she met the deceased at an area called ‘Msikiti wa Majengo A’. She stated that because she was acquainted with the deceased, she invited him to have some local liquor with her at Majengo. She is the vendor of such liquor. He bought some for both of them and they started drinking, a moment later, about half an hour or so, her grandmother came and joined them in drinking. A little while later the deceased declared he was full and ready to go home, however,just before his departure the accused persons made an entry riding a motorcycle and left with him. Her tlirther testimony was that by the time the deceased left, he was already dnink. PWl asked the accused persons where were they taking the deceased and they replied that they were going to Kijiwen. She asked the accused persons where were they taking the deceased, because three weeks back, she came upon them quarreling. In particular, the deceased and the 1st accused were fighting around B area and she had to intervene in the fight and stop them. On cross-examination, PWl slated that she did not see the 1st accused person hurting or beating the deceased on the fateful day. On the other hand, PW2,one Elias Lazaro Saria testified that on 25/07/ 2023 early in the morning together with his colleague they went to the farm where they were working and started collecting some manure. However before they started engaging in the day’s work and as they were changing, one Omari came and informed him that a person was laying on the ground on the other side of the fann, who did not seem alive in ‘bibi Halima’s fann. So they went to look. PW2 went on to testify that they found a body that was halfway dressed on the lower body and had some blood on it, including on the eyes. They also discovered that it was the body of a person known as Mbongo, he was laying on the ground with his legs drawn to his chest. PW3, one Raymond Elisa Muro, the chaiiperson of Majengo hamlet testified that on 25/07/2023 in the morning hours about 0730 to 0800, he received a call from PW2 informing him that they found a person named Msafiri who was probably dead in Halima Hamis’s farm. They went to the scene of the crime and found out that the body was naked all the way to the knees, and the face was bleeding from the nose and eyes. They identified the body as one of Mbongo whose actual name was Msafiri. On cross-examination PW3 stated that nobody had explained who brought the body to the scene, nor had he any information that somebody was fighting with the deceased or had killed the deceased. On her part, PW4,one Halima Hamisi Omboto, testified that on 25/07/2023 early in the morning she woke up and was on the way to her fann, and met P\V3 who was accompanied by some other person and he informed her that there was found a dead body at her farm. They went to the fann and found the deceased near the road alongside her farm. PW5 was Ronald Raymond Muro, who testified that on 02/08/2024 he left with the 1st accused from Mto wa Mbu where he went to attend to his sick parents, to Loliondo at Harash Village accompanied by the 1st-accused person and proceeded with his work as builders. His further testimony was that on 06/08/2023 around midnight, four policemen came to their place of abode and an'ested the 1st accused on the allegation that he had killed somebody. The police officers left with the accused on that day. He also explained that it was the first time the 1st accused who is his kin came with him to Loliondo. On cross-examination, PW5 stated that he met the 1st accused person in Mto wa Mbu and that he had not heard from the 1st accused person that he had killed anybody. Boniface Diwani Sukumba testified as PW6, that he was the medical doctor who did an autopsy on the deceased person. On his part, he testified that on 25/07/2023 around 5 pm while he was on duty he received a phone call from an officer known as Lamanda explaining that he was at the mortuary and requested his attendance to investigate on a dead body. He thus obliged and investigated the body of the deceased, after which he created a postmortem report. His further testimony was that the deceased male members were fine and intact, but his anal part had fluids like water and blood, the area was open, and particularly the internal sphincter was loose. He also observed his head and skull were both intact and so were his internal organs. That, his spinal cord was also ok. PW6 went on to testify that he took samples from his private parts and preserved the same for the police officer so that a DNA if needed could be conducted. His further testimony was that the cause of death was internal hemorrhage as the deceased must have suffered a heavy blow on his skull because there was some trauma in the skull since he had observed that there was bleeding from the ears and nose, which necessarily means the deceased was suffered a blow with a heavy blunt object. This in his view, would have caused the bleeding observed and manifested on the outside through the bleeding as he explained. He had also obseiwed there was swelling on the face and more bleeding from the mouth, which is also another manifestation of the trauma suffered on the deceased skull by a heavy object, which could be a fist, a heavy stone, a club, etc,. He was also of the view that the trauma was impactful and it had to be induced onto the deceased by somebody else who inflicted the same on the body of the deceased. PW7, one Omari Ramadhani Kumara, testified that the deceased was his brother-in-law. That, on 25/07/2023 he was taken to the mortuai^ in Kigongoni Health Centre in Mto wa Mbu and upon seeing the deceased body, he and another relative identified him as Msafiri Mohamed. That, he observed the body had some bleeding in his mouth. nose, and ears; and the face was swollen. PW7 further testified that they were given the body of the deceased for burial in Singida, which is where the deceased was bom. The last witness on the prosecution side was PW8,one, Lamanda Julius Mmassy, a police officer whose testimony was to the effect that on 25/07/2023 they received infomiation that on the fann of PW3 in Majengo D, Mto wa Mbu area there was found a dead body. They went to the scene of the crime together with the OCS and another police officer. The body was found bent on the ground, and covered with leaves on the lower part of the body, while the upper part was uncovered. PW8 further testified that the deceased’s buttocks were naked, dirt was all over him and he was bleeding from the mouth, ears, and nose. They called some people from the crowd that had formed around it to identify him and he was identified as Mbongo.,He was also identified as one of the persons working as a labourer at the farm. His further testimony is that they took the dead body for an autopsy at the mortuary and they were provided with samples from it and sent them to the GCLA for analysis. On 04/08/2023 they received a report that one of the suspects named Firi was found. Tliey apprehended the said suspect. Again on 06/08/2023 around 8 pm, they received infomiation that the other suspect named Rolex was found at Loliondo staying with his relative, and they apprehended him too. It is PW8’s testimony that the 1st accused confessed to having taken the deceased to the rice pads, and violated him. That the deceased was fighting them and they decided to kill him. He flirther stated that on 09/08/2023 they took the suspects to the GCLA lab for sampling them, but admitted to not receiving a response from the GCLA as yet. Moreover, PW8 testified that he did not see it necessary to get the results of the DNA samples as he saw that the accused were being charged with murder while the DNA samples would only have proven if the deceased was violated, adding that it is not within his mandate to obtain the results, concluding the prosecution evidence. From the defence side, the lirst accused testified as DWl, his testimony was to the effect that, on 24/07/2023 he was in Karatu in one of his works as a handyman, in Katesh. He further testified that he worked from 24th to 27th 2023, and then came back to Majengo D and went on with his life. He testified further that on 06/08/2023 he was at Loliondo for the same work, and he went there on 02/08/2023. He explained that on the fateful day he was at his brother’s place in Loliondo, watching TV and some police officers came, some of which were not uniformed. He kept watching the TV as they called his brother and spoke with him, and then his brother called him and the police arrested him. He stated that those police officers told him that they were taking him to Mto wa Mbu to be sampled for DNA, but instead, they got to Arusha at the central police station. He stated that he was informed that he was arrested for the murder of one Msafiri Mohamed Idi, for whom he was not concerned and he did not even know the deceased. On cross-examination, DWl stated that he does not know the 2nd accused person, and had only known him on 09/08/2023 when they were being sampled for DNA. On the other hand, the 2nd accused person testified as DVV2. His testimony was to the effect that, he was away in Babati from the 20th of July till the 30th of July. He further testified that he came back to Mto wa Mbu in Majengo A to his parents after ten days. That, on 04/08/2023 he was arrested while at home and when he asked why he was being airested, he was informed that he would be sampled for DNA. I have considered the charge sheet, evidence from both sides, and the laws, the major issue for determination here is whether the accused persons are guilty of the murder of the deceased Msafiri Mohamed Iddy @ Mbogo. In law, for the Court to convict an accused person of murder, the following key ingredients must be proved: 1. That the victim of the crime mentioned in the charge, actually died, 2. That it was the accused persons who caused the death of the deceased, 3. That the killing of the deceased was with malice aforethought, 4. That the killing was perfonned by committing an unlawful act or omission. It is also the law that, the prosecution bears the burden of proving the case, and that the standard of proof in these cases is beyond reasonable doubt. It is also the law that the accused person bears no duty of proving his innocence, other than raising a reasonable doubt in the mind of the court. It is also a legal requirement that any reasonable doubt left by the prosecution evidence would have to be resolved in favour of the accused person. In the case of Pascal Yoya @ Maganga vs Republic, Criminal Appeal No. 248 of 2017 (unreported), it was held that: "II is a cardinal principle of criminal law in our jurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden of proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some reasonable doubts on the prosecution case and he need not prove his innocence”. This case is based entirely on circumstantial evidence based on the doctrine of the last person to be seen with the deceased. In cases of this nature, the court must satisfy itself that the point of guilt of the accused is irresistible. That means, the evidence points to no one other than the accused persons themselves. In the case of Said Bakari vs Republic, Criminal Appeal No. 422 of 2013 (unreported) quoted with approval in the case of Sikujua Idd vs Republic, Criminal Appeal No. 484 of2019(2021) TZCA 427 the Court took the view that: "It is established law that a charge of murder can be fully proved by circumstantial evidence. In determining a case centred on circumstantial evidence, the proper approach by the trial court and the appellate court is to critically consider and weigh all circumstances established by the evidence in their totality and not consider piecemeal or cubicles ofevidence or circumstances". I will start by examining whether the victim of the crime mentioned in the charge is actually dead. The death of the deceased was proved by PW2, who discovered the body and identified it as that of Msafiri s/o Mohamed Iddy @ Mbongo, and PW3, the chairperson of the area where the deceased body was discovered who also knew the deceased prior to his death. This fact is corroborated by the evidence of PW7, who is the brother-in-law of the deceased who identified the deceased at the mortuary. Thus, I answer this issue in the affirmative that the victim of the murder mentioned in the charge sheet is dead. The next issue is whether it was the accused persons who killed the deceased. The inference of guilt on this aspect is intricately linked to the circumstances as testified by PWl that the accused persons were the last persons to be seen witli the deceased alive. The only evidence in court is PWl’s account of seeing the accused persons with the deceased on his last day in public. It is an undisputed fact that no prosecution witnesses testified to have seen the accused kill the deceased. PW8, Corporal Lamanda testified that when the 1st accused’s statement was taken, he admitted that they killed the deceased. PW8 also testified that after realizing that the deceased was sexually assaulted, they took the accused persons to GCLA for a sampling of DNA, they also took samples from the deceased for DNA analysis as per the testimony of PW6. The court is told that the DNA result was never obtained back to be produced in court. The results could in my view, provide the needed link between the culprit and the deceased panicularly because both the accused persons admitted to having been sampled for DNA analysis. As dictated by the rule of practice, I must resolve the impending doubts in favour of the accused persons. But then again, for unknown reasons, the prosecution did neither parade the police officer who interrogated the 1st accused before this court to testify on his alleged admission to the commission of the offence as claimed by PW8 nor a caution statement was tendered before this court to prove the same. As already staled earlier, in a murder charge the burden of proof is always on the prosecution and the proof has to be beyond a reasonable doubt. In the instant case, the accused persons did not admit to the killing of the deceased. In any case, the deceased body was said to have been discovered at the farm of Bibi Halima, by a passerby who reported to PW2 the next day after he was last seen alive. There is no evidence brought to court from this person in linking the chain of circumstances and eliminating the possibility that the deceased had also met some other persons after they left together with the accused persons who could have caused his brutal killing. Clearly, there is a gap in the link of circumstances. So, on this point too, it was the duty of the prosecution to prove the case against them beyond a reasonable doubt if a conviction is to lie on the matter. The court cannot convict the accused simply because their defence is weak or that they are telling lies in their evidence. Without hesitation, it is my opinion that this burden was not discharged. Guiding on this particular aspect, the Court of Appeal laid down in Mathayo Mwaliniu and Anotlier vs Republic, Criminal Appeal No 147 of 2008 that: "In our considered opinion, if an accused person is alleged to have been the last person to be seen with the deceased, in the absence ofa plausible explanation to explain away the circmnstances leading to the death, he or she will be presumed to be the killer. In this case, in the absence ofan explanation by the appellants to exculpate themselvesfrom the death ofHamis Mnino, like the court below, we too are satisfied that they are the ones who killed him" However, as is evident from the prosecution witnesses, apart from the testimony from PWl that she saw the accused persons leaving with the deceased before he was found dead, there was no other evidence to implicate the accused persons with the killing. This evidence is not enough to sustain a conviction. There ought to have been more credible evidence linking the accused persons with the killing of the deceased. Apparently, no such positive evidence was forthcoming. In the case of, Peter Mabara vs Republic, Criminal Appeal No. 242 of 2016, while citing with approval the case ofMisoji Ndcbile @ Soji vs Republic, Criminal Appeal No. 75 of 2013, the Court of Appeal has this to say; “The fact the appellants were the last known persons to have been with the deceased casts grave suspicion on them, but it is in itselfnot conclusive proofthat they killed the deceased.... Other cogent corroborating evidence is necessaty,for suspicion, however ingenious, can never be a substitutefor proofbeyond the reasonable doubt.” Now, the question to be asked is whether there is any other cogent incriminating evidence to supplement PWl’s account on the theory of the accused being the last persons to have been seen with the deceased. The prosecution paraded PW5 in persuading this court that the first accused fled to Loliondo after the incident so that he could hide and escape from being charged with murder and this is an indication of guilt on his part in proving the chain of circumstances. With respect, 1 am far from being persuaded, the more so, given PW5’s account that the first accused was his relative and he went with him to Loliondo for some building works. Nothing else was forthcoming from the prosecution. In the case of Fidelis Selemani vs Republic, Criminal Appeal No 2 of 1979, The Court of Appeal stated: " in order to justify the inference ofguilt, the inculpatoiyfacts must be incompatible with the innocence ofthe accused, and incapable ofexplanation upon any other reasonable hypothesis than that ofhis guilt" Again, I am also aware that, it could perhaps be argued that the accused persons were responsible for the death of the deceased since as stated above from the evidence of PWl, they were the last persons to be seen with the deceased and this made them highly suspicious. However, in a criminal charge suspicion alone, grave it may be, is not enough to sustain a conviction, all the more so, in a serious charge of murder. Having said so, it is my conclusion that the prosecution has failed to prove the case against the accused persons beyond the reasonable doubt. It is further ordered that accused persons be set free unless held for other lawful cause. It so ordered. DATED at ARUSHA this 28th day of October 2024 Dated at ARUSHA this 28th of October 2024 . A.Z BADE JUDGE OF THE HIGH COURT