RUPUBLIC VS RAMADHANI ZUBERI AND ANOTHER

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY (SITTING AT NZEGA) CRIMINAL SESSIONS CASE NO. 20177 OF 2024 THE REPUBLIC VERSUS 1. RAMADHANI S/O ZUBERI 2. JUMA S/O IDD @ HASSAN @ JUMA S/O FITINA JUDGMENT Date of the Last Order: 13/12/2024 Date ofJudgment: 07/02/2025 KADILU, J. The accused persons are charged with murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022], It is alleged that the accused together with another person who is still at large, murdered Mrisho Ramadhani @ Nyembo on 26/7/2023 during night hours at Nyasa Gulioni within Nzega District in Tabora Region. The prosecution alleges further that on the fateful date, the accused stabbed the deceased with a knife on the left side of his chest thereby causing his death. They tried to escape from the crime scene but the villagers managed to arrest the 1st accused. The matter was reported to Nzega Police Station and during the interrogation, the 1st accused admitted to having participated in killing the deceased. He informed the police that he murdered the deceased together with the 2nd accused and another person named Jacobo. The 2nd accused was i arrested on 9/8/2023 at home and taken to the Police Station. On arraignment to court, both denied the charge. The prosecution paraded seven (7) witnesses and tendered a postmortem examination report of the deceased to prove that the accused killed the deceased. Throughout the proceedings, the accused distanced themselves from the commission of the charged offence. In addition, the 2nd accused raised the defence of alibi contending that on the date of the incident, he was at Senegeli Village grazing cows. The prosecution's evidence was to the effect that on 26/7/2023, Ramadhani Juma Hussein (PW1) who was a peoples' militia in Gulioni area was with the deceased on the incident day. He suddenly heard noise from where the deceased was. He approached and found him already dead after being stabbed with a knife. PW1 saw the 1st accused already arrested by the villagers suspecting him to be responsible for the incident. On cross- examination, PW1 stated that the 1st accused did not kill the deceased rather, it was Jacobo who did. He explained that he did not see the 1st or 2nd accused persons killing the deceased. He said he knew nothing about who killed Mrisho and how he was killed. A similar story was narrated by PW2 who testified that he heard noise coming from where the deceased was. He went to the scene and saw the 2nd accused running away. The 2nd accused warned PW2 to stay away from him otherwise, he would kill him. PW2 added that he found the 1st accused already arrested at the crime scene and there was the deceased's body nearby him. He elaborated that he did not see the accused persons stabbing the deceased with a knife. PW2 expressed that he does not know the person 2 who stabbed the deceased but the 2nd accused was not at the scene of the crime at the time PW2 reached there. PW2 informed the court that he did not know the killers. On his part, Yahaya Ramadhani Nyembo (PW3) stated that on 27/7/2023 during morning hours, he received a phone call from a street Chairperson who informed him that his brother Mrisho Nyembo was murdered. At that time, PW3 was in Dar es Salaam so he had to travel to Tabora. He arrived on 28/7/2023 with four other relatives. They went to Nzega District Hospital to identify Mrisho's dead body. PW3 testified in addition that he saw a wound on the left side of Mrisho's chest. After the identification, he went to the police station to record a statement. Thereafter, he went back to the hospital where the doctor examined the deceased's body and the police allowed them to continue with the burial. PW4, Magreth Charles Pude told the court that she sales food at Gulioni area where the incident took place. On the fateful date, she was there and saw Jacobo stabbing the deceased on the chest. The 2nd accused and another person whom she could not recognize were holding the deceased while Jacobo was stabbing him. The people chased the assailants and arrested the 1st accused. PW4 elaborated that the accused persons herein did not stab the deceased but they were with Jacobo who did it. PW4's testimony resembles what was also stated by Getruda Paulo Mlembe, PW5. Getruda was selling food together with PW4 on the date of the incident. PF. 19859, Inspector Edward Gabriel Ginawi (PW6) was the investigator of this case. He testified that he was called by a person who introduced himself as Ramadhani Juma and informed him about the incident. He went 3 to the scene accompanied by three other police officers. They found the deceased's body surrounded by many people. At that time the 1st accused was already arrested for being suspected of having killed the deceased. PW4 informed them that she saw Jacobo stabbing Mrisho. D/CPL Omary drew a sketch map of the crime scene and PW6 interrogated the 1st accused. During the interrogation, the 1st accused admitted to having killed the deceased and explained that he did it with Juma and Jacobo. PW6 and other police officers took the deceased's body to the hospital after having recorded the 1st accused's cautioned statement. According to PW6, the 2nd accused was arrested on 9/8/2023 at Gulioni suspected of armed robbery. PW6 informed the court that Jacobo is still at large and efforts to arrest him are ongoing. On cross-examination, PW6 testified that at the time of arrest, the 1st accused had no knife so he did not stab the deceased. According to him, the 2nd accused was not arrested at the scene as he was not there. The police did not find him until 9/8/2023 when he was arrested. PW6 said he did not see the accused persons killing the deceased because he was not at the scene at the time of the incident. Doctor Ndoya Samwel Mbogo testified as PW7 and stated that on 28/7/2023, he conducted a postmortem examination of the deceased's body and prepared a report, Exhibit Pl. According to him, the cause of death was excessive bleeding as a result of the wound on the left side of his chest which was about 5 centimeters deep. After the closure of the prosecution case, the court found both the accused persons with a case to answer. Each was allowed to present his defence. Ramadhani Zuberi (DW1) stated that he was arrested by the 4 policemen on 26/7/2023 when he was passing through Gulioni area on his way to Kashishi to visit his grandmother who was sick. He explained that when he reached Gulioni area, he found many people gathering. As he was wondering what happened, the policemen arrived and arrested several people including him. They were taken to Nzega police station and locked up. The police officers forced them to admit that they murdered someone. They were more than ten people. The policemen started beating them, He testified that he was beaten on the legs and different parts of the body. Thereafter, they were taken back to lockup and the policemen started calling them one after another. According to him, his colleagues did not go back to lockup. When it was his turn, D/CPL Omary told him that he should give something for him to be released as nothing goes for nothing. D/CPL Omary left and came back at 9:00 p.m. and instructed DW1 to sign on a sheet of paper which was blank. He refused and he was taken back to the investigation room. D/CPL Omary started beating him again. When he got tired of being beaten, DW1 signed a blank paper and then he was taken back to the lock-up. DW1 testified more that he did not know the 2nd accused before they were joined together in this case. He also does not know Jacobo. He denied having killed anybody. During cross-examination, DW1 stated that when the policemen arrived at the scene, everybody started running away. He also ran away and he was arrested by a policeman who chased him. Juma Iddi Hassan (DW2) narrated that on 26/7/2023, he was at his mother's house in Nzega. He left at noon and went to Senegeli Village to help grazing cows because Daudi Zakayo who was grazing the cows got a 5 safari. DW2 returned to Nzega on 8/8/2023 where he was arrested by police officers the next day while in Buswilu. They said he was accused of stealing TZS. 20,000/=, a mobile phone, and a radio, all belonging to Daudi Mpolo. He was taken to the district court and acquitted. Thereafter, he was joined in this case with Ramadhani Zuberi whom he did not know before. DW2 denied having known a person called Jacobo. After considering evidence from both sides, now the issue for the court's determination is whether the accused persons were the ones who murdered the deceased. It is a cardinal principle that in criminal cases, except where any other law provides otherwise, the prosecution side is obliged to prove their case beyond reasonable doubt. As to what it means by proof beyond reasonable doubt, the Court of Appeal stated in the case of Samson Matiga v. R., Criminal Appeal No. 205 of 2007: "... to put it simply, the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence." In the instant case, it is undisputed that Mrisho Ramadhani @ Nyembo died violently after being stabbed with a sharp object on his chest. The prosecution side alleges that the accused persons are responsible for the death of the deceased. On the other hand, the accused deny killing the deceased and they maintain that they never knew each other before they were joined in the instant case. In the case at hand, PW1, PW2, PW3, PW6, and PW7 informed the court that the accused persons did not murder the deceased. According to them, the deceased was stabbed with a knife by a 6 person identified by one name, Jacobo. The investigator of the case, PW6 told the court that Jacobo has not yet been arrested. The testimony of PW4 and PW5 is to the effect that although the deceased was stabbed by Jacobo, the accused persons are also responsible for the killing because they were with Jacobo. On this, I wish to reproduce the provisions of the law under which the accused persons are charged. Section 196 provides that: "Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder." The evidence presented is cogent that the cause of the deceased's death was excessive bleeding as a result of being stabbed with a knife on the left side of his chest. None of the prosecution witnesses testified that he/she saw any of the accused stabbing the deceased. PW6 stated that during interrogation with the 1st accused, he named the 2nd accused as his accomplice and admitted to having killed the deceased. However, PW6 did not tender a cautioned statement of the 1st accused in which he admitted to the commission of the charged offence. Moreover, the prosecution witnesses were firm that the accused persons stabbed the deceased with a knife, but none of them tendered the said knife as an exhibit. PW6 investigated the case. He informed the court that he did not find the accused persons with a knife. PW4 and PW5 testified consistently that they saw Jacobo stabbing the deceased and he was accompanied by the accused persons. The witnesses did not, however, describe the type and size of the knife that was used or the clothes that the accused wore. In addition, there was a serious contradiction concerning the intensity of light in the 7 crime scene and the distance between the source of light, the witnesses, and the accused. Some witnesses stated that there were 2 metres from where they stood to where the accused persons committed the crime. Others described it as 20 metres. Regarding the source of light, some witnesses said they used traffic lights to identify the accused and others told the court that there was solar light from their business huts. These are crucial details that would assist the court in determining how the witnesses identified the accused at the scene of the crime. The law is now settled that where there are contradictions in any of the testimonies, the court has to determine whether the contradictions are material going to the root of the case or just minor discrepancies that may be disregarded. The Court of Appeal emphasized this position in the case of Marando Slaa Hofu & 3 Others v. R., Criminal Appeal No. 246 of 2011. In the case at hand, I consider the contradictions as material. More so because whereas the 2nd accused alleges that he was not at the crime scene, PW2 testified that he met him running away from the scene. In the circumstances, it was very crucial to ensure that the accused persons were properly identified. The 1st accused person's main defence is that he was arrested while passing by Gulioni area. He did not, nonetheless, summon any witness to support his allegation. Likewise, the 2nd accused relied on the defense of alibi but he did not state the distance between Gulioni and Senegeli where he was. He did not also describe the type and nature of transportation means that he used for the court to assess whether a person could not commit the offence in Gulioni and escape to Senegeli within a short time. The 2nd 8 accused's testimony about alibi is in line with the prosecution's evidence which showed that he was not arrested at the scene because he escaped. I am aware that the law does not require the accused to prove his defence of alibiand that it is sufficient for him if the alibi raises a reasonable doubt. See the case of AHSalehe Msutu v. R.f [1980] TLR1. Thus, for the defence of alibi Xs succeed, the accused person should show inconsistencies in the prosecution case. This was stated in the case of HamisiSaidiButwe v. R.r Crim. App. No. 489 of 2007, Court of Appeal of Tanzania at Mtwara. However, it is the finding of this court that the defence of alibi raised by the 2nd accused did not raise a reasonable doubt sufficient for the court to rely on his defence. Notwithstanding, that alone cannot be the basis of his conviction because the accused is never convicted due to the weaknesses of his defence, but the strengths of the prosecution's evidence. The prosecution witnesses stated consistently that the 2nd accused was not arrested at the scene. He was arrested fourteen (14) days after the date of the incident. However, the prosecution maintains that the 2nd accused escaped after having participated in killing the deceased. In AH Amsi v. R., Criminal Appeal No. 117 of 1999, the Court of Appeal held that: "It is of course not the law that once the alibi is proved to be false, or is not found to have raised doubts, the task ofproving the accused person's guilt is accomplished, There must be still credible and convincing prosecution evidence, on its own merit, to bring home the alleged offence." 9 Based on the foregoing analysis, it is my considered finding that the prosecution's evidence in this case did not irresistibly establish that there is no other person who killed the deceased than the accused persons. As such, the case against the accused persons has not been proved beyond reasonable doubt as required by the law. That said and done, I find the accused persons not guilty of the offence they stand charged with, and consequently, I acquit them. I order their immediate release from prison custody unless held for some other lawful cause. The right of appeal is open to any aggrieved party. L(J, MJ. JUDGE 07/02/2025 Judgement delivered in open court on the 7th day of February, 2025 in the presence of Mr. Emmanuel Luvinga, Senior State Attorney, Ms. Magreth David, Advocate for the 1st accused and Mr. Edward Malando, Advocate for the 2nd accused, also the accused persons are present under custody. DILU/M. J. JUDGE 07/02/2025 io