MALUMBI JDGT CRIMINAL SESSION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 100 OF 2022 REPUBLIC VS JUMA SAID MALUMBI................................ 1st ACCUSED AMRI ALLY MAZANGU......... ....... ..2nd ACCUSED JUDGMENT Date of last order: 12-11-1024 Date ofJudgment: 10-12-2024 B.K.PHILLIP,J The accused are charged with the offence of murder contrary to sections 196 and 197 of the Penal Code. The information filed in this court reads as follows; Juma Said Malumbi and Amri Ally Mazangu, on 20th day of October,2018 within the City and Region of Dar es Salaam did murder one Zurufa Islam Oda. The learned State Attorneys, Tumaini Mafuru and Winiwa i Kasara, appeared for the Republic, whereas the learned Advocate Edwin Laseck Mushi appeared for the 1st accused, and the learned Advocates Geofrey Nguyanji and Gaspar Sabuni appeared for the 2nd accused. The facts of the case the learned State Attorneys presented during the preliminary hearing are as follows: The deceased was known as Zurufa Islam Oda @ Ashura. On 20th October 2018, around evening hours, the 1st accused, who was the deceased's lover, went to pick up the deceased and her friend, Zena Athumani, from Kijitonyama and drove them to a party in Magomeni. The deceased introduced the accused to Zena, and after that, the deceased left with the accused and promised Zena to return to the party, but she never returned. The 1st accused went to his residence with the deceased. On 21st October 2018, the deceased was found lying at "Bonde la Mchicha" in the Kimanga area. Information reached police officers who went to the crime scene and took the deceased to Muhimbili Hospital. A medical examination of the deceased was conducted, and a postmortem report revealed that the deceased's cause of death was Asphyxia due to manual strangulation, and the body had bruises in the upper extremities. On 19th June 2019, the accused was arrested at the "Mnazi Mmoja" area and put under custody at the Central Police Station. Upon interrogation, he mentioned the second accused, who was arrested, and confessed that he assisted the first accused in throwing the deceased at "Bonde la Mchicha" after being abandoned by the 1st accused. An identification parade was 2 conducted, and Zena Athumani identified the first accused as the last person to be seen with the deceased. In proving their case, the learned State Attorneys paraded eleven witnesses. None of the prosecution witnesses testified that they witnessed any of the accused persons injuring/killing the deceased.The evidence led by the prosecution was pure circumstantial evidence. The key witness in the case was PW1 Zena Athumani Ipombo, who testified that Zurufa Islam Oda, deceased, was her friend. On the fateful day, 20th October 2018, they attended a birthday party at Manuva Hall in the Magomeni Makuti area. Before going to the birthday party, the deceased came to her residence, and when she (PW1) was ready to leave for the party, the deceased told her that she should not take her car because someone would drive them to the party. So, they went on foot up to the deceased's residence because she wanted to change her clothes. PW1 waited for the deceased outside on the verandah, and the deceased gave PW1 her cell phone. While waiting at the verandah, the deceased's cell phone rang. She looked at it and saw the name Mkoyi displayed. So, she knew the one calling was Mkoyi. When Zurufa came, she took her cell phone and called back Mkoyi. He told him to wait for 3 them at the place not far from the deceased's residence. Then, PW1 and Zurufa walked up to that place and found Mkoyi in a blue car, make-Vitz. They boarded in the car, and Mkoyi, who later learned his name was Juma, drove them to a birthday party at Magomeni Makuti- Manuva Hall. Upon entering the hall, within a short time, the deceased told her that she wanted to go out for a while. She followed her, and when she reached outside, she saw the accused in a car. The same car they used when coming to the hall. She remembered him. She asked the deceased where she was going. In response, the deceased told her that she was going to give the driver (the 1st accused) money for drinks. Then, she boarded the car and left with Mkoyi. PW1 returned to the hall. The deceased did not return to the party. She called the deceased twice, but her cellphone was received by Mkoyi ( the 1st accused). He told her that she should not worry. He will bring Zurufa back to the party within a short time. When she called Zurufa for the third time, the cell phone was unreachable, and Zurufa never returned to the party. When the party was over, she returned to her residence. On the following day, PW1 left in the morning for her activities, and while she was away, her family members informed her that the deceased's daughter, Pili, was looking for her mother. Later on, she met Pili and other family members 4 of the deceased. She told them what transpired at the party, that Zurufa did not stay at the party, she left with someone called Mkoyi. The deceased's relatives told her that they knew that person, and his proper name was Juma, and it appeared that he was the deceased's lover. However, she advised them to report the matter to the Police Station. When the matter was reported to the Police station, she was arrested. She narrated to the Police what happened on the fateful night. The Police officer directed the deceased's relatives to contact them once they see Mkoyi. PW1 stayed under custody and, later on, was released on bail. RB number was issued to the deceased's relatives. Moreover, PW1 testified that he identified the 1st accused person at the identification parade conducted at the police station. PW2 was SSP Boniface Edwin Mwakalagesye. He testified that on the 21st of October 2018, he was at the Gogoni police station. He received information that there was the dead body of a female in Tabata Kimanga, Bonde Mchicha area. He went to the crime scene together with other police officers. Police officers from Rafiki police station joined them. At the crime scene, he saw a dead body of a female. It was along the way. There were signs of car tires. The dead body had bruises but was bleeding from her 5 nose. The bruises were on her hands and shoulders. The environment showed that the deceased was just thrown there. He instructed the dead body to be taken to Muhimbili Hospital. Then, they opened a case file on suspicious death. (Case file KMR/10853/2008). The case file was handed over to the investigators. Insp Selemani was assigned the case file. He learned that there was a person already arrested concerning the death of the deceased in question. That person was named Zena ( PW1). Upon interrogating Zena, he told them that the deceased was called Zurufa. PW7 was , Mwanaisha Abdul Jumaa @ Aisha,the deceased's relative. She testified that when she heard that Zurufa was missing she went to her mother's residence. The family members who gathered there decided to go to Zena's residence to ask her what happened to Zurufa because Zena was with her for the last time. So, they went to Zena's residence, and Zena suggested they should report the incident to the police station. They asked Zena if he knew the person who was with Zurufa on the previous day. She told them that he remembered that person and told them his name was Mkoyi. PW7 called the 2nd accused and informed him that Zurufa was missing. Also, he told him that Zena had informed them that Zurufa was 6 with Mkoyi (the 2nd accused's relative). She asked him to take them to Mkoyi, but the 2nd accused said that Mkoyi had traveled. Moreover, PW7 testified that she knew both accused persons. On 11th June 2019, she found the 1st accused in Mnazi Mmoja. PW7 was with Nuru. She saw the 1st accused when he was going to enter in his car. He entered his car, and she went straight to him and asked him to get out of it so they could talk. The 1st accused switched on his car and started driving. PW7 and Nuru started shouting and trying to obstruct him from moving. Luckily, police officer F4703 SGT Ussi Ahmed Said ( PW3) and his colleagues were passing near that area. They assisted them in arresting the accused because they had the RB number. PW3- F 4703 SGT Ussi Ahmed Said testified that on 11th June 2019, he saw PW7 and another girl trying to obstruct the accused from moving. He was with F3020 CPL Hamisi. After interrogating the two girls, he learned they had an RB number. He assisted them in arresting the 1st accused and took him to the police station. PW9- E 8609 D/SGT Ruben, testified that on the 23rd of October 2018 attended the examination of the deceased at Muhimbili National Hospital. 7 The deceased's husband, Mr. Zuberi Fitina ( PW8), and one Shabani Islam identified the deceased at the Muhimbili Hospital. Dr. Professor Amosi Rodger Mwakigonja ( PW6 ) examined the deceased. In his testimony, PW6 told this court that the deceased's neck was broken, and her arm was injured, which indicated that there was a fight before her death, and she had bruises on her neck. He prepared the postmortem report ( Exhibit P4), which indicated that the deceased's cause of death was lack of air, " Asphyxia," due to strangulation. PW10 was XE D/SGT Mkombozi,. He testified that he interrogated the 1st accused person, who admitted that he killed the deceased and left the dead body in a car with his uncle, Amri Ally Mazangu ( 2nd accused). Also, he informed the police officer that his uncle is a bodaboda rider, and his work stations are Mlima City and Ubungo Maji. PW10, together with other police officers and the deceased's husband, who was a driver employed by the Ministry of foreign Affairs, went to look for the 2nd accused under the assistance of the 1st accused. They started looking for the 2nd accused at Mlimani City but did not find him. The 1st accused told them to go to Ubungo Maji area because sometimes the 2nd accused parks his motorcycle there. They went to Ubungo Maji area under the guidance of the 1st accused. When 8 they arrived, the 1st accused showed them the 2nd accused's motorcycle. It was parked. The police officers, together with the deceased ’s husband, arranged themselves in such a way that they could catch the 2nd accused. Zuberi Fitina ( PW8) went to where the 2nd accused's motor vehicle was parked and pretended he needed transport services. Within a short time, the 2nd accused came back to his motorcycle. However, when he saw police officers approaching him, he ran away. They started chasing him. They managed to arrest him with the assistance of civilians, who joined them. The 2nd accused was taken to the central police station, and upon being interrogated, he admitted that he was the one who threw the deceased at the "Bonde la Mchicha" area where she was found. 2nd accused's caution statement (Exhibit P2) shows that he admitted that he threw the deceased at the "Bonde la Mchicha " area where she was found. PW4-F7805 D/CPL Alpha testified that he recorded the 2nd accused's caution statement in which he admitted he threw the deceased at Bonde la Mchicha area. Exhibit P2 was admitted in evidence after conducting a trial within a trial as the 2nd accused alleged that he did not record it voluntarily. PW5 was Inspector Machota Ndege Machome. He testified that he conducted the identification parade, during which PW1 (Zena Ipombo) identified the 9 first accused person. PW5 tendered in court the identification parade register ( Exhibit P3). He told this court that he followed all the required procedures in conducting the identification parade, including asking the accused the position he wanted to stand. PW11- G 6246 D/CPL Selemani testified that he drew the sketch map of the crime scene where the deceased was thrown. The same was admitted as Exhibit P5. Upon closing the prosecution case, I ruled out that both accused persons had a case to answer. They made their defense under oath. The 1st accused person testified as DW1. His testimony was as follows: He is a mason. He has been doing that work for about ten years. He was conducting his work in Msaki, Msasani, and other places. He knew the deceased, Zurufa Islam Oda. She met her at the site at Oysterbay where he was working when she requested to be employed as a helper at that site. It was in 2016. She was offered a job for cleaning the site and taking mortar to the mason. He started developing a love relationship with her. They fell in love. Later on, he realized that Zurufa was married. He decided to stop the love affair with her. He told her about that and both agreed to stop their 10 relationship as lovers because he was married too. His relationship with Zurufa ended in the same year, 2016. The last day he saw Zurufa was the end of 2016, when she was retrenched from employment. On 11th June 2019, when he was at Mbezi Beach at his work, three police officers came to the site. They did not identify themselves to him. They asked his boss to allow them to take him. Then, they arrested him. He was taken to Oysterbay Police Station. In the evening, at 6.00 pm, a police officer called Mkombozi took him to Central Police Station. During his arrest, he was not informed of the offence facing. At the Central Police station, he was put in a lock-up. On 12th July 2019, he was arraigned at Kinondoni District Court for the offense of Murder. He was charged with Murder together with Mr. Amri Ally Mazangu, the 2nd accused. He saw Zena for the 1st time in court. He did not know her before. He denied having killed the deceased. Moreover, DW1 told this court that he had no reason to kill Zurufa. He was surprised to hear Zena's testimony in court. He is not a driver and does not know how to drive, and he denied having driven Zena and Zurufa to the birthday party. He denied knowing anything about the car- make, Vitz, blue that Zena talked about in her testimony. He denied to have attended any identification parade on 20th October 2018. He prayed this court to set him ii free since he is not guilty and has been in remand for 5 years now. Mkoyi is not his name. His nickname is Jerry Kimeo. The 2nd accused testified as DW2. His testimony was as follows: He is a petty trader. He sells peppers. On 20th October 2018 he went to the Mabibo market to buy peppers. Then, he went to the Ubungo, Songas area to sell peppers along the road. On 11th June 2019 at 3.00 pm, when he was at Ubungo Songas, at his workplace, three people who introduced themselves as police officers arrested him together with two people. Upon being arrested, they were taken to Msimbazi Police Station. He spent the night there. In the morning, they were taken to Central Police Station. Moreover, DW2 testified that CPL Alpha did not interrogate him. He never recorded any caution statement with CPL Alpha. He was forced to sign the statement prepared by CPL Alpha. He was beaten by the police officers and injured. He was put in a dark room and threatened. Furthermore, DW2 testified that he did not sign the caution statement of his free will. After that, he was given Panadol. He stayed in remand for a month. After recovering, he was arraigned in court. He did not inform CPL Alpha of the contents of the caution statement. He did not participate in throwing 12 the deceased body where it was found. He does not know the vehicle alleged to carry the deceased's body. The car's owner was supposed to appear in court to testify if he saw him in that car. He did not know the owner of the car used to carry the deceased. He refuted the testimonies of the prosecution witness that, when the police officers wanted to arrest him, he ran away from them and that he was a "boda boda" rider. He prayed that this court would find him not guilty and set him free. In this case, there is no dispute that the deceased died an unnatural death. The issue for determination is whether or not the prosecution has proved beyond reasonable doubt that the 1st accused murdered the deceased and 2nd accused was an aider or abettor to the 1st accused in the deceased's murder As alluded to at the beginning of this judgment, this case is based on circumstantial evidence. The position of the law is that the last person to be seen with the deceased is liable for the death of the deceased if the circumstantial evidence adduced points irresistibly that he/she caused the death of the deceased and excludes other people. In the case of Shaban Mpunzu @ Elisha Mpunzu Vs. The Republic, Criminal Appeal No. 12 of 2002, ((unreported) Court of Appeal held as follows; 13 ..... It is a settled trite principle of law that in a criminal case in which the evidence is based purely on circumstantial evidence, in order for the court to find a conviction on such evidence, it must be satisfied that the evidence irresistibly points to the guilt of the accused, the appellant in this case to the exclusion of any other person." ( Emphasis added) In this case, the star witness for the prosecution case was PW1, Zena Ipombo, the one who testified that she saw the 1st accused leaving with Zurufa ( the deceased ) on a fateful night, and the next day, Zurufa was found dead along the road. PW1 identified the 1st accused at the identification parade, and the parade register ( Exhibit P3) shows that the parade was conducted correctly. Her testimony is corroborated by PW5, who conducted the identification parade and the parade register ( Exhibit P3), which contains the parade details. In her testimony, PW1 told this court that he was able to remember and identify the 1st accused because she stayed with him for a while when he was driving them to the party and when she went out with the deceased to see who was she leaving with, and saw the 1st accused. The testimony of PW1 clears all doubts on the identification of the 1st accused since she saw him twice at a close distance. The above aside, as per the testimonies of PW1 and PW7, the deceased's family members knew the accused person very well by both names, Mkoyi 14 and Juma, and were aware that the deceased had a relationship with him to the extent that when PW1 told them that the deceased left with someone called Mkoyi, they were not worried. They relaxed and told her they knew him well and his proper name was Juma. It was PW1 who advised them that they should report the matter to the police. This testimony is corroborated by the testimony of DW1, the 1st accused, who testified that the deceased was once his lover. However, he claimed that they stopped their relationship in 2016, which is very doubtful because, as per the testimony of PW1 on a fateful day, the 1st accused left with the deceased in a way that suggested that they were lovers. When responding to questions posed to her during cross-examination, PW1 told this court that she suspected that Zurufa and the 1st accused were lovers, and she did not bother to make a follow-up on why the deceased decided to leave with the 1st accused. I have considered the 1st accused's defence. He denied murdering the deceased, and every testimony made by the prosecution witnesses implicating him, including the way he was arrested. In my opinion, the 1st accused's defence did not shake the prosecution case at all but cemented it because he joined hands with the PWl's testimony that he was the 15 deceased's lover. DW1 did not shake PWl's testimony that he picked up the deceased's call when PW1 called the deceased after noticing that so much time had lapsed without returning to the party and told her that he would bring back Zurufa to the party and then after calling Zurufa for the third time, her cellphone number was not reachable. During cross-examination, the first accused told this court that he had no quarrels or grudges with the case investigators. This fact is crucial as it establishes that none of the prosecution witnesses had quarrels or grudges against the 1st accused, thus removing the possibility of creating a fake murder case against him. Additionally, DW1 is the one who led the police officers to Ubungo Maji to arrest the 2nd accused. I have considered the arguments raised by the defence counsel in their closing submission, in which they tried to show that the identification of the 1st accused by PW1 was improper and that the prosecution failed to call material witnesses in this case. With due respect to the defence counsel, their arguments have no merit since, as I have endeavoured to explain herein, the identification of the 1st accused by PW1 was proper and 16 supported by Exhibit P3. The prosecution brought all material witnesses to prove its case in court. From the foregoing, I am settled that the evidence adduced by the prosecution meets the test/ principle on the application of circumstantial evidence as stipulated in the case of Shaban Mpunzu @ Elisha Mpunzu (supra). The evidence adduced by the prosecution does not give room for suspecting that the deceased was murdered by anybody else apart from the 1st accused, who left with her from Mavula Hall in Magomeni. It is incomprehensible that the police officers who arrested him could fabricate the evidence against him for no reason. Similarly, it is incomprehensible that PW1 could have conspired with the police officer to fabricate evidence that the 1st accused was identified at the identification parade. Suffice it to say that the prosecution witnesses were witnesses of truth. Additionally, according to section 33 of the Evidence Act, CAP.6 R.E. 2019, the evidence of an accused person implicating himself and another is admissible and can be acted upon to convict. For ease of reference, let me 17 reproduce the contents of section 33 of the TEA hereunder. The same states "33(1) Where two or more persons are being tried Jointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved, the court may take That confession into consideration against other person. (2) Notwithstanding subsection (1), a conviction ofan accused person shall not be based solely on a confession by a co-accused". [Also, see the case of Pascal Kitigwa vs. Republic[1994] TLR 65] It is also the position of the law that repudiated or retracted Confession is admissible, and the court may act on it to convict provided that other independent evidence corroborates it, but even without Corroboration if the court is satisfied that the confession is true. This The principle was established in the famous case of Tuwamoi V. Uganda (1967) EA 84. 18 In this case, the 2nd accused's caution statement ( Exhibit P2) implicated the 1st accused person and also is a confession by the 2nd accused that he was involved in throwing the deceased at the "Bonde la Mchicha" area. With the evidence adduced by the prosecution side on the way the 2nd accused was arrested, which proves the relationship between the 1st and 2nd accused, I am satisfied that this confession made by the 2nd accused is true even though it was repudiated and admitted after conducting a trial within a trial. Concerning the second accused, PW7 told this court she knew the second accused. He is the first accused's uncle. Her testimony was s supported by PW10, XE D/SGT Mkombozi, who testified that the 1st accused told the police officers that the second accused was his uncle. The same narrations are found in the second accused's caution statement ( Exhibit P2). Though the second accused denied the contents of Exhibit P2, the caution statement, he admitted that he signed that caution statement. His denial of the contents of his caution statement is a pure afterthought because the contents of Exhibit P2 state correct information about DW2's background, his family, and the work he had been doing, which CPL Alpha would not have known 19 without being informed by the 2nd accused himself. For instance, the caution statement indicates that the 2nd accused was a "boda boda" rider. This fact is supported by the testimony of PW 10, who testified that the 1st accused told them that the 2nd accused was a "boda boda" rider and directed them to his workstation, and that is how they managed to arrest him. The above aside, Exhibit P2 shows that the 2nd accused assisted the 1st accused in throwing the deceased along the road at the " Bonde la Mchicha" area. Therefore, legally, he was an accessory after the fact. He was not an aider/ abettor in the commission of the offence of murder because he did not participate in the commission of the offence of murder. In the case of Damiano Petro and Jackson Abraham Vs Republic ( 1980) TLR 260, the Court of Appeal held that; "However, to constitute a person an aider and abettor mere presence is not enough ( Archiboid,supra-para-4126). The person must also participate in the act to some extent and it follows that a person present at the scene of the crime who takes no part in it and does not act in concert with the one who commits the crime cannot become a principal in the second degree merely because he does not endeavour to prevent the offence or faits to apprehend the offender. The Court of Appeal for East Africa had occasion to deal with the provision ofparagraphs ( b) and ( c) of section 22 of our Pena! Code in the case ofZUBERI s/o RASHID (1957) at pp. 458-459 when the Court said; "The learnedjudge, however, correctly directed himself that it is not sufficient to constitute a person a principal in the second degree that he should tacitly acquiesce in the crime, or that he 20 should fail to endeavor to prevent the crime or to apprehend the offenders, but that it is essentia! that there should be some participation in the act, either by actual assistance or by countenance or encouragement. ( Emphasis added) As alluded to earlier herein, in the instant case, the prosecution evidence proves that the second accused assisted the 1st accused in throwing the deceased at "Bonde la Mchicha. The position of the law is that a person charged with the principal offence cannot be convicted of being an accessory after the fact unless he or she was specifically charged for being an accessory after the fact. [See the case of Director of Public Prosecutions Vs ACP Abdallah Zombe and eight others, Criminal Appeal No. 358 of 2013 (unreported)]. Since the 2nd accused, Amri Ally Mazangu was not charged with being an accessory after the fact, he cannot be convicted of that offence. Under the circumstances, it is the finding of this court that the 2nd accused is not guilty of Murder, and I hereby acquit him. In fine, I am satisfied that the circumstantial evidence adduced by the prosecution witnesses proves beyond reasonable doubt that the 1st accused, Juma Said Malumbi murdered the deceased, Zurufa Islam Oda, and is hereby convicted of Murder contrary to sections 196 and 197 of the Penal Code. Dated at Dar es Salaam this 10th day of December 2024. 21