Republic vs Shabani Juma and Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF BUKOBA AT BUKOBA CRIMINAL SESSIONS CASE NO. 107 OF 2023 THE REPUBLIC VERSUS 1. SHABANJUMA 2. PHILIPO LONGINO JUDGMENT 21st November and 13th December, 2024 BANZL J.: Shaban Juma and Philipo Longino, the first and second accused person respectively, stand charged with the offence of murder contrary to sections 196 and 197 of the Penal Code [ Cap. 16 R.E. 2022]. It is alleged in the information that, on 11th April 2023 at Kilimilile village, within Missenyi District in Kagera Region, the first and second accused person with malice aforethought caused the death of Baraka Juma (the deceased). The first and second accused person denied the charges. In a bid to prove the case against them, the prosecution side, under the representation of Mr. Erick Mabagala and Ms. Agnes Lwimike, learned State Attorneys called Page 1 of 12 in four witnesses namely Wilson Mkaraja (PW1), Imani Mwambusi (PW2), Tarasisi Stephen Edward (PW3) and Fred Katela (PW4). In addition, they produced one exhibit, post-mortem examination report (Exhibit Pl). On the other hand, the first and second accused person under the legal services of Mr. Peter Matete, learned counsel were the sole witnesses for the defence who testified as DW1 and DW2, respectively. In the main, the prosecution evidence presented a case that, on the fateful day, the deceased and PW4 went to Kilimilile forest for grazing. In the course of grazing, around 4:00 PM, they were invaded by six persons who informed them that, they were grazing at the area which had been bought by investor. The deceased and PW4 asked them why there was no any warning signs. That question annoyed them and they put the duo under restraint. After that, they told the duo to throw their sticks away. PW4, was the first one to throw away his stick. Immediately after throwing away his stick, the attackers began to assault him. They had weapons such as sticks, panga and spears. When the deceased decided to assist PW4, the attackers turned to the deceased and began to assault him on various parts of his body by using sticks. In the course of assault, two attackers stabbed the deceased with spears on the left side of the chest and on the left thigh. Page 2 of 12 According to PW4, among the attackers, he identified the first accused, the second accused and Joseph Longino by their names. He also claimed that, he knew them for long because he used to see them in the forests and in the streets of Mabale village where he used to distribute milk. It was also his evidence that, among the attackers, the first accused and Joseph Longino were the ones with spears who stabbed the deceased on the chest and thigh. After the first accused and Joseph Longino had stabbed the deceased with spears, PW4 begged for mercy. It was at that point when the first accused and Joseph Longino pulled out their spears from the deceased body. Before leaving, they warned PW4 and the deceased never to return there for grazing. The deceased was seriously injured. Upon seeing that, PW4 decided to call his father, PW1 and informed him about what had just happened to them. After waiting for a while without any assistance, PW4 left the deceased who was unable to walk and went home to seek for assistance. On the other hand, PW1 after receiving a call from PW4 went to the forest to look for the deceased and PW4. In the course of searching, he met PW3 who joined him in the search party. Eventually, they found the deceased who was in a bad condition. According to PW1, the deceased mentioned the first accused, second accused and Joseph Longino being among the persons Page 3 of 12 who attacked him. Before they took him to the hospital, the deceased passed away. PW1 informed the village chairman who called the police. The police together PW2 went to the crime scene and on arrival, PW2 examined the deceased body. According to PW2, the deceased body was covered with blood. Also, there was a lot of blood surrounding the body. In the course of examination, PW2 found stab wounds on the left side of the chest and thigh. After examination, PW2 concluded that, the deceased's death was caused by haemorrhagic shock due to stab wounds. According to PW2, the stab wounds were caused by sharp object. Thereafter, the deceased body was handed over to PW1 for burial. PW2 prepared his report which was admitted as exhibit Pl. In their defence, the first and second accused person denied to have murdered the deceased. They both denied to be at Kilimilile forest on the date of the incident. They both claimed to live at Kachongo hamlet within Mabale village, a different village from Kilimilile. The first accused who testified under oath as DW1 stated that, on the date of the incident, he woke up in the morning and went to farm which is nearby his house. He worked until 12:30 PM and returned home where he rested until 2:00 PM when his wife called him for lunch. After eating, he began to arrange the blocks until Page 4 of 12 6:00 PM. According to his testimony, he did not know the first accused prior to the incident. Also, he has never seen him at Mabale village and he saw him for the first time in the village office after being arrested. On his side, the second accused (DW2) stated that, on the date of the incident, he woke up around 8:00 AM and went to the farm with his wife Asha Juma Ramadhan. They worked until 11:00 AM when they returned home. After returning, they prepared lunch. After eating, they rested until 4:00 PM when they returned to the farm. They worked until 6:00 PM and returned home. On 14th April 2023 he was arrested and taken to the village office. In a nutshell, that was the evidence for the prosecution and defence sides. Having examined the evidence on record, it is undisputed that, Baraka Juma is dead and his death was not natural. According to PW2, the deceased died out of haemorrhagic shock due to massive bleeding from stab wounds. His evidence is supported by Exhibit Pl. Now the remaining issues for determination are; one, whether the first and second accused person killed the deceased and two, whether they did so with malice aforethought. Page 5 of 12 In discharging the aforesaid burden, the prosecution brought four (4) witnesses but the key witness was PW4, who was at the scene of crime and claimed to identify/recognise the first and second accused person visually. That being the situation, one might pose a question, was identification/recognition evidence of PW4, cogent enough to sustain the prosecution case? It is now settled law that, in a case entirely depending on the evidence of identification, evidence on conditions favouring the correct identification is of the utmost importance and such evidence must be absolutely watertight with no possibility of mistaken identity or fabrication to justify conviction. The same principle applies even in cases of recognition evidence. Therefore, courts must, as a rule of practice, exercise caution in relying on such evidence, otherwise, it may result in substantial miscarriage of justice by convicting an innocent person. It is similarly true that, in matters of identification, it is not enough merely to look at factors favouring identification, equally important is the credibility of the witness. As even recognising witnesses often make mistakes or deliberately lie. See the cases of Abas Matatala v. Republic, Criminal Appeal No. 331 of 2008 CAT (unreported), Issa Ngwali v. The Republic (Criminal Appeal 215 of 2005) Page 6 of 12 [2009] TZCA 12 (27 November 2009) TanzLII and Philimon Jumanne Agala @ J4 v. Republic (Criminal Appeal No. 187 of 2015) 2016 TZCA 278 (22 October 2016) TanzLII. In the latter case, it was stated that: "...eyewitness visual identification evidence is of the weakest character and most unreliable. Though totally relevant and admissible, it should be acted upon cautiously after the court has first satisfied itself that such evidence is watertight and all possibilities of mistaken identity or fabrication have been eliminated" When it comes to identification by recognition, the Court went on and observed that: "... recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows, the court should always be aware that mistakes in recognition of dose relatives and friends are sometimes made." In another case of Issa Mgara @ Shuka v. Republic, Criminal Appeal No. 37 of 2009 CAT (unreported) it was held that: "...identification by recognition is more reliable than that by strangers or by voice; although even in recognition cases mistaken identification maybe made" Page 7 of 12 See also the cases of Shamir John v. Republic, Criminal Appeal No. 166 of 2004 (unreported) and Frank Joseph Sengerema v. Republic (Criminal Appeal No. 378 of 2015) [2016] TZCA 216 (25 April 2016) TanzLII. Reverting to the first issue whether the first and second accused killed the deceased, the only identifying witness was PW4. According to his testimony, he was able to identify and recognise the first and second accused person by their names because he used to see them in forests and in the streets of Mabale village where he used to distribute milk. According to the evidence on record, it is undoubted that, PW4 is not living at the same village with the first and second accused person. It is on record that, PW4 is living at Kyamlaire village while the first and second accused person are living at Mabale village. From the evidence on record, it is undisputed that, the two accused persons are neither village mates nor neighbours to PW4. Despite the fact that, PW4 is not the neighbour of the accused persons and neither do they live in the same village or hamlet, yet, he claimed to know them by their names. Under these circumstances, one might expect strong evidence from PW4 elaborating more as to how he came to know the accused persons by their names. But, PW4 in his testimony, did not elaborate more as to how he came to know the two accused persons by their names. His evidence was Page 8 of 12 silent on how often he used to see them in the forests or in the streets of Mabale village in the course of distributing milk. Did he ever have conversation with them at any point where the duo introduced themselves to him by their names? Are they famous persons at Mabale village to the extent of being known by anyone at Mabale village and neighbouring villages? If they are not famous persons and they have never had any conversation with PW4, how possible he came to know their names? These unanswered questions leave a lot to be desired on PW4's evidence on whether he really knew the accused persons by their names. The point I am underscoring here is that, it is not enough for PW4 to blandly say he knew the accused persons by their names. He should have gone further to establish how he came to know their names considering that, they were not neighbours or village mates. The prosecution was duty-bound to elicit more from PW4 so as to know how he knew the names of the accused persons. Under the particular circumstances of this case, it cannot be said with certainty that, the evidence of PW4 was watertight to the extent of eliminating the possibility of mistaken identity. As alluded above, the position of the law is very clear that, identification by recognition is more reliable than identification of a stranger but even in recognition cases, mistaken Page 9 of 12 identification may be made. We should be reminded that, mistaken identification is a dual problem: Not only might an innocent person be convicted but also the guilty party remains free to reoffend. Apart from that, the prosecution evidence is silent on when PW4 named the accused persons to the police as the persons who stabbed the deceased. There is no evidence from the prosecution which discloses when and how the accused persons were arrested after being named by PW4. Unfortunately, in this case, neither the investigator nor arresting officer, who would clarify that fact, was called to testify. The fact that, there was no evidence from the prosecution regarding when PW4 mentioned the names of the accused persons to the police, we cannot conclude that, PW4 named the accused persons at the earliest stage as required by law. Apart from that, although PW1 claimed that, the deceased named the accused persons as his assailants, this fact is questionable because during cross-examination, PW1 admitted that, when they found the deceased, he was not talking. It can be recalled that, the accused persons denied to have killed the deceased or to have known PW1, PW2 or PW4. Looking closely at their defence, the accused persons relied on the defence of alibi as both claimed to be at Mabale village on the date of incident. Although their alibi was raised Page 10 of 12 without complying with the provisions of section 194(4) of the Criminal Procedure Act [Cap. 20 R.E. 2022], this in itself cannot make them guilty of murder considering that, it is trite law that, the accused person cannot be convicted basing on the weakness of his defence. In criminal trial, the burden of proof always lies on the prosecution and the proof has to be beyond reasonable doubt. See the case of Nathaniel Alphonce Mapunda & Benjamini Alphonce Mapunda v. Republic [2006] TLR 395 and Mohamed Said Matula v. Republic [1995] TLR 3. Taking together the testimony of PW4, it is my sincere observation that, his evidence did not measure up to the requisite standard in relation reliability so far as recognition of the accused persons is concerned. It is my view that, evidence of recognition at the crime scene was not watertight to eliminate the possibility of mistaken identity. From the foregoing reasons, it is the finding of this Court that, the prosecution has failed to discharge its burden under the law in proving beyond reasonable doubt that it was the first and second accused person who killed the deceased. That being the case, the first issue whether the first and second accused person killed the deceased is negatively answered and thus, the remaining issue whether they did so with malice aforethought Page 11 of 12 dies automatically. Thus, I find the first accused Shaban Juma and second accused Philipo Longino not guilty and consequently, they are accordingly acquitted on the charged offence of murder and they are hereby set free. It is accordingly ordered. I. K. BANZI JUDGE 13/12/2024 Delivered this 13th day of December, 2024 in open court in the presence of Ms. Agnes Lwimike, learned State Attorney for the Republic, Mr. Peter Matete, learned defence counsel, the first and second accused person, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 13/12/2024 Page 12 of 12