Republc v Basil Simon

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE NO. 24319 OF 2024 THE REPUBLIC VERSUS BASIL SIMON……………………………….………………..………ACCUSED PERSON JUDGMENT 28th November and 13th December 2024 MIRINDO J.: Yasinta Awe of Endagaw Village in Hanang’ District within Manyara Region went missing on 2 April 2024 but during the night a sack containing maize flour, kitenge dress, and rosary were located beside the road near the bush. Some paces away towards the bush villagers located pairs of slippers and sandals humorously called yebo yebo and saw Yasinta’s body lying down. Villagers raised an alarm and several people gathered around the deceased’s body. Police officers came to the scene in the morning 3 April 2024, inspected the area and left with the deceased’s body. Rumours went around that the yebo yebo belonged to Basil Simon. Basil was among the persons who responded to the alarm and rumours had it that the clothes he wore on 2 April 2024 were different from those he had at the time he responded to the alarm. Arrangement was made and a bag containing his clothes was brought from his home to the scene and after seeing his blood-stained shirt and trousers, Basil was suspected of murder. 1 Basil was eventually arrested on 6 April 2024 by village leaders and brought to Katesh Police Station. Basil is now being charged before the High Court at Babati with murdering Yasinta Awe contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E.2022]. At the commencement of the trial the prosecution obtained leave of this Court to amend the information to show that the murder occurred on 2 April 2024 instead of 3 April 2024. The prosecution was conducted by Ms. Mary Lucas, learned Principal State Attorney. She was assisted by Ms. Alice Thomas, learned Senior State Attorney and Mr. Jackson Mayeka, learned State Attorney. The accused, Basil Simon, was represented by Mr. Festo Jackson, learned Defence Counsel. The duty of the prosecution in this murder charge is to prove that Yasinta Awe was unlawfully killed by Basil Simon and that the killing was done with malice aforethought. This is a case that relies on circumstantial evidence and accused’s self- incrimination. The prosecution produced five witnesses, a post-mortem examination report (exhibit P1), cautioned statement (exhibit P 3) and an extra-judicial statement (exhibit P2). There is sufficient evidence that Yasinta is dead. The first and third prosecution witnesses, William Hhawu and Benedict Focus, respectively, saw Yasinta’s body lying down in a location where people gathered. Similarly, there is the testimony of the fifth prosecution witness, G.5478 Detective Corporal Issa, a police officer from Katesh Police Station. He was part of a team of police officers who on 3 April 2024 went to the location where Yasinta’s body was found and took her body to Tumaini Hospital for 2 post-mortem examination. Finally, there is the testimony of Upendo Nyaki Kiaza, an Assistant Medical Officer from Tumaini Hospital who conducted post-mortem examination of Yasinta’s body. Again, there is evidence to show that Yasinta’s death was unnatural, unlawful and caused by another human being. The accounts of the first, third and fifth prosecution witnesses is consistent that sandals and slippers were found near the deceased’s body in the bush suggesting that the deceased was with another person. The post-mortem examination report established that the cause of death to be head injury secondary to cut wound on the occipital region. Is Basil responsible for the killing of Yasinta? The first piece of evidence linking Basil with the killing is the testimony of the third prosecution witness, Benedict Focus. He told the Court that people who had gathered at the locus criminis rumoured that the yebo yebo belonged to Basil. During the opinion poll undertaken by Endagaw villagers at Endagaw Primary School on 4 April 2024 rumoured about Basli clothing on 2 April 2024. He added that Basil’s bag containing clothes was brought to the gathering with the assistance of his parents. The clothes were identified to be of Basil. The shirt and the trousers were blood-stained. This portion of evidence is largely inadmissible hearsay and the non-hearsay statement is that the third prosecution witness saw blood-stained clothes. The other non-hearsay statement is that he saw sandals and slippers at the crime scene. His explanation about the ownership of the slippers, sandals or the clothing of Basil on 2 April 2024 is inadmissible hearsay. The account of the first prosecution witness on these matters is limited to the same extent. 3 Basil recorded a cautioned statement on 6 April 2024 before the fifth prosecution witness, G.7458 Detective Corporal Issa. The cautioned statement was admitted as exhibit P3 after I overruled the objection that it was involuntarily obtained. It remains to consider its truthfulness as was reaffirmed in Hatibu Tengu v R, Criminal Appeal 62 of 1992:: ... Thus the first test namely whether the confession by the appellant was made properly and legally, seems to have been satisfied. The next test comes when assessing or evaluating the confession itself, namely whether it is true. In arriving at this decision the court is required to consider all the circumstances in the case including the question whether there is some corroboration. If the confession is corroborated in some material particular by some other independent evidence, the court can easily arrive at the conclusion that the confession is true. In the absence of such corroboration, the law does not prohibit the court from acting and founding a conviction on such confession if it is otherwise satisfied on the truthfulness of the confession …. I will now proceed to examine the contents of the cautioned statement to determine their truthfulness. The cautioned statement commences with an outline of Basils’ birth, primary education and his siblings. This outline is followed by a detailed account of Basil’s animosity towards his senior father and mother, one Raphael Qamara and Yasinta Awe, respectively, leading to the killing of the latter. He revealed that sometimes in 2021 these senior parents promised to pay him 50,000/= TZS should he dig a latrine pit of twenty-five square feet for them. The arrangement was payment of 2,000/= TZS per square feet. On completing the work, his senior father paid him 5,000/= TZS and both parents told him that they had no more money to pay him. From that time Basil’s developed hard feelings towards them. Basil narrated that in the evening of 2 April 2024 he was returning home. He saw his senior mother, Yasinta, 4 walking alone on a hill carrying a sack of flour. He immediately remembered the resentment that grew since 2021. He started following her from behind until she reached on the top of the hill. He choked her from behind, fell with her on the ground, and hit her several times on large stones around the area until she died. She suffered injuries on the back of the head and on her face. Because she attacked her on the road, he moved her near the bush so that her body could not be seen. This part of the cautioned statement has been amply corroborated by the testimonies of the first, second and third prosecution witnesses. The three witnesses went to the location where Yasinta met her death and one of the items they found was a sack containing flour. They saw the deceased’s body near the bush some paces away from the road. The next part of Basil’s statement is in connection with how he disappeared from the scene, left his sandals there, and came to the residence of his friend one Juma Saidi who lived in the same Village of Endagaw. He went on to narrate that at two in the night he heard people raising an alarm. After failing to get someone to accompany him to where the alarm was coming, he went there alone. At the scene the Village Chairman, William Hhawu, the first prosecution witness, called him aside and asked him about the sandals. He asked him to comment on the rumours that the sandals were normally seen in their compound. Basil denied knowing anything about them. The meetings conducted by Endagaw Village leaders to identify a suspect were also narrated by Basil. Basil said that after police officers came to the scene and left with Yasinta’s body, villagers were instructed to meet at a location called “Mlimani City.” The meeting went on until four in the evening and the villagers dispersed. They convened again at five in the evening. Basil did not return to the meeting. He went to 5 his sister at Ng’alda Village and left the next day and went to Bashnet Village. Part of this account is corroborated by the testimony of Benedict Focus who said that Basil did not attend the meeting of 4 April 2024 and it was resolved that he should be sought for. Basil went on to explain the conditions he found himself at Bashnet Village until he received an anonymous text message on 5 April 2024 on his cell phone. The text message informed him that his parents and sister had been arrested and were being held at a police station. Basil confirmed these details after reaching her sister at Ng’alda through his cell phone. It was at this stage, Basil said, he called the first prosecution witness, the Village Chairman and unfolded that he wanted to surrender himself. The Chairman came with solders and arrested him at the Gajar Village. Basil’s account of communication with William Hhawu, the Village Chairman and his eventual arrest is corroborated by the testimony of William. The fact of Basil communication with Village Chairman was admitted during the preliminary hearing on 3 October 2024. On the overall, I am satisfied that the cautioned statement contains a true account of Basil’s role in the killing of Yasinta Awe. The cautioned statement contains peculiar facts especially those pointing to the motive for killing Yasinta and the circumstances leading to Yasinta’s death. These types of facts, as reaffirmed by the Court of Appeal Emmanuel Lohay and Another v R (Criminal Appeal No. 278 of 2010) [2013] TZCA 292, point to the genuineness of a cautioned or extrajudicial statement. Moreover, the cautioned statement is corroborated in material particulars. 6 A final piece of evidence tendered in support of the prosecution case is Basil’s extra-judicial statement before Claudia Andrew Tamamu, a resident magistrate at Katesh Primary Court who testified as the fourth prosecution witness. This extra-judicial statement was recorded on 8 April 2024 and was admitted as exhibit P2. In the extra- judicial statement, Basil confesses killing Yasinta in substantially the same terms as those in the cautioned statement and that he surrendered himself to the police after communicating with the Village Chairperson. It is clear to me that Basil Simon killed Yasinta Awe and he did so with malice aforethought. In both extra-judicial and cautioned statements, Basil confessed choking Yasinta to death. He clearly stated in the cautioned statement hitting Yasinta on large stones until she died. Choking is evidence of strangulation. Both choking and hitting Yasinta to death are evidence of express malice aforethought under section 200 (a) of the Penal Code [Cap. 16 R.E. 2022]. Accordingly, I convict Basil Simon of murder of Yasinta Awe contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E.2022]. DATED at BABATI this 12th day of December, 2024. F.M. MIRINDO JUDGE COURT: Judgment delivered in open court this 13th day of December, 2024 in the presence of the accused in person and in the presence of Mr. Raymond Kim holding 7 brief for Mr. Festo Jacson, and in the presence of Mr. Benedict Kapela, Senior State Attorney for the Republic. B/C: Ms. Anna Mathayo (RMA) present. Court: Right of appeal explained. F.M. MIRINDO JUDGE 13/12/2024 MR. KAPELA: SENIOR STATE ATTORNEY: We have nothing to add. There is only one sentence for murder for the convict. F.M. MIRINDO JUDGE ADVOCATE KIM: We have no mitigation. This is a murder case. F.M. MIRINDO JUDGE 13/12/2024 8 SENTENCE The accused, Basil Simon, has been convicted of murdering Yasinta Awe and section 197 of the Penal Code [Cap. 16 R.E. 2022] imposes a mandatory sentence of death for murder. Section 197 read together with section 26 (1) of the Penal Code directs that murder conviction shall suffer death by hanging. Accordingly, the accused, Basil Simon, is hereby sentenced to suffer death by hanging. It is so ordered. COURT: Right of appeal explained. F.M. MIRINDO JUDGE 13/12/2024 9