Republic v Sumari Dagharo

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE NO. 24316 OF 2024 THE REPUBLIC VERSUS SUMARI s/o DAGHARO……………………………….………ACCUSED PERSON JUDGMENT 21st November and 13th December, 2024 MIRINDO, J.: The body of Basso Gwarehi was found lying down in the night of 1 April 2024 at Vibao Tatu area at Kuta Village in Mbulu District within Manyara Region. Police arrested several persons in connection with Basso’s death and after investigation singled out Sumari Dagharo as the murder suspect. He has been charged with murdering Basso before the High Court at Babati. He denied the charge and the prosecution brought six witnesses and produced three exhibits. The prosecution was led by Mr. Benedict Kapela, learned Senior State Attorney and he was assisted by Ms. Grace Christopher and Mr. Jackson Mayeka, learned State Attorneys. Mr. Raymond Kim, learned Defence Counsel represented the accused, Sumari Dagharo. 1 There is no doubt that Basso was unlawfully killed. The fourth prosecution witness, Geofrey Leonidas Daudi, a medical officer from Mbulu Town Council Hospital saw Basso’s body at the location it was lying and conducted post-mortem examination as well. He discovered that the body had large injury on the neck, the deceased’s neck was broken and it was prevented by skin from being separated from the body. Geofrey noted that the killing was caused by profuse bleeding due to stabbing on the neck and slicing of the spinal cord. In the post-mortem examination, exhibit P 2 the cause of death is noted as “BLEEDING AND INJURIES OF CENTRAL NERVE SYSYEM CAUSE BY CUT WOUND ON ALMOST A WHOLE NECK BY SHARP OBJECT.” Did Sumari kill Basso? The testimony of Karani Tslaa, the third prosecution witness, is that in the evening of 1 April 2024 he went with Gwaye Tslaa,his younger brother, to Vibao Tatu area where community members usually convene. Around 8.30 in the night they found people drinking a local brew known as “gongo”. One of the persons they found there was Basso Gwarehi who was Karani Tslaa’s cousin. Basso joined their company and they left. On reaching community’s cooking place, Sumari appeared suddenly shining his torch to Karani who was in front. He ordered them to turn back and insulted Karani in Kiswahili as: “Mshenzi mkubwa, mpumbavu mkubwa wewe, geuka nenda.” Sumari ordered Basso to shine down the light of his cell phone toch. Karani and Gwaye moved some paces away but Basso remained on the road. Sumari remarked said to Basso: “I have been looking for you for three years” and stabbed Basso with a sharp machete. Karani and Gwaye ran away. Karani did not reveal these details to any one, not even to his wife. He did not respond to the alarm raised at night. He said that he was afraid of being attacked by 2 villagers because he was one of the persons to be last seen with the deceased while he was still alive. I find this silence rather strange owing to the fact that Basso was his cousin. Nevertheless, my doubts are cleared by Sumari’s account in his cautioned statement. In the cautioned statement, Sumari confirmed meeting Basso Gwarehi and “Qaran Tslaa”, and stabbing Basso to death. I overruled the objection that the cautioned statement was involuntarily obtained. I equally rejected the objection that the cautioned statement was not certified in compliance with the provisions of section 10 (3C) of the Criminal Procedure Act [Cap. 20 R.E. 2022]. Generally, section 10 governs witness statements whose admissibility is limited by the provisions of section 10 (6) of the same Act embodying the rule against self-serving statements. On the other hand, cautioned statements are substantially governed by the provisions of sections 57 and 58 of the Criminal Procedure Act: Seko Samwel v R [2005] TLR 371; Ramadhani Salum v R, Criminal Appeal 5 of 2004. Generally, objections on appropriate certification of cautioned statements are grounded under sections 57 and 58. In Kazila Simbila v R, Criminal Appeal 122 of 1990, it was held that an objection as to certification must be raised at the trial court and generally “the mere omission to write such a certificate cannot, in our view, render the statement inadmissible.” In Jumapili Yalemela v R, Criminal Appeal 148 of 1989, the Court of Appeal dismissed as untenable the objection regarding certification of a cautioned statement that was only thumb-printed: Mr. Butaunga argues that since PW.4 did not certifiy per paragraph [57] (e) then Exh. P3 should be disregarded. However, the appellant has put his thumb-print at the end 3 of the record and just below the sentence “Nimesomewa na kuona ni sawa sawa” meaning “it has been read over to me and it is correct”. If that is so, Mr.Butayunga does not dispute it, then we are satisfied that paragraphs (a) to (d) have been complied with. The objection is only that PW.4 has not complied with paragraph (e) i.e. has not certiifed that paragraphs (a) to (d) have been observed. We are of the well considered opinion that the omission is not fatal. So we find Exh. P3 to be valid. One of the complaints in the leading case of Athuman Rashid v R, Criminal Appeal 138 of 1994 was that the cautioned statement was recorded in violation of the provisions of section 57 (3). The Court of Appeal maintained that a lack of certification does not by itself render a cautioned statement inadmissible unless the voluntariness or correctness of the statement is called into question: The provisions of sub-section (3) like other provisions of section 57 of the Act are designed to safeguard the rights and interests of the persons suspected by the police of committing criminal offences. In particular they seek to ensure that statements allegedly made to the police by such suspects are voluntary and free from error, and the courts will always strive to ensure that this object is achieved. But such spirit and endeavor cannot justify construing the word ‘shall’ in sub-section (3) as imposing a strict or mandatory requirement… It is not in every case that the absence of a certificate in terms of this sub-section will render the cautioned statement inadmissible. For instance, where the voluntariness or correctness of a cautioned statement is not disputed or challenged, there can hardly be any justification for its exclusion. We think that where a cautioned statement is objected to for want of a certificate as required by sub-section (3) of the Act, what the court should do is to ascertain on the voluntariness of the statement, usually by holding a trial within a trial. If the court is satisfied that the statement was made voluntarily and was recorded correctly it should proceed to admit it in evidence, but if it is not so satisfied then it should accordingly hold it inadmissible. 4 These authorities suggest that improper certification is a matter of weight and not admissibility and is generally an irrelevant consideration if the cautioned statement was voluntarily made and its contents are found to be true. A confession ruled to be voluntary must contain a true self-incrimination as was stated in Richard Lubilo and Another v R [2003] TLR 143 at 154: ….A confession may be true, that is, a correct account of what took place, but it may be false in the aspect of self-incrimination by the accused. Where there is likelihood of an untrue admission of guilt being made, the confession has to be excluded even if it is true in all other respects… It is my considered opinion that the cautioned statement contains not only detailed account of how Basso met his death but also peculiar facts regarding Sumari’s killing of Basso. He said he had long-standing animosity with Basso because he reported him five times to the police for selling local brew known as “gongo.” As a result, Sumari was arrested by a special team of police officers called “Simba Dume” from Babati Police Station. Sumari was equally displeased with Basso hitting Andrew Magara on the head by a stone. He was displeased with Basso portraying himself as “mwamba wa mtaa.” In his defence Sumari stated that he overheard that Basso fought with Andrew Magara. This admission during the defence at least suggests that Sumari not only offered the cautioned statement but also gave consistent facts believed to be true. This admission corroborates motive for killing. Sumari added in his defence that he had no conflict with Karani Tslaa who testified seeing Sumari stabbing the deceased to death. On these accounts, I have every reason to rule that the cautioned statement contains a voluntary and true account that Sumari confessed killing Basso. 5 Was there malice aforethought in the killing of Basso? I have struggled to see if Sumari was intoxicated at the time of the killing. Nevertheless, the cautioned statement details Sumari’s preparations. After being told that Basso had hit Andrea Magara with a stone, he set out to look for Basso. He found Basso at the community gathering area and returned home to take his machete. He went to Tsanji area where Basso usually passes on his way to his paramour. Soon Basso appeared in the company of Karani Tslaa and “Boay” Tslaa and seized the opportunity to stab him with the machete. It is evident that Sumari was on the lookout for Basso at Tsanji area and upon seeing Basso, he stabbed him on the neck. It is clear from the cautioned statement that the machete was sharpened specifically for the purpose of stabbing Basso. It is unclear as who sharpened the machete. In the cautioned statement, Sumari said that he sharpened it by himself. Emmanuel Philipo, the second prosecution witness, testified that he was the one who sharpened the machete on 1 April 2024. Whatever the case, the machete was very sharp given the nature of the injury found on Basso’s neck. The fact that Sumari was on the lookout for Basso at Tsanji area and stabbed Basso with a very sharp machete is clear evidence of express malice aforethought under section 200 (a) of the Penal Coode [Cap. 16 R.E. 2022]. I conclude that Sumari Dagharo is guilty of murder. Accordingly, I convict Sumari Dagharo of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022]. DATED at BABATI this 13th day of December 2024 6 F.M. MIRINDO JUDGE COURT: Judgment delivered in open court in the presence of the accused in person, his defence counsel, Mr, Raymond Kim, and in the presence of Mr. Benedict Kapela, Senior State Attorney. B/C: Ms. Anna Mathayo (RMA) present. COURT: Right of appeal explained. F.M.MIRINDO JUDGE MR. KAPELA: I have nothing to add. There is only sentence for murder. F.M. MIRINDO JUDGE 13/12/2024 MR. KIM: According to the legal position there is no mitigation. F.M. MIRINDO JUDGE 13/12/2024 7 SENTENCE Sumari Dagharo has been convicted of murder of Basso Gwarehi contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E 2022]. The offence of murder attracts a mandatory sentence of murder under section 197 of the Penal Code. Accordingly, the accused, Sumari Dagharo, is hereby sentenced to suffer death by hanging. It is so ordered. COURT: Right of appeal explained. F.M. MIRINDO JUDGE 13/12/2024 8