RULING PATRICK

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SUB-REGISTRY OF MBEYA AT MBEYA CRIMINAL SESSION CASE NO. 41182 OF 2023 REPUBLIC VERSUS PATRICK S/O SEVEN MSUKWA @MAPINDUZI MSEVEN MSUKWA S/O MSEVEN MAIKO……………………1ST ACCUSED JOACHIM S/O GIBSON MWASENGA…….…………………..2ND ACCUSED SAFARI S/O MBUGUYO KASANGA………….………………..3RD ACCUSED ISACK S/O EMMANUEL KALINGA…………….……………..4TH ACCUSED RULING 6th & 10th December, 2024 Nongwa, J. Patrick S/O Seven Msukwa @ Mapinduzi S/O Mseven Msukwa @ Msukwa Mseven Maiko, Joachim S/O Gibson Mwasenga, Safari S/O Mbuguyo Kasanga @ Maua and Isack S/O Emmanuel Kalinga @Tupak had been Charged with information of murder of one Matson S/O Yalinda Simfukwe C/S 196 and of the Penal Code, Cap 16. It has been alleged by the Prosecution side that on 14th November 2018 at Twinzi Village, Mbozi District, Songwe Region, the accused persons conspired and murdered one Matson S/O Yalinda Simfukwe. To prove their case, the Prosecution side have brought a total number of six witness, Waibulu s/o Yangson Mwampashe – (Pw1), Emely d/o Mwampashi (PW2) 1|Page Noel s/o Tuonyeshe Mwasenga (PW3), Sotel s/o Emmanuel Kusekwa (PW4) a Medical Doctor, Mbozi Mission Hospital, PF. 23146 A/Inspector Makumbi Kuboja Lagae (PW5) and H.3564 D/CPL Ibrahim (PW6) PW1 recalled on 14/11/2018, while at his home heard shouting, he followed and saw the deceased down while breading. He called deceased wives and children and took him to hospital where he was declared dead after medical examination, they were given the body for burial. PW2 Emely Yangson Mwampashi, wife of the deceased told the court that on 13/11/2018 Matson travelled to Mlowo to buy fertilizers and never came back home until the next morning when he was found by his children, on their way to school laying down and informed her. PW2 said went to the place her husband was laying and saw him still breathing although he was seriously injured on head and left side of the chest. He was taken to hospital where he was pronounced dead. PW2 also recalled that the first accused person and her husband had a long-time dispute relating to destruction of crops by cows belonging to her husband which led the 1st accused person being fined at the village office and kept claiming refund from deceased person. That the 1st accused promise to make the deceased disappear. On his part, PW3 recalled on 13/11/2018, in the morning, while at home Matson Simfukwe (the deceased) visited his house around 07:00 am 2|Page requesting for his company to buy fertilizers at Mlowo using the deceased motorcycle. They arrived at Mlowo around 10:000am, deceased went to NMB bank while he remained at the shops, after shopping they went to repair their motorcycle and around 16:00 started journey home, arrived at Twinzi around 20:00 hrs, parted ways he entered his home while the deceased headed to his home place riding a motorcycle, a distance estimated to 2 kilometers. PW3 went on explaining that the next day early in the morning he took his cows to the farm to cultivate, later on got the news from PW1 that his friend is dead. He went at crime scene and found none, went to hospital arriving there his friend had been pronounced dead. Being cross examined he admitted that the deceased was not a good motorcyclist that’s why he asked his company to Mlowo and he was the one who cycled to and from and let the deceased cycle home that evening. He did not know who murdered the deceased but he said to have been told by Waibulu that the deceased was evaded by robbers. PW4 Sotel s/o Emmanuel Kusekwa, Medical Doctor, Mbozi Mission Hospital, recalled to examined the deceased body covered with blood, big wound skull had raptured and brain came out mixed with blood on his head and another wound on the left side of the chest and concluded that the death 3|Page was caused by severe blood loss and brain damage. Filled the postmortem report and handed the same to Police while relatives were given the body for burial. The post mortem report of the deceased body was admitted as exhibit PI. Being cross examined, PW4 admitted that the wounds on the deceased lower head was inflicted by heavy blunt object that is why the skull raptured while the wound on the left side of the chest was deep inflicted sharp object. That even on road accidents a person can be pierced by sharp objects if there are iron bars, sharp object can be even a wood or iron bar, Iron rod, even side mirror when gets out of its position it can be sharp object, and that a person who contact motorcycle accident can get those wounds. A/Inspector Makubi Kuboja Lagae, testified as PW5 told the court that in 2018 was an investigator stationed at police Mbozi Vwawa, he was assignment to go to Mlowo police station where there were some suspects of murder, he was to interrogate one of the arrested suspects and he interrogated Safari Mbugunyo Kasanga @ Maua who admitted to have participated in murder of a person he did not know his names but named the rest of the accused persons to have been involved in the commission of the crime. Upon trial within trial the recorded cautioned statement was not admitted in evidence after its voluntariness being questioned. 4|Page Lastly was PW6, H.3564 D/CPL Ibrahim from the office of Songwe Regional Commander cybercrimes section. He testified to the effect that on 14/11/2018 at 08:00hours while in the office received order from OCCID Mbozi directing him to go to Mbozi Mission Hospital to attend the examination of the body of deceased in relation to the case at hand. That he started investigation by going on same day for burial, got some hints visited the crime scene and drew the sketch map. Through informers he discovered that there was conflict between the first accused person and the deceased concerning crop destruction by cows. That the first accused person was reported to the village office and fined, angry he became and promised to revenge. Through mobile phone network (CDR) of 2nd accused person who was arrested on informer’s information, they managed to arrest the rest of the accused person one after the other and seized their handsets. PW6 also tendered seizure certificates for the two handsets. Summarily that was all from the prosecution side. From the evidence tendered there is no doubt that MATSON S/O YALINDA SIMFUKWE was murdered on the material date on the way back home and as per exhibit P1 the PMR, and PW1, PW2, PW3, and PW4’s testimony, the cause death was severe blood hemorrhage caused by wounds on his lower head and left side of the chest. 5|Page It is upon close of prosecution case the court has to consider if there is a prima facie case that has been established for the defence to be called upon to enter defence. The burden is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction. Therefore, the question whether there is a case to answer cannot depend only on whether some evidence irrespective of its credibility or weight, sufficient to put the accused on its defence. In the case at hand, the death of MATSON S/O YALINDA SIMFUKWE has been proved to have been unnatural, what remains is who murdered the him, the only witness that connects the accused person with this offence is that of PW2. However, clearly PW2 is just suspecting the 1st accused person, and this court cannot rely on suspicion and convict. The 1st accused person, was not caught red handed but PW2 wife of the deceased claim there was quarrels between the deceased and 1st accused person who then promised to cause the deceased disappear, however when asked by defence side if she ever reported the threat anywhere, she said no. Therefore, PW2’s testimony is based on suspicions. In Lidumula s/o Luhusa @ Kasuga vs 6|Page Republic (Criminal Appeal 352 of 2020) [2021] TZCA 418 (26 August 2021) the court stated; ‘It is a principle of law that suspicion, however grave, is not a basis for a conviction in a criminal trial.’ [See similar position the case of MT. 60330 PTE Nassoro Mohamed Ally vs Republic, Criminal Appeal No. 73 of 2002 (unreported), Marecha Mashala vs Republic, Criminal Appeal No. 447 of 2019 [2023] TZCA 123 (17 March 2023; TanzLII) and Hekima Madawa Mbunda & Another vs Republic, (Criminal Appeal No. 566 of 2019 [2022] TZCA 138 (24 March 2022; TanzLII)]. From the evidence, the prosecution sought to prove the case against the accused persons exclusively by circumstantial evidence as no single witness had witnessed the occurrence in which the deceased was forced to retire on earth. In dealing with circumstantial evidence, the Supreme Court of India in Balwinder Singh v State of Punjab, 1996AIR 607, had this to say: 'In a case based on circumstantial evidence the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.’ [Emphasis supplied.] 7|Page Also, in R. V. Kipkering Arap Koske and Kimure Arap Matatu (1949) 16 E.A.L.R.135, the Eastern Africa Court of Appeal stated that in order to justify, on circumstantial evidence, the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than of his guilt. Again, it is the duty of the prosecution to prove facts which justify the drawing of this inference from the facts to the exclusion of any reasonable suggestion of innocence. The burden never shifts to the accused person In our jurisdiction similar position was stated in Ally Bakari and Pili Bakari v s R. [1992] TLR 10, the Court stated: ‘Where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred.’ In addition, the learned author SARKAR ON EVIDENCE, 15th Ed., 2004, p.66-68, pertinently observed that: ‘Where circumstances are susceptible to two equally possible inferences, the inference favouring the accused rather than the prosecution should be accepted.’ 8|Page Therefore, the inference to be drawn from the circumstances of the case at hand do not irresistibly point to the guilt of the accused persons and to no one else as the perpetrator. Another piece of evidence is from PW5 who said recorded cautioned statement of the 3rd accused who mentioned his fellow accused. I understand tat his attempt to introduced into evidence hit a snug after objection from the defence counsel which was sustained by this court. In absence of statement of the accused person which connects them with the offence, evidence of PW5 that becomes hearsay deserving no more consideration by a court of law. Even his oral evidence did not connect the accused person with the murder of Matson S/O Yalinda Simfukwe as he was clear that the 3rd accused did not know the name of a person they murdered. In the circumstances, it cannot be said the 3rd accused narrated to PW5 being the one who murdered Matson S/O Yalinda Simfukwe. See James s/o Msumule Jembe Others vs Republic, Criminal Appeal No. 284 of 2021 [2024] TZCA 176 (13 March 2024; TanzLII) Connected to above is conduct of the 1st accused, according to PW6 he disappeared after the incident are were tracing him through CDR. That he kept migrating from one place to another until when was arrested on 17/9/2023. His evidence is silence on who gave the 1st accused number or 9|Page his wife to trace her. As I have hinted earlier his connection to the death of Matson s/o Yalinda Simfukwe was based on suspicion evidence of PW2. PW5 was candid that the hand set they seized from 2nd accused disclosed no offence. Clearly, the prosecution evidence in this matter at hand is that which if no explanation is given by the accused person on defence, no tribunal can convict him. Section 293 (1) of the CPA, provides that; ‘Where the evidence of the witnesses for the prosecution has been concluded, and the statement, if any, of the accused person before the committing court has been given in evidence, the court, if it considers after hearing the advocates for the prosecution and for the defence, that there is no evidence that the accused person or any one of several accused person committed the offence or any other offence of which, under the provisions of sections 300 to 309 of this Act he is liable to be convicted, shall record a finding of not guilty.’ It follows therefore, the law directs the court to acquit the accused persons where, at the end of the prosecution case, the court is satisfied that no prima facie case has been established, so is the case at hand. I doubt if at all the evidence presented by the prosecution in this case is one which a reasonable tribunal properly direct its mind to the law and 10 | P a g e evidence, could convict the accused person if no explanation is offered by defence. It is the ruling of this court that, the court is satisfied that no prima facie case has been established by the prosecution against the accused person. The accused persons are therefore acquitted forthwith under Section 293 (1) of the Criminal Procedure Act, Cap 20 R.E. 2022. The accused persons; PATRICK S/O SEVEN MSUKWA @ MAPINDUZI S/O MSEVEN MSUKWA @ MSUKWA MSEVEN MAIKO, JOACHIM S/O GIBSON MWASENGA, SAFARI S/O MBUGUYO KASANGA @ MAUA and ISACK S/O EMMANUEL KALINGA @TUPAK be released immediately unless lawfully held for other lawful cause. It is so ordered. V. M. NONGWA JUDGE 10/12/2024 Dated and Delivered at Mbeya this 10th December, 2024 in presence of Mr. Joseph Mwakasege, Mr. Ignas and Ms. Tea Mshana-SAs for the Republic 11 | P a g e and the accused persons together with their advocates Mr. Simon Mwakolo and Mr. Jackson Ngonyani, Mr. Baraka Mbwilo, Mr. Nickson Kiluwa and Ms. Zawadi Earasto. V. M. NONGWA JUDGE 10/12/2024 12 | P a g e