PAARA 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.181 OF 2022 REPUBLIC VERSUS SIMON LUKAS PAARA@ MBARAKA JUDGMENT Date of last Order:12-11-2024 Date of Judgment: 10-12-024 B.K.PHILLIP,J The accused herein is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, [Cap 16. R.E.2019]. The information filed in this court reads as follows: Simon Lukas Paara @ Mbaraka on the 7th day of August 2021 at Pongwe, Chalinze area within Bagamoyo District, in Coastal Region did murder one Tatu Bakari Mwelekwa. The facts of the case presented by the learned State Attorneys at the Preliminary hearing are as follows; On 7th August 2021, the deceased took rice to the milling machine 1 as she wanted rice flour. On the way, the accused and his colleagues attacked her. They raped and Killed her. The deceased body was later, in the evening, found by the family members on the way. Alongside her body were found the deceased's clothes, a stick, a club, and a small tin with tobacco powder, which were later identified as belonging to the accused. The incident was reported to Chalinze Police Station. Police officers visited the crime scene, took the deceased body, and F.8691 D/SGT Willy drew the sketch map of the crime scene. On 8th August 2021, the accused was arrested by villagers and taken to Chalinze Police Station. During interrogations, the accused confessed raping and killing the deceased. Also, he recorded his confession before the Justice of Peace. A postmortem was conducted, and the report indicates that the deceased's cause of death was suffocation. On 13th August 2021, the deceased's relatives visited the crime scene and managed to find a mobile phone which was later discovered that it was used by the accused on 7th August 2021. The learned State Attorneys Gladness Mchami and Monica Mweri appeared for the Republic, whereas the learned Advocate Fredrick Charles represented 2 the accused. The prosecution presented ten (10) witnesses to prove its case, and the accused person was the sole witness for the defence case. The evidence adduced by the prosecution is purely circumstantial as none of the prosecution witnesses testified that he /she witnessed the accused committing the offence charged against him.PW2 G 4374 CPL Rashid, traffic police testified that on 8th August 2021, while at his work station at Boga area in Chalinze, at around 10.00 am, he was asked by people to assist them in taking the accused, who was suspected of having committed an offence of murder, to Chalinze Police station. He stopped one vehicle passing on the road and asked the driver to take him and the accused to Chalinze Police Station. PW9 Joseph Nkama Kayoboka was driving that vehicle. PW2 and the accused boarded in the vehicle. So many people around that area wanted to beat the accused. They tried to obstruct the vehicle and take the accused out of it. He instructed the driver to drive the vehicle at a higher speed. Some people followed them on motorcycles. On the way, he called his colleagues from Chalinze Police Station and informed them of his situation. When they reached the Msata area, they found a barrier placed by the people who wanted to beat the accused. They started throwing stones towards the vehicle. He had to get out of the vehicle with the accused. People attacked 3 the accused and him. The accused, the driver, and himself ( PW2) were injured. Luckily, his colleague PW3, Assistant Inspector John Japhet, arrived within a short time. He rescued them. The accused was taken to Chalinze Police Station, and other police officers remained behind to clear the way and maintain peace and order in that area. PW2's testimony was supported by PW3, Assistant Inspector John Japhet Shabushi, whose testimony was as follows; On 8th August 2021, in the morning, when he was at Chalinze police station, he was informed that there was a vehicle carrying an accused person blocked at Msonga area. People were attacking the accused, the driver, and the police officer accompanying the accused. He started going to Msoga area together with his colleagues. They took all necessary equipment, including tear gas bombs, and left in two vehicles. In the Msoga area, they found many people attacking the accused. Also, they found CPL Rashid, who was with the accused. The situation was chaotic, but they managed to rescue the driver, the accused, and CPL Rashid. They took the accused person in their car, and since he was injured, they immediately took him to Chalinze Police Station to obtain a PF for taking him to the hospital. Other police officers removed the barriers and remained at Msoga to ensure safety in that area. 4 PW9 was Joseph Nkana Kayobola, a driver. He testified that on the 8th of August 2021, while on his daily activities, when he arrived at Boga area, he was stopped by a traffic police who requested him to take an accused person to Chalinze Police Station. The accused person and the traffic police boarded his vehicle, but there were so many people around that area who wanted to beat the accused and were trying to obstruct him from moving. The traffic police told him to drive at a high speed. At the Msoga area, he found a barrier. Thus, he was not able to move. The mob started throwing stones at him, the accused, and the traffic police. The accused and the Traffic Police had to get out of the vehicle and tried to hide behind it. The vehicle was damaged. However, within a short time, police officers from Chalinze Police Station arrived. They rescued them and contained the mob that was causing chaos. Finally, he managed to leave from that area. PW5 T 91 SGT Phillip testified that on the 8th of August 2021, he was the CRO in charge. He received the accused and exhibits found at the crime scene from CPL Willy ( PW7). He issued PF3 for the accused, who was taken to the Hospital, where he was admitted and discharged on 10th August 2021. 5 Moreover, PW 5 told this court that he kept those exhibits in the exhibit room until 21st September 2021, when F8691 D/CPL Willy took them and handed them over to the person responsible for keeping Exhibits. He had to keep the Exhibits because the police officer who was supposed to keep them was on leave. PW7, F8691 D/CPL Willy testified that he was the investigator of this case. He visited the crime scene and found the deceased lying on the ground along the road. At the crime scene, he saw a stick, club, and tin-containing tobacco powder. He took them. While he was at the crime scene, a person called Yorai Maumba told him that he had recognized the club, stick, and tin of tobacco powder that belonged to Simon Lukas Paara. Also, PW7 drew the sketch map of the crime scene ( Exhibit P5 ) and recorded the accused's caution statement (Exhibit P6), in which he admitted that he raped and killed the deceased. The testimony of PW7 was corroborated by PW8, Yorai Maumba, who told this court that the accused was his former employee. On the 8th of August 2021, he heard noises and people crying at night. He knew that bad things had happened. He decided to call his neighbor Bakari Said Mwelekwa 6 (PW.10), who told him that his daughter had been killed. He went to the crime scene and found the deceased lying on the ground. He saw a club, stick, and tin of tobacco powder belonging to the accused. He told the police officer at the crime scene that he recognized the exhibits found at the crime scene. They belonged to Simon Lukas Paara. He recognized those items because he knew the tree used to make the stick and the club. He told this court that it is the culture of Masais that everyone has his stick and club and that they usually know each other's club and stick. It is their culture. Furthermore, he told this court that the accused was his employee. He was taking care of his cattle. He participated in arresting him. He was arrested at the residence of a lady called Mama Anna. The deceased father, Mr. Bakari Said Mwelekwa, testified as PW10. In his testimony, he told this court that the deceased was his daughter. On the fateful date, she went to a milling machine by bicycle to grind rice since she used to prepare and sell bites made of rice flour, commonly known as "Vitumbua." They did not see her returning home until late hours, and that is when they decided to start looking for her. All the family members went to different places looking for her, including the milling machine, where the 7 attendant told them that he attended to her for quite a long time, and she left. On his way home, together with other family members, he found the deceased lying off the road in bushes. He saw the bicycle used by the deceased when going to the milling machine. The deceased was covered with a Kitenge. He raised the alarm, and his neighbors came. Finally, a police officer arrived at the crime scene. The deceased was taken to hospital. He identified the deceased at the hospital before the postmortem was conducted. PW1, an assistant medical doctor, Mr. Novatus Romaro Kasongo, conducted the postmortem. In his testimony, he told this court that he examined the deceased. She was identified by Bakari Mwelekwa ( PW10) and Mwanahamisi Kiwaja. Her body had bruises, her lungs were bluish, and her private parts indicated that there was penetration of a stiff item. The cause of death was suffocation. PW1 prepared and signed the postmortem report ( Exhibit Pl). PW6 was Hon. Hashim Mgaia Daudi, the Justice of Peace. His testimony was that on 10th August 2021 at 11.00 am, D/CPL Willy ( PW7) came to his office with the accused, Saimon Lukas Paara. D/CPL Willy informed him that the accused was willing to make his confession on the charge of rape and 8 murder. He received the accused in his office and recorded his caution statement in which he confessed that he murdered Tatu Bakari. He narrated to him how he raped and murdered the deceased. The accused was in good condition. His physical appearance showed that he had injuries on the face and at the nape. The injuries could be seen easily. He told him that he was assaulted by a mob. The police officers rescued him. After recording his confession, he (PW6) read it, and the accused confirmed it was correct. He tendered the accused's confession in court, which was admitted as exhibit P4. PW4 D.7742, Staff Sergeant Hassan, testified that he is responsible for keeping exhibits. On 21st September 2021, he received exhibits, including a stick, club, and tin-containing tobacco powder (Exhibit P3 collectively) from D/CPL Willy. He recorded them in the exhibit court register ( Exhibit P2). The particulars indicated in that register include the exhibit and the case number. He labeled them and gave them exhibit serial numbers. After closing the prosecution case, I ruled out that the accused had a case to answer. The accused was the sole witness in the defense case. He made 9 his defense under oath. His testimony was as follows: He was a cattle keeper hired to care for cattle. Before coming to Dar es Salaam, he was staying in his home village, Muguri, in Same District. When he came to Dar es Salaam, initially, he was employed by Mugwaju. He worked with him for fourteen (14) days. He was paid the sum of Tshs.30,000/= Later, he met Yorai Maumba ( PW8). He told him he was looking for a person to care for his cattle and would pay him a bull after six months. He agreed with PW8 to care for his cattle and started working with him on 9th July 2021. He worked with PW8 for ten (10) days, and then someone called Kilindoni came to take over the work because they were working by shifts. He stayed for seven (7) days waiting for his shift. On 9th August 2021, he spent the night in Changanyani village. He treated Yorai's cows the following day at Mama Anna's residence. After that, he was asked to wait for tea. While waiting for tea, many people, including the village leaders and Local militia, came to Mama Anna's residence. They arrested him. He asked them what was the matter. They did not tell him. They told him that he would know everything at the police station. They took him to Chalinze police station and left him there. It was around 11.00 am. He was assaulted severely by the police. He fainted, and when he regained consciousness, he found himself in a room. io He did not know what happened when he fainted. On the 10th of August 2021, D/CPL Willy ( PW7) brought him papers that had already been written. He asked if he could read and write. He told him that he did not know how to read and write. After that, he told him to sign those papers. He threatened him that if he refused to sign those papers, he would beat him again. He forced him to put his thumbprint on those papers. He did not know the information contained in those papers. After that, he took him to the District Court of Msoga, where he was charged with the offence of murder. Moreover, DW1 testified that none of the prosecution witnesses saw him killing the deceased. Their testimonies are mere hearsay. He does not know anything about this case. Exhibits P3 collectively do not belong to him. He denied having gone to Chalinze Primary Court and recorded the confession (Exhibit P5). He implored this court to do justice. In response to questions posed to him during cross-examination, DW1 told this court the following: He knows Yorai Maumba (PW8). He was his boss. Before being arrested, he was employed by PW8. They had a good relationship. He did not know PW9 and PW2 before. He just met them in Court. He had no disputes with PW2 and PW9, and they had no reason to lie 11 against him. Willy is the one who beat him. During cross-examination, he did not ask Willy about what happened to him at the police station. On 9th August 2021, he went to Dada Anna's residence. He had no dispute with Dada Anna. Dada Anna and Yorai knew each other. The mob did not assault him. As alluded to earlier in this judgment. The prosecution relied on circumstantial evidence. The position of the law is that for the court to convict an accused person relying on circumstantial evidence, the same must irresistibly point at the accused that he committed the offence facing him/her and excludes other persons. [See the Shaban Mpunzu @ Elisha Vs The Republic, Criminal Appeal No. 12 of 2002, and Sikujua Iddi Vs The Republic, Criminal Appeal No.484 of 2019 ( both unreported)]. PW 8 is a crucial witness in this case since his testimony connects the accused to the deceased's cause of death. He told this court that the items admitted as Exhibit P3 collectively, found at the crime scene, belonged to the accused person. He recognized them because the accused was his employee, so he used to see them with the accused. He knew the tree used to make the club and stick. If exhibits P3 collectively belonged to the accused person, it means that the accused person was at the crime scene with the 12 deceased before his death. PW8's testimony is corroborated by Exhibits P5 (The accused's confession) and Exhibit P6 (The accused's caution statement), whose contents show in detail how the accused killed the deceased. It is also noteworthy that PW8 told the police officer, PW7, immediately when he saw exhibits PW3 collectively at the crime scene that the same belonged to the accused even before the accused had recorded his confession and caution statement in which he explained how he raped and killed the deceased. This shows that PW8 was a truthful witness. It is 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. As I have elaborated above, the confession made by the accused person in this case is corroborated by the testimony of PW8, a neutral witness with no interest to serve, the accused's former employer, who had no grudges against the accused. It is incomprehensible that the justice of the peace could prepare a fake confession as alleged by the accused. Interestingly, the 13 confession (Exhibit P4) contains correct information about the accused's background as the same is exact as the ones he told this court during the hearing of the defence case. This irresistibly shows that the accused person recorded his confession before the justice of the peace. The above aside, PW8 also testified that the accused was nowhere to be seen on a fateful night. PW8 and other villagers tried to find him, and finally, he was informed that he was at Dada Anna's residence. That is when they made arrangements to arrest him. Upon being arrested, PW8 interrogated him, and he confessed to him that he raped and killed the deceased with his friends. I am aware of the position of the law that an accused person cannot be convicted based on the weakness of his/her defence. I have considered the accused's defense and am of the settled opinion that it has not shaken or created doubts in the prosecution case. A large part of the accused's defence supports the prosecution case. For instance, the accused admitted that PW8 employed him and that he was arrested at Dada Anna's residence. I have noted that in his defense, the accused just criticized the prosecution side for relying on circumstantial evidence since there was no eyewitness to the murder of the deceased, in ignorance of the fact that circumstantial evidence 14 can be used to convict an accused person under some specific circumstances. In the upshot, this court finds that the prosecution has proved the case against the accused beyond reasonable doubt. Thus, I hereby convict Simon Lukas para @ Mbaraka of the offence of Murder. Dated at Dar es Salaam this 10th day of December 2024 15