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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL SESSION CASE NO. 115 OF 2022 REPUBLIC VERSUS 1. EMMANUEL PATSON MWESYA 2. DAVID SIMON MWALINDU @ASHRAF JUDGMENT Date: 23 October 2024 & 22 November 2024 SINDA, J.: Emmanuel Patson Mwesya and David Simon Mwalindu are together charged for the offence of murder contrary to Section 196 and 197 of the Penal Code, Cap 16, R.E. 2019 (the Penal Code). It was alleged that on 1 January 2022 at Isangawana village within Chunya District in Mbeya Region, the accused persons murdered Lufingo Asumwisye (the Deceased). When the charge was read over and explained to the accused persons, they denied the charge and the facts constituting the offence. Hence, the case had to go full trial. 1 It is undisputed that the Deceased died unnaturally. The evidence presented by the prosecution revealed that the Deceased died of excessive bleeding from multiple cut wounds on his head. In addition, all witnesses from the prosecution and defense testified to the unnatural death of the Deceased. Now, the question is whether the accused persons committed the offence they stand charged with. In proving its case, the prosecution called nine (9) witnesses. The defence called two (2) witnesses that it the accused persons themselves. At the hearing, the prosecution was represented by Ms. Veronica Mtafya, Ms. Veneranda Masay and Mr. Dominick Mushi, learned State Attorneys. The accused persons were represented by Mr. Godwin Mwakyusa and Mr. Nickson Kiliwa, learned counsels. The prosecution’s evidence centered on nine witnesses PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8 and PW9 as follows: PW1, Mr. Adam Asumwisye stated that the Deceased was his brother. He further stated that the Deceased was a peasant and a motorcycle driver (bodaboda). That, the Deceased had three assistants at his farm i.e. Emma, 2 Frank and Nicholaus who lived at his farm. That, on 1 January 2022 at around 19:00 hours, PW1 was informed by the chairman of Mkange Hamlet one Ramadhani Habib Mtokambali (PW6), that the Deceased was killed at his farm. PW1 together with some village leaders and the neighbours went to the crime scene and found blood near the door of a burner used to dry tobacco. They also found the body of the Deceased in a pit latrine, buried upside down. That, they obtained two machetes covered in blood at the anthill (kichuguu). That, the doctor and the police officers came three hours after PW1 had arrived. After examination, the doctor said the cause of death was loss of too much blood due to the head injuries inflicted to the Deceased. That, he helped the police to draw a sketch map. PW1 added, during the entire ordeal the accused persons herein were not at the crime scene. During cross examination, PW1 further explained that he led the police in drawing the sketch map only at the store area. He also explained the last time he went to the Deceased’s farm was four months before the incident. At that time, the accused persons were not working at the Deceased’s farm. Additionally, he stated that the body of the Deceased was examined on 2 January 2022 and not on the night of 1 January 2022. 3 PW2, Zera Asumwisye, testified that the Deceased was her brother who died on 1 January 2022. That, the deceased was a farmer in Mkange hamlet and had three assistants including the first accused. On 1 January 2022, she passed by the house of the Deceased and found the first accused at the door of the store where the Deceased kept the maize. PW2 testified that the first accused was on a motorcycle make Fekon MC 776 DBS, that was owned by the Deceased. On the other side of the house, PW2 saw the second accused speaking on the phone. PW2 then continued with her journey. During cross examination, PW2 stated that she lived with the first accused in 2005 at her father’s house. That, the first accused was employed by the Deceased. However, PW2 testified that she did not know the second accused before the incident. PW2 stated that she did not take any action when she saw the first accused at the Deceased’s house because she knew him as the Deceased’s worker. PW3 was PF 19271 Inspector Oscar Msangawale. He testified that on 20 March 2022, he was working as a police officer at Chunya District Police Station, in the investigation department of criminal cases. He was tasked to go to Tunduma to investigate the first accused. Upon arrival, PW3 4 introduced himself to the first accused and took him to a separate room for interrogation. He explained the rights to the accused and the accused agreed to give his statement on his own. After that, the statement was read over to the accused then both the accused and PW3 signed the document. In his statement, the accused confessed to killing the Deceased together with the second accused. The reasons being that the Deceased replied arrogantly to the accused persons after they demanded their payments. That the next day, PW3 went back to Chunya with the first accused. On 26 March 2022, the first accused agreed to show the police where he had committed the offence, at the Deceased’s farm within Mkange hamlet. When they got there, and in the presence of the village leaders, locals and the police, the first accused person explained how the crime was committed. They later went back to the ward office where the additional statement of the accused was taken. That, on 8 April 2022, PW3 received information that the second accused was arrested at Black area in Tunduma, Tanzanian side. That, PW3 found the second accused with a motorcycle make Fekon MC 776 DBS. The motorcycle was seized using a search and seizure form. The second accused person and the motorcycle were taken to Tunduma Police Station. 5 On 9 April 2022, they went back to Chunya. On 14 April 2022, they left Chunya police station with the second accused person and went to Mkange hamlet. The second accused person showed them the crime scene and explained how they killed the Deceased together with the first accused. Then, they returned to the ward office of Isangawana where the additional statement of the second accused person was taken. PW3 prayed to produce the cautioned statement of the first accused, the motorcycle and search and seizure certificate, which were tendered and admitted in court as Exhibit PE1, Exhibit PE2 and Exhibit PE3. During cross examination, PW3 stated that he is not the investigator of the case and he was not present when the first accused was being arrested. Also, he was not the one that took the cautioned statement of the second accused. PW4, was Jessam Menard Nyato, testified that he is a medical doctor and in 2022, he was working in a Government dispensary in Lupa Tingatinga. On 2 January 2022 at 14:00 hours while at work, he received a call from Lupa Tingatinga Police Station and was informed of a murder incident in Isangawana village. That, a body was found and he was supposed to conduct an examination. After arriving at the crime scene, he 6 was shown the body of the Deceased in a pit latrine. The body was retrieved, and he conducted a head to toe examination. He found the cause of death to be over bleeding from the head injuries and traumatic brain injury caused by a sharp object. PW4 then filled a postmortem report. PW4 prayed to produce the postmortem report, which was tendered and admitted in court as Exhibit PE4. During cross examination, he stated to have been called when the body was found and was examined on 2 January 2022. He further explained that he did not mention who killed the Deceased. PW5, Obed Leonard Mwambenga, testified that he is a member of the village council. On 1 January 2022, he heard of the Deceased’s death. The news was confirmed by Ramadhani Mtokambali (PW6). On 2 January 2022, they went to the crime scene and saw the Deceased body and all circumstances surrounding the crime. That, from 15:00 hours, the police and doctor arrived and conducted their inquiry. The Deceased body was thereafter carried back to the village for burial. That, on 14 April 2022, the police arrested the second accused and brought him to the ward office. PW5 and the police left together with the second accused, who led them to the crime scene and showed his involvement in the murder of the 7 Deceased. He added, that where the body was found on 2 January 2022 is exactly where the second accused showed them after he was arrested. During cross examination, PW5 stated that his evidence was mostly hearsay and that when he arrived at the crime scene the body of the Deceased was already found. He further explained that he was not involved in finding the body of the Deceased and machetes. Also, he doesn’t know the first accused and could not tell whether he was in court. PW6, Ramadhani Habib Mtokambali stated that he is the chairman of Mkange hamlet. That, on 1 January 2022 he received a call from Miti Abdallah Masamali who informed him of the incident concerning the Deceased. PW6 went to the crime scene with two other members of the village council. Once there, he found people including another worker of the Deceased. There was blood and PW6 found two machetes covered in blood at the anthill. He then informed the leaders and police about the incident. It wasn’t until 2 January 2022 when PW6 identified the Deceased body, after the police came and removed the body from the pit latrine. Then, the doctor and police continued with other procedures. 8 He continued, that the accused persons separately and on different dates, that is on 26 March 2022 and 14 April 2022 were taken to the village office of Isangawana by the police in relation to the murder of the Deceased. Each of the accused confessed to having killed the Deceased and led the police together with the village council members to the crime scene where they explained how they executed the murder. PW6 also mentioned that both the accused persons were registered at the village office as workers at the Deceased’s farm. During cross examination, the witness stated that the Deceased registered three workers at the village office, including the two accused persons. He also stated that he didn't know the whereabouts of Miti Abdallah and Nicholous when the murder took place. PW7, G6085 Detective Coplo Terece, stated that he is a policeman at Tunduma Police Station. On 8 April 2022, he took part in the arrest of the second accused who was found in Black area, Tunduma. The second accused was found with a motorcycle, Fekon with registration number MC 776 DBS and chasis number LDAPAK0B9LGD06359. That, the second accused said to have gotten the motorcylce from a murder he committed in 9 Chunya. The second accused person and the motorcycle were thereafter taken to Tunduma Police Station. During cross examination, PW7 stated to be among the people who arrested the second accused and the motorcycle. However, he did not sign the seizure certificate. He also stated, he was not aware whether the second accused wrote a statement at Tunduma Police Station. PW8 one F4453 Detective Sergent Nyaga stated that in 2022 he was working as a police officer at Chunya Police Station in the investigation department. On 8 April 2022 they went to Tunduma with other policemen to arrest the second accused. After the arrest, they went with him to Tunduma Police Station together with a motorcycle he was found with. PW8 then took the second accused to an interrogation room and took his cautioned statement after telling the accused his rights. The second accused purportedly confessed to be involved in killing the Deceased, together with the first accused. On 14 April 2022, the second accused called PW8 and told him he wanted to take them to the crime scene. PW8 informed his superiors and they went to the crime scene, led by the second accused. They first reported to 10 the ward office of Isangawana. While at the crime scene, the second accused showed how the offence was executed. He was then taken back to the ward office and PW8 took the accused’s additional statement. PW8 prayed to produce the cautioned statement of the second accused, which was tendered and admitted in court as Exhibits PE5. During cross examination, the witness stated no force was used to make the accused admit to the offence. He also stated that he was not the investigator of the case but he was present whey they arrested him. PW9 one A/Insp Vicent Gervas Buyuya, stated in 2022 he was working at Lupatingatinga Police Station in Chunya as the police in charge and head of investigation. On 1 January 2022, he was informed of the murder incident in Mkange hamlet. On 2 January 2022, they went to the crime scene accompanied by a doctor (PW4). PW9 wrote a certificate of seizure for the two machetes found at the anthill. He stated, the ones that showed him around the crime scene were the deceased’s relatives and remaining worker, one Nicholaus. Thereafter, investigation and examination were done by the police and the doctor. PW9 also drew a sketch map of the crime scene, with the help of PW1. Nicholaus stated, he 11 lived at the farm with the accused persons but they disappeared after the incident. On different dates the accused persons were arrested and separately taken to the crime scene to show and explain the substance of the offence. While at Chunya Police Station, PW9 requested the deceased’s wife to bring the blue card of the motorcycle (Exhibit PE3), which the second accused was found with. The blue card still bore the name of the previous owner, Dotto Bilal. PW9 prayed to produce the seizure certificate for the machetes, two machetes, sketch map of the crime scene and the registration card (blue card) of the motorcycle, which were tendered and admitted in court as Exhibit PE6, Exhibit PE7, Exhibit PE8 and Exhibit PE9. During cross examination, he stated he was the investigator of the case. That the machetes brought before the court have no blood. He also mentioned he did not send the machetes to the government chemist for testing. PW9 stated that he did not write a date on the sketch map but it was drawn on 2 January 2022. Following a ruling on a prima facie case, the accused persons were invited to enter their defense. 12 DW1 one Emmanuel Patson Mwesya, stated that he lives in Tunduma, Momba. His main activity is selling eggs in Black area, Zambia. He was arrested on 20 March 2022 in Chapwa and taken to Tunduma police station. On 23 March 2022 he was taken to Mbeya Central Police Station and on the evening of 24 March 2022 he was taken to Chunya Police Station. DW1 stated in all police stations, he was beaten using mace and whips and told to explain what happened in Chunya. When he had no answers, he was beaten some more. On 25 March 2022, during interrogation, Msangawale (PW3) came with a pen and papers and DW1 was told to sign. When he refused, he was beaten. He reported the beating and injuries to the in charge of the police station, to no avail. He was forced to sign the papers and taken to court on 8 April 2022. As for the second accused person, he stated to have met him for the first time when he was taken to prison and to court. During cross examination, DW1 stated that he first knew of the murder when the charge was read over to him at the District Court of Chunya. DW1 was also of the view that the prosecution failed to call material witnesses, that is Nicholaus and Miti Abdallah. With regards to scars, he stated the scars on his leg was caused by Msangawale (PW3). To conclude, 13 he stated to not have shown evidence that on the material date he was in Tunduma. DW2, DAVID SIMON MWALINDU stated that he lives in Tunduma where he was a small businessman. That on 8 April 2022 while at Old Nakonde, Zambia he was arrested by the police and was taken to Old Nakonde Police Station, Zambia. Moments later he was taken to Tunduma Police Station. He was taken to the interrogation room which had a chair, table, pen, iron bar and mace (rungu). He was asked about the motorcycle. When he failed to answer he was beaten. On the same day he was taken to Mbeya Central Police station and on 12 April 2022 he was taken to Chunya Police Station. In Chunya after interrogation, they wanted him to sign papers. Since he was not aware of the content, he refused and was beaten. DW2 stated he had never gone to Mkange hamlet to show the crime scene. Concerning the first accused, DW2 stated to have met him for the first time when he was brought to court. He went further by saying that he has never worked for the Deceased. DW2 mentioned that he was not caught with the motorcycle (Exhibit PE3). He also mentioned, PW1 did not identify him in court. 14 During cross examination, DW2 stated he was not arrested at the crime scene and no exhibit was brought to prove he worked for the Deceased. He also mentioned that he did not give any evidence to prove that on 1 January 2022, he was at Tunduma. Having heard witnesses from both sides also considering exhibits put forth before this court, the pertinent issues to be discussed are: First, whether the accused persons worked for the Deceased. Secondly, whether the accused persons killed the Deceased, Lufingo Asumwisye. Thirdly, whether the prosecution discharged their duty in proving the case as required by the law. Before discussing the issues raised, I think it is important to determine whether the deceased died an unnatural death. Records show that the deceased was found dead in his farm, his body buried upside down. He had multiple cut wounds on his head, proposing he was attacked with a sharp object. This goes hand in hand with the doctor’s observation (PW4), who examined the body at the crime scene and filled a Post Mortem report, which was admitted as Exhibit PE4. Hence, this goes to show that the death of the Deceased was unnatural in nature. 15 That aside, it is trite law that when a charge of murder is preferred against an accused person, the onus is always on the prosecution to prove not only the death of the deceased but also the link between the alleged death and the accused person. See: Mohamed Said Mutula vs Republic, [1995] TLR 3. Considering the evidence on record, I can confidently say that the prosecution presented mainly one kind of evidence in proving the offence against the accused persons. That is, circumstantial evidence. Mainly because there were no eye witnesses who saw or witnessed the accused persons killing the Deceased. Nonetheless, a number of court decisions have ruled that circumstantial evidence is the best evidence in criminal trials. In the case of Hilda Innocent vs Republic, Criminal Appeal No. 288 of 2019 that cited the case of Republic vs Sabudin Merali & Umedali Merali, Uganda High Court Criminal Appeal No. 220 of 1963 (unreported), it was stated: "…it is no derogation to say that it was so; it has been said that circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics" 16 Now, addressing the first issue raised. In my opinion, it is vital to established whether the accused persons were working for the Deceased in his farm located in Mkange Hamlet. Also whether they were present within the farm when the crime was committed. In proving those facts, two witnesses were important but they were not brought to testify in court. These are Miti Abdallah and Nicholaus Melele, the former being the remaining worker in the deceased’s farm. Naturally, that would draw an inference adverse to the prosecution as propounded in the case Baya S/O Lusana vs Republic, Criminal Appeal No. 593 of 2017. However, the prosecution still had a trick up their sleeves. That is, the evidence of PW6, Ramadhani Habib Mtokambali, a Chairman of Mkange hamlet. He testified that the accused persons were registered at the village office as workers at the Deceased’s farm. Accordingly, they were still working for the Deceased at the time of his death. On the other hand, the accused persons claimed they have never worked for the Deceased. They also raised a concern that no proof, say register, was brought to court from the village office to prove the accused persons 17 were registered as such. That, they were not even arrested at the crime scene. The first accused stated that he was arrested in Chapwa area and the second accused arrested in Old Nakonde area. After the above short demonstration, it follows that the accused persons raised the defense of alibi. I am aware that once the defence of alibi has been raised, the duty to disprove such alibi is bestowed upon the prosecution. Primarily, if such defence is preceded by a notice to the prosecution. The same was discussed in the case of Richard Otieno @ Gullo vs Republic, Criminal Appeal No. 367 of 2018, that stated: “For the foregoing authority, we hold that the trial court erred to shift the burden of proof of the alibi to the appellant. Since the appellant gave notice of his alibi, the burden shifted to the prosecution.” Also see: Shafii Abdallahaman Mbonja vs Republic, Criminal Appeal No. 104 of 2017. Read together with Section 194 of the Criminal Procedure Act [Cap 20 R.E 2022] (the CPA). Regrettably as I revisited the records, there was no notice given to the prosecution. Thus, the accused persons had the duty to prove their alibi. Sad to say, they failed miserably. As there were neither witnesses nor exhibits to collaborate their story. Therefore, I noted their defence as 18 required by the law. But, I will not consider it as the same has not been proved. In that respect, and going back to PW6, this witness being a leader and a person with no interest in the matter, I find myself lured to believe his evidence whether proof of registration was brought in court or not. Besides, no reason was made apparent before this court not to be believe him. With that, I will refer to the case of Charles Haule vs Republic, Criminal Appeal No. 250 of 2018 which cited the celebrated case of Goodluck Kyando vs Republic [2006] TLR 363, that provides: "It is trite law that every witness is entitled to credence and must be believed, and his testimony accepted unless there are good and cogent reasons for not believing a witness." As a result, and based on what I have discussed above, I am of a firm view that both accused persons were still working for the Deceased around the time of his death. Moving forward, I will now address the issue on whether the accused persons killed the Deceased. On the material date, the accused persons were seen at the residence of the Deceased in Isangawana village by PW2, the deceased’s sister. The first accused was sitting on the motorcycle 19 known to be the Deceased’s property. Few hours later, news broke on the death of the Deceased. It must also be remembered that the same motorcycle was found with the second accused when he was arrested by PW3 on 8 April 2022. Both witnesses, that is PW2 and PW3 identified the said motorcycle (Exhibit PE3) as Fekon with registration number MC 776 DBS, red in color, with green covers. The Deceased’s wife in cementing ownership of the motorcycle by the Deceased, brought a blue card (Exhibit PE9) to PW9 that has similar details as explained by the witnesses mentioned above. The blue card has the names Dotto Bilal contrary to Lufingo Asumwisye, but it was explained that the Deceased did not change ownership of the said motorcycle after he bought the same from the previous owner. All said and done, from where I am standing, the circumstances of what have been mentioned above do not favor the accused persons. The fact that they were nowhere to be found when the body of Lufingo was discovered and also the second accused was in possession of the Deceased’s motorcycle, suggests that they had something to do with the murder. 20 Moreover, I took cognize of the cautioned statements of the accused persons which were admitted before this court as Exhibit PE1 and Exhibit PE5. In both statements respectively, the accused persons admitted to have murdered the Deceased. Reason being, he refused to pay their wages. After killing him, they both stated to have taken the motorcycle of the Deceased and rode to his home. It does not escape me that when a cautioned statement is objected during tendering, once admitted it has to be corroborated with other evidence on record so as to secure conviction. The same was discussed in the case of Rubeni Lazaro Mafuta @ Mbunde & 3 Others vs Republic, Consolidated Criminal Appeal Nos. 503 of 2018, 240 of 2020 and 242 of 2020, that provided: “However, like the first appellant, the second, third and fourth appellants also retracted their cautioned statements. In the circumstances, on the authority of Tuwamoi v. Uganda (supra), the trial court ought to have warned itself on the dangers of founding the convictions on the retracted confessions of the appellants without corroboration, failure of which we are of the considered view that the appellants were prejudiced.” As stated above, the accused persons in their cautioned statements stated to have killed the Deceased. Then they took his motorcycle and went to his home. This evidence is corroborated by the evidence of PW2 who testified 21 to have found the accused persons at the Deceased’s residence with the Deceased’s motorcycle. The evidence is also corroborated by PW3, PW7 and PW8, the policemen that arrested the second accused with the same motorcycle in Tunduma. At this juncture, I find that that cautioned statements by both accused persons were corroborated by other evidence on record. With that, undoubtedly the confessions of the accused persons fit perfectly with the circumstances of the case. Therefore, the second issue is also decided in affirmative. With regards to the last issue, as to whether the prosecution proved their case at the required standard. It is a common known principle of law that the duty to prove a case in criminal cases is upon the prosecution and the standard is beyond reasonable doubt. This has been discussed in a number of decided cases. See: Issa Reji Mafita vs Republic, Criminal Appeal No. 337 “B” of 2020 and Sophia Emmanuel vs Republic, Criminal Appeal No. 443 of 2017. From the cautioned statements, it was stated the reason for killing the Deceased was because he refused to pay money to the accused because 22 he did not have money at that particular moment. One might be under the impression that the accused persons were provoked to commit the said offence, which would result to manslaughter. Conversely, I wish to borrow a leaf from the case of Hamis Chuma @ Hando Mhoja vs Republic, Criminal Appeal No. 36 of 2018, that provided: “It must be emphasized that in provocation, a finding must be made as to whether the words uttered or conduct demonstrated by the deceased were provocative to an ordinary person of the community to which the accused belonged, which we hold is not the case in the instant appeal.” See also: Mgonchori (Bonchori) Mwita Gesine vs Republic, Criminal Appeal No. 410 of 2017. In light of the above provision and with reference to what is stated in the cautioned statements, it is my belief that the Deceased did not utter words or act in a way that would provoke the accused persons to commit such atrocious acts against him. Based on the Post Mortem report, Exhibit PE4, the Deceased had twelve (12) cut wounds on his head that were caused by a sharp object. This goes to show, that the accused persons already had malice aforethought (mens rea) and then executed the offence (actus reus). For that reason and judging from the intensity of the offence, provocation becomes rather immaterial. Consequently, the discussed 23 evidence from the prosecution side proved the offence of murder as charged against the accused persons. Needless to say, I did not pay attention to evidence of PW1 which contained a lot of contradictions. Especially on the date when the police and doctor conducted their inquiry. Likewise, I did not consider some of the exhibits, such as PE7, the two machetes allegedly found at the crime scene. Because the said exhibits were not taken to a government chemist for testing, to confirm whether the blood on the machetes matches that of the Deceased. Be that as it may, still in the absence of the above, the available evidence is enough to strengthen the prosecution’s case. Having found the deceased died an unnatural death and the three issues raised being decided affirmatively against both accused persons, it is my belief the prosecution proved their case at the required standard. Consequently, I therefore find the accused persons Emmanuel Patson Mwesya and David Simon Mwalindu guilty for the offence of murder they stand charged with under section 196 and 197 of the Penal Code, Cap 16, R. E. 2019. 24 I proceed to sentence Emmanuel Patson MWesya and David Simon Mwalindu to death by hanging. I further direct that Exhibit PE3, the motorcycle and Exhibit PE7, the machetes be returned to Chunya Police Station. Also, the police will hand over Exhibit PE3 to the family members of the Deceased. Right to appeal explained. DATED at MBEYA on this 22 Day November 2024. A. A. SINDA JUDGE 25