KAGERE ZAKARIA CRIMINAL SESSION GHM

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA AT SHINYANGA SITTING AT BARIADI CRIMINAL SESSION REF. No. 202405212000013456 REPUBLIC VERSUS KAGERE ZAKARIA @ CHACHA JUDGMENT 19th November & 3rd December, 2024. S.M. KULITA, J. The accused person, one Kagere Zakaria @ Chacha stands charged with the offence of Murder, contrary to Sections 196 and 197 of the Penal Code [Cap 16 RE 2022]. It is alleged that, on 5th February, 2023 at Dutwa village, within Bariadi District, in Simiyu Region, the accused person murdered one Ngolo Mazwa @ Kasili @ Neema. Facts of the case as presented by the prosecution, which gave rise to this trial are that; the accused and the deceased were husband and wife who were living together at Mwanza. That sometimes in 2022 due to family misunderstandings they got separated. The victim went to live with her mother at Dutwa in Simiyu Region. It happened that, the 1 accused was threatening the victim, for the reason that their marriage got broken due to the victim’s act of having love affairs with another man. The facts further provide that, when grievance grew bigger, on 5th February, 2023, the accused person went to Dutwa and followed the victim who was walking with her sister one Rahel towards their home. That, the accused started to chase them. Having so seen it, the two decided to run away as a means of escaping him. However, the accused managed to meet the victim. He cut her with sharp object to death. The incident was reported to Police. The Post Mortem investigation of the victim’s body revealed that, the victim got died due to loss of blood following the cut wounds that she had sustained. On 16th of December, 2023 the accused got arrested at Mabatini Market in Mwanza. The facts further reveal that when he was interrogated, the accused person confessed to have killed the victim. As such, the accused was arraigned to court for murdering Ngolo Mazwa @ Neema @ Kasili When the information of murder was read over to the accused person during the Plea taking and Preliminary hearing, he pleaded not guilty thereto. Further, on 18th November, 2024 when the case came up for trial, the information was reminded to the accused person who maintained his plea of not guilty. 2 In discharging the duty of proving the charge against the accused person, the prosecution summoned seven witnesses and tendered one exhibit. The evidence of the prosecution and defense side can be summarized as follows: The 1st witness for prosecution, one Jackson George (PW1) testified that, on 5th February, 2023 at 2200 hours he was sleeping at their home when he heard running steps towards their house. He added that, then he heard a door knock. Soon thereof, he heard something has fallen down that followed with silence. He got out and for the help of electrical light, he managed to see a female body lying with several body cuts. He decided to awake her mother who then raised an alarm which gathered a lot of people and police came. When cross examined, he replied that, he never saw the person who was chasing the victim before she fell down. Dr. Lameck Lushinge testified as PW2. His testimony is to the effect that, on 7th February, 2023 while at his office, he was assigned duty of examining victim’s body. He said that, the victim’s relatives identified the body to him and he went on examining the same. He said the victim’s body had a great deep wound on the head, cut with a sharp object. Victim’s skull was broken, brain got out of it, upper parts of the arms were also cut. He concluded that, loss of blood through those 3 wounds is what caused deceased’s death. He said that, after examination of the victim’s body, he filed a post mortem report. He then prayed to tender it to court and the same was admitted as exhibit P1. Shiwa Kimola testified as PW3. His testimony is to the effect that, he is a sub urb chairman and a brother of the victim. He stated further that, on 4th February, 2023 the victim called him and informed that she received threatening message to be killed by the accused person. The witness stated that, he arranged that they would go to report the same to police station. When that time reached, the victim told him that she had another person who would escort her. PW3, went on stating that, on 5th February, 2023 he got information that, the victim is dead. He thus got information from Raheli who was with the victim by the time they were attacked. He stressed that, Raheli told him that, they were chased by the accused together with another person whom she never knew him and lastly, she managed to see the accused person killing the victim while hidden at a nearby bush. He said that, Raheli managed to see the accused killing the victim with the help of moon and electrical light. When cross examined PW3 stated that, he did not witness the murder incident but he was told by Rahel. Kwandu Lameck testified as PW4. His testimony is to the effect that, she is the mother of the victim. She said that sometimes in 2022 4 the victim separated with her husband who is the accused herein. She said that, once, the two were living in Mwanza but after separation, the victim went to live with her at Dutwa. She went on stating that, the victim called her on 4th February, 2023 and informed her that, the accused had threatened through phone message to kill her. PW4 said that, she advised her to call his brother and go to report the matter to police station. She went on stating that, on 5th February, 2023 she heard an alarm. In it she found that her child had been killed. PW4 stated that, due to separation, the accused person kept threatening to kill the victim because she did not want to live with him. PW4 stated further that, by the time the victim was murdered, she was living with her sister one Rahel Mussa at a rented house and that it is Raheli who identified the killer at the scene of crime. When cross examined, she said that, she never saw threatening messages from the victim’s phone and that she never witnessed the killing. Rahel Musa testified as PW5. Her testimony is to the effect that, she was living at Dutwa with her sister, the victim herein. She said that, on 4th February, 2023 at night time, she was at their home when the victim who was by then at Dutwa center selling some fish, called her and wanted her to check outside the house to see whether there was any person out there. PW5 went on stating that, when she looked 5 outside, she saw the accused person together with another person whom she did not know. She said that, she managed to identify the accused, because there was moonlight and that they had hidden themselves at the farm with short maize. She went ahead stating that, as the accused and his fellow saw her, they ran away. PW5 said that, she informed her sister of what she saw but latter on, the victim went back home with an escort of two people. On the second day, 5th February, 2023 at 2200 hours when PW5 together with the victim were coming back to their home from Centre of the village, they met with the accused together with another man whom they did not know. They started running. The victim was running towards the house of Mussa while she was running towards a bush. PW5 stated that, she managed to identify the accused due to torch light and that she was nearby the accused person when she started cutting the victim with panga. She said that, it was only 15 meters distance from where she was hiding to the place where the accused killed the victim. PW5 added that, when people at Mussa’s house started getting out, the bandits ran away. She said further that, she mentioned the accused person as soon as people arrived for the incident. G 1730 D/CPL Budodi testified as PW6. His testimony is to the effect that, he is a police officer stationed at Simiyu police station. That 6 on 16th December, 2023 he was sent to Mwanza Region to arrest some suspects including this accused. He said this accused was a murder suspect. He went to Mwanza and reported at Nyakato police station before he went and managed to arrest the accused herein at Mabatini Market. He stated further that, after he had arrested him, he took to Nyakato police station for custodial purpose. He said after that, he went to arrest another person at Sengerema and managed to go back to Simiyu on 18th December, 2023. He added that, in his journey back to Simiyu, he was escorted by another policeman from Mwanza. When cross examined PW6 stated that, the accused person was arrested at Mabatini Martek where he was selling chicken. G. 1976 D/CPL Patric testified as PW7. His testimony is to the effect that, he is the investigator of this case. He was handled the case file on 6th February, 2023. He said that, he paid a visit at the scene of crime whereby he managed to take down statements of people who witnessed the crime. He said that, as they knew the suspect they thus started tracing him. He said that, on 18th December, 2023 another policeman informed him that he had already brought the accused person in their lockup. He thus, took the accused person for interrogation. From the interrogation, PW7 stated that, the accused confessed to have killed the victim. Lastly PW7 added that, his investigation has revealed that, 7 the accused person killed the victim for the reasons that, the accused confessed before him, he was seen at the scene of crime by Rahel and that, the accused killed because the victim did not want to settle their marriage conflict. When cross examined PW7 stated that, the accused person was mentioned on the 5th day of February, 2023 and that, they took long to arrest him because he was no where to be seen. Further, the witness admitted that in his in chief he never gave reason for their late arrest of the accused person. On these seven witnesses as I said earlier, the prosecution case got closed. In terms of the provisions of section 293(2) of the Criminal Procedure Act, Cap. 20, the accused person was found to have a case to answer. After being addressed in terms of section 293(3) of the CPA, Cap 20 the accused person opted to testify alone on oath as DW1. Kagere Zakaria Chacha testified as DW1. His testimony is to the effect that, the victim was his wife and that they were living together at Mwanza. He said that, he had paid dowery for marriage with his wife. He said further that, his wife’s mother used to visit them at Mwanza contending that she was never give dowery for their marriage. DW1 stated that, it appeared when he was away from home, his wife’s 8 mother went and left with his wife to their home for the same reason that, he never paid dowery. He complained to his wife’s father who promised to settle it. In settling the same, it was agreed that, he be given his dowery and issue of marriage. DW1 stated that, lastly, he was given only his child back but not dowery. Then, DW1 stated that, he just wondered that he came to be arrested and taken to Simiyu for the crime he did not commit. He denied to have committed murder of the victim contending that, since when the victim left him, he never had communication with. Further, the accused person denied to have confessed killing the victim. That marked the end of both parties’ evidence. In view of the above evidence, the following issues call for determination: - 1. Whether the victim was met with unnatural death (if yes) 2. Whether the accused person is responsible for that death of the victim (if yes) 3. Whether the accused person with intention/malice aforethought killed the victim. Concerning the first issue, whether the victim was met with unnatural death, firstly, from both sides’ testimonies, it is not in dispute that Ngolo Mazwa @ Kasili @ Neema is dead. According to the post mortem report 9 which has been admitted in court as Exhibit P1, it shows that, the cause of the death of the victim is loss of blood. The admitted post mortem report shows that, the deceased’s head had a deep wound and skull broken, leaving brain outside it. The evidence testified in court by PW4 shows that, the victim’s body had deep cut wound on her head, skull broken and upper parts of arms had been cut. All cuts were with a sharp object. Such cut wounds on head proves that, the victim was met with unnatural death. As there is no evidence disapproving this fact, then, I see no need of dwelling much on this issue. This is positively answered that, the deceased Ngolo Mazwa Kasili Neema was met with unnatural death. Concerning the second issue, as to whether the accused person is responsible for the killing of the victim Ngolo Mazwa, the prosecution side relies on visual identification as testified by PW5 one Rahel Musa and circumstantial evidence testified by PW3, PW4 and PW5. In this judgment, I will endeavor into discussing one after the other, to see their implications on the accused person herein. 10 On the issue of visual identification, in proving that PW5 identified the one who killed the victim herein, stated that, on the material date, she, together with the victim, were going to their house from the centre of Dutwa village. She said that, it was at 2200 hours. She added that, they met with the accused person who is the victim’s ex-husband, holding a panga together with another person. She said that, they thus started running towards different directions. She said that, the victim ran towards the house of someone Mussa where the murder incident occurred. PW5 stated that, she hid herself at a nearby bush, within a distance of 15 meters, observing the accused killing the victim. PW5, stated that, she managed to identify the accused person with the help of moonlight, a torch she had and electrical light at the house of Musa where the victim got murdered. In insisting the same, PW5 stated that, electrical light at Mussa’s house was intense to identify the accused. According to the testimony of PW5, identification of the accused person was done in two occasions. Firstly, she identified the accused on the day before and on the material date before they started running. On these occasions PW5 stated to have identified the accused person through moon and torch light. Secondly, it is the time PW5 alleged to 11 have identified the accused through electrical light at the Musa’s house where the accused is alleged to have killed the victim. Now I will start analyzing identification with moon and torch light. Admittedly, the crime was committed at night. According to her testimony PW5 alleged to have identified the appellant whom she knew prior to the incident, through moon and torch lights. The question is, was there proof of sufficiency of the light for purposes of watertight identification? Though PW5 testified to have known the accused person prior the incident, in the present case, intensity of the moon and torch light which I think, in the circumstances of the case was crucial, was not given by PW5. This is contrary to the principle of law on visual identification. The Court of appeal in the case of Issa s/o Magara @ Shuka versus the Republic, held to the effect that, source of light alongside its intensity, through which identification is purported to be made, is of paramount importance. In holding so, the Court of Appeal made the following statement as I hereby quote; - 12 “In our settled minds, we believe that it is not sufficient to make bare assertions that there was light at the scene of the crime. It is common knowledge that lamps be they electric bulbs fluorescent tubes, hurricane lamps, wick lamps, lanterns etc give out light with varying intensities. Definitely, light from a wick lamp cannot be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give in evidence sufficient details the intensity and size of the area illuminated. We wish to stress that even in recognition cases where such evidence may be more reliable than identification of a stranger, clear evidence on sources of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made.” 13 On account of the above quoted principle of law, so long as PW5 never mentioned intensity of moon and torch light which she purports to have used to identify the killers, I am denied access to analyze as to whether PW5 properly identified killers of the victim herein. Secondly, is on the issue of identification which PW5 alleges to have done on a second occasion through electric light on Mussa’s house. With this one, PW5 stated that, the same electrical light was intense to allow her identify properly. On this, I have the following; In Jaribu Abdalla v. Republic, Criminal Appeal No. 220 of 1994 (unreported), a holding which has been religiously followed since then, provides that; - "...in matters of identification it is not enough merely to look at factors favoring accurate identification. Equally important is the credibility of witnesses. The conditions of identification might appear ideal but that is no guarantee against untruthful evidence.” This principle of law is still very valid today, as it was when it was firstly propounded. Therefore, eye witness testimony can be devastating, when false witness identification, is made due to honest 14 confusion or outright lying. See the case of Mengi Paulo Samweli Luhana & Another V. Republic, Criminal Appeal No. 222 of 2006 (unreported) In determining this second identification occasion which PW5 stated to have identified the accused person, I find that, credibility of the same PW5 is questionable. This is because of a number of factors. Though PW5 did not testify on duration of time she used to observe the accused person so that to do away with the mistaken identity, yet, I do not see the possibility of PW5, who ran away in fear of death, separately from the victim, only to find her way near the scene of crime, just between 15 meters away and observe the killing act. The act of running away of PW5 when they were chased with bandits, presupposes that, she had no knowledge that the bandits needed to kill only one person but all, including herself. That is why, in testimony of PW5 you find that, she did not get out of the place she had hidden until alarm was raised and people arrived at the incident. With that fear of being killed too, it would not be easy for PW5 to hide at a nearby place and observe the killing act. This line of thinking is cemented with the act of arresting the accused person on the 16th day of December, 2023 while the killing act 15 was done on 5th February, 2023. The testimony of PW5 shows that, she mentioned the accused person on the same day and time, when he killed the victim. This act is supported by all prosecution’s witnesses. If so it is, that PW5 identified and mentioned the accused person on the same day and time, why that the accused person was arrested after a lapse of ten months? If the accused person was identified properly, then he should have been mentioned as early as possible. On that account, the accused person would also have been arrested within a reasonable time. I say so simply because, had the policemen knew on the first day as to who killed the victim, in the prosecutions side, there would be ample evidence to the effect of narrating a series of searches and arresting trials of the accused person, from the second day after the murder incident. To my surprise, there is none. Just the investigator of the case (PW7) who slightly testified on it, after he was cross examined. The thing which can be concluded as an afterthought. To that effect, I am of the views that, the unexplained long-time elapse, before the accused person was arrested, negates testimony of PW5, that she identified and mentioned the killer, on the fateful day. Thus, PW5 is hereby found to be not a credible witness. With the 16 endeavors I have discussed above, I find it that, PW5, did not identify the killer of the victim on the fateful day. So long as this kind of evidence has failed, prosecutions remain with only one evidence which is circumstantial evidence. The law provides that, for a conviction to stem on circumstantial evidence, it must be the evidence that leads to no other conclusion than only one that, the accused person committed the offence. See, Juma Salum Singano v. Republic, Criminal Appeal No. 172 of 2008, CAT Dar es Salaam which held that; - We agree with both learned counsels that to sustain a conviction on circumstantial evidence the evidence must irresistibly point to the guilt of the appellant. Further I am alive with the holding in the case of ALLY BAKARI & PILI BAKARI V R (1992) TLR 10 (CA) that; - Where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused to be drawn must be proved beyond reasonable doubt and must be clearly 17 connected with the facts from which the inference is to be drawn. The above quoted principle of law, calls for all facts which leads to an inference that the accused is guilty, must be proved beyond reasonable doubt. As such, it is a right time now to verify as to whether these conditions have been met in this case. The evidences that would be used as circumstantial evidence which connect the accused to this murder case are, firstly, the evidence on the threatening message to kill alleged to have been sent by the accused person to the victim and secondly, is marriage conflict as between the accused person and victim. Concerning the threatening to kill message, we have testimonies from PW3, PW4 and PW5. These testified that, the victim was threatened to be killed by the accused person through phone message. Though prosecution’s side does not show that the victim’s phone got lost, yet, the same was not tendered to court to prove the existence of such threatening message. 18 Also, though PW3 and PW4 testified to have been informed of the threatening message from the accused person, yet, when they were cross examined, both stated to have never seen such a message. Again, though all PW3, PW4 and PW5 stated to have been informed of the threatening message to kill from the accused person, yet, they did not press to the fullest, the issue of reporting the same to police station. On that account, this kind of evidence cannot be said to have been proved to connect the accused person with murder case at hand. There remains only the issue of marriage conflict between victim and accused person. Though there is evidence that these parties conflicted to the point of separating, yet, in itself cannot be taken as enough circumstantial evidence to convict the accused person. The same remains as suspicion. However, the law is clear on it that, suspicion however grave, shall not form the basis for conviction. See, MT. 60330 PTE NASSORO MOHAMED ALLY v. REPUBLIC, CRIMINAL APPEAL NO. 73 OF 2002 CAT DAR ES SALAAM. All said and done, with the above discussion I have endeavors to give, I find that, prosecutions have failed to prove their case beyond reasonable doubt. 19 On that account, I am of the settled mind that, this issue is answered in the negative that, the accused person herein, is not the one responsible for the murder of the victim Ngolo Mazwa @ Kasili @ Neema. I thus proceed to find him not guilty of murder, hence acquitted. He should be released forthwith, unless held for some other lawful course. It is so ordered. S.M. Kulita JUDGE 3/12/2024 20