BUNDALA MATHEO BUTANWA SESSION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL SESSION CASE NO. 17 OF 2023 REPUBLIC VERSUS BUNDALA MATHEO @ BUTANWA JUDGMENT 18th March & 7th May, 2024. S.M. KULITA, J. The accused person, one Bundala Matheo @ Butanwa stands charged with the offence of Murder, contrary to Sections 196 and 197 of the Penal Code [Cap 16 RE 2022]. It is alleged by the prosecution that, on 24th May, 2022 at Nyashimbi area, within Kahama District in Shinyanga Region, the accused person murdered one Rehema Nyamgila. The following are facts of the case which gave rise to this trial, as presented by the prosecution; that, the accused person and the deceased were husband and wife who later on came to be in separation due to the accused person’s cruelty. It happened that, the deceased came back home to collect her rice pads that she had left thereat before separation, the thing which the accused did not agree. Such situation 1 necessitated them go for conciliation at the local leader’s office. By the time they finished conciliation, on the way back home, the accused person invaded and killed the deceased by cutting and separating parts of her body. The facts further reveal that, while at home the accused person’s son saw a plastic basin with blood. He tried to call her mother’s phone but it was unreachable. Upon peeping into his father’s room, he found his mother’s phone inside his father’s shoes and blood stains on a bicycle that was used by the accused person. Due to that and the fact that the deceased was missing, the matter was reported at the police station. That was followed by the arrest of the accused person. After being arrested, the accused person confessed before the Police Officer and the Justice of Peace to have killed the victim. Together with that, the accused person led the Police and the local leaders for the premise where the scene is located, into discovery of parts of the deceased’s body. The accused person was thus arraigned for murdering Rehema Nyamgila. When the information of murder was read to him during the Plea taking and Preliminary hearing, the accused person pleaded not guilty to the it. Further, on 15th March, 2024 when the case came up for trial, the 2 charge of murder was reminded to the accused, and he maintained his plea of not guilty. In discharging the duty of proving the charge against the accused person, the prosecution summoned seven witnesses and tendered nine exhibits. The evidence of the prosecution and defense side can be summarized as follows: The first witness for prosecution one Ezekiel Bundala testified as PW1. His testimony was to the effect that, he is the child of the accused and deceased. He stated that, on 24th May, 2022 his father went for reconciliation to the Sungusungu Commander on a misunderstanding between him and the deceased. He added that, later on, he also was ordered by the accused to take the insect spraying pump to the Sungusungu Commander where after reaching there, he also found his mother (deceased). He said that, he stayed at the litigation for some time then he left. PW1 continued narrating that, during the night time he got out of the house to attend call of nature. On the way, he met with his father whom he managed to identify through the help of torch light. He added that, at the same time, he saw their home basin with blood mixed with water. PW1 prayed to tender it and the same was admitted without objection as Exhibit P1. PW1 went on stating that, when he woke up in 3 the morning he found his father outside, the said basin washed and kept inside the house. PW1 stated that, he decided to call his mother through her Vodacom cellular phone number, but it was not reachable. He said that, he called her as he expected her to visit them after a longtime separation with their father. As she was not reachable, he decided to call his brother, one Kulwa Shija. He added that, he informed his brother on the litigation that went on between their parents, the basin found with blood and the missing of their mother in her phone. He was advised to continue trying to reach her. PW1 went on stating that, on 26th May, 2022 he found the bicycle which was recently ridden by an accused with puncture. He thus decided to go to his father’s room where the technical instruments for fixing the same are used to be kept. He said that in it, he saw his mother’s socks in his father’s shoes. He said that they were socks which he had seen her mother (deceased) wearing during the litigation before the Sungusungu Commander. Upon taking it he saw his mother’s phone. It was switched off. PW1 stated that he knows the said phone as he had also been using it before his parents being in separation. He switched it on and tried to call the same by using another phone and the same rang. He thus verified that, that phone belonged to his mother. He said 4 that he passed that information to his brother who advised him to put off the phone and return it to where it was. PW1 prayed to tender his mother’s phone and the same was admitted as Exhibit P2. As for the bicycle, PW1 found it to have blood stains. To him, nobody else had used that bicycle after the accused person had ridden it for attending the Sungusungu meeting with the deceased. He also informed his brother on it, who advised him to stay calm as he would then join him. PW1 also prayed to tender the said bicycle to court and the same was admitted as exhibit P3. Kulwa Shija testified as PW2. His testimony is to the effect that, he he has been told by PW1 (his young brother) through a mobile phone on the missing of their mother, the finding of the deceased’s phone and socks from the accused’s shoes and the blood seen in the basin and the accused’s bicycle. He also told this court that, he decided to go and report the issue to Police, which led to the arrest of the accused person. He lastly managed to identify the accused person in the dock. When cross examined, PW2 stated that, he also identified the deceased’s body. Matolora Makerere Masesa (PW3) stated that, on 27th May, 2022 he looked and found a day work job of harvesting rice paddy. He went on stating that, as the work went on, he decided to attend call of nature at a nearby place. While there, he saw a sulphate bag with a person’s 5 body inside. He said that the said body had no hands. He decided to phone call the Village Chairman who attended the premise together with other people. He added that, the Police Officers arrived and upon checking the body in thorough, found also the body had no legs, breasts, sexual organ and head. This witness concluded that, the Police took that part of the body to Kahama Police Station. He added that the Police recorded his statement. The 4th witness for Prosecution, Peter Nzigula (PW4) testified to the effect that, he is a Street Chairman for Nyashimbi which is located at Nhongolo Ward in Kahama District. He went ahead confirming that he received a phone call from Matolora Makerere Masesa (PW3) who informed him on the found body of human being in a sulphate bag at the farm premise. He thus informed the Police Officers who attended the scene together with him. He said that, the body had no legs, hands, head, breasts and sexual organ. He said that, the Police then took the body to mortuary. PW4 went on stating that, on 28th May, 2022 the Police went to his office together with the accused person and told him that, the accused had confessed to have committed the murder and that, he was willing to show them where murder was committed. PW4 stated that, the accused person also confessed before him and actually went together with them 6 and showed the place where he had committed murder. The said place had blood clots of which the police took some of them for further investigation. PW4 added that, the accused person volunteered further showing them panga that he had used for killing the deceased, the deceased’s phone of which he had hidden in the mattress, as well as the bicycle and basin in question. PW4 prayed to tender the said panga and the same was admitted as exhibit P4. PW4 added that on 29th May, 2022 while at his office again he was informed and actually participated when the accused person volunteered to show the other parts of the deceased’s body. PW4 stated that, at this time the accused person led them to the discovery of the deceased’s head, hand, legs and the sexual organ. PW4 further said that he also signed as a witness to the Seizure Certificate. Another witness for Prosecution, WP 5557 D/Cpl Neema (PW5) testified to the effect that, she is a Police Officer at Kahama Police Station in the exhibit department. She stated that, on 30th May, 2022 she received all exhibits which are in connection to this case, she marked and entered them in the Exhibit Register Book. WP 3956 D/Sgt Paskazia testified as PW6. This witness testified that, she was among the Police Officers who went together with the accused person when he volunteered to show them the scene of crime 7 and the things he used in the commission of it. She said that, the accused person showed them, first the place where he murdered the victim, then he took them to his home place where he showed them the victim’s phone, panga, basin and the bicycle which he used for carrying the victim’s body parts. PW6 added that, after being shown the things that the accused person used in commission of the offence, they filed a seizure certificate. She tendered it to court and the same was admitted as exhibit P5. PW6 went on stating that, they returned back to the Police Station where interrogation with the accused went on. She added that, the accused volunteered further to show them the other victim’s body parts. PW6 further stated that, on 29th May, 2022 the accused person led them to the said place and the victim’s head, breasts and sexual organ were recovered. She said that, they also filed a certificate of seizure for those things. She then prayed to tender it in court and the same was admitted in court as exhibit P6. Then the witness stated that, on the same day the accused led them to the paddy farm where he also showed them the victim’s hands and legs. Certificate of seizure was as well filled and PW6 prayed to tender it in court. Without objection from the opponent side the same was admitted as exhibit P7. 8 PW6 further stated that, on 30th May, 2022 the victim’s body was examined by a Doctor who stated that, the victim’s cause of death was loss of blood following the multiple cut wounds. As the Investigator of the case in question she was given the Post Mortem Report of which she prayed to tender to court as exhibit. The same was received and admitted as exhibit P8. The last witness for prosecution, Leah Emily Kyomshola (PW7) testified that she is a Justice of Peace who on 31st May, 2022 recorded the accused person’s confession statements on the victim’s murder. She said she did it after she had given him all his rights. PW7 stated that, in it, the accused person volunteered freely to confess that he had murdered the victim herein. Lastly, the witness tendered to court the accused’s Extra Judicial Statement and the same was admitted without objection as exhibit P9. 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 RE 2022] the accused person was found to have a case to answer. After being addressed in terms of section 293(3) of the Criminal Procedure Act, the accused person opted to testify on oath, and that he had one witness to call. 9 The Accused Person, Bundala Matheo Butanwa who testified as DW1 stated that, on 27th May, 2022 while at home, he saw his step son, Kulwa Shija (PW2) together with Policemen who then arrested him. He said that, after the arrest he was taken to Kahama Police Station where he was kept in lock up till when he was thereafter collected by another Police Officer. That Police informed him that, he had killed his wife but he denied the allegations. Concerning the confessions DW1 stated that, he never confessed before the Justice of Peace that he killed the victim herein. He went ahead denying to have led Police Officers into discovery of the deceased’s body parts. The victim denied to even have a conciliation meeting with the victim before the Sungusungu Commander. He however admitted to have signed the seizure certificates contending that, he had to do so because he was under custody. When cross examined, DW1 admitted to have signed all the certificate of seizure and that panga, basin, bicycle and phone were found in his house. He also stated that he neither had conflict with his sons nor Police Officers. That marked the end of both parties’ evidence. In view of the above evidence, the following issues call for determination: - 1. Whether death of the victim was unnatural (if yes), 10 2. Whether the accused person is responsible for the death of the victim (if yes), 3. Whether the accused person, with intention (malice aforethought) killed the victim. At the end of the hearing, Counsels for both parties prayed to file their final submissions, the prayer which was granted by the court. Both parties complied with it. For easy of composing the judgment, I will consider the parties’ final submissions in the course of determining the framed issues above. Concerning the first issue, whether the victim met a unnatural death, first, from both sides’ testimonies, it is not in dispute that Rehema Nyamgila is dead. According to the Post Mortem Report which has been admitted in court as Exhibit P8, the cause of death of the victim is Hemorrhagic shock due to the multiple cut wounds and separation of parts of the victim’s body. The admitted Post Mortem Report shows that, the deceased’s body parts were found separated in head, limbs, hands, breasts and sexual organ. Investigator of the case and most of the witnesses who participated in witnessing for the case, testified to have been involved in collecting parts of the victim’s body from different places. 11 Such circumstances prove that the victim met with unnatural death. As there is no evidence disapproving this fact, then I see no need of dwelling much on this issue. It is therefore positively answered that, the deceased, Rehema Nyamgila met unnatural death. Concerning the second issue as to whether the accused person is responsible for the killing of the victim, the prosecution side relies on circumstantial evidence and confessions. This is because, there was no any prosecution witness who testified to have seen the accused person killing the deceased. The issue is whether that available evidence suffices to conclude that, the accused person is responsible for killing Rehema Nyamgila. The law provides that, for a conviction to stem on circumstantial evidence, it must be the evidence that leads to, no any 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 in which it was 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” 12 Further I am alive with the holding in the case of ALLY BAKARI & PILI BAKARI V. R. (1992) TLR 10 (CAT) 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 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 all reasonable doubts. As such, it is a right time now to verify as to whether these conditions have been met in this case. The first circumstantial evidence we have is that from PW1, the accused person and the victim had misunderstanding that led to their separation whereby the victim went to live far from the matrimonial home. Secondly, PW1 testified that, on 24th May, 2022 he saw both the accused and the victim at the Sungusungu Commander’s premise who was trying to resolve their misunderstandings after separation. 13 Thirdly, PW1 witnessed the home basin with water mixed with blood in it. He witnessed this situation when he woke up during the night to attend call of nature. And during that time, he managed to see the accused person outside the house. Fourthly, that the basin of water mixed with blood was found to have been washed and kept inside on the following morning. This brings a notion that, he who washed the basin, wanted to conceal the evidence that the basin had blood. Fifthly, PW1, found the victim’s socks and cellular phone inside the accused person’s shoes, in his (accused’s) room. By calling it, PW1 verified the same was the victim’s cellular phone. As the victim’s cellular phone was lost during the period of time when the victim was found dead, then the accused person, who had been found with the victim’s properties, including the said victim’s cellular phone had an obligation of narrating as to how those things came into his hands, but he did not say anything about it. Sixth, the PW4 evidenced that, the accused person, freely volunteered and gave the victim’s cellular phone to the police. He had taken it from the center of his mattress. This act of shifting the victim’s 14 cellular phone from his shoes to the center of the mattress shows that the victim was hiding the same, to conceal the evidence. Seventh, PW1 found blood stains on the bicycle which had been used by the accused person when he went for dispute resolution before the Sungusungu Commander with the victim. It should be remembered that, PW1 is the accused person’s biological son whom, he himself stated in his defense testimony to have no conflict with. On that account, I see no chance for PW1 to have got involved in fabrication in his testimony against the Accused person. Cumulatively, all these pieces of evidence, together with the confessions which I am going to discuss soon hereunder, prove that, this accused person murdered the victim herein. As alluded earlier, this conclusion, is being cemented with the existence of evidence in exhibits P2 and P7 which are the victim’s cellular phone and certificate of seizure for the victim’s hand and limbs body parts respectively. According to the testimonies of PW4 (Street Chairman of the place where the crime was committed) and PW6 (Investigator of the case), the accused person volunteered to show them a place where he had 15 killed the victim and the places he had hidden the victim’s body parts as well as the material items which are connected with the crime. The evidence shows that the victim’s head was buried by the accused person behind his house while the sexual organ was buried under the firewood cooker. In fact, these things could not have been found, but for the confessions made by the accused person. Had the accused person not been involved in killing of the victim, he would not have been able to show those victim’s body parts. Again, the testimonies show that the accused person took the Police Officers and the Street Chairman to the paddy farm, where they managed to get the victim’s hands and legs. All these discoveries were able due to the volunteered help by the accused person. In actual fact, this is nothing but confession that led to discovery of material things which are connected to the murder case at hand. In the meaning of section 31 of the Law of Evidence Act [Cap 6 RE 2022], this evidence is crucial and relevant to the case of which conviction can ground on. See, PETER MFALAMAGOHA v R, Criminal Appeal No. 11 of 1979, CAT at DSM (unreported) and the bellow quoted section 31 of the Evidence Act; - 16 “When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant” In addition to the confession that the accused person volunteered to make, which led to the discovery of things connected to the murder of the victim, yet, the accused person maintained his confession when he appeared before the Justice of Peace who testified herein as PW7. The evidence is vivid that, the Extra-Judicial Statement was not objected by the accused person when PW7 tendered it in court. In it, the accused person was recorded to have agreed planning and actually killing the Victim. Admission of this evidence as Exhibit P9 without being objected by the accused person, cements that, the accused person is responsible for the killing of the victim herein. No matter the cross examination done on it by the defense council, the truth remains the same that, this extra judicial evidence cements that the accused person is the one who killed the victim herein. See the case of Emmanuel 17 Lohay and Another vs. Republic, Criminal Appeal No. 278 of 2012 Court of Appeal at Arusha which stated that; - “It is trite law that if an accused person intends to object to the admissibility of a statement/confession he must do so before it is admitted and not during cross-examination or during defense – Shihoze Semi and Another v. Republic (1992) TLR 330. In this case, the appellants “missed the boat” by trying to disown the statements at the defense stage. That was already too late. Objections, if any, ought to have been taken before they were admitted in evidence” However, I can agree as the record shows that, in the instant case, there is no dispute that nobody witnessed the killing of the deceased. But, as pointed out in the decision of the Court of Appeal Case of Mathias Bundala v. The Republic, Criminal Appeal No. 62 of 2004, CAT at Mwanza (unreported) that; "To us this was not fatal because if every killing- had to be eye – witnessed, then, many homicides would remain unsolved. We believe so because, killing may be by poisoning, starving, drowning and thousand other forms of death by which human nature may be 18 overcome. Such killings can hardly be eye-witnessed by independent witnesses" In this case, though the accused person defended to have no conflict with the victim and all prosecution witnesses and that he did not kill the victim, yet, the circumstantial evidences shown above, plus the accused’s confessions that led to the discovery of material things which are connected to the murder of the victim herein, together with the un- objected admission of the accused confession before the Justice of Peace in exhibit P9, all prove that, the accused person’s evasive denial in his defense, has failed, and that, the prosecution has managed to prove its case at the required standard. This conclusion marks that, the second issue is answered in affirmative that, the accused person is responsible for killing the deceased, Rehema Nyamgila. Concerning the last issue, whether the accused person killed the victim with malice aforethought. This issue tends to prove whether the accused person is guilty of Murder or Manslaughter. In the case of Enock Kipela v. Republic, Criminal Appeal No. 15 of 1994, CAT at Mbeya (unreported), the law is settled that, in establishing the intention to kill, courts should take into account the following factors, among other things; 19 ”- 1. the type and size of the weapon, if any, used in the attack; 2. the amount of force applied in the assault; 3. the part or parts of the body the blow or blows were directed at or inflicted in; 4. the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; 5. the kind of injuries inflicted; 6. the attacker's utterances, if any, made before, during or after the killing; and 7. the conduct of the attacker before and after the killing” The above quoted case as alluded earlier provides for seven conditions through which measurement can be done as to whether the accused person committed Murder or Manslaughter. I must admit that, this is among the peculiar cases I have come across with. The peculiarity of it lies on the fact that, the evidence in this case, shows fulfilment of all the above shown conditions, except only one. The Post-Mortem Report and the testimonies of prosecution witnesses who identified and witnessed the victim’s body told the court that, the victim’s body was separated in head, trunk, hands, legs, breasts and sexual organ. Worse enough, the victim’s body parts were buried at scattered places, as if the accused was making sure that, resurrection, if any, to this victim, should not be possible in any way. 20 In the way the victim had been killed, it shows that, the type and size of the weapon must be sharp in the attack, the amount of force applied in the assault was high, parts of the body the blows were inflicted are sensitive/vulnerable, the number of blows were sufficient for the killing purposes, the kind of injuries inflicted intended to kill only, and the conduct of the attacker before and after the killing was to conceal his involvement in the case. On that account, I am of the considered findings that, the prosecution has proved its case at the required standard, that is beyond all reasonable doubts. In the results, I find the accused person herein guilty of the offence of murder and consequently convict him with Murder, contrary to sections 196 and 197 of the Penal Code [Cap 16 RE 2022]. S.M. KULITA JUDGE 07/05/2024 DATED at SHINYANGA this 7th day of May, 2024. 21 S.M. KULITA JUDGE 07/05/2024 22