MRISHO MZIGO MZITO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY (SITTING AT NZEGA) CRIMINAL SESSIONS CASE NO. 74 OF 2023 THE REPUBLIC VERSUS MRISHO S/O KASHINDYE @ MZIGO MZITO JUDGMENT Date of the Last Order: 21/11/2024 Date ofJudgment: 13/12/2024 KADILU, J. Mrisho Kashindye @ Mzigo Mzito stands charged with murder contrary to Sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022]. A brief background leading to the case goes like this: On 19th October 2022, the deceased, Fatuma Ramadhani was drinking alcohol with the accused and his accomplices, Ally Jumanne @ Ligaman, and Keja Maulidi. After finishing, they left and later on that day, the deceased's body was found in an unfinished building. The killers could not be identified immediately. Nevertheless, police officers inspected the crime scene, and an autopsy was conducted. It revealed that the deceased's right shoulder was broken, she had neck triangulation, and sperm-like fluid was found in her vagina. The investigation was conducted whereby the accused and Ally Jumanne @ Ligaman were arrested. The two were arraigned in court and charged with murder. On 6th October 2023, the Director of Public Prosecutions entered nolle prosequi against Ally Jumanne @ Ligaman. i The prosecution alleged that the accused admitted in his cautioned statement that he had murdered the deceased, Fatuma Ramadhani. The accused denied the charge and throughout the proceedings, he alienated himself from the accusations. The prosecution paraded five witnesses and tendered two exhibits to prove the case against the accused. On his part, the accused fended himself under oath without tendering an exhibit. PW3, Edward Gabriel Ginawi testified that he investigated the incident on 19/11/2022 accompanied by four other police officers and Doctor Amos Petro, PW5. At the crime scene, they found the deceased's half-necked body in an unfinished house. The Doctor examined the body and the police officers interrogated some people about the incident. It was revealed that the deceased's name was Fatuma Ramadhani. According to PW3, Mrisho Kashindye and Ally Jumanne were arrested on 27/10/2022 in connection to the incident. However, PW3 did not state how he realized that Mrisho and Ally were involved in murdering the deceased before arresting them, WP.8585 D/CPL Grace (PW4) interrogated the accused and recorded his cautioned statement. She informed the court that the accused admitted to having killed the deceased. The accused through his Advocate objected to the admission of the cautioned statement on the ground that he did not record any statement. He alleged that PW4 and two other police officers had beaten him severely and forced him to press his thumb on the already recorded statement. After a min trial, the court admitted the cautioned statement as exhibit Pl. Exhibit Pl indicates that Ally Jumanne, Keja Maulidi, and the accused killed the deceased on 18/10/2022 at 22:00 hrs. According to Exhibit Pl, the 2 deceased and accused were concubines and had a child together but, the deceased was in a sexual relationship with one Milanga Malunde something that irked the accused. The cautioned statement displays further that on the material date, the deceased promised to have sexual intercourse with the accused after a drink. It was also revealed that the deceased used to faint whenever she took excessive alcohol. On the day of the incident, she spent the whole day drinking. While in the local bar, she fainted. The accused and his accomplices escorted her towards her home. On their way, the trio raped the deceased until she fainted. In defence, the accused (DW1) consistently denied killing anybody. He narrated that he was arrested on 29/11/2022 while asleep at home. The police officers took him to Ligaman, tied them together, and took them to the lockup in Nzega police station. On 30/11/2022, he was taken to the interrogation room where he met three police officers. They started beating him so as to admit that he murdered Fatuma Ramadhani. He denied but WP Grace (PW4) wrote a statement and forced him to press his thumb thereon. According to DW1, Ligaman was later discharged after having bargained (sic). He denied having ever taken alcohol as his favourite drink is coffee. He requested the court to disregard the accusations against him because he did not know Fatuma and he did not kill her but he is just being oppressed. After having appraised the evidence of both the prosecution and defence sides, it is pertinent at this stage to determine whether the accused person committed the offence of murder contrary to Sections 196 and 197 of the Penal Code. Section 196 provides that: 3 Tlr?/ person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder." To put it simply, murder is the unlawful killing of a human being intentionally. Therefore, for the accused person to be convicted of murder, the prosecution should prove beyond reasonable doubt that he caused the death of the deceased unlawfully; and he did it with malice aforethought. In the case of Mohamed Matula v. R., [1995] TLR 3, it was stated that upon a charge of murder being preferred; the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused. In the case at hand, it is undisputed that Fatuma Ramadhani Mhoja is dead and the pertinent question is, who killed her? Unfortunately, all five prosecution witnesses failed to link the accused with Fatuma's death. As expected, the postmortem examination report (Exhibit P2) could not also indicate who murdered the deceased. The only prosecution evidence connecting the accused with murder is his cautioned statement, Exhibit Pl. I have already shown that the said cautioned statement was heavily contested by the accused. He alleged that he was beaten and injured on his knees, waist, and legs so he could admit to the commission of murder. In Hamis Chuma @ Hando Mhoja v, ^ Criminal Appeal No. 36 of 2018, the Gourt of Appeal at Shinyanga held that: 'Where an accused claims that he was tortured and is backed by visible marks of injuries, it is incumbent upon the trial court to be more cautious in the evaluation and consideration of the cautioned statement even if its admissibility had not been objected to, andsuch cautioned statement should be given little if no weight at all." 4 Thus, the law is settled that before convicting the accused person based on the objected cautioned statement, the trial court must be fully satisfied that in all the circumstances of the case, the confession is true, in practice, the courts act on the objected cautioned statement if corroborated by independent evidence accepted by the court. In the instant matter, Exhibit Pl shows that the deceased was murdered by the accused and two other persons who are riot parties to this case. Notwithstanding, none of the prosecution witnesses stated anything regarding other perpetrators named in the cautioned statement of the accused. Though the record indicates that Ally Jumanne @ Ligaman was discharged after the preliminary hearing, the Same is silent on the whereabouts of Keja Maulidi who was with Ally Jumanne and the accused. According to the cautioned statement, the deceased used to faint whenever she took excessive alcohol. Moreover, it shows that the deceased spent the whole fateful day drinking in the local bar, and during the day, she fainted for some time. Given such facts and in the absence of any corroborating evidence, this court cannot rule without hesitation that it was the accused person who murdered the deceased. More so because there is no piece of the prosecution's evidence that established malice aforethought on the part of the accused. The allegation that the deceased and accused were concubines and had a child together remains empty words that were not proved by any prosecution's witness. Moreover, the assertion that the deceased was in a sexual relationship with one Milanga Ma I unde which irked the accused cannot be used to infer malice since it was not proved either. Generally, this 5 court is not persuaded that the accused's cautioned statement is nothing but the truth so as to rely on it in convicting the accused person. I, therefore, accord no weight to it. Having disregarded the accused person's cautioned statement, the prosecution's evidence remains shaky because PW1, PW2, PW3, and PW5 were categorical that they did not know a person who killed Fatuma Ramadhani, the deceased herein. Pw4's testimony was nothing but what she was allegedly told by the accused during the interrogation when recording the cautioned statement which I have just discussed above. In the circumstances, it cannot be said that the prosecution has proved the charge of murder against the accused beyond reasonable doubt. Consequently, I find the accused person not guilty of murder. I acquit and set him free unless held for some other lawful cause. The right of appeal is fully explained to any aggrieved party. DILU, M. X JUDGE 13/12/2024 delivered in open court on the 13th day of December, 2024 in the presence of Mr. Steven Mnzava, State Attorney and Mr. Langa Mvuna, holding brief for Ms. Monica Mlaho, Advocate for the accused person, also present under custody. DILU, M. J. JUDGE 13/12/2024 6