Theodori Sarawati

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT IFAKARA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 13546 OF 2024 REPUBLIC VERSUS THEODORI SARIWATI 1®^ ACCUSED PERSON NEEMA DANIEL SAKTAI 2^"^ ACCUSED PERSON EMMANUEL THOMAS SARIWATI 3^° ACCUSED PERSON Date of Last Order: 30/08/2024 Date of Judgement: 06/09/2024 JUDGEMENT MAGOIGA,J. The accused persons, THEODORY SARIWATI, NEEMA DANIEL SAKTAI AND EMMANUEL THOMAS SARIWATI jointly and together stand charged with murder of THOMAS HANSGAL KWILLANGA contrary to sections 196 and 197 of the Penal Code,[Cap 16 R.E 2022]. This court was informed that, on the 21^^ day of September, 2023 at Ihenga village, Mofu ward, Mngeta Division within Kilombera district in Morogoro region, the accused persons murdered, one, Thomas Hansgal Kwillanga. The accused persons pleaded not guilty to the charge of murder Preliminary hearing was held in accordance with the Accelerated Trial and Disposal of Cases Rules, 1988; whereby the prosecutions stated in details all facts and evidence of the case. Briefly, the facts were that on 21^ day of September, 2023 the deceased who was an employee of Ruge Security Services was on duty at the farm of Mohamed Halfan situated at Ihenga village together with other security guards armed with two shot guns and driver and two helpers using a tractor were marking boundaries of the farm from neighboring farms. Further facts went on that at around 12:00 a group of more than 20 people invaded the guards armed with Yungu' and stones and started beating them. In the course of that fracas, the deceased and one Moses Mteteleka were injured. Unfortunately, the deceased was serious injured and was later taken to St. Francis hospital where he died on that same very day. The matter was reported to police and investigations mounted whereby the three accused persons were arrested on different places and later charged with the offence of murder, hence, this judgement after hearing parties on merits. Full trial was then held whereby the Republic called a total of six witnesses and tendered in evidence one exhibits. At the closure of the prosecution case, this court found that no case was made out against the 2"^ accused person. Consequently, this court discharged her from the charge of murder. The accused persons fended himself and through PW3 tendered the written statement of PW3 as defence exhibit-DEl. The 3'"^ accused person fended himself and called two witnesses in support of his defence and collectively tendered one exhibit-DE2. When this case was called on for hearing, the Republic was enjoying the legal services of Mr. Emmanuel Kahigi, learned Senior State Attorney, Mr. Dastan William and Mr. Simon Mpina, learned State Attorneys; whereas the accused persons was enjoying the legal services of Mr. Majid Shaban, learned advocate, the 2"^ accused person was enjoying the legal services of Mr. Sylvester Milanzi, learned advocate, the 3'"'' accused person had the legal services of Mr. Casian Matungiia, learned Advocate. PWl- MOSES SIXBERT MUTETELEKA- a peasant and militia man with force No.55210 under oath told the court that on 21/09/2023 was on duty together with other 7 guards guarding the farm of Mohamed Haifan situated at Ihenga village. According to PWl, on that date, among others, there was tractor putting boundaries between the farm and neighbouring farms. PWl went on telling the court that at around 12:00 a group of more than 20 people armed with clubs and stones invaded them and started beating them. PWl said himself and the deceased Thomas Hansgal Kwilinga were the ones injured as other guards safely fled away. PWl went on telling the court that in the group was able to identify the 1^, 2"^ and 3"^^ accused persons because the invasion occurred daytime and he knows them as fellow villagers. According to PWl, the deceased was seriously injured all over his body by the accused persons. PWl insisted that the deceased has wounds all over the body. PWl after escaping the invaders reported the matter to police and went back to the scene of crime where he found the deceased unconscious and together with other guards took the deceased to hospital where he died later on that very day. PW2- CHRISTIAN CHRISPIN NGADALA- under oath told the court that he was told by his sister of what befallen the deceased and went to hospital to find out that his brother has passed on. PW2 identified his deceased brother's body to the doctor who did postmortem examination. According to PW2, the deceased had disjointed shoulder, right thumb has wound, rapture bladder and wound on the side of the stomach. PW3-RASHID MUSTAPHER SAANANE- under affirmation, among others, told the court that on 21^ day of September, 2023, himself and other guards were guarding the farm of Mohamed Haifan which was being put boundaries using a tractor. According to PW3, at around 12 noon a group of people who were more than 20 invaded them and started beating them using Yungu' and stones. PW3 went in telling the court that in the group he was able to Identify Theodory s/o7, Emmanuel Sarawat and Neema d/0 ? and that these three started beating the deceased using club and stones. PW3 told the court further that the deceased tried to fire a gun but was not working and Theodory took the gun from the deceased and broke it. Another person attacked, according to PW3, is PWl. PW3 went of telling the court that the group went on attacking them all and decided to run away for their safety. PW3 told the court that he identified the three accused person because they live in the same village and it was daylight. PW3 told the court that they run to Mofu where they got help and went back to the scene of crime and were able to take the deceased to hospital but who passed on on the very day. PW4- SAID SAID LIKULUNDU- under affirmation PW4 had nothing useful to advance the case for prosecution because he insisted was not in the scene of crime. PW5-Dr. MASUNGA FUNGA- under oath told the court that he is a Clinical officer working at Kibaoni health centre in Ifakara. PW5 remembers that on 22/09/2023 he examined the deceased's body and observed that the deceased died due to hemorrhagic shock and neurogenic shock due to wounds he sustained on his right should which was dislocated, broken suprapubic bones, blood stain on scrotum. PW5 confirmed that the Thomas Hansgal Kwilinga is dead and did not die natural death but due to injuries on his parts of the body mentioned inflicted by blunt object. PW5 tendered in evidence Postmortem report which was admitted in evidence and marked exhibit PEl. PW6- G3413 D/Cpl ZAHARAN under affirmation told the court that as on 23.09.2023 was instructed by RCO- Morogoro to Msamvu and arrested the and 2"^ accused persons who were escaping to Manyara. According to PW6, he went at Msamvu bus stand and was able to arrest the two accused persons who were later transferred to Ifakara to face the charges of murder of one, Thomas Hansgal Kwilanga. That was all about the case for the prosecution and this court guided by the provisions of section 293(2) of the Criminal Procedure Act, [Cap 20 R.E.2022] found the evidence on record not sufficient to call the 2"^ accused person as such discharged her from this case. As to the and 3'"^ accused persons the court found the evidence on record sufficient to call them enter defence. Consequently, therefore, the court addressed the accused persons of their rights, and guided by their respective advocates, the accused persons opted to defend themselves under oath and the third accused person (now second accused person) had two witnesses and two bus tickets one from Ifakara to Morogoro and another one from Morogoro to Babati. Both accused persons raised a defence of alibi and notice under section 294(4) of the Criminal Procedure Act, [Cap 20 R.E.2G22] was dully filed before hearing commenced. DWl- THEODORY SARIWATI under oath told the court that he is a peasant and resident of Ihenga village. According to DWl, on 20.09.2023 he and his family took Bajaj from Ihenga to Ifakara. At Ifakara he took a bus to Morogoro where he arrived at 23 hours. DWl went on telling the court that, at Morogoro he stayed at his uncle till on 23.09.2023 when he was arrested by his family at Msamvu bus stand and later taken to Ifakara to face this case. In the circumstances, DWl denied killing the deceased because on 21/09/2023 he was at Morogoro and could not be at Ihenga to murder the deceased. Basically, DWl distanced himself from the death of the deceased and rose a defence of alibi with no supporting documents but complied with the provision of section 194(4) of the CPA. Next was DW2 EMMANUEL THOMAS SARAWATI under oath told the court he is a peasant and resident of Ihenga. According to DW2, on 19.09.2023 he left Ihenga to Ifakara and bought a ticket from Kidinilo bus services intending to travel to Morogoro next day on 20.09.2023 and managed to arrive Morogoro at 11-12 hours and went to his uncle living at Misufini area within Morogoro Municipality. DW2 went on telling the court that on 21/09/2023 he went to Msamvu to buy a ticket to Manyara and bought a ticket from HC Safaris. From Msamvu, DW2 went to High Court to make a follow of his case between himself and others against Mohamed Halfan. It was DW2 testimony that on 22.09.2023 morning he travelled to Manyara where he arrived at midnight and was received by his younger brother Fanuel Thomas Sarawati. In support of his travel itinerary, DW2 tendered in evidence two tickets for Kidinilo and HC Safaris which were marked as exhibit DE2a-b. With the above testimony and support of the tickets, DW2 denied to be at Ihenga and in any way caused the death of the deceased. However, DW2 admitted being informed of the death of the deceased by fellow villager while at Morogoro. DW2 told the court that he was arrested in May, 2024 for this offence but which he strongly denies to commit because he was not at Ihenga on the material day and date. DW2 prayed that this court finds him not guilty and set him free. Next was DW3- LUCIA JOHN SEG who under oath toid the court that she is the wife of the Emmanuei Sarawati (the second accused now) and that his husband ieft Ihenga on 19/09/2023 going to Manyara to attend his sick brother Caiist Thomas Sarawati. DW3 insisted that his husband was not at Ihenga and that the charges facing him are not true because he could not commit a crime charged with while away. Last witness for the defence was DW4- FANUEL THOMAS SARAWATI who under oath told the court that on 22/09/2023 he received his brother at Babati Manyara at midnight who was coming from Morogoro. DW4 insisted to know nothing about the aliegations against his brother. This marked the oral hearing of this homicide case. The iearned trained minds for parties prayed and were granted time to file their final submissions. I am gratefui for their input in this case and is weii noted and wili in some instances refers to them. In addressing the court in final closing submissions, the Republic speaking through Mr. Simon Mpina, learned State Attorney contended that it is a cardinal principal under section 3(2) of the Evidence Act,[Cap 6 R.E 2022] that prosecution have unwavering iegal duty to prove the case beyond reasonable doubt. It was, therefore, the strong submissions of the learned State Attorney In this case that, direct and eye witness of PWl and PW3 on record proves beyond reasonable doubt that It was the accused persons who Inflicted the wounds on the body of the deceased as observed by PW5 and recorded In exhibit PEl. In support of his stance the learned senior State Attorney cited to this court the case of Goodluck Kyando vs. Republic [2006] TLR 363 CAT In which It was held that: - "Fi/e/y witness is entitied to credence and must be beiieved and his testimony accepted uniess there are good and cogentreasonsfor not beiieving a witness. Guided by the above holding, Mr. Mplna, learned State Attorney thus submitted that the evidences of PWl and PW3 In this case are unassailable, believable and reliable as they witnessed the Incidence, gave a description of the two accused persons, mentioned them as the culprits who murdered the deceased. The learned State Attorney argued that PW5 examined the body of the deceased and established that the deceased died of hemorrhagic and neurogenic shock after noting Injuries at right should dislocation, fracture of pubic bone which were caused by blunt object as observed In 10 exhibit PEl. According to Mr. Mpina, iearned Attorney, this piece of evidence corroborates the testimony of PWl and PW3. The iearned Attorney went on arguing that PW2 identified the body of the deceased and PW4 disclosed that the farm belongs to Mohamed Halfan. With that piece of evidence, Mr. Mpina surmised that prosecution have been able to prove their case beyond reasonable doubt against the two remaining accused persons for their evidence is credible and corroborative in nature. In this he pointed out that the evidence of PWl corroborate the evidence of PW3 on involvement of the accused persons. And the evidence of PW5 corroborate the issue of injuries sustained by the deceased. In support of the above stance, the iearned Attorney cited the case of DPP vs. Kiibourne (1971) 1 ALL ER 440 in which it was held that: - ^^Evidence in corroboration must be Independent testimony which affect the accused by connecting or tending him with the crime^ it must he evidence which implicates him^ that is confirming in some material not oniy that the evidence that is the crime has been committed hut aiso that the prisoner committed it 11 In respect of the accused persons defence of alibi, the learned Attorney argued that the accused failed to prove their innocence and their defence of alibi is baseless because the accused person had no supporting documents to prove alibi and as to the second accused now submitted that the documents admitted were forged and were for different motor vehicles ie SINO TRUCK and Toyata Klugger and invited the court not to consider them at all. On that note, the learned Attorney invited this court to convict the accused persons as charged and sentence them accordingly. Mr. Shabani, learned advocate for the accused person off shoot that the Republic has utteriy failed to prove this criminal case to the standard required in criminal case: namely beyond reasonable doubt. The learned advocate referred this court to the case of Habib Vs. Republic(1971) HCD 370 in which it was held that "ft is established law that a conviction should be based on the strength of the affirmative prosecution case." He premised his submissions on the testimony of PWl who testified that the deceased was beaten all over his body and PW2 that the deceased has injuries at mouth, hands right shouider and urinary biadder but the clinal officer whom Mr. Shabani argued had no qualification to do postmortem noted that other parts of the body were normal including 12 stomach and the rest of the body save right shoulder, urinary bladder and hands. According to Mr. Shabani, these contradictions go to the roots of the matter and water down the credibiiity of the testimony of PWland PW3. On the part of PW3 whose witness statement was tendered as exhibit DEI admitted that the statement contained facts not stated by him and this goes to the credibility of his testimony. Another issue taken by Mr. Shaban was the failure to indicate the name of Clinical officer who performed postmortem. As to the defence, Mr. Shabani argued that the accused denied the charged and raised defence of aiibi. More so. Mr. Shabani submitted that the prosecutions failed to call material witnesses such as the driver who was driving the tractor and invited this court to draw adverse inference to the prosecution case. On that note, Mr. Shabani invited this court to find and hold that the prosecution utteriy failed to prove its case and proceed to discharge the accused person and set them free. On other part of the 2"^ accused person, Mr. Matungila, learned advocate offshoot with the cardinal principal that the prosecution has unwavering duty to prove their case beyond reasonable doubt but have so far failed in this case. According to Mr. Mtungiia, the prosecution case was full of naked stories without any justifiable proof and was full of 13 doubts and hearsay. He gave example of PW4 whose testimony is hearsay. As to the testimonies of PWl and PW3, Mr. Matungila pointed out that their testimonies contradict each other on who had a gun or not. Like his fellow counsel submitted that the Clinical officer who conducted the postmortem report had no qualification and invited this court not to consider it. Mr. Matungila submitted that the strong alibi proceeded by notice filed under section 194(4) of the CPA with exhibits tendered raised by the 2"^ accused person was not challenged at all by prosecutions. On that noted, invited this court to find and hoid that the charged of murder was not proved and consequently urged this court to discharged the accused person and set them free. This marked the end of hearing of this homicide case. The noble task of this court now is to determine whether the prosecution has discharged their legal burden of prove which is always beyond reasonable doubt that, it was the accused persons before this court and not somebody else who murdered the deceased and was with malice aforethought. However, before going into that hili task, having heard stories of both sides in this case, I have noted that there are some facts which are not in dispute between the rivaling parties in this case. The undisputed facts 14 will assist this court in determining this case. These are: one, it is not in dispute that the deceased Thomas Hangal Kwilanga died on 21/09/2023 and did not die a natural death but due to hemorrhagic and neurogenic shock due to fracture of pubic bone, dislocation of right shoulder and scrotum from beating using blunt objects. Two, it is not in dispute that the three accused persons were arrested and charged with the offence of the murder. However, what is serious dispute between parties in this case, in my own considered opinion are two issues; One, whether the accused persons herein were the ones who inflicted the blows that caused the death of the deceased. Two, is whether the accused persons killed the deceased and were with malice afore thought. I will start with the first issue whether the accused persons were the ones who inflicted the fatal blows that caused the injuries that caused death to the death. The evidence in this case, are based on direct evidence and the case for prosecution is akin to fail or succeed on the strength of PWl and PW3 who were present at the scene of crime as correctly argued by trained legal minds for parties, and rightly so in my considered observation the offence was committed day light by more than 20 people who invaded the deceased and fellow guards at around 12.00 noon on the material day. 15 Before going Into the analysis of the evidence, in this case there are some principles that need to guide me. These are the use of direct evidence, alibi and credibility of the witnesses. In my own research I came across the Court of Appeal decision on direct evidence in the case of Mathias Bundala Vs. Republic, Criminal Appeal No. 62 of 2004 at Tanzlii, in which Court was grappling with direct evidence had this to say: - asin mostcases even where the witness purport to give direct evidence, there is aiways a common fear of manufactured evidence. As stated in ... CROSS AND TAPER ON EVIDENCE, SP" Edition at page 24, this fear, appiies perhaps more strongiy to circumstantiai evidence, hence, needfor cioseiy and criticaiiy examinedsuch evidence." Another principle is the credibility of the witness in both direct and circumstantial evidence. In the case of Bahati Makenja Vs. Republic, Criminal Appeal No.118 of 2006 on Tanzlii it was observed that: it is generally agreed that in assessing the credibility of a witness, the court has to adopt a careful and dispassionate approach and critically evaluate the evidence in order to find out whether it is cogent, persuasive, and credible/' 16 The above consideration has to be done in mind with the findings in the case of Goodluck Kyando Vs. Republic, Criminal Appeal No. 118 of 2003 in which it was held that: "... it is a trite law that every witness is entitied to credence and must be beiieved and his testimony accepted uniess there are good reasons and cogent reasons for not believing a witness." On alibi, it is as well trite law that an accused person who has complied with the provisions of section 194(4) of the CPA had no duty to prove his alibi but the Republic had duty to disprove it. See the case of Bahati Makenja Vs. Republic (supra). With the above guiding principles and having carefully considered the evidence by both sides: on the part of the prosecution on direct evidence and on the part of the defence who relied on alibi, and with due respect, I am constrained to find and holds that the identification of the accused persons is flawed with a number of reasons. I will explain. One, the testimony of PWl was too general to be believed because apart from mentioning their names alone no description was made on how they were dressed and he did not tell what was the blow of each accused person inflicted to the deceased. The argument by learned 17 state Attorney that PWl and PW3 described the accused persons is not supported by the record at ail. What the witnesses did was general mention of their names and none even told this court who inflicted what on the deceased in a mob justice explained befallen them on that fateful day. Two, PWl was categorical that when were invaded by more than 20 people and started beating them, others run away but did not tell the court including PW3 who did what to cause the injuries in issue. This court cannot convict on general evidence to an offence commited by more than 20 people. The testimony PW3 leave a lot to be desired and come to it later. Three, PWl told the court that the deceased had wound all the body which is not true with exhibit PEl tendered by the prosecution. Hence, a serious contradiction on the part of the prosecution case as correctly argued by Mr. Matungila and rightly so in my own observation that the prosecution witnesses were contradicting each other in this case. Hence, the credibility Four, PWl under cross examination without mincing words told the court that he saw Neema (the second accused by then) that he saw her beating the deceased with a Vungu' in his stomach but exhibit PEl by the doctor who examined the body was categorical that no injury was inflicted in the stomach. This witness cannot, therefore, be relied to convict a person 18 on serious offence of murder because his testimony who contradicts the other witness in this case. This has to be resolved in favour of both accused persons. Five, when one reads through the testimony of PW3 one cannot tell who inflicted the blows out of more than 20 people who invaded them. His testimony is too general and he was categorical that he ran away to save himself. Also, his testimony that the whole body was injured contradicts to the contents of exhibit PEl. But as that was not enough, PW3 denied contents of his witness statements and that were included by police exhibit DEI. This not only discredit him but show that he was. not worthy of believe. Seven, both accused persons filed notice of alibi under the provisions of 194(4) of the Criminal Procedure Act, [Cap 20 R.E.2022] which is a trite law in our jurisdiction that once an accused person filed a notice under section 194(4) (a notice filed before hearing commences as in this case filed on 28/08/2024) he has no duty to prove his defence of aiibi. See the case of Shafi Abdallahaman Mboja Vs. Republic, Criminal Appeal No.104 of 2017 and Richard Otieno @ Gullo Vs. Republic, Criminal Appeal No 367 of 2018 all at Tanzlii. Guided by the above and considering that the second accused person unobjected tendered even the tickets of his itinerary, I find out that the despite he has more than compiled with the law from was is expected of 19 him. And this shows that PWl and PW3 mentioning generally their names might have agitated by their own motive known to themselves. Eight, the argument by Mr. Mpina, that the tickets were forged and that were for other motor vehicles are but misleading and the learned State Attorney had no evidence of record to prove that and he cannot turn into unsworn witness of the court, hence, are rejected. I hold and observe that submissions from the bar not supported by evidence on record are as good for nothing and cannot be basis of the conviction in a serious case like the one facing the accused persons. On the foregoing reasons, I find and agree with defence counsel that, the prosecutions utterly failed to prove their case that it was the accused persons who inflicted the fatal blows that caused the death of the deceased on the material date. My holding above suffices to disposes off this case because the second issue depended upon finding in the affirmative on the first issue. That said and done, I hereby acquit the accused person and order their immediate release from prison unless held for another lawful cause. It is so ordered. 20 Dated at Ifakara- Kilombero this 6^^ day of September, 2024 r_ ^ o o c^. S. M. MAGOIGA LU JUDGE 06/09/204 COURT: Judgement delivered in the presence of Mr. Emmanuel Kahigi, learned Senior State Attorney, Mr. Dastan William and Simon Mpina, learned State Attorneys for the Republic and in the presence accused persons and their learned advocates, Mr. Majid Shabani and Kassian Matungira. T C LU S.M. MAGOIGA / JUDGE 06/09/2024 COURT: Right of appeal fully explained. QT X UJ . M. MlAG JUDGE 06/09/2024 21