KIYUMBI WHITE CRIMINAL SESSION Autosaved NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL SESSION CASE NO. 27 OF 2023 REPUBLIC VERSUS 1. CHARLES SANGIJA @ KIYUMBI WHITE 2. AMOSI KITUNGULU JUDGMENT 6th June & 9th September, 2024. S.M. KULITA, J. The accused persons herein, Charles Sangija @ Kiyumbi White and Amosi Kitungulu stand charged with the offence of Murder, contrary to Section 196 and 197 of the Penal Code [Cap 16 (RE 2022]. It is alleged by the prosecution that, on 11th June, 2022 at Nyamishiga village, Lunguya Ward in Shinyanga District within Shinyanga Region, the accused persons murdered one Masoud Leonard. Facts of the case as presented by the prosecution which gave rise to this trial are that; the victim was doing a Guest House business at Nyamishiga village. That, sometime, the victim and the first accused person used to live in the said Guest House held by the victim. That, on 1 11th June, 2022 the victim and the first accused person left by using the victim’s motorcycle. On that day, the victim promised his Guest Servant that he would return on the same day. However, contrary to what he had promised, the victim/deceased never returned till on the next day when only the first accused person went back and asked to be given some money which he claimed to have given the victim. The Guest Servant, as she had no instruction from her boss (the victim), refused to give any amount of money to the first accused. On the next day then, the first accused went again with the same claim. As the guest servant maintained her stand, the first accused told her that she would receive a phone message from her boss to that effect. The records show that, as the 1st accused had stated, a message went into the Guest Attendant’s phone, and as soon as it entered the Guest Attendant made a call to her boss’ phone in vain. Seeing that, the Guest Attendant informed the victim’s parents who allowed her to heed to the 1st accused’s claim. The facts show that, from there neither the victim nor the 1st accused person went back again to the victim’s guest house till when a human body with no head was recovered. Investigation was conducted on the said unknown body of a person including the DNA Test. In the DNA Test it was discovered that, it was a body of the victim herein. 2 As the 1st and 2nd accuseds were the last persons to be seen with the victim, and that the 1st accused was severally seen with the victim’s motor cycle, the two were arrested, charged and arraigned to court for murdering the deceased, Masoud Leonard. When the information of murder was read over to the accused persons during the Plea taking and Preliminary hearing, they all pleaded not guilty to the information. Further, on 28th May, 2024 when the case came up for trial, the said information of murder was reminded to the accused persons who maintained their plea of not guilty. While the Prosecution side was represented by Ms. Immaculatha Mapunda and Ms. Mboneke Ndimubenya, State Attorneys, the Accused persons were represented by the Learned Advocates, Mr. Timotheus Sulus for the 1st Accused and Mr. Emmanuel Rugamila for the 2nd Accused. In discharging their duty of proving the case against the accused persons, the prosecution side summoned five witnesses and tendered four exhibits. The evidence of the prosecution and defense side can be summarized as follows: Dr. Mathias Msobi, a Medical Doctor from Lunguya Health Centre in Msalala District, testified as PW1. His testimony is to the effect that, on 12th June, 2022, he, together with Police Officers, went to attend a dead body at Mandu village. He said that the dead body had no head and the 3 cause of death was loss of blood as blood vessels from the body to the head were cut. He said that he conducted autopsy and filed a Post Mortem Report. He prayed to tender it to court and the same was admitted as exhibit P1. PW1 went ahead contending that, on that dead body, he took a toe and blood samples and gave it to Police Officers for further investigation on identification of that body, particularly the DNA Test. Ally Mohamed Bobi (PW2) testified to the effect that, the victim is his step son. That they had met each other at Torogo, Bushwa “B” Village in Geita on the 10th day of June, 2022 whereby the victim told him that, he was going to visit his guest house business at Nyamishiga. PW2 said that the victim thus left with his motorcycle. The witness went ahead stating that, since he had left, he never met with the victim again, till when he received a phone call from his guest servant who asked for the whereabout of the victim, and told him about the return of the first accused and his money demand from her. PW2 stated that, due to that information, he decided to call the victim’s phone in vain. He thus decided to go to the victim’s guest house. PW2 went further stating that, on 30th June, 2022 he was again informed by the same guest servant that, the 1st accused was seen riding the victim’s motor cycle at Segese. He thus decided to go trace for it there 4 at Segese. He narrated that, there at Segese he saw the victim’s motor cycle which stopped nearby him, it took a person and left. PW2 said that he had to follow it by using a bicycle. The said motorcycle went to stop at a certain house. He said that, he believed that the Rider was the said Charles Sangija by that time, as he had not known him before. After knowing the place where the 1st accused was living, he decided to report the matter to Police. He said that, while on his way, said accused, holding a passenger on the motorcycle passed him again. He thus decided to sleep at Segese. He went further stating that, on the next day in the morning hours, while moving towards the Police Station, again the said accused person, passed him with the said motorcycle. PW2 said that he thus decided to tell the militiamen who managed to arrest him. PW2 identified the said motor cycle in question and prayed to tender it to court as exhibit. The same was admitted as Exhibit P2. Further, PW2 identified the registration card for the said motor cycle and prayed to tender it to court. The same was admitted as Exhibit P3, leaving the court’s findings during the composition of the judgment, on the deference on the victim’s name and the name of the motorcycle holder read on the said card. 5 PW2 went further stating that, on 6th July, 2022, together with his wife namely Tausi, he went to Bugarama Police Station after they had been so ordered to go there by Police. He said while there, his wife was needed to identify photos of the human being with no head. He said that, she managed to identify the body as of the victim, as she was familiar with his hands and legs. He went ahead stating that, his wife was asked whether she was ready for DNA test, of which he said that, she agreed. PW2 stated that, thereafter the Police Officers told them that, they needed a permit to exhume the body and take samples for comparison. PW2 stated that, on 22nd July, 2022 they went to the burial place and witnessed exhumation of the body and taking of the victim’s left leg small toe as sample. He lastly said that, the comparison result showed that the victim was Masoud Leonard, the deceased herein. PW3, one Gaudencia Ferdinand, testified to the effect that, she was the servant for the victim’s guest house between 5th May, 2022 to 13th June, 2022. She said that, on 11th June, 2022 the victim said to her that he was going to take “rollers” for the purpose of supporting carriage of soil in his mining holes. She said that, the victim left together with the 1st accused by using the victim’s motor cycle. She said that, she knows the 1st accused as he used to live there in the guest house as their client. She said that, on 12th June, 2022 the 1st accused returned and informed her 6 that, he had given the victim Tshs. 240,000/= and that went to Tabora. He was thus in need to be refunded. PW3 went ahead stating that, as she had no money by that time, the 1st accused promised to return on the next day. As promised, on 13th June, 2022 the 1st accused went and told her that, she would see a message from the victim. The witness stated that, shortly thereafter, a message entered into her phone. It was instructing her to either give money or four mattresses to the 1st accused. She went on stating that, she managed to find money amounting Tshs. 98,000/= and gave it to the 1st accused. In addition to that, the 1st accused took one mattress, one T. shirt and one trouser of the victim. The witness added that, the said 1st accused was living there with his wife, but on that date they all left together with their belongings. PW3 then stated that, later on she was informed that, the 1st accused was seen with the victim’s motor cycle. On that note, she also decided to tell the victim’s father on it. PW3 stated when cross examined, that, she took long to suspect because she thought her boss was safe, till when she was informed of his motor cycle being seen somewhere with the 1st accused. Paschal Maburuki testified as PW4. His testimony is to the effect that, he was working as a Security Guard at Masabi Makarashani Mineral 7 fields. He said that the said place is also nearby Hamonaizi bar. The witness testified that on 11th June, 2022 at about 1830 hours, while on duty at his working place, he saw the 1st accused at that bar playing pool table. He added to have seen also other 6 people arriving at that same point by using a motor vehicle, make Harrier. The witness stated to have seen them getting drinks and later on the bar was closed. However, those persons remained taking drinks inside the said bar. PW4 further said that, later on, he saw one of them coming outside and checking the surrounding premises. Soon later, he saw those people carrying a person to the boot of the said motor vehicle, Harrier. PW4 stated that, there was a generator electrical lights which were on, hence he was able to observe what was going on at a distance of 30 meters away. He went further contending that, one of those people left with motorcycle which had been parked nearby the said vehicle make Harrier. The said witness stated that he identified the 1st accused at that material time day as he is familiar to him, that the said person uses to go and play pool table on those premises whose location is nearby his guarding point. PW4 concluded by stating that, the owner for Hamonaizi Bar is the 2nd accused person herein, who was also among those people who carried that other person into the boot of Harrier car. 8 PW4 further stated that, he knows the 2nd accused as he is famous as the owner of Hamonaizi Bar. PW4 further stated that, on 12th June, 2022 he heard an alarm that there was an incident, that a human body was found with no head. He added that, the body was found along the road where the said Harrier car had headed the last night before. When cross examined PW4 stated that, he didn’t note the registration number of the car that carried the unconscious person from Hamonaizi bar. He added that, he did not know the person who was carried on that material date. PW4 further stated that, he saw the 2nd accused leaving with the said Harrier and that, at his bar, he is the one who was serving. He added that, he was also served soda by him. The last witness for Prosecution, G. 7029 D/CPL Maige (PW5) testified that, he is the Investigator of this case. He also stated to have witnessed exhumation of the victim’s body and taken samples for DNA test as compared to Tausi, the victim’s mother. PW5 stated that, the DNA report shows that, the two matches. PW5 prayed to tender it to court and the same was admitted as Exhibit P4. PW5 went further stating that, the 2nd accused was arrested following interrogation done to the 1st accused who told the police that, the 2nd accused had gone to Kenya to sell the human head and blood, as it was their business. As for the body that was found with no head, the 1st accused told them that, it was not of Masoud’s, 9 but of one of their companies’ relatives. PW5 stated that, having arrested all the people who had been mentioned by the 1st accused, interrogation was mounted and that, the said two accused persons were found responsible for murdering the victim herein. On these five 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 persons were found to have a case to answer in Murder as charged. Upon being addressed in terms of section 293(3) of the of the Criminal Procedure Act [Cap. 20 RE 2022] the accused persons opted to testify themselves on oath and that they had no witnesses to call. The 1st Accused, Charles Sangija @ Kiyumbi White testified as DW1. His testimony is to the effect that, on 11th and 12th of June, 2022 he was at his home place making blocks for building a house. He was arrested by Policemen at his home, Segese on 3rd July, 2022. He said that, he was then taken to the Police Station. Thereat, he was tortured, , to compel him to admit the allegations that he killed the victim, but he denied. He said that, he was however forced to sign on the papers which were not read to him before. He added that, he did not kill the victim and he had never known him. He added that he also never known the guest house 10 servant nor the 2nd accused herein. DW1 further stated that he also never known the victim’s step-father. He contended that he came to know them during the proceedings of this case. When cross examined, DW1 stated to have neither known the Hamonaize bar nor the victim’s guest house. The 2nd accused person, one Amos Kitungulu who testified as DW2 stated that, he owns the guest house with a bar in it, namely, Amo Nice Rest House, and that his duties, among others, is selling blocks. He added that, he is the one who manages and serves all the time at Amo Nice rest house and bar from the morning to night hours. He added that, on the 11th June, 2022 he was at his grocery and attended all his customers accordingly. He added that nothing wrong happened on that date. The witness went further contending that, he was there even on 12th June, 2022 and customers’ registration book proves it, as he is the one who had written on it. DW2 prayed to tender the said customers’ registration book to court and the same was admitted as Exhibit D1. DW2 further stated that, he was arrested at the Village Executive (VEO’s) office at Masabi on 7th July, 2022 when he attended there upon been told that, he was needed to go to that office. Upon being arrested, he was taken to search his house and grocery, and lastly, he 11 was taken to the Police Station, where he underwent tortures, as he denied to have killed the victim. DW2 further stated that, he, together with other persons whom he does not know, were at last taken to Kahama District Court on 27th June, 2022. In his testimony DW2 denied to have received and attended at his grocery people with Harrier car who had worn long coats on 11th June, 2022, as alleged. He insisted that, as for that time’s geographical situation, even a car could not reach at his premises as there was a trench nearby there. Conclusively, DW2 denied to have travelled to Kenya on 11th June, 2022 as on that particular date he was attending customers at his Bar/Guest House premise. That marked the end of both parties’ testimonies. After completion of hearing of both parties’ cases, the prosecution side prayed to file final submissions of the case, the prayer which was granted by the court and actually complied with on 14th June, 2022. As for the defense side who they had no such prayer. Thus in composition of my judgment I will be taking into consideration of the said filed submission. In view of the above summarized evidence from both parties, the following issues call for determination: - 12 1. Whether the victim met unnatural death (if yes), 2. Whether the accused persons are responsible for the death of the victim (if yes), 3. Whether the accused persons with intention (malice aforethought) killed the victim. Concerning the first issue, whether the victim met unnatural death; firstly, from both sides’ testimonies, it is not in dispute as per the DNA test which was tendered to court without objection and admitted as exhibit P4, that the victim herein, Masoud Leonard is dead. According to the testimony of PW1 and the contents of the Post Mortem Report, the cause of the death of the victim was the hemorrhagic shock, that is great loss of blood due to the stabbing wounds and victim’s head being cut off from the body. The evidence from prosecution witnesses shows that, the deceased’s neck cut was made by a sharp object. Such stabbing wounds and amputation of the neck prove that the victim met unnatural death. As there is no evidence for disapproving this fact, I find no need of dwelling much on this issue. It is thus positively answered that the deceased, Masoud Leonard met unnatural death. Concerning the second issue, whether the accused persons are responsible for the killing of the victim Masoud Leonard, the prosecution 13 side relies on circumstantial evidence, because, nobody testified to have seen killers in action. On this, the Prosecution side depends on the principle of last person to be seen with the victim and recent possession. For the sake of determining this issue, I am going to determine the above highlighted pieces of evidence which have been adduced by the prosecution side. I am alive with the principle of last person to be seen with the deceased, the same entails as it was held in the case of Mathayo Mwalimu and Another vs. Republic, Criminal Appeal No. 147 of 2008 CAT at DODOMA that; - “An accused person will be presumed to be the killer, if he is alleged to have been last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to death” From the prosecution side, there is an evidence by PW3 who is the servant in the victim’s guest house, that, on 11th June, 2022 the victim left together with the 1st accused to find rollers for the mining site. From that day, the victim never returned at the guest house though he had so promised to her. That testimony has been corroborated with the testimony of PW4, the security guard of the nearby Hamonaizi bar, who said to have seen both the 1st and 2nd accused on the night of 11th June, 14 2022 carrying the unconscious body of a person to the Harrier car, which on its leaving, took a direction of a place where the victim’s body was later on found lying dead and that it had no head. As the premises surrounding the Hamonaizi bar had enough light as stated by PW4 and admitted by DW2, then I find that there was no chance of mistaken identification on the two accused persons at the scene of crime by PW4. As these two witnesses, PW2 and PW4, testified to have seen the accused persons as the last persons to be with the victim, as the law requires, they ought to have given a plausible explanation as to the death of the victim. On contrary, in their defense, both accused persons, just gave a total denial on knowing the victim, being with the victim and involving in killing him. To me, this defense does not exonerate the accused persons from the case. The 1st accused should have stated the motive behind PW3 who was the servant for the victim’s guest house, to have lied by alleging that she knows him (1st Accused), and that he ever lived in the victim’s guest as their client. The same applies to the 2nd accused, he should have told this court as to the PW5’s motive behind giving a lie testimony as to the fact that he was a security guard at the mining site located nearby his bar namely Hamonaizi, that the 2nd accused 15 served him soda on the material date and that he saw what had happened including carrying unconscious person to the Harrier boot. The accused persons’ failure to do so, strengthens my mind that, the accused persons are the killers of the victim herein. On the issue of circumstantial evidence, I am alive that, to stem conviction on it, the prosecution’s evidence surrounding it should only show that, the accused persons are guilty of the offence charged and not otherwise. See, Juma Salum Singano v. Republic, Criminal Appeal No. 172 of 2008, CAT at DSM 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” On this, the prosecution side through PW3 (the guest servant) gave the evidence to the effect that, the 1st accused went to her in demand of money, claiming to have given the victim, so he was in a need to be refunded. The testimony shows that, when PW3 denied to give him the amount of money that he wanted, due to the lack of her boss’ (victim/deceased) instruction, the 1st accused person promised her that, she would receive a message to that effect, and yet, in no longer later, PW3 actually received it. The evidence further reveals that, the victim’s 16 number, after it had sent a message, it went off again. This situation shows that, the 1st accused person is the one who was in possession of the victim’s phone. Secondly, PW3 shows that, as she had little money to give him, that she had only Tshs. 98,000/=, the 1st accused person took the victim’s mattress, trouser and T-shirt. If the 1st accused person and the victim were friends to the point of lending money each other, lack of enough money by the guest servant (PW3) would make the 1st accused person to wait for the victim to come back and repay him. Taking of the victim’s other stuffs, shows that the accused knew that the victim was dead, hence should never have come back to pay him in a future time. Thirdly, the 1st accused person was living in the same guest house as client as per the testimony of PW3. Further, according to PW3, once he was given what he claimed from her (PW3), it was the last day for him to stay in that guest house. The evidence reveals that he took all his belongings and went away. This shows that, he knew what would befall him on his continuing to stay at the said guest house. Further, as per the testimony of PW5, the act of seeing someone coming out of the Hamonaizi bar and checking the outside conditions, then went inside and came out while carrying unconscious body to the 17 boot of the Harrier car, shows that the accused persons killed the victim in the Hamonaizi bar, and that act was for making sure that people should not see the act of putting the body into the car for disposition, Further, the act of carrying and putting a person into the boot of the car shows that the carried person had no life, that he would not wake up. Thus, he was of no use to be put sitting on the car seats like a living person. Lastly, the act of PW5 on alarm, seeing the dead body with no head along the way which the Harrier car had taken on the preceding night, shows that, the carried and parked body of a person he saw on the preceding night, was the very one proved in the DNA as the victim’s body. On these situations, my mind is firmly made up that, these circumstantial evidences point only to the guiltiness of the accused persons herein and not otherwise. This is cemented with the lack of the accused persons’ defense evidence to prove otherwise. Further, the evidence of the victim’s step father (PW2) shows that, he saw the 1st accused person riding the victim’s motorcycle and that he caused the same to be arrested by militiamen. That testimony corroborates the testimony of PW3 who was informed on it and passed 18 that information to PW2, who in return, enabled the arrest of the 1st accused together with the motorcycle (Exhibit P2) that belongs to the victim. As the 1st accused person was found with the victim’s motorcycle, who was proved to have been killed recently, then the victim ought to have given to the court a reasonable explanation on how the said motorcycle came into his possession, otherwise, the 1st accused person is taken to be the killer. As the 1st Accused’s defence evidence lack reasonable explanation on it, then I am firm that the said 1st accused person together with the 2nd accused killed the deceased. See, Deogratias Nicholaus @ Jeshi and Another vs Republic, Criminal Appeal No. 211 of 2010 CAT Mwanza which stated that; - “We also think that the law is certain that if a person is found with goods recently stolen from a person murdered in a house, that raises a presumption that the accused was the murderer and unless he can give a reasonable account of the manner in which he became possessed of the goods, he would be convicted 19 of the offence (See also ALLY BAKARI AND PILI BAKARI v R (1992), TLR 10)”. On account of the afore stated reasons, I am firm that, both accused persons are responsible for the murder of the victim, Masoud Leonard. Hence, this issue is answered in affirmative. As for the third issue, whether the accused persons killed the victim with malice aforethought, I have the following observations; Almost all the prosecution witnesses who saw the victim, testified that, the victim’s body had its head chopped off and the stabbing wounds in addition. The Post Mortem Reports also shows the same. Further, among the inflicted part of the body being the neck which is a vulnerable part of the human body, and that the object used for cutting the victims’ body was sharp one, it means the accused persons had the intention of killing the victim. This makes my mind settled that, on the material date, the accused persons, intended to cut the victim’s neck to death. On that account, this issue too is answered in affirmative that, the accused persons killed the victim with malice aforethought. All said and done, with this evidence, and for want of evidence from the defense to create reasonable doubt, I am firm that the prosecution’s case has been proved beyond reasonable doubt as required by the law. 20 In view thereof, the accused persons, Charles Sangija @ Kiyumbi White and Amos Kitungulu, are hereby found guilty of the charged offence, that is, Murder, contrary to the provisions of sections 196 and 197 of the Penal Code [Cap. 16 RE 2019] and they are accordingly convicted. S.M. KULITA JUDGE 09/09/2024 DATED at SHINYANGA this 9th day of September, 2024 S.M. KULITA JUDGE 09/09/2024 21 22