MASUNGA PAGI MURDER BARIADI 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL SESSION CASE REF. NO. 202407172000019862 REPUBLIC VERSUS MASUNGA PAGI JUDGMENT 29th Nov. & 5th Dec. 2024. S.M. KULITA, J. The accused person, one Masunga Pagi 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 the 4th day of December, 2023 at Gambosi village, within Bariadi District, in Simiyu Region, the accused person murdered one John Nsabi Matulange. Facts presented by the prosecution which gave rise to this trial are the following; that on the material date at the night hours the accused person and his fellows who are yet to be arrested went to the deceased’s residential premise. That, upon hearing the dogs barking, the deceased went outside the house to see as to what was wrong. It is alleged that, upon the deceased 1 going outside the Accused person and his fellow culprits assaulted him by cutting him with panga on head and shoulder, the act that led the deceased to pass away on the spot. When the information of murder was read over to him during Plea taking and Preliminary hearing, the accused person pleaded not guilty thereto. Further, on 28th November, 2024 when the case came up for trial, the said information for murder was reminded to the accused person who maintained his plea of not guilty. While the Accused Person is represented by Ms. Zawadi Lazaro Masebu and Mr. Geni Vitus Dudu, Learned Advocates, the Republic is represented by Mr. Patrick Chale and Mr. Muganyizi Shubi, Learned State Attorneys. In discharging the duty of proving the charge against the accused person, the prosecution side called 4 (four) witnesses and tendered 1 (one) exhibit while the defense case comprises a total number of 2 (two) witnesses including the accused person himself. The 1st witness for prosecution namely Regina Masasi (PW1) testified that she was the 1st (elder) wife to the deceased one John Nsabi Matulange before he had passed away. She said that on 4/12/2023 the deceased had slept with the 2nd wife one Martha Peter in another house which is located 2 about 15 metres away, opposite to her house, but within the same campus. She further stated that while sleeping, at about 0200 hrs. she heard the dogs barking. She looked outside through the window and saw 4 (four) people. A moment later those persons broke the entrance door for her house and forcefully entered inside. PW1 said that, while entering into her house, the said bandits had kidnaped her elder son namely George whom they had gone with into her house. That, those persons had weapons, one of them had panga while another one had a stick. She said that, as the scene had an ample solar light, she managed to see those persons. However, she identified only one of them who was Masunga Pagi, the Accused person herein. She said that she knows him as they live in the same village and that her brother namely Maduhu has married his daughter. The said witness further narrated that thereafter 3 culprits went outside. They left her son George therein, they also left one bandit to guard them. A moment later she once heard her husband’s voice, “uuhwii” from outside the house that he had slept. She said that she never further heard the said person’s voice. Thereafter, the said 3 bandits came back into her house with the 2nd wife, Martha, being naked. PW1 said that they then 3 demanded money from her. She told them that she had no money. They thus left. PW1 said that she has no conflict with the accused person, but she knows that a few days before the killing of her husband the Accused person was found committing adultery with somebody’s wife and that the deceased is the one who called the alarm (mwano) which led to the gathering of people at the premise and that the accused was fined Tsh. 1,000,000/=. In the cross-examination PW1 said that she also attended the said adultery alarm. She also stated that their compass has 3 houses, 1 for each of the two wives and one for children. The 2nd witness one Martha Peter (PW2) testified to the effect that she was the deceased’s 2nd wife and that they were living with the elder wife in the same campus which comprises three houses at Gambosi village in Bariadi District. The witness narrated that on 4/12/2023 at about 0200 hours, while sleeping with her husband they heard the dogs’ barks. Her husband decided to go outside to see as to what was wrong. She said that, by that time there were some people talking outside. PW2 said that, as she was interested to make a follow up she went close to the exit door and opened it slightly in such a way that she was able 4 to see outside. She said that she managed to see 3 persons. That those persons had pangas. It is the further testimony of PW2 that she then saw one of the bandits cut her husband with panga on head while the other one cut him on the right shoulder. She said that, as the scene of crime had an ample solar light she managed to identify Masunga Pagi as one of the culprits. She said that she knows him as among their fellow villager at Gambosi. PW2 said that she shouted for help but a moment later the said bandits entered into their house and demanded for money. She told them that she had no money. They then took her to the elder wife’s residential house. Thereat they found the said elder wife as well as the said 1st wife’s elder son namely George. Pw2 identified the accused person in the dock as Masunga Pagi. PW2 said that the reason for the accused to kill her husband arose from the adultery incident that involved the Accused, whereby he was found committing adultery with somebody’s wife and that the deceased was the first person to arrive at the scene and facilitating the alarm (mwano). In the cross examination PW2 said that it is the Accused who had cut the deceased with panga on head and shoulder. She also said that the 5 deceased had left cash money, Tsh. 150,000/= on the table, they were taken by the bandits. The 3rd witness for Prosecution, one George Simon Nsabi (PW3), a student, aged 18 years old, testified that the deceased John Nsabi was his father. He was living with him, his two mothers and his youngs at Gambosi, Bariadi. He said that his blood mother is Regina Masasi while his young mother is Martha Peter. The witness stated that on 4/12/2023 at about 0200 hours, while sleeping in the children’s room he heard the dogs’ bark. He decided to wake up and go outside. Thereat he found a person holding a torch and panga. The said person detained him. He broke the door of his mother’s house and they all entered therein. He said that, a moment later he heard his father’s voice from outside claiming “uuhwii”. He said that, it was once and never heard it again. PW3 narrated that he then noticed that there were other bandits outside. The witness further stated that later on those other bandits came into his mother’s house with his young mother, Martha Peter. She was naked. He said that, among the said 4 culprits he identified the Accused Person herein whom he also identified in the dock. He said that he knows the Accused 6 person as they live in the same village, Gambusi, and that he is their relative on his mother’s side. He further testified that he managed to identify him as the scene was light due to the solar bulbs that were shining over the campus. In the cross examination PW3 stated that intentions of the bandits were to get money and revenging against the deceased who was the first person to attend mwano which led to the arrest of the accused and fined for committing adultery. A Police Officer, H 535 D/Cpl. Bwire, testified as PW4. This witness stated that he is the Investigation Officer for this case. He said that on 4/12/2023 he was assigned to investigate this matter. He started with noting down the witnesses’ statements and collecting exhibits including the Post Mortem Report. He said that on 4/12/2023 he went to the scene of crime with other Police Officers. As for the PMR that he had collected, PW4 stated that it has the name of the deceased, John Nsabi Matulange and name of the Doctor who had filled it, one Flavian Jackob Mnungula and the Rubber Stamp for Bariadi District Hospital. The witness identified it and tendered the same to court as exhibit. It was received and admitted as Exhibit P1. The said witness further narrated that as for the murder of the deceased, it is the Accused person who had killed him. The reason behind 7 according to him is that in his investigation he did notice that the accused did so as a revenge against the deceased for exciting his arrest in adultery and later on the penalty of payment of fine amounting the Tshs. 1,000,000/= against him. PW4 said that the Accused person was angered with those acts of the deceased, who was the first person to arrive at the scene and make the alarm, the act that led to gathering of people over there. Hence, promised to revenge against him. The witness further stated that the Accused person was seen by the deceased’s wife, Martha Peter, cutting the deceased on head by using panga. He concluded that he has no conflict with the Accused and he had never known him before. On these four 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 same law, the accused person opted to testify himself on oath together with one other witness. The Accused person, Masunga Pagi, testified as DW1. In his testimony he stated that, he lives at Gambosi Village in Bariadi District, within Simyu Region. The said person alleged that, on 4th December, 2023 at 0200 hours 8 he was sleeping with his family at his residential premise. While there he heard the alarm from the deceased’s premise. He woke up and went thereto with his son namely Lambo Masunga. He said that his wife, Kang’wa, remained at home. Having so reached thereat, he found some people gathered and got the information that John Nsabi Matulange had been killed. He witnessed the body there at the scene. The Accused said that, at about 0600 or 0700 hours the Police Officers arrived. At about 0800 hours they arrested him and took him to the Police Station alleging that he had murdered the victim, John Nsabi Matulange. He said that the reason behind according to them is that, the deceased was among the people who had attended the adultery alarm during the night of the 1st – 2nd day December, 2023 which involved him and wife of somebody Daudi who was not there on that material date. The Accused (DW1) said that the said incident led him to be fined a total sum of Tsh. 1,000,000/=. DW1 added that, it was not only the victim/deceased who had attended the said alarm, but other people, over 20 in number, also gathered over there at the residential premise of Mwanamageta who is mother of the woman found committing adultery with him. 9 For the said scenario DW1 alleged that the said incident has no connection with the killing of the deceased. He said that he also didn’t see him among the people who had entered into the house for negotiation of the fine that he was supposed to pay. DW1 further stated that, the deceased had never accused him in respect of that incident. In the cross-examination DW1 stated that he had never discussed with the deceased on the issue of adultery compensation. He also stated that he had no conflict with PW1, PW2 and PW3, the Prosecution witnesses. The accused person’s witness who is his wife, one Kang’wa Nzalima (DW2) testified that during the night of 3rd – 4th December, 2023 while she was sleeping with her husband at their home place in Gambosi, they heard the alarm. Her husband and one of their children namely Lambo went to attend. She said that at about 0800 hours she went to farm. While she was there, at about 1000 hours Lambo arrived and told her that his father, the Accused herein, had been arrested by police but he was not knowing the reason behind. As for the deceased, DW2 said that she knows him as John Nsabi. 10 In the cross-examination DW2 stated that her husband ever told her that he had been found committing adultery with somebody’s wife and penalized accordingly. That marked the end of both parties’ evidence. In view of the above evidence, the following issues call for determination: - 1. Whether the victim met unnatural death (if yes), 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. Concerning the first issue, whether the victim met unnatural death, it is not in dispute from both sides’ testimonies that John Nsabi Matulange is dead. According to the Post Mortem Report which has been admitted as Exhibit P1, the cause of death of the victim is Hemorrhagic shock, that is, loss of blood which led to failure of circulation of Oxygen in the body. The cut wounds on the head, neck and shoulder being the source of the said loss of blood as it can be so read at page 2 of the Post Mortem 11 Report, implies that the victim met with unnatural death. As there is no evidence disapproving this fact, I find no need of dwelling much on this issue. It is thus positively answered that the deceased’s, John Nsabi Matulange’s death was unnatural. Concerning the second issue, whether the accused person is responsible for the killing of the victim, the prosecution side relied on the visual and circumstantial evidence. As for the visual identification, the Accused person alleged that he had never gone to the scene at all on that material date and time, which means that the visual identification by PW1, PW2 and PW3 were mistaken. The prosecution through the eye witnesses especially PW2 namely Martha Peter who was a second wife of the deceased was able to adduce evidence that she saw the accused, Masunga Pagi, killing the deceased by cutting him with a Panga on the head, neck and right shoulder in front of their house. This witness said that there were other three (3) people who are at large accompanied him to the deceased’s home on that fateful day and time. The said witness testified under oath that she was sleeping with the deceased in their house, among the three houses on the compound, 12 whereby on hearing dogs barking and people talking outside the house they both woke up and opened the door and the deceased walked out of the house leaving PW2 who walked to the door and stood there watching what was transpiring outside where her husband had gone. The evidence transpires that there was a bright light outside sourced from a solar bulb and the scene was a few steps from the door where the said PW2 stood naked. PW2 testified of seeing the accused cutting the deceased with a Panga that led to his death. She further testified that she has been knowing the accused even before the fateful day for having seen him on the 1st day of December, 2024 where the accused was caught red handed sleeping with another man’s wife and that the deceased headed the gathering which caused the accused to pay a fine of Tanzanian Shillings One Million Only (1,000,000/=) as social justice for the crime against morality done by the accused on that date. Furthermore, PW2 testified that she did not have any conflict with the accused person which means that she was not in a position to incriminate him. As for PW1 one Regina Masasi, first wife of the deceased and PW3 one George Simon, son of the deceased, they testified on oath that they had no conflict with the accused person, but on 4th December, 2023 at about 13 0200 hours he and his fellow bandits detained PW3 who had gone outside after hearing the dogs’ barks. They then took him into the PW3’s house. It is evidenced that the said PW1 and PW3 saw the accused together with three (3) other people holding Pangas and a stick invading their home, breaking the entrance door of PW1’s house, harassing them, demanding money and later they heard the deceased outside the house yelling for help. According to PW1 and PW3 the deceased yelled once by the sound “uuhwi”, he then became silent. PW2 also testified on that. Later on, after the accused and his company had left. all these witnesses found the deceased’s body outside the house that he had slept with his second wife (PW2). In his defense, the Accused person denied to have gone at the scene on that material date and time. He said that he was at his residential premise with his family. He alleged that he had not attended the scene of crime at all. Hence he is not amongst the person(s) who had committed the said murder. For this evidence, the Accused person wants to make this court to regard that there was a mistaken identity by PW1, PW2 and PW3, the witnesses who alleged to have seen him at the scene of crime, and that he is the one who had cut the deceased by using panga according to PW2. The evidence of PW1, PW2 and PW3 show that the Accused lives in the same 14 village with them and they are relatives. They said that they know each other. Even the Accused person himself does not dispute this issue. In that situation I find the issue of mistaken identity cannot stand. My view on this is that, despite that the Accused tries to exonerate himself from being involved in killing the deceased, still the circumstance transpires that he actually involved himself in committing the said murder. The reason behind is that the said incident happened on 4/12/2023, just three days after he had been found committing adultery with the wife of somebody Daudi on 1/12/2023, Further, it was evidenced by PW1, PW2 and PW3 that the deceased was the first neighbor to arrive at the adultery premise and that he is the one who had raised the alarm (mwano) to call people who then gathered over there after that said alarm. The evidence further reveals and never challenged that the Accused person was ordered to pay a fine amounting Tsh. 1,000,000/=. For this scenario, obvious the Accused person generated anger to the deceased, that led him to plan to kill him and that he actually executed it. Though the deceased used to engage himself in the business of selling goats and that he had the cash money about Tsh. 150,000/= in the 2nd wife’s 15 house which were robbed by the bandits, my mind does not make me to believe that the deceased was killed by Robbers. I say so because the evidence, particularly that of the deceased’s wives (PW1 and PW2) do not show that the goats business by the deceased had started immediately before he was invaded and killed. Therefore, the source of killing the deceased was not robbery but the revenge against him by the Accused herein. 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 at DSM in which it was held; “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; 16 “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 reasonable doubt. As such, it is a right time now to verify as to whether these conditions have been met in this case. The fact that the said killing followed just a few days after the deceased had fanned the accused person for adultery, the act that led him to be penalized to pay a fine of Tsh. 1,000,000/=. The implication is that the Accused person was angry with the deceased for fanning the accused’s adultery. On the defense side the accused testified that he was at home sleeping with his wife and children during the night of the 4th December 2024 at 0200 hours when the crime was committed at the deceased’s house. His wife DW2 later during her testimony testified the same thing that the accused in the night of the 3rd – 4th December, 2024 went to attend mwano 17 as it was so done by the other villagers, but that does not mean that the accused must have not committed the said murder. It is possible that he had gone there for the purposes of reducing suspicion. By doing so he could have avoided the community spotting him the killer as he attended the alarm. Further, the law protects the woman who appears to defend her husband. Hence the evidence of DW2 who is the Accused’s wife should be carefully considered. As per the evidence that the defense witnesses have raised, I find it very weak to shaken that which have been adduced by the prosecution side. Hence it cannot exonerate the accused person from conviction. Therefore, it is made inherent that on the material date and time the accused was at the scene of crime and that he committed the alleged offence. This analysis also leads to the conclusion that the Accused person played role in killing the deceased, hence liable. The 3rd issue to be resolved is whether there was malice aforethought. This issue tends to find if the accused person can be liable for the offence of Murder or the lesser offence of Manslaughter. This can be resolved by the Post-Mortem Report, which was admitted to court as Exhibit P1. This was corroborated with the testimonies of the witnesses in court that 18 the deceased suffered multiple cut wounds in the upper part of the body being head, neck and shoulder and the nature of wounds suffered, that is deep cuts as per the Post Mortem Report. This reveals that the one who committed the crime had no other intention but to cause death, as the parts of the body that were inflicted are vulnerable, and the report clearly stated that the cause of death was hemorrhagic shock which was led by severe loss of blood. Under Section 200(a) of the Penal Code (Supra) the Malice aforethought can be established by; “An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not” Furthermore, PW4 namely H. 535 D/Cpl. Bwire, the Investigator in this matter testified that, in the course of investigation he discovered that the cause that led the accused to kill the deceased was a revenge against him for his (deceased’s) act of pioneering him to be caught in adultery which led him to be sanctioned the Tsh. 1,000,000/= fine. Thus, there was an ill motive in the mind of the accused since the day he was caught committing infidelity. 19 Therefore, it was proved that the accused intended to harm the deceased as a revenge for the sanction he was made to suffer on the 1st day of December, 2023 by the community including the deceased. It has therefore been proved that the Accused person did kill the deceased with malice aforethought. Conclusively, I find the Accused person guilty of Murder, contrary to sections 196 and 197 of the Penal Code [Cap 16 RE 2022] as charged. I thus convict him accordingly. S.M. KULITA JUDGE 05/12/2024 DATED at SHINYANGA this 5th day of December, 2024 S.M. KULITA JUDGE 20 05/12/2024 21