PASKAL so PETRO SAQWARE v R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE NO. 22080 OF 2024 THE REPUBLIC VERSUS PASKAL s/o PETRO SAQWARE………………………...ACCUSED PERSONS JUDGMENT 14th and 17th February 2025 MIRINDO, J.: A group of children who were pupils of a Nursery School in Babati District within Manyara Region were on 20 February 2024 returning home when they met a man holding a machete at Kinyume Bridge located in Odedra’s sugar plantation at Mapea Village. The man asked them to follow him so that he could pluck palm fruits for them. Other children ran away but one of them followed him, he carried her on his back and left with her. The children reported to this fact to their parents. The villagers began a search for the missing child. A group of villagers who searched in the direction of a gully along Odedra’s sugar plantation saw blood and the deceased body on gully in the water. Near the gully they found a blue T-shirt with white stripes on the sides and a pair of green slippers. Information was sent to Magugu Police Station, police officers came, inspected the area, removed the body from the water. The head was detached from the body. They went on searching and located the head some three paces inside the water from where the body was recovered. Police officers left with the deceased 1 body, the pair of slippers and the T-shirt. The next day, that is on 21 February 2024, a person, who was seen peeping out and hiding back in the sugarcane plantation near the gully where the deceased body was recovered, was arrested by a group of villagers and handed over to police officers who on the way returning to the scene. The man was soon recognised as Paskal Petro Saqware and the deceased body as that of a Nursery School girl whom for reasons of privacy is dubbed as “CIM”. The accused, Paskal Petro Saqware, is now being charged before the High Court at Manyara Sub-registry with murdering CIM contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E. 2022]. The prosecution case was conducted by learned State Attorneys consisting of Ms. Rose Kayumbo, Ms. Bernadetha Mosha and Mr. Jackson Mayeka. The accused was defended by Mr. Kuwengwa Ndonjekwa, learned Defence Counsel. In a murder charge under section 196 of the Penal Code, the prosecution carries the heavy responsibility to prove beyond reasonable doubt that: (i) there is unlawful killing of a human being, (ii) the unlawful killing was caused by the accused person, and (iii) the accused unlawfully killed the deceased with malice aforethought. To start with, there is no doubt that CIM was unlawfully killed. There are consistent testimonies of Philemon Jackson Mbogo, the third prosecution witness; Ramadhani Hamadi Gambasina, the fourth prosecution witness; Petro Paulo Muhozi, the fifth prosecution witness, all of whom went to the murder scene and saw blood and the head detached from the human body inside the gully. Petro Paulo Muhozi, the deceased’s foster father stated that at the gully they saw blood on grasses and a 2 flowering plant called “Ndelule.” These accounts are corroborated by the testimony of E.7152 Detective Sergeant Masanja, then stationed at Magugu Police Station. He was part of a team of police officers who, on 20 February 2024, went to the location where CIM was killed. He testified as the ninth prosecution witness. Inside the gully he saw blood on the grass and a human body with no head. He retrieved the body from the gully and covered it by a sheet. Police officers returned inside the gully and located the head and noticed that it was cut from the body by a sharp object. The deceased’s body underwent a post-mortem examination on 24 February 2024 at Magugu Health Centre. The examination was performed by a medical doctor, Paulo Ndonge Chacha, who testified as the first prosecution witness. The medical doctor recorded that the head was detached from the body and the death was caused by haemorrhagic shock secondary to sharp wound on the deceased’s neck and right upper limb. He pointed out that the body was joined during the post-mortem examination. These facts indicate that the deceased child was unlawfully and brutally killed. The next issue is whether the accused, Paskal Petro Saqware, is responsible for the unlawful killing of CIM. The accused denied the murder charge. The prosecution evidence linking the accused with killing CIM is highly circumstantial. I will first deal with DNA evidence. On 28 February 2024, the sixth prosecution witness, Assistant Inspector Chisano Bigolame, took the accused to Babati Town Hospital for collection of a blood sample. He was accompanied by G.3104 Detective Corporal Amos. The blood sample was collected by Dr. David Temba, the eighth prosecution witness and placed in a purple bottle labelled with letter “A”. Assistant Inspector Chisano handed over the purple bottle to F. 2449 Sergeant James, the 3 eleventh prosecution witness, an exhibit keeper at Babati Police Station. The exhibit keeper told the Court that the purple bottle was stored in a fridge located in the exhibit room. On 6 March 2024 the exhibit keeper handed over the exhibits to F8912 Detective Constable Amos Peter Ramadhani, the latter having being instructed by the Babati Officer Commanding Criminal Investigation Department (OC-CID), Assistant Superintendent of Police, Songalieli Jwagu to take them to the Government Chemist Laboratory Agency in Dar es Salaam. The exhibits were the purple bottle marked with letter “A” and the blue T-shirt marked with letter “B”. Also handed over to Detective Constable Amos Peter Ramadhani were a covering letter, Police Form 180 and Sample Receipt Notification. On 7 March 2024, Detective Constable Amos Peter Ramadhani handed them to Ally Omary Kinanda of the Government Laboratory Agency in Dar es Salaam. The covering letter dated 5 March 2024 and the Police Form 180 were admitted as exhibit P 4 while the Sample Receipt Notification was admitted as exhibit P 5. These documents were tendered by F.8912 Detective Constable Amos Peter Ramadhani himself, the eleventh prosecution witness and Mr. Ndonjekwa objected to their admissibility on account that the witness was not a sampling officer in terms of section 33 (3) of the Human DNA Regulation Act 8 of 2009. I overruled the objection on the principle that this was more of a question of weight rather than admissibility. The fact that exhibits P3 and P4 have been tendered in court by the eleventh prosecution witness suggests that they were never handed over to the Government Laboratory Agency on 7 March 2024 unless some explanation is given how they changed hands and returned to the witness who tendered them. Given that Ally omary 4 Kananda, who received the exhibits at the Government Laboratory Agency eventually testified as the thirteenth prosecution witness and admitted receiving the two exhibits from Detective Constable Amos Peter Ramadhani, I am satisfied that the puzzlement has not occasioned miscarriage of justice. Section 33 (1) of the Human DNA Regulation Act mandates that the sampling officer must ensure that DNA samples are transported through “appropriate and safe means.” There is no evidence to show that eleventh prosecution witness was a sampling officer authorised to transport the DNA samples as envisaged by the provisions of section 14 (3) of the Human Regulation Act and Regulation 19 (1) (d) of the Human DNA (General) Regulations. There is no evidence of transportation safeguards. Proper management of human DNA samples is very important in ensuring the integrity of human DNA samples submitted for DNA analysis. The significance of proper management of human DNA samples has been highlighted by the Supreme Court of India in Naveen alias Ajay v the State of Madhya Pradesh 2023 INSC 936 at para. 19: …if DNA evidence is not properly documented, collected, packaged, and preserved, it will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence as it can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen even when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches the area that may contain the DNA to be tested. The exhibits 5 having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed, and sent for DNA Profiling. It follows that I accord no weight to exhibits P3 and P4 and thus there is no basis for considering the Forensic DNA Profiling Test Report that was admitted as exhibit P 6. Aside from DNA evidence, the identification of the accused hinges on circumstantial evidence of the last known person to be seen with the deceased while she was still alive. This form of circumstantial evidence is part of a rebuttable presumption of fact arising under section 122 of the Evidence Act [Cap. 6 R.E. 2022]. The essence of the presumption is that the person last seen with the deceased bears full responsibility for the death of the deceased unless sufficient explanation is offered for the death: Mathayo Mwalimu and Another v R, Criminal Appeal 147 of 2008, Court of Appeal of Tanzania at Dodoma (2009); Twaha Elias Mwandungu v R [2000] TLR 277; Juma Zuberi v R [1984] TLR 249 and Makungire Mtani v R [1983] TLR 179. The prosecution bears the burden to prove beyond reasonable doubt the fact of “last seen” (R Sreenivasa v State of Karnataka [2023] INSC 795 at paragraph 15) and there must be something establishing connectivity between the accused and murdering the deceased rather than merely being together (Kanhaiya Lal v State of Rajasthan (2014) 4 SCC 715 at paragraph 12). The prosecution must prove existence of reasonable proximity between the time of seeing the accused person and the recovery of the body so as to rule out the possibility of interference by another person: State of Goa v. Sanjay Thakran (2007) 3 SCC 755. Despite huge time gap, it may still be possible to establish non-interference by another person. Finally, all other circumstances negativing 6 accused’s innocence of the accused should as was reiterated in Dharam Deo Yadav v State of Uttar Pradesh 2014 (5) SCC 509: It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into… The duty to clarify circumstances negativing accused’s innocence is also evident in cases of Abdu Boni Matwanji v R, Criminal Appeal 40B of 2011 (2014) and Katabe Kachochoba v R [1986] TLR 170. Once the presumption is rebutted it brings into operation the provisions of section 114 (1) of the Evidence Act by requiring the accused to explain facts “especially within his knowledge.” Addressing the application of section 106 of the Indian Evidence Act, 1872 which is in pari materia with section 114, the Supreme Court of India in State of Rajasthan v Kashi Ram [2006] INSC 753 held that: … Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always 7 upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain… Once the presumption is rebutted, the accused must offer an explanation on how and when he parted company with the deceased. the duty to offer some explanation has been clarified in a Nigerian case of Ekaidem v. State (2012) ALL FWLR (Pt 631) 1587 at 1591: …under the doctrine of last seen, it behoves the accused person to give explanation and establish on the balance of probability that there was a parting of the ways between himself and the person who alleged to have been seen with him. Put differently, it must be shown on the preponderance of evidence that when they parted ways or became separated, the person was still alive and they were not seen together again until the person turned-up dead The accused’s failure to provide reasonable explanation, creates “an additional link in the chain of circumstances proved against the accused”: Krishna Mahadev Chavan v State of Maharastra AIR ONLINE 2021 BOM 94 at paragraph 47. Applying these principles in the instant case, the first issue to consider is whether there is evidence showing that the accused was the last person to be seen with CIM before CIM’s body was subsequently recovered. The key prosecution witness identifying the accused as the last person to be seen with CIM is GR. GR, aged seven years old, a Nursey School in Babati District child testified as the tenth prosecution witness. Consistent with the 2024 amendment to the Law of Child Act, the Court created a 8 conducive environment for GR to testify and ensured the presence of a social welfare officer, Yasinta Utamwa Josia; and GR’s mother, CJ. After some preliminary questions, I directed GR to give unsworn evidence. GR told the Court that when he was returning home from school with other children, they met a man carrying a machete who told them to follow him so that he could pluck palm fruits for them. The man was wearing dreadlocks. They met the man at Kinyume Bridge in Odedra’s sugar plantation. CIM followed him and he carried her on his back. GR added that they followed that man from behind, called CIM and then ran away. GR and other children returned home. On arrival at home, GR informed his mother that they met a man who said he was going to pluck palm fruits for them, they refused but CIM left with him. Equally, GR answered that he did not where CIM was. Has the prosecution proved beyond reasonable doubt that the accused was the last person to be seen with the deceased while still alive? In other words, is GR a reliable witness? One must guard against is the danger of a child witness being tutored. Is there such danger in this case? Apart from stating that the accused wore dreadlocks at the time he met them, GR added in Kiswahili that: Alivaa kaptura imepunguzwa, alivaa shati impunguzwa. This childish description of the accused clothing was repeated when GR was cross- examined by Mr. Ndonjekwa. I find this description consistent with childhood. The child referred to his mother as “Mamaa” in examination in chief by Ms.Kayumbo, and as “mama…[GR]” in cross-examination by Mr. Ndonjekwa. I find nothing alarming in these references. 9 As to GR’s memory, he recalled the name of his nursery school, his teacher’s name, his father’s name, deceased’s name, and first names of his fellow children with who was returning home. In an attempt to test his memory, I asked him if the deceased had a sibling. GR mentioned the deceased’s sibling first name and added that she was not schooling and mentioned the location where the deceased’s girl was living with her sibling. Is GR’s evidence credible? There is some prosecution evidence corroborating GR’s account. There is evidence of the deceased’s mother and foster father, the second and fifth prosecution witnesses that on 20 February 2024, the deceased went to the Nursery School but never returned back with her school mates. As to the accused clothing there is evidence of the deceased’s foster father, Ramadhani Hamadi Gambasina, E.7152 Detective Sergeant Masanja, G3024 Detective Corporal, the fifth, fourth, ninth and fourteenth prosecution witnesses and that a blue or dark-blue T-shirt with white stripes on the sides was found at the crime scene. GR’s description of the accused clothing partly matches with that of the T-shirt. Similarly, the deceased’s mother pointed out that when the deceased left for Nursery School, she was dressed in school uniform and a pair of green slippers. This pair of slippers, according to the accounts given by Philemon Jackson Mbogo, Ramadhani Hamadi Gambasina, Petro Paulo Muhozi, E.7152 Detective Sergeant Masanja, the third, fourth, fifth, and the ninth prosecution witnesses, was found at the crime scene.Among the items Detective Corporal Amos seized from the crime scene were a pair of green slippers, and he tendered them at the trial as exhibit P 8. 10 The blue T-shirt was also seized from the crime scene by Detective Corporal Amos. The blue T-shirt and the pair of sandals were handed over to F. 2449 Sergeant James, the eleventh prosecution witness. The second set of facts to be proved by the prosecution is the duration when the accused and the deceased were last seen together and the subsequent recovery of the dead body. GR’s testimony is that they used to return from the Nursery School at noon. The testimony of the deceased’s mother is that CIM used to return home around 11 am. The deceased’s foster father, mentioned noon as the time CIM used to return from the Nursery School. The time that CIM used to return was established to be between 11 am and 12 noon. I find nothing disturbing on this time range taking account the way children walk and behave on the road. When children are alone on the road, they may run, play and even sit down on their way to school or home. News about the disappearance of CIM reached different people in Mapea Village around 2 pm as testified by the third and fourth prosecution witnesses. Police officers, according to the ninth prosecution witness, received information about the murder around 2 pm. According to the fifth prosecution witness, police officers came to the location where the deceased body was found around 3 PM. From these accounts, CIM’s body was discovered between 2 and 3 in the afternoon. These accounts indicate reasonable proximity of time from when the accused disappeared with CIM to when her body was subsequently discovered in the gully at Odedra’s sugar plantation. In addition, the accused was identified at an identification parade conducted on 22 February 2024 at Babati Police Station by Assistant Inspector Chisano Bigolame, the sixth prosecution witness. The accused was identified by two children who were with 11 CIM at the time she was taken away. These were the seventh prosecution witness, GR, and SD who did not tesitfy. The accused admitted in cross-examination by Ms. Kayumbo that both children recognised him in the identification parade. A social welfare officer, Linda Jackson Minja, the seventh prosecution witness, was involved in the identification parade. At the conclusion of the identification parade, the accused signed the identification register. The identification register which is a Police Form No. 186 was admitted as exhibit P3. I overruled Mr. Ndonjekwa’s objection that Assistant Inspector Chisano never indicated in the Police Form that he was an investigation officer as required by the provisions of section 60 (1) of the Criminal Procedure Act [Cap. 20 R.E. 2022]. In cross-examination, the accused complained that Assistant Inspector Chisano forced him to sign the identification register. The accused stated becoming aware of being forced to sign the identification register during his defence case! Another complaint is that Linda Jackson Minja counted them and returned with the children. I find these complaints without merit in so far as the accused never revealed them to his defence counsel and neither Assistant Inspector Chisano nor Linda Jackson Minja were never cross-examined on them. GR, the seventh prosecution witness, identified the accused at the dock. Despite changing sitting arrangement in the court room to produce conducive environment for GR to testify, when GR was asked if the accused was in court; GR moved a little bit from the seat and pointed out at the accused who was sitting at the dock and remarked in Kiswahili: “Huyu hapa.” Evidence of identification parade is mostly corroborative and not independent evidence (Benson Kibaso Nyankonda alias Olembe Patroba Apiyo v R [1998] TLR 40) but is useful in supporting dock identification: Mussa Elias and Two 12 Others v R, Criminal Appeal 172 of 1993, Court of Appeal of Appeal of Tanzania at Mwanza (1996). The evidence of identification parade and dock identification strongly corroborate GR’s evidence that he properly identified the accused as the person who carried away the deceased when he met them at Kinyume Bridge. The third set of facts is whether apart from being seen together there are other circumstances negativing the accused’s innocence. There are some facts from the accused’s defence corroborating the prosecution case. In cross-examination by Ms. Kayumbo, learned State Attorney, the accused admitted that: I did not have sufficient reason for taking …. [CIM] and slaughter her. This statement constitutes not mere corroboration of GR’s account. It further corroborates prosecution’s evidence that the accused took the deceased to the gully and slaughtered her. Secondly, there is some evidence pointing to the accused’s presence at the locus criminis offering the accused an opportunity to murder CIM. The prosecution’s evidence is that on 21 February 2024 the accused was seen peeping out and hiding in the sugar cane plantation owned by Odedra. According to Philemon Jackson Mbogo the distance from the gully to where the accused was hiding was about ten paces. The accused was arrested by a group of villagers, and handed over to police officers and this fact was admitted by the accused himself in examination in chief. His only disagreement is that he was not arrested in the sugarcane plantation. The accused’s explanation is that he passed through the Kinyume Bridge around 10 in the morning and that he was a thief who was on the sugar cane plantation to steal and was eating sugarcane at the time of 13 his arrest. These statements indicate that there is no dispute that the accused was on the sugarcane plantation at the time of his arrest. Where was the accused on 20 February 2024? The accused offered no explanation as to his whereabouts on that date. It is clear that on 20 February 2024, the accused, holding a machete, walked from Gichameda towards Magugu and passed through the Odedra’s path, picked CIM and left with her towards the gully in the sugar cane plantation. Later that day CIM’s body and head were found in the gully and on 21 February 2024 the villagers saw the accused hiding in the sugar plantation near the place where the deceased body was found and arrested him. I am satisfied that these facts constitute grave incriminating circumstances pointing to the accused ‘s role in killing CIM. It is clear to me that these facts sufficiently establish that the accused killed the deceased. The last point for consideration is that of malice aforethought. There is sufficient evidence of malice aforethought. The facts that CIM was slaughtered, blood found on the grass and flowering plant in the gully, and CIM’s head separated from the body constitute ample evidence of malice aforethought in the nature of intention to cause death under section 200 (a) of the Penal Code [Cap. 16 R.E 2022]. In the final analysis, I find Paskal Petro Saqware guilty and convict him of murdering CIM contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022] DATED at BABATI this 17th day of February 2025 14 F.M. MIRINDO JUDGE COURT: Judgment delivered in open court this 17th day of February 2025 in the presence of the accused person and in the presence of his defence counsel, Mr. Ndonjekwa, and in the presence of Mr. Mayeka, State Attorney for the Republic. B/C: Ms. Anna Mathayo (RMAs) present. F.M. MIRINDO JUDGE SENTENCE Paskal Petro Saqware has been convicted of murder of CIM contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E 2022]. The offence of murder attracts a mandatory sentence of murder under section 197 of the Penal Code. Accordingly, the accused, Paskal Petro Saqware, is hereby sentenced to suffer death by hanging. It is so ordered. F.M. MIRINDO JUDGE 17/2/2025 15 COURT: Right of appeal explained. F.M. MIRINDO JUDGE 17/2/2025 16