MENDEZ

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 14 OF 2023 REPUBLIC VERSUS ANDRON NICODEMUS MENDEZ RULING S,M. MAGHIMBLJ: On night of the 20/11/2022, at Skanska area In Salasala area of Kinondoni District of Dar-es-salaam Region, at 2300 hours the accused was alleged to have used a firearm at an incident of an attempted robbery at his yard "Koppa Gas" located at Salasala ("Scenario 1"). According to PWl, a Police Officer then acting OCD of Mabepwande Police District, at around 0400 hoursof the 21/11/2022 she received information from the Inspector in charge that while he was in patrol, he received information that at Madale Skanska area there were gunshots heard and the culprit had surrendered at Madale police along with the weapon that he was using. She proceeded to the scene of crime and upon arrival at the scene which was a yard, they found a watchman called Dadi who was from Homasa Security guard who informed her that he was there to Inspect the scene of crime after being 1 called and informed that something happened there and he came and found no one so he was guarding the place. PW3 observed some blood at the gate before getting out but she was informed that all the other evidence had been taken away by Insp. Semvua. PW3 was another person who spoke of the incident at Skanska, his testimony was that on 21/11/2022 at around 0030 hours, following his car breakdown, he was at Tegeta police. There came one person called Andron Mendes who parked the car, greeted him and reported that he has a yard at Salasala along the road going to IPTL where he was selling gas. He also informed him that when he arrived at the yard he found some thieves and when they saw him they threated to cut him with pangas and he had to shoot in the air so as to save himself. He was there for help, PW3 advised him to go to Madale Police which is in Mabwepande District as it was the proper place to report. According to PW3. The accused also told him that he owned the weapon that he used to shoot in the air. On another event, 15 days later, on the 4"^ day of December, 2022, a body was found lying lifeless in a bush at Misugusugu Area in Kibaha C'Scenario 2"), reports were made to the police who arrived at the scene collected the body and took it to Tumbi hospital at Kibaha. Upon arrival at Tumbi Hospital in Kibaha, a Doctor(PW2) performed an autopsy of the body in the presence of some police investigators (PW8) and a relative of the deceased (PW5). According to the Doctor (PW2) \what they found during postmortem is that the deceased died after a blunt object was inflicted in the head piercing the skuii and the brain from one end to another causing intracerebrai and dura hemorrhage (EXPl). The question remains as to who inflicted the wound on the deceased that caused his death. The prosecution connected the incident at Scenario 1 where there was some shooting, with the body that was found at Scenario 2. Accordingly, on the 19"^ day of December, 2022 the accused was arraigned in the District Court of Kinondoni initially charged with the offence of Murder contrary to Section 196 and 197 of the Penal Code, Cap. 16 R.E 2022. The prosecution alleged that on the 20''' day of November, 2022 the accused person did murder on Saiim Ally Haji. It is important to note that the body of Saiim Ally is the one found at Kibaha Misugusugu and examined by PW2. Before this court, the accused is charged with the offence of Manslaughter Contrary to Section 195 of the Penal Code, Cap 16 R.E 2022. He is alleged to have unlawfully caused the death of the said Saium Ally. In order to prove their case the prosecution paraded 11 witnesses and upon conclusion of the prosecution case, the matter is coming for ruling on whether the prosecution case has established a Prima Facie case against the accused person to make him have a case to answer. Having gone through the evidence the prosecution evidence, I find that there is no witness who had seen the accused killing the deceased, their case solely depends on circumstantial evidence. It is also crucial to note that the deceased body was found in another region far away from the place that the killing allegedly took place. Therefore it is the duty of the prosecution at this juncture to have established evidence whose chain bridge the two scenarios and leave no doubt than to connect the allegations against the accused person with the death in question. There is a big bridge to be constructed in order to connect the facts that what allegedly happened at Tegeta Skanska (evidence of PWl, PW3, PW9. PWIO and PWll) who testified about an incident that took place at Tegeta Salasala Skanska area involving some gun shooting and blood samples collected, is connected to the incident that took place at Kibaha Misugusugu (PW2, PW4, PW5, PW6, PW7) where the body of the deceased was found in the sense that the body that was found at Kibaha was the same shot at Salasala. At this point, it is important to shade some light as to what is meant by circumstantial evidence and the grounded elements upon which the prosecution must establish in order to show that the evidence that was adduced leaves no doubt and leads to only one conclusion, that it was the accused who committed the alleged offence. Unlike direct evidence which supports the truth of an assertion directly; circumstantial evidence Is the type of evidence that relies on an Inference(s) arising from an unbroken chain of events to connect It to a conclusion of a fact. Considered on Its own, circumstantial evidence can have a room for more than one explanation, hence different pieces of circumstantial evidence may be required, so that each corroborates the conclusions drawn from the others leading to proof of guilt of the accused. In a criminal trial, an explanation Involving circumstantial evidence becomes more likely once alternative explanations have been ruled out. Therefore, the evidence requires an Inference to support guilt. When a case depends on circumstantial evidence, the prosecution Is duty bound to adduce the Inculpatory facts which are Inconsistent with the Innocence of the accused person and Incapable of explanation upon any other reasonable hypothesis than that of guilt. In the Indian case of Hanumant Govind Nargudkar & Another Vs. State of Mandya Pradesh. AIR 1952 SC 343, the Court held: "It is well to remember that In cases where the evidence Is of circumstantial nature, the circumstances from which the conclusion ofguHtIs to be drawn, should be In the first Instance, be fully established, and all the facts so established should be consistent only with the hypothesis of the guHt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved. In other words, there mustbe a chain ofevidence so far complete as notto leave any reasonable ground for In conclusion, consistent with the Innocence of the accused, and It must be such as to show that within all human probability the act must have been done by the accused." From the above, it is important that before drawing the inference of guilt from circumstantial evidence to be sure that there are no other co existing circumstances which would weaken or destroy the inference. Furthermore, in the case of Simon Musoko v R.[1958] EA 715 it was held that: "In case depending exclusively on circumstantial evidence, the court must find before deciding upon conviction, that the Inculpatory facts are Incompatible with the Innocence of the accused and Incapable ofexplanation upon any other hypothesis than that ofguHt." From the above, it can be compiled that for a conviction based on circumstantial evidence to succeed, it must irresistibly point to the guilt of the accused such that the circumstances from all the evidence adduced lead to no other conclusion except that the accused is the person who committed the offence he Is charged with. I must also point out at this juncture that I am well aware that before me Is a decision whether the accused person has a case to answer from the evidence that was established by the prosecution. It is not a judgment stage where the defence evidence would have also been considered. However, I am also alive with the fact at this stage, all that the court is required to do is to determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged to require him to enter a defence. Therefore, at this point, I will not determine the credibility of the witnesses who testified nor is a stage to determine the inconsistencies of evidence between the witnesses because in doing so, I will be striving to establish a reasonable doubt in the evidence. Whilst at this stage, all am required to do is the assessment of the evidence as a whole to see whether there is insufficient evidence adduced by the prosecution such that even if taken at its highest, no conviction could be reached. Coming back to the case at hand, as I have said earlier, there is no eyewitness who aiiegediy saw the accused killing the deceased, this leaves the prosecution side with the hard task to connect the gunfire at Saiasaiaia with the body found at Kibaha. I will start with the evidence of PW3, who is the one that the accused informed that he has a yard at Saiasaia along the road going to IPTL where he was selling gas. PWl testified that the accused told him that when he arrived at the yard he found some thieves and when they saw him they threated to cut him with pangas and he had to fire his gun in the air so as to save himself. Thereafter he ran to the police station for help where he found him and he (PW3) advised the accused to go to Madaie Police which is in Mabwepande District which was the proper place to report. When asked about his weapon, testified PW3,the accused said he owned it and had all the necessary documents with him. PW3 did not testify to have seen the firearm with the accused nor the papers pertaining the said firearm. That was the end of his testimony. On another evidence, it has been alleged by PWl, PWIO and PWll that when they arrived at the scene of crime where the accused had told PW3 that they had been attacked, they found some blood spots on the ground and that some blood samples were taken for further investigation. On the same note, according to the witnesses who were at Kibaha where the deceased body was found, inciuding PW2, PW5, PW6, and PW7; biood sampies were coiiected from the body of the deceased when an autopsy was being conducted at Tumbi hospitai. Now, given the fact that there is so far no eyewitness who saw the accused kiiiing the deceased, it is the expectation of this court that since the evidence is purely circumstantial, the evidence should establish and connect the dots by bringing results of the DNA test that were to be conducted on the samples coiiected at the scene of crime at Saiasaia with the sample coiiected from the body of the deceased at Kibaha Misugusugu. This would connect the incident at Saiasaia with the body at Misugususgu. Unfortunately, none of this was done. Therefore up until this point, there's still no connection between the body that was found at Misugusugu with the incident that took place at Tegeta. This was not inconsistent evidence, rather insufficient evidence to connect the two incidents/scenarios considering the fact that the body was found more than 13 days later in another region. More over, in all the prosecution evidence there is no Witness other than PW9 who testified of the diseased presence at the scene of crime on the alleged incident date. This witness however turned hostile and in the prosecution attempt to impeach the witness proved futile. That part of his evidence adduced suggests that the deceased left the scene at around 8.00 pm and never came back while the incident is alleged to have taken place after 11 pm. Therefore the evidence that is remaining on record does not show that the deceased died on the 21^ of November 2022 and found at Misugususu. The absence of the fact that the deceased was killed at the scene of crime lives a lot to be desired, let alone the fact that he was even present at the scene of crime at the time of the alleged shooting. The gap in the prosecution evidence gets wider because one; there were blood samples that were taken at the scene of crime and blood samples taken from the body of the deceased found at MIsugusugu. However, the test results were brought to court and no reason was adduced as to why there Is no report produced In court or the fate of the samples so collected at the two scenes. Two; an autopsy was conducted on a body alleged to have been killed on the 21=^ of November 2022 but found on the 4''' of December 2022 which Is 13 days after the disease was allegedly killed. Now I asked myself If a body was examined 13 days later and there were some blood samples taken was there actually blood or blood clots? This takes me back to what I question earlier, why did the DNA test results of the two samples taken at the two scenes not brought to this court. Was there an omission by design, 10 because it is simple logic, finding blood at the scene of crime doesn't mean that someone was killed. Therefore, it was important for the prosecution evidence to show that the blood in the two samples, that is from Kibaha and Salasala where from the same human being. Unfortunately, all these gaps In prosecution evidence made the connection between the body that was found at Misugusugu with the incident that took place at Salasala a parable. Under the circumstances and given the fact that the prosecution relies solely or circumstantial evidence I have seen no piece of evidence that has connected the deceased death with the incident that took place at Salasala. I'm aware, as said earlier, at this point I only have to decide whether there has been established evidence sufficient to make the accused have a case to answer. The important thing is that even at this point, the onus is still on the prosecution to prove that the chain Is complete and the infirmity of Lacuna in prosecution cannot be cured by false or weak defence or even a plea. The evidence so established should be consistent only with a hypothesis of the guilt of the accused, it should not be explainable, on any other hypothesis except that the accused is guilty. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the Innocence of the accused. 11 According to what has been before me as I have analyzed above, I see no connection between the deceased presence at Salasala on the 21^ November 2022, and his body being found 13 days later at Misugusugu. That being the case, since there's no evidence that during the incident at Tegeta a person was shot and killed, I cannot drag the two far apart scenes of crime to connect the dot that it was the accused who killed the deceased. This means the prosecution has not established any prima facie case against accused person, so I asked myself what should the accused come and answer to? Should I put an obligation to know why the deceased went to the pharmacy and did not come back, or where was he or where did he go for the period of more than 12 days before his body was found, to the accused? Given the fact that the blood samples from the two scenes was collected but there is no explanation whatsoever as to why the DNA test result were not brought to the court; should the accused be put under the obligation to explain whose blood was it that was found at the scene of crime and prove that it was that of deceased? I have posed these questions because the prosecution evidence left these facts, originating from their own evidence unanswered. The prosecution evidence failed to establish that there was a person who was actually wounded at the scene of Crime, let 12 alone kllled. Therefore, the assertions that there were blood traces and samples collected remain unfounded as there is no plausible explanation as to why the DNA test were not brought to court. Since the dictates of law require the prosecution to establish a prima facie case to make the accused have a case to answer, and that was not fulfilled, it will be unfair to put the accused on the witness stand to answer a charge of manslaughter that he is charged with while the evidence did not suffice to do so. In conclusion therefore I find that the prosecution evidence has failed to establish a prima facie case against the accused person to make him have a case to answer. Section 293(1) of the Criminal Procedure Act, Cap. 20 R.E 2022 provides: "293.-(1) Where the evidence of the witnesses for the prosecution has been conciuded, and the statement, ifany, ofthe accused person before the committing court has been given in evidence, the court, if it considers after hearing the advocates for the prosecution and for the defence, that there is no evidence that the accused person or any one ofseveral accused person committed the offence or any other offence of which, under the provisions ofsections 300 to 309 of this Act he is liable to be convicted, shaii record a finding ofnotguiity." 13 Under the provisions above, having found that the prosecution evidence failed to establish a prima facie case against the accused to make him have a case to answer, I hereby find the accused not guilty of the offence that he is charged with. I therefore proceeded to acquit the accused person. Dated at Dar-es-Salaam this 14*^^ day of February, 2025. o N > S.M.I^IAGHIMBI JUDGE 14