akonaay nade JUDGEMENT

TH E JU D IC IA R Y O F TANZANIA IN T H E H IG H CO U RT O F TANZANIA AT MANYARA C R IM IN A L SESSION NO. 000027936 O F 2024 R E P U B L IC ................................ C O M PLA IN A N T / A PPELLA N T / A PPLIC A N T VERSUS AKONAY NADE @ PAULO S/O NADE AND A N O T H E R ................................ RESPO N D EN T / DEFENDANT JU D G M EN T KAM UZORA, J 18th &20th February, 2025 This matter involves blood relatives; Banga Tahani who is the father of Marmo Banga (PW2) and Deli Banga (the 2nd accused) and a grandfather o f Akonay Nade (the 1st accused). In the late night of 30/1/2024, Banga Tahani (now the deceased) was sleeping in his house together with his son Marmo Banga (PW2). Suddenly, the door of their house was forced opened and two men armed with machete and club entered. PW2 was able to identify the two invaders as Akonay Nade @ Paulo Nade who is his nephew and his blood brother one Deli Banga the two accused persons before this court. The accused attacked the deceased and PW2 causing serious injuries to PW2 and the deceased succumbed to death. The accused persons were aligned before this court to answer the charge of murder contrary to sections 196 and 197 o f the Penal Code [Cap 16 R.E 2022]. The prosecution side paraded 9 witnesses as follows; PW1 Amedeus Benard Shayo is a medical doctor who examined the deceased's body, PW2 Marmo Banga is the eye witness and the victim o f the attack, PW3 Andrea Gitian is the hamlet chairman who attended the crime scene, PW4, Regina Michael Msigwa is a justice o f peace who recorded extra judicial statement, PW5, J. 903 CPL Abushir is the police officer and exhibit keeper, PW6, G.1900 D/CPL Isack is a police officer who visited the crime scene, seized exhibits and arrested the first accused person, PW7, G.8686 DC/CPL Imran is the police officer who interrogated and recorded the cautioned statement o f the second accused person Deli Banga, PW8, F.1683 D/SGT Walii is the police officer who interrogated and recorded the cautioned statement for the first accused person Akonay Nade and PW9, F.8298 DC Venant Kelege is the police officer and an investigator in this case. The prosecution side also tendered six exhibits; a report on postmortem examination (exhibit PEI), extra judicial statement o f the accused Akonay Nade (exhibit PE2), one machete (exhibit PE3), Certificate o f seizure (exhibit PE4), cautioned statement o f the accused Deli Banga (exhibit PE5) and cautioned statement o f the accused Akonay Page. 1 Hon.. DEVOTHA K AM UZORA Nade (exhibit PE6). On the defence side, the accused persons defended themselves on oath and present no other witnesses or exhibits. According to PW2, on the night o f the material incident, he was sleeping with his father (the deceased) in the same house when the accused persons invaded them armed with machete and club. That, immediately after the accused persons entered the house, the 2nd accused started attacking PW2 using a club and he injured him on his mouth/lips and the back. When PW2 screamed for help, the deceased woke up but was attacked by the 1st accused who was armed with a machete. After the attack, the two accused persons fled away leaving the two victims with serious injuries. The deceased was injured on his head and left leg while PW2 was injured on his lips and the back. Since PW2 was not badly injured as compared to the deceased, he managed to go to the ten-cell leader to report the incident and the ten-cell leader informed the hamlet chairman Andrea Gitian (PW3). Andrea Gitian rushed to the crime scene and found people already gathered including the 1st accused person. PW3 with the help of the deceased's relatives and the 1st accused, sent the injured to Daudi Health Centre for treatment. The deceased was pronounced dead upon arrival at Daudi health Centre but luckily, PW2 survived the attack and was discharged after treatment. In his testimony PW1 Amcdcus Benard Shayo, a medical doctor who examined the deccased's body testified that the deceased had three wounds; two at the back o f the head and one at the left leg. The doctor's evidence and report on postmortem examination (exhibit PEI) show that, the deceased sustained two scalp cut wounds at the occipital; one measuring 16x7 centimeters and another measuring 13x7 centimeters in 'V' shape which transacted the skull to expose the brain matters. That, the wounds were bleeding with sharp margin and extensive brain tissue exposed. To his opinion, more power was applied in inflicting such wounds. The prosecution evidence also shows that, after the incident was reported at the police station. PW6 and other police officers visited the crime scene and at the deceased's house, they found the cow skin which was covered in blood on the bed used by the deceased. They also went to the house of the deceased's wife which was used by the accused persons where they recovered one jacket and one pair o f trouser with blood stains which they were informed that they were being used by the 1st accused person. The police officers collected exhibits including the machete (exhibit PE3) used to commit the crimes as evidenced by the certificate of seizure (exhibit PE4). The evidence also shows that, when the police officers visited the crime scene for the first time, the 1st accused Akonay Nade was at Daudi health center where he had escorted the victims for treatment. He was arrested by PW6 on the same day and sent to the police station. He was interrogated by F.1683 D/SGT Walii (PW8) and in his cautioned statement (exhibit PE6), the 1st accused confessed to have attacked the deceased. On 04/02/2024, the second accused person Deli Banga was arrested at Masieda village and sent to the police station. He was interrogated by G.8686 DC/CPL Imran (PW7) and confessed to have planned with first accused to attack his father (the deceased) and his brother (PW2). His cautioned statement was admitted as exhibit PE5 showing that they invaded the deceased's house on the fateful night whereby the 1st accused assaulted the deceased on the head using a machete and the 2nd accused person assaulted PW2 on the mouth using a club. It is also in evidence that the accused persons confessed before the justice of peace Regina Michael Msigwa (PW4). The extra 2 Hon.. DEVOTHA KAM UZORA judicial statement for the first accused person was admitted as exhibit PE2. In their defence, the accused persons never denied to have planned the attack o f the deceased and PW2. However, they claimed that they never intended to cause his death. They alleged that the attack was just a warning because o f the deceased's behavour of disregarding them and favouring only PW2. The first accused Akonay Nade (DW1) testified that, the deceased was his grandfather but he abandoned them and gave more attention and favour to Marmo Banga (PW2). He readily admitted that on 30/01/2024 he agreed with the second accused (DW2) to go and attack the deceased. When going to the deceased’s house, the first accused was armed with machete while the second accused was armed with a club. He claimed that, after they had opened the door, the second accused assaulted PW2 using a club and when the deceased woke up to help, the first accused tried to stop him but he was overpowered by the deceased. That, it was in such fracases, the first accused injured the deceased with the machete on his head. He therefore prayed for lcnience o f this court in punishing him as he never intended to cause the deceased's death. He contended that, he only attacked the deceased because o f his favoritisms to PW2 and they attacked PW2 because he was badmouthing and passing false information to the deceased against the accused persons. The second accused Deli Banga (DW2) testified that the deceased was his father. He also admitted that he planned with the first accused (DW1) to attack the deceased and his brother (PW2) in the night o f 30/1/2024. He explained that, after entering the deceased's house, PW2 screamed thus, the second accused did hit him twice on the mouth with a club. That, the deceased woke up but he was attacked by the 1st accused who was armed with a machete. DW2 testified further that, after the incident, he decided to escape the same night and he was later arrested on 03/02/2024. He prayed for lenience o f this court in punishing him but admitted that he was wrong in attacking his father. Having gone through the prosecution and defence evidence, I find it necessary to assess the elements o f the offence o f murder and test if the evidence proved the offence charged in the standard required in criminal cases, that is, beyond reasonable doubts. The accused persons stand charged with murder contrary to section 196 and 197 of the penal Code [Cap 16 R.E. 2022]. The Court o f Appeal o f Tanzania sitting at Arusha in the case o f L au ren t Kisingo v Republic, Criminal Appeal No. 123 o f 2013 (unreported), expounded three essential elements in proving the offence o f murder under section 196. It stated that; "It is now settled law that fo r the offence o f murder to be proved; three ingredients have to be established. One, that the person is dead. Two, it is the accused who killed the deceased. Three, the killing was done with malice aforethought. "[Emphasis added]. Guided by the above decision, the prosecution had a burden to prove beyond reasonable doubt that; Banga Tahani Akonay is dead, the accused persons are responsible for the deceased's death and that, they killed the deceased with malice aforethought. Based on the evidence on record, the first two elements are not in dispute. There is no dispute Banga Tahani Akonay is dead. Both prosecution witnesses and defence witnesses confirmed such fact. It was also supported by PW1, the medical doctor who performed the post mortem examination on the deceased's body and confirmed his Page. 3 Hon.. D EVOTHA KAM UZORA death. Again, it is not in dispute that the deceased never died a natural death. He died due to excessive bleeding after he was attacked with a machete. The attack was confirmed by PW2 who witnessed the incident and the fact that the deceased died out o f injuries was also confirmed by PW1 who examined the deceased's body to established the cause o f death. There is also evidence o f confession in which the accused persons confessed to have attacked the deceased and PW2. Such confession was made before the police officer and before the justice of peace. The accused persons also admitted before this court to have attacked and killed the deceased. With such evidence, there is no doubt that the accused persons caused death of the deceased Banga Tahani. The only disputed issues are; whether there was common intention among the accused to commit the offence and whether the killing was with malice aforethought. Starting with issue on common intention, section 23 o f the Penal Code Cap 16 R.E. 2022 read as follows; "When two or more persons fo rm a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution o f such purpose an offence is committed o f such a nature that its commission was a probable consequence o f the prosecution o f such purpose, each o f them is deemed to have committed the offence. "[Emphasis added]. It was the second accused's defence that he was not the one who attacked the deceased thus the killing of the deceased should be blamed on the first accused who attacked the deceased. It is in evidence that the accused persons agreed and formed an intention to invade the deceased's house in order to attack both the deceased and his son (PW2). In his cautioned statement (exhibit PE5) and his defence before this court the second accused confessed to have invaded the deceased's house at the night accompanied by the first accused. They were both armed meaning that, they both planned to cause injuries. They both directed the attack to the heads of the victims and inflicted fatal wounds save that, the person who was attacked by the 2nd accused survived the attack. Even after the attack, the second accused took the deceased's money TZS. 60,000/= and shared it equally with the 1st accused. All those conducts suggest that they both formed common intention to commit the offence as the second accused was a privy to the preparation and commission o f unlawful act. In that regard, the result o f the conducts of each of them makes all o f them jointly responsible. From the evidence on record, both accused persons are responsible for causing the deceased's death. On the issue o f malice, it can be established based on the accused's conducts before, during or after the commission o f the offence. As regard to the conducts o f the accused before the incident, the defence evidence shows that the accused persons had prior grudges against the deceased for they blamed the deceased for refusing to apportion land and cows to them and for favouring PW2. They also claimed that the deceased and PW2 used to falsely accuse them for things they did not commit. Therefore, there is no doubt that, before the assault on the deceased, the accused persons had motive and formed an intention to attack the deceased driven by the above stated reasons. The accused persons also admitted to have planned to attack the deceased and his son (PW2). In executing their plan, the accused persons went to the deceased's house at night armed with weapons; a machete and a club. This shows that the accused intended to cause harm to the deceased and PW2. Page. 4 Hon.. DEVOTHA KAM UZORA mm I do not agree with the accused persons’ defence that the reason for the attack was only to pass a lesson to the deceased who was acting in favour to PW2 while ignoring the accused person and refusing to apportion farm and cows to them. Such defence could not be a reason for the accused persons to have invaded the deceased's house at night while armed with dangerous weapons like machete and club. Since they both agree that they were enraged with the deceased's conducts o f ignoring them, it suggests that they formed evil motive to attack the deceased and they went to his house at night while armed with weapons. Therefore, the accused persons’ conducts before the incident suggest that they formed malice. On the accused persons' conducts during the commission, the evidence shows that, they stormed into the deceased's house armed with dangerous weapons which signifies that, they had intention o f carrying out vicious attack against the deceased and PW2. They carried out their motive by attacking PW2 and the deceased who were not armed. The accused persons' defence that they never intended to cause death is weak in considering the weapons used, parts of the body aimed for the attack and number o f blows inflicted on the deceased. The deceased was attacked with a machete which is dangerous weapon and he was attacked on the head which is a vulnerable part o f the body. Even the number o f blows inflicted to the deceased suggest that it was intended for dangerous harm and even death. According to the doctor and the report on postmortem examination, the deceased had three wounds, two on the head and one on the left leg. The part o f the body injured suggest that, they were aimed at killing if not causing disfigurement or grievous harm. The deceased sustained two scalp cut wounds at the occipital, one measuring 16x7 centimeters and another measuring 13x7 centimeters in 'V' shape which transacted the skull to expose the brain matters. The doctor formed opinion that more power was applied in inflicting such wounds. Thus, the defence by the first accused that he accidentally injured the deceased does not hold water. All these taken together, point into an irresistible conclusion that they intended to kill the deceased. On the accused persons’ conducts after the commission o f the offence, the first accused was found immediately after the incident. He even attended the call at the scene and participated in escorting the victims to hospital. However, he never disclosed to anyone that he was responsible for the attack until when he was arrested by PW6. Thus, his defence that it was an accident cannot stand for he never reported the matter instantly. It is also in evidence that the second accused fled the scene and the village after the commission o f offence and he was arrested about three days later in another village. All the accused's conduct after the incident suggest that they had malice. In totality, the conducts o f the accused person before, during and after the commission o f the offence lead to irresistible conclusion that they had formed malice to kill the deceased. Basing on the above discussion, I find that the prosecution side has managed to prove the case against both accused persons beyond reasonable doubt. I therefore find the accused persons, Akonay Nade @ Paulo Nade and Deli Banga @ Emmanuel Banga guilty o f murder contrary to sections 196 and 197 o f the Penal Code [Cap 16 R.E 2022] and I convict them forthwith. Dated at TH E H IG H C O U R T O F TANZANIA AT MANYARA this 20th o f February 2025 . D. C KAMUZORA JUDGE OF THE HIGH COURT Hon.. DEVOTHA KAM UZORA