Amos Ghati Mkwaya

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT TARIME CRIMINAL SESSIONS CASE NO. 000013156 OF 2024 REFERENCE NUMBER 202405172000013156 REPUBLIC VERSUS AMOS GHATI MKWAYA JUDGMENT 27th February & 3rd March, 2025 M. L. KOMBA, J,: In this case, Republic who is complainant was represented by Mr. Charles Kagirwa Senior State Attorney, Mr. Davis Katesigwa, Ms. Denicia Towegale and Mr. Gasto Mtitu all State Attorneys while accused person enjoyed the legal services of Mr. Leonard Magwayega, advocate. It was alleged by prosecution that on 19 January, 2024 at Masurura Village in Tarime District in Mara Region accused Amos Ghati Mkwaya murdered Mwita Tugara Tugara. When the charge was read to accused, the latter denied hence the matter went to full trial. Page 1 of 21 The first prosecution witness, F. 4340 Sgt John is exhibit-keeper at Nyamwaga police Station, he informed this court that on 20/01/2014 he received a knife as exhibit from Afande Abel who on that day was RCO in- charge. He did not ask much about exhibit he received and he was not told any story behind it. The said knife was admitted as exhibit Pl. Prosecution paraded the Afande Abel, (PW2 H. 5090 Sgt Abel Deogratius) of Nyamwaga police. He testified that on 19/1/2024 while at his working station during night he received accused from D/Cpl Katyal who was suspected of murder in Gibaso/IR/02/2024. He received accused and send him to lock up. Then he received a knife as exhibit whereby he signed in a chain of custody and Katyal signed. When cross examined, he said accused was in good condition and was from Gibaso police post. He was further informed by those who brought exhibit that it was connected with commission of offence. He confirms to sign in chain of custody which did not indicate connection of Amos and exhibit. Further he declared he did not fill seizure certificate neither asked accused his connection to exhibit. D/ CpI Katyali was paraded as PW3, his working station is Nyamwaga police Station, he testified that on night of 19/1/2024 he was informed by OC CID Page 2 of 21 Nyamwaga that in Gibaso post there was murder case reported and he has to make a follow up. He went to Gibaso Police post and found OCS of the Post, Sgt Peter. He noted the murder case was reported as Gibaso IR/2/2024 and accused was arrested, is called Amos Mkwaya and there was exhibit which was knife. He signed in OB and took accused and exhibit to Nyamwaga police station. At Nyamwaga he said he handle accused and exhibit to PW2 and the two signed the chain of custody. He further informed this court that on the following day, 20/01/2024 he visited the scene at Mantare Masurura for inspection. He found Joseph Chacha Mwita who assisted him to draw the sketch map of the scene which was admitted as exhibit P2. During cross examination he elaborated that at point "B" of exhibit P2 show there was a fight between accused and deceased. He confirmed he received exhibit Pl from Sgt Peter of Gibaso Police post but he was not informed where he got the said knife. Surgent Peter from Gibaso police post also appeared in court and testified as PW4 (E 8439) He testified that on 19/1/2024 he was at Gibaso Police post and around 17:00 hours he saw motorcycle with 4 people, one of Page 3 of 21 them had a wound at his neck and when he asked what was wrong that victim said he was stabbed by Amosi who was with them in a motorcycle. He records statement of the victim and gave him PF3 for treatment. Then he received a knife from Joseph on account that it was used by Amos to stab the victim. He open file with number Gibaso/IR/02/2024 and I Labed the knife with Gibaso/IR/02/2024 and wrote a name of Amos on the label. He went on testifying that Victim was taken to Gibaso dispensary by Joseph Chacha Mwita, however around 19.00 hours witness received a call form Joseph who inform me that victim was died. He changed the offence and write murder. He was introduced to accused by Joseph and he put accused in lockup. After the death he handled the accused to PW3 and the exhibit which was knife to PW3 and both signed chain of custody. He managed to identify exhibit Pl and accused while at the dock. He went on testifying that while at police post, Mzee Mwita Tugara told him that he found cattle in his farm which he removes them, in the process he finds children. Those children run and he decided to follow them. On the way victim found four people including Amos Mkwaya, Livin and Joseph. They were arguing about the cattle whom he found in his farm and Mzee Page 4 of 21 Tugara decided to return to his home. He was informed that Amos and Livin followed Mzee Tugara when they reached him Amos stabbed Mzee Tugara on his neck and he (Mzee Tugara) fall down, Joseph chased Amos, hold him and took knife from Amos. Then Amos, Mzee Tugara, Joseph and others went to police to report the matter. He was told that Livin was together with Amos but he was not arrested. He wishes to tender statement of the victim but it was not admitted due to valid objection raised by defence counsel. Witness was cross examined by defence counsel and explained that he don't know the procedure of taking exhibit, he just gave PF3 to victim so that he may go to hospital which he confirm he did not tender as the patient died. He confirmed the driver of motorcycle was not arrested but he said he was not important. He clarified that he was given knife by Joseph Chacha who said it was used by Amos. Victim only mentioned the name of Amos. He confirms he did not fill seizure certificate when given a knife by Joseph because even Joseph did not fill any form at the village, he also confirm he did not ask Amos anything about the knife. He said victim and accused went together to police. When further cross examined, he Page 5 of 21 clarified the accused was assisting victim to take him to hospital as he asked for PF3. The victim was attended by clinical officer, Vitus Vitus Nyoni (PW5) while at Gibaso Dispensary. Victim was escorted by PW4 who had PF3. It was his testimony that patient had wound on the neck which was 4cm long and.3 cm deep, it was bleeding and he control that by stitching that wound. Physically the wound was caused by a sharp object. On 20/01/2024 morning he was informed that Mwita Tugara a patient whom he attended yesterday was dead. PW4 wanted the body to be examined. He said together with PW3 they went to Masurura village where the patient was and met Joseph Chacha who identified the body of Mwita Tugara. He informed this court that deceased had a wound on right side of the neck which was attended. He noted the deceased death was caused by too much bleeding which led to hypovolemic shock post mortem report was admitted at exhibit P3. Joseph Chacha Mwita Tugara was paraded as PW6 and testified that on 19/1/2024 he was building a house at Masurura village together with Petro Chacha Mwita, Amos and Livin Chacha. Then deceased went at that area Page 6 of 21 and complained cattle entered in his farm. He said after listen from him, he advised deceased to go to his home. Livin and Amos followed him while abusing him but deceased continue to go to his home. Later Amos, Livin and deceased started to fight, by then this witness started to follow them and found Mzee Mwita Tugara was down. Deceased told Witness to follow Amos is the one who stab him. He testified that he run after Amos and hold him and find him with knife. He returns Amos to place mzee Mwita Tugara and advise him (Amos) to take mzee Tugara to police. He took motorcycle with four people, (himself, Amos, mzee Mwita Tugara and Petro) to Gibaso police where they meet PW4. He informed this court that he gave knife to PW4 who then record statement of Tugara Mwita. They were given PF3 by PW4 and they went to Gibaso Dispensary. At the hospital deceased was stitched and referred to Masanga hospital where upon arrival he was declared dead. The following day he went to Gibaso police post to inform them that Mzee Mwita Tugara is dead. He testified that PW4 and PW5 went to the village and examined to body of Mzee Tugara. This witness confirmed that he assisted police to draw a map which he manages to identify his signature and confirm to know accused as they used to meet at the football pitch. Page 7 of 21 When cross examined by Mr. Magwayega he said Mzee Mwita Tugara dead while on the way to hospital. He confirmed that deceased and accused argued before accused stab the deceased. He was 80 footsteps away from the scene but he insisted he saw when Amos stab Mzee Tugara. When was reminded about his statement at police he insisted he record he saw Amos attacking deceased and accepted his statement to be part of evidence which was admitted as exhibit DI. Accused was the only defence witness who testified as DW1 (Amos Ghati Mkwaya) while under his counsel supervision he testified that he was employed on daily basis by Joseph and others who were building a house in masurura village that he will be paid TZS 8,000/. He complained that being small amount and they offered him a drink chang'aa, (gongo) that was 19/1/2024. He testified that around ll;00am they bought chang'aa and all started to drink chang'aa. Then accused went with complaint that cattle have enter in his farm. Following that complaint, Mzee Tugara, Joseph Chacha Mwita, Livin and Petro Chacha Mwita went to see the said farm while accused remain at site drinking chang'aa. After a while he saw Joseph Chacha Mwita at site while holding knife telling accused that his Page 8 of 21 friend Livin has stab Mzee Tugara. He stood up and together with Joseph they went to the place where Mzee Tugara was. While there, Joseph told accused that he has to be responsible for that injury. Joseph hold accused by force while ordered Petro to go and find motorcycle to took Mzee Tugara to Police. They start argument as accused denied to be responsible. Then motorcycle came, all went to police with Joseph and Petro and Mzee Tugara. At police accused was taken to lockup. He informed this court that when he remains alone at site, he was drinking chang'aa. It was his testimony that since morning it was Livin who had knife. He denied to kill Mzee Tugara and pray this court to find him innocent. During cross examination he insisted that knife belong to Livin and it was Joseph Chacha who gave it to police. He confirms to know Joseph, Livin and Petro. Although he drinks chang'aa that day but he was with sense. He clarified that he went to police because he was assisting Mzee Tugara. Upon the close of the defense case, the learned counsel for both sides prayed for final submissions. Page 9 of 21 It was Mr. Magwayega, defence counsel who started submission that it is the duty of prosecution under section 3 (2) of the Evidence Act, Cap 6 R.E 2019, however, that responsibility was not discharged because all witness failed to prove it was accused who killed deceased. That means they have failed to prove the offence beyond doubt. Further he submitted that evidence has holes and have failed to connect accused in the offence. Spotting holes, he submitted that PW1, PW2, PW3 and PW4 who are police have failed to establish chain custody with regard to exhibit Pl. The testimony of police shows the chain of custody was broken and they failed to establish the knife was from accused, to him it means accused had no knife. Basing on defence, it was Livin who had knife. Counsel went on submitting that some important witness like Petro was not paraded to inform this court that it was DW1 who had knife and what happened there after. About the testimony of eye witness, counsel said PW6 had contradicting testimony while at police and when is in court, that is enough to lower his credibility. The way PW6 explain accused stab and run and he was willing to go to police, suggests that that knife was from Livin. However, he complained about the seizure of the said knife. Attacking the exhibit Pl he complained that exhibit Pl was not labeled Page 10 of 21 rather, it was the cover which was labeled hence changed the nature it was knife as it was at the scene. Another short fall pointed by the counsel is failure of prosecution to establish chain of custody of exhibit. He went on submitting that during committal, prosecution list chain of custody as exhibit but was not tendered during hearing, to him, it means the knife was not from accused but was in the hands of their witness. It was his opinion that the case was not investigated and some witnesses were not paraded hence make the prosecution to collapse; and its effect is failure to prove the case beyond reasonable doubt against accused. It was his humble view that the accused person is not guilty as the prosecution have failed to prove their case beyond reasonable doubt. On the other side Republic via Mr. Gasto Mtitu submitted that the accused is charged of murder contrary to section 196 of Penal Code, Cap 16. He was of the submission that prosecution managed to prove the offence beyond reasonable doubt basing on three ingredients. Whether the death was unnatural, whether the accused committed an offence and whether the killing was with malice aforethought. On the 1st ingredient it was Page 11 of 21 testified by PW5 clinical officer that the killing was not normal as was caused by too much bleeding led to hypovolemic shock as presented in exhibit P3. On the second ingredient on who killed that accused, it was his submission that testimony of PW4 and PW6 provides the answer. It was PW4 who interrogated deceased while at Gibaso police post and deceased mentioned accused as the one who stabbed him on his neck and refer the case of Chacha Jeremiah Murimi and 3 Others vs Republic, Criminal Appeal 551 of 2015 that ability of a witness to name suspect on earliest point is assurance of his credibility. Further prosecution had PW6 who was eye witness, he was at the scene and witnessed accused stab the deceased. During cross accused admitted to know accused and the criteria which was established in Waziri Amani vs Republic, 1980 TLR 352 was met. About the contradiction found in PW6 testimony, he said the statement recorded at police and testimony done in court were from the same person who is PW6 and what was done during oral testimony was clarification of what was said at police. He refers this court to Abel Orua @ Matiku and Two Others vs Republic, Criminal Appeal No. 441 of 2020 Cat Mwanza at page 22 and 25. Page 12 of 21 In strengthening the point that it was accused who killed the deceased with malice, he submitted it was accused who followed deceased to the point where he stabbed him, he used dangerous weapon which is knife, and part of body was neck which is sensitive area in human body. All those were complimented by exhibit P3 which confirm cause of death and type of wound he said all those were found as was in Enock Kipela vs Republic, Criminal Appeal 150 of 1994. About the certificate of seizure and chain of custody he was of the position that failure to tender those exhibits is not fatal as witnesses testified orally what they did at the scene and supported his submission by Abasi Kondo Gede vs Republic Criminal Appeal 472 of 2017 Cat in DSM at page 18. That oral testimony of PW6, PW1, PW2 and PW4 show how and when knife was taken. Republic maintained that the killing was with malice as provided under section 196 of Cap 16 and they managed to prove it beyond reasonable doubts. Having summarized the case's evidence and the brief submission by both sides, it is undoubted that the said Mwita Tugara Tugara is dead and that he died of unnatural death (exhibit P3 and the testimony of PW5). Thus, the vital questions here to be asked in dispose of this case are mainly Page 13 of 21 three; Whether there is unnatural death, whether malice aforethought has been established and whether the accused person is responsible for the said killing. Regarding the 1st elements, it is undisputed throughout prosecution and defence evidence that Mwita Tugara Tugara is died and that his death was unnatural one. Despite the fact that the accused did not dispute the deceased death of Mzee Tugara, the evidence of PW5 and exhibit P3 (post­ mortem examination report) proved that the deceased death was due to massive bleeding resulted to hypovolaemic shock. The crucial issue is whether the deceased was murdered by the accused person paraded prosecution. It is obvious that the evidence to consider in order to determine whether the accused is responsible for the deceased's death rests on the testimonies adduced by PW4 and PW6. As the evidence suggests, PW4 was the first person to meet with deceased and accused while PW6 is eye witness who witnessed the accused assaulted Mzee Mwita Tugara on his neck. Page 14 of 21 I know in final submission both Republic and defence counsel submitted on the issue of certificate of seizure and chain of custody. This court shall not focus its analyses on that angle as in criminal case, offence may be proved even without tendering of a weapon used in commission of the offence. See Alex Mwashilindi and Another vs Republic, Criminal Appeal No. 626 of 2020. Also, in Simon Shauri Awaki @ Dawi vs Republic Criminal Appeal No. 62 of 2020 the Court observed that; 'Ora/ evidence can prove the case in the absence of documentary evidence provided that said oral evidence is credible and sufficient to prove the case concerted'. In the case at hand, I shall focus analysis basing on testimony of PW4 and PW6 in which I found discrepancies. First, PW4 testified that when the motorcycle arrived at Gibaso Police post, he saw four people one of them was injured. When he asked that victim what was wrong, he replied he was injured by Amos who he was together with in a motorcycle. Latter when explaining how he takes accused to lock up he testified that he was introduced to Amos, accused herein by Joseph Chacha. Page 15 of 21 Second, PW4 explained he received the victim, interrogated him and gave the PF3 to him so that he can go for medical services. He informed this court that victim was taken to Gibaso dispensary by Joseph Chacha Mwita (PW6) while PW5 who attended the victim at Gibaso dispensary testified that victim was escorted by PW4 who had PF3. Before I make a ruling on whether discrepancies are major or minor let's look on another one. Third, in his testimony PW4 informed this court that he was informed of the death of Mzee Mwita Tugara the evening of the same day and it was PW6 who phoned him and break that news. Unlike PW 6 in his testimony informed this court that when he was aware that Mzee Tugara is dead, he took the body to his home and in the morning of the following day he went to police and inform PW4 about the death of Mzee Tugara. That being not enough. Fourth, PW6 testified in this court that when they arrived at Masanga health center he was informed Mzee Tugara was dead and he took him back to his home while in his statement (exhibit DI) he records that Mzee Tugara died on the way to Masanga, they did not reach Masanga health center and decided to took him to his home. Page 16 of 21 Fifth, while in court PW6 testified that he saw Amos attacking Mzee Tugara and during cross examination he explain even the distance he was standing allowing him to see when Amos stab Mzee Tugara. However, in his recorded statement (exhibit DI) he said he saw Mzee Tugara falling down and it was victim who informed PW6 that he was stabbed by Amos. Section 112 of the Evidence Act, provides as follows: ' The burden of proof as to any particular act lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall He on any other person.' That provision was echoed by the Court in Abdul Karim Haji vs Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2014 that: \...It is an elementary principle that he who alleges is the one responsible to prove his allegation.' See also Festo Komba vs Republic, Criminal Appeal No. 77 of 2015, Court of Appeal of Tanzania. Proving the offence beyond reasonable doubt refers to the cardinal principle which entails that in any criminal trial, the evidence led by the prosecution must incriminates accused to the extent that there is no other hypothesis than the fact that the accused person committed the offence Page 17 of 21 with which he stands charged. (See Anthony Kinanila and Another vs The Republic, Criminal Appeal No. 83 of 2021. Further, prosecution when proving the offence must have credible witnesses, The Court make criterion to be considered as assessing witness in the case of Shabani Daud vs Republic, Criminal Appeal No. 28 of 2001 thus; 'The credibility of a witness can also be determined in other two ways that is, one, by assessing the coherence of the testimony of 16 the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses...' It is trite law that contradiction can only be considered as fatal if it is material going to the root of the case. See Sebastian Michael & Another vs The Director of Public Prosecutions, Criminal Appeal No. 145 of 2018. As far as the prosecution evidence in this case are concerned, it raises a huge doubt due to the contradictions between material witnesses PW4 and PW6 and lower their credibility. I am of the views that, the contradictions arose between PW4 and PW6 evidence are not minor, they go to the root of the case. I find the discrepancies injured the prosecution case as the PW6 tend to be eye witness while it was not true and he had two version Page 18 of 21 of his testimony of which both are said to be true. It is not clear whether he saw Amos attacking Mzee Tugara or he saw Mzee Tugara falling down or find Mzee Tugara was down. On 27/02/2025 he testified that he saw when Amos attacking victim who then dead but on 20/01/2024 he records that he saw Mzee Tugara falling down. PW6 is not clear what he saw and therefore it is impossible to believe him on the rest of his evidence even to whom he took knife. From record, there were two people who followed Mzee Tugara and it was not proved who had knife and who stabbed the victim. I said this contradiction is not minor as it answers a question who killed deceased. The same position is on PW4 who said the victim was taken to hospital by PW6 while he was found at the Gibaso Dispensary with the victim. Also, it is not clear when he knows that Mzee Tugara was dead is it the same day or the following morning. This is a witness who testified that he was informed by victim that it was Amos, accused who injured him. Why should this court believe on that single statement while he had versions of contradiction. This contradiction raised doubt if the victim mentioned accused to be responsible for his injury. The discrepancies tainted the whole prosecution evidence. Page 19 of 21 The Court of Appeal in the case of Mohamed Said vs The Republic, Criminal Appeal No. 145 of 2017 held that a witness who tell a lie on a material point should hardly be believed in respect of other points. See also Zakaria Jackson Magayo vs The Republic, Criminal Appeal No. 411 of 2018, CAT at Dar es salaam. In this case, I find difficult to believe testimonies of PW4 and PW6 in so far as their testimony is concerned and makes their testimonies to contain lying at some points. In the upshot, I have found critical shortfalls in the prosecution case. I have gone through the testimonies of the prosecution witnesses, their testimonies are tainted with contradictions, and it is not innocuous for this court to rely upon their testimonies. Therefore, I am left with no piece of evidence to support the conviction of the accused person for the murder. For the reasons I endeavoured to explain above, I find the prosecutions have failed to prove their case beyond reasonable doubt as required by the law. I don't find the need to analyse defence of the accused as he has no obligation to prove his innocence. See John Madati vs Republic, Page 20 of 21 Criminal Appeal No. 453of 2017, Mosha & Rajabu vs Republic (1967) HCD No. 384 and Mohamed Sanl Matula vs Republic [1995] TLR 3 Ultimately, I find Amos Ghati Mkwaya not guilt and acquit him of the offence of murder contrary to section 196 of the Penal Code [CAP 16 R.E 2022]. I order the accused person to be released from the prison unless he is otherwise lawful held. M. L. KOMBA Judge 03rd March, 2025 Right of appeal is fully explained. M. L. KOMBA Judge 03rd March, 2025 Page 21 of 21