Maige ruling final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB - REGISTRY OF SHINYANGA AT BARIADI CRIMINAL SESSION NO. 6379 OF 2025 REPUBLIC VERSUS MAIGE KIYANDA MASUKE RULING 2nd & 2nd April 2025 Massam, J: - The accused person one MAIGE KIYANDA MASUKE is charged with the offence of murder contrary to section 196 and 197 of the Penal Code Cap 16 R.E 2019 The information was read over and explained to the accused person who is required to plead thereto on his plea he pleaded not guilty to the charge. It was alleged that on 26th day of June, 2024 at Mwatungu street within Bariadi District in Simiyu Region the accused person murdered one Mhinga D/O Magoso. When the matter was called for plea taking and preliminary hearing, the information of murder was read out and explained to him and he pleaded not guilty. 1 When the matter was called for hearing the prosecution side were represented by Ms. Vaileth Mshumbusi and Godrian Tillya learned state Attorneys while the accused person was represented by Mr. Samweli Lugundiga learned advocate. In proving their case the prosecution summoned a total of (2) two witnesses and 1(one) exhibit. The prosecution evidence according to its witnesses were as follows PW1 one Luguga Vedastus, who testified as medical doctor, he said that he is working at Nguliati Health Center and before that, in 2024 he was working at Somanda Town Hospital. He added that he had experience of 12 years. His testimony is to the effect that on 27/6/2024 at 1:00 pm while at his office he was called by one policeman namely Abrahaman Ally who told him to conduct post mortem of one body namely Mhinga Magoso. He stated further that he went to the mortuary in order to conduct post mortem before doing that the body was introduced to me by two deceased relatives. Further to that he said that after that he started to conduct post mortem and found out that deceased had a wound on her neck and the body was covered with the blood. He realized that the said wound was caused by the sharp object and the cause of the death 2 was loss of blood which was caused by that cut wound and after that he filled post mortem report which was admitted as exhibit P1. D/SGT Goodluck testified as PW2, who said that he is policeman at Bariadi police station. That on 26/6/2024, at 6:00 pm, he was at his office with his fellows at 11:00pm he was called by ASP Seme who told him to prepare policemen to go to be scene, as there was a murder happened at Isanga village. PW2 said that they went at scene and arrived there at 11:45pm and found some people gathered and the body of the deceased was still there. So they tried to ask if there is a suspect of that murder and gathering mentioned one Maige Kiyanda, and the said Maige was surrounded by many people who were in the scene, the deceased body was covered by blood and had a wound on her neck. The body was taken to the hospital for further examination and the suspect to the police station for interrogation. After that he was handed the file to proceed with investigation and he interrogated accused person who denied to commit offence. Again he recorded the statement of Folio C, Ng’habi Hambi who told him that at 7:00 pm he saw accused person with his mother and one person whom he did not know, he saw them like they had some misunderstanding. 3 PW2 stated further that when Folio C got at Wala center, he heard the cry for help and been informed that Mhinga Magoso was cut by bush knife and died. He was told that Folio c informed the chairman of that area and they went together to the scene, he told chairman that he is suspecting Maige who is a deceased son because the last time, he saw Maige with his mother and one person who he did not recognize him, and it seems that they had misunderstanding. Lastly, PW2 said that in his investigation he found out that accused person was the one who murdered his mother because he was a last person to be seen with deceased person, and the first person to inform people about the death of his mother. Having heard the evidence from prosecution witnesses and closed their case this court is required in terms of section 293 (1) of the Criminal Procedure Act to make a finding if this evidence adduced has established a case to answer against the accused person as charged for the offence of murder. It is a mandatory procedural requirement that after the closure of the prosecution case, the court is required under section 293 of the CPA to prepare a ruling, finding as to whether the evidence by the prosecution has established the prima facie case for the accused person to answer it. If it finds that the prima facie case has been established, 4 then the accused person will be called upon to defend himself, and inform him his rights guaranteed under section 293 (2) of the CPA. If the same is not established, then the court will proceed to make findings that the same has not been established and proceed to acquit the accused person. The term prima facie case has not been statutorily defined. However, in the case of Director of Public Prosecution Vs Morgan Malik & Nyaisa Makori, Criminal Appeal No 133 of 2013 CAT- (unreported) it was held inter alia that; “a prima facie case is made out if, unless shaken, it is sufficient to convict an accused person with the offence with which he is charged e or kindred cognate minor one ...... the prosecution is expected to have proved all the ingredients of the offence or minor cognate one thereto beyond reasonable doubt. If there is a gap, it is wrong to call upon the accused to give his defence so as to fill it in, as this would amount to shifting the burden of proof” In Ramanlal Trambaklal Bhatt Vs The Republic, (1957) EA 332, defines prima facie to mean, "one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence". 5 This means that at the closure of the prosecution case, the prosecution has a duty to make sure that the evidence given to the court is strong without any gap capable to convict an accused person. The prosecution always had a duty to make sure that a case must be proved beyond reasonable doubt as stated to the case of Mariki George Ngendakumana vs Republic in criminal case No 353 of 2014 Court of Appeal Bukoba (unreported), which inter alia held that: "It is the principle of law that in Criminal Cases the duty of the prosecution is two folds, one to prove that the offence was committed, two that it is the Accused person who committed it" That being the case, it is worthy and instructive at this stage, to look at what section 110 and 112 read together with section 3 (2) (a) of the Evidence Act [Cap 6 RE 2022] in as far as the burden and standards of proof of a criminal charge is concerned. These two concepts were interpreted in the case of Woodmington Vs OPP, (1935) AC 462. The philosophy behind the principle of Prima facie case is actually premised on the principle enshrined in the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, which insistently held that the accused person should only be 6 convicted of an offence he is charged with on the basis of the strength of the prosecution case and not on the weakness of the defense case. That is a reason as to why at the closure of the prosecution case, a case must apparently be proved already, at the required standard of beyond reasonable doubt. And in order for this court to convict an accused person of offence of murder, the following key ingredients must be properly proved. i. That, the victim of the crime mentioned in the charge is actually died, ii. Whether the death was not natural, iii. Whether it was the accused person who caused the death of the deceased, iv. Whether the killing of the deceased was with malice aforethought. Turn to our case, the accused persons are charged with an offence of murder contrary to section 196 and 197 of the Penal Code Cap 16 RE 2022. With regard to the first question as to whether the victim of the crime mentioned in the charge is actually died, it is not disputed by both parties that the victim one Mhinga D/O Magoso actually died, 7 the same was proved by postmortem report which was tendered as P1 by PW1 who was a doctor who examined the body of the deceased and found out that she had a cut wound on her neck which cause her death after loss a lot of blood. Also PW1 said that the deceased body was covered by the blood. Again it is from the testimony of PW2 who said that they went to the scene and saw the body of deceased lied down covered with blood with the cut wound on his neck. According to the said piece of evidence all make this court to believe that the victim one Mhinga Magoso died. On the second issue that whether the death was not natural, this is answered also by Exhibit P1, postmortem report, which proved that the cause of the death was due to loss of blood caused by cut wound with caused by the sharp object. Again the evidence of PW2 said that when they arrived at scene they found the deceased body which was covered by blood and it had a wound on her neck, thus evidence proved that the death of the deceased was not natural. Responding on the issue whether it was the accused person who caused the death of the deceased, PW2 testimony suggests that the culprits of the deceased are not known, but he assumed that the accused person is the one who is responsible with the said murder after been told by Ng’habi Hangi that 8 accused person was a last person to been seen with the deceased at some river which was between Wala and Mwantungu street and it seems they had some misunderstanding. It is trite law that every witness is entitled to credence and must be believed and his/her testimony accepted unless they are good and cogent reasons for not believing a witness. This is as per the case of Mathias Bundala vs Republic, Criminal Appeal No. 62 of 2004 CAT at Mwanza where it approved the case of Goodluck Kyando vs Republic (2006) TLR 363, where the court held that: “it is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless they are good and cogent reasons for not believing a witness”. Turn to our case, PW2 was the one who was told by Ng’habi Hangi (Folio C) that he saw the accused, deceased and another person who did not recognize him and he was the one who was the first person to inform the relatives about the death of his mother that why he assumed that accused person is the one who killed the deceased but during the cross examination by Mr Samwel Lugundiga advocate, PW2 said that no witness saw Maige killing his mother. Also he said that he did not heard anything which accused person and deceased was talking but also Folio C did not report any where about that situation until he heard that 9 deceased was died. So according to that it is the view of this court that PW2 testified hearsay evidence from Folio C (Ng’habi Hangi) and that evidence was not corroborated by Folio C himself. In the premises I find that the evidence of prosecution witness is not credible hence unreliable because there was no evidence to prove that the accused person killed the deceased. Thus the second issued is answered in negative way. On the last issue that Whether the killing of the deceased was with malice aforethought. Matters relating to what necessitates malice aforethought are provided under section 200 of the Penal Code, supported with numerous cases including the case of Makungu Misalaba V. Republic, Criminal Appeal No. 351 of 2013 I CA (unreported) while citing the case of Enock Kipela V. Republic, Criminal Appeal No. 150 of 1994, CAT (unreported) that; "Usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various, including the following: (1) the type and size of the weapon, if any used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow were directed at or inflicted on: (4) the number of blows, although one blow may, depending upon the fact of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, If any, made 10 before, during or after the killing; and (7) the conduct of the attacker before and after the killing." As the prosecution side has failed to prove that the accused person killed deceased person. Then the last issue must be answered in negative way, because no malice aforethought may be established while accused person is not responsible with murder. The important issue for consideration here is whether the prima facie case by the prosecution side has been sufficiently established to require him give his defence as per law. The first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. It is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2002], and cemented in the case of Joseph John Makune v R [1986] TLR 44 at page 49, where the Court of Appeal held that:- "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well-known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities...” 11 The second principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of Tanzania in the case of Mohamed Haruna@ Mtupeni & Another v R, Criminal Appeal No. 25 of 2007 (unreported) held that:- “Of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." It means the evidence must be so convincing that no reasonable person would ever question the accused’s guilt. See the cases of Mohamed Said Matula v Republic [1995] TLR 3, Anatory Mutafungwa v Republic, Criminal Appeal No. 267 of 2010, Court of Appeal of Tanzania and Festo Komba v Republic, Criminal Appeal No.77 of 2015, Court of Appeal of Tanzania (both unreported). Since, there is no evidence that accused person committed the offence, there was mere allegation that the accused person was a last person to been with deceased, which in fact that is not offence. Therefore, you cannot convict accused persons on that weak evidence. 12 I am aware that the best evidence rule as provided under section 62(1) of the Tanzanian Evidence Act, Cap 6, R.E 2019. In fact, it says as quoted hereunder: 62.-(1) Oral evidence must, in all cases whatever, be direct; that is to say- a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; (c) if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion or, as the case may be, who holds it on those grounds: The fact in issue here is who killed MHINGA D/O MAGOSO. The relevant evidence ought to have been adduced by a person who saw the accused persons killing the deceased but the prosecution side did not bring such witness. Nevertheless, even the witness Folio C (material witness) who said that he saw the accused person with deceased and it seems they had misunderstanding was not brought before the court to 13 testify the same and failure to call material witnesses renders the court to draw adverse inference that if at all the said witnesses were called, they could have tendered adverse evidence against the part. See the case of Boniface Kundakira Tarimo vs Republic Criminal Appeal no 350 of 2008 (unreported) the court held that: ‘’It is thus now settled that where a witness who is in a better position to explain some missing links in the party case is not called without any sufficient reasons being shown by the party, an adverse inference may be drawn against that party”. Should this Court exercising its full legal mind reach to a finding of guilty against the accused persons in the event they elect to remain mute in their defense? In this case, there is nothing established connecting the accused person and the charge of murder. All that has been stated by the prosecution is the mere allegation that deceased person was killed by the accused person because he was last person to be seen with the deceased something which does not prove that he killed the deceased. For that reason, I find this case to be a proper case in which prima facie case by the prosecution has not been established in the required legal standard. 14 That said, the accused person is found to have no case to answer, consequent of which, he is accordingly acquitted under section 293 (1) of the Criminal Procedure Act [Cap 20 RE 2019]. It is so ordered. DATED at BARIADI this 2nd day of April, 2025. R.B. Massam Judge 15