final MARTIN DAUDI HAMALO Tanzilii1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI CRIMINAL SESSIONS CASE NO. 17 OF 2023 (Originated from PI Case No. 01 of 2023 in the District Court of Rombo at Mkuu) THE REPUBLIC VERSUS 1. MARTIN DAUDI HAMALO @MZUNGUU 2. JULIUS DAUDI HAMALO@ BABUU JUDGMENT 12th February & 06th March, 2025. A.P. KILIMI, J.: The accused herein Martin Daudi Hamalo @ Mzunguu and Julius Daudi Hamalo @ Babuu, hereinafter the first and second accused respectively, are jointly and together charged before this court for the offence of Murder contrary to section 196 and 197 of the Penal Code Cap. 16 R.E 2022. According to the information filed by the prosecution, it was alleged that on 20th December 2022 at Ubetu village within the District of Rombo in Kilimanjaro Region, the accused persons herein murdered one Erasmi Justine Tesha. They both pleaded not guilty to the alleged information. 1 The facts which led the prosecution to charge the accused persons for the said offence gleaned from the record can be briefly stated to the effect that, on 19th Day of December 2022 at 2300 hours one Genes Kilesi Tarimo was going home together with one Priscus Vitalis. Suddenly they were attacked by Protus Nicholaus and Martin Daudi Hamalo @ Mzunguu. Together they beat them by using a stick and an electric wire condemning them to be thieves. Priscus Vitalis managed to run away up to his home where Protas Nicholaus and Martin Daudi Hamalo@ Mzunguu took Genes Tarimo to the house of Priscus Vitalis and forced him to came out. They beat both of them alleging they were thieves and later took them to the office of the village chairman. At the village offices, one Erasmi Tesha was also brought, it was alleged that he was beaten by Protas Nicolaus and Martin Daud, then Julius Daudi Hamalo joined in beating Erasim Justine Tesha using a stick and an electronic wire on various part of his body including his head. Information reached the police who arrived at the scene of crime and took Priscus Erasim Justine Tesha and Genes Kilesi Tarimo. They were all given a PF3 and went to Karume Health Centre for treatment. On 20.10.2022 Erasim Justine Tesha passed away whilst 2 undergoing treatment. The accused persons were arrested, interrogated and charged for the offence of murder. During the trial, Ms. Edith Msenga, learned State Attorney led the prosecution team assisted with Ms. Ruth Kamola and Mr. John Mgave, all learned state attorneys. The defence team had two learned counsels Messrs. Emanuel Anthony and Baraka Tenga counsels for the first and second accused persons respectively. In proving the case against the accused persons, Prosecution paraded a total of four witnesses, PW1 Jacob Eligi Utouh, PW2 Aidan Paulo Tesha, PW3 F7185 Sgt. Abdul, PW4 G5416 D/CPL Dickson. They also presented exhibits to wit Postmortem report ‘exhibit PE1’, statement of Priscus Vitalis Peter ‘exhibit PE2’, Summons of Priscus Vitalis Peter ‘exhibit PE3’, Statement of Dr. Aman ‘exhibit PE4’ and his summons ‘exhibit PE5’. Opening the flow in proving the case against the accused persons, PW1 a Clinical Officer, testified to have conducted an autopsy for the deceased body. He said that he was called to examine the body of Erasim Justine Tesha. After conducting a postmortem, he found the deceased had a swelling on his right side of his head, he also saw blood oozing from 3 deceased nose and ears, he also saw on right leg at the center of the thigh the deceased leg was broken, further he saw deceased hand, legs, face and the whole body had bruises. He concluded that the cause of death was due to severe internal head injury which led to a rupture of the blood vessels in the head. PW1 tendered a postmortem report which was admitted as exhibit PE1. PW2 Aidan Paulo Tesha, testified that on 20/12/2022 at around 11:00 hours he was at his farm. He received a phone call from unknown number informing him that his relative Erasim Justine Tesha was caught at the house of one Mzee Daudi stealing chicken and was beaten by the children’s of Mzee Daudi one Mzunguu and Babuu. He said further he was informed that Erasim was taken to Karume Health Centre in Userri where he later died. PW2 also testified to have gone to Karume Health Centre in the mortuary and identified the deceased body to be of his relative Erasim Justine Tesha. The testimony of PW3 CPL Abdul was that; on 20/12/2022 being on duty at Usseri Police Post, he received three of the accused persons, they were escorted by Ubetu village chairman one Cyprian Tarimo and other villagers. He saw one among the three suspects limping and in agony as he 4 was unable to talk due to pain. The village chairman informed him that the three suspects were being accused of stealing chicken. He mentioned them as Erasmi Faustine, Priscus Vitalis and Genesi Kilesi. He only interrogated Priscus Vitalis and Genes Kilesi while Erasim Justine was unable to talk due to his bad condition. Further PW3 told this court that Priscus and Genes told him they were assaulted by the children of one Mzee Daudi. They mentioned Martin Daudi, Julius Daudi, Shidaa and two others person. He then opened a case file of assault; after writing their statements he gave them a PF3 for medical. He was later informed that Erasim Justine died while undergoing treatment at Karume Health centre. PW4 G5416 D/CPL Dickson, a police investigation officer of this case testified that; on 21/12/2022 he interrogated the accused persons, he discovered that at first, they were alleged to have assaulted three victims who were Erasmi Justine Tesha, Genes Kilesi and Priscus Vitalis. These victims were taken at Karume Health Centre, later one of them Erasmi Justine Tesha died while undergoing treatment. PW4 said further accused denied to have been involved with the deceased’s death. But they informed him that they were responding to an alarm for help. It was upon reaching the location that they found a group of people and villagers assaulting 5 persons suspected of stealing chickens. As an investigator he read their statement, he read the statements of the victims of assault who were Priscus Vitalis and Genes Kilesi. He read their statements and found that both of them stated to have been assaulted by the accused persons after being dragged out from their homes at night hours. PW4 further testified that he also took the statement of Dr. Amani Lebisa who attended the deceased before his demise. He said further both Priscus Vitalis and Dr. Amani Lebisa although were registered as prosecution witnesses, they were not found despite of the effort used by court process server to find them, therefore he tendered there statement under section 34B (1) and (2) (a) (b) (c) and (e) of Evidence Act Cap. 6 R.E. 2022, their statements were admitted in this court as PE2 and PE4 respectively, while their summons which indorsed that they were not found were admitted as PE3 and PE5 respectively. In defence case, briefly the first accused person (DW1) testified that on the night of 20.12.2022 he was at home asleep, he heard an alarm calling for help, it was her mother as he lived nearby. He went there and found group of people already responding to that alarm. He found them 6 beating the persons suspected to be thieves of his mother’s chickens. DW1 said further he never engage on the beating rather he tried to help them by calling the village chairman. Later the chairman came then the suspects were taken to the Police station while he returned back to his home. Next morning he was called by police, he attended the call wherein he was accused of the killings of the deceased. The second accused (DW2) defended almost by reiterating what his brother DW1 said above as he also heard an alarm from his mother and attended the call during the alleged night, he further concluded that upon being informed by DW1 that he was needed at a Police Station, he accompanied him, thereat they were informed that one of the suspected thieves arrested stealing at their mother’s home died and they were responsible for his death. Their mother one Augustina Daudi (DW3) turned up to defend them, She said that on 20/12/2022 while at her home asleep at night, she heard chickens commotions in their shed, She raised an alarm calling for help, many people attended including her two sons DW1 and DW2, therein, they found three suspects hiding in the hut with chicken on their hands, people 7 started to beat them while her two sons tried to stop the people from continuing beating them. It was until the village chairman came and took the suspects to police station. DW3 lastly said on 20.12.2022 his sons DW1 and DW2 were called at a police station to give their statements instead they were arrested and charged with murder. I have considered the prosecution evidence, the two accused persons are charged for the offence murder, and this is a serious offence where any person who kills another human being, is to suffer death by hanging. (see section 196 and 197 of the Penal Code Cap 16 R.E 2022). Therefore, it is trite law in criminal cases that the onus of proving all ingredients of offence against accused beyond reasonable doubt lies on the prosecution side. (see Woodmington vs DPP (1935) AC 462. The ingredients establishes the offence murder are ; first the deceased died, second the death was of unnatural , thirde is to prove that the accused personsare responsible for the death ,that they are the one(s) who killed the deceased and third; the accused persons killed the deceased with intention or malice aforethought. Therefore, in determining the fate of accused persons, the issues for determination are as follows; 8 a. Whether the deceased died unnatural death. b. Whether both of the accused persons killed Erasmi Justin Tesha c. Whether both of the accused had intention/ malice aforethought in killing the deceased. As it can be gleaned from the evidence of the prosecution, it is undisputed fact that Erasim Justine Tesha died unnatural death. This is evidenced by the testimony of prosecution witnesses PW1 Jacob Eligi Utouh a medical doctor from Karume Health centre who testified to have conducted an autopsy on the deceased body. His testimony was that after conducting an autopsy he found the cause of death was due to severe internal head injury which led to a rupture of the blood vessels in the head. Moreover, the prove of this death is from the statement of Dr Aman Lebisa whose statement was tendered and admitted as exhibit PE4 which shows that he received the deceased before his demise having pains and wounds to the extent that he was unable to speak. Also, exhibit PE1 which is a postmortem report, it reveals that the deceased had a head injury. All these facts prove that the deceased met untimely death in unnatural way. 9 The second issue is whether the accused persons caused the death of the deceased person. According to the prosecution witnesses procured, no one was an eye witness. However, the prosecution evidence depends much on tendered witness statement of one Priscus Vitalis ‘exhibit PE2’, this statement was tendered by PW4 D/CPL Dickson an investigator of this case. PW4 read the statement of Priscus Vitalis and told this court that the said Priscus Vitalis was not found as witness but he named the accused persons and others to be the one who assaulted the Erasim Justine Tesha by kicking his stomach and legs. Another prosecution evidence is the testimony of SGT Abdul who testified as PW3, he said that on 20.12.2023 while on duty at police Mkuu post in Usseri Rombo, a group of people and villagers escorting a car make Noah with three suspects inside, they were accusing the suspects for stealing and breaking in the house. They were under the custody of Ubetu village chairman one Cyprian Tarimo. The three suspects were Priscus Vitalis, Genes Kiles and Erasim Justine Tesha. He said Erasim Justine Tesha was in bad condition and couldn’t talk. Upon inquiring from the alleged suspects, they told him that they were beaten by the children of one Mzee Daudi. 10 From the above summary of prosecution evidence, both evidence of PW3 and PW4 remain hearsay evidence. In my view the prosecution basically is depending on the statement of Priscus Vitalis who named the accused persons to be the one who assaulted the deceased, Priscus Vitalis and one Genes Kiles. For the ease of reference let me quote what Priscus Vitalis said in the said statement in connection with the accused persons; “Nakumbuka mnamo tarehe 20/12/2022 majira ya saa 04:00 hours nikiw a nim elala nyum bani kw angu nilisikia mlango wangu ukigongwa hivyo niliamka na kufungua mlango huo. Nilipofunguwa nilimuona kijana aitwaye @SHIDAA ambaye simfahamu kwa jina lake halisi hivyo alinivutia nje na kunipiga na mpini mfupi na hapo hapo akanikata kichwani kwa kutumia panga alilokuwa nalo mkononi. Huyu @SHI DAA aliongozana na w atu w engi lakini m iongoni m w ao walikuwa @GIFT, @ BABUU NA @MZUNGUU ambao majina yao halisi siyafahamu isipokuwa huyo @ BABUU anaitwa JULIUS S/O DAUDI na w engine naw afaham u kw a sura, w atu hao naw afaham u kw a kuw a ninaishi nao K ilaw oi na kijiji kim oja cha Ubetu, walinichukua na kuniambia twende ukaseme, mimi niliwauliza nikaseme nini wakati mmenitoa nyumbani kwangu, hapo wakanivuta 11 kwa nguvu huku wakiwa wananipiga tukielekea ofisi ya Kijiji cha Ubetu na njiani tulipokuw a tukipita kw enye nyum ba za w atu kulikuw a na taa za um em e wa TANESCO tukiwa hapo ofisi za Kijiji baada ya muda kidogo baadhi yao w alitoka ghafla na kurudi na kijana ambaye tunaishi naye jirani ninayemfahamu kwa jina la ER ASM I M W AK I LI na kuanza kumpiga, ambapo@ SHI DAA alianza kum piga tum boni na w engine w akiw em o@ BABUU, @ MZUNGUU w aliendelea kum piga sehem u m balim bali za m w ili w ake ik iw em o kichw ani na m iguuni w akitum ia m arungu pam oja na nyaya za um em e wakiwa wanadai kuwa sisi wote tumeiba kuku jambo ambalo sio kweli kwani mimi nilikuwa nyumbani, baada ya hapo ilipofika majira ya saa 08:00hrs walitupeleka Kituo cha Polisi Usseri ambapo Askari aliyekuwa hapo kazini alimuelekeza Mwenyekiti wa Kijiji atuletee hapa Kituo cha Afya Karume.” [ Emphasis is mine] What I can deduce from the extract of the statement above; first, the maker mentioned one who assaulted is Erasmi Mwakili, but the deceased is named as Erasmi Justini Tesha; Second, initially according to the maker above, said he was dragged from his home at 04:00 hours, 12 further the statement reveals that the maker saw a group of people including accused persons beating the deceased but he does not reveal at what time; Third, if it was night hours as the time he stated above normally is dark hours, the maker did not say whether the said village office had lights, also did not say its intensity and was from which source so as to enable him identify the accused persons beating the deceased, moreover the statement does not reveal the distance he was or time/ duration the accused persons were under his observation. Fourth; the maker of statement is saying it was group of persons including accused persons who were beating the deceased suspecting him to be a thief. And fifth the maker of the said statement did not explain whether in that group of people are accused persons who inflicted a fatal blow on the deceased that led to his death. I am aware that witness statement when is admitted as PE2 in this matter, is competent evidence capable of grounding a conviction without necessarily being corroborated. (See Omari Mohamed China vs the Republic (Criminal Appeal no.230 of 2004) [2006] TZCA 32 (TANZLII). But under the above shown circumstances in my settled view the same cannot meet the threshold of this principle. I am saying this because the 13 statement PE2 created some unanswered questions. For instance, if the circumstances were unfavourable in identifying the accused persons in assaulting the deceased as explained above, it is not safe under those conditions alluded above to convict accused persons, taking regard the maker of the statement was under terrible and horrified situation as he was also being beaten along with deceased as both were accused of stealing chickens. Had him being an observer/ an eye witness and not among the suspect, somehow it could have been easier to identify who was hitting who. ( see Waziri Amani vs Republic [1980] T.L.R 250; Elipafula Timotheo vs Republic [2015] TZCA 310 (TANZLII) and Baya Lusana vs Republic, Criminal Appeal No. 593 of 2017 (unreported). In Baya Lusana vs Republic, (supra) the court referred the decision of a defunct East Africa Court of Appeal in Wamalwa and Another vs Republic [1999] 2 EA 358 and held that; "The Court should always warn Itself of the danger of convicting on identification evidence where the witness only sees the perpetrator of an offence fleetingly and under stressful circumstances." 14 In my view in the premises, I do not think all possibilities of mistaken identity were eliminated, taking into consideration being presence of a group of other people, possibility that someone else other than the accused persons may be responsible for the said beatings. Thus, I say boldly although PE2 was properly admitted in evidence, it is my considered view that alone is not capable of grounding conviction without necessarily being corroborated. Be that as it may, I am mindful a single eye witness can sustain conviction when is reliable or credible. In the case of Alfred Kwezi @ Alfonce vs. Republic, Criminal Appeal No.216 of 2021, the Court of Appeal relying on the Indian case of Anil Phalen vs. State of Assam, 1993 AIR 1462 was of the view that: “Conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided that the sole eyewitness passed the test of reliability in basing the conviction on his testimony” As far as the case at hand is concerned, the test of Priscus Vitalis on whether is credible cannot be executed by this court, because he was not 15 found hence his statement was tendered in this court as depicted above, thus according to his statement as shown above, I am settled the same need to be corroborated. Now the next point to be considered is whether there is any evidence to corroborate, I have entirely considered the remaining evidence, in my view of the evidence of all witnesses PW1, PW2, PW3 and PW4 as depicted above, each of them requires to be corroborated. I am aware that it is a settle law that the evidence which itself requires corroboration cannot be used to corroborate another evidence. (See Swelu Maramoja vs Republic, Criminal Appeal No. 43 of 1991 (unreported). In the premises no remaining prosecution evidence can corroborate the said statement exhibit PE2. Nonetheless, I am alive that no specific number of witnesses is required to prove a case, and it is indeed the discretion of the prosecution to call the witnesses which they find most suitable for their case. However, it has been stated by the court that such discretion on the part of the prosecution must be exercised judicially to advance the cause of justice otherwise adverse inference should be drawn to the prosecution. (see 16 Yohanis Msigwa vs Republic [1990] T. L. R. 140 and section 143 of the Evidence Act Cap 6 R.E.2022). According to the prosecution part, it was evidenced that the incident of beating the deceased was done at the office of Ubetu village Chairman, the said chairman one Cyprian Tarimo who according to PW4 said the alleged suspects of stealing chickens were under his custody after being arrested, another is one Genes Kiles who was mentioned to be at the scene of crime and was also accused of stealing chicken. However, the prosecution neither stated the reasons why they did not call them as witnesses nor tendered their statements. I think these witnesses if could have been called, they would have given independent evidence on whether the accused persons were properly identified participating in beating the deceased. Thus, failure to call them obvious cannot let the prosecution case remain unshaken, hence these becomes benefit to accused persons. (See Aziz Abdallah vs Republic (1991) TLR 71 and Yohana Chibwingu vs Republic, Criminal Appeal No. 117 of 2015, CAT (unreported). 17 I wish to conclude that, the prosecution duty must prove by evidence against the accused person and leave no doubts, this also means evidence established must irresistibly point to the accused person as the one who committed the offence and not the other person, see Samson Matiga vs Republic, Criminal Appeal No. 205 of 2007 at Mtwara (unreported). In this case as analyzed above I am settled the prosecution did not meet the said standard. Having so said and for the reasons advanced above, I hold that the prosecution has failed to prove beyond reasonable doubts as to whether the accused persons were the one who assaulted the deceased leading to his death. Consequently, I hereby find Martin Daudi Hamalo @ Mzunguu and Julius Daudi Hamalo @ Babuu not guilty for the offence of murder contrary to section 196 of the Penal Code and I proceed to acquit them for this offence forthwith, further I proceed to order immediately be set free, unless they are otherwise lawfully in prison for another case. 18 Order accordingly. DATED at MOSHI this day of 6th March 2025. X JUDGE Signed by: A. P. KILIMI Court: - Judgment delivered today on 6th day of March 2025 in the presence of Ms. Ruth Kamola State Attorney, also in the presence of learned advocates Mr. Emmanuel Anthony and Mr. Baraka Tanga for first and second accused respectively, and all accused persons present. Sgd; A. P. KILIMI JUDGE 6/03/2025 Court; Right of Appeal explained Sgd; A. P. KILIMI JUDGE 6/03/2025 19