Ruling Abdallah Juma Sule

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION NO. 17598 OF 2024 REF 202406272000017598 REPUBLIC VERSUS ABDALLAH JUMA SULE …………………………………………………..ACCUSED RULING 13th & 13th March 2025 KIREKIANO, J; The accused person, Abdallah Juma Sule, is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code Cap. 16 [RE. 2022]. According to information filed, it was alleged that on 12/12/2023 at Shaurimoyo Nyamwage area within Rufiji District, in Coastal Region did murder one Uwesu Moshi Mlanzi @ Uwesu @ Uwesu Moshi Said @ Uwesu Moshi Katimundu @ Uwesu Moshi. The accused pleaded not guilty to the information. The prosecution was conducted by Mr Daudi Basaya assisted by Miss Monica Mweri, learned state attorneys, while Mr. Godwin Antony Fissoo, a learned advocate, defended the accused. In a bid to prove the charge, the prosecution paraded seven witnesses to wit PW1 Dr Tegemee Omary Mtambo, PW2 Seif Said Matimbwa, PW3 Haji Kassim Kiumbo, PW4 Mahamudi Swalehe Marembo, PW5 Mbwana Ibrahimu Kichelega, PW6 Ally Said Mkima, and PW7 H 6581 D/CPL Amiry. They also tendered the post-mortem examination report, exhibit P1, and the sketch Map, Exhibit P2. The brief background of this trial is that on the faithful date of 12/12/2023 in the Nyamwage area, the deceased body was seen floating in the water at Hilu Dam, and the matter was reported to Ikwiriri police station. Upon recovery of the body, a postmortem examination was conducted by PW1, who confirmed the death and opined that the cause of death was due to a fracture of the neck axis and atlas, causing spinal laying. The prosecution case is that the deceased's death was not natural but caused by an unlawful act. The allegation by the prosecution is that the accused with malice killed the said Uwesu Moshi Mlanzi @ Uwesu @ Uwesu Moshi Said @ Uwesu Moshi Katimundu @ Uwesu Moshi. The evidence tendered was by PW1 Dr. Tegemee Omary Mtambo, conducted the postmortem examination of the deceased. According to him on 13/12/2023, he did a physical examination of the body after being identified by the relative and found that the body had some bruises at the neck and the neck appeared abnormal as it was more flexible but all other parts of the body were normal. The postmortem report was admitted as Exhibit P1. PW3 Haji Kassimu Kiumbo, was the first person to see the body of the deceased. According to him, on 12/12/2023 at around 16hrs, while fishing at the shore, he saw a human hand. He reported the matter to a camp Secretary, Mahamudi Swalehe (PW4), who made an arrangement to recover the body from the dam after informing the police and the local leaders. Upon recover of the body, they thus learnt that it was the body of Uwesu Moshi The other witness was Mbwana Ibrahimu Kichelega (PW5). This witness informed this Court that on 12/12/2023 at ILU on his way to the camp, he saw two fishermen, Uwesu the deceased and Boko the accsused. Boko was in the water while Uwesu was in the canoe. Boko was telling Uwesu (the deceased) that “Unazingua”, and Uwesu said that it is not true, hii then said “siyo kweli maji yenyewe siyawezi”. PW5 He left the area, and after some time, they heard that there was a human hand in the water. It was later discovered that he was Uwesu. He informed this Court that the body was found at the area where he met with the accused. When asked to clarify on the words Kuzingua, he said it meant not being able/ ready to do the work. PW4 Mahamudi Swalehe Marembo is the secretary at the fishing camp. According to this witness, on 12/12/2023, he was approached by PW3 and one Shabani, who told him that there was a report of death. He went to the scene and found the dead body at the dam. He called the local leader and the police. The police instructed him to retrieve the body from the dam to prevent it from being eaten by a crocodile. The deceased was Uwesu. He did not know what happened but heard from other fishermen that he was in the company of Boko, the accused. He later ordered the arrest of the accused and took him together with the body to the police. PW2, Seif Said Matimbwa, a fisherman at Ilu Nyamwage. He informed this Court that on 12/12/2023, while fishing at the dam, at around 16hrs, he saw Boko (the accused), who was from fishing activities and packed the Canoe. He told this Court that the accused was alone while he was usually kept in company with Uwesu Katimundu (the deceased). When asked why he was alone, he said casually, Vijimambo tuu, and he looked weary. Another prosecution witness was Ally Said Mkima PW6. He informed this Court that he is the relative of the deceased. He received a call on 12/12/2023 and informed that Uwesu passed away. He went to the police and then to Ikwiriri Hospital, where the body was kept and identified the body to be that of Uwesu and later given the body for the burial ceremony. The last prosecution witness was the case investigator, H 6581 D/CPL Amiry. According to him, he investigated the case and sketched a map of the scene of crime. He said he believes the accused was the murderer. In his oral statement to me, he said that he was with the deceased, and that the accused was seen with the deceased. The accused did not stay at the usual area but moved to the other side of the dam. The accused did not report that the deceased suffered any danger and the fact that he was seen weary. Upon closing the prosecution's case, this Court considered whether a prima facie case had been made against the accused person. The parties' advocates were also heard in accordance with section 293(1). CPA Cap 20. At this, the prosecution was tasked with establishing prima facie that Uwesu Moshi Mlanzi, also known as Uwesu, Uwesu Moshi Said, Uwesu Moshi Katimundu, and Uwesu Moshi, was dead. Second, that his death was not natural but caused by an unlawful act or omission. Third, it was the accused who did the unlawful act or omission; fourth, that the death was caused with malice aforethought, that is to say, it was intended to cause death or grievous bodily harm. The parties' advocates were equally heard, as required under Section 293(1) of the CPA Cap 20; I shall consider their submissions. The Court of Appeal in the case of Director of Public Prosecution V. Morgan Maliki and Nyaisa Makori, Criminal Appeal No. 133/2013 (unreported) referred to the case Rammahlal Frambaklal Bhatt V. R (1957) EA 332 and Mrimi V. R [1967] on when can the evidence on record can be said to establish a prima facie case had the following to say; "So, on the principles set out in BHATT and MURIMI cases, we think that a prima facie case is made out unless shaken, it is sufficient to convict an accused person with the offence with which he is charged or a kindred cognate minor one. This means that at this stage, the prosecution is expected to have proved all the ingredients of the offence or a minor, cognate one thereto beyond reasonable doubt. If there is any gap, it is wrong to call upon the accused to give his defence to fill it in, as this would amount to shifting the burden of proof. In DPP. V. Peter Kibatala, Cr. Appeal No. 4/2015 CAT (unreported) The court explained what is meant by prima facie case and cited- Trambaklal Bhatt v Republic [1957] EA 332-335 thus; It may not be easy to define what is meant by a prima facie, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if the defence offers no explanation." With that note, I will start with the first aspect of the death of Awesu, PW1; Dr. Tegemee, Omary Mtambo, informed this court that he examined the deceased body and confirmed his death. There was evidence in post-mortem exhibit P2. There was also an oral account by the witnesses who carried the body from the dam. I consider the standard and straightforward means to prove death was through a post- mortem examination which was done. I thus find that there is prima facie evidence that the said Awesu is dead. On whether the death was unnatural, it was explained by PW1 that the cause of death was due to a fracture of the neck axis and atlas, causing spinal cord injury. On cause of death the PW1 doctor said: At this point, the relative identified the body. I did a physical examination of the body, and in this observation, the body had some bruises at the neck; the neck appeared abnormally more flexible, but the other areas were normal. Mr Fisoo urged that this court consider the circumstances in which the body was found and also the conversations between PW5 on the one hand and the accused and deceased on the other hand. The defence also pressed the prosecution witnesses in cross-examination if there was no possibility that the deceased drowned in water as intimated by the conversations, he made to PW5, haya maji siyawezi or attacked by a crocodile or hippo. From the foregoing, it can be said that the death was not natural, but it is, in my assessment, unclear if an unlawful act caused the death. Now, even assuming that there was an unlawful act, the prosecution must establish, prima facie, that the accused was the person who caused the death. To make a case against the accused, the prosecution relies on circumstantial evidence, specifically on the principle that the accused was the last person seen with the deceased. Mr. Busaya cited to this court the case of Mark Kasmiri Versus R, Criminal Appeal No. 39 of 2017 (Unreported). Still, we also cite Abel Mathias @ Gunza @ Bahati Mayani vs Republic (Criminal Appeal No. 267 of 2020) [2023] TZCA 25 (20 February 2023). On page 13 that; However, the species of circumstantial evidence we are dealing with here, is that of the last person to be seen with the deceased, simply means that; where there is evidence that an accused was the last person to be seen with the deceased alive, then there is a presumption that he is the killer unless he offers a plausible explanation to the contrary" In our considered view, the plausible explanation envisaged. It is on record that all witnesses who testified in Court did not witness the accused attacking the deceased. The only evidence relied on by the prosecution to make a case against the accused is circumstantial, suggesting that the accused person was the last person seen with the deceased. The prosecution relied on the evidence of PW5, who stated that he saw the accused together with the deceased fishing. However, according to PW5, the accused was in the water while the deceased was in the Canoe, lamenting that he couldn’t manage the water. From his evidence, it was again the evidence of PW2 that he saw the accused from fishing alone while he was always in company with Uweso, the deceased. The case law on the doctrine of the last person to be seen with the deceased is elaborated in the case of Richard Mtangule and another vs Republic (1992) TLR 9 where it was held that: - “The appellants were the last known persons to have been with the deceased. This fact, without any doubt, casts a very good suspicion on them. But this in itself is no conclusive proof that the appellants killed the decease.” The theory of the last person seen is a presumption and requires corroboration. This is the position articulated in many decisions, including Ijumaa Issa @ Athumani vs Republic (Criminal Appeal 53 of 2021) TZCA thus; “It is not always that when an accused appears to be the last person to be seen with the deceased, then, automatically he is the killer. The doctrine ought to be treated and applied with caution. as was observed in the decisions of this Court in Twaha Elias Mwandungu v. Republic [2000] TLR 277. Observed that the doctrine of the "last known person" has to be corroborated by other evidence.” In this case, there is evidence from PW5; I heard his evidence and observed his demeanour, as he was, in the first place, elusive about his religion. According to him, the accused was seen with the deceased at the shore. He did not inform the Court at what time the accused was seen with the deceased. What was certain from him is that the accused and deceased made statements as indicated earlier but he came to discover later evening. He said, I decided to leave the area and went to the camp. From the camp to the area that was not far away. After some time in the evening, I heard that there was a human hand seen in the water. From this evidence, PW2 saw the accused at 16hrs, but P5 did not tell at what time he saw the deceased and accused. In this case, since everything happened on the same date, time was of the essence, but not indicated by PW5. As such, the credibility of this witness appeared shaky. Thus, needing corroboration. There was also evidence from PW2 that he saw the accused looking weary, and therefore, he suspected him. I have given thought to whether the same cemented the prosecution's case; however, I was not convinced. It is the law that suspicion, however strong, cannot be the basis of conviction. (see: B. Mapunda v. Republic, Criminal Appeal No. 2 of 1989) CAT, their Lordships stated that: We think that the evidence as adduced was such as to cast strong suspicion against the appellant. However, it is trite law that suspicion alone, however strong, cannot be the basis of conviction. Having heard the evidence presented by PW2, I am unable to find that the suspicion raised by PW2 against the accused was sufficient to mount a case against the accused, as considered in John Mgingi v Republic (1992) TLR 377 (CA). There is also evidence from PW4 that the accused was arrested on the other side of the dam, thus adding his suspicion. I have considered the evidence in the sketch map. At the same time, PW4 stated that he led the officer in sketching the map (Exhibit P2). It was also his evidence that he was not one of those who arrested the accused, he said. “I asked those fishermen to arrest the said Boko. He was brought to the scene from the other side of the Dam. They came back with Boko” When cross-examined, he said he sent Hussein to arrest the accused. None of the witnesses who testified said, they arrested the accused and at what point. From Exhibit P2, it is not specified exactly where the accused was arrested. Thus, the allegation that the accused was on arrested at the other side of the dam is not founded on evidence . From the foregoing, whether the deceased died by unlawful act and whether the accused was responsible, having considered the evidence available, I find that the evidence on record does not meet the threshold to make a prima facie case. Based on this, I shall not dwell on the other aspect of malice. All said, this court concludes that there is no evidence to suggest that the accused person present in the dock committed the offence of murder contrary to sections 196 and 197 of the Penal Code Cap. 16 [RE. 2022] or any other offence for which he may be liable to be convicted. The Charge is dismissed under section 293 (1) of The Criminal Procedure Act Cap 20 [RE 2022]. A J KIREKIANO JUDGE 13.3.2025 COURT The ruling was delivered in the presence of Mr. Daudi Basaya and Miss Monica Mweri, learned state attorneys for the Republic, as well as in the presence of the accused and his advocate, Mr. Godwin Antony Fissoo. A J KIREKIANO JUDGE 13.3.2025