THEOPISTA JUDGMENT FINAL VERSION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 26186 OF 2024 REPUBLIC Vs. THEOPISTA SALIMU IBRAHIMU JUDGMENT Date of last Order:10-3-2025 Date of Judgment: 25-3-2025 B.K.PHILLIP, J The accused is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E 2002. It was the prosecution's case that on 6th January 2024, in the Luhangai area within Kisarawe District, Coastal Region, the accused murdered Erick Edwin Lyombia, (hereinafter to be referred to as “the deceased”). The deceased was the accused's grandson. Both the accused and deceased were living in one house at Luhangai hamlet within Kisarawe District in the Coastal Region. On the 6th day of January 2024, the accused tied up the deceased's hands 1 and legs with ropes. She assaulted the deceased with a firewood and caused serious injuries to his body. She took him to a dispensary, where he was advised to take him to the hospital, but she did not. Consequently, the deceased's condition deteriorated. On 11th January 2024, the deceased passed away in the accused's house, in Luhangai hamlet. Examination of the deceased body was conducted on the 16th day of January 2024, and the postmortem report revealed that the deceased's cause of death was Asphyxia due to fracture of the neck and left shoulder, and Scalp haematoma. At the hearing of this case, the learned State Attorneys, Bertha Kaaya and Charles Magai, appeared on behalf of the Republic. The accused was represented by the learned Advocates Fredrick Charles and Moses Mgonja. In proving its case against the accused, the prosecution called six witnesses, namely, Mohamed Omary Jeta (PW1), Iddi Jadi Sagara (PW2), ASP Matui (PW3), Assistant Inspector Mujuni (PW4), Issa Said Juma (PW5) and G4337 D/CPL Simangu (PW6). Iddi Jadi Sagara- (PW2), a chairman of Luhangai hamlet, where the accused was residing with the deceased, testified that his brother- 2 in-law informed him about the demise of Erick. He went to the crime scene, where he found the accused, the accused's husband, Mr. George Semwanga, and their neighbors. The accused's husband showed him the deceased in the house. Upon looking at the deceased, he noted that his hands showed that he had been tied up with a rope, and his neck was swollen. Thereafter, he informed ASP Mujuni (PW4) about the incident, who subsequently arrived at the crime scene. Within a short period, more police officers from Kisarawe police station also arrived at the scene of the crime. PW2 identified the accused before the court. In response to questions posed to him during cross-examination, PW2 told this court that previously, he had received complaints from the accused that the deceased stole her chicken. PW2's testimony was supported by the testimony of PW4, who testified that PW2 informed him about the demise of Erick. Upon receiving that information, he informed ASP Matui (PW3) about the incident, who ordered him to visit the crime scene to verify the information. He visited the crime scene as directed. Upon arriving at the crime scene, which was the accused's residence. He was received by PW2, who showed him the accused and her husband. 3 He saw the deceased and noted that he was assaulted. Thereafter, he informed ASP Matui of what he had observed at the crime scene. Moreover, PW4 identified the accused before the court. The testimony of PW3, ASP Joseph Matui, supported that of PW4. He testified that he was informed about the death of Erick by ASP Mujuni. He visited the crime scene with a team of investigators. He saw the deceased in the accused's house. He noted that the deceased's wrists showed that they had been tied up with a rope, and his neck was swollen. He ordered the accused to be arrested and the deceased to be taken to the hospital. PW5, Issa Said Juma testified that the accused is his neighbor. On 6th January, 2024, at approximately 10:00 am, he visited the accused's home at the accused's request, as the accused called him. Upon entering the accused's house, he found the deceased lying on the ground. His hands and legs were tied up with a rope and was crying. He noted that the deceased had been assaulted. He requested the accused to stop beating him. The accused asked him to call a police officer so that the deceased could be arrested. He called the police officer. However, the police officer did not come because the accused had no money to buy fuel for the police 4 officer's motorcycle. Further, PW5 testified that he left the deceased with the accused in the house. At around 7.00 pm, he heard Erick crying, indicating that he was being assaulted again. On 11th January 2024, he received information about the deceased's demise from Mr. Manase. He went to the crime scene. He saw the deceased's body, which showed that he had been assaulted. Also, he was interrogated by the investigators of the case and arrested together with Safari Elias because the accused, upon being interrogated, lied to the investigators of the case that he and Safari Elias tied up the deceased's hands and legs with a rope. He spent one day at the police station. Later, he was released together with Safari Elias. Moreover, PW5 testified that he went to the hospital with the deceased's family members on the day the deceased was examined. The deceased's father was allowed to enter the mortuary to identify the deceased. He had known the deceased for the past three (3) years. He was polite and hardworking. He used to plant onions in a garden. In response to questions posed to him during cross-examination, PW5 told this court that the accused did not tell him who tied up 5 the deceased's hands and legs with a rope. PW6, G4337 D/CPL Simangu, testified that he interrogated PW5, who told him that he saw the deceased being assaulted by the accused with firewood on the reason that he stole Tshs . 7,000/= and biscuits from the accused's shop, which was located in the accused's house. He interrogated the accused's husband, who told him that on the 6th of January 2024, in the morning, his wife, the accused, called and informed him that upon arriving at their house after her journey, she heard someone walking in the house. She knocked on the door, and the deceased opened it. When he inspected him, he found Tshs. 7000/= in his pockets. Further, his wife informed him that she tied up the deceased's hands and legs with a rope as a punishment so that he would stop his bad habit of stealing. When he arrived at his home in the evening, he found the deceased tied up with ropes around his legs and hands, and the accused was holding a firewood. The deceased was lying down. His stomach was swollen. When the deceased saw him, he crawled towards him. He advised his wife to untie the ropes and take the deceased to the Hospital because he looked tired, and then he left. When he returned, he asked the accused if she had taken the 6 deceased to the hospital, and the accused replied that she did, but he did not see any sign that she had taken the accused to the hospital. Consequently, Erick continued being weak. He was vomiting. Moreover, PW6 testified that he recorded the accused's caution statement. In response to questions posed to him during cross-examination, PW6 told this court that the accused refused to give or show him the ropes he used to tie the deceased's hands and legs. He tendered in court the sketch map of the crime scene (Exhibit P2). PW1 Mohamed Omary Jeta, a medical doctor who examined the deceased, testified that the deceased's death was unnatural. Upon examining him, he noted that he had bruises on his wrists, and his neck was broken. He opened the scalp and found blood clots. He tendered in court the post-mortem report (Exhibit P1), which indicated that the deceased's cause of death was Asphyxia due to fracture of the neck and left shoulder, and Scalp haematoma. On the other hand, the accused testified as DW1, and his husband, Mr. George Semwanga, testified as DW2. The accused's testimony was as follows: The deceased was a class four pupil at Luhangai Primary School. He was her young sister's grandson, which is why 7 he used to call her "grandmother." She stayed with the deceased for five years. Initially, the deceased was a good boy. He used to attend school smoothly. When he reached grade three, his behavior changed. She and her husband started receiving complaints from the head teacher that the deceased was a naughty child. She and her husband used to attend meetings at the school to discuss the deceased's habits and warn the deceased about his bad behaviour. In September 2023, the deceased raped Issa's young sister. The complaint was lodged to the Ward Executive Officer. Then, the case was forwarded to Kisarawe Police Station, and the Social Welfare Officer in Kisarawe was involved. The deceased was given corporal punishment. The victim's father (PW5's father) threatened her and her family members that they could not stay in the village. Thereafter, the deceased's behavior became worse. He started stealing people's property. Her neighbors hated her due to the deceased's bad behaviour. Moreover, the accused testified that she did not cause the deceased's death, but he died a natural death. Narrating what happened on 6th January, 2024, the accused testified that on that 8 day, she returned from her parents' village, where she had gone to attend her father's funeral. On her way home, she called his husband, who told her that he had put money for her in a tin used to keep vouchers in her shop. Upon arriving at her house, she found shoes outside the door. She called the deceased, and he responded once, then remained quiet. After learning that the deceased was in the house, she called Issa because she feared the deceased due to his stubbornness. While standing outside and trying to open the door, she heard a loud thud, as if something had fallen from a great height. Then, Issa arrived and opened the door. Upon entering the house, they found the deceased lying under the bed in the accused's bedroom. Issa took him from under the bed. Then, she brought a mosquito net, tore it, and used it as a rope to tie up the deceased's legs and hands. She asked the deceased how he managed to enter the house while the door was closed, and he told her that he entered the house through the shelves in the shop. He was looking for money because he heard Mr. George (the accused's husband) telling her that he had put money in a tin that was in the shop. When he heard her voice calling him, he climbed through the internal walls in the house and dropped into her bedroom. She asked Issa to call the village chairman or the police 9 officer so that the deceased could be arrested. Issa called the police officer, but the police refused to come because she had no money to pay him. He wanted to be given Tshs. 30,000/= for buying fuel. Finally, she asked Issa to call the village chairman. She stayed out of her house to wait for her husband, who, upon arriving, also asked the deceased how he managed to enter the house. The deceased gave him the same explanations he had given to her and Issa. She untied the deceased's hands and legs, prepared a meal, and they ate together. Furthermore, the accused testified that it is true that she beat the deceased with a broom in the presence of Issa. She noted that deceased had scars on his legs and hands. She asked him what had happened to him, but the deceased told her to leave him alone. After three days, the deceased told her that he had a headache and stomach pains. Previously, the deceased was in good health. In the evening, she took the deceased to a dispensary using a Bodaboda. At the dispensary, she narrated what had happened to the deceased previously. She was given medicine for Urinary tract Infection and malaria. Also, she was advised to take the deceased to the Hospital for examination. She returned home 10 and gave the deceased the medicines he was given at the dispensary, and his condition improved. However, she was struggling to raise funds for taking the deceased to Kisarawe Hospital. On 11th January 2024, at 5:00 am, she started preparing porridge because she had planned to take the deceased to the hospital. While preparing porridge, her husband followed and told her that the deceased had passed away. She rushed into the house, touched the deceased's body, and noted that he was not breathing. She called their neighbors, who advised them to take the deceased to Kisarawe Hospital. Within a short time, the village chairman and the Police officers arrived. They stopped her and her husband from taking the deceased to the Hospital and told them to wait for the Doctor. Later on, other police officers from Kisarawe Police Station arrived. They arrested and took her to Kisarawe Police Station. They accused her of killing the deceased. She told them that she beat the deceased with a broom. She punished him lightly, as a parent would, and he remained in good condition. The deceased was 15 years old. In conclusion of her testimony, the accused prayed for forgiveness. In response to questions posed to her during cross-examination, 11 she told this court the following: Issa's family members hated the deceased and her entire family. Issa did not tell her to untie the deceased's hands. It is true that on 6th January 2024, she punished the deceased by beating him. She denied having tied up the deceased's hands and legs with the rope for the whole day. She insisted that she did not beat the deceased with a firewood. She admitted that she did not mention the name of the dispensary where she took the deceased for treatment. DW2, George Joseph Semwanga testified as follows: formerly, he was staying with her wife, the accused, and his grandson, the deceased, namely Erick Edwin. He has been staying with the accused for a long period. They stayed with Erick for five years. It is not true that the accused killed deceased. The deceased was punished by the accused, just like any other parent would. DW2 gave a similar narration made by the accused in her testimony on how the accused found the deceased in the house on the 6th of January 2024 in the morning and punished him by tying his hands and legs with a rope. Further, DW2 testified that in the morning, he left for his activities. He closed the house and left the deceased outside, doing some 12 cleaning in the compound. When he arrived home, he found the deceased's hands tied up with ropes. Then he told the accused that if she had tied up the deceased with ropes since morning, she should untie him. He and the accused untied the ropes. He interrogated the deceased about what he had done. He looked tired. The accused prepared a meal. They ate all of them, although the deceased ate only a small portion. On 7 th January 2024, the deceased was weak. He was not as energetic as he usually was. He was complaining of a headache and stomach pain. At around 4.00 pm, the accused took the deceased to a dispensary. While she was still at the dispensary, the accused called and informed him that she had been advised to take the deceased to the hospital for further examinations. However, the accused had no money. He advised her to come back home. The deceased continued taking the medicines he was given at the dispensary. The next day, they had planned to take the deceased to the hospital. On 11 th January 2024, early in the morning, she asked the accused to prepare porridge for the deceased and him before going to Kisarawe Hospital. While he was in the house with the deceased, waiting for the porridge, the deceased asked him for permission to go to the toilet. He allowed him, and when the deceased wanted to move, he 13 fell down on his stomach. He called the accused, and they laid the deceased down in a good position. By that time, the deceased was not breathing well. He looked for a Bajaj to take the deceased to the Hospital, but before leaving for the Hospital, he called his ten- cell leader, who told him to wait. Then, he called the village chairman and requested that he provide a reference letter so that he could take the deceased to Kisarawe Hospital. The Chairman told him to wait, as he was in a meeting. At around 2.00 pm, he called him again, but he insisted that he had to wait and that he might come with a doctor. All the time, he was at home, and some of their neighbors had come to see them. The chairman arrived at approximately 6:00 p.m. He was with a police officer. After a short time, more police officers arrived at the crime scene. In response to a question posed to him during cross-examination, DW2 told this court the following: when he returned home, he found the deceased was weak due to the punishment imposed on him by his wife (accused herein). It is correct that the deceased was weak because he was tied up with ropes for a long period, and was punished without being given food. He did not mention the name of the dispensary where the accused alleged that he took 14 the deceased for treatment. Punishing children when they are wrong is usually not a strange thing. Having analyzed the evidence presented by both sides, a good starting point in determining this case is to revisit the law on the proof of criminal cases and the elements that must be proven in murder cases. The position of the law is that the burden of proof in criminal cases is beyond a reasonable doubt, which lies with the prosecution. [See the case of Joseph John Makune Vs Republic (1986) T.L.R 44]. In proving a murder case, the prosecution side has to prove, one, the existence of unnatural death of a person caused by an unlawful act or omission; two, the accused person is the one who caused the death. Three, the accused acted with malice aforethought. (See the case Republic Vs. Steven s/o Wambura @ Steven Mwita, Criminal Session No. 185 of 2023). In the case at hand, the testimonies of all prosecution witnesses prove that the deceased died an unnatural death because he was assaulted and sustained injuries, which led to his death. PW1 up to PW6 inclusive, all saw the deceased, and their testimonies are to the effect that the deceased was assaulted. His neck was swollen, 15 and his hands showed that he was tied with a rope. In their testimonies, DW1 and DW2 testified that the accused's hands and legs were tied up with a rope, and DW1 beat him with a broom as a punishment because he stole her money. To cap it all, the postmortem report shows that the deceased's cause of death was Asphyxia due to fracture of the neck and left shoulder, and Scalp haematoma. Thus, it is the finding of this court that the deceased's death was an unnatural death. The next pertinent question is whether the accused caused the deceased's death. PW1, who examined the deceased, told this court that the deceased had bruises on his hands and his wrists showed that they were tied up with a rope. After opening the scalp, he noted blood clots, which were an indication that he had been beaten on the head by a blunt object, and his neck was broken. Moreover, PW1 testified that a person's neck can be broken either due to an accident or strangulation. In this case, there is no evidence that the deceased was involved in an accident. The testimony of PW1 is supported by the testimonies of PW2, PW3, PW4, PW5, and PW6, who all saw the deceased before the examination of the deceased by the doctor (PW1), their 16 testimonies are to the effect that the deceased had been beaten, his neck was swollen, and his wrists showed that he was tied up with a rope. Not only that, as alluded to earlier in this judgment, there is no dispute that the deceased was beaten by the accused. After that, he became weak, as per the testimony of DW2, the accused's husband. The accused and DW2 alleged that the deceased was beaten as a normal way of punishing him due to his bad behavior. The sub-issue that arises here is whether the punishment was reasonable. I shall discuss it in the determination of the last element in proof of murder cases, to wit, the existence of malice aforethought. From the foregoing, it is the finding of this court that the accused caused the deceased's death. The next issue is whether the accused caused the deceased's death with malice aforethought, that is, she intended to kill the accused. The provision of section 200 of the penal Code provides as follows; “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually 17 killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. (Emphasis is added). In the case of Enock Kipela Vs. Republic, Criminal Appeal No. 150 of 1994 (unreported), the Court of Appeal, discussing how malice aforethought can be proved in murder cases, had this to say; “Even accepting Mr. Naali's contention that the appellant picked up the bamboo stick on the way and that there was no proof of bad blood between the appellant and the deceased, we have the greatest difficulty in sustaining the learned advocate's submission that malice aforethought was not proved in this case. 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 factors, including the following: (1) the type and size of the weapon, if any, used in the attack; (2) the amount of 18 force applied in the assault; (3) the part or parts of the body the blow or blows were directed at or inflicted, (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing”. (Emphasis is added) Back to the case at hand, PW2, PW3, PW4, PW5, and PW6 testified that the deceased's neck was swollen. After conducting the postmortem, PW1 discovered the deceased's neck was broken, and he noted the presence of blood clots on the head. Additionally, as alluded to earlier in this judgment, PW5 testified that he saw the accused tied up with ropes on his hands and legs. His testimony was supported by the testimony of DW2, who testified that on the 6th January 2024, the deceased's hands and legs were tied up with ropes by the accused in the morning when she arrived at her house. The ropes were removed in the evening when DW2 came back home and advised the accused to untie them. The accused claimed that she beat the deceased with a broom and that the punishment was normal and reasonable. However, it is worth noting that the injuries sustained by the deceased, as explained 19 earlier in this judgment, indicate that the deceased was assaulted by the accused to the extent of sustaining grievous bodily harm/ injury on his body. His neck and shoulder were broken, causing asphyxia, which led to his death, as per the testimony of PW1 and exhibits P1. From the foregoing, the evidence adduced by the prosecution witnesses, which to a great extent is supported by the testimonies of DW1 (the accused) and DW2, proved that the accused used a heavy blunt object to beat the deceased. She hit him on the head, which is a sensitive area of the body, several times to the extent of causing blood clots, and being an adult and the deceased's guardian, she knew quite well that hitting the deceased on the head might lead to grievous bodily harm. Not only that, considering the injuries sustained by the deceased, it is obvious that the accused used excessive force in punishing the deceased. Having in mind that the deceased was a minor, by tying his hands and legs with a rope, surely shows that the accused had the intention to cause grievous harm to the deceased, which, as per section 200 of the Penal Code, is one of the elements that malice 20 aforethought can be inferred from. According to PW6's testimony, the accused refused to show him the ropes she used to tie the deceased's hands and legs. This also connotes ill intention on the part of the accused. To cap it all, despite all the injuries sustained by the deceased, on 6th January 2024, he was not taken to hospital on that day. As per the accused's testimony, she took the deceased to a dispensary after three days, but she did not take him to the hospital. The accused's omission to take the deceased to the hospital after beating him severely is proof that she had malice aforethought. From the foregoing, it is the finding of this court that the accused's defence did not shake the prosecution's case at all. On the strength of the holding of the Court of Appeal in the case of Enock Kipela (supra), it is the finding of this court that the accused caused the deceased's death with malice aforethought. Ultimately, the prosecution has proven the offence charged against the accused beyond a reasonable doubt, as required by law. Thus, the accused is hereby convicted of murder. Dated at Dar es Salaam this 25th March 2025. 21 B.K.PHILLIP JUDGE 22 21