No Case to Answer Ruling

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO CRIMINAL SESSION CASE NO. 35781 OF 2024 REPUBLIC VERSUS 1. PF 25476 A/INS ABDALLAH JUMA JUMLA 2. F.2180 D/SGT NURU MUSSA MUSSA RULING Date: 19 March, 2025 & 20 March, 2025 SINDA, J:. The accused persons stand charged with Manslaughter contrary to Sections 195 and 198 of the Penal Code, Cap. 16, R.E. 2019 (the Penal Code). The prosecution alleged that on 27 April 2020, the accused persons murdered one Kelvin s/o Mapondela (the Deceased). The facts relevant to this case are that on 27 April 2020, the deceased and one Francis Malekela were arrested by the militia and taken to Ifakara Police Station. During interrogation, the deceased and Francis Malekela were 1 assaulted by different police officers, resulting in the Deceased being unconscious. The Deceased died while receiving treatment at St. Francis Regional Referral Hospital – Ifakara for blunt chest injuries sustained during the assault. The accused persons were subsequently arrested and, following investigation, charged in this court for the offence. At the hearing of this case, the prosecution was represented by Ms. Monica Matwe, Ms. Magreth Lyimo, Ms. Elida Mtisi, and Mr. Amani Mwamginga, State Attorneys. The accused persons were represented by Mr. Derick Vincent, learned counsel. The prosecution called nine (9) witnesses and tendered a single exhibit, the Report on Post-mortem (Exhibit PE1). PW1, Dr. Winfred Joseph Gingo, a surgical doctor at St. Francis Regional Referral Hospital – Ifakara, testified that on 28 April 2020, the Deceased arrived at the intensive care unit (ICU) in a critical state, unconscious and exhibiting clinical signs of severe hypoxia. He stated that initial assessments, including ultrasounds, revealed fluid in the deceased chest and abdomen, indicating significant internal injuries. He said that due to the patient's unstable condition, a CT scan of the head was not performed, and immediate surgical intervention was deemed too risky by the anaesthesia team. He 2 stated further that the patient's oxygen levels were very low at a rate of 60%, and his heart beat rate was very high at 160. PW1 testified that despite attempts to stabilise the Deceased, including the insertion of a tube in his chest to drain fluid, his condition deteriorated, and he died later that evening between 8:00 pm and 9:00 pm. PW1 concluded that the cause of death was a combination of brain injury, blunt chest trauma, and blunt abdominal trauma. During cross-examination, PW1 stated that the ultrasound indicated the existence of fluid, not specifically blood. He further stated that he did not remember the amount of blood drained out from the chest. He further testified that when he performed the surgery, he was assisted by ward doctor Desdedith Claud. PW2, was Dr. Erasto Rite, the Chief Medical Doctor at Ifakara Municipal Council in Kilombero District, Morogoro Region. He examined the body of the deceased together with Dr. Yohana Masumbuko, who worked at Kibaoni Health Centre and their report revealed that the cause of death was blunt chest injury. During cross-examination, PW2 testified that the tube inserted into the Deceased's chest was intended to alleviate tension in the lungs because of 3 fluid accumulation. He confirmed that they found brownish fluid in neither purely white nor red. He acknowledged that the Deceased had died around 9:20 p.m. and stated that they did not directly observe the condition of the exterior of the lungs. During re-examination, PW2 clarified that the brownish fluid between white and red found in the lungs is a normal finding. He also stated that the tube in the Deceased body contained only a tiny amount of fluid from the Deceased's body. PW3, Francis Andrew Malekela, testified that, on 25 April 2020, the Deceased left electrical cables he was burning near Mama Shaban’s banda and the Mangi shop in his care that Sharifu Henji later stole. He stated how he and the Deceased investigated the theft and traced the buyer one Onemo. He testified that Sharifu confessed to stealing the electric cables and promised to repay the Deceased. Sharifu undressed and told the Deceased to take his clothes, and that he would take them back once, he paid the Deceased. He said that led to a meeting intended to resolve the issue amicably, following concerns from Sharifu’s mother. PW3 testified that the situation escalated dramatically on 27 April 2020, when PW3 and the Deceased were arrested by the militia and taken to Ifakara 4 Police Station. He stated that they were in good health when they arrived at the Ifakara Police Station. He testified that upon reaching the police station, they were subjected to mistreatment and physical abuse, including being beaten with sticks on their knees, elbows, soles of their feet, backs, thighs, and shoulders by multiple police officers, including the accused. He stated the first accused slapped him on the cheeks and the second accused beat him on the back. He said that the beatings were so severe that the Deceased’s health rapidly deteriorated, and he was unable to speak. He also stated that despite their pleas for help, the police officers refused to provide medical assistance. PW3 testified that tragically, the Deceased died at St. Francis Regional Referral because of being beaten by the police. He fled the area after the Deceased's death, fearing for his life. He stated that he sustained injuries from the beatings and sought traditional medical treatment. During cross-examination, he clarified that Mama Shaban and Mangi were not present when the first occurred. He stated that the Deceased bought scrap metal and only burnt electricity cables that day. He also described how Sharif undressed and gave them his clothes. PW3 further testified that he advised the Deceased to speak with Sharifu's mother because he heard 5 Sharifu’s mother wanted to report the incident at the police station. He noted that at the police station, they were not informed of the charges but understood they related to undressing Sharifu. PW3 further stated that they were abused at the police station. They were beaten at the reception by multiple police officers, including the accused. He also noted that he did not report the injuries to the police, and he treated his knee in traditional ways. PW4, Athumani Aloyce Machekela, testified that he was a peasant and a militia member. He testified that on 27 April 2020, he and his fellow militia member Majei had an RB and arrested the Deceased and PW3 and took them to Ifakara Police Station. He said they handed the suspects to police officer Selemani at the Criminal Records Office (CRO). PW4 emphasised that the suspects were in good health when they left the police station and that Majei informed the first accused of the successful delivery of PW3 and the Deceased at the police station. He stated further that on 28 April 2020, he heard that the Deceased died while in police custody. During cross-examination, PW4 stated that they could not arrest suspects without an arrest warrant, but they only had an RB. PW5, Priscus Samwel Wandeha, the Deceased's father, testified that the Deceased died on 28 April 2020 after he was arrested the previous day. That, 6 he and his wife went to the Ifakara Police Station but were denied access to the Deceased. He testified that on the following day, he returned to the police station with relatives, together with the Deceased's employer, who was informed that the Deceased and PW3 were injured. PW5 testified that he then witnessed Kelvin's poor condition in the cell, and when he sought help from the first accused, he was beaten instead. He stated that later, the Deceased was taken to St. Francis Regional Hospital, where he was treated without a required PF3 form and subsequently died. PW5 detailed the family's attempts to obtain a postmortem examination order from the District Commissioner (DC) and the eventual receipt of the report, which was read to them in English. PW5 further testified that the Deceased was in good health before his arrest. He explained the delay in burial was due to the family's demand for the postmortem report to be in Swahili. During cross-examination, PW5 confirmed that he complained to the DC regarding his son's arrest and subsequent death. He stated that the postmortem report was initially read to them in English at the DC's office. PW5 stated he only reported the assault he suffered at the police station to the DC, who offered no response. He stated that the burial of the Deceased 7 was delayed until the postmortem report was read to them in Swahili. PW5 also clarified that he did not reside with the Deceased and was unaware of his matters, including potential disputes with Sharifu or Sharifu's mother, who had reported the incident to the police station. PW6, Mary Sammy Mikessy, was the cousin of PW3. She testified that on 28 April 2020, she went to the police station between 8:00 and 9:00 a.m. and took tea to the Deceased and PW3. She found the Deceased and PW3 injured in a terrible state and told his relatives to obtain bail and take them to the hospital. During cross-examination, PW6 testified that PW3 was injured and not in good health. She stated that he healed through traditional means and could not go to the hospital because they were scared of his well-being. She said that the police came back for the tea and gave it to Kelvin and Francis, but Kelvin couldn’t drink the tea. She testified that a relative told her that they were arrested because they undressed Sharifu. PW7, Silvano John Sarakikya, a scrap metal business owner in Ifakara and the Deceased employer, testified that the Deceased and PW3 were arrested on 27 April 2020 because of kidnapping and undressing Sharifu. He 8 testified that on that day, he attempted to obtain bail for the Deceased but was told to return to the police station on the following day, and he found the Deceased beaten and unconscious. That, together with PW5, they rushed the Deceased to St. Francis Regional Hospital without a PF3, and the Deceased died later. During cross-examination, PW7 stated that he had known the Deceased for a long time as they were neighbors. He stated that he did not know who had beaten the Deceased at the police station. He said that the police did not take his bail letter, and the Deceased was released without being granted bail. PW8 F.4071 D/SGT Revocatus testified that on 28 April 2020, he went to the office and found SGT Zakayo and two other individuals helping the Deceased, who was unable to walk and in poor health. He testified that he joined SGT Zakayo, along with two other individuals, to carry the Deceased from the police station to a bajaj. He also testified that he later heard that the Deceased had died. PW9 XE 7210 D/SGT Mhina testified that on 30 April 2020, OC-CID Insp. Luka directed him to go to St. Francis Regional Hospital's mortuary as an investigator to witness the post-mortem examination of the Deceased. The 9 postmortem examination was also attended by SGT Joseph, OCS of Ifakara Police Station and two medical doctors. After the examination, he took statements from all the witnesses. He stated that, as an investigation officer, he also collected exhibits, including the post-mortem report. PW9 further stated that he knew the accused persons because they worked together in the investigation department at the Ifakara Police Station. He stated that he was informed that the Deceased had died because he was beaten while at the Ifakara Police Station. He testified that his investigation ended when he handed over the file to A/INSP Mitondo, who is now deceased, without concluding the murder. During cross-examination, PW9 stated that he did not make any findings in his investigation. Following the closure of the prosecution case, I was obliged to determine, in terms of the provisions of Section 293 (1) of the Criminal Procedure Act, Cap. 20 R.E 2022 (the CPA), whether the accused persons have a case to answer for the offence of manslaughter. 10 Under the provisions of section 293 of the CPA, my duty is to assess the prosecution's evidence to determine whether it has established a prima facie case sufficiently to require the accused persons to enter a defence. Having examined the evidence adduced by the prosecution witnesses in its totality, there is no doubt that the Deceased is dead. The evidence by PW1, PW3, and PW5 confirms the death of the Deceased. However, what is in doubt is who killed the Deceased. PW4, PW5, PW6, PW7 and PW8 were not at the scene of the crime and said they heard that the Deceased was dead but didn’t know who had beaten and killed the Deceased. PW9, who initially investigated the matter, stated that he did not make any findings in his investigation. This court is of the view that the only evidence purporting to connect the accused persons with this offence is that of PW3, Francis Andrew Malekela, who was in the cell with the Deceased under police custody, which is insufficient to establish the offence charged. PW3 claimed to have been beaten by several police officers at the police station, but he failed to give their description. PW3 also failed to describe how the Deceased was beaten by the accused person to his death. I therefore think the evidence of PW3 was unable to connect the accused persons with the offence charged. 11 Since I have been left with no evidence to implicate the accused persons under Section 293 of the CPA, there is nothing on record to defend. The spirit of section 293(1) of the CPA is such that the accused can only stand in the witness box if a prima facie case has been established, and the Court may convict them of the offence charged even if they opt not to defend. In the instant matter, no such case has been established. That said, this court rules that the accused persons have no case to answer, as the prosecution's evidence failed to establish it against them. Accordingly, they are acquitted under Section 293(1) of the CPA. I order their immediate release unless lawfully held for other lawful cause. It is so ordered. DATED at MOROGORO on this 20 day of March 2025. A. A. SINDA JUDGE 12