chrispinius

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA CRIMINAL SESSIONS CASE NO. 4438 OF 2024 THE REPUBLIC VERSUS CHRISPINUS S/O JULIUS RULING 25th & 25th March, 2025 KIWONDE, J.: The accused person, one Chrispinus s/o Julius is charged with murder, contrary to sections 196 and 197 of the Penal Code, Cap 16 (R. E 2022). In the particulars of the offence, it is alleged by the prosecution that the accused person on 17th September, 2023 at Kihweru village, Nshamba area within Muleba District in Kagera Region, did murder one Leonard s/o Leopord. When the accused person was arraigned in court, he pleaded not guilty and so, in order to establish the case against him, the prosecution managed to call a total of five (5) witnesses (PW1 to PW5), Albogast Anatory, a village chairman of Kiwhela village, John Muganyizi, a medical doctor from Rubya hospital, Edeliana Elisa, the bar owner, H. 160 D/CPL Rajabu, an investigation officer of police and Guramson Leopord, the deceased's elder brother respectively; who gave their oral testimonies and there were tendered two documentary exhibits which are, a post­ mortem examination report of the deceased person which was admitted in evidence and marked exhibit Pl and the sketch map of the scene of crime was admitted as exhibit P2. When the prosecution case was closed, the State Attorney, Ms. Matilda Assey made oral submissions on the case to answer while, the defence, counsel, Mr. Victor Blasio, orally submitted on no case to answer. In her submissions, Ms. Matilda Assey, State Attorney said the prosecution is of the view that the accused person has a case to answer and the court to find so and the accused person to enter his defence. The State Attorney submitted that the prosecution has managed to bring five witnesses; where, PW1, Albogast Anatory testified that he received an information that the deceased was at Kiwhela centre and he was unconscious and beaten by the accused person. When he went there, he saw the deceased person with a wound on his head and he was bleeding from his nose and mouth. She said this witness knew and identified the accused person. Also, the State Attorney submitted that PW1 said the accused person had a habit of beating the villagers. 2 Apart from that, the State Attorney submitted that PW2, the medical doctor, conducted the postmortem examination of the deceased's body and confirmed that the cause of death was neurogenic shock due to being beaten by use of a blunt object. The witness said the death was unnatural. Besides that, the State Attorney submitted that PW3, one Edeliana Elisa knew and identified the accused person as a security guard of her business place, a bar. She said this witness confirmed that on the material date of event, she was at Kiwhela centre where she noticed an unusual thing to the accused person as she saw him leaning on the electric pole in pretence that he was searching for network while there is no such problem over the area. The State Attorney said the accused person uttered some words to the deceased person "Jana ulinisumbua, /eo uondoke mapema, la sivyo, nitakupiga.She said when this witness returned from the toilet, she met the deceased getting out of the bar, but shortly later on, the witness heard a loud bang outside. When she went out, she saw the accused person beating and pulling the deceased person. She said there was a bright light from electricity and she observed the event for three minutes. 3 Moreover, this witness said she saw the deceased's torch which had white and red colours and the accused person came in with it forcing one Husbert to take it. According to the State Attorney, it is the accused person and no other who is connected to this killing. In her further submissions, the State Attorney said PW4, D/CPL Rajabu, the investigation officer of police gave a general account of his investigation and spoke of the evidence of PW3 and drew a sketch map of the crime scene. The State Attorney submitted that PW5, one Guramson Leopord, the deceased's elder brother identified the accused person in court; that when he went to hospital found his young brother, now deceased, who had a soft neck and right shoulder joint and when he a bit recovered, the deceased told him that it was the accused person who beat him. He referred him as Babiya. Leave that alone, the State Attorney submitted that the offence of murder has three ingredients, one, that the death has to be unnatural, two, the accused is the one who caused such death and three, that the accused must have caused such death with malice aforethought. As to the first element of murder, the State Attorney said the medical doctor clearly indicated that the death was unnatural when he said the 4 cause of death was neurogenic shock due to beating by using blunt object. While, PW3 confirmed that she saw the accused beating the deceased person. With regard to the second element, she said the prosecution evidence proves that it is the accused person who beat and pulled the deceased person and no one else and submitting on the third element of the offence, she said malice aforethought can be depicted from the nature of weapon used, parts of the body the wounds were inflicted, the conduct and utterances of the accused person. She cited the case of Enock Kipela Versus Republic, Criminal Appeal No. 150 of 1994. The State Attorney said in this case, the deceased person has the wound on his head, soft neck and right shoulder joint. The learned State Attorney said as to the conduct of the accused person, he was seen by PW3 leaning on the electric pole pretending to search for network while there is no such problem and also, his utterances prior the event which he later on, fulfilled. Finally, the State Attorney submitted that under section 143 of the Tanzania Evidence Act, Cap 6 (R. E 2022), there is no number of witnesses required to prove the case; even a single witness can. She 5 urged the court to find the accused has a case to answer and require him enter his defence. To the contrary, Mr. Victor Blasio, defence counsel, was of the view that there is no case to answer and in law, the court must satisfy itself that the prosecution has made out the case against the accused person by establishing the ingredients of the murder stated in Republic Versus Methusela John Zozo, Criminal Sessions Case No. 77 of 2022, High Court of Tanzania at Tabora, which elements are that there is a dead person, the death is unnatural, that causation of death was an unlawful act or omission made by the accused person and that the accused person did so with malice aforethought. The defence counsel did not dispute the death of the deceased person in this case. But he said there is uncertainty as to the cause of death because PW2 said he was merely told about it by the deceased's relatives that he was beaten by the accused person and that he did not carry thorough postmortem examination as he did not conduct surgery to examine internal organs. Furthermore, the defence counsel submitted that in cross-examination, PW2 admitted that the medical doctor from Ndorage hospital, who examined the deceased person before death was placed in a better 6 position to explain about the neurogenic shock as the cause of death and tender a PF3 he filled. But this witness has not been brought. The counsel said had he been brought, perhaps, he would have testified that the cause of death is different. He asked this court to make adverse inference against the prosecution case citing the case of Aziz Abdallah V. R [1991] T. L. R 71. The defence counsel added that P$ and PW5 did escape from answering the question relating to the nature of the treatments the deceased person received at Ndorage hospital. He thus, said the evidence could not connect the accused person with this case. On the issue of conduct of the accused person, the counsel said the evidence on it is doubtful. He submitted that PW3 gave weak evidence as at first, she said she saw the accused person beating and pulling the deceased person but, in her statements, she made at the police station she did not state so. The counsel said as his boss, the witness, PW3 did not take any action when she saw the event nor did she report anywhere but she slept until the next day. He said this witness could not answer if the deceased complained of being poisoned or that the death was due to his drunkardness. 7 The defence counsel said PW1 was not an eye witness of the event, likewise, PW5. He said PW5 was said the deceased person made a declaration that it is the accused person who beat him while PW4 said the deceased person could not speak until his death, so, the evidence is fabricated. In his conclusion, the defence counsel said there is no evidence to show that the accused had intention to kill even if he uttered some words because he said them before his boss, PW3, that being found leaning on the electric pole did not indicate malice aforethought as he was on his guard. As to the accused's habit of beating other people, the counsel said it has not been proved. He wound up by asking this court to find that the prosecution has failed to establish a prima facie case and the accused person be acquitted. Having carefully gone through the prosecution evidence and the oral submissions on a case to answer and no case.to answer, the major issue for determination is whether there is sufficient evidence enough to require the accused person to enter his defence. It is a matter of law that upon closure of the prosecution case, the court has to determine if the prosecution has given sufficient evidence so that the accused person can enter his defence evidence as provided for under 8 section 293 (2) of the Criminal Procedure Act, Cap 20 (R. E 2022). Likewise, under sub-section (1) of this provision, if the court is of the view that there is no sufficient evidence, can make a finding of not guilty and acquit the accused person. In the Director of Public Prosecutions vs Morgan Maliki & another (Criminal Appeal No. 133 of 2013) [2013] TZCA 2151 (30th July 2013) TanzLII, it was stated that to constitute a prima facie case, the prosecution case must be such that it is sufficient enough to ground conviction if it is not shaken by the defence. Thus, the threshold is that the prosecution evidence has to be capable of forming the basis of conviction if no defence is offered. This is when the court can require the accused person to enter his defence. In this case, I entirely agree with both sides as to the elements of murder which offence the accused stands charged with, to include that there must be evidence that a person named in the information actually died, the death has to be unnatural, that the death was caused by the accused person's unlawful act or omissions and that the accused person, in so doing, was actuated by malice aforethought. Both the prosecution and the defence are not in dispute that Leonard Leopord actually died. The dispute is on the cause of death and whether 9 it is the accused person who perpetrated the unlawful act with malice aforethought. To begin with the prosecution evidence that the accused person might have caused the said death because it was his habit or character of beating the villagers. According to PW1, the accused person has ever beaten one person and this one was the second act. Under the rules of evidence, the evidence as to bad character of the accused person in criminal cases is irrelevant. This is provided for under section 56 (1) of the Tanzania Evidence Act, Cap 6 (R. E 2022). Therefore, this piece of evidence is irrelevant to connect the accused person to this case. Besides that, the prosecution did not bring material witnesses to testify in court and no reasons were advanced for such failure. For instance, it was said that the accused person, after beating the deceased person on the material date of event, came in the bar having a deceased's torch, white and red in colour indicating that he had taken it from the deceased. It was alleged that he forced one Husbert to take it. But this witness has not been brought to court to give evidence on the fact. There was no reason for not calling him as witness. There is a medical doctor who first examined and treated the deceased person before his death as the matter was reported to Kamachumu police station on the assault causing actual io bodily harm. The prosecution evidence shows that the victim was given a PF3 and sent to Ndorage hospital for medical check up and treatment. When PW2, testified in court, he said such medical doctor from Ndorage hospital was better placed to explain if the deceased person, in his opinion, was actually assaulted and that the assault led to his death. Yet, this witness has not been brought to court to testify without giving reason. Death may be unnatural, but it is not necessarily that it was caused by the beatings from the accused person. So, there is a lack of connection between the accused and the death of the deceased person. It should be borne in mind that the medical doctor from Rubya hospital merely said it was difficulty to diagnose if the neurogenic shock was a result of assault by beating. This witness said he concluded so when he saw the deceased with a soft neck, soft right shoulder joint but he did not go further to examine the internal organs if the cause of death was something else. Thus, it was necessary to call the medical doctor from Ndorage hospital to help the court on the matter. Failure to call Husbert and the said doctor without reasons makes me make adverse inference against the prosecution case. There is another prosecution evidence that the deceased made a dying declaration that the accused had beaten him. When testifying in court, 11 PW5 said the deceased told him so on 23/09/2023 when he was a bit recovering. But in cross-examination, this witness said the deceased person was discharged from hospital while in bad state of health for they were advised to send him to the Regional Referral Government Hospital and PW4 said the victim could not even speak and he failed to take his statements. Therefore, this piece of evidence required corroboration given the circumstances of the said dying declaration. Unfortunately, I was unable to find corroborative evidence to that effect since PW4 said the victim told the same story to the Officer Commanding Station (OCS) of Kamachumu police station, but he was not called to give evidence in court to that effect. The other important prosecution evidence is that of PW3, one Edeliana Elisa. This witness testified that on the material date of event, she saw the accused person beating and pulling away the deceased person to the dark place at the night of 23:00 hours. She said she saw the happening as there was bright light from electricity, she stood about four (4) paces distance and observed the event for three minutes and that there was nothing to obstruct her from properly seeing the same. When the defence counsel tried to impeach her testimony by comparing and contrasting her oral evidence and the statements she gave to the police station, PW3 replied that she stated the same to the police station while she was in a 12 good memory about the event. At the same time, she changed mind and said at the police station, she did not tell the police officer if she saw the accused person beating the deceased person. This clearly shows that this witness is not credible. Where credibility of the witness is doubtful, it means even her evidence cannot be trusted. Apart from that, PW3 said when she came back from the short call, she informed one Tall on the event she saw. Yet, she said they did nothing more; she closed the bar went back home to sleep. She said they did hot bother pass thereby at the scene of the alleged crime to see if the deceased seen being beaten by the accused was there or not. Therefore, this eroded more her credibility of her evidence. This is because under normal circumstances, a witness who saw the accused person beating the victim, after telling the story to Tall, they would have done something extra because the accused was her security guard. This casts doubts if what she testified was the only truth. It is obvious that whenever in criminal cases there are discernible doubts on the prosecution evidence, they are resolved to the advantage of the accused person. As to the conduct of the accused person prior the event, it is said that he was found outside the bar leaning on the electric pole in pretence of searching for network. The witness PW3 negated this by saying it was 13 unusual thing and that there was no network failure in that area. But she could not tell if at that time, she approached the accused's mobile phone to satisfy herself if there was or not, such network problem. So, this piece of evidence cannot be relied upon. Concerning uttering some words that the accused person promised to beat the deceased if he could not leave early as the day before he had caused chaos at the place. Just as I have said above, this was the evidence of PW3 whose credibility has been discredited. So, again, her testimony cannot be relied upon. It should be remembered that when the accused is said to utter such words, there were other people drinking beer with the deceased. Had they been brought to court to give evidence, at least the court could believe in this piece of testimony. It is true that a fact can be proved by a single witness. However, such witness must be credible and trustworthy for her evidence to be relied upon. The prosecution evidence reveals that the deceased used to get drunk to the extent that he stayed at the bar for some time and leave back home and on the material date of event, he was very much drunk. Also, PW3 said the deceased was her customer of rubisiand beer at her bar. For that 14 matter, lack of evidence to establish that the deceased was beaten by the accused person leading to his death, it might be other cause. Consequently, I find and hold that there is no sufficient evidence enough to require the accused person to enter his defence evidence. The accused person has no case to answer and he is hereby acquitted of murder, the offence he is charged under sections 196 and 197 of the the Penal Code, Cap 16 (R. E 2022) and section 293 (1) of the Criminal Procedure Act, Cap 20 (R. E 2022). F. H. KI WON DE JUDGE 25. 03. 2025 Court: Ruling is delivered in open court in the presence of Ms. Matilda Assey, Ms. Agness Awino, State Attorneys for the Republic, Mr. Victor Blasio, defence counsel, the accused person and Grace Mutoka (RMA) this 25th March, 2025 and the right of appeal is explained. F. H. KI NDE JUDGE 25. 03. 2025 15