JUDGMENT INNOCENT FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION NO. 9132 OF 2024 202404052000009132 THE REPUBLIC VERSUS INNOCENT JUSTIN NGOWI......................................................1ST ACCUSED PETER MODEST MBALA ..........................................................2ND ACCUSED LUDOVICK SARONGA DOVICK ...............................................3RD ACCUSED ADAM SIMION RWEBILUMI ....................................................4TH ACCUSED JUDGMENT 4th & 14th March 2024. KIREKIANO, J; The accused persons, namely Innocent Ngowi, Peter Modest Mbala, Ludovick Saronga Dovick, and Adam Simion Rwebilumi, are charged with the offence of murder contrary to sections 196 and 197 of the Penal Code Cap 16 [RE 2019]. It is alleged that on the 2nd of October 2023, at Soga area, Mlandizi within Kibaha District Costal Region, the accused persons murdered one David Norbeth Kihwele (the deceased). All accused persons pleaded not guilty to the information. Briefly stated, the quick picture based on the facts leading to the accused person's arrest and trial is that; the deceased and the accused persons are among villagers at Banda la Ngozi, Soga area, Mlandizi. There was a misunderstanding between the deceased and some of the villagers. 1 In the address of the situation, on 02/10/2023, a meeting was convened. The deceased and his neighbours, including Emmanuel Mjema, Taiti, and the accused, Innocent, Peter, Dovick, and Adam, attended the meeting. In the end, the meeting deliberated that for the sake of peace among this community, the deceased and his family should move out of the area. It is alleged that the deceased and his wife agreed, the accused left the area without saying where he was going. While his wife remained behind sheltered by one of the villagers, it appears the deceased had other ideas, when he came back, quarrels erupted again; there is version that the deceased wanted to hit his daughter, aged 10 months by hammer (mchi), there is also a version that he wanted to harm his wife, PW3. The clear allegation is that the accused herein and others villagers took the law into their own hands, assaulted the deceased, and restrained him in an attempt to find peace. The assault resulted in the deceased's death. According to the investigation and the postmortem examination, the cause of death was associated with the assault. Whether the deceased soul finally found peace is not for this court to decide. On the other hand, some of the villagers who are the accused have found themselves in company of four charged with the offence of murder as stated above. The prosecution was led by Miss Gladness Mchami, senior state attorney with assistance from Miss Bertha Kaaya, a learned state attorney. 2 The accused persons were represented by Mr. Roman Selasini Lamwai, a learned advocate for the first accused; Mr. David Ndimu, a learned advocate for the second accused; Mr. Collin Nathael Mcharo, a learned advocate for the third accused; and Miss Modesta Merdad, a learned advocate for the fourth accused. To prove their case, the prosecution paraded six witnesses: PW1 Abdallah Yahaya Rajabu, PW2 Maulid Abdallah Pumbuli, PW3 Leokadia Emmanuel, PW4 F.1940 D/SSGT Emmanuel, PW5 AST Inspector Enock Kafuma, and PW6 Ernestina Nobert Kiwhele. Two exhibits were tendered while on the part of the defence, all accused persons fended themselves. The substance of the prosecution case is that, PW3 Leokadia Emmanuel is the wife of the deceased. According to her, on 02/10/2023, there was a quarrel between her husband and the third accused Dovick, which caused her to sleep at the residence of the neighbour Mr. Taiti. To resolve the quarrel, a meeting was convened and attended by all the accused, and others were Emmanuel Mjema, Taiti, Charles, and others. The meeting deliberated that the deceased and his family should move out of the village. According to her, they respected the order. However, the deceased went away to an unknown place. After a while, the deceased came back and found his neighbour Neema carrying his daughter Catherine, aged nine months. The deceased was not happy 3 with that, a quarrel started again, Taiti and the accused persons assaulted the deceased with their fists and a Cassava stick and caused injury to his head. She told this court that Taiti, Peter, Dovick, and Innocent grabbed the deceased downside of the scene. According to her, the incident happened during the daytime at around 10-11 hours. She said that she knew the accused persons as they were her neighbours who had stayed together for about five months. After the police have arrived, the deceased in a bad condition tied with ropes and kept under a tree. She did not know the crux of his husbands and Dovick (3rd accused) quarrel. When cross-examined by Miss Merdad for the 3rd accused, she said it is true that she told the police that her husband (deceased) wanted to assault her young baby with a hammer (mchi). PW5 AST Inspector Enock Kafuma was the first police officer to arrive at the scene. According to him, when he arrived at the scene, he found the deceased lying down and had bruises. According to him, the deceased was tied with ropes to his hands and legs. He has bruises on his body and was still alive according to what he gathered from the bystanders at the scene, there was a quarrel between the deceased and his wife (PW3) and 4 that the people assaulted the deceased to rescue the deceased wife. The key assailants named were Mjema, Innocent (1st accused) and Simon Taiti This witness said he was at the scene when he met the first accused (Innocent) Mjema na Taiti. He thus told the first accused and others to take the deceased to Soga dispensary by motorcycle while he carried PW3 Leokadia to Soga Police station for further interrogation. Momentarily, he was informed by PW1 Abdallah, a clinical officer, that the patient passed away before getting any treatment. So, he arrested the first accused while the other person vanished to date. According to PW5, he led PW4 St Sgnt Emmanuel to sketch the map of the scene. According to him the 2nd accused, Peter Modest was arrested and brought to police by police Jamii. the other accused that is Adam and Dovick, mentioned by PW3 Leokadia, were also arrested PW1, Abdallah Yahaya Rajabu a clinical officer at Soga Dispensary. According to him, he is the one who received a patient namely Edward Noberth (now deceased). He said that after prior examination, it appears that the patient had already lost his life. He informed his relatives and referred the body to Mlandizi Health Centre for further procedures. 5 On 03/10/2023, PW2 Dr. Maulid Abdallah Pumbuli examined the body at Mlandizi Health Centre. The doctor identified the body assisted by PW6 Ernestina Nobert as that the deceased was David Norbert Kihwele. According to his examination of the body, the deceased had a wounded head and bruises on his hands and in further examination, he noticed that the deceased's skull was fractured, affecting the brain. The wound was fresh within 24 hours, which could have been caused by a sharp object like a knife, or any piece of iron or hardwood. The cause of death was explained to be cerebral haemorrhage. These findings were recorded in the post-mortem examination Report Exhibit P-1. After post-mortem PW6 took the body for the burial ceremony on 5/5/2023. Another witness was PW4 F.1940D/SSGT Emmanuel, who was the investigator of this case. After being briefed by PW5 about the incident, PW5 accompanied him to the scene, and he managed to draw the sketch map (Exhibit P2) with the assistance of Insp. Enock PW5. He is the one who recorded the statement of PW3, Leokadia, who told him what transpired, which made the arrest of the accused. According to this witness, he was told by PW3 that there were many people, but six people were key in assaulting the deceased. PW3 mentioned the suspects 6 as Adam, Ludovick, and Charles, who were arrested. PW4 informed this Court that the 2nd accused was detained by Ulinzi Shirikishi on 2/2/2023. According to PW4, the postmortem was conducted and the report showed the cause of death was brain haemorrhage caused by head injury which was associated with the assaults. In their defence, the line of defense was a complete denial, According to him DW1, Innocent Justin Ngowi disputed that he knew the co-accused persons before this case. He agreed that the deceased was his neighbour, but he had never witnessed him in quarrels. He denied participating in the alleged meeting involving a quarrel of the deceased. According to him, he was just a passerby, he saw the deceased lying down and surrounded by people. In assisting, he was among those who carried the deceased to the hospital together with PW5, St. Sgt Enock Kafumo, only to wonder to be arrested by PW5. On the party of the second accused, Peter Modest Mbala (DW2), his defence was that he was arrested at his farm and taken to Mlandizi Police Station where he stayed for three days without being told the reason of his arrest. He disputed knowing the 1st, 3rd and 4th accused. He said he did not know the deceased. 7 DW3, Ludovick Saronga Dovick told this Court that he was arrested by Police Jamii accused of murder and was taken to Mlandizi police station. He said he stayed in custody for four days before recording his statement. He disputed having known the 1st, 2nd and 4th accused persons and neither the deceased. DW4 Adam Simion Rwebilumi defended himself by saying he was arrested on 3/10/2023 and taken to Mlandizi Police Station, because he was carrying charcoal without a permit, where he stayed for 18 days before being taken to court. He told this Court that he was joined in the offence of murder to a person he did not know. He disputed that he knew the deceased. After the defense case closed, the main issue for determination is whether it is proved to the required standard that the accused persons committed the offence of murder as charged. It is a trite law, as provided under Sections 110 (1) (2) and 112 of the Evidence Act (Cap 6 R.E 2022), that whoever alleges the existence of any fact and invites the Court to enter judgment in his favour carries the burden of proving the existence of that fact. In Criminal cases, the standard of proof is that of beyond reasonable doubt. See Section 3(2)(a) of the Evidence Act. See the cases 8 of Nathaniel Alphonce Mapunda and Benjamin Mapunda vs R (2006) TLR 395 where the Court observed that: - i) As is well known, in a criminal trial the burden of proof always lies on the prosecution. Indeed, in the case of Mohamed Said v R this Court reiterated the principle by stating that in a murder charge the burden of proof is always on the prosecution, and the proof has to be beyond reasonable doubt. The same also is articulated in the decision by the court of appeal in Joseph John Makune vs. Republic [1986] TLR 44 on page 49, that; "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well- known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities..." In this case, to find conviction against the accused person’s herein all elements of the offence of murder under section 196 of the Penal Code must be proved beyond reasonable doubt, matters to be proved are; that first the said David Norbeth Kihwele is dead, second, that his death was not natural but caused by an unlawful act. Third, it was the accused persons who did the unlawful act or omission fourth, that the death was caused with malice afore-thought that is to say the act was intended to death or grievous bodily harm. 9 Given this position, I will consider each ingredient in line with the evidence on record to establish whether the prosecution discharged its burden of proof beyond a reasonable doubt. I will start with the first aspect of death, there was evidence from the testimony of PW1 Abdallah Yahaya Rajabu (clinical officer at Soga Dispensary) who received the deceased in the fires place. His version was that the deceased, died before receiving any useful treatment and Soga Dispensary and the body was taken to Mlandizi Health Centre for postmortem. The body of the deceased was confirmed by his relative, PW6, one Ernestina Noberth Kiwhele. PW2 Dr. Maulid Abdallah Pumbuli confirmed the death of the deceased and his report on post mortem examination (Exhibit P1) opined that the deceased died from severe haemorrhage caused by the wound at the head In the Kenyan decision, which I find it persuasive, that is Republic v David Morogo [2017] KEHC 5361 (KLR), citing NDUNGU Vs REPUBLIC [1985] EKLR, the Court of Appeal of Kenya held that; “.Where a body is available and the body has been examined, a post-mortem must be produced, the trial court having informed the prosecution that the normal and straight- forward means of seeking to prove the cause of death is by 10 regularly producing the post-mortem examination report as a result of which the Medical Officer who performs the post- mortem examination is examined.” In this case, there is no dispute from the defence on the death of the deceased, the first accused, DW1 Innocent Justin Ngowi stated to have assisted in taking the deceased to the hospital, and PW1 informed them that the patient was dead. The other accused evidence was complete denial. With this evidence on record, this court finds as a fact that David Noberth Kiwhele is dead. The second element is whether the deceased's death was natural or caused by an unlawful act. According to the evidence by PW2, the cause of death was due to brain injury caused by the wound at the head. There was also evidence of PW1 who told this Court that physically the body of the deceased was stained in blood with wounds around his body, especially at his head. PW5 the police officer who arrived at the scene before death told this Court that at scene, he found the deceased David Kiwhele lying down and had bruises while his hands and legs were tied with ropes. With the assistance of DW1 and other people they took the patient to Soga Dispensary where he passed away before getting treatment. 11 To discredit this evidence, the defence pressed during cross- examination why the sticks used to beat the deceased and the ropes with which the deceased was tied, as testified by PW3, PW4 and PW5, were not collected and brought in Court as an exhibit. I agree this physical evidence could have been collected and tendered in court. However, I have taken into account the oral evidence by PW3, and PW5 that there were such sticks and ropes at the scene, this evidence is sufficient to prove this fact. In Shedrack Kuhaha vs Republic (Criminal Appeal No. 139 of 2015) [2015] TZCA 166 (5 June 2015) the court of appeal was faced with a similar situation where the axe alleged to have been used to assault the victim in a case of attempted murder was not tendered. The court of appeal at page 8 held; It is true that the axe and the matrimonial proceedings were not as exhibits. The position of the law is that, even if those articles were not produced in court, that factor affects only the weight and not the admissibility of oral evidence regarding the existence of these articles. Their non- production does not obliterate the fact that under section 61 of the Evidence Act (Cap. 6 - R.E. 2002) all facts except the contents of a document may be proved by oral evidence 12 Considering the uncontested report on post Morten examination Exhibit P1) that the deceased died from severe haemorrhage caused by the wound at the head, but also the oral account of PW1 and PW5 of I also find it in affirmative that the deceased death was not natural but caused by unlawful act. The other aspect considered is who caused the unlawful act of wounding the deceased. Leokadia Emmanuel (PW3) was an eyewitness. According to her, the deceased was bitten by the neighbours using their fists and cassava sticks. She told this Court that she identified DW1 Innocent, DW2 Peter, Dovick DW3, Adam DW4, and the so-called Taiti who, according to PW4, vanished in the event of the death. There is also evidence from PW5 that when he arrived at the scene, the first accused was there and assisted in taking the deceased to the hospital. This evidence was corroborated by PW4, who testified that all the accused persons were mentioned by PW3, Leokadia Emmanuel. It is on record that the incident occurred in broad daylight. Witness PW3 also stated that the accused were villagers in the area. I see no reason to doubt the evidence on identification. 13 I have considered the defence of all witnesses that they were not at the scene of the crime. It is noted that none filed a notice of alibi. It is the law that if the accused wanted to rely on the defence of alibi, they should have complied with section 194 (4) of the Criminal Procedure Act [Cap 20 R.E 2022. In this state of affairs, I find it suitable to bring up the law as it stands on this defence as was concisely articulated in Charles Samson V Republic [1990] TLR 39: - thus; “(i) The court is not exempt from the requirement to take into account the defence for alibi, where such defence has not been disclosed by the accused person before the prosecution closes its case. (ii) Where such disclosure is not made, the court though taking cognizance of such defence, may, in its discretion accord no weight of any kind to the defence.” Considering that no notice nor particulars were furnished to the defence, it thus remains within the discretion of this court to accord weights to the defence or otherwise. The second accused did not explain where he was, while the third accused, Dovick, said he was in another village. The fourth accused said he was also from another town and was arrested for carrying charcoal without a permit. 14 I have considered this defence but am not convinced by it, considering the strong evidence of identification provided by PW3. Their defence is rejected. The last aspect to be considered is whether the accused persons caused the said death to the deceased with malice aforethought. The ingredient of malice aforethought relates to the circumstances under Section 200 of the Penal Code to include: - (a) An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually 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. 15 In the case of Enock Kipela vs Republic Criminal Appeal No 150 Of 1994 (unreported). The Court of Appeal stated that for courts to establish malice within the context of the Penal Code, they need to assess the following seven aspects; “(1) the type and the size of the weapon, if any, used in the attack (2), the amount of force applied in the attack, (3) the part or parts the blow or blows were directed or inflicted on, (4) the number of blows although, one blow may, depending on the facts of a 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. ” The evidence in the record shows that there was a quarrel between the deceased and Dovick DW3, which led to the meeting, which ordered the deceased and his family to vacate the area and settle elsewhere. It is also gleaned from the record as per the evidence of PW3, PW4, and PW5, that the fight/quarrel started again after the deceased wanted to assault his daughter, baby girl aged 10 months. I have given this thought, when considering the alleged malice. In this case, there is nothing on record suggesting the pre-existing intent of all the accused persons to kill the deceased or cause him grievous bodily 16 harm. From what was shown, deliberation was made peaceful that the deceased should leave the village and nothing more was done until he came back. Understandably, to infer malice it is not always the case to depend on the wording or conduct of the attacker. It is also the law that malice can be inferred from many aspects, including the weapon used and the type of harm inflicted. I note that the head is a vulnerable part of the body, so as a cassava stick and a fist may also be offensive. In this case, what has made a difference is the evidence that the deceased threatened to hit the said young girl by using the hammer (mchi), which would put the girl's life in danger. Having believed PW3 a wife of the deceased who witnessed all the incidents in identification, I see no reason not to believe her in this fact. In Faustine Kunambi vs. Republic, Criminal Appeal No. 32 of 1990, the Court of Appeal stated that: - "Where there is difficult on evidence to say that the accused intended to kill the deceased, he should be given the benefit of doubt and found guilty not of murder but of manslaughter." I also considered the accused side of the story, as indicated above, they all denied having assaulted the deceased, they had nothing to state in this 17 aspect of malice. In my assessment, this was a case of excessive use of force to defend life. The alleged malice is not established. All said, I find that the prosecution Side has not proved the information of murder to the required standard. The 1st, 2nd, 3rd, and 4th accused persons are found not guilty of murder contrary to sections 196 and 197 of the Penal Code Cape 16. Instead, the 1st, 2nd, 3rd, and 4th accused persons are found guilty of manslaughter contrary to sections 195 and 198 of the Penal Code Cap 16 [ RE 2019]. The 1st, 2nd, 3rd, and 4th accused persons are accordingly convicted. A. J. KIREKIANO JUDGE 14.3.2025 COURT Judgment was delivered in open court in the presence of Miss Asifiwe Mzava, learned state attorney for the Republic. All accused persons and their defence counsels; Ms. Modesta Merdad, Advocate for the fourth accused, who was also holding brief for Mr. Roman Selasini Lamwai, 18 counsel for the first accused, and Mr. David Ndimu, Advocate for the second accused, and in presence of Mr. Collin Nathael Mcharo advocate for the second accused. A J KIREKIANO JUDGE 14.3.2025 19