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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUBREGISTRY AT TABORA CRIMINAL SESSIONS CASE NO. 102 OF 2023 REPUBLIC VERSUS 1. SHOKA S/ HARUNA MGEMELA 2. DAVID S/O LAURENCE KALIKUMBI 3. MUSSA S/O NYARUKENDE MAGOTI 4. ROSTA S/O MIGI RWEYENDELA 5. ALLY S/O MUSSA HUSSEIN 6. ABBAS SS/O RAJABU MGWENO JUDGEMENT MANGO, J The deceased's persons in this case namely; Salum Said Musa@White, Rajab Julius Jackson, Lule Muhid Ibrahim, Mohamed Baraka Dotto and Ally Said Sindano met a very brutal death. It is alleged that they were shot, burnt extensively and their bodies abandoned at Ugala Game Reserve area. According to the autopsy reports, all bodies were macerated at the time they were examined. After a serious investigation, the accused persons were arrested and charged with the offence of murder contrary to section 196 and 197 of the 1 Penal Code, [Cap. 16 R.E 2022]. The information filed before the Court indicates that, on 27th day of July 2022 at Ugala Game Reserve area within Sikonge District in Tabora Region, the accused persons, did jointly and together murder the five deceased persons named above. During hearing, the Republic was represented by a team of four learned State Attorneys namely Merito Ukongoji, Alice Thomas, Nurdin Mmary and Dickson Swai while the accused were represented by a team of three learned advocates namely Majura Magafu, Kelvin Kayaga, and Akram Magoti. After closure of prosecution and defence case, parties were afforded an opportunity to file written final submissions. I am grateful for lucid submissions filed by counsel who represented parties to this case. However, I will not reproduce the contents of their submissions in this judgement. I will merely make reference to their contents whenever necessary. It is trite law that in criminal trials the prosecution is duty bound to prove the case against the accused person beyond reasonable doubts. In their efforts to prove the offence allegedly committed by the accused persons, the prosecution had 18 witnesses and 19 exhibits. The prosecution witnesses were; PW1, ASP Kisu Andondile Mwapongo, PW2 Ramadhan Juma Shabani, PW3 Juma Abbas Said, PW4 Kulwa Mussa, PW5 G2653 D/CPL Erick, PW6 Lilian Lucas Kalawale, PW7 Ahaz Philipo Sanga, PW8 G 7679 D/CPL Andrew, PW9 H 1824 D/CPL Richard, PW10 H577 D/CPL Feisal, PW11 G5696 D/CPL Augustino, PW12 H. 3356 CPL Daniel Wilbard Kimario, PW13 H. 311 D/CPL Emmanuel Lindege Thobias, PW14 SP John Mayunga Singija, PW15 PF 23021 A/Inspector George Mpinga, PW16 Ruja Fabian, PW17 G4186 D/CPL YUDA and PW18 Mohamed Mohamed Said. The prosecution also tendered 2 the following exhibits, sketch map of the scene ofcrime, Postmortem reports of the deceased persons, Cautioned testaments of the accused persons, 6 Guns, 6 Magazines, 122 Bullets, Balistic examination report, spent bullet cartridges, DNA tests report, Certificate of seizure and weapons movement register for TAWA and a motor vehicle make Toyota Land Cruiser, Single Cabin with registration No. SU 42178. with registration number. The Accused defended themselves on oath and summoned one witness namely Philipo Mswanya who testified as DW1 thus, making the number of defence witnesses to be seven. Ordinarily, the accused persons are not duty bound to prove their innocence, however defence evidence is very crucial in criminal trials as it assists the Court to hear from the persons who are accused of committing the offence and have a balanced story as to what transpired especially where the accused persons will decide to give a true account of the incident that resulted to their arraignment. By employing available rules of evidence, such evidence may assist the Court to reach into a well informed and just decision. The highlighted responsibility of prosecution and accused person in a criminal trial are considered to be universal and they have been emphasized in a number of cases including the case of Fakihi Ismail vs Republic (Criminal Appeal No. 138 of 2017) [2019] TZCA 368 (4 November 2019) and that of Director of Public Prosecutions vs Shishir Shya Msingh (Criminal Appeal 141 of 2021) [2022] TZCA 357 (16 June 2022) In Fakihi Ismail versus Republic, the Court of Appeal held that; "...z it is elementary that the burden of proof in criminal cases rests squarely on the prosecution, with no requirement that the 3 accused proves his innocence; and that such proof must be beyond reasonable doubt..." According to section 196 of the Penal Code, for the offence of murder to be considered to have been proved beyond reasonable doubts, the prosecution need to prove beyond reasonable doubts that, the named deceased person died, his death was not natural, it was the accused person who killed the deceased person and that in such killing, the accused person had intention to cause death of the deceased. In the course of proving that the persons named in the information filed to institute this case have died, the prosecution had testimonies of the doctor who performed post mortem report of the dead bodies, Dr. Lilian Lucas Kalawale, PW6, PW14 SP John Mayunga Singija, the expert who conducted DNA examination of the bodies of the deceased persons. They also produced Postmortem reports of each deceased person which were admitted and collectively, marked as Exhibit P2 and DNA test reports which was admitted as Exhibit P 19. The DNA report establishes that the bodies that were examined were of human beings and they were bodies of deceased persons. In conducting DNA test, the expert compared DNA of pieces of flesh collected from deceased bodies and the swabs collected from relatives of the deceased persons. The defence raised suspicions as to the correctness of the DNA test results due to alleged procedural irregularity in collection and chain of custody of swabs and pieces of flesh collected from dead bodies which were used as specimen. I am of a considered view that, the irregularities alleged by the defence did not any how affect the results of the test. Moreover, DNA 4 report was not the only evidence that was tendered by the prosecution to prove the identity of the deceased persons. The deceased's bodies were first identified by their relatives before post mortem examination was conducted. The body of Salum Saidi Musa@white was identified by Kulwa Musa; Lule Muhid Ibrahim was identified by Kulwa Musa and Mohamed Said; Mohamed Baraka Dotto was identified by Juma Abbas and Ally Said Sindano was identified by Mohamed Said. During trial, prosecution summoned relatives of the deceased's persons who testified to have identified the bodies of their relatives via body and facial structures. PW3 Juma Abbas Saidi testified that he managed to identify the body of Mohamed Baraka@Dotto through his facial structure. He stated that though the body was burnt, his face was not disfigured. A similar testimony was given by PW4, Kulwa Musa who identified the body of Salum Said Musa@white. There is also the testimony of PW2 Ramadhani Juma Shabani who was with the deceased's persons few hours before their death. According to PW2 they entered the reserve illegally for extraction of timber. They were 12 persons. They managed to extract timber as per their plan. On their way back home, they were chased by a vehicle. Every one ran towards his own direction, when they met again, it was around 0300am and they were only six out of twelve persons. He stated further that, in the course of their escape from being arrested, they heard gun shots and that one person was arrested as he heard somebody being ordered to enter into the car. They then decided to go back to the village and inform the families of the missing members of their group as to what transpired. This piece of testimony establishes why 5 the relatives of the deceased persons managed to identify dead bodies of their beloved ones despite being extremely burnt. In such circumstances, it cannot be said that the prosecution did not prove that the bodies that were discovered at the scene of crime were not of the deceased persons unless evidence to the contrary is adduced. Unfortunately, no such evidence was adduced during trial. Thus, I find the prosecution to have managed to prove beyond doubts that, the named deceased persons died. The cause of deaths of all deceased persons, except Ally Said Sindano, is Deep Penetrating injuries as indicated in the post mortem examination report of each deceased. The cause of death of the late Ally Said Sindano is indicated in his post mortem report to be extensive whole body burn injury. The report indicates further that his entire body was burnt, only his limb and skull remained. The doctor who examined the bodies of the deceased persons, PW6, testified to the effect that, their deaths were not natural. According to her, deaths of the deceased persons were caused by massive hemorrhage due to deep penetrating injury as a primary cause and burnt injuries as a secondary cause. This establishes that, the death of all accused persons were not natural. On whether the accused persons are responsible with the unnatural deaths of the deceased persons, prosecution's case was found on two types of evidence, confession that is, cautioned statements of the accused persons and circumstantial evidence. 6 I will start with circumstantial evidence that was availed to the Court. The strongest circumstantial evidence in this case is based on the facts that, the accused persons are alleged to be on patrol duty within the reserve on the day the deceased persons were shot dead and the spent bullets cartridge collected at the scene of crime matched with the guns that were used by the accused persons. Such facts are established by the testimony of PW1 ASP Kisu Andondile who stated that, on 30th July 2022 after they received information about the murder incident within Ugalla Game reserve, they went to the scene of crime and managed to collect some exhibits. Among the collected exhibits were the four spent bullet cartridge. They tried to search for the dead bodies of the deceased persons but they could not find any. He stated further that, according to the information received by the Police, the deceased were killed by TAWA officers. As part of investigation process he was instructed by the Regional Crimes Officer to visit TAWA offices to find out the names of TAWA officers who were on duty on the incident day. It was his testimony that, he went at TAWA offices at Inyonga for that purpose and when he inquired on the information of officers who were on duty at the reserve on the incident, he was given documents which indicate the names of the accused persons as officers who were duty at the reserve from 12th July 2022 to 1st August 2022. The documents indicate also that, the accused persons were armed with weapons make AK47. The deceased bodies were discovered on 2nd August 2022 and according to Dr. Lilian, PW6, the decease persons met their deaths approximately 5 days before examination. Such evidence suggests that the deceased's met their 7 death on 28th July 2022 which is within the time the accused persons were on patrol duty. Unfortunately, the prosecution did not tender any document that establishes expressly that the accused persons were on duty at the reserve from 12th July 2022 to 1st August 2022. PW1 did not tender any of the documents alleged to have been given to him by TAWA officers. He alleged that he handled the same to his superiors at work who had send him to collect such information from TAWA offices. The only document tendered by the prosecution to prove that the accused persons were on duty was the weapon register which was tendered by PW16 as P17. However, the document does not indicate the place at which the accused persons were performing their patrol duties. According to PW7 Ahaz Sanga, the accused persons were assigned the duty of chasing away wild animals who had entered residential areas in some villages which she did not mention. Exhibit P17 indicates that the accused had weapons make AK47 and were on duty from 12th July 2022 to 29th July 2022 but does not indicate their duty station during the alleged patrol. The allegations that the accused persons were on duty at the reserve seems to be established by the fact that spent bullet cartridge alleged to have been collected at the scene of crime were found to have been fired by the weapons that were handled to the accused persons as per the testimony of Ballistic Expert, SP John Mayunga Sangija PW14 and ballistic examination report exhibit P14. According to the testimony of PW14 and contents of the report, only one bullet marked as Exhibit Q4 did not match with the weapons that were in the hands of the accused persons. As correctly submitted by the 8 learned state Attorney, the said discrepancy is very minimal since collecting one spent bullet that does not match with the weapons handled to the accused persons in the game reserve where hunting is the main activity, is not something strange. It actually proves that the investigators performed their duty fairly with the sole purpose of ensuring that justice is done. Despite such observations, I have noted that the weapons were not only used by the accused persons as they were handled to different TAWA officers who were assigned patrol duties. This is evident from the testimony of PW16, Ruja Fabian armory keeper who stated that same weapons were handled to different TAWA officers who were assigned patrol duties. Unfortunately, Moreover, the weapons examination machines and tests cannot detect time at which the bullets from the recovered spent bullet cartridge were fired. This is evident from the testimony of a ballistic expert, SP John Mayunga Sangija(PW14). This establish that, there is a possibility that the bullets were fired by any other TAWA officer who happened to have the disputed weapons while on duty at the reserve. It is trite law that for a conviction to be based on circumstantial evidence, the same should be water tight or collaborated by other reliable evidence. The principle has been stated in a number of cases including the case of Stanley Murithi Mwaura vs Republic (Criminal Appeal No. 144 of 2019) [2021] TZCA 688 (22 November 2021). In this case the Court of Appeal cited its decision in the case of Mark s/o Kasimiri vs Republic (Criminal Appeal 39 of 2017) [2020] TZCA 170 (24 March 2020) in which necessary tests in assessing reliability of circumstantial evidence in convicting the accused person were discussed. The Court held that: - 9 " That the circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established, and that those circumstances should be of a definite tendency unerringly pointing towards the guilty of the accused, and that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non-eise." Unfortunately, circumstantial evidence produced in this case is not water tight as highlighted in evaluation of pieces of circumstantial evidence tendered by the prosecution. Moreover, the said evidence has also been contradicted by the testimony of PW7 Ahaz Philipo Sanga who was the Officer Incharge of Ugalla Game Reserve. PW7 stated that, on the dates that the accused persons were alleged to be at Ugalla Game Reserve, they were actually not at Ugalla game reserve instead, they were assigned a special duty at Nzaga, Kondamoyo and Katambike Villages. He explained that, on the disputed dates, the accused persons were sent to the said villages to assist villagers with wild animals which entered their residences. His testimony tends to corroborate the alibi defence raised by the Defendants and the testimony of DW1 Philipho John Mswanya. Although the contradictions are not that much strong to the extent of this Court to rely on the defence of alibi to acquit the accused persons, but the same creates pores in the circumstantial evidence adduced by the prosecution. 10 Another piece of evidence is confession by the accused persons. In the case at hand the confessions were all either retracted or repudiated by the accused persons. They were admitted after trial within trial in which the Court satisfied itself that the confessions were actually made voluntarily. After setting aside circumstantial evidence, this remains to be the only piece of evidence against the accused persons. I am alert of the legal practice of the Court to act on repudiated confessions to convict an accused person only where the same has been corroborated by other evidence. Despite existence of that practice, where the Court is satisfied that the retracted confessions contain nothing but the truth, it can proceed to convict accused person basing on the same. This was held in a number of cases including the case of Hatibu Gandi and other vs R [1996] TLR 12. With that spirit, I find it necessary to assess whether the cautioned statement contains nothing but the truth. All accused persons confessed to be responsible with murder of the deceased however their confession contradicts each other on the reason that moved the accused to kill the deceased persons. The cautioned statement suggests three reasons for killing the deceased persons which are self defence, accident or intentional. Reading thoroughly the cautioned statement of Musa Nyarukande Magoti exhibit P6 and that of Rosta Muigi@Rweyendela, exhibit P5, they both establish that the deceased were murdered in the course of self defence. Mussa Magoti who was the team leader and who is mentioned by all accused persons to have ordered the accused persons to attack the deceased persons stated that, they heard a gunshot which he suspected it was a bullet fired 11 from a local gun namely "gobore He then saw a number of armed people in the reserve. He ordered them to stop, but they didn't obey his order they instead, started to move towards their direction. He ordered his team to attack. Out of the attack the deceased were injured to death. Such testimony though is a confession of causing death to the deceased persons but it suggests that such killing resulted in the course of self defence. A similar piece of evidence is found in the cautioned statement of Rosta Muigi@Rweyendela, exhibit P5. The cautioned statement of Shoka Haruni Ngemela, exhibit P8 and Ally Mussa@Hussein, exhibit P3 suggest that, the accused persons intentionally murdered the deceased persons. According to the two accused persons, the deceased's persons were not armed but they decided to kill them after their arrest. David Laurence P7 and Abas Rajab Mgweno P4 had a different story. According to them, they arrested 4 persons and left them under custody of Ally Mussa Hussein. They later heard gunshots. When they came back they found the four person already dead they were killed by Ally Mussa Hussein. They also confessed to the effect that, two persons were murdered accidentally when they were running away from being arrested. From the summary of the contents of the cautioned statement, the accused persons had killed the deceased persons in this case. However, it is not clear whether the killing was a result of self defence, accident or intentional. This moves this Court to determine the fourth issue which concerns intention on the part of the Accused persons at the time of causing death of the deceased persons. 12 Since the murder of the deceased persons was allegedly effected by all accused person it was necessary for the Prosecution to prove common intention. The doctrine of common intention according to the law can only arise where the accused persons agreed to execute unlawful purpose or lawful purpose by unlawful means. Evidence on record, cautioned statements Shoka Ngemela and Ally Mussa Hussein, suggests that the accused persons formed a common intention of killing the deceased after they have arrested them. Their statement suggests that the accused person murdered the deceased persons. I would have used their confession to infer intention to the remaining accused persons however, I warned myself that their statements were not corroborated by any other piece of evidence and they contradict the two sets of confessions, the one which suggests self defence and the other that suggests accidental killing of two deceased persons and does not disclose the reason for killing the remaining four persons by Ally Mussa Hussein. I would have convicted the accused persons for the offence of manslaughter since evidence suggests the killing of the deceased was not intentional, unfortunately they were not charged with manslaughter contrary to section 195 instead they were charged with murder contrary to section 196 which require proof of intention to kill. I am aware of powers vested in the Court via section 300(1) of the Criminal Procedure Act, [ Cap. 20 R.E 2022] to convict the accused persons for a lesser offence. However, I considered elements of self defence in the caution statements of Roaster Muhigi and Mussa Magoti and found that such a decision will be unjustifiable. I understand that section 18B(3) provides 13 clearly that, where the accused person used excessive force in self defence and cause death, he shall be liable for manslaughter. Evidence produced by the prosecution did not establish use of excessive force. Cautioned statement of the two accused persons depicts the use of local guns by the deceased persons thus, the use of guns by the accused persons cannot be considered excessive force. I also considered the environment under which game rangers like the accused persons in this matter perform their duties. In this, I considered their work conditions and the dangers facing them in the course of performing their duties. In an article titled Ranger Dangers: The Peril facing wildlife protectors on the frontline, published on 20th November 2023 in the website of International Fund for Animal Welfare, IFAW, dangers facing the game rangers has been discussed. The article mentions some threats facing rangers in performance of their duties of protecting wildlife. The relevant paragraph reads; "...rangers face sophisticated poaching syndicates and wildlife trafficking networks, harsh environments, occasional tension with local communities, and animals that could misjudge them as a threat." In reaching to such a conclusion, the article made reference to the International Union for Conservation of Nature (IUCN) survey of rangers across the world and report of Game Rangers Association of Africa issued during Word Rangers' Day in 2022. The survey findings establish that over 66% of African rangers had been attacked by poachers and 82% had had a dangerous encounter with wildlife. The Game rangers Association of Africa 14 report indicates that 95 rangers were killed in the line of duty for the period of one year, that is, between June 2021 and July 2022. This establish that Game Rangers face life threatening challenges whenever on duty. All those issues moved this Court to refrain from convicting the accused persons with the offence of manslaughter contrary to section 195 of the Penal Code. For those reasons, the accused persons are hereby acquitted due to prosecution's failure to prove the case of murder against the accused on the required standard. All accused persons in this case should be released from remand custody unless held for any other lawful reasons. Dated at Tabora this 16th December 2024 Z. D. MANGO JUDGE 15