THE REPUBLIC VS SPRIAN JULIUS LAHE CHUGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 3409 OF 2024 THE REPUBLIC VERSUS SPRIAN JULIUS LAHE@CHUGA JUDGMENT Date of last order: 21/03/2025 Date of Judgment: 28/03/2025 A.A. MBAGWA, J. The accused Sprian Julius Lahe @ Chuga stands charged with an offence of murder contrary to provisions of Sections 196 and 197 of the Penal Code. It is alleged that on 31st October 2023 at Moringe Mbagala within Temeke District in Dar es Salaam Region, the accused murdered Kuboja Kabulu Robert @ Kiboko, the deceased. Upon arraignment, the accused denied the accusations as such, the prosecution was compelled to prove the case through a full trial. In a bid to discharge its duty, the prosecution side lined up eight (8) witnesses namely, Rose Clavery Kamata (PW1), Gosbert Joseph Kakwata (PW2), 1 Omary Rajabu Koja (PW3), J321 D/CPL Jamaldini (PW4), Costantine Christopher Mulima (PW5), Denis Gilbert Basyagile (PW6), P24358 Assistant Inspector Nelson (PW7), and E4677 D/SGT Hajji (PW8). In addition, the prosecution tendered two documentary exhibits to wit, the Forensic Toxicology Analysis Report dated 16/12/2023 (exhibit P1) and the postmortem examination report (exhibit P2). On the adversary side, the accused stood as a sole defence witness. He testified under oath and he did not have any exhibit to tender. In essence, he denied the allegations and implored the Court to find him not guilty. During the prosecution, the Republic had the services of Ms. Monica Ndakidemi, the learned Senior State Attorney, and Ms. Salome Matunga, the learned State Attorney whilst the defence was ably represented by Ms. Twilumba Paul, the learned advocate. According to the evidence of both parties, the deceased once upon a time worked as a watchman at Evosha Yard which is located at Mbagala, Moringe area within Temeke District whereas the accused until the date of his arrest was working as a driver with Evosha Company. Thus, the duo knew each other prior to the incident date. It could appear that, for some 2 reasons that were not disclosed, the deceased was terminated from employment sometime before the fateful date. However, the deceased did not stop to pass by the place (his former workplace) to greet his friends whenever he had the occasion. It was the prosecution's account that on the 31st day of October 2023, the deceased visited the place, spent some time chatting with his friends, and later left the place. No sooner had the deceased left than he returned looking for his mobile phone. He told Rose Clavery Kamata (PW1) about the missing of his phone. The deceased also asked the accused Sprian Julius Lahe @ Chuga if he had come across his phone. However, according to the prosecution evidence, the accused perceived the question undesirably hence the fight ensued. Ms. Rose Clavery Kamata (PW1), who owns a kiosk of soft drinks at the crime scene took the initiative to call Mr. Gosbert Joseph Kakwata (PW2), a watchman at Evosha Yard. PW2 came and managed to stop the two from fighting. Thereafter, the accused took his way. As it was around 21:00hrs, Ms. Rose Clavery Kamata (PW1) closed the business and left for home while leaving the deceased within the premises. Later on about 23:00hrs, Omary Rajabu Koja (PW3) whose duty was to 3 wash cars at the yard arrived at the premises and found the deceased laying on the ground under a tree. It is noteworthy that PW3 did not observe any injuries on the deceased’s body. PW3 went to call the deceased’s relatives who were living in the nearby area. The deceased’s relatives came to the crime scene and found the deceased laying on the grounds unconsciously. They thus advised PW3 to place him in a hut as it was raining. PW3 spent the night with the deceased. However, on the following morning when PW1 came to open her business, they realized that the deceased was no more. As such, a report was made to the police who immediately came to the scene of the crime and took the dead body to Kilwa Road Hospital for further investigation measures. On the 2nd day of November, 2023 an autopsy was conducted by Dr. Denis Gilbert Basyagile (PW6) at Kilwa Road Police Hospital in the presence of the deceased’s relatives and J321 D/CPL Jamaldini (PW4). According to the testimony of Dr. Denis Basyagile and the postmortem examination report (exhibit P2), the deceased’s death was caused by traumatic head injury. PW6 stated that he observed injuries on the deceased’s head and hand. PW6 clarified that the deceased had a brain concussion. Besides, 4 PW6 took from the deceased’s body blood samples and vitreous humour and handed them to J321 D/CPL Jamaldini (PW4). The same were subsequently submitted to the Government Chemist Laboratory Authority to test whether the samples contained alcohol. It was the evidence of the Government Chemist Mr. Costantine Christopher Mulima (PW5) that the blood samples and vitreous humour had no alcoholic contents. PW5 documented his findings in the Toxicology Report which he tendered in evidence and the same was admitted and marked as exhibit P1. Rose Clavery Kamata (PW1) and Gosbert Joseph Kakwata (PW2) who allegedly witnessed the fight between the deceased and the accused told the Court that the accused did not use any weapon in the fight. However, Mr. Denis Gilbert Basyagile (PW6) testified that the brain concussion that he observed in the deceased’s head and which he believed was the cause of death could not have been caused by a punch. To use his own words, he testified: ‘According to the report, the cause of death was a traumatic head injury. This means the deceased was 5 injured on his head by a heavy blunt instrument. The injury was on the left side of the deceased’s head. Between the scur and skin, there was blood. The brain was swollen which is commonly known as brain concussion.’ Further, when cross-examined by Ms. Twilumba Paul, learned counsel for the accused, PW6 stated: ‘Trauma may be caused by the hit of a heavy and blunt instrument such as a brick, wood etc. The deceased could sustain the injury if a heavy object fell on him. The postmortem examination report bears my signature but the form does not have the space for the name. The punch cannot cause oedema (uvimbe wa ubongo).’ Moreover, as per the evidence of E4677 D/SGT Hajji (PW8), the police officers found a piece of wood at the crime scene which the investigation believed was used to hit the deceased which ultimately resulted in the deceased’s death. Astonishingly, the said piece of wood was not submitted to the Government Chemist Laboratory to test whether it had a link with the accused nor was it tendered in evidence. 6 It was against this background that the prosecution believed that the accused was responsible for the death of the deceased and consequently charged him with murder. In defence, the accused denied the accusations leveled against him. He admitted to being at the crime scene on the fateful day. However, he disputed the alleged fight between him and the deceased. He stated that on the fateful day i.e., 31st October 2023 he went to park the car at Evosha Yard. He testified that he was employed by Evosha Company and was working as a driver. The accused explained that he used to park his car in Evosha Yard which is located at Mbagala Moringe. It was the accused’s testimony that when he went to park the car he found the deceased in PW1’s restaurant (banda) where PW1 was selling drinks. The accused continued that he found the deceased quarreling with Rose Clavery Kamata (PW1) as the deceased was lamenting that his phone had been stolen. However, on the arrival of the accused, the deceased turned against the accused and started to accuse him saying that he was the one who caused the deceased’s dismissal from his employment. The accused wanted to leave the place but the deceased kept holding his neck. Thus, 7 Rose Clavery Kamata (PW1) went to call a watchman, Mr. Gosbert Joseph Kakwata (PW2) who came and severed them. Thereafter, the accused drove his car inside the yard and parked it. Then he left for home. The accused continued that on the following morning, he went to work as usual but on arrival at his work, he found a cloud of people only to be told that Kuboja Kabulu Robert @ Kiboko had died. While still flabbergasting the deceased’s death, the police came and arrested him along with other people. Whereas other people were interviewed and released, the accused was interrogated and detained. He complained that while in custody he was tortured and forced to confess to the offence. In the end, he prayed to be acquitted of the charges he was facing. At the close of the hearing, parties were allowed to file the closing submissions. I am, indeed, grateful to both parties for their informative submissions which were timely filed. I have painstakingly read and considered the rival submissions. In this case, there are three pivotal issues for determination namely, (i) Whether the deceased Kuboja Kabulu Robert @ Kiboko died an unnatural death. 8 (ii) Whether it is the accused Sprian Julius Lahe @ Chuga who caused the deceased’s death. (iii) If the second issue is answered in the affirmative, whether the accused killed the deceased with malice aforethought. To start with the 1st issue, it is common cause from the prosecution evidence that the deceased died an unnatural death. This is discerned from the expert evidence of Dr. Denis Gilbert Basyagile (PW6) and the postmortem examination report (exhibit P2). According to PW6, the deceased died of a traumatic head injury. PW6 described that the deceased had injuries on the head (left side) and his hand. He also told the Court that the brain was swollen (brain concussion) suggesting that he was hit by the heavy blunt instrument. Indeed, there was no evidence from the defence to controvert the expert opinion on the cause of death. I therefore answer the first issue in the affirmative. The 2nd issue is whether it is the accused namely, Sprian Julius Lahe @ Chuga who caused the deceased’s death. The evidence has it that there was a quarrel or fight between the accused and the deceased. This is garnered from the testimonies of Rose Clavery Kamata (PW1) 9 and Gosbert Joseph Kakwata (PW2) who eye-witnessed the fight. Although the accused initially denied the fight with the deceased, he later on admitted it in the course of his testimony. This is discerned from his own testimony where he testified that Rose Clavery Kamata (PW1) went to call Gosbert Joseph Kakwata (PW2) who came and separated them. A part of his testimony reads: ‘Thereat, I found Rose and Kiboko, the deceased quarreling. Kiboko was lamenting that his phone had been stolen. All of a sudden, Kiboko, the deceased turned against me and said that I was the one who caused him to be dismissed from his job at the yard. Having heard that, I decided to leave the place but Kiboko held my neck while saying that I would tell him why he was dismissed from his job. Rose advised us to leave and continue with our business but Kiboko resisted. Thus, Rose decided to call a watchman by the name of Gosbert. Gosbert (watchman) came and managed to separate us. Thereafter I proceed to the yard to look for a space to park my car. Having found the space, I entered the car by reverse in the yard. I signed and handed the key to Gosbert 10 (the watchman) and left for Zakhem. I do not know what proceeded thereafter.’ In my considered view, the phrase ‘Gosbert (watchman) came and managed to separate us’ confirms that the duo were fighting. However, both Rose Clavery Kamata (PW1) and Gosbert Joseph Kakwata (PW2) testified that the accused did not use any weapon. It was further their evidence that no injuries were caused to either party. It should be noted that Rose Clavery Kamata (PW1) and Gosbert Joseph Kakwata (PW2) are the only persons who eye-witnessed the alleged fight. Also, they testified that the accused left the place after PW2 stopped them from fighting. The evidence of PW1 and PW2 is inconsistent with the findings of the pathologist (PW6) who observed injuries on the deceased’s body and opined that such injuries must have been caused by a heavy blunt instrument. To cap it all, E4677 D/SGT Hajji testified that the police officers found a piece of wood at the crime scene which they believed was used to hit the deceased but for the reasons best known to themselves, they did not tender it in evidence nor did they bother to submit it to the Government Chemist 11 Laboratory to test it whether it had traces of the accused. Indeed, the prosecution evidence as a whole tells it that there was someone other than the accused who blew the deceased by using a heavy blunt instrument thereby leading to his death. To put it crudely, the prosecution failed to prove beyond a reasonable doubt that the deceased’s death arose from the alleged fight between the accused and the deceased. It is very likely in the circumstances of this case that after the squabbles between the deceased and the accused which, according to the evidence, took place between 19:00hrs and 20:00hrs, there was another incident that caused injuries to the deceased thereby leading to the deceased’s death. It is a cardinal principle of law that the prosecution is duty-bound to prove the case beyond a reasonable doubt that it is none but the accused who caused the death of the deceased. See Section 3(2)(a) of the Evidence Act. Indeed, the prosecution evidence cannot be said to be incapable of any other explanation than that of the accused’s guilt. Upon a thorough appraisal of the evidence as a whole, I am of the considered view that the prosecution evidence leaves a lot to be 12 desired as to the culpability of the accused. Since this Court settled that the prosecution has failed to prove beyond a reasonable doubt that it is no other person than the accused who caused the deceased’s death, I do not see the reason to venture into the last issue of whether the accused killed the deceased with malice aforethought. In the final analysis, it is unfeigned findings that the prosecution has failed to prove the case beyond a reasonable doubt. As a consequence, I find the accused Sprian Julius Lahe @ Chuga not guilty of murder and hence proceed to acquit him accordingly. As the accused has been in detention since his arrest on the 31st day of October 2023, I order his immediate release unless is continually detained for other lawful purposes. It is so ordered. The right to appeal is explained. A.A. Mbagwa JUDGE 28/03/2025 13