FINAL JUDGMENT REPUBLIC VS DIANA JOSEPH SABAI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 9011 OF 2024 REPUBLIC VERSUS DIANA JOSEPH SABHAI JUDGMENT Date of last order: 28/03/2025 Date of judgment: 04/04/2025 A.A. MBAGWA, J. The accused person Diana Joseph Sabhai stands charged with an offence of murder contrary to provisions of Sections 196 and 197 of the Penal Code. It is alleged that Diana Joseph Sabhai on the 9th day of February 2023 at Tabata Kimanga area within llala District in Dar es Salaam Region, murdered one Aneth Kassim. It is an undisputed fact that the deceased Aneth Kassim was a housemaid of the accused. On 30th October 2024, the accused was arraigned before this Court for plea-taking. She pleaded not guilty to the charge. As such, a preliminary hearing was conducted on the very date and thereafter the matter was 1 scheduled for a trial. Throughout the trial, the Republic was ably represented by Ms. Hope Charles Masambo (SSA), Ms. Upendo Mono (SSA), and Ms. Hakme Pemba (SA) whilst the accused enjoyed the services of Messrs Nabory Mdemu and Ishaka Juma, learned advocates. In the strides to prove the offence, the prosecution side lined up five (5) witnesses namely, PW1 Baraka Daniel Sanga, PW2 H 87 D/CPL John, PW3 E 3411 D/SSGT Lwanga, PW4 Eda Vuhahula, and PW5 Herbert Stephen Mshana. In addition, through PW4, the prosecution tendered one documentary exhibit namely, a postmortem examination report of the deceased dated 17th February 2023. On the adversary, the accused testified as a sole defence witness and did not tender any exhibit. In brief, the prosecution account as discerned from the evidence was to the following effects: On the 9th day of February 2023 while at Tabata Bima waiting for customers, the tax driver one Baraka Daniel Sanga (PW1) received the accused’s request through online application for transport services from Tabata Kimanga to Amana Hospital. PW1 was operating under the auspice of Bolt, Uber, and Little Ride. PW1 thus called the 2 accused to get proper directions as to the location. The accused instructed PW1 how to reach her and insisted him to hurry up saying that she had a sick person whom she wanted to rush to the hospital. PW1 drove up to the accused’s home. Thereat, he found the accused who told him that she had a patient (deceased) who had fallen down in the toilet. She thus requested PW1 to help her carry the deceased from the toilet where she was lying and put her into the car. PW1 carried the deceased who was unconscious and placed her into the car. PW1 had a car made Toyata IST No. T712 DZA. Having embarked the deceased into his car, the accused told PW1 to drive to Muhimbili National Hospital saying that she had a family doctor at Muhimbili Hospital. They thus drove up to Muhimbili Hospital at the emergency section. The accused registered herself as Grace Joseph instead of her true name Diana Joseph. She then requested the hospital staff to help her patient. However, when the hospital staff came to take the patient from the car, they noticed that the patient was already dead. As such, one of the staff namely, Prosper Ndahiyeze went to call the doctor on duty. Dr. Herbert Stephen Mshana (PW5) who was on duty on the material day came to 3 where the car was parked. He examined the deceased and found that she was already dead. PW5 interviewed the accused to get the history of the patient. It was the evidence of PW5 that the accused introduced herself as Grace Joseph and said that she was a stepmother to the deceased. She further told PW5 that the deceased fell down in the toilet. Based on the accused’s narrative and the observations he made, PW5 became suspicious of the cause of death hence he made a report to the police. Shortly thereafter, a team of police officers including H 87 D/CPL John (PW2) arrived at Muhimbili Hospital. PW2 found the deceased body still in the car. Again, the accused introduced herself to PW2 as Grace Joseph. It was not until PW2 required the accused to show him her identity card when it was unfolded that the accused’s true name was Diana Joseph and not Grace Joseph. PW2 also saw the bruises on the deceased’s neck. Having observed the deceased body and upon confirmation by Dr. Herbert Stephen Mshana examined the patient in the presence of the accused, PW1 and a team of police officers including PW2. PW5 confirmed that the deceased was already dead. He thus authorized the police to take the dead body to the mortuary. In the meantime, the 4 accused and Baraka Daniel Sanga (PW1) were put under restraint and subsequently taken to the Tabata Police Station. On 17th February 2023, Dr. Eda Vuhahula (PW4) conducted an autopsy in the presence of PW2, PW3, and the deceased’s brother one Iman Elihazali Benjamini. PW4 observed that the deceased’s nails both in the hands and feet were blueish suggesting that the deceased’s death was caused by respiratory distress. PW4 further observed fresh injuries on the deceased’s arms and thighs. Dr. Eda expounded that the presence of fresh bruises implied that the accused was also struggling or fighting thereby removing the possibility of self-hanging (suicide). PW4 concluded that the cause of death was not suicide because the depression was on the lower part of the neck. She opined that had the deceased hanged herself, the depression would have been on the upper part of the neck. During cross- examination by Mr. Isihaka Juma, PW4 admitted that she stated in her report (exhibit P1) that asphyxia may cause someone’s death. She also admitted that self-strangulation may cause asphyxia. On his part, E3411 D/SSGT Lwanga (PW3) testified that through his investigative findings, he was satisfied that the deceased did not self- 5 strangle as claimed by the accused due to the following reasons; one, the accused mentioned a wrong name to the hospital staff to wit, Grace Joseph instead of Diana Joseph, two, the accused gave two versions regarding the cause of the deceased’s death. Initially, she told the taxi driver (PW1) and Dr. Herbert Mshana (PW5) that the accused fell on the floor in the toilet but later changed and said that she found the deceased hanging herself and three, there was no bleeding in the internal veins. PW3 added that much as on the material day there were only two persons in the accused’s house namely, the accused and deceased, it is no other than the accused who authored the death of the deceased. In defence, the accused completely denied her involvement in the cause of the deceased’s death. She stated that on the material day i.e., 9th February 2023 she had an appointment to attend eye clinic at CCBRT Hospital. Therefore she woke up in the morning and went to the bus stand where she took a taxi to CCBRT Hospital. DW1 stated that while leaving home, she left the deceased at home in good health. On her way to the hospital, she received a call from her child’s school reminding her of the outstanding payment. Unfortunately, she had left the money at home. 6 She thus disembarked from the taxi, took a bodaboda (motorcycle) rushed back home. On arrival, she knocked on the door to no avail. The accused therefore used a spare key and opened the gate. She went directly to her bedroom and picked up the money. She peeped in the deceased’s room but the deceased was not there. She continued calling the deceased (Aneth) loudly without response. In the end, she went to the outside toilet and found the deceased hanging. There were two buckets in the toilet one filled with water and another empty. She put the empty bucket over the other, stood on them, and managed to cut the rope which was tied on the roof. She then held the deceased and gently placed her on the floor. Thereafter, she requested for transport to take the deceased to the hospital. The accused further testified that decided to take the deceased to Muhimbili and left the nearby hospitals because she was worried that other hospitals would hesitate to admit the deceased due to her critical condition. During cross-examination, the accused stated that she did not report the incident to the local leaders because her focus, at that moment, was to save the deceased’s life. 7 At the end of the hearing, both counsel filed their respective submissions. I am quite grateful for their insightful arguments. However, I will not reproduce them verbatim. Suffice it to say that I have carefully read the rival submissions and considered them accordingly. Throughout the evidence, there is no dispute that the deceased Aneth Kassim died an unnatural death. The only dispute lies in the cause of death and its author. Whereas the defence contends that the cause of death was self-strangulation, the prosecution vehemently contests the accused’s version. The prosecution asserts that it is the accused who murdered the deceased. As such, the germane issue that calls for determination by this Court is whether it is the accused who caused the deceased’s death and whether the killing was accompanied by malice aforethought. At the outset, it is common ground that there is no direct evidence in this case. No one saw the accused killing the deceased. Thus, the proof of the allegations is wholly dependent on circumstantial evidence. It is equally worthwhile to mention, at this juncture, that circumstantial evidence is admissible in our law and may alone ground conviction if it irresistibly 8 leads to no other inference than the culpability of the accused. See the cases of Hilda Innocent vs the Republic, Criminal Appeal No. 288 of 2019, CAT at Bukoba and Mark s/o Kasimiri vs the Republic, Criminal Appeal No. 39 of 2017, CAT at Arusha It was the prosecution evidence and indeed was admitted by the accused that on the fateful day i.e., 9th February 2023, there were only two persons in the accused’s residence namely, the accused Diana Joseph Sabhai and the deceased Aneth Kassim. The accused claimed that on the fateful morning, she left her home to attend an eye clinic at CCBRT Hospital. She further testified she left the deceased in good health although the deceased had informed her that she had something to tell her. She continued that when she returned home, she found the deceased hanging in the toilet and therefore took the decision to stand up on the buckets and cut the rope. Despite this unusual event, the accused did not see the reason to call her neighbours nor did she deem it helpful to inform the local area leaders. Conversely, the prosecution dismissed the accused’s contentions. PW4 Dr. Eda Vuhahula, a pathologist at Muhimbili National Hospital told the Court 9 that according to her observations, the deceased’s death was not caused by self-strangulation as contended by the accused. For purposes of precision, I let part of her evidence speak for itself. ‘I started the examination by looking at the dead body. I then removed the clothes that were covering her (mortuary sheet). I confirmed that the dead body was of an African female and had good nutritious status. I noticed that the deceased’s nails on both hands and feet were bluewish (central and peripheral cyanosis) colour which is not normal. This suggested that the deceased’s death might have been caused by respiratory distress. The deceased had fresh bruises on the arms and thighs. On her right hand, there was an injury caused by a sharp instrument. She had old scars on the right arm, stomach, and legs. On the neck, she had 12-centimeter depression. I observed a petechial hemorrhage. This connotes central cyanosis. I therefore decided to cut the neck but I could not see much hemorrhage. The soft bone of the neck was broken. I also cut the chest. The path to the lungs (trachea) was full of bubbles. The lungs were heavy and 10 full of blood and water. I therefore concluded that the deceased lacked oxygen due to depression in the neck. The lack of oxygen may be caused by strangulation and choking. In my conclusion, that was not suicide because the depression was just below the neck. Had it been suicide, the depression could have been at the upper part of the neck. I then took samples of the lungs and skin from the neck for further investigation. In the samples of lungs, I found that the lungs were full of water and blood hence there was no space for air. In respect of the skin from the neck, having observed by microscope, it did not react and this explains that the deceased’s depression was made after the deceased had died. In my conclusion, the cause of death was asphyxia which might be caused by strangulation, hanging, etc. Fresh injuries on the hands and thighs mean the deceased was also struggling or fighting unlike in hanging where there could not be bruises.’ In addition to the expert findings, PW3 one E 3411 D/SSGT Lwanga, the investigator of the case told the Court that the investigative findings led him to conclude that it was the accused who murdered the deceased 11 because of the following circumstances; one, the accused mention a wrong name to the hospital staff at the reception to wit, Grace Joseph instead of Diana Joseph, two, the accused gave two versions regarding the cause of the deceased’s death. Initially, she told the taxi driver (PW1) and Dr. Herbert Mshana (PW5) that the accused fell on the floor in the toilet but later claimed that she found the deceased hanging herself in the toilet and three, there was no bleeding in the internal veins. It is a settled law that malice aforethought may be established through different ways. In the frequently referred case of Enock Kipela vs the Republic, Criminal Appeal 150 of 1994, CAT at Mbeya, the Court held that a Court may ascertain whether the accused had requisite malice aforethought by looking at: ‘(1) the type and size of the weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow or blows were directed at or inflicted on; (4) the number of blows, although one blow may, 12 depending upon the facts of the 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.’ In this case, we have expert evidence from PW4 to the effect that the deceased’s death was not caused by strangulation. PW4 clarified why she arrived at that conclusion. She stated that the depression was at the lower part of the deceased instead of the upper part of the neck. PW4 added that the deceased had bruises on her arm and thighs, a fact which negates the accused’s version of self-strangulation. PW4 continued that she took samples of the lungs and skin from the neck for further investigation. Having conducted the medical examination, she found that the lungs were full of water and blood hence there was no space for air. In respect of the skin from the neck, she observed it with a microscope and noticed that it did not react. PW4 concluded that non-reaction of the skin explains that the deceased’s depression was made after the deceased 13 had died. I am alive to the principle that this Court is not bound by expert opinion. However, there should be good reasons for not accepting it. See the cases of Agnes Dorice Liundi vs Republic, Criminal Appeal No. 82 of 1979, CAT at Dar es Salaam and DPP vs Shida Manyama @ Seleman Mabuba, Criminal Appeal No. 285 of 2012, CAT at Mwanza, and Ami Omary @Senga and 3 Others (Criminal Appeal No. 233 of 2013) [2014] TZCA 255 at page 10. During the hearing, I accorded a deserving attention to PW4 and keenly followed the way she conducted the post- mortem examination and ancillary medical investigations. Admittedly, PW4 was competent and credible enough for his testimony to be relied on. To say the least, I was persuaded by her testimony and I do not see good reasons to disregard her expert opinion regarding the cause of the deceased’s death. Besides, considering that the evidence is wholly circumstantial, it is paramount to closely look at the accused’s conducts. Were the accused’s acts compatible with innocence? My quick answer is no and I will explain. First, it was testified by PW1 Baraka Daniel Sanga and Dr. Herbert 14 Stephen Mshana (PW5) that the accused told them that the deceased fell down in the toilet but later on changed and claimed that she found the deceased hanging. Second, the accused told PW1 that she opted to take the deceased to Muhimbili Hospital because she had a family doctor but during her defence, she testified that she preferred Muhimbili to other hospitals because of the deceased’s critical condition. Three, the deceased did not want to inform or involve any neighbour or local area leader despite this shocking incident, and Fourth, the accused was the only person living with the deceased in the house on the fateful date. Indeed, by not informing the neighbours or local area leaders about the incident, the accused was trying to hide something. When the above circumstances are cumulatively considered, they lead to an irresistible inference that it is no other person than the accused who murdered the deceased. Admittedly, the accused’s defence was too scanty and fanciful to displace the prosecution's solid circumstantial evidence. The defence counsel Mr. Nabory Mdemu assaulted the prosecution for not tendering in evidence the items that were allegedly seized from the 15 accused’s home (the crime scene). He therefore invited this Court to draw an adverse inference against the prosecution. Mr. Mdemu’s argument is interesting but not convincing. This is because it is not the duty of the Court to dictate to the prosecution which evidence should be brought before the Court nor is the prosecution obliged to adduce whatever evidence it collected during the investigation. See the case of Leonard Jonathan vs the Republic, Criminal Appeal No. 225 of 2007, CAT at Arusha. What is important is whether the adduced evidence is sufficient to prove the charge. After all, the defence had the right to use them if they thought they were helpful but did not exercise this right. In the final analysis, it is my unfeigned findings that the prosecution has proved the guilt of the accused beyond a reasonable doubt. The accused defence was just fanciful that did not raise a reasonable doubt. I therefore find the accused Diana Joseph Sabhai guilty of murder as charged and consequently convict the said Diana Joseph Sabhai of murder Contrary to Section 196 and 197 of the Penal Code. It is so ordered. 16 The right of appeal is explained. A.A. Mbagwa JUDGE 04/04/2025 SENTENCE I have considered the submissions by both sides. As rightly submitted by both counsel, the offence of murder for which the accused has been found guilty and convicted attracts only one mandatory sentence namely, death by hanging. As such, in terms of Sections 26, 196, and 197 of the Penal Code, I hereby sentence the accused Diana Joseph Sabhai, to suffer death by hanging. The right of appeal is explained. A. A. Mbagwa JUDGE 04/04/2025 17