Republic vs Konzela Wekwe and Another final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB - REGISTRY OF SHINYANGA AT BARIADI CRIMINAL SESSION NO. 36178 OF 2024 REPUBLIC VERSUS 1. KONZELA WEKWE @ KONZELA WEKWE MULEMELA 2. ELIA S/O WEKWE MASABA @ELIA MASABA WEKWE@JUMA JACKSON JUDGMENT 24th March & 8th April, 2025 Massam, J: The accused persons one Konzela Wekwe @ Konzela Wekwe Mulemela and Elia s/o Wekwe Masaba @ Elia Masaba Wekwe @ Juma Jackson stand charged with the offence of Murder contrary to Section 196 and 197 of the Penal Code, Cap 16 (Revised Edition 2022). It is alleged by the prosecution that, on 28th day of December 2023, at Unyanyembe area Sola ward within Maswa District in Simiyu Region, accused persons did murder one Kulwa Masha James @ Rebeca James. 1 The facts presented by the prosecution which gave rise to this trial are that; the accused persons herein are blood relatives that is to say sister and brother respectively. The deceased was a co-wife to the first accused person. That, on 1st December, 2023 the second accused travelled from Maliwanda village Bunda District within Mara Region to visit the first accused his sister who resides at Maswa District within Simiyu Region, upon his arrival it was when they conspired to kill the deceased and thereafter the second accused returned back to Maliwanda village, in Bunda District within Mara region to prepare himself to carry out the murder. Also, on 23rd day of December, 2023 the second accused arrived again at Maswa District for the completion of the mission of killing the deceased, this time he went straight to the Kibo guest house where he introduced himself as JUMA JACKSON and he stayed for five (5) days until on 28th day of December, 2023. Later, on 28th December, 2023 the second accused shifted from Kibo guest house to Siha guest house at Maswa District within Simiyu Region where he also introduced himself as JUMA JACKSON. The second accused had deceased mobile number so he started to communicate 2 with her and seducing her to have sexual intercourse with him, after agreed each other, 2nd accused person arranged sexual appointment with the deceased and agreed that after they have sex, he will give the deceased an amount of Tanzania Shillings Fifty Thousand (Tshs. 50,000/=) only. The second accused and the deceased met around evening hours in room no. 4 at Siha Guest House where they had sex and after that, deceased started to claim the said amount from 2nd accused person as they agreed, but 2nd accused did not have that amount of money so the second accused strangled her to death and thereafter hide her body under the bed. After all, that the second accused returned back to his place of residence that is Bunda, on his way he called the first accused informing her that he has completed the work she had given him. Moreover, on 29th day of December 2023 while the cleaner at Siha Guest House was cleaning the rooms, she reached room no. 4 where she met a deceased body under the bed. The cleaner informed her co- worker who called the local leader who later informed policemen. It was when the information reached the police officers at Maswa Police station, the officers reached the crime scene, took the deceased body to the hospital for investigation purpose where it was discovered that the cause 3 of death was suffocation after the deceased strangled to her the neck, thus leading to failure to breath. Again, the investigation of this incident was conducted and both the first accused and second accused were arrested at different times and during interrogation under caution statement the second accused person admitted to have committed the crime conspiring with the first accused for the reasons that deceased was the causer of mis understanding between the first accused person and their husband. Finally, the charge was then prepared and the accused persons brought to court charged with offence of murder. When the charge was read over against them they pleaded not guilty. During the hearing of the case, the prosecution side was represented by Mr. Patrick Chale and Muganyizi Shubi both State Attorneys whilst Mr. Martin Sabini advocate represented the first accused person while the 2nd accused enjoyed the services of Mr. Geni Dudu advocate. In discharging the duty of proving the charge against the accused, the prosecution summoned seven witnesses and tendered six exhibits. PW1 Venance Mtaki Magorio testified that on 2023 was living with Rebeca Kulwa Masha James who was his wife after 1st accused person 4 (Konzela) left him for reasons that he was old. He stated that on 28/12/2023 at 7:00hrs he was at home but later he went out to look for medicine and left Rebeca with her children and after half an hour he returned home but he did not found Rebeca he asked their children where is their mother and they replied that she went out to buy corn. After some hours to pass he tried to call her phone number which was switched off. Next day he went to ask her sister and replied that she did not saw her. On his way back home he met one woman who informed him that she saw the policemen carrying the body of her wife who is already died taken from Siha Guest house to mortuary. PW1 said that upon such information, he informed his brother in law to escort him to Maswa police station, on arrival to police station he was told to go to mortuary to identify the body of a woman who was found at Siha guest have if she was his wife, he went to mortuary where he identified his wife and informed the police that the deceased is his wife. Finally, PW1 said that on 1/1/2024 at 10:00 am, post mortem was conducted and he was given burial permit and handed the deceased body for burial. When PW1 was interrogated by the advocate for 5 accused person if Konzela and deceased had some dispute he said that they did not have. PW2 who was Mr. Allen William said that he is living at Maswa Unyanyembe Street. He is a guest house attendant since 2018 and his work station is Siha Guest house and his duty was to attend the guests and give them rooms. PW2 stated that on 28/12/2023 at 5:00pm while at work one guest came and asked for a room and showed him room no 4 he was satisfied with it. After that he paid Tshs 5,000/= and wrote his name as Juma Jackson. Later on he asked him if there was a back door than the front one and PW2 told him that there is none and he open for him and left him and continued with his work, at 00:00hrs closed all the door and went to sleep. PW2 on his cross examination by the accused person advocate if he closed the back door which he opened before for his customer he said that he did not. PW2 went on stating that on 29/12/2023, while at working place, the cleaner one Mary John @ Mama Jose came and informed him that when cleaning to the room No 4 she found a human body under bed. Upon such information he called the hamlet chairman and informed him about that incident, who came and witnessed that body, and they went 6 to the police station. Policemen came to the scene and found the deceased body in the room no. 4 after that they took the same to the hospital for examination. Again, PW2 narrated that on 8/1/2024, at afternoon hours, he was called by policemen who told him that he was required to attend to Bariadi police station as there was a parade to identify the suspect of murder the guest who was in room No 4 in Siha guest house. On the next day he went at Bariadi police station and identification parade was conducted and he identified the guest whom he attended him at Siha Guest house on 28/12/2023 and gave him room no.4 Finally, PW2 said that he identified him as he was black, medium not short not tall, and his eye had a hollow. PW2 said that the said person is at the court as 2nd accused person. He added that the said guest did wrote his name Juma Jackson to the register book at Siha Guest house which was admitted as exhibit P1. PW3 is Bwire James Robert, who is a medical doctor with experience of 7 years. He stated that for now is living at Manyoni but in 2024 he was living at Uzunguni, Maswa District, Simiyu Region. His testimony is to the effect that on 1/1/2024, he conducted post mortem 7 to the deceased namely Kulwa Lames in the presence of policeman and deceased relatives. He went on by stating that he examined the whole body and found out that her neck had some marks, her right eye had a clot blood and realize that the cause of death was due to lack air because deceased was strangled. Finally, he said that after his examination he filled post mortem report and return the same to the policemen. And the said post mortem report dated 1/1/2024 was admitted as exhibit P2. A/Insp Mahoho testified as PW4 who said that he is a policeman working at Bariadi Police station and he had experience of 14 years. That on 9/1/2024 at 12:00pm he took Elia Wekwe (2nd accused person) who was at lockup to conduct identification parade. Before conducting the same he gave him his right to call a relative, friend or advocate to witness when identification parade was conducted, but he said that he will witness himself. Thereafter OCS prepared 9 persons to be a part of that parade and they were arranged. After that, Ester Kulwa was called to identify whom she saw at Kibo guest house and she identified 2nd accused person who was the 3rd person from right. 8 Again, PW4 stated that after being identified by a first witness, he told the 2nd accused person that he had a right to change position and he did so. Then another witness namely Allan William was called and likewise was told to identify a person who he saw to the Siha guest house. Similarly, Mr. William identified 2nd accused person by touching him. Finally, after the said identification, PW4 asked 2nd accused if he was satisfied with that parade and he replied that he was very okay with that parade and after that he wrote statement of the witnesses who witness the said parade and filled police Form No. 186, which was signed by 2nd accused person and witnesses and himself and PF No. 186 was admitted as Exhibit P3 collectively. D/SGT Enock testified as PW5 who said that on 5/1/2024 at 7:00pm while at home was called by ASP Mwamengo and when arrived at his office and found some other fellow policemen, and they were ordered to go to Maswa Uzunguni street to arrest one Konzela Wekwe who was alleged to murder one Kulwa James. They went there and managed to arrest her and took the same at the police station. PW5 added that, after arresting her, they ordered her to take them to his brother one Elia Wekwe at Bunda and they went there and 9 arrest him on 6/1/2024 at 9:00 am. On his interrogation he admitted to kill the said Rebeca James. Thereafter he took them to the place where he committed that offence at room No.4 at Siha guest house at Maswa. Again he said that on their arrival at Siha guest house he asked the guest attendant to give them the register book, and on their perusal they saw that he registered himself with the name of Juma Jackson. Also they went to another guest house namely Kibo B where the accused person was residing a day before committing offence and found out that, he wrote the same name. There after they seized the said register books and took both accused persons to Bariadi police station where they arrived at 11:00am. Moreover, PW5 stated that on 10/1/2024, he was handed over a file with reference No. MAS/11/2024 by ASP Mwamengo to proceed with investigation, he started by reading statement of witnesses, and of accused persons. Furthermore, he ordered Vodacom to give them the deceased and accused person communication report of December, 2023. Later on he was given the said report where he realized that on 28/12/2023, 2nd accused person communicated with deceased but also the 2nd accused communicated with 1st accused person who was at Maswa and upon interrogation with the 2nd accused admitted to murder 10 Rebeca James and he collected some exhibits which were post mortem report, the CDR Report from Vodacom, guest house registers of both guest house, identification parade form. He added that the said CDR report had the number of both accused persons and deceased person together with their photos. PW6 NCO, G 1730 D/CPL Budodi testified that he is policeman at Bariadi police station and had experience of 17 years. His testimony is to the effect that on 6/1/2024 while at work he was assigned by RCO to write caution statement of suspect of murder. PW6 stated that he prepared a room and other properties for interrogation of the said suspect who is namely Elia Wekwe. He added that he started to write his statement at around 11:26 am and finished 1:41pm where a suspect was narrating to him and wrote what he said. After that PW6 asked a suspect whether he know to read and replied that he knows to read then a suspect read what PW6 wrote and after satisfied that it is what he narrated then a suspect signed and verified to each paper. After that he returned him to the lock up and the caution statement of Elia Wekwe was admitted as exhibit P5. James Wawenje who testified as PW7, said that he is security officer from Vodacom who had experience of 11 years. 11 He stated that on 16/1/2024 in the morning hours while in his office at Dar es salaam, he received a letter from the office of RCO Simiyu needed his assistance on giving the registration report of these numbers 0753769364, 0758323472, and 0763085465 and give him a report on the incoming and outgoing calling in the said numbers. He added that after receiving that he inspected their system of registration, and that of call data record, printer and computer to make sure that all of them are well working in order not to allow anyone to temper with the system and data. Finally, he said that he logged in the system by using his username and printed the said data, and after that he signed and dated it on 23/5/2024 after that he send it to the office of RCO for his further action, and the said report was admitted to the court as exhibit P6 collectively. That marked the end of the prosecution case and they prayed to close their case. Having heard 7 (seven) witnesses, and scrutiny the exhibits brought, this court is satisfied that the prosecution case has been sufficiently made to require the accused persons to enter to their defense in respect to Section 293 (2) (a) and (b) of CPA. 12 On his defense, 1st accused person DW1 Konzela Wekwe, testified that she is business woman, living at Uzunguni Maswa and she had a relation with PW1 who they were blessed with two children who are Severine 9 years and Warioba 7 years old. DW1 stated further that their relation ended 2019 after PW1 became drunkard and beats her. DW1 went on stating that she was arrested on 5/1/2024 at 11:00 hours by one policeman Winfrida and Budodi for allegation of murder case, they told her to take them to one Juma Jackson and she replied that she does not know the said person. Also, DW1 said thereafter, they asked her how many brothers she has, she told them that she has four brothers, three of them are at Kenya, and one brother in Tanzania. They told her to take them to her brother who resides at Maliwanda Bunda and she took them there his brother was arrested on 6/1/2023 and they were brought at Bariadi police station. She added that at the police station she was not recorded caution statement. Finally, DW1 stated that on 7/2/2024 was brought to the court charged with the murder of Kulwa James while she doesn’t know deceased person or about the death of Kulwa James. 13 DW2 Elia Wekwe Masaba, testified that he is businessman (Machinga) selling woman shoes. His testimony is to the effect that on 6/1/2024 at 10:00am he was arrested at Maliwanda, by one policemen Mwamengo and Budodi. Also, DW2 said that on their way they passed to hamlet chairman, they inform him that they want to search his house and on their search they found nothing, but they seized his phone and the certificate of seizure was signed by Mwamengo, Elias James, Mwajuma James, Budodi and himself and the certificate of seizure was admitted as exhibit D1. Being the prosecution and defence side closed their case, the task left to the court is to determine whether the charge laid against the accused persons has been proved beyond reasonable doubt. To arrive to the above main issue, the following sub issues are the path to arrive destination: (i). That, the victim of the crime mentioned in the charge is actually died, (ii). Whether the death was not natural, (iii). Whether it was the accused persons who caused the death of the deceased, 14 (iv). Whether the killing of the deceased was with malice aforethought. Being the criminal case, it is worthy and instructive at this stage, to look at what section 110 and 112 read together with section 3 (2) (a) of the Evidence Act [Cap 6 RE 2022] in as far as the burden and standards of proof of a criminal charge is concerned. These two concepts were interpreted in the case of Woodmington Vs OPP, (1935) AC 462. and in the case of John Makorobera & Another Vs. The Republic (2002) T.L.R 296, which insistently held that the accused person should only be convicted of an offence he is charged with on the basis of the strength of the prosecution case and not on the weakness of the defense case. In line with this principle of burden and standard of proof, another important principle becomes necessary as enunciated in the case of Mariki George Ngendakumana Vs The Republic, Criminal Appeal No. 353 of 2014 CAT - Bukoba (unreported), which inter alia held that: "It is the principle of law that in Criminal Cases the duty of the prosecution is two folds, one to prove that the offence was committed, two that it is the Accused person who committed it" Now, I will resolve the above raised issues basing on the evidence available in the record and guided by the above authorities. 15 With regard to the first question if the victim of the crime mentioned in the charge is actually died, In starting the same PW1 testified that he identified the dead body at mortuary to be his wife one Rebeca Kulwa Masha James. Also PW2 who was the guest attendant said that they saw the dead body in room No. 4 under the bed at Siha guest house which was taken at hospital by the police. Likewise, PW3 a medical doctor was the one who conducted post-mortem on 1/1/2024 of the deceased namely Kulwa James and the same was admitted as exhibit P2. Also DW1 in her testimony said that she was charged with the murder of Kulwa James. Again DW2 during cross examination by Patrick Chale State Attorney admitted that on 28/12/2023 he was at Maswa but he is not connected with the death of Kulwa James. From this piece of evidence, it is undisputed fact that the victim one Rebeca Kulwa Masha James is actually died. On the second issue is that if the death was not natural, is that since the first issue was answered affirmative way this means that the death of deceased was unnatural and the same is answered by exhibit P2, post-mortem report, which proved that the cause of death was due to lack of air because the deceased was strangled and her neck had some marks. Also the same is supported with the evidence of PW5 16 who revealed that, 2nd accused person after being arrested he admitted to kill Rebeca James by strangled her. So all these evidence proved that the death of the deceased was not natural. On the issue of whether the accused persons killed the deceased, it is from the evidence of the prosecution that, the deceased was killed by accused persons, now the question is whether under the evidence on record the accused persons was in any way identified to have been the culprit of the crime. From the evidence testified by the prosecution it is clear that, no any prosecution witness testified to have been seen the accused persons committing the offence, this is due to the fact that, the prosecution’s testimony is entirely based on caution statement made before PW6, which was admitted as exhibits P5, an oral confession made the 2nd accused person before PW5 and the evidence adduced by PW2 that the deceased was found in the room no 4 where the 2nd accused person slept before committing offence. In regard to the evidence testified by PW5, it is openly that the 2nd accused person confessed to commit the offence, since his evidence reveals the follows, 17 “……he admitted to kill the said Rebeka James and agreed to take them to the place where he committed that offence….’’ Again, the caution statement tendered and admitted as exhibit P5, preferably at the contents of Pg.7 discloses the following, ’’……nilimpiga Kiganja cha shingo na kumkaba roba shingoni na kisha kumkaba kooni hadi kufariki dunia’’ From the above quotations it is the 2nd accused person on his own words and without being forced by PW5 confessed to kill the deceased. but also during taking caution statement he admitted to killed the deceased, and the said confession was admitted to this court as exhibit P5 after being satisfied that, it met all the required ingredients to be tendered as exhibit as it was stated in the case of Rhino Migire V. Republic, Criminal Appeal No. 122 of 2002 that, “For a statement to qualify a confession it must contain the admission of the ingredients of the offence charged” Besides, the evidence of PW6 was corroborated with the evidence of PW5 which shows that, the 2nd accused person confessed to him that he killed the deceased. It is true that an oral confession made to a witness being it a police or civilian may be sufficient by itself to found conviction. This was well stated in the case of Posolo Wilson @ 18 Mwalyengo vs Republic, Criminal No. 613 of 2015 as cited in the Case of Yusuph Ndaturu Yegera @ Mbuge Hilter vs Republic, Criminal Appeal No. 195 of 2017 CAT Tabora at Pg 28 that, “It is settled that an oral confession made by a suspect before or in the presence of reliable witnesses, be the civilian or not, may be sufficient by itself to found conviction against the suspect” In dealing with circumstantial evidence, see the case of Balwinder Singh V. State of Punjab, (Supreme Court of India) 1996 AIR 607 had this to say: “In a case based on circumstantial evidence the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they maybe to take place of proof” .Also in the case of Sadiki Ally Mkindi v Director of Public Prosecution Criminal Appeal no 207 OF 2009 this court held that in the case which depends on circumstantial evidence the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged ,and lastly it says that circumstances of strong suspicious without more conclusive evidence are not sufficient to justify the conviction even though the party offers no explanation of them. Again in the case of Simon Musoke v R [1958] 19 E.A 715 AT Page 718 Court of Appeal for Eastern Africa stated that in a case depending conclusively upon circumstantial evidence the court must before deciding upon on conviction find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of the guilty .And lastly in the case of Beno Rashidi Ndimbo v Republic Criminal Appeal No 27/1997 Court of Appeal Mbeya in this the court held that circumstantial evidence must be water tight to ground the conviction. Turn to the case at hand, the evidence of PW1 shows that the deceased body was found to the Siha Guest house and taken to mortuary by policeman. PW2 said that he was a guest house attendant at Siha guest house and the deceased was found in room no 4 where the 2nd accused person slept a day before commission of the offence, but also PW5 said that after the 2nd accused person being arrested he admitted to kill the deceased and took them to place where he committed the offence which is Siha guest House room number 4 where he slept from 28/12/2023 to 29/12/2023 as exhibit P1 shows. Basing on the prosecution evidence I disagree with the defence of the 2nd accused person that he did not commit 20 the said offence and he was arrested and even the certificate of seizure that was admitted as exhibit DW1 disproves the offence committed because the prosecution evidence was water tight to ground conviction. Also, PW1 said that the 1st accused person was his wife but she left him in 2019 because PW1 was an old man but on her side the 1st accused person said that she left him 2019 because he was drunk man and he used to beats her. From these evidence there is no doubt that PW1 and 1st accused person are no longer husband and wife. Also PW1 said that he had no dispute with the 1st accused person but the 1st accused had dispute with deceased but the same was not proved. Also, PW6 testified that there was communication between both accused person and deceased as it was evidenced through exhibits P6 collectively. During cross examination by Mr Martin Sabini advocate for 1st accused person, concerning exhibit P6, PW6 said that the reports does not show the aim or contents of the said communication but it proves that the alleged date of the commitment of the offence 2nd accused person communicated with the deceased. In regard with the 1st accused person, this court 21 found out that the prosecution side failed to prove that 2nd accused person conspired with 1st accused to commit offence. Even though exhibit P6 shows that 2nd accused person on the alleged day he communicated with 1st accused person, and because there was no contents of the said communication found, that cannot proof that the said call which he called was to inform 1st accused person that he accomplished the said offence. I agree with defence of the 1st accused that that she did not commit offence and she knew nothing about the death of Kulwa James. Owing to the above reasoning, I may say that, the prosecution has failed to link between the death of Kulwa James and the 1st accused person, while managed to link between the death of Kulwa James and the 2nd accused person as it was debated in the case of Mohamed Said Matula V. Republic [1995], that, “Upon a charge of murder being preferred, the onus is always on the prosecution to prove, not only the death, but also the link between the said death and the accused, the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence” With regard to the 4th element whether the killing of the deceased was with malice aforethought. Matters relating to what 22 necessitates malice aforethought are provided under section 200 of the Penal Code, supported with numerous cases including the case of Makungu Misalaba V. Republic, Criminal Appeal No. 351 of 2013 I CA (unreported) while citing the case of Enock Kipela V. Republic, Criminal Appeal No. 150 of 1994, CAT (unreported) that; "Usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various, including the following: (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 were directed at or inflicted on: (4) the number of blows, although one blow may, depending upon the fact 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." Thus, from the above authorities, it is clear from the post mortem (Exhibit P2) that the cause of death was due to lack of air because deceased was strangled and her neck was found with some marks, this proof that 2nd accused aim was to kill deceased and not otherwise. Moreover, the evidence of PW5 revealed that after the 2nd accused person arrested he admitted to kill the said Rebeca James and the big reasons was that 1st accused person who is his sister told him that 23 deceased was the reasons for her misunderstanding with her husband who is PW1. Also in the caution statement shows that 2nd accused person was raised and taken to school by 1st accused person together with Pw1 so after 1st accused person complained to him about that misunderstanding he felt sorry to her and kill deceased as revenge for the sake of his sister (1st accused person). Again there is a piece of evidence which shows that 2nd accused person after kill the deceased he took his body and put it under the bed, that shows that his intention was not good as he want to hide the body to hide the truth. Again there is the piece of evidence which was found in the caution statement which show that after 2nd accused person kill the deceased he took deceased mobile phone line and destroy it the aim was to hide the truth, that act show the evil ill of 2nd accused towards the deceased. From the above analysis, I am comfortable to say that 2nd accused person killed the deceased person with malice aforethought. However, on the side 1st accused person there was not any evidence to prove that she conspired or involved in killing deceased person hence no malice aforethought may be established while 1st accused person is not responsible with murder. 24 With the whole above discussion, I find that, the available evidence proves nothing else than the 2nd accused person is responsible for killing the deceased while the first accused person is not responsible for killing the same. In view thereof, the 1st accused person one Konzela Wekwe @ Konzela Wekwe Mulemela is acquitted for offence of murder contrary to section 196 and 197 of the Penal Code and is hereby set at liberty forthwith. While the 2nd accused one Elia s/o Wekwe Masaba @ Elia Masaba Wekwe @ Juma Jackson is hereby found guilty of the offence of murder contrary to the provisions of sections 196 and 197 of the Penal Code, Cap.16 and he is accordingly convicted. It is so ordered. DATED at BARIADI this 8th day of April, 2025. R. B. Massam JUDGE 25