NTOBI MASUNGA WALWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB REGISTRY) AT BARIADI CRIMINAL SESSION NO. 34974 OF 2024 REPUBLIC VERSUS NTOBI MASUNGA WALWA JUDGMENT 13th March & 8th April 2025. MASSAM, J. The accused person, one Ntobi Masunga Walwa stand charged with the offence of Murder contrary to Section 196 and 197 of the Penal Code Cap. 16 R.E 2022. The information was read over and explained to the accused person, he pleaded not guilty to the information. It was alleged that on 19th day of July,2024 at Nyangokolwa village within Bariadi District in Simiyu Region, the accused person did murder one YIKA MALAGANO SAYI. The brief facts of the case are as follows, on 19th day of July, 2024 at Nyangokolwa village within Bariadi District in Simiyu Region the accused person together with another person who escaped, they conspired to kill the deceased because of his money, they took a 1 deceased up to the farm where they killed him by cutting his neck using a sharp object. After killing him they took Tshs 250,000/= from the deceased and divided among themselves where by the accused was given Tshs 50,000/=. Thereafter they left the deceased’s body in the said farm and run away. The incident was reported at Bariadi Police station and the accused was arrested and interrogated whereby he confessed to kill the deceased. The deceased’s body was medically examined and the autopsy report shows that the cause of death was due to haemorrhage after penetrating neck insure (cut wound on the neck and burn injury). Subsequently the accused was arrested and when the matter was called for plea taking and preliminary hearing, the information of the offence of murder was read out and explained to him, he pleaded not guilty to the offence and the matter proceeded to a full trial. During the hearing, the Prosecution side were represented by Mr. Patrick Chale, and Mr. Muganyizi Shubi learned State Attorneys, whereas the accused person enjoyed the legal service of Ms. Zawadi Lazaro, Learned Advocate. In efforts of establishing the guilty of the accused person beyond reasonable doubts, the Republic called a total of 8 (eight) witnesses and 2 tendered two (2) exhibits, while the defence testified with 3 witnesses’ including the accused person with no exhibits. The prosecution alleged that on 21/7/2024 when PW1 was at home, his wife came and told him that his farm assistant one Nkoha Ndonho is calling him. He went outside and found him crying and when he asked what happened, he told him that he found a person lying in his farm. Thereafter, PW1 informed his neighbours who went and witnessed the body of the deceased, then they called street chairman and Village Executive Officer (VEO) who later called people for help and reported the matter to the police station. Later on the police went at the scene, they examined the said body, and started to interrogate them. PW1, further stated that, when he arrived at the scene he saw a body of the deceased with his clothes, and shoes and he said the body had been cut with a sharp object, but he did not recognize him. PW2, who is a policeman at Bariadi police station with experience of 17 years, he testified that on 11/8/2024 at 8:00pm while at patrol, he was informed that a suspect who alleged to kill one Yika Malagano was seen at Nyanya street. He said that they went to the scene and managed to arrest the said suspect one, Ntobi Masonga Walwa at 2:00pm he added that, at 2:00pm on 12/8/2024, they informed him that, he is a suspect of a murder case, they took him to the police station 3 where they arrived at 4:00hrs. PW2 recognized the accused person as the one who stand at the dock and he had no dispute with him. PW3, who was also a police woman with experience of 24 years, testified that on 12/8/2024 at 5:00 am while at police station performing her normal duties, she was assigned to take caution statement of accused person who was suspected with the murder case. Then, the accused person was brought from remand at 04:00, she prepared a room for interrogation and took his caution statement. She then identified the said caution statement as it bears her signature and police force No. Then she tendered the caution statement of one Ntobi Masunga Walwa and it was admitted as exhibit P1. PW4, a policeman at Bariadi police station who had experience of 7 years, testified that on 12/8/2024, at 8:00 am, while at work, was assigned to record the statement of accused person. PW4 told the court that he started to record video when the accused person was interrogated and handover Video to SGT Julius after been directed by OC-CID-ASP Enock Seme. PW5, also a police officer with experience of 13 years, testified that on 14/8/2024 at 4:00pm he went at Nyanya village to seize a motorcycle connected with a murder case and he arrived there at 04:30 pm. He testified further that, on 1/10/2024 at evening hours, he was called by 4 OC-CID, and told him that there was a flash which had some evidence required to be taken to the forensic office at Dar es Salaam, which he received from from D/SGT Julius. Thereafter, PW5 travelled to Dar es Salam and arrived on 3/10/2024, on 4/10/2024 he went to the forensic department to handover the said flash which had photos and video by using chain of custody form. He returned to Dar es Salaam on 28/10/2024 at afternoon hours, and went to forensic office to take the results after their investigation. He took the results which was sealed in the envelope and returned with it to Bariadi, then he handed over to D/CPL Kalson by using chain of custody form. PW6, who is a medical doctor working at Bariadi Municipal hospital with experience of 11 years, testified that on 23/7/2024 at morning hours, he was assigned by a doctor in-charge to conduct post-mortem, on the body which was at mortuary. He saw the body and there was together with one policeman, two relatives of the deceased and mortuary attendant. The relatives of the deceased told him that the deceased died un natural death. PW6 testified further that he examined the body and found out that he had a wound on his neck, which was cut by a sharp object, his nose and mouth was closed by a red piece of cloth, in his private parts and on his stomach he had a burn wound. He said the cause of death was due 5 to lack of air as his nose and mouth was closed and he lost a lot of blood because of those wound. He filled a form and sign it, then he returned to his duty post and handover the said form to the police. He identified the report because it bears his signature and the same was tendered and admitted as Exhibit “P2” PW7, testified that he is businessman and owned a motorcycle named super tiger, registered with No. MC 797 CVJ, it had a black colour and he handed the same to one Pamba. He went on asserting that on 19/7/2024 at 11:00hrs while at home, Ntobi and Saguyi brought back his motor cycle and told him that they were given by Pamba. He said that he knew Ntobi and Saguyi for a long time and when he received the said motorcycle there was a light. He testified further that on 8/8/2024 at evening hours while at his glossary he heard some people talking that the motorcycle, blue in colour carried a person who was later was found died. He heard that the deceased and Ntobi are relatives. He added that on 14/8/2024, at evening hours, he was called by his wife who informed him that policeman went and took their motorcycle. He stated further that he knew the said motor vehicle by its registration number, colour and the same was brought to his house by Ntobi who is the accused person. 6 PW8, also a policeman at Bariadi police station with experience of 34 years, testified that on 21/7/2024 at 9:00 am while at work, he was informed by OC-CID that there is an incident happened at Nyangokolo Ward, at Mbarange Hamlet. He went at the scene and they found many people surrounded the body of deceased who was closed his mouth and hand, his eyes were broken. He gathered information from some witnesses, thereafter, they took the deceased’s body to Somanda mortuary. At the scene the deceased’s body was not recognized by anybody. PW8 stated further that on 22/7/2024 at 9:00 am, they handed the file of this case for continuation of investigation. On 23/7/2024, deceased relatives identified the deceased body to be of one Yika Maligano. The said relatives told him that, the deceased was called by the persons who did not go to his house. Then James told them that on 19/7/2024 at 9:00 pm he saw accused person with Saguyi Sagulu at Nyangokolo centre with one motorcycle with reg. No. MC 797 CVJ. They went with the deceased relatives at that centre and the said person (James) knows Ntobi and Saguyi for long time and he saw them with the deceased person. After receiving such information, they started to make a follow up of the said accused persons. They managed to arrest Ntobi while Saguyi run away to unknown places and the accused was 7 the one who took deceased to the motorcycle and met with Saguyi and went together to the scene. PW8 identified Ntobi, who was at the court and he said he had no any dispute with him. Having heard the evidence of prosecution witnesses together with their tendered exhibits, this court is satisfied that the prosecution case has been sufficiently made to require the accused person to enter his defence as required Section 293 (2) (a) and (b) of Criminal Procedure Act. The accused person chooses to give a sworn defence with two witnesses and they had no exhibit. In defending himself, DW1 denied to have committed the alleged offence. His testified that, he is living at Ngwangw’ali village Nyangokolo Ward with his father, mother and his wife. DW1 stated further that on 19/7/2024 he was at home grazing cattle until at 6:00pm, when he returned at home, he started preparation of receiving guests the next day and his wife knew that he was at home. DW1 testified further that on 21/7/2024 he was called by his relative one Jandika Magashi who asked him what happened at Nyangokolo and he replied that he knew nothing. Then, he informed him that Yika is nowhere to be found and they are looking for him. Thereafter he called his relative who is living at Nyangokolo who told 8 him that, there is a person (deceased) who was found in the sunflower farm but they don’t know him. It was his further testimony that that he was arrested on 11/8/2024 at 2:00hrs while sleeping at his home with Mbega, Omary who were accompanied with others. They took him to the police car and found Bule Masingija inside the car. He asked Bule what is going on, and then he was taken to their office where they closed his eye and hand, they interrogated him if he knew Yika and he told them that Yika is his brother, as he is a child of his aunt ‘’Mama mdogo’’ who is a deceased. They asked him if he knew the murderer and told them that he knew nothing. Following that answer they told him that he will mention the murderer as he was given money in order to mention the killer. On the next day at 10:00am, they were taken to the forest with his fellow where they were beaten in order to mention the killer and policemen forced him to agree that he was connected with the death of Yika. Thus, he agreed as he wanted to be left free. DW1 added that his statement was taken by D/SGT Upendo, he told her that he was not connected with the said murder case, but he was forced to confess while he told them that Yika is his brother. However, OC-CID, told them not to force him to confess the case. He said that he is not aware with what was written by the said D/SGT Upendo, but later 9 she told him to sign the said statement. He said that he had pain on his body, and he stayed at lockup until 26/8/2024 when he was brought before the court. Lastly, said that Bule is his neighbour who had a shop and glossary at centre and they were arrested together and taken to police station but he was released after he paid them money. He also said he knew Saguyi Shigulu because he is a neighbour and knew he Bule’s motorcycles. He insisted that he did not kill Yika, but he was forced to confess after being beaten. DW2, testified that he is living at Ng’wang’wali village at Nyangokolo Ward Bariadi District Simiyu Region, he is living with her wife Joyce Kasumba, children and grandchildren. He said that on 19/7/2024 he went to another family of Sela Kija at 9:00 pm, while being there, he was called by his grandchild that Ntobi was arrested. The last defence witness DW3 (the wife of the accused person) testified that on 19/7/2024 the accused person went to graze cattle, he came back home at 12:00 pm, he stayed at home. In their house they are living 7 peoples, her mother in law one Joyce Kasumba, her sister in law one Shida Masunga, Richard Masunga, Grace and other children who had 7, 8 and 11 years. The next day they had visitors who came to greet her sister in law and to see her child. 10 That marked the end of the evidence from both sides. Thereafter the court raised the following issues for determination which are: (i). That, whether the victim of the crime mentioned in the charge sheet is actually died, (ii). Whether the death was not natural, (iii). Whether it was the accused person who caused the death of the deceased, (iv). Whether the killing of the deceased was with malice aforethought. It is a trite law that, in criminal cases the burden of proof always lies on the prosecution to prove that it was actually the accused person who had committed the offence. The same was held in the case of Mariki George Ngendakumana v. The Republic, Criminal Appeal No.353 of 2014 Cat - Bukoba (Unreported), inter alia 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" Starting with the first issue of Whether the victim of the crime mentioned in the charge sheet is actually died, it is not disputed 11 by both parties that the victim actually died, and the same was proved by post-mortem report which was tendered by PW6 and admitted as exhibit P2. The said exhibit proved that the deceased died and the cause of death was loss of blood which was caused by a cut wound on her neck as well as lack of air as his nose and mouth was closed. Also, PW8 said that on 23/7/2023 the deceased relatives identified the body to be of Yika and they were also present when PW6 was conducting post- mortem to the deceased. Thus, the first issue is answered in affirmative that the victim mentioned in the charge sheet is actually dead. On the second issue of whether the death was not natural, this is answered by PW6 who also tendered exhibit P2, post-mortem report, which proved that the cause of death was due to loss of blood caused by wounds on his neck and lack of air as his nose and mouth was closed. Again the evidence of PW1 reveals that, the deceased body was cut with a sharp object, also PW8 revealed that when they went at the scene they found the deceased mouth and hand was closed and his eye was destroyed. All these evidence proved that the death of the deceased was not a natural one. On the issue of whether the accused person killed the deceased, the prosecution alleged that, the deceased was killed by 12 being attacked with a sharp object on her neck and they suspected the accused person as the one who is responsible for the said murder. Now the question is whether under the evidence on record the accused was in any way identified to have been the culprit of the crime. From the evidence adduced by the prosecution witnesses it is clear that, no one testified to have seen the accused person committing the offence, this is due to the fact that, the evidence was based on circumstantial together with the caution statement of the accused person made before PW3, which was admitted as exhibits P1. I am aware that the caution statement may be taken under section 57 or 58 of the Criminal Procedure Act. This was emphasized in the case of Ramadhan Salumu vs Republic, Criminal Appeal No. 5 of 2004 (unreported) where the court held that; - “Caution statement therefore, are not made exclusively under section 58 and Exhibit P5 in this case is not less a caution statement merely because it was taken under section 57 and not section 58. The circumstances in which the two kinds of caution statement are taken are different. The one taken under section 57 may be as a result either of answers asked by the police investigating officer or partly as answers to question asked kind partly volunteered statement. The statement under section 58 is a result of wholly volunteered and unsolicited statement by the suspect’’ 13 In essence, any failure to comply with these provision not only undermines the evidence gathered but also jeopardize the prosecution’s case, ultimately leading to a miscarriage of justice. The court stance serves as a crucial reminder to maintain rigorous standard in the investigative process, ensuring all procedures are followed to uphold the rule of law. See the case of Mbuzi Lushona @ Mwangaika and 2 others vs The Republic, Criminal Appeal No. 159 of 2022 CAT at Tabora. Now, the caution statement which was admitted as exhibit P1 without any objection contravene section 58 (6) (a) of Criminal Procedure Act which requires accused person to sign at the end of the statement. Although exhibit P1 shows that the accused signed on it but the alleged signature raised doubts if they were really signed by the same accused person due to its differences which does not even need a handwriting expert to see that they were not the same. In the premises I accord it with no weight because it was taken against the law. Apart from that there was no any corroboration evidence to support the caution statement or link the death of the deceased and accused person. The facts that the deceased was seen in a motor cycle with a accused person alone does not prove that he was really a killer. Further to that, PW7 when he was testifying he said, it was not the accused 14 person who took his motorcycle but a person named Pamba. The said person was not called as a witnesses while he was a material witnesses to prove some facts. In the circumstances, there are serious doubt as to whether it was the accused person who murdered the deceased. Owing to the above reasoning, I may say that, the prosecution has failed to link the accused person with the death of the deceased, 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” Thus, the third issue is negatively answered. Regarding the 4th element of malice aforethought, I am aware that, matters relating to what 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) where the court while citing the case 15 of Enock Kipela V. Republic, Criminal Appeal No. 150 of 1994, CAT (unreported) held 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." Now, as I have stated earlier that the prosecution side has failed to prove that it was the accused person who killed the deceased herein, the last issue must be answered in negative way, because no malice aforethought may be established while accused person is not responsible with murder. Under the circumstances, I hesitate to hold that the evidence is water tight as to find the accused guilty of the murder of the deceased. 16 Therefore, I find the prosecution case to have been shaken by the defence and the doubt created is resolved in favour of the accused person. He is therefore not linked to the commission of the offence; therefore, the accused is not guilty. I proceed to acquit him; the accused should forthwith be released unless otherwise he is being held for another lawful cause. It is so ordered. DATED at BARIADI, this 8th day of April, 2025. R.B. MASSAM JUDGE 17 18