Upendo Elias Mollel 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB—REGISTRY) AT ARUSHA CRIMINAL SESSIONS NO. 14 OF 2023 (Originated from P.I. No. 1/2023 o f Longido District at Longido) REPUBLIC..........................................................................COMPLAINANT VERSUS UPENDO ELIAS MOLLEL ACCUSED PERSON JUDGMENT 15th & l$ hNovember, 2024 I.e. MUGETA, J. On 27/03/2023, Henry Fred was found dead in the room of the accused person. The Medical doctor (PW1) who examined his body confirmed the death was caused by asphyxia which is a medical form for suffocation due to mechanical blockage of air flow. The report on post mortem examination was tendered as exhibit P L Due to that unnatural death, the accused is charged with murder c/s 196 & 197 of the Penal Code [Cap 16 R.E. 2022]. The deceased was a child whose age is undisclosed. The prosecution side called four witnesses. None of them saw the accused murdering the deceased. The evidence of Jesca Stephano Birage (PW2) ends by showing that she saw the accused with the deceased. On her part Jackline Joseph Ngolomo (PW3) said she was told by Maria that the accused picked the child and left with him to her residence which was her habit, anyway. Her evidence therefore is hearsay. The only evidence that incriminates the accused is that of Asia Msuri (PW4). She is a Resident Magistrate who recorded the accused's confession. The confession was tendered as exhibit P2. However, it was repudiated by the accused person. Her position is that she has never recorded any statement. The incriminating statement in the confession reads "...tarehe 27/03/2023 nifimchukua mtoto anaitwa Henry ambaye n i mtoto wa mdogo wangu nilimchukua kwa mama yake nikaenda naye nyumbani kwangu. NUipofika nae nilimpa dawa ya usingizi na mtoto akalegea. Baada ya ku/egea nikamma/izia kwa mum/aza kitandani yaani nilimuua kwa kumlaza kwa uso yaanipua yake akailalia na akafa...." The accused in her defence maintains that she did not kill the deceased and to her knowledge, Henry is still alive. She testified as DW1. She called three witnesses to testify on her side. Her mother (DW4) and a cousin sister (DW2). Their evidence generally is that the accused has mental illness as sometimes she suffer complete memory loss. This fact was demonstrated by the accused in her evidence. When she testified, she said she has two children but she does not remember who their fathers are. She also said she does not remember the secondary school where she studied and how and why she is in prison under custody. Currently, she has a breast feeding daughter. She doesn't remember how she gave birth to her. What she remembers is that while in prison under custody, the baby was brought to her. They said it is her baby and she started breast feeding her. Before hearing commenced, the court noticed unusual behaviour of the accused. It was ordered her mental health to be examined. The report from Mirembe Mental Hospital was filed. It shows that the accused is mentally stable. The report paved the way for this trial. In my view, the prosecution side through the medical doctor's evidence and exhibit PI has managed to prove that the deceased's death was unnatural. I have already held that the evidence which incriminates the accused is her confession before PW4. However, the accused person denies this fact. She testified that she did not make the statements in exhibit PW1. Whether the accused made the statement depend on the credibility of PW4 and the accused person. In her evidence, PW4 said the accused person was brought to her for recording the confession by a police woman called Irene. As the accused person made a general denial about recording the confession, I am of the view that PW4 was credible. PW4 is a truthful witness who could not perjure evidence against the accused. I, therefore, hold that the accused made the statement but she has repudiated it. The principle is that a repudiated confession needs corroboration for the court to act upon it. However, the court can also act on uncorroborated confession after warning itself of the danger of so doing if it is satisfied that its content is nothing but the truth. This was the holding in Tuwamo v Uganda [1967] EA 84 at 91. On corroboration, there is nothing in evidence on record which corroborates it. Therefore, I must determine if it is truthful to be acted upon. Logic has it that if PW4 is credible, exhibit P2 is truthful unless it is proved that statements made therein are false. There is nothing in evidence on record suggesting falsehood on any of the statements in exhibit P2. \y\ \ If the confession is truthful that the accused murdered the deceased, the issue is whether she did so with malice aforethought. In the confession, the accused explains the reason for killing the deceased. That she was traumatised by abortion she carried out at the instigation of the deceased's mother. Therefore, it was a sort of revenge. Does this demonstrate malice aforethought? I do not think so. As I have intimated already, the accused demonstrates features of mental illness. In her evidence, the accused demonstrated profound memory loss on basic issues like forgetting names of the fathers of her two children and the name of the school where she studied secondary school. I am settled in my mind that she was not pretending. Her mother who testified as PW4 and her sister who testified as PW2 said she is mentally not right. That is the reason she failed to complete her secondary school education. However, the expert opinion filed shows she is mentally stable. I hold a different view and I shall explain why. While I appreciate the expert opinion given on the accused mental health, I decide not to attach much weight on it. This is because I have no reason to doubt the testimony of DW2 and DW4 that the accused is not mentally stable. These are the person who lives with the accused. I believe they 5 have no interest to serve because the deceased is also their family member. Further, in the confession, the accused does not state that she gave the deceased poison. She said she gave him sleep inducing pills. At some point in the confession, she says: "... sikudhania na sikujua kama ingekuwa hivyo, kwamba mtoto atafariki" This evidence suggests the confession is equivocal to the extent that the accused did not know the consequence of what she was doing. If I have believed her in other statements in her confession, I have no reason to disbelieve her on this part of the statement relating to her mental state at the incident time. She acted out of her impaired mental state. I see no mens rea in her mind. In the event, I find that the accused killed without malice aforethought. Therefore, she is not guilty of murder as charged. I, accordingly, acquit her of the charge of murder c/s 196 & 197 of the Penal Code [Cap 16 R.E. 2022]. Court: Judgment delivered in open court in the presence of the accused and Witness Mhosole, learned State Attorney and Marry Mwita, learned advocate for the accused. Sgd: I.C. MUGETA JUDGE 19/ 11/2024