republic vs mussa kamfuma 2006 tzhc 254 20 november 2006

IN THE HIGH COURT OF TANZANIA AT MTWARA* .ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO* 28/2005 THE REPUBLIC VERSUS MUSSA KAMFUMA DATE OF LAST ORDER:11/10/2006 DATE OF RULING; 20/10/2006 RULING SHANGET1,J. The accused in this case, namely MUSSa ICAMFUMA, a young man of 31 years now stand charged with the offence of Murder contrary to Section 196 of the Penal Code, It has been alleged that on or about 9th September, 2003 at MITENE, Tandahimba District did murder one HAMISI HASSAN MNETE* The accused has categorically denied the charge laid at his door# During the preliminary hearing conducted on 15th May 2006, the following matters were agreed by the prosecution and defence sides as matters not in dispute. 1. That the deceased Hamisi Hassan Mnete is dead, 2, That the cause of death was not natural* 3» That the Death was as shown in the exibit P2, the postmoterm examination report* Th^t the accused was arrested and charged for murder* 5* The accused deny all other facts* The trial ‘of the case commenced on 10 October 2006 and theprosecution side led by Ms* Shio, Learned State Attorney managed to call fcvjr prosecution witnesses to establish and prove their case. After recaption 01 their evidence on the same date the Learned State Attorney closed the prosecution case. Mr, Mlarizi, Learned Advocate for the defence requested the &ourt to make submission under section 293 (3) of the Criminal Procedure Act,' - 1985 to establish that there was no sufficient evidence against the accused to warrant him to make his defence on the change laid against him or any other offence as provided under the said section. 1 ; ; « Therefore this ruling is on the determination of the submission made by the Learned counsels under section 293(1) of the Criminal Procedure Act, 1983 as amended by Act No, -13 of 1988. To put the matter abreast, let me, albeit briefly recupitulate the available prosecution evidence ‘‘' V r ' F Y A H A Y A SAIDI PAYA, who was the village Executive Officer (VLw) during the incident- ’Accor­ ding to his evidence on 9/ 9/2003 he received a letter from his ..\Llow VEO of a neighbouring Diluma village. That letter was brought by one YUSUFU ALLS' M/iKEINI* The letter nequested him (FWI) to investigate and inquire within his jurisdiction about the stolen sheep belonging to the bearer^' the letter YUSUFU ALLY MiiRTINI, The said sheep was stolen at Diluma village. While PWI was conducting his investigation Yusufu Ally Martini, the complainant approached him at around 7 P® on the same date and : demanded for his fetter claiming to have decided to return it back to the VEO-Diluma. He was given the letter. According to the evidence of Pv'/I, later on, one ISS* NALINGA and-his son MAMLO ISSA visited him (PWI) and informed him that his son-in-law HAf'iISI MN2TE (deceased) has ; been arrested and taken awayi by youth from t>il\ima village and that one of the youth who arrested him was Yusufu Ally Martini, PWI was also informed that the person who witnessed the arrest is the wife of the deceased (FW2), Then PWI summoned FW2 and rue^tioned hpr abcttt the incidence, F tl2 narrated the whole story saying that her husband was arrested and taken away by a group of five youths whom she could identify. She also claimed that her ten cell leader called HAMISI ISSA CHILOWE is able to know the youths because prior to the incidence the said youths were at his house,, FWI decided to summon the said HAMISI ISSA CHILOWE and questioned hint, FtfL claimed that HAMISI ISSA CHILOWE -- ... repealed to him that, the decent?'* was abducted by five youths from Diluma village namely; YUSUFU ALLY MARTINI, ALLY MAKOVU, CHIHEKENGE, L. Then FWI inquired on whether the'deceased was taken to the Police Station at Mahuta and discovered that the deceased was not taken to the Police Station and was nowhere to be traced. On the search second day 10/9/2003 the „* c - of the deceased continued and FWI issued a letter with the names of the suspects (mentioned by Chilowe) to the village m S H i t i a m e n in prder to arrest them. On the sameday the accused Mussa Kamfuma was arrested at Diluiaa village and taken to Minete village where he was identified V by FW2 as one of the youths ! who arrested the deceased. The accused was taken to the Police Station at Mahuta. ' FWI informed this court that later-in the day the body of the deceased was discovered in the farm of one SSIF BAKu2I by the seaching party* On 11/9/2003 the Police started investigation and Postmortem examination was conducted. According to the evidence of PW2, HALIMA ISSa NAL£NGAt on S/9/2003 at about 6*00 pm she was at home, at their house verandor with Jjer husband* the deceased. It was raining* Sudderly she saw a certain youth running towards their house* The youth approached them and greeted her and there and then the other four youths advanced and joined the first youth and told the deceased that he was under arrest for stealing a sheep* FW2 complained that the youths started to beat-up the deceased while .the first youth q*«£tionecL Jbfei* bn wether the deceased went out of the house in the previous xxight. Then the youths dragged the deceased away while beating him* FW2 informed the court that it was her first time t'o see those youths* She admitted that on that day it was not very dark* She also complained that when the deceased was being beateh and dragged away by the thSlngs there were people watching from the house of the ten cell leader CHILOWE without giving any assistance^ seeing that situation EW2 rushed to inform her father ISSA NALI'NGA and later the matter was reported to the VEO (FWI). FW2 informed the court that when the accused was later arrested she was able to identify him at the Office of VEO despite of the fact that there were a lot of people at the Office of FWI. She stated/ that after the identification the accused was taken to the Police station and later the body of the deceased was discovered in the --- o n --- ...... farm/ 10/9/2003* ' ’ F//3| A3DALLAH MNETE, the deceased*s uncle testified to the effect that he received the report of the abduction of the deceased to on 10/9/2003 and that he was one of :the villagers who procedec^/Diluma village to arrest the alleged youths. He claimed that when he reached at the Office of the VEO-Diluma- tl^e names of the youths were mentioned out and the search insued. He stated that they were able to arrest the accused person only and took him to the Office of VEO-Minete where . he was identified by PW2 and taken to the Police station* FV/3 stated that later the body of the deceased was discovered in the bush* P J u m a Mpuya was the Police Officer who investigated th case. In his testimony he narrated how he received the information and conducted the investigation by taking the statements of the witnesses and visiting the scene of crime. He claimed that the accused person admitted in his cautioned statement that on the material day he was with the other youths who arrested the deceased and decided to take him to '^Jumbe NgwituJi which meaning to teach him a lesson^ but he denied to have participated in killing the deceased. Mr* MlanziJ Ldarned Advocate for the deceased has submitted to the effect that the available prosecution evidence from £WI, ^ 2 , 1 ^ 3 and Prfk does not connect the accused person with the alleged offence or any other offence to require him to make his.defence* He contended that there is no case to answer against the accused person. • ( Mr, Mlanzi, submitted that the- first crucial question is whether the accused was properly identified arguing that there is only the evidence of FW2 and allegations from one HAMISI ISSA CHILOWE who was not even called as a witness. The defence counsel contended that the identification claimed by P.V2 was not proper inlaw because the circumstances were not conducine for proper identification and r :fondly PW2 contradicted herself in her testimony on the way she identi^i^d the accused during the abduction. In support of his proposition, the defenc counsel invited this court to be guided by the decision in the case of WAZIKL AMANIVs. R (1980) TLR 2^0 where the guidelines for proper identification were propounded* Mr. Mlanzi submitted that visual identification requires details particulars and descriptions of the person identified immediately after the incident and before the witness aquires another rha^ce of seeing the person identified for thej second time. He argued that FW2 c alleged to have identified the accused am c>ng the group of people at the Office of F.itt; but she completely failed to acount on how she managed to. identify the accused and totaly failed to give description or details which made her identify the accused; like the type of clothes,'appearence or any peculior mark of the body. The defence counsel further submitted that the second c t u c d -1 issue is the way the list of the names of the suspects including the accused person which led to his arrest was obtained. He argue that at the moment there is only allegation and hearsay evidence of FWI that he was given the names by the ten-cell-leader one HAMISI ISSA CHILOWE who was not called as a witness before the Court to divulge and disclose before this court how he got the said names and particulaly that of the accused person. Mr. Mlanzi informed this court that the evidence of regarding to the alleged accused*s caution statement hare no evidencial value io be considered because the said statement was not produced in Court as exhibit. On those grounds the defence counsel principally •submitted to the effect that the prosecution has not make up a case to warrant the accused to make his ’defence as required by the law. Ms. Shio, Learned State Attorney submitted that there is enough prosecution evidence against the accused and that he should be called to make his defence. She re-visited the whole evidence of prosecution witnesses and obviously realized the problems thwartening the prosecution case but yet and ©uprising to me insisted that there is enomgh prosecution evidence to require the accused person to rrf» his defence. All in all, X am definitely in -’ support of Mr. Klanzi submission that there is no sufficient prosecution evidence to require the accused person to make his defence® . On the first issue of identification we have only the evidence of P tJZ of which credibility is at stake.In tho first place F/J2 fumbled questioned during the cross-examination when she was • about time of M incident and availability of light which enabled her to identify the l accused person. At first she claimed 'that she was able to identify the accused because it was not too dark and that it was 6.00 pm. Later she stated that she knew it was 6.00 pm by looking at the position .of the sun as it was sunset* At the sametime she categoricaly admitted that on the material day and time it was raining and thire were clouds in the sky. The question is* if it wt-.s cloudy and r -ruining * hew could she use the sun light*or sunset light to identify or use the same to determine the time to be 6.-00 pm* Such self contradiction renders her whole testimony questionabl1~ , In the case of WAZIKI AMANI (Supra) the Court of appeal of Tanzania laid downthe quidelines which a Court should take into consideration when resolving questions of identify* The Court observed; "’Although no hard and first rules can be laid down as to the manner a trial Judge should determine questions of disputed identity it seems clear to us, that he could not be said to have properly reso­ lved the issue unless there is shewn on the record a careful a n d ;considered analysis, of all the sorrounding circumstances of the crime being tried. We would for example, expect to find on record questions such as the following pcses and resolved by him; the time the witness had the accused under abservation; the distance at which he observed him; the conditions in which such observation c~r,ired, whether it was day or night-time and further whether the witness knew or had seen the accused before or not.” The available evidence especialy that of PVv'2 net qualify the above te‘st. There is no evidence to show How long F«V2' had observed the accused; there is no evidence as regard duration of their encounter; The conditions for identification were not favorable~as it was evening time cloudy and raining; the circumstances of arrest or abduction was engulfed with common and beatings of the deceased which could render t PW2 in a panic state incapable to identify the accused person let alone •all the suspects and the fact that it was the first time for £W2 to see the accused persons^ It is for these reaso2is which caused P//2 to fumble and contradict her self on how she managed .to identify the accused person. I; also join hands with Mr, MLanzi that in virtual identification the witness ought to have given a detailed description of the accused p erson person to the firsjp' she or he first reported the incident before she/he had a chance of seeing the accused for the second time or after arrest. Therefore when FW2 rushed to her father ISSA UA1INGA or when she narra­ ted the ordeal to FWI for the first time, she was expected to give and disclose some details and description of the accused person stating things like the general appearance, attire,height, colour or any other district description features, of the accused. That requirement is much so whe£Grrlike in the present case, it was the first time for the FV/2 to see the accused person# The belated claims by the £W2 during the cross-examination by the defence counsel that she identified the accused due to his protruding eyes which appears like myopic (Makengeza) is nothing but an afterthought. The witness was required to point out such" appearances or peculior marks immediately to the first person she reported about the incident. See the cases of BUSHIRI AMLRI VS* R (1992) TLR 62 (HC) and IBRAHIM SONGORO Vs. R. APP. No. 298 of 1993, HC-Mwanzaf (unreported). In general the whole identification evidence is extremely scanty and unreliable* On the issue of cautioned statement of the accused person mentioned :by JFV/Jf, I am of the view that since the statement was not tendered and admitted as exibit in this case, it remains unexisting and valueless document* , ‘ It is on the basis of the foregoing reasons that I am principally persuaded that there is no sufficient prosecution evidence to connect the accused with the alleged offence or any other offence to the extent of requiring him to make his defence. I therefore find the accused not guilty and hereby aquit him* The accused person is to be released from custody forthwith unless he is lawfuly detained on another matter. It is so ordered. M.S. 4&an;/ali JUDG'J 20/ 10/2006 Ruling delivered todate 20/10/2006 in the- presence of Ms* Shio, Learned State Attorney for the Republic and in absence of Mr* Mlanzi, Learned :Advocate representing the accused person* Accused person present in person* M.S. Shangkli JUDGE 20/ 10/2006 iors thanked and excused. M.S. £ JUDGE 20/10/2006.