FARAJA KULWA ROCKET 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 89 OF 2023 (Originating from PI Case No. 3 of 2023 in the District Court of Mkuranga at Mkuranga) THE REPUBLIC ............................................................................. PROSECUTOR VERSUS FAM]A KULWA ROCKET .............................................. 1st ACCUSED PERSON EZRA MESHACK JAMES ................................................ 2ND ACCUSED PERSON ELIUD SILVANUS SHINYANGE ...................................... 3RD ACCUSED PERSON RULING 18th November, 2024 NGUNYALE, J. The accused persons namely FARAJA KULWA ROCKET, EZRA MESHACK JAMES and ELIUD SILVANUS SHINYANGE hereinafter to be referred to as the first, second and third accused persons respectively were arraigned in this Court for the offence of Murder contrary to Section 196 and 197 of the Penal Code, Cap. 16, R.E. 2002 now 2022. It was alleged that on the 22''d day of January 2023, at Mizugu, Mwanambaya area within Mkuranga District in Coast region did murder one Joseph Wilfred Sasabo. At the hearing, the prosecution was led by Mr. Gray Uhagile, Senior State Attorney assisted by Mr. Charles Magai, State Attorney while the 1=t accused persons was represented by Ms. Ziada Mkwazu, Ms. Fatuma Adinan appeared for the 2-d accused person whilst the 3'd accused person was enjoying the legal service of Mr. Gasper Sabuni. The Information of Murder was read over and explained to the accused persons in Kiswahili language whereas all accused persons entered a plea of not guilty. The prosecution paraded six witnesses PWI Pastor Onesmo Yohana Kayanda (43), PW2 Dr Stephen Marwa Waitara (30) who also tendered one exhibit (the post mortem report) which was received in court as exhibit PEI. Others are PW3 Chamliho Mahendeka Sasabo (63), PW4 Ally Abdallah Mkali (52), PW5 Insp Adam Mabula Nyangaga and PW6 G5351 Dt Cpl Frank Itatora Gwanchele (38). Briefly prosecution case was narrated as follows; - PWI stated that he is a pastor of TAG church and the deceased was his follower, he added that on the material date the deceased attended church service up top 14:00hrs and they dispersed after the service. At around 15:00hours on the same date PWI received a call from a woman by the name Naomi who informed suspected to have stolen chicken. He went to the scene of the event where he found about 7 to 8 people outside with local weapons like panga and rungu and the deceased was inside the house laying on the floor while in bad condition. He informed the deceased’s relatives and also he informed the hamlet chairman who advised him to take the victim to police and while on the way the chairman joined them to Vikindu Police station where they were issued with a PF3. While on the way to the hospital the victim died. He further managed to identify the lst, 2"d and 3'd accused as among the people he saw outside the victim’s house. While cross examined, he stated that Naomi was also at the church and that she was also told about the event. He further agreed that he did not witness the fighting and that he found the victim inside alone. PW2 testified to be a Medical Doctor working at Mkuranga District Hospital and he played a role of examining the body of the deceased and on his investigation he established cause of death to be loss of blood due to severe internal bleeding. He tendered the postmortem report which was admitted as exhibit No. PEI. PW3 testified to be the blood brother of the deceased and that on 22-d January 2023 he received a phone call from her sister Theresia informing W him that their brother has been beaten. The next day he travelled to Mkuranga. At the time of travelling, he was already informed that the victim had died. At Mkuranga hospital he witnessed when postmortem examination was conducted against the body of the deceased. While cross examined, he said that Theresia did not mention the people who assaulted their relative and did not know them. PW4 testified to be the hamlet chairperson and that on 22-d January 2023 while he was at the hospital, he received a phone call that in his area there was an event where one person had been arrested for stealing chicken. He went back home while he was planning to go to the crime scene, he did not make it, instead he joined them to go to police station. He went with the victim to the police station where they were issued with PF3. The victim was in a very bad condition. Upon being issue with PF3 the victim was taken to hospital and he returned home. While cross examined he testified that he does not know any of the accused persons and he did not witness the people who assaulted the victim. PW5 who testified to be a police officer working at Vikindu police station and investigator of this case he stated that after receiving the file, he started his investigation and he was told by the whistle blowers that the accused persons were the one who fought the deceased leading to his death. His testimony was corroborated by PW6 who also said that he was informed that the accused persons are the one who assaulted the deceased to death. The deceased was working together with the accused persons to the farm of Faida Charles. Upon closure of the prosecution case, it is the requirement under section 293 (1) of the Criminal Procedure Act, Cap. 20 [R.E. 2019] for the court to determine whether the evidence adduced by the prosecution is sufficient to call the accused persons to enter their defense. This is done by assessing whether the conviction can be sustained based on evidence adduced by the prosecution even if the accused person will not enter their defence. The court of appeal in the case of DPP v Peter Kibatala, Criminal Appeal No. 4 of 2015, at Dar es Salaam had this to say: "N natural and ordinary meaning makes it plain that this being a criminal case, the duty to prove the charge beyond doubts rests on the prosecution and the court is enjoined to dismiss the charge and acquit the accused if that duty is not discharged to the hilt. What essentially the court looks at is prima facie evidence for the prosecution which unless controverted would be sufficient to establish the elements of the offence. " (Emphasis added) M The same position was reiterated by thIS court in the case Of RepuDllc versus Edward Mongo (2003) TLR 45 that; " Submission of no case to answer may properly be upheld when there has been no evidence to prove an essential element in the offence charged, or where the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal (if compelled to do so) would at that stage convict" From the above principle and taking consideration of the prosecution evidence and the offence which the accused persons are charged with, there is no doubt that the deceased (Joseph Wilfred Sasabo) died unnatural death as per exhibit PEI, what casts doubt to the court is who were the perpetrator of the killings? it is apparent that the prosecution case has been based on hearsay evidence. From the evidence of PWI who claims to be the first person to reach the crime scene, he told the court that he was informed of the event by one NAOMI. But it is unfortunate that the said Naomi was not brought before the court to testify how she got the information and who were the perpetrator. Again, the evidence of PW3 does not in any way link the accused persons with commission of the offence. The witness declared that he did not know the perpetrators of the offence, the same applies to the evidl [4 the hamlet chairperson who did not visit the crime scene. Neither PW5 nor PW6 testified substantive evidence connecting the accused persons with the commission of the offence charged. Both came with hearsay evidence that they were told that the accused person are the one who committed the offence. Neither the owner of the alleged chicken or employee of the deceased nor the person who called PWI was called to testify for the prosecution case. It is a trite law that failure to call important witness attracts drawing of adverse inference; this position was well stated by the Court of Appeal in the case of Shilanga Bunzali versus The Republic, Criminal appeal no. 600 of 2020 when the court reiterated it earlier decision in the case of AZIZZ ABDALAH v REPUBLIC [1991] TLR 71 where it was held: "The general and well-known rules are that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution. " Following the failure of the prosecution to parade before this court the witnesses who named the accused persons to be the perpetrators of the offence left the prosecution case to be founded with hearsay evidence. Hearsay evidence in real sense cannot be relied by the court against the 7 accused persons. Thus, it is my finding that the prosecution has failed to establish a prima facie case against the accused persons for them to be required to enter their defence. For that reason, I am satisfied that the accused persons have no case to answer. They are hereby acquitted accordingly for having no case to answer. Order accordingly. Dated at Dar es Salaam this 18th day of November, 2024. mr Ngunygte JUDGE Ruling delivered this 18th day of November, 2024 in presence of Mr. Gray Uhagile learned State Attorney and the accused persons represented by Ms. Ziada Mkwazu and Gasper Sabuni leaned Counsel. JUDGE 8