20100503 TZHC Dar es Salaam

, ' ,,.... ,_..,_._L_•.....• , . IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 112 OF 2007 REPUBLIC ·- -V-ERSUS JAPHARY S/O ISMAIL Date _of last Order 8/4/2010 Date of Ruling 3/5/2010 RULING Shangwa, J. The accused person Japhary Ismail is faced with the charge of mui:-der C f.S 196 of the Penal Code Cap. 16 R.E. 2002. It was alleged·by the prosecution that on 12/4/2004 I •, 2 at Mabibo Upogoroni area within the city of Dar es Salaam, he murdered one Joseph Shedula by slaughtering p.im. The learned State Attorney, Ms Chilongozi for the Republic called 11 witnesses to prove the charge. She closed the prosecution's case on 10/3/2010. After closing the --- -- -- -- J>tosecution-'s- -case, - oou.n-seL _for__ the __ ac_eJJ~~g._,___l\i'.I_r_. _ _r~"j_~u submitted that the accused has no case to answer. He gave the following reasons for his submission. First, that there is no any direct evidence that links the accused with the offence charged, and that the evidence adduced by the prosecution 1s merely circumstantial. Second, that the circumstantial evidence adduced is so weak for the court to put the accused to his defence. r 3 He submitted that the evidence that the accused was seen at Tanga with the deceased's shirt, trouser, radio, jacket and a mobile phone, and the evidence that by conduct the accused is a thief does not prove the offence charged. It was further submitted by him that the fact that th_e_ -accused- went to- -Korogwe, -Tanga -When_ the__ inciden_t_ - -- occured is circumstantial and does not establish the fact that the accused committed the offence charged. He submitted further that the evidence of P.W.5 that he knew the properties which were tendered in court to be the deceased's properties (exhibit P3) is not enough to prove beyond reasonable doubt that those properties belonged to the deceased. f 4 He said that although P.W.4, P.W.9, P.W.10 and P.W.11 did identify those properties forming exhibit P3, they did not say that those properties belonged to the deceased. Furthermore, he said that the evidence of P. W. 3, P. W. 4 and P.W.6 which has the effect of showing that the accused is a thief by conduct and that therefore he stole the deceased's properties has to be evaluated with caution as it does not prove beyond reasonable doubt that the accused is really a thief. In addition, he said that there is no evidence to show that the accused went to Korogwe, Tanga for hiding as he used to go to Tanga on several occasions. He cited the case of Protas Kitogele and Another V. Republic 1992 TLR Page 51 in which the Court of Appeal of Tanzania held that in order to convict the accused on circumstantial evidence, the incriminating circumstances 5 should lead to the reasonable inference that the accused committed the offence ch-argea··and· should be -incapable.of any other explanation. On the other side, Ms Chilongozi for the Republic submitted that the accused has a case to answer. Her submission is based on the following reasons:- One, that there is evidence of P.W.1 and P.W.8 to show that the accused was the last person to be seen with the deceased while alive. She contended that since the accused was the last person to be seen with the deceased while alive and as the deceased was found dead in the room in which both of them used to live together at Mabibo U pogoroni area, the accused has to tell the court as to how and when he parted with the deceased. In support of her 6 contention, she cited the case of Makugire Mtani Vs. Republic (1983) TLR 179. Two, that the accused's conduct of not having ------- ______ att~n_cl.~_c;l the deceased's burial ceremony and of telling the -------------- --- deceased's father that the deceased was ill when he went to Korogwe, Tanga and his conduct of not returning to the place where he was living with the deceased at Mabibo Upogoroni area when he came back to Dar es Salaam from Korogwe, Tanga show that he was feeling guilty conscious. She cited the case of Amir Mohamed V. Republic (1994) TLR 138 in which the Court of Appeal of Tanzania held inter - alia that the conduct of the Appellant of disappearing from his aboard soon after the event of murder shows that he was responsible for murder of the deceased. 7 Three, that as the accused was found with the deceased 's properties namely radio, cell phone and different types of clothes hardly a week after the event, the accused has a case to answer. In my view, I agree with learned counsel for the - - - - accused Mr. Njau that the evidence on recora.- -is circumstantial but I do not agree with him that it is so weak for the court not to put the accused to his defence. I agree with Mr. Njau also that the prosecution's evidence which tends to show that the accused is a thief by conduct is not relevant to prove that the accused did murder the deceased. However, the fact that the accused was seen with the deceased's properties i.e a mobile phone, a radio and different types of clothes a few days from the date when the deceased person was found murdered in a rented room in which he used to live with him does raise a question as to how he came in to possession of those properties after the 8 deceased's murder. This question has to be answered by him. Mr. Njau submitted that the evidence of P.W.5 that he knew the deceased's properties i.e exhibit P3 has to be treated with caution and suspicion. In my view, if at all the evidence of P.W. 5 that he knew the properties mentioned above i.e exhibit P3 to be the properties of the deceased is not true, the appropriate thing to do is to put the accused to his defence so that he gets opportunity to defend himself against P.W.S's lie. As a matter of fact, I agree with Ms Chilongozi for the Republic that the accused has a case to answer. I do agree with her for the following reasons: First, that the accused was the last person to be seen with the deceased while alive. Second, that the accused used to live together with the deceased and that after the 9 deceased's death which was a violent one, he disappeared from the room in which he used to live with him at Mabibo Upogoroni area in Dar es Salaam. Third, that the accused did not attend the deceased's burial despite the fact that he was his close relative. Fourth, that the accused was seen which is far away from Dar es Salaam a few days after the deceased was murdered. I hold therefore that the accused has a case to answer. JUDGE 3/5/2010 Delivered this 3 rd day of May, 2010 in the presence of Mr. Njau for the accused and Ms Chilongozi for the Republic !I.. .. 10 and the gentle assessors who are assisting me in this case namely Tatu Farijala and Khalfani S. Lukali. JUDGE 3/5/2010 COURT: The accused is informed of his right as provided for under S. 293 (1) and (2) of the Criminal Procedure Act [ Cap 20 R.E. 2002] and his Advocate replies after being asked to exercise his right that the accused will defend - himself on oath and that he will call one witness on his behalf. 11 JUDGE 3/5/2010 Defence on 20/5/2010. AFRIC ORDER: ._;;.,::::-=~- ·..•~.f('i ~--~-~--Slc A.Shangwa "\ ~ ~;:, '.;'','<¾!, "f' ··• ,;, . .;,~: \ JUDGE 3/5/2010