republic vs mtuchake selemani selemani 2011 tzhc 2181 5 august 2011

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 90 OF 2007 REPUBLIC VERSUS MTUCHAKE SELEMANI SELEMANI Date o f last Order: 12/ 04/2011 Date o f Judgment: 05/08/2011 JUDGMENT KARUA. J. The charge against the accused, Mtuchake Seleman Seleman, to which he has persistently denied to have committed, is murder contrary to Section 196 of the Penal Code, Cap 16, R.E 2002. The accused has therefore denied the prosecution allegation that on or about the 2nd day of December 2006 at Matunda Farm Area, within Bagamoyo District in Coast Region, he murdered one KEDMOND son of MKODA. Fortunately, a number of issues are at common ground in this case. In the first place, it is not disputed that Kedmond Mkoda, the deceased in this case, has indeed, passed away. It is uncontroverted that the deceased died a violent death on the 2nd December, 2006 at Matunda Farm, Kerege Village, within the District of Bagamoyo, Coast Region. It is further not disputed that the deceased was hit by a blunt object, on the heard and forehead, which blow resulted into the death of the deceased. It is also not disputed that the deceased after the incident was rushed at Kerege dispensary, where he was attended by PW4 Sophia, a nursing officer, whose effort to save the life of the deceased were in vain. The deceased passed away at the dispensary. The deceased body was later taken to Muhimbili National Hospital for post-mortem examination. The Medical report reveals, in no uncertain terms, that the deceased died from head injury. Furthermore, it is not disputed that the accused was arrested in connection with the death of the deceased. All these facts defy challenge. The four prosecution witnesses, who testified on behalf of the Republic and the accused and his witnesses, are at common ground over all these facts. These facts were also confirmed at the preliminary hearing. The only contested issue in this case, in my considered views, is whether the accused killed the deceased as asserted by the prosecution. This question however, can only be answered by scrutinizing the evidence of only three prosecution witnesses, out of four who testified and who were at the scene that eventful day. These are PW1, Boniface Jackson Daudi, PW2 Athumani Ally Kamma and PW3 Twaha Mohamed. Briefly, this is what these prosecution witnesses assert. On that fateful Saturday, they had gathered at Matunda farm. They had gone there in search of casual farm work. The three witnesses met other villagers who stood between 25 to 30 people. While so waiting for the owners of the farm to arrive; a group of more than 60 people invaded them. It would appear two groups from two different villagers were quarrelling over the ownership of Matunda farm. The other group of more than 60 people from nearby Zinga Village, went berserk to the surprise of the former group. They wielding clubs, axes and machetes and their actions, brought about the present tragedy. Some members of this group had covered their faces with masks. That group, it is said, was led by the accused. According to these three prosecution witnesses, the accused directed them to sit down and drop their farming instruments, such as hoes and machetes that they were holding. Those who obeyed were not hurt. The deceased attempted to escape. He took his bicycle and strived to ride away. Three men from the invading group stopped him. The accused, it is said, hit him with his club on the head and forehead. PW1 Boniface knows the accused very well. He used to see him at Zinga village and at times at Kerege village. These are the two neighboring villages. PW2 Athumani also knows the accused very well. They once went to school together at Zinga village. This was in 1979 and 1980. At the time they were in class one and two. PW3, Twaha was also positive that it was the accused who hit the deceased with a club. However, he conceded to have seen the accused for the first time that day. These three witnesses denied that a tree fell on the deceased, as suggested by one defence witness. The prosecution witnesses are positive that it is the accused who hit the deceased on the head. The deceased did not bleed. On his part, the accused denied everything damaging that was said against him and presented, a defence of alibi. The accused defence was to this effect. On that day he was at the house of the Zinga ward counselor one Mohsin Mintanga (DW3). There was a festive ceremony, where some portions of the Holy Koran, were read to mark the end of the mourning period for the ward counselor’s wife. The accused left those services at around 3.30 pm. He was arrested on 17th December 2006 and taken to the police station, where he met PW2 and PW3 who were also apprehended. DW2 Siaba Ally and DW3 Mohsin Abdallah Mintanga, the ward councilor himself, confirmed that accused attended the ceremony from 9.00 am to 2.30 pm. The prosecution of this case was conducted by Ms. Martha Missonge, Learned State Attorney, while Mr. Makabi K. Makabi, advocated for the accused. At the end of the trial, the learned counsels, made very valuable submissions, which clarified many issues, that were driving a wedge between these two stories. I will therefore have regard to these submissions in the cause of this judgment. Perhaps, I should commence with the accused defence of Alibi. It is not disputed that on the eventful day, there was a ceremony at the ward councilors house which, indeed, the accused and his relative Siaba Ally, DW2, attended. Ms Missonge, in her spirited defence of the innocent deceased victim, established in uncontroverted evidence, that the accused was at the scene of crime and fully participated in the scuffle that had ensued. In my views, in her written submission, Ms Missonge proved to my satisfaction that the accused arrived at the ceremony at 10.00 am after participating in the commission of the crime. Indeed, that is what the accused himself said that he arrived at the “khitima” at 10.00 am. The offence and the chaos at the farm took place at around 9.00 am and lasted for only 15 minutes. The distance from the scene to the house of the ward councilor, is only 20 minutes. In the circumstances, Siaba (DW2) and Mintanga’s (DW3) efforts to salvage the accused from innocence is delusive. The area of dispute now is fairly narrow. The same is whether the accused, while at the farm, assaulted the deceased to his death. Ms Missonge approves that the prosecution has proved its case beyond peradventure. She contends that the evidence adduced, points a finger to nobody else, but the accused himself. She confirms in her submission by saying:- “(PW1) testified he saw the accused follow the deceased who went to take his bicycle to rescue himself and beat him on the head and forehead. PW2 and PW3 narrates that theaccused beat the victim (deceased) with a rungu on the head and forehead and this is well supported in the post mortem report whereby the cause of death was due to head injury.99 There is no possibility of error. This is Ms Missonges’ stand. She asserts that PW1 knew the accused before the incident. PW2 also know the accused. In fact, they were staying together and happened to study in the same class at Zinga Primary School. These two witnesses, known to accused, demonstrated that it was the accused who stroke the fatal blow on the accused head and forehead. Basing on the evidence of these three prosecution witnesses, Ms Missonge, contends that the prosecution has established its case beyond all reasonable doubts. Mr. Makubi, on the other hand, took a different view. He submits that the evidence of the prosecution witnesses is full of doubts and does not support the change against the accused. He goes on to say:- “There is no good evidence which connects the accused with the offence he is charged with. Generally, the evidence of the prosecution is contradictory, not sufficient, not satisfactory, not credible and lacks corroboration. We submit that the credibility of the prosecution witnesses is less and they are not reliable witnesses because they all differ in their testimonies. Therefore, it is our submission that the prosecution has failed to prove this case against the accused beyond reasonable doubts." On the area of inconsistencies and unsatisfactory nature in the evidence of the prosecution witnesses, Mr. Makubi addressed the court at length. He pointed out several leaks in the prosecution case. He went on to say:- “The evidence of PW1 and PW2 are very contradicting. Each o f them gives a story which contradicts the evidence o f the other. This makes their evidence unworthy. Thus, we submit that their evidence should not be considered but disregarded in its entirely. While PW1 says that at the mango tree they were just sitting with no special activity, PW2 said that they had a meeting discussing how to work in their farms. While PW1 said that the group of 60 persons invaded like soldiers while some o f them wearing masks, PW2 said that no one among the said group had a mask in his face. Further, while PW1 said that he is the one who sat near the deceased, PW2 said that it is one Chibon who was near the deceased. While PW1 said that when the deceased was hit by the club he did not bleed, PW2 said that he bled a lot. This fact is also seen in his (PW2) statement. The other contradiction is seen when PW1 says that a good Samaritan took the deceased by his Land Cruiser while PW2 said that they contributed 7,000/= and hired a hiace. While PW1 did not state that PW2 was also involved in taking the deceased to hospital, PW2 insisted that he and mama Sefu also took the deceased to hospital. Further, while PW1 said that before the accused was hit three men stopped his bicycle, PW2 said that there was no that event of blocking the deceased before he was hit. Among these two witnesses who allege that they were both at the scene and they observed everything, everybody insisted that what he told the court is the truth. Basing on all these contradiction which raise a lot o f doubts, we submit that all of what these witnesses told your Honorable court were pure lies which should not be considered in determining this matter. Their evidence does not corroborate.99 I have followed and, I hope, carefully considered the above arguments of both learned counsels and I would, in the circumstances of this case, respectfully sustain Mr. Makubi’s point of views. Indeed, I tend to agree with Mr. Makubi, that the prosecution case leaves a lot to be desired, which in its cumulative thrust is not in favour of a comfortable finding that the accused person is the one who inflicted the deadly blow on the deceased head and thereby causing his death. There is no doubt that the event was marked with a state of confusion involving a lot of people. This was a quarrel or rather a fight between two opposing groups marked with disorderly and violent behavior. It is my views, that in a situation of this nature, involving so many people, as much as ninety, wielding weapons, such as machetes, hoes, sticks and clubs, it is not possible for a person to concentrate to what was happening to other persons. I am indebted to Mr. Makubi who drew my attention to this fact. The example of PW3 who Mr. Makubi drew my attention illustrates very well. Mr Makubi says:- “During cross-examination PW3 said....that during the event he was not settled because he was running around the area that he was also hit but he did not see or know who did hit him. This creates enough doubt as to how a person who was not settled, running randomly to save his life, could identify a person who hit another person while he could not see the one who hit him.99 Having carefully gone through the evidence of these three prosecution witnesses, and from the intensity of Mr. Makubi’s arguments, I am persuaded that there are a lot of contrariety, differences, disagreement and inconsistencies in the evidence of these three prosecution witnesses. In the quoted paragraph Mr. Makubi demonstrated some of the areas that do not augur well with the degree of certainty to enable me to act on the evidence of these three prosecution witnesses. That is not all. There are other factors. PW1 himself foristance conceded that he did not see all what he testified. He said some of those facts were narrated to him by other people. How simple is it to lie in such a situation? The chaotic nature of such an event is in my considered opinion, a perfect breeding ground for falsity. The story would indeed be varied, as news passed from one month to another. In such a situation how easy it is to embellish, distort and twist. This is why such evidence is inadmissible in our law. The evidence of these three witnesses, clouds suspicion in my mind. The evidence of the two key prosecution witnesses, PW1 and PW2, as ably demonstrated by Mr. Makubi hereinabove, contradict each other. They differ in many aspects. They differ on whether some members of the invading group had put on masks to cover their faces. They deviate on whether three persons from the offending group blocked the deceased path while attempting to run away. Moreover they could not speak the same language on whether the deceased bled after he was hit on the head. One said yes the deceased bled profusely after he was stricken on the head. The other said no there was no blood that oozed out after the deceased was hit. They disagree on whether they both escorted the deceased to the dispensary. PW2 illustrates another example. When he recorded his statement at the police station, he said it was Jafari Mohamed who issued the commands. While in court he said it was the accused person. Further on a proper reflection, coming to think of it, if indeed it was the accused person who hurled the fatal blow on the deceased head and as the two key witnesses knew him before; why wasn’t he arrested as soon as possible? The crime occurred on the 2nd December, 2006. However, the accused was arrested on 17th December, 2006, sixteen days after the event. Indeed, the accused did not disappear. He was in the village all those days. In short, taking all these factors into considerations, especially the fact that the offence was committed in a chaotic situation, where many people were fighting each other, there was no room, I believe, for a positive identification. All these factors that I have pointed out, inclines me to differ with the three gentlemen assessors, who found for the prosecution. In light of all these inconsistencies and contradictions in the prosecution case, which I have pointed out, a little earlier, I am not prepared to accept that finding and I accordingly accord the benefit of doubt to the accused person. Consequently, I acquit the accused person. He stands at liberty unless lawfully held. JUDGE 15/08/2011 DATED IN DAR ES SALAAM Appearances: For the appellant: Mr. Makubi For the respondent: Ms. Derick, SA