republic vs makasi so nyakukangaruka 2012 tzhc 141 2 march 2012

IN THE HIGH COURT OF TANZANIA AT MUSOMA. CRIMINAL SESSIONS CASE N0.88 OF 2008 THE REPUBLIC VERSUS MAKASI S/O NYAKUKANGARUKA JUDGEMENT SUMARI, J. The accused person in this case, namelv, Makasi s/o Nyakukangaruka, is charged of murder c/s 196 of the Penal Code, Cap.16. The Republic has alleged that on 12/5/2005 at Songora Village in Musoma Rural Village, Mara Region at night accused together with his companion not arrested invaded the deceased, Sabania Manyangi and* his wives and in the cause deceased's death occurred. The accused pleaded "Not Guilty" to the charge. According to Pwl Nyanzagi Makongoro, the deceased person was invaded by bandits, on 12/5/2005 when Pwl was asleep in her room. Her husband, the deceased was also asleep in another room with her co-wife, Mkami Mayani in the same house. The bandits broke in the sitting room door and put her under arrest/guard. After they entered in, the deceased walked up with a spear. He wanted to go outside but they got hold of him in the sitting room. He fought with them but was overcomed after they cut him with a panga on the head. He fell down and died instantly. The bandits then left to another house,. They stole nothing in her house. Pwl shout for help and villagers responded, she mentioned to them the names of the invaders including the accused. Similarly when police came in the morning and after interrogation she mentioned to the police to have identified one Makere Mgaya, Kisheri Makongoro and Makasi Nyakukangaruka and that the said Makasi Nyakukangaruka is the one at the dock, pointing to the accused person. She further stated that the accused and his companion never covered their faces and heads so she could identify them properly through' the intense light from big torch held by Makere Mgaya. That despite the fact that she was under arrest/guard she could see them and identify them properly because she knew them prior the incident and they are all her co­ villagers. She stressed to know the accused very well because he was her lover (hawara); for about two years. She said that after police interrogation, they were allowed to burry and none of the three bandits came to her husband's funeral. When XXD Pwl said to have seen the accused standing by the door and that he never attacked the deceased at all and he had no weapon. That she could identify the accused while inside and under the bed with her children through the holes in the walls. But again when Pwl was 71ZXD she said she never saw who exactly cut her husband because they . - jj.i were two i.e. Makere and Kisheri who were at the sitting .room. .: r’1 Pw2 - D. 3999 D/SSgt Simon, is the police investigator who investigated this case. That on 12/5/2005 a murder occurred at Burufna village whereby one Sabayi Wanyang| was killed. That he first drew the sketch map of the scene of crime, exhibit PI. That he found-the deceased's body at the sitting room. And the doctor who accompanied them conducted postmortem and issued them a postmortem report Exh. P3. That through investigation he discovered that the killers were the outsiders and upon interrogated made to the deceased's wife one Nyanzagi Makongoro (Pwl) told him he witnessed the incident and identified the culprits. She mentioned to him three names including Makasi Nyakukangaruka. That after the accused was arrested he recorded! his ■ ' ■ 1. *| "liii ’ i cautioned statement, Exh. P2 on 16/5/2005. According to Pw2 the accused confessed to have killed together with the other two mentioned persons whom were traced in vain to date. That marked end of prosecution's case. In his un-affirmed evidence the accused denied to have committed the offence relying on an alibi. He claimed that on the alleged date he was not in the village, he was at Yuwozu Island at Mwanza to his nephew. He however, not called any witness to support his alibi which also was raised in violation of the provisions of S. 194 (4) and (5) of CPA, Cap.20 of the laws (R.E.2002) which requires him to give to the court and the prosecution notice of his intention to rely on such defense before the hearing of the case or furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed in failure to give notice required. That marked end of defense case. This case is wholly depending on the evidence of identification. The evidence adduced by Pwl on the identity of the accused at the time is too scanty to find a conviction, so to speak. .* I'm saying so because it is important to have a proper, correct and favourable identification in such a case. Such identification can only be done by assessing the detail description given in the evidence by both the persons who gave the description and purports to identify the accused, and then by the person or persons to whom the description was given. In the case of Mohamed bin Allui v Rv 9 E.A.C.A. 72 the court held inter alia that in any case in which there is a question as to the identity of the i accused, the fact of there having been given a description and the terms of that description are matters of the highest importance of which evidence ought always to be given. In our case at hand the incident occurred at night and no lamp was lit in the house. Pwl purported to identify the accused because she knew him very well and that there was enough light from the big torch held by one of the bandits. She has never throughout her evidence gave the accused's description apart from saying he had not covered his head. It is now trite law that before basing a conviction solely on evidence of visual identification, like in our case at hand, such' evidence must ’, ;1 ; remove all possibilities of mistaken identity and the court,must be [fully satisfied that the evidence is watertight. ^ Though Pwl is insisting that she identified the accused standing by the door, it is doubtful for she told this court when REXD by the learned State Attorney that she does not know exactly who among the two bandits Makere Mgaya and Kisheri Makongoro, cut her husband, the deceased. This piece of evidence suggests that the conditions of identification were not favourable to her to see properly what was taking place. This is so and I find it not strange because Pwl as stated was under the bed in her bed room while the incident took place in the sitting room. It is very unfortunate that Exh.' PI,' the sketch map does not provide measurements/scale as to how far the bed room and sitting room. Suffice therefore to say if Pwl could not exactly tell who cut the deceased among Makere and Kisheri, it is very possible also that she never exactly identify the person who stood by the door to be accused. In these circumstances, proof of the identity of the accused is in my considered opinion, such that the possibility of mistaken identity is inevitable. Pwl's evidence in my view and regrettably, is of a generalized nature on the identity of the accused. It is a mere assertion that she identify him for one reason that she knew him very well prior the incident for the reasons stated, which is not disputed. I am satisfied in this case that the evidence of Pwl does not remove all possibilities of mistaken identity. , ! • i •1 l i Again under normal circumstances, one should j expect i-Pwl's j ;i : , i evidence to be supported by either neighbors who responded to her cries and who could tell this court whether Pwl mentioned to them the names of the bandits including the accused person. Even her co-wife Mkami Mayani who is said to have slept with the deceased could tell this court what happened but for unknown reasons she did not testify. This was one of the important witnesses in this case, I must say. The general and well known rule is 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 (see Aziz Abdallah v (1991) TLR 71). In the absence of such witnesses the evidence of Pwl remains weak. Now in the absence of the Pwl's evidence,' wei have remained with' the evidence in Exh. P2. The question which arises is whether what, the ■: . N : i' p I II! accused said to P.W.2 in Exh.P2 amounted to a confession to the offence 1 • of murder. A confession within the context of criminal law is one which admits in terms the offence charged. It is one which admits all the essential elements or ingredients of the offence. An admission of one or only some of the ingredients of the offence is not sufficient. In this case all what the accused said to P.W.2 was that he accompanied his companion to the deceased and he never went inside the house he remained outside by the road side. In other words he is,denying to have participated in assaulting or killing the deceased. This is actually what he said to Pw2, "Majira ya saa 22.00 hrs tuliondoka kwenda kwa Bwana . 1 | ; I ■ Sabania Wanjagi tukiongozwa na kisheri Makongoro na Makere Magaya....wakati huo tulikua na Mapanga Mawili na Tochi 2. Mapanga yalishikwa na Moi S/O Mgabo na Makere S/O Mgaya. Baada ya kufika hapo wengine tuiibaki nje njiani. Watu watatu ambao ni Moi Mghebho, Kisheri Makongoro na Makere Mgaya waiikwenda kupambana na Sabania Wanyangi ambapo waiimkata mapanga na Kumuua........................." DW1, the accused proceeded to say that Makere Mgaya ha Kisheri Makongoro are the ones who conspired to kill the deceased Sabania and he had no knowledge of what was going on for they only asked him to accompanied them. On his own words he said to Pw2 when asked "Hapana, 6 iia waliniita kuwa kuna shughu/i ambayo sikuifahamu na ilipofika usiku waiisema twende kutembea, ndipo tuliongozana hadi kwenye tukio". Basing on that evidence given in this case it is apparent that accused i j j ' 11 i ■ has not confessed because he had no directly acknowledge of the-mission h 1 : : i :iii of killing the deceased person. In other words the accused must;have admitted unequivocally to have killed the deceased person, which is not the case. After a careful perusal of the cautioned statement, Exh. P2; I do not see anywhere the accused have confessed to kill the deceased person. Even assuming that Exh. P2 is a confession, which is not; could the same be taken as corroboration to Pwl's evidence? The answer is in the negative. It is in the negative because the contents of Exh.P2 contradict the evidence of Pwl on the fact that accused stood by the door while in Exh. P2 the accused is said to have remained at the road side i.e. "Baada ya kufika pale wengine tulibaki nje njiani, watu watatu ambao ni Moi s/o Mgabho, ! i I | |.j( Kisheri s/o Makongoro na Makere s/o Mgaya walikwenda na kupambana ha Sabania s/o . 1 !" Wanyangi ambao walimkata mapanga na kumuua". Not only that, it is said in Exh. P2 that accused and Pwl had met in the afternoon prior the incident while Pwl denied this fact in her evidence. This is what is reflected in Exh. P2 'SWALI: Siku mnafika pale huyo awaia yako aiikuwa ameiaia nyumba gain? JIBU: Aiikuwa nyumba ya juu tofauti na He aiiyokuwa ameiaia marehemu. SWALI: Wakati mnafika pale je uliongea naye? JIBU: Hapana Ha mchana aiikuja kwa yuie mama tulipokuwa akaongea na kaka yake ambaye ni Kisheri usiku huo hatukuongea naye. ^ v 7 Taking all these into consideration are contradictions and discrepancies which in law they have a great effect on the !parti of r t o - s e c u c i o n side. So one cannot firmly contend thatExh. P2 supports or corroborates Pwl's evidence. • After carefully gone through the evidence of PW1, the sole identifying witness I'm convinced that the identification conditions prevailing in the room she was were not favourable for proper identification of the accused and therefore the testimony of PW1 is unreliable in this respect. Similarly I disqualify Exh. P2 as it does not amount to confession and does not corroborate Pwl's evidence either. Having tried to analyze the evidence on both sides to that extent, I * i ^ 1 h *' i respectfully agree with the 2nd Genteel Assessor that the1prosecution! has failed to prove its case beyond reasonable doubt against the accused person. I accordingly find accused not guilty of murder as charged and I hereby acquit him forthwith. A.N.M. SUMARI JUDGE