mganga ndugai another vs republic 2012 tzhc 166 29 june 2012

IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO 74 OF 2012 1. MGANGA NDUGAI 1st APPELLANT 2. ISSAYA NDUGAI 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 21 / 04/2017 & 29 / 06/2017 A. MOHAMED, J. The two accused persons, MGANGA NDUGAI and ISSAYA NDUGAI, stand charged upon information with murder contrary to section 196 of the Penal Code [Cap 16 RE 2002]. It is the prosecution’s case that on 18/5/2011 at Leganga village within Kongwa District in Dodoma Region, the two jointly murdered one KITIMANGA OLEMSHENI. At the preliminary hearing, the post mortem examination report was admitted as exhibit PI and the sketch map of the scene of crime as exhibit P2. The following matters were also not found to be in dispute; that the deceased died on 18/5/2011, and that the two accused persons were arrested in connection with the alleged murder of the deceased. Mr. Sarara, learned State Attorney, conducted the prosecution whilst Mr. Nyabiri, learned advocate, represented the accused persons. To prove its case, the prosecution called four witnesses. The first was MALIPE LEMSHON (PW1) he told this court on the morning of 18/05/2011, he left his house at Leganga village heading for Suyi village. On the way he found the two accused persons cutting thorn bushes near the spot where the deceased's body was found the next day. He returned from Suyi via the same road and at around 19:30 hours that evening he found a roadblock of thorn bushes and ISAYA, the 2nd accused person, told him “kumbe ni wewe, safari njema salimia nyumbani”. He said MGANGA, the 1st accused person was also present with two other persons unknown to him. He was allowed to pass. The next morning he heard his brother had been murdered at the spot. He saw the deceased’s head was cut in two parts and the body has many cuts. When cross examined by Mr. Nyabiri, he said that his motorcycle headlamp assisted him to recognize the two accused persons and that the spot was not far from Leganga village. ZANINIU LEKINANGA (PW2) told this court that on the morning of 18/05/2011, he and the deceased left Leganga village heading for Mkoka Village. They left Mkoka at 19:00 hours in the evening returning to Leganga with the deceased driving his motorcycle. On 2 the way near the village, they found a road block of thorn bushes. Suddenly, about two steps from the barrier, some people appeared. He recognized the two accused persons from the light of the motorcycle that was at high beam. He said, the two accused persons were wielding billhooks which they used to attack the deceased on his head. He managed to escape and ran about 10 acres into the bush heading away from the scene and eventually slept on a tree. He went on to say the next morning at around 7:00 hours, he went to Otosoe Mbele, a neighbour where he also found Lamato Lupembe and informed them of the incident. They inquired from the deceased’s household whether Kitimanga had returned and they were told he had not returned last night. They then headed to the scene of the ambush and found a multitude of people including the village leadership. He said there was a dispute over ownership of a farm between the deceased and the accused persons. When cross examined by Mr. Nyabiri, he said the distance from the scene of the crime to Leganga village was about two acres length. The witness said he did not raise any alarm after the ambush as he was confused and refuted killing the deceased. That there were five assailants but he recognized only the two accused persons from the illumination of the motorcycle lamp’s full beam. PW2 said he did not know whether there was a case over the dispute between the deceased and the defendants or knew the size of the farm in dispute. The witness said he did not sustain any bruises when he ran into bushes that night nor could he remember the clothes the defendants wore on that night. In response to the 3rd assessor’s question, he replied that he did not see any person cutting thorn bushes in the morning they went to Mkoka with the deceased on the fateful day. In turn LAMATO LUPEMBE (PW3) testified that at 7:00 hours in the morning of 19/05/2011, Zaniniu (PW2) informed him of the ambush that took place the last night. He repeated what PW2 had said. Lastly, he said his statement was recorded on 24/05/2011 by the police. In cross examination by Mr. Nyabiri, he said he did not ask PW2 why he had slept in the bush nor was he shown by PW2 where he slept that night. And he did query why he didn’t raise an alarm after the ambush. He said PW2 had bruises on his legs and head. He also said the deceased’s head was split and he had been beaten. KEDMOND MATONYA (PW4), the last prosecution witness said he was the Leganga village chairman when the incident occurred. And that he was told of the incident by the Sokoine hamlet Chairman on the morning of 19/05/2011. At the scene of crime, he saw crates of soda, a helmet, a hat; three sticks about 3 feet in length and some thorn bushes near the road. He described the deceased’s body had cuts on the leg and on the head. He believed the deceased had been shot by a bullet and called the police. He further said the deceased had lodged with him a complaint over a dispute of land with the accused persons. PW4 said the village government had initially granted the deceased 25 acres of land and later 50 acres of grazing land. He said the deceased complained ISAYA had cleared 20 acres while MGANGA had cleared 5 acres of his land. He had called the two defendants to his office and the Village Social Services Committee informed them the parcel of land had been granted to the deceased. He said the accused persons replied they were unaware of the grant. But the deceased agreed to reimburse MGANGA (the 1st accused) 300,000/= shillings for clearing 3 acres and also agreed to allow ISAYA (the 2nd accused) to use the 20 acres for 2 years and signed an agreement for returning the parcel of land before the village Executive Officer. The agreement was to lapse in July 2011. PW4 further told the court that in April or May 2011, he called the defendants upon hearing they were telling people they would not relinquish the parcel of land. They defendants refuted the story and reassured PW4, they would hand over the land as agreed. During cross examination by Mr. Nyabiri, he said he believed the deceased was shot by a gun. He did not have any document showing the deceased’s grant of land by the village government as they were in the custody of the police. He admitted land disputes 5 are by law handled by the village council as well as by the Ward tribunal. When re-examined by Mr. Sarara, he said the police and the village Executive officer were involved in the arrests. In response to assessors' questions, PW4 said some people believed the deceased was shot by a gun as a spent bullet cartridge was found near the body. He was also convinced it was a bullet wound as it showed a bullet entered in the neck and exited from the head. He also said the deceased’s helmet was split into two. The prosecution then closed its case and the accused persons upon being addressed in terms of section 293 (2) (a) and (b) of the Criminal Procedure Act [Cap 20 RE 2002], elected to give their evidence on oath. Led by their counsel, Mr. Nyabiri, MGANGA (DW1) told this court that on 18/05/2011 he had grazed his livestock alone at the Himbu area and returned home at around 16:15 hours. At around 17:00 hours he went with to collect honey with Ndugai Paul, Mbendegalo, Juma and Zaniniu (PW2) about a kilometre east of the village. They returned at 21:00 hours and slept. The next day he was informed of the incident and went to the scene of crime together with other villagers. He saw the deceased’s body after it had been prepared for burial and attended the funeral. He said on 20/05/2011 the police arrested the 2nd defendant, Joseph Paulo and Ndalo Ndugai. On 21/05/2011 he went to inquire about his arrested relatives at the village Executive Officer’s office. At around 9:00 he was arrested and sent to the Kibaigwa Police Station and later to the Kongwa Police Station. He refuted either being seen by PW1 at the scene of the crime on the morning of 18/05/2011 or by PW2 at the scene of the ambush at 20:30 hours of that night. He further denied having a dispute with the deceased or had been paid 300,000/= as compensation by the deceased. DW1 refuted PW4’s allegation that he had been called to any village government office over a land dispute. Lastly he denied killing the deceased or was in any way involved in his killing. In cross examination, he said he had differences with PW4 as he was the agent of PW4’s opponent called Mathias who was vying for the post of counsellor in the 2010 elections. Lastly he stated that the 3 prosecution witnesses were tutored by PW4. When re-examined by Mr. Nyabiri, he said five men and two women from his relatives were arrested but PW2 did not say women were amongst the five people he saw at the ambush. He insisted Zaniniu’s testimony was mere lies. The second defence witnesses, ISAYA NDUGAI (DW2), told this court that he had been sick for a long time and that did not leave his house on 18/5/2011. His illness starting in January, 2011 had rendered him incapable to work. He said he did not meet Mganga (DW1) on that day. He refuted the allegation that PW2 saw him at the scene of the ambush on the night of 18/5/2011. He also denied PW1 saw him cutting thorn bushes on the morning of 18/05/201 lnear the crime scene. And he said that he was informed of the deceased’s death on the morning of 19/05/2011 and went to the scene of crime. He said he returned home but was arrested on the night of 20/05/2011 by PW4 accompanied by policemen. He denied having a dispute with the deceased over any land. The witness also denied to have been called by PW4 over an allegation that he and DW1 would not return the deceased’s farm. When cross examined by Mr. Sarara, he admitted he had not tendered any hospital chit or document showing he received treatment for his medical condition. Lastly he said the prosecution failed to tender any document showing he had a dispute with the deceased over any land. JOINA NDUGAI (DW3) essentially repeated DW2’s story of his ailing from waist and leg pains. That he could not stand properly or work. The witness said her husband was treated at the Kongwa and Chitepo dispensaries. She narrated that she went to pay her respects at the deceased's funeral. DW3 said it was PW4 who knocked on their door when her husband was arrested. The last defence witness NDUGAI PAULO (DW4) testified that at around 18:00 hours on 18/05/2011, he, DW1, Mbendegalo, Juma Mbaruku and PW2 went to collect honey. They collected two pails of honey, returned at around 21:00 hours and went to sleep. He heard of the incident the next day. In response to assessors’ questions, he said the place where they collected honey was about 8 acres length from the scene of crime. The defence then closed its case. Thereafter the court summed up the evidence to the assessors and they gave their individual opinions as follow: 1st assessor: The accused persons are not guilty. 2nd assessor: The accused persons are not guilty. 3rd assessor: The accused persons are not guilty. After hearing the parties, I will now consider the merits of the case. Let me first restate the following essential elements that need to be proved in homicide cases: 1. Whether there was a death 2. Whether the death was unnatural 3. Whether the accused person were involved in the killing 4. Whether the killing was actuated with malice aforethought. The first question is answered in the affirmative. Exhibit P I, the post mortem examination report confirmed the death of the deceased, KITIMANGA LEMSHONI. As this fact is uncontroverted, I need not belabor on it any further. The next question whether the deceased’s death was unnatural is similarly answered affirmatively. Evidence of witnesses from both the prosecution and defence confirm KITIMANGA’s death was unnatural. They confirmed his head was split into two and he had other injuries on his body and legs. Invariably, this leads to the question whether; it was the accused persons who caused the death of KITIMANGA. The key witness PW2, claimed to have seen the two accused persons assail the deceased by hitting him on the head with billhooks at 20:30 hours on the night of 18/05/2011. He said he was able to recognize the two accused persons from a group of five assailants aided by the illumination of the motorcycle's headlamp light that was at full beam. He said the assailants came from the front about 2 paces away from the motorcycle. Frightened, he jumped off the motorcycle and ran into thorn bushes for a distance of 8 acres length away from the village and slept on a tree until 7:00 the next day when he went to Otiosoi’s house. A number of questions were raised by Mr. Nyabiri when Zaniniu (PW2) was cross examined that I find pertinent. One, why didn’t PW2 raise an alarm when he and the deceased were ambushed? 10 Secondly, why didn’t he run to the village which was about 2 acres length from the ambush to seek assistance but ran in the opposite direction for about 8 acres’ length? Thirdly, why didn’t he sustain any bruises or injury from thorn bushes that were prevalent in the area when he ran 8 acres length in the dark to where he slept? It appears PW3 testified PW2 had bruises which is a contradiction. In such circumstances, it was also unclear why didn’t he raise any alarm when he went to the village after he woke up in the morning. Or why didn’t he rush to inform the village leadership of such a grave incident but went to check at the deceased’s house whether he had returned the previous night. Apart from these questions, why didn’t he report hearing any gunshot sound since PW4 said he and others believed the deceased was shot as discerned from the injuries on the deceased's head and the evidence of the spent bullet cartridge found near the deceased body. PW2 had said blood from the deceased during the ambush had splattered on his clothes but the clothes were not tendered in evidence. Again PW2 had said he and the deceased did not see anyone cutting thorn bushes on the morning of 18/05/2011 when they were heading to Mkoka village. But PW1 had said he saw the two accused persons cutting thorn bushes on that morning at the crime scene. Both PW1 and PW2 had used the same route on their way from Leganga village. It is also noteworthy, PW2 failed to describe the clothes worn by the accused persons on the fateful night. I think all these questions cast a heavy shadow on PW2’s testimony. I will now consider P W l’s evidence. He said he saw the two accused persons cutting thorn bushes on the morning ot 18/05/2011 at the crime scene but PW2 contradicted this evidence as detailed above. As to his claim that he was allowed to pass the thorn roadblock on the evening of 18/05/2011 by MGANGA (DW1) who told him “kumbe ni wewe", I think this claim sounds highly improbable. If MGANGA was indeed laying an ambush for P W l’s brother, he would not offer himself for recognition to a possible murder witness. Common sense shows he would have had instructed one of the 3 strangers to address PW1 in order to conceal his identity from PW1 who knew him intimately. All defence witnesses unanimously assailed PW4’s testimony. DW1 alleged he had bad blood with PW4 as he supported PW4’s rival called MATHIAS in the election for counsellorship in 2010. He also said it was PW4 who arrested him. This was also stated by DW2 and DW3 although PW4 refuted by countering it was the village Executive Office with the police who arrested the accused persons. Being a village government leader, I think PW4 had some role to play in the matter. But the extent as alleged by the defence witnesses, was beyond the realms of impartiality. As to the question of the motive for the murder being the land dispute between the accused persons and the deceased, I think this 12 concern was not sufficiently proved. All prosecution witnesses alleged there was a dispute but they could not prove so. PW2 could not even state the size of the parcel of land nor knew whether there was a case between the parties. PW4 admitted land disputes are handled by the Village Council and the Ward Tribunal, the appropriate organs for such disputes. He could not prove the presence of an agreement between the deceased and the accused persons. I will now consider whether the deceased was killed by billhooks as claimed by PW2 or by a gunshot wound as asserted by PW4. As stated, PW2 claimed the two accused persons attacked the deceased by hitting him with billhooks they were wielding on his head. This is contradicted by PW4, who said, he and others, believed the cause of death was by a bullet entering the neck and exiting from the head causing the head to split into two. This discrepancy could have had been resolved by exhibit P I, the post mortem examination report. But the report is vague on whether the injury was the result of a gunshot wound, which could have shown some burn or remains of ordnance. The cause of death, as such, remains unclear. After the foregoing, I am of the view; there are a number of doubts cast on the prosecution’s case. I am therefore satisfied; the prosecution has failed to prove its case beyond reasonable doubt. 13 I am also not entirely convinced, that PW2 was with DW1, DW3 and others collecting honey on the night of the attack. This, I think was a defence strategy, which nonetheless, does not prove the offence facing the accused persons Gleaning from the evidence, I am satisfied an unknown person or persons ambushed, killed the deceased and made off with his motorcycle which has not been seen to date. Possibly, these persons were hired killers, but this fact has not been proved by the prosecution. In the final I acquit the two accused persons of the charge of murder facing them under section 196 of the Penal Code [Cap 16 RE 2002]. They are to be freed forthwith unless held for another lawful cause. The right of appeal explained. A. MOHAMED JUDGE 29/6/2017