20120302 TZHC Musoma

• I ,;. I , I·.; . Ii IN THE HIGH COURT OF TANZANIA ' - AT MUSOMA. CRIMINAL SESSIONS CASE .N0.88 OF 2008 THE REPUBLIC . VERSUS MAKASI S/0 NYAKUKANGARl:J~, JUDGEMENT SUMARI, J. The accused person in this case, namely, Ma~asi ~/ o Nyakukangaruka, is charged of murder c/s 196, Jti th!e:, Pen·a1::t6~e;' · ··I J ! • i ,; i r·I ::l,J[ : Cap.16. The Republic has alleged that on 12/5/2005 atr6omge>ra Villag~: in . I I ., • 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 Pw1 Nyanzagi Makongoro, the deceased person was invaded by bandits, on 12/5/2005 when Pw1 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 t~e sjtting · rqom 1 1 door and put her under arrest/guard. After they enter,4 if)f t\lt .def'~!'1 jd 1 walked up with a spear. He wanted to go outside but t~~Y QJOt hold of f:1i'm in the sitting room. He fought with them but was overcomed a~er they cut him with a panga on the head. He fell down and died instantly. The bandits then left to another hou~stole nothing in her house. Pw1 I . : . . -~. · .-:·-r-1.::~: - • shout for help and villagers responded, she mentioned tolt.~e~.r fhk ~~rii!ei!! , . I; l ., I. ; , ', 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, Kis.heri Makongoro . ·and · Makasi Nyakukangaruka and that th.e said Makasi Nyakukangaru_ka is the one at the dock, pointing co the accu~ed 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 fac:t :· I : _ : :, that she was under arrest/guard she could see them, arid idt=ntify tt,er/n · ·'I•; I . , i: : '.,! t1 properly because she knew them prior the incident and ~~~Y ~re' ~II:~~~ /c~M I 'fl 1 : '. .i l'. villagers. She stressed to ~now the accused very well ·because he was her lover (hawara); for aqout 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 V\/hen· Pwl w:as 1 R~XD she said she nev~r saw who exactly cut her hus~~nd/ beca.use;th;ey I· were two i.e. Makere and Kisheri who were at the sitting:/~~o~.:: : ·:. ! '; ·/ 1/i/! ! . I : ·I . Pw2 - D. 3999 D/SSgt Simon, is the police investigator who investigated this case. That on 12/5/2005 a murder occurred at Bururna village whereby one Sabayi Wanyan,,~ was killed. That he first drew the /~CLH' 2 , ·:· ·- ~, -~. ·,-; -~ .·~, ~. ~~~-.~~--;~:. . ~_~·~.: ·-~-~~. :;:~~~~~~-: :~ >·~: ·. • ••• • ~ . :.,~ . r <. • •• "• • ":-~-----~-< ~:~ .:~/"~;.--- ~- ~-.. :~~-~~ .I ·:r ; •· ,lsketch map of the scene of crime; exhibit Pl. " That he found· the 1 : deceased's body at the· sitting room. And ·the doctor who accompanied them conducted postmo~em and issued them. a postmortem report Exh. · P3. That through inVestigatio'n· he discovered that the killers were the . outsiders and upon interrogated made to the deceased's wife one Nyanzagi M?Jkongoro ·(Pwl) told him he witnessed the incident and identifi~d the . ,, ;, 1 culprits. She mentioned to him three names including Makasi · I , Nyakukangaruka. That after the accused was arrest6d he :r~cord~d :;his cautioned statement, Exh. P2 on 16/5/2005. Accordin~rb P~;; Jtie ' ·,, •!F l ; I : ~Ji~~~tj : I : ! l·:: I 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 ~ourt and the I I prosecution notice of his intention to rely on such de,fense pefor~ tne · hearing of the case or furnish the prosecution with tnJ 1pahi~ulars . ·' I''• I. I l! ,, : '' ;: . :di i~e · , ' .' II ·•1i1'1 !, ' alibi at any time before the case for the prosecution is iclosed 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~IC:...vr 1 3 I : I; 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 ide·ntify the accused, and - then by the person or persons to_ whom the description was given. In the. case of Mohained bin' AUui v R., 9 E.A.C.A. 7~ the court held fnter alia I , : that in any case in which · there is a question as to, th~ identity· d,f the. accused, the fact of there having b_. een given a descr!A_·l~~on a~,_d i~_eit_'.1r1~s :of - • 1 ! • i '/ I '•id I I 1,\ • ; ' 11 that description are matters of the highest importan~$ of which· ~viq~nte I ·. I , , ought always to be given. In our case at hand the incident occurred at night and no lamp was lit in the h.ouse. Pw1 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 . i . ; ' of visual identification, like in our case at hand,. s~ch\ evi!d~~c~: :::bwrt. remove all possibilities of mistaken identity and the· ·¢ouh~niust ib~j'l(fully ·1 I 1 • • • I '· •II I 1 1 satisfied that the evidence is watertight. - ·-1 ;ii \ • · · : 1 'l~i . 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· . ~l✓JAr'; i7'(_, _ ~ . 4 I , / ~, v .not favourable to her to see properly what w~s 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.' ···PL' · the sketch map does, not provide measurements/scale as to ·how far the bed room and sittinb ~oom. Su~ice therefore to say if Pwl could not exactly tell who cut,tH d~ceJs~1 i~~~r~ Makere and Kisheri, it is very possible also that she ne·ver !exactly icl~~ i\ty 1 ' . I . . . 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 id~ntity 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, wh•ch is not disputed. I am satisfied in this case that the evidence of Pwl does not remove all possibilities of mis~aken identity., . .L . I .. • • • ,, I ,, ' . ' Again under normal circumstances, one s~J~ld, 'I' €XJ~\±t ·, I i)#,_.j~'~ ' ··1 ,!j 1 11 ! evidence to b·e supported by either neighbors who respj0nd,ed to her:crles: 1 · 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 withiri reach but are . ~4-Vw.-Lv, , : . . r,p~ . . . .1I . , 5 ' ' ' ' . ' . 1,' '' : I, . .I ':;i ·:11· j ·•, ·,1,' 1 1 . : T: , ' ' . .JI . . not called without sufficient reason being shown, the court may dra·w an- .. inference adverse to the prosecution (see Aziz Abdallah v (1991) TLR 71). In the absence of such witnesses the evidence of Pwl remain~ weak .. Now in the absence of the Pwl's evidence, w, paierrai~~d/.iwifh. the evidence in Exh. P2. The question which aris~~lr ,h~tf ~r ~~1i~i tre accused said to P.W.2 in Exh.P2 amounted to a co~fr}si~n:~~ th~i!.f~~f,lfe 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 astually • . I • I ' . :. : ' . what he said to Pw2, ''Majira ya saa 22.00 hrs tuliondo~a kwe~da kwa Bwana Sabania Wanjagi tukiongozwa na kisheri Makongoro na M;kkie /4a~ata;,J:.: ~Jk~~i 1•· . I Auo ·•I -j,1! : 1_ I' I . : . , ,.1 ! tulikua na Mapanga Mawili na Tochi 2. Mapanga ya/ishikwa! 'ha /Yloi S/0 .Mgabb 'na Makere S/0 Mgaya. Baada ya kufika hapo wengine tulibaki nje njiani. Watu watatu ambao ni Mai Mghebho, Kisheri Makongoro na Makere Mgaya wa!ikwenda kupambana na Sabania Wanyangi ambapo walimkata mapanga na Kumuua.......... " DWl, the accused proceeded to say that Makere Mgaya na 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, . r~IOUl-( -.~.,.,,,. I' I • / . ' . I ' •I' 6 J. . ' .. ·... _.,,,-, . - ,•_,,, .. ila waliniita kuwa kum:1 shughuli ambayo sikuifahamu na ilipofika usiku wa/isema twende kutembea, ndipo tuliongozana hadi kwenye tukio,~ I . Basing on that evidence given in this case it is :a'ppa~int ~~at fr1~sed. has _not con.fessed because he had ·no drrectly ackn1~ ,~d9e1ff ti:Jf~fft+n 1 of killing the deceased person._ In other words th'e,· iacc~s¢d mus;t:(oave 1 1 ' I adm\tted 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 J: 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 . : . . y~ ku~ika pale wengine tulibaki nje njiani, ~atu watatu,:ajba9 ~i 1~ils<9 · .~fit l bro, Ktshen s/o Makongoro na Makere s/o Mgaya walikwenda na :kJpamba(Ja! n~ $abarJra s/o C I' I I ,, I .I ,1,,1 I Wanyangi ambao walimkata mapanga na kumuua,~ · · :i: 1 [ i ' i .; ! :'.i ! • · 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 awala yako alikuwa amelala nyumba gain? JIBU: Alikuwa nyumba ya Juu tofauti na ile aliyokuwa ame/ala mareh(!mu. SWALI: Wakati mnafika pale Je uliongea naye? JIBU: Hapana ila mchana alikuja kwa yule mama tulipokuwa akaongea na kaka yake ambaye ni Kt:Sheri usiku huo hatukuongea naye. ~l.9J:rr, ~ 7 ..• Taking all these into consideration are . contradictions. and . . . h. h . I d1screpanoes w 1c m aw th h.. t \ff·•. i; ~.th ·J ey · ave a grea ·H=t· ,: ec~ :ory .... •~! :1. R~, . o f ·;;J,rt•\· . ·1 µ1 osecution side. So one cannot firmly contend th~t:i Exr. '.P2 ·supp9\h:s or • I '. I : ' •.. ·. corroborates· Pw1 's ~vid~nce . . After carefully gone through the evidence of PW1, the sole iden-tifying witness I'm convinced that the identification conditions prevailing in the .t /( · 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 Pw1 's evidence either. . ' 'j Having tried to analyze the evidence on both siqes to that ext~nt~.T . nd . \ i ,,: 1 ', ,; 1 Ji 1 1 respectfully agree with the 2 Genteel Assessor thatt)~h~ RfQS~cutip'.~ hps IJ failed to pfqve its case beyond reasonable doubt' gainst the' c~Ls~d 1 a 1 person. I accordingly find accused not guilty of murder as charged and I hereby acquit him forthwith. ~~~ A.N.M. SUMARI JUDGE ' I· I. I 8