republic vs erasmo so haule 2013 tzhc 2144 16 september 2013

IN THE HIGH COURT OF TANZANIA AT MBINGA ORIGINAL JURISDICTION (SONGEA REGISTRY) CRIMINAL SESSIONS CASE NO. 1 OF 2012 THE REPUBLIC VERSUS ERASMO S/O HAULE JUDGMENT 12th - 16th September 2013 KWARIKO, J. In this case the accused person is called ERASMO S/O HAULE who stands charged with the offence of Murder Contrary to Sections 196 and 197 of the Penal Code Cap. 16 Vol. 1 of the Laws, R.E. 2002. The Prosecution alleges that on the 25th day of December, 2010 at Lihale village within Mbinga j District in Ruvuma Region the accused murdered one BONIFACE MTITU. The accused denied the charge hence this trial. The prosecution in this case has been conducted by Ms Juntwa learned State Attorney whilst the accused person was represented by Mr. Waryuba learned Advocate. In this case it is not disputed that BONIFACE S/O MTITU is dead and his death was not natural. The Post Mortem Examination Report which was admitted in court as Exhibit PI during the preliminary hearing of the case on 30/11/2012 thus one of the matters not in dispute shows that the cause of death of BONIFACE S/O MTITU was due to suffocation. In this report it is further shown that the dead body was lying on the floor outside a residential house and it had bruises on the neck, blue coloration on the tongue and mouth and small wound on the right leg with no fracture. Whereas the cause and death of BONIFACE S/O MTITU is not in dispute what is in dispute is who killed him. The prosecution strongly alleged that the accused herein with malice aforethought killed the deceased and brought in court a total of five witnesses to prove their case. On the other hand the defence categorically denied that it was the accused who with malice aforethought killed the deceased. The accused testified on his own behalf and did not call any other witness. Also the counsel for both parties gave respective final closing submissions that will be referred in this judgment should a need arise. I will albeit briefly recapture the facts of the cause starting with the prosecution side. PW1 LUCIUS COSMAS KOMBA testified that the accused used to be his neighbor for about six years as he lived in the late WOLLFGANG NYANGOLE's house which is opposite to his own. That on Christmas Eve markedly 25/12/2010 at 3.00 am the accused went to his home stead at Mfaranyaki street and sought assistance to pursue the deceased who was alleged to have stolen his radio about 2.00 to 3.00 a.m. and had ran towards Lusonga direction. PW1 heeded to the request whereby the two walked about 150 meters where they found the decease sitting down while one BEN standing. Thereat, the deceased told PW1 that he had been beaten by both the accused and BEN and that he was not ready to go anywhere until his employer one JACOB MBAWALA came. PW1 pretended to be the said JACOB and persuaded the deceased to leave that place. PW1 revealed further that the deceased walked slowly because of the beatings. When they reached at the accused's home PW1 warned the accused to take care of the deceased and ensure his safety until morning when the incident could be communicated to the village office. PW1 said had decided to take such course since on such Christmas Eve people were celebrating hence neither easily found nor could afford any assistance. Otherwise was paranoid in case mob justice that could likely take place upon sporadic spread of such information especially to youths. PWl's sleep was later interrupted by PW2, KONDRADIN KOMBA, a sub village chairman who wanted to know if he was aware of what his neighbor the accused had done. PW1 answered in the negative. On that reply PW1 was invited to accompany PW2 to the accused's house where besides finding deceased's body loosely sitting on the chair and mouth open while one arm rested on another chair, was required to tell whether the deceased was still alive. Besides replying that there was no sign of life in the deceased's body, PW1 advised PW2 to get another person nearby for further confirmation. Hence PW3, ANDREAS NDAU was called and was on the same view as PW1 in respect of the status of the deceased. Unlike PW l's story, PW2 said was approached by the accused and BEN on 25/12/2010 at about 7.30 a.m. in attempt to help them in reconciliation with the deceased who allegedly stole accused's radio and phone. At accused's home PW2 asked the accused on the status of the deceased and mode of sitting at his house. On the contrary to PW1 and PW3 who answered that there was no sign of life in the deceased body the accused answered that the deceased was just very drunk. PW1 did not end up there as he not only further advised PW2 to pursue the village chairman one BALTAZAR KOMBA in respect of this matter, but also accompanied PW2 while BEN and the accused remained at the scene of crime. It followed therefore that PW5, GREGORIA LUOGA the Village Executive Officer (VEO) was also called together with other people to the scene of crime where they found the accused and BEN already absconded. PW5 in cooperation with the police led by PW4, No. E 8065 D/CPL AYOUB under instruction of his boss OC-CID, ABDALLAH MUSSA all the investigation and examination of the body took place and it was discovered that the deceased had been strangled. The autopsy report was made and a sketch map was drawn hence tendered and admitted by this court as Exhibits PI and P2 respectively. PW5 was interrogated by PW5 (VEO) who in turn retained him and was taken by the police to assist in investigation. The deceased body was handed over to village leaders for burial because the deceased was a visitor in that village. Sometime later PW5 was informed that the accused was coming during the night and leaving and that one day she tracked the accused who escaped upon smelling the rat that he was wanted. There was evidence that the accused had a wife and that she was not present on the day of incident, she was at Songea Region Hospital for maternity. However, she returned and lived in her parent's home in the very village. PW5 said that wife could not be interrogated as to the whereabouts of the accused since they expected she could not cooperate. PW1 was locked up after interrogation and was later bailed out under the condition of reporting on Mondays of each week for three months forthwith inquiring the whereabouts of the accused and BEN. Later, PW1 discovered through his younger brother Juma who reported to police that the accused was at Lipokela making charcoal and sold the same at Songea. This was in March, 2011 when PW5 was accordingly informed of the whereabouts of the accused at Lizaboni Songea. On 4.4.2011 the accused was seized and on 5/4/2011 PW5 went to police where he positively identified him. In his defence the accused ERASMO HAULE testified as DW1. He admitted that he lived at Lihale village and knew the deceased as his tribe mate. DW1 protested his innocence by saying that on 24/12/2010 was nursing his wife at Songea Regional Hospital until 3.00 p.m. when he received a phone call from his relative BEN who was living in their homestead and requested money for Christmas Festival. DW1 said he made up his mind as also advised by his wife to heed to BEN's request. That DW1 left and arrived at Lihale at 7.30 p.m. and found Ben together with PW1 and the deceased drinking local brew at his home. After greetings he told Ben that he had come to bring him money as requested and afterwards he went to church. When DW1 came from church he found no body at home but the door was open. DW1 said no sooner had he ate and slept than Ben knocked and he opened the door for him, entered and sat together in the sitting room. Ben inquired the whereabouts of the deceased and they together searched for him in the house without success. A second thought by Ben was that the deceased might have gone to Mbawala's farm hut. Then, DW1 sought the redio of Ben as he did not find it on the table. Ben said the radio might have been taken by the deceased and left to look for it. Unfortunately Ben returned without the radio instead he told DW1 that he found the deceased with the radio and lying down on the road near Buba's residence which is about 150 meters away and tried to woke him up but failed. That the deceased was also vomiting through nostril and mouth. Ben said had gone to Mbawala's to secure a motor cycle to carry the deceased but did not get it. DW1 further said that he went to seek assistance from PW1 and both got there and found Ben standing while the deceased was lying down. They sought refuge to Buba's but refused as he was afraid that the deceased may die into his hands. DW1 said PW1 persuaded him to take the deceased home as he was only drunk and not sick, but DW1 told him that he was preparing to leave the following morning. There at, DW1 said the deceased responded in their vernacular language that he should not abandon him as they were in foreign land. Thus, DW1 took the deceased home and asked Ben to boil some water for deceased and after he consumed some, he did not improve. DW1 went back to PW1 who advised him to report to sub village Chairman before he left for Songea. DW1 really saw PW2 and together went back to his house only to find the deceased outside sitting on the chair. Ben told them that he decided to bring him outside since he was vomiting. PW2 asked why the deceased was loose and DW1 replied that he was drunk. DW1 said he departed to Songea after PW2 allowed him to do so and he promised he could go to the village chairman so that Mbawala could be found for further information. DW1 finally said did not assault the deceased and could not know whether Ben assaulted him. At the close of the evidence from both sides the issue to decide is whether the prosecution has proved their case against the accused as require in law. As it has been clearly evident, there is no any prosecution witness who said they saw the accused assault or kill the deceased. Thus, the evidence against the accused person is purely circumstantial. The circumstantial evidence is pegged upon the following grounds as shown during the trial; 1. That■ PW1 was told by the deceased that the accused and Ben had assaulted him. 2. That, PW1 was asked by the accused to pursue the deceased on allegation o f stealing a radio. 3. That, PW2 was asked by the accused and Ben to reconcile them with the deceased who was alleged to have stolen a phone and radio. The principle of law in relation to circumstantial evidence has been settled. It says as was held in the case of ALLY BAKARI & PILI BAKARI V R [1992] TLR 10 by the Court of Appeal of Tanzania thus; 'Where the evidence against the accused is wholly circum stantial the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable about and must be clearly connected with the facts from which the inference is to be referred". Also, the same court said in the case of EVERINA NGATALA V R, CRIMINAL Appeal No. 11 of 2008 at Iringa, [unreported] that; "It is now a settle law that in order to ju stify conviction purely on circumstantial evidence on the inference o f guilt, the inculpatory facts must be incompatible with the innocence o f the accused and incapable o f explanation upon any other reasonable hypothesis than that o f his guilt". Therefore, the issue that follows here is whether the circumstantial evidence in this case has no any other explanation other than the guilt of the accused person and whether it has been proved to the standard required in law. As regards the first and second leg of circumstantial evidence this court has found PW l's evidence lacking credibility for various reasons. Firstly, PW1 who said was a leader in his area did not say he inquired from the accused and Ben as to whether the deceased's allegations of beatings were true. As a leader or even a normal citizen ought to have demanded explanation from the accused so as to weigh the deceased's allegations. Failure by PW1 to get other side of the story brings doubt in his evidence that the deceased told him that he had been assaulted by the accused and Ben. Secondly, if PW1 had pretended and convinced the deceased that he was the said Mbawala the deceased wanted to see before he left that place then how could PW1 believe that what he was told by the deceased was the truth without seeking clarification. This means that the deceased was not stable that is why he succumbed to believe that PW1 was Mbawala and thus his utterances needed proof from independent sources. No one else came to prove or tell PW1 that they saw the accused and Ben assaulting the deceased. Further, PW1 is discredited for his alleged decision to leave the deceased who had told him had been assaulted by the accused and Ben in their very hands. This act was inconsistent with reality and known norm. If PW1 was afraid to let the information spread to other people he could have provided the deceased with shelter at his home and pursue the matter the following morning, as he said people were in festival mood and feared mob justice. PWl's conduct shows that the deceased did not tell him that he was assaulted by the accused and Ben that is why he trusted them to leave him in their hands after he was taken to the accused's house. PW1 did not also say if he inquired the deceased about theft allegations and what was his reply. Also, PWl's dead silence when PW2 asked whether he knew what the accused had done shows that he was hiding something. One would have expected PW1 to open up to PW2 and tell him that he had really dealt with those three earlier at night. Instead, he silently followed PW2 to the accused's house and pretended as if he did not know the accused Ben and the deceased. This evidence is highly suspect. Generally, PWl's credibility is wanting and actually I had noted when he testified that he was jumpy and visibly was not telling the whole truth. Thus the first and second legs of circumstantial evidence fail. The third leg of circumstantial in relation to PW2 who said that was summoned by the accused and Ben to reconcile them with the deceased who was alleged to steal a phone and radio lacks corroboration. Firstly, this evidence differ with PW1 since it was said by him that the accused had told him that the deceased was accused of stealing a radio. However, PW2 did not say how and whether there was any reconciliation since upon reaching at the accused's home and upon inquiry about the deceased he was told that he was drunk. He did not inquire further about what he had gone to do and did not inquire about the deceased's drunkeness and how the same happened. Actually, PW2's evidence is just hanging and does not prove the allegation about the accused involvement i assault or killing of the deceased or radio theft, thus, this piece of ircumstantial evidence also fails. Lastly on circumstantial evidence is the allegation that since the accused absconded from the village then he was a guilty party. The accused's account in relation to the deceased is the same as PW1 and PW2 save for the allegation of theft which evidence has already been found suspect. Thus, the accused's account that he took leave from the village leaders before he went to Songea to nurse his pregnant wife has cast doubt on his guilt. PW2 a sub-village chairman, PW3 a neighbor and PW5, a village executive officer both acknowledged that the accused's wife was at Songea Hospital during the material time. The allegation that the accused absconded from the village is inconsistent with the conduct of the village leaders. As to why the accused's wife was not pursued after she returned to the village to reveal the whereabouts' of her husband is highly questionable. At first PW5 said she did not pursue the accused's wife since she lived far but later changed and said it was because she did not expect to get any useful information from her since was a wife. This is inconsistent with reality. Ordinarily, the accused's wife could have been pursued in order to lead to the whereabouts of his husband. Even if she could not have told the truth but at least one would have fulfilled their obligation. This omission shows that the accused was not hunted down at all since he had his leaders blessings when he left the village. As rightly opined by one of the assessors the accused may have not returned to his village after he discovered that someone he knew died in his house and PW1 was suspected whilst Ben had ran away. He may not necessarily had absconded since he was a guilty party. Also, in this case the stealing of the radio may have been relevant fact but it lacked proof. This is also because even the accused had mentioned that Ben was looking for his radio and suspected the deceased to have taken it. However, even if there was the issue of the radio it has not been proved who was the complainant between the accused and Ben. And it has not been proved whether it was the accused or Ben who may have assaulted the deceased. Further, as rightly contended by the defence, the Doctor's report that the deceased died of suffocation is ambiguous. This is so because suffocation is lack of fresh air which may lead to death. How the deceased was suffocated it has not been explained in the report. And while the report shows that the deceased died of suffocation PW5 said the doctor told them that the deceased was strangled. Therefore, in the first place the defence ought to have sought clarification on the cause of death and they should not have allowed the postmortem Examination Report (Exhibit P I) to be tendered and admitted in evidence at the very initial stage of the case. Conclusively, I agree with the two assessors that the prosecution has failed to prove the case against the accused person beyond reasonable doubt as to the requirement of the law. Thus, the accused is found not guilty of the offence of Murder c/s 196 & 197 of the Penal Code Cap. 16 Vol. 1 of the Laws, R.E. 2002 and he is hereby acquitted. Order accordingly. DELIVERED AT MBINGA 16/9/2013 Accused: Present/Mr. Waryuba learned Advocate. For Republic: Ms. Juntwa learned State Attorney, c/c: Ms. Harriet Court: Assessors are thanked and discharged. /A$V? ?.* • ARIKO ftx\ H V,* JUDGE ”4.s. v 1 . ifc« v ♦•.«•*- r. /, 16/9/2013