republic vs john eavery mwivimba 2013 tzhc 2061 20 september 2013

IN THE HIGH COURT OF TANZANIA AT NJOMBE ORIGINAL JURISDICTION (Iringa Registry) CRIMINAL SESSION CASE NO. 18 OF 2012 THE REPUBLIC VERSUS JOHN S/O EXAVERY @ MWIVIMBA (Date of last Order 16.9.2013 Date of Ruling 20.9.2013) RULING MADAM SHANGALI, J . The accused person in this case, namely JOHN S/O EXAVERY @ MWIVIMBA has been charged with the offence of Murder contrary to Section 196 of the Penal Code, Cap. 16 R.E. 2002. It is alleged that on or about 20th day of April, 2010 at Itipingi village within Njombe District did murder one OSCAR S/O ILOMO. The accused person has categorically denied the charge laid against him. During the preliminary ' hearing conducted on 5th December, 2012 only few matters were agreed on- the memorandum of matters not 'in dispute namely, the name of the accused, the offence of murder preferred against the accused, his arrest arid physical address. The rest of the facts were totally denied and the prosecution was called upon to prove the same beyond all reasonable doubt. The trial of the case commenced on 12th September, 2013 and the prosecution side led by Mr. Francis Rogers, learned State Attorney managed to call five prosecution witnesses to establish and prove their case. The sixth additional prosecution witness Vicent Laitedi Ilomo was disqualified for being present in court when other prosecution witnesses were adducing evidence. After disqualification of the sixth prosecution witness, the learned State Attorney closed the prosecution case. Mr. Rwezaura Kaijage, learned advocate for the defence requested the court to be allowed to make submission under Section 293 (1) of the criminal Procedure Act, 1985 to establish that there was no sufficient evidence against the accused person to warrant him to make his defence on the alleged offence or any other offence as provided under the said section. In other words a submission of no case to answer. The application was granted and all counsels were allowed to address the court hence this ruling. To put the matter abreast let me albeit briefly recapitulate the available prosecution evidence starting with PW .l Athanas Erasto Kibiki, a young man claimed to be 19 years of age and a close friend of the deceased. He testified to the effect that he was living with his brother very close to the place where his close friend Oscar Ilomo @ Fosca was operating his small retail shop. On 20/4/2010 at 18.00 hours he visited the deceased Oscar Ilomo at his small shop for daily gossip and chat. That, in the cause of the chat, one John Mwivimba, the accused arrived and called the deceased aside for a private talk. PW. 1 testified that, that talk lasted for about 15 minutes but he could not overhear their conversation. PW. 1 testified that later the accused went away and the deceased Oscar returned to join him. That PW .l inquired from Oscar on what he was talking about with the accused and the deceased (Oscar) replied that there was a “deaf’. PW .l also stated that he is familiar with the accused John Mwivimba because he was also a petty businessman operating his small retail shop close to that of Oscar Ilomo. PW .l testified further that at 20.00 hours the deceased closed his shop and told him that he was going to Itipingi village. At the same time and having locked his shop the deceased handled his keys to PW .l asking him to keep them and wait for him. Then the deceased headed to the main road on foot, a distance of about 200 metres. PW. 1 stated that he stayed there for a while and later he saw the accused person carrying an empty sulphate bag heading to the main road on foot. He did not talk to him. PW. 1 kept on waiting for the 3 deceased but at about 20.30 hours he saw a motorcycle mechanics called Juma and asked him whether he had seen Oscar Ilomo. PW. 1 claimed that the said Juma replied that he saw Oscar Ilomo in the company of the accused boarding a motor vehicle. PW. 1 claimed that he stayed at the shop till 22.00 hours without seeing the deceased and that there was a time when the deceased Oscar Ilomo sent him a message through his mobile phone asking for some money (tafadhali niongezee fedha) and he sent him TShs.250.00. He testified that when he tried to call Oscar Ilomo through his phone he was not able to get him. As a result he surrendered home to sleep. In the next morning PW. 1 went to the shop but there was no sign of Oscar Ilomo. Later one Vi cent Ilomo, the brother of Oscar Ilomo arrived and PW .l informed him that Oscar Ilomo had gone away yesterday promising to be back. PW. 1 stated that they waited up to 8.00 hours and decided to report the matter at Makambako police post. PW. 1 testified to the effect that in the effort of tracing the deceased they tried to communicate with several relatives of the deceased through the mobile phones but the response proved futile. PW .l stated that at the Police Station they were advised to proceed with search for three days. PW. 1 testified that within three searching days he received a message from the deceased’s telephone card directing him to handle the shop keys to his brother Vicent Ilomo. He stated that on 27/4/2010 he was informed by Vicent Ilomo that there was a dead body of a man found at Itipingi village on 25/4/2010. PW .l stated that on 28/4/2010 they decided to report the matter at Police Station and later it was discovered to be the body of Oscar Ilomo. PW.2 Adriano Ntwihu was the village Chairman of Itipingi. He testified to the effect that on 20/4/2010 he was informed by the Chairman of Mjimwema hamlet one Ayubu Mgeni that during the night there was a motor vehicle taxi and its driver which was surrounded and arrested by the villagers for being parked aimlessly within the village. The villagers had suspected the motor vehicle to have been in crime expeditions. PW.2 proceeded to the area and found the driver had been arrested and kept in the village office. That on being interrogated the driver disclosed his name as Mbilinyi and stated that he was hired from Makambako township by three people who told him that they were following their dues at Itipingi village. PW.2 testified that he then proceeded to where the taxi was surrounded by armed villagers and found one of the car's window partly broken. The motor vehicle was starlet taxi Registration No. T 352 ATJ. PW.2 stated that the villagers told him how the driver and the taxi were impounded and that the window was broken by villagers in an attempt to apprehend the driver when he attempted to escape with his vehicle. PW.2 stated further that he calmed down the villagers and told them that the driver was only hired by three people. Then he (PW.2) selected few youngmen to guard the motor vehicle at the spot till morning while waiting for the return of the alleged people who hired it. PW.2 stated that in the following morning he proceeded to the scene with the taxi driver and other village leaders and found the motor vehicle under the guard of the village youngmen. PW.2 decided to release the driver and his taxi while remaining with his mobile telephone numbers and the .motor vehicle registration numbers. PW.2 testified further that after three days he received a telephone call from unknown person informing him that there was a “mzigo wa mitumba” at Kivavi area within the village. He stated that, he proceeded to Kivavi and searched for the alleged luggage but in vain. Then on 24/4/2010 at 08.00 hours while at Makambako market he received another telephone call from unknown person who revealed to him that the said “mzigo wa mitumba” was actually a dead body of a human being. PW.2 related that information to the Village Executive Officer directing him to revisit the area and search for the .alleged dead body. PW.2 stated that when he returned back from Makambako market he found Village Executive Officer still searching for the dead body and on 25/4/2010 he was informed by Village Executive Officer that they have found a decomposed dead body of unknown person covered with bushes at the field close to the shamba of Exavery Mwivimba, 6 th e fa th e r o f th e a ccu sed . PW.2 stated that the police were informed and arrived at the scene together with a doctor on the same date. After police investigations the villagers were allowed to bury that unidentified body at the same place. PW.2 stated that latef on 28/4/2010 one Godfrey Lyampinga called him through the phone and directed him to look for one John Mwivimba, the accused who was alleged to have left with the person who was killed. PW.2 testified that he proceeded to the house of the accused’s parents but could not find the accused. The . i accused was arrested later around 13.00 hours. PW.3 Penzia Haule was an assistant medical officer who testified to the effect that on 25/4/2010 he accompanied the police officers to Itipingi village where she performed postmortem examination on the decomposed body of an unidentified person found lying in a farm naked with underpants only. PW.3 stated that the polLce and villagers could not identify the body. In her examination she discovered that the body had several head and body injuries and there was a lot of clotted blood on the ground. She opined that the death was due to severe haemorrhage. She was able to produce the Postmortem Examination Report which was admitted and marked Exhibit P. 1. PW.4 was Mrs. Muhagama, the Primary Court Magistrate 7 who recorded the Extra Judicial Statement of the accused. She stated that on 3/5/2010 the accused was brought before her by one police officer called Hamisi from Makambako Police Station. That, the police officer introduced the accused to her and that the accused was facing a murder charge and that he was ready to confess. PW.4 stated that she followed all procedures and eventually recorded the Extra Juridical Statement of the accused in which he confessed to have been in the company of deceased and then proceeded to bus stand where they hired a taxi and then picked one Juma Vincent Mgaya and proceeded to Itipingi village to meet Aidan Lupenza to settle a family dispute between Aidan Lupenza and the deceased. PW.4 stated that the accused confessed that suddenly he saw Aidan Lupenza attacking the deceased to death. PW.4 was able to produce the said Extra Judicial Statement before the court and marked Exhibit P.2. PW.5 E. 8390 Cpl. Hamisi was the investigator of this case. He testified to the effect that on 24/4/2010 he was assigned to conduct investigation in relation to the unidentified dead body found at Itipingi village. They proceeded to the scene with Dr. Penzia and OC-CID. They were led to the scene by the villagers and found the dead body, naked with several wounds. They inspected and searched the area while Dr. Penzia conducted a postmortem examination on that body. PW.5- stated that he discovered the presence of . pulling marks oil the^ ground which indicated that the murder was done at a certain maize farm and the body was pulled to where it was laid, a distance of about 500 metres. PW.5 stated that he was able to prepare and draw a sketch map of the scene of crime which he produced before the court and marked Exhibit P.3. He testified that having completed investigation at that stage, they ordered the villagers to bury the decomposed dead body at the same place. PW.5 testified further that in the course of investigation he was introduced to one Athanas Erasto Kibiki (PW.l) who was doing business with the deceased, by the relatives of the deceased. That the said Athanas Kibiki narrated to him how the deceased Oscar Ilomo got disappeared on 20/4/2010 at about 20.00 hours when he went to Itipingi with John Mwivimba, the accused. PW.5 stated that when the accused was arrested on 28/4/2010 he was first questioned by Inspector Mwadamila and revealed to him that he went to Itipingi with the deceased in order to collect money from somebody but later decided to kill the deceased because he was having love affairs with the wife of one Lupenza. The witness testified that having got that confession they proceeded again to the scene of crime with the relatives of the deceased and decided to exhume the dead body for identification purposes. Upon the exhumation the relatives of the deceased were able to identify the dead body as that of Oscar Ilomo. The body was reburied at-the same place. • 9 PW.5 stated that in his investigation he arrested three suspects namely, the accused, John Mwivimba, Juma Vicent Mgaya and Aidan Meshak Lupenza. He stated that he was also able to arrest the taxi driver, Mbilinyi and recorded his statement but later he was released and vanished. He admitted that no identification parade was conducted to identify the suspects. In his extensive submission, Mr. Rwezaura, learned advocate for the defence submitted to the effect that among the five prosecution witnesses there is no single witness whose evidence directly implicate or connects the accused person with the alleged murder. That, PW. 1 stated categorically that the accused and deceased left the business area at different times although the span was short. Then he (PW.l) claimed that he saw them boarding a motor vehicle but later clarified by saying that he was told by one Juma Vicent Mgaya a motor vehicle mechanics how the accused and deceased boarded a taxi together at around 20.00 hours. Mr. Rwezaura contended that the evidence of PW. 1 is highly questionable because it was decorated with hearsay evidence and secondly it was not possible for PW. 1 to see the accused and deceased boarding a taxi or motor vehicle at a distance of about 200 metres in that night. Mr. Rwezaura argued that if it was Juma Vicent Mgaya who revealed information to PW. 1, then the prosecution was supposed to call him as a witness after being dropped as an accused person. The learned counsel submitted that the 10 evidence of PW .l is far from establishing that the accused and deceased sailed together on the same mission to Iitipingi village. Regarding to the evidence of PW.2, Mr. Rwezaura submitted to the effect that it is surprising that having got all information and having questioned both the driver of the impounded taxi and the villagers, PW.2, the village Chairman failed to order for the hot pursuit of the three people who were said to have hired that taxi and proceeded to collect their dues in unknown place. Mr. Rwezaura contended that, instead PW.2 went back home leaving the taxi in the hands of village guards and the driver in the village lock-up. The defence counsel submitted that on the following morning PW.2 decided to release the taxi driver and his car and no attempt was made to make a search of the alleged taxi hirers. He submitted that the conducts of PW.2 was not out of negligency but rather because he knew what the villagers who apprehended the taxi driver and his car had done to the deceased in that night. Mr. Rwezaura submitted further that even after getting information from unknown people about the existence of a certain “Mzigo” which was later revealed as a dead body, PW.2 did not report the matter at police station. Instead he directed his Village Executive Officer to make a follow-up. The counsel argued that whether the follow-up was made or not remains to be the concern of the prosecution but according to what PW.2 11 narrated in court nothing was recovered on that day until 25th April, 2010 when the Village Executive Officer got information from some villagers who led him to the proper location where the corpse lied. Mr. Rwezaura contended that even the evidence on how the corpse was found is pecked on hearsay because the Village Executive Officer and those who found the body were not brought in court to witness their knowledge. He insisted that the circumstances of this case lead to believe that it is only the village Chairman, PW.2 who exactly knows what befallen the deceased in his village but the prosecution side has totally failed to use him usefully before building their case. On the evidence of PW.3, Mr. Rwezaura submitted that there is nothing in that testimony to connect the accused with the alleged offence. That, PW.3’s testimony confirms that deceased died out of severe haemorrhage caused by impact with sharp and blunt objects. That the postmortem examination was conducted on 25.4.2010. Mr. Rwezaura submitted further that the Extra-judicial Statement of the accused was not recorded in accordance to the law. In the first place, he argued, the defence side did not object it to its admission because it required it before the court in order to pinpoint its short comings. He submitted to the effect that he is of the confirmed view that at the time of recording the Extra-judicial Statement on 3.5.2010 either the Justice of the peace or the accused person should have been 12 under serious stress. He contended that the accused was apprehended on 28.4.2010 and kept in custody for 5 days, only to be placed before the Justice of peace on 3.5.2010. Mr. Rwezaura submitted that the act of keeping a murder suspect behind the bar for five days without enabling him to make his Extra-judicial Statement is tantamount to serious stressing him or maliciously making him forget much of the information he had while he was free. On the second peg Mr. Rwezaura submitted to the effect that even the Justice of peace was highly stressed at the time of writing the actual statement which has only 116 words including the conjunctions and time indications. The learned advocate expressed his surprises on how come the Justice of peace recorded a statement that does not indicate the date, month and year which the incident took place. He argued that such a defective extra judicial statement if acted upon might mislead the court to convict an innocent person. Mr. Rwezaura further submitted that he is of a settled opinion that no case can be made against the accused basing on the Extra-judicial Statement because the statement implicated one Aidan Lupenza to have committed the offence in the presence of Juma Mgaya and accused. Nevertheless, the Republic, for reasons best to them, they apprehended Aidan and Juma and subsequently released them.' That, their statements were not submitted before the court and the two