republic vs khalid langson 2014 tzhc 2104 12 december 2014

IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL SESSION CASE NO. 18 OF 2012 REPUBLIC...................................... ................. APPELLANT VERSUS KHALID LANGSON....................................... RESPONDENT , i JUDGMENT Date of Last order: 08/12/2014 Date of Judgment: 12/12/2014 A. F. NGWALA, J. $ The accused person Khalid s/o Langson stands charged with the offence of Murder contrary to Section 196 of the Penal Code, Cap. 16. R. E. 2002. It is alleged that on 29th November, 2011 at about 07:00am, at Shonga Village within Chunya District, in Mbeya Region, the accused person killed one Atirio s/o Kalibika. The accused person pleaded not guilty to the charge. In a bid to prove their case against him, the prosecution side called a total of seven witnesses. The defence side called two witnesses only. The Republic w as' represented by Mr. Basil Namkambe Learned State Attorney who was assisted by Ms. Irene, Ms. Tengeneza and Ms. Catherine, Learned State Attorneys. The accused person was represented by Mr. Kyando Learned Counsel. The brief material facts established by the prosecution side are summarized in the order of the testimony of witnesses in court. PWI Morris Mdoe, an Assistant Medical Officer stationed at Chunya District Hospital, testified in court that on 30th November, 2C11, while at the Hospital, the District Medical' Officer In-charge assigned him with a duty to go and conduct a post mortem examination on a body which was found buried at a hole in Shoga Village, Tukuyu harmlet in Chunya District. He took his postmortem kit and left with the Policemen up to the scene where they found the dead body. The body was taken out of the hole. After examining it he prepared the postmortem examination report which was tendered and admitted in court as exhibit P2 . It was observed by PWI in that exhibit P2 that the death had occurred due to suffocation and severe blood loss plus a cut injury on the occipital area. PW2 Amasi Ngogo; a villager and chairman of Tukuyu harmlet in Shoga Village, stated that on 29th November, 2011. PW3 Sophia Kilibika, the wife of the deceased went and reported at his home at about 05:00 p.m that her husband had not returned back home after he had left home very early in the morning. On that day the deceased was not found. On the next day, at about 6:00 a.m. PW2 rang a bell to call ail the villagers to conduct a search for that missing person. The village mount search found the body of the missing person in the excavated hole whose excavated sand had been replaced back to where it y/as dug. Then, they had . 2 to dig that hole again in order to find what was in the said unusual excavated hole. PW2 confirmed before this court that he used to see the accused person in the village and that he was living in the $ house of Jumanne Machimu. PW2 testified that:- “Marehemu aliondoka na wale waliokuwa wanakaa kwa Jumanne waliongozana na marehemu mara ya mwisho.” PW3, Sophia Kalibika, the deceased’s wife stated in court that, on 29th November, 2011 while at home with her husband, PW4, Israel Banana, commonly known as Komrade, came at theirs early in the morning. He called her husband. When asked by PW3 why he was looking for her husband at that time, PW4 answered that, "kuna watu wanataka wakapimiwe mchanga” - meaning that there were people who wanted their sand examined; they were at Jumanne’s House. According to PW3 the said people were named as Khalid Langson, the accused and others whom she did not know their names. PW3 testified further that the accused person had been living and residing at Jumanne’s house for not less than two weeks before the death of her husband. PW3 had identified the accused person at the identification parade conducted by the police. PW4, Israel Banana's testimony was to the effect that, on the 29th day of November, 2011, the accused person was carrying a “curlew” or a pick axe commonly known as a “sululu” (sururu) when he left with the deceased. The deceased was requested by the accused to measure and detect if their sand had gold because he had a metal detector. PW4 added further that on 13th December, 2011 he was r called at Chunya Police Station where he managed .to identify Khalid Langson, the accused person, as the person, with two ethers who were last seen with the deceased on 29th day of November, 2011 when he was alive. The deceased was never seen again until the next day when they found his dead body of the said Atilio Kalibika in the excavated hole. PW5. W. P. 6424 PC. Theresia, a Criminal Investigating Officer of Chunya Police Station, testified that they had received information about the person who was killed and buried at Xiton,goji cha Tukuyu, Shoga Village within Chunya District. They went to the scene with a team of other Police Officers were they found a lot of people who had rounded the buried excavated hole. They unearthed the body and found also a “sululu”. After the postmortem was conducted by PWI, the relatives of the deceased were allowed to take the body for funeral arrangements. PW5 went on with investigation. She received information from informers that the accused person who had committed the offence had fled the village to Mbalizi area in Mbeya District. Acting on the said information PW5 and PW6 G. 2361 DC. Shaban managed to apprehend the suspect at a Grocery in Mbalizi. The accused person was arrested and taken to the Police Station at Mbeya and later transferred to Chunya Police Station. PW6, tendered the “sululu” that was found in the said excavated hole, with the deceased body. This was admitted as exhibit P3. He 4 also tendered a sum of Tshs.690,000/ = which was admitted as exhibit P4. This money was found with the accused person when the accused' person was searched by PW6 at the Charge Room Office. PW7, Johannes Bitegeko, the Assistant Inspector of Police stated that, he was assigned with the duty to conduct and prepare the identification parade at Chunya Police Station. That parade was conducted twice. PW3 and PW4 managed to identify the accused person; namely Khalid Langson. PW7 tendered the identification Parade Register dated 13th December, 2011 that was admitted as exhibit P5. When the prosecution side had closed its case the court found that a primafacie case had been established against the accused person under the provisions of Section 231 of the Criminal Procedure Act CAP. 20 R. E. 2002. The accused person was informed of his rights under the ambits of Section 293 of the Criminal Procedure Act, CAP.20 R. E. 2002. The accused person opted to testify under Oath. The accused person also called one witness PW2 Safari Juma Kasokola. In his sworn defence, DWI, Khalid Langson testified that he has been throughout his life since his childhood living at Mbalizi. His main occupation is selling “illegal petroleum product”, as he termed 0 “shughuli ya Iw.uza mafuta ya m.agendo”. He denied to have committed the alleged offence at Chunya. He insisted that he has never been out of Mbalizi, and that he has never been at Chunya. He was taken there by the Police after being arrested. He denied to have ever involved himself in any business concerning mines or minerals. DWI further 'stated that he has been wrongly and falsely implicated with this murder case because the Policemen demanded him to give them Tshs.500,000/^ but he refused. So the Policemen at the Central Police Station asked him to give them the number of a relative who could assist him in ■that case only to find that the Policemen had taken his money - the said exhibit P4; which was kept in the custody of DW2 Safari Juma Kasokola. DWI, Khalid Langson complained that the Identification Parade that was conducted twice for PW3 Sophia Kalibika and PW4 Israel Banana was conducted maliciously. These two witnesses were just kept in the open and that he saw them being shown and instructed to point fingers at him. DWI, protested on the way the Identification Parade was conducted. He stated the people who came at the first identification Parade were the sarne people who came after the end of identification parade on 05th December, 201*1. They came and peeped in the lockup where he was. They said “poleni*. After five (5) minutes he was taken out and he was told “jiandae kiva parade la gwaride la utambulisho” • . DWI, Khalid Langson, had put the defence of ALIBI, to the effect . . V . *' ' ■ » «.r > » that on the material date; he was in Mbalizi and’not in Chunya. DW2 Safari Juma Kasokola, a resident of Mbalizi M,beya,- testified on Oath that, DWI (the accused) is his neighbour at Mbalizi Mbeya. The Police called and told him that, the accused was arrested. DW2 testified that, he never knew that, the accused had moved out of Mbalizi. According to him, the accused had never been out of Mbalizi for more than one month. It is the duty of this court now to. determine, upon the foregoing evidence, like in any other criminal cases falling under homicide, that the prosecution has a duty to prove the charge beyond all reasonable doubt. There are three issues which must be proved by the evidence adduced by the prosecution witnesses. One, whether the late Atirio Kalibika was killed. Two, whether the accused person killed the deceased, and if so, whether the killing was with malice aforethought. There is no dispute that, the deceased died of unnatural death. The Postmortem Examination Report,- Exhibit P2 showed that, the cause of the deceased death was due to suffocation and severe blood loss. ■i ■ After, summing up to the two gentlemen assessors, they unanirnousfy returned the verdict of not guilty. They stated that, they were convinced of the defence adduced by the accused person. They were of the opinion that, the prosecution evidence has failed to satisfy the standard of proof beyond reasonable doubt. The evidence adduced in court, by the prosecution side is purely 4 ' -' '> based on circumstantial evidence.. . The law on the circumstantial evidence is well settled. A court of law will not ground a conviction solely based on circumstantial evidence unless such evidence irresistibly lead to the fact that the 7 accused is the person who committed the offence charged. This was held in the case of SODA BUSIGA@SUMU YA MAMBA SHIJA V. REPUBLIC, CR. APP. NO. 53 of 2012 (CAT) (Unreported). *r “The law on circumstantial evidence is well established in our jurisprudence. Fifty years ago, it was aptly observed that this evidence o f surrounding circumstances is very often the best o f evidence..... which by undersigned is capable o f proving a proposition with the accuracy o f mathematics” According to PW3 Sophia Kalibika, the murder was committed by the accused that came together with his friend to visit the deceased premises. After that, her husband who is now the deceased passed at home with Khalid Langson. the accused and the two others. She identified the accused because she knew him before as he lived in the neighborhood. PW4 Israel Banana, while on his way back from the shamba, he saw the deceased with the two young men, he identified the accused because is the person who had asked him to call the deceased. He insisted that the accused person was carrying a “sululu” but he could not identify the other one. That was the totality of the evidence of the prosecution witnesses who eye witnessed the accused before and after the murder. The accused person has put up the defence of ALIBI. He has argued that he was at Mbalizi and he could not have participated in the murder on 29th November, 2011. DW2 Safari Juma Kasokolo, has testified to corroborate the accused defence of ALIBI. The accused person has however failed to furnish any documentary evidence to support his defence of ALIBI. The accused raised this defence of ALIBI without NOTICE as required under Section 194 (4) and (5) of the Criminal Procedure Act, Cap 20. R. E. 2002. Section 194 (6) of the Criminal Procedure Act provides for the consequences of the failure to do so in the following language:- # “I f the accused raises a defence o f alibi without having first furnished the particulars o f the alibi to the court or to the prosecution pursuant to this section, the court may in its discretion, accord no weight o f any kind, to the defence (emphasis supplied). ” As correct^ submitted by the learned state attorney; the court is entitled either to reject such defence or to accept it. In the circumstances of this case as the accused person has not provided the reasons for his .failure to do so, I here by reject the defence of ALIBI as raised by the accused person for failure to comply with the .. mandatory provision of the la w. It is in the evidence of PW6 G.2361, DC Shabani and PW7 Assistant Inspector Johannes that, the team arrived at the scene of crime, and found the body of deceased that was half buried in the excavated hole. The body was unearthed together with a “sululu” which was also found in that hole. The wound on the deceased 9 body, as revealed in the Post Mortem Report, is a proof that, the wound was inflicted by someone. In the present case, there is no direct evidence to show that the accused was involved in the commission of murder, but the circumstantial evidence tells the picture. The prosecution stands upon the following folds That, the accused person with two unknown person were the last persons to be seen with the deceased before he met his death. Secondly, the accused person carried a "sululu”. The “sululu” was found at the place where the deceased body was found. Thirdly, the accused and his friends disappeared after the deceased went missing and upon being found dead. It is therefore obvious and common knowledge that, the accused person inflicted the injury to the deceased. The nature of his injury in connection to the said facts is an indication of “malice aforethought”. Since, that, malice aforethought is not proved by direct evidence, as the same is a mental element, this has been proved by the circumstantial evidence that has been established by the prosecution side. For this reason, the accused can not avoid criminal liability under the circumstances surrounding this case. In the case of NATHAEL ALPHONCE MAPUNDA and ANOTHER V. REPUBLIC [2006] TLR, 395 it was held:- 10 “Where circumstantial evidence is relied on, the principle has alvjays been that facts from which an inference o f guilt is drawn must be proved beyond reasonable'doubt”. The testimony of PW3 Sophia KaJibika, has established that, the accused and his friend visited the deceased house, looking for a metal detector. The deceased left with them only to be found and discovered dead. The evidence of PW4 Israel Banana too has established that, the deceased was taken’ to the place where his body was found at the “claim of Maulid” by the accused and his friends, so that they could have their sand examined. The sequence of events on record does, in my opinion, connect the accused and the death of deceased. The chain is not broken and it leads to an inference that the deceased was killed by the accused person. The accused person was the last person to be seen with the deceased while he was alive. The accused disappeared after the death of the deceased. In the light of all that, no reasonable court would have failed to find the accused guilty. As Georges C. J, as he then was, put it in R. V. DOURADO AND KIKAMBURO (DSM H.C. CRIMINAL SESSION NO. 1£2 OF 1969). “It is enough if the court feels certain about an accused person's guilt. The lavj does not demand the establishment o f absolute certainty." 11 On the totality of the prosecution evidence, there is no doubt that it creates a high degree of compatibility between the guilt and innocence of the accused, which can not in criminal law ground a conviction. In SARKAR ON EVIDENCE, fifteenth Edition, Reprint 2004, at Page 66 it is written, I quote:- “That all the incriminating facts and circumstances must be incompatible with the innocence. o f the accused or the guilty o f any other person and incapable o f explanation upon any other hypothesis than that o f his guilt, otherwise the accused must be given the benefit o f d oubt" • There is no problem about that, that has to be emphasized, however, is that the alternative possibilit}^ must not be fanciful. It must be plausible. Doubt about the guilt of an accused person can count only if such doubt is reasonable. The circumstance must also be looked at, and considered, in their totality. As held in the case of CHANDRAKANT JOSHUBHAI PATEL V, REPUBLIC, CR. ,\PP. NO. 13 OF 1998 (Unreported) *Remote possibilities in favour o f the accused cannot be allowed to benefit him. I f we may add, fanciful possibilities are limitless, and it would be disastrous fo r the administration o f criminal justice if they were permitted to displace solid evidence or dislodge irresistible inferences. ” 12 The sequence of events, until the body of deceased was discovered gives no other reasonable hypothesis than that; it was the accused person who maliciously caused the.deceased to die. As already stated, the evidence adduced by the prosecution is irresistibly pointing a finger to the accused person and not to any one else. For the foregoing reasons I do hereby differ with the unanimous opinion of the two gentlemen assessors that the accused person is not guilty of murder. Their ground that there is no specific evidence adduced by the prosecution side to connect the accused person with this offence is in my view not valid. It is my settled view that, the circumstantial evidence adduced by the prosecution side is sufficient to prove the charge of murder against the accused person beyond reasonable doubt. Accordingly the accused person is found guilty of murder. He is convicted of Murder c/'s 196 of the Penal Code - CAP. 16 R.E. 2002. ■ A. F. Ngwala Judge 12/12/2014 i.3 Date: 12/12/2014 Coram: Hon. A. F. Ngwala, J. For the Republic Miss Catherine/Tengeneza S/A For the Accused Mr. James Kyando Adv, Accused Present B/S Gibson English into Kiswahili vice versa. ASSESSORS 1. Yeo Mwanyanje 2. Ekson Nazareti COURT: Judgment is delivered in court in the presence of the accused, his counsel and the State Attorney mentioned above representing the Republic. MITIGATION - NIL MS. Catherine: Madame Judge in proceedings of this nature if the accused person is found guilty, it is a practice that there is no mitigation. 14 COURT: OK. SENTENCE: The accused person has been convicted of murder. As the court’s hands are tied to the statutory requirements of law to impose the sentence for this offence, that is death by hanging in accordance with the provisions of that Section. Accordingly the accused person is sentenced to suffer death by hanging. A. F. Ngwala Judge 12/12/2014 Court: Right of Appeal to the Court of Appeal of Tanzania explained. A. F. Ngwala Judge 12/12/2014 15