republic vs chacha so ghati mwita another 2014 tzhc 2105 15 december 2014

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MWANZA AT TARIME ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 34 OF 2012 THE REPUBLIC VERSUS 1. CHACHA S/O GHATI MWITA 2. THOMAS S/O SALIMA MARWA @ KYANGWI SALIMA JUDGEMENT SUMARI, J. A woman, Veronica d/o Bernard who was working as an attendant at Twiga bar and guest house, met violent death during the night of 25th October, 2008 around 22:00hrs at Twiga bar and guest house in Tarime District. It is alleged by the prosecution side that Chacha s/o Ghati Mwita and Thomas s/o Salima@ Kyangwi Salima, who personated themselves as police officers armed with machete and gun murdered the deceased person. That apart from shortening the life of Veronica d/o Bernard, the accused persons stole radio cassette; one phone make Nokia and some amount of money. So, they were arrested, jointly charged and prosecuted for committing an offence of murder contrary to Section 196 of the Penai . Code, Cap 16 (r !e .2002> To prove their case, the prosecution side lead by Mr. Kainunura, learned State Attorney summoned a number of three (3) witnesses whose evidence can conveniently be summarized as follows:- Pw l Silivia Munanka Matindu, testified that she is now a Mama ntilie doing her business in Mwanza. That prior to that she was working as a bar attendant at Twiga bar and guest house in Tarime. That on the fateful day, that is, on 25/10/2008 she was on duty at her working station with Magdalena who was their bar Manager and Veronica (deceased) who was her fellow bar attendant. It was her evidence that, around 22:00hrs when she was watching wresting shov* in the television with Magdalena and Marwa Makuli they heard a knock at the gate. The watchman one, Omega went to open the same. Magdalena instructed Pw l to go and attend them. Believing that the three persons were customers Pw l went to attend them but they told her they want to see Mama Guest. That she identified two out of the three persons as Thomas Salima and Chacha Ghati Mwita but the third person was not familiar to her. Pw l, intensified that Thomas Salima and Chacha Ghati Mwita were very familiar to her. That Thomas Salima severally used to buy banana from her home at Ntagacha Village where she was married to one, Ngusiro Wambura Chembera. That with the aid of moonlight and two electricity tube lights which were on, one at the gate at the car park and another on the top of the door entry to the guest house she managed to identify Thomas Salima who was wearing a jacket and a cap but did not cover his face. That Chacha Ghati Mwita was also very familiar to Pw l, as she used to see him gambling or playing" kamari" at Borega A at the market area. That on Sunday's Pw l used to go to sell tomatoes at the market where she used to see Chacha Ghati Mwita playing "kamari". On the fateful day Chacha Ghati Mwita did not wear a cap but he had a jacket. She then went to call Mama Guest" Magdalena" and continued to watch T.V. That as the manager and the two accused persons went through the guest the third person she did not know, was waiting while squatting. That this man asked Pw l "dada nitoroke". P w l inquired from that person what was *wrong but that man told him that he was arrested by ♦ 0 "askaris". Pw l further stated that later she saw Magdalena, Veronica Bernard, Emmanuel who was the boyfriend of Veronica accompanied by the two accused persons coming out from the guest house heading to the bar where Pw l was. That Chacha Ghati had a gun and Thomas Salima had a stick (lifimbo). That all of them were put under arrest waiting to be taken to police by the said persons, but Magdalena told them to wait, so that a ten cell leader be summoned as she could not leave the guest without any attendant. She explained that later her manager, Magdalena vanished in a way she could not know. That Thomas told Chacha Ghati who had a gun in kurya, that he did not want to see the faces of these women. Chacha told them, "hivyo hivyo mlivyo mmekufa". The aftermath of all that was Chacha Ghati fired to Veronica Bernard, the bullet entered in her chest. That Pw l also was fired in her left arm and left leg. Emmanuel also was fired but Marwa Maakili@Kima entered gnder the sofa. Having shoot them, 4 Chacha Ghati entered in the counter of the bar and took some money, radio and mobile phone. With agony and burning pains, Pw l assisted by Marwa Maakili while crying. Then Magdalena showed up from inside the guest. Pw l told Magdalena on the spot that she identified the bandits one Thomas Salima and Chacha Ghati Mwita. Later police came and took them to hospital and later was recorded her statement. There was also the evidence of Pw2, Magdalena Thomas, the manager of Twiga bar and guest house. Her testimony was almost the same with that of Pw l save that after was she called by Pw l to talk to these people she went and welcomed them and asked them whether they want a room. But the said people told her they were police who have information that Pw2 was keeping thieves in the guest house. The said person askecf for a guest register and how many guests were accommodated in that guest house that day but Pw2 told them none and handed over the register to one of them, a short one, she said. This man read the register upside down and the said person told her," mbona umesema huna wateja humu ndani"? before Pw2 answered, the other person who was holding a panga and stick told him" Mkuu umegeuza sio hivyo" After ail that, Pw2 and those.persons^went inside the guest house. That with the aid of tube light which had enough light for a person to read, that is why she saw a register upside down, she saw those people very well one of them wearing a torn jacket grey in colour, with masai shoes and a yellow cap written "CCM". That the other one had a black coat and wearing a yellow Tshirt written "CHAGUA CCM". It was her version of the story that as they were marching inside the guest she sensed that the said people were not policemen due to their attire. That she had never seen policemen with slippers and or with Masai shoes or a police officer who is not capable to read by turning the register upside down. That they inspected the rooms and when they were approaching room No. 3 they heard voices in room No.2. The one with the register asked her (Pw2) "umesema humu ndani hamna mtu nani anaongea". After knocking, Emma and Veronica (deceased) who were in the said room came out. They walked outside while the watchmen went for a short call. dm 6 As they were in the parking area, Pw2 told these persons accused persons, that she could not leave before handling over the property to his employer. That accused person asked for the whereabouts of the watchman. She told them that she was still at the toilet. The bandits told Pw2 to go for him, she complied but when she reached the door between the bar and guest house she locked the door as a result there was no entry between the bar and guest house " nilikata m awasiliano ya bar and gesti kwa kufunga ule m/ango kwa kom eo" she then started shouting for help. Shortly after she heard gunshot about three of them, then silence took place. Peeping through the window, she didn't see these persons, she went at the scene where Silivia was lying down oozing blood, she saw Vero, the deceased too lying down oozing blood and that the incident took place for about 45 minutes. # That she did not recognize the accused persons. Pw3 E. 6593 D. CpI. James, a police investigator who investigated the case testified that on 25/10/2008 when he was patrolling he heard through a radio call that the Twiga bar and guest house was invaded by robbers. That he rushed to the scene of crime and found three people 7 injured but the culprits had already flee. That Silivia (Pw l) was crying, mentioning the culprit's names. That the person who invaded them were from Borega naming them as Chacha Ghati and Thomas Salima. That on 27/10/2008 he drew the sketch map which was admitted as "Exh.P.l". In his sworn defence, Chacha Ghati Mwita defended himself that he is from Borega "B" village at Tarime District. That he knows how to read and write. That on the fateful day he went to the shamba around ‘11:00am *and came back home he slept till the following day, where he proceeded to sleep. That he was arrested on 26/10/2008 after lapse of two years. He completely denied to have known Sivilia and involved in murder incident. That he is a farmer who have never visited Tarime before. Dw2, Thomas Salima defended himself that he resides at Borega" A". That on 25/10/2008 he was at home waiting for a traditional doctor to treat one of his children who had epilepsy but the doctor did not show up, he cooked for his children they ate and slept. That on 26/10/2008 his mother came to visit his child and told him that Veronica Bernard, his brother's daughter had been killed by bandits at Tarime. That the following day, he attended burial ceremony and left to his home around 18:00hrs. That in 2009 he married a second wife and shifted to Serengeti. * ♦ * That on 19/12/2010 at around 3.00hrs police accompanied with Sungusungu Commander came looking for Marwa Chagucha. Dw2 was also arrested and the two were ordered to show Hamis Mkoni's house to the police officers: That when they were at Hamis Mkoni's home he (Hamis) started running and the police shoot him to death. That he was taken to police lock up and the police told him, "utusaidie na sisi tukusaidie". That Dw2 should back up the police officers and testify that they were exchange of fire between the police officers and Hamis Mkoni which exercise lead to Hamis death. He refused that story and he was taken back to prison. At the police station he was beaten up and one of the police said, "apewe kombe la dunia" Thereafter he was brought to the Court 05/11/2011. It is#when he realized Kombe la Dunia is a murder case. Dw2, acknowledged to know Pw l because she was her neighbor leaving with her brother in law one Mwita Machagato. That Dw2 had misunderstanding with Pwl's brother in law, for quite a long period of time. He denied to have known Dw l, as he came to know him after they were jointly charged. When cross examined, Dw2 admitted that he is an illiterate person. That he does not know how to read and write. That Silivia fabricated a case against him as she had grudges with him. In his final submission Mr. Malimi, learned defence counsel for the 1st accsued person did not support conviction. He challenged the evidence of Pwl and Pw2 that it is unreliable as far as question of identification is concern. That only Pw l identified the accused person but Pw2 didn't. He fortified his argument by citing the case of Yasin Maulid Kipata and two Others Versus Republic (1987) TLR 183 CAT. He challenged why the 1st accused person was arrested after a year had lapsed, despite the truth •that D w l maintained that he was at his home, Borega. He urged the court to hold that the prosecution side did not prove their case beyond reasonable doubt. Mr. Tuthuru, for the 2nd accused person stated that the evidence of Pw l and Pw2 on the attire of the accused person contradicts each other and therefore is doubtful evidence. That, in such doubts, he prayed for the benefit of the same be given to the accused persons. The invited this Court to the precedence of the cases of Waziri Amani Verus Republic (1980) TLR 250; Ludovick Kashuku Versus Republic(1967)HCD 194 and Damian Petro Versus Kakason Abraham Versus Republic (1980) TLR 260. He urged the court to treat the evidence of Pw 'l as dock identification. That the 2nd accused person was arrested on 19/12/2010. The prosecution brought no evidence to prove how the two accused persons were arrested and why did the said arrest took a long period of time. That in the case of Azizi Abdalla (1991) TLR 71 the Court held that, the prosecution is under prima facie duty to bring those witness to prove their case failure of which the Court may draw and adverse inference. In reply, Mr. Kainunura, learned State Attorney maintained that it is the two accused persons who murdered Veronica Bernard. That Pw l gave a very strong evidence to that effect. She testified how there was 0 favaourable conditions of proper identification; the intensity of the light and the distance that's he used to identify the accused persons. That she knew the accused persons prior the incident. That Pw l met the identification requirement as stated in the Case of Omari Kasenga Versus Republic li Criminal Appeal No. 84 of 2011, CAT (Unreported), instisted Mr. 1 Kainunura. ' i As for the contradiction pointed out, it was his view that such are minor contradictions which does not go to the root of the case. That the accsued were arrested in 2010 while the offence was committed in 2008 as they traced in vain as amplified by Pw l who is also the resident of Borega. He challenged, the Alibi defence of the two accused persons that none of them brought a family member to prove the same as stated in the case of Masoud Amlima v Versus Republic (1989) TLR 25. It was his view that there is no law that restricts evidence of a single witness. After I invited the assessors to give out their opinions, the 1st assessor was of the opinion that the accused persons are guilty as charged; the 2nd assessor found the 1st accused guilty as charged whereas the 2nd accused person is guilty of armed robbery. The 3rd assessor found the accused persons guilty as charged as they were correctly identified by Pwl. Now, it is not disputed at all that the death of Veronica d/o Bernard was unnatural death; he was brutally : Twiga Bar and Guest House. The question is who killed the deceased person. Is it the two accused persons qt hand. «4 ♦ m The entire prosecution evidence solely based on visual identification of Pwl. It is eminently proper before I delve myself to analize the evidence of both parties, to highlight though in a nutshell the principles of evidence on identification by a single witness. In the case of Abdulla Wendo and Another v R (1953) 20 EACA 166 the then Eastern Africa Court of Appeal stated that there is always the need for testing with the greatest care the evidence of a single witness in respect of identification. In the same vein, in the case of Kulwa Athumani@ Mpunguti and three others Versus Republic Criminal Appeal No. 29 of 2005, CAT (unreported), the Court of Appeal insisted that the key single identifying witness must advert to the guidelines enunciated by this Court in Waziri Amani v R [1980] TLR 250 at page 252. It may not be repetitive if I say that, these salient features, or guidelines were also provided in a number of Court of Appeal decisions, which includes Raymond Francis v. R [1994] TLR 100, Augusto Mahiyo v. R [1993] TLR 117, Alex Kapinga & 3 Others v. R., Criminal Appeal No. 252 of 2005 (unreported) among many others. These guidelines or salient features may be summarized as follows: How long did ♦ - the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? What interval had elapsed between the original observation and the subsequent identification? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance? Admittedly, the prosecution key identifying witness, PW1 who was also a victim of the incident, during the trial, adverted to the guidelines enunciated in Waziri Amani v R [1980] TLR 250 at page 252. Pw i explained how the two accused persons were quite familiar to her, that's he used to see the 1st accused at her home when he went to buy bananas. She consistently testified how she used to see the 2nd accused gambling at the market. That there was bright light from two tube lights and moonlight that assisted her to correctly identify the two accused persons. 14 Clinching much, Pw l told us how the attire of the accused person was on the fateful day. And that, she was just a pace from where she was. I wish to point at this juncture that the evidence of Pw l, was very systematic, she confidently narrated what happened at the scene of the crime. Needless to say, in her evidence Pw2 told us there was very bright light to support identification but she was very trustful when she told us that she didn't identify or remember the two bandits who committed the incident. From the evidence of Pw l, I am very much satisfied that the conditions and guidelines stipulated by the Court suffices to hold that there was favorable conditions to warrant correct and proper identification of the accused persons. Therefore the discrepancies or contradictions on identification pointed by the defence counsel are too remote or minor to shake the credibility of Pwl. In their defence, the accused person had pleaded the defence of Alibi, both of them stating that they were not at the scene of the crime when the incident occurred. Dwl stated that on 25/10/2008 he went to Shamba at 11:00am and later spent his day at home; same as Dw2 who told us he spend his day at home. The accused defence of Alibi, is worthless as the prosecution side have proved their case with absolute * «• certainty that it was the accused persons who committed the said murder .It was stated in Anangiswe Masendo Ng'wang'wa v. Republic (1993) TLR 202 (CA) as follows:- "..The Trial Court duly considered the defences and rejected them. The appellant Anangisye could very w ell have been a t his home as he claimed. But there was nothing to prevent him from going to com m it the offence and then return home. The same m ay be said o f the appellant Fabian. He could have been to Tukuyu D istrict Court to transact business there and then returned to his locality in Kiwira in tim e for the incident which happened a t about 3 pm. We do not think that the defences o f a lib i are such as would raise any reasonable doubt on the prosecution 16 case, and like the Trial Judge we reject them ".. In this instant case, the prosecution evidences is watertight. As stated in the case of Anangwise (supra), nothing would have prevented the two accused persons to commit the offence charged and return back at their homes to sleep. Mr. Malimi and Tuthuru, learned counsel in their submissions also criticized the prosecution case, on the basis that the accused were alleged to commit the offence in 2008 and they were arrested in 2010. That the prosecution side have failed to show why it took a long period of time for the accused persons to be arrested while they were at home. The Court of Appeal in the case of Felix s/o Kichere & another Versus Republic, Criminal Appeal No. 159 of 2005(CAT), faced the same similar situation. Nevertheless, in that case there was a contradiction in the prosecution evidence as opposed to this instant case. I am therefore of the opinion that even though, there were no explanations on how it took a long period of time to arrest the accused persons, with certainty of the evidence of Pw l, I am very much satisfied that the absence of such 17 evidence cannot preclude the accused persons the charged offence as amply stated by Mr. Kafnunura, -learned Counsel. Now, the final vexing question to be tuckled is whether the Court can convict the accused persons on the evidence of identification of a single witness, it was well stated in the case of Anangiswe Masendo Ng'wang'wa v. Republic( supra), that, "since the learned Trial Judge had warned himself o f the danger o f relying on a single witness in a serious charge o f murder and since he was satisfied that he could safely act on that evidence to convict the appellants, the learned Judge was entitled to so convict". In the same breath, I am very aware of the danger to convict a person on evidence of identification of a single witness. But I value and respect the credibility of Pw l who was also a victim of the incident, but explained thoroyghly how the incident occurred, how she was familiar with the two accused persons, how they wore, the circumstances that led her to identify the accused persons and her promptness in reporting the same to Pw3. I have been asking myself, is there any justifiable reason for Pw l to lie against the two accused persons? I don't get a reason. Even the 18 defence of Dw2 that Pw l had grudges with him, is worthless of credit as if that was the case why didn't Pw l mentioned and incriminate Dw2 alone? Why did she involve Dw l in the said incident if she had not promptly identified the two of them. In line of the foregoing, I agree with the unanimous opinions of Lady and gentlemen assessors who found guilty the accused persons. I accordingly find Chacha s/o Ghati Mwita and Thomas s/o Salima Marwa @ Kyangwi Salima guilty as charged and I accordingly convict both of them for an offence of Murder of Veronica d/o Bernard contrary to Section 196 of the Penal Code, Cap 16 (R.E.2002). A.N.m. bUMAKi JUDGE AT TARIME 15/ 12/2014 19 Date:- 15/12/2014 .Coram:- Hon. Sumari, J. * Mr. Mayenga, State Attorney for the Republic - Present Mr. Tuthuru, & Malimi, Advocates for the Acc - Both Present Accused (name):- 1. Chacha Ghati Mwita ] I 2. Thomas Salima Marwa Both present B/C:- Ihuya Assessors 1. Veronika chacha - Present 2. Gweso Gabriel - Present 3. Ayub Gitimkwi - Absent Court:- Judgment delivered in the open Court at High Court - Tarime. Sgd:- A.N.M. Sumari Judge 15 / 12/2014 SENTENCE Both accused persons Chacha Ghati and Thomas Salima Marwa @ Kyangwi Salima who has been convicted of murder c/s 196 of the Penal Code (R.E. 2002) are sentenced to death by hanging. 20 Sgd:- A.N.M. Sumari Judge 15 / 12/2014 Right of Appeal explained. Sgd:- A.N.M. SUMARI JUDGE 15/ 12/2014 21