20140623 TZHC Iringa

. . ' .. IN THE HI°GH COl.IRT OF TANZANIA ATNJOMBE :ORIGINAL JURISDICTION · (Iringa .Registry) CRIMINAL SESSION CASE NO: 40 OF 2011- THE REPUBLIC VERSUS EMMANUEL S/0 MWAPINGA · 19/6/2014 & 23/6/2014 RULING MADAM SHANGALI, J. The accused person Emmanuel s/o Mwapinga stands - ·with two counts of Murder c/s 196 _of the Penal Code, charged Cap. 16. In the first count it has been alleged by prosecution that on or about 8 th day of MarGh, 2008 at Mbugani village within Ludewa District he caused the death of one Edmund s/ o Mlelwa. On the second count it has been alleged by the prosecution that on or about the same date of 8 th March, 2008 the accused person murdered· one Angela D / o Mwapinga . . On 18 th Septernber,. 20].:3 .--wher_F the · trial of this case 1 ".->.• ' ·~ ~ .. / '\ ... ' i . ·: .. . '.. started,·the p~:_ci7se~ution 'side led.by'lvf?:F;ah_cis,Roge·r~~ l~anied> ·i :; ,',i:;~,, ;• ,_,.: ., ••"':' ••• ," ,• -~ :, ;a.'; •-, ~, ,• • •• '< ' •• c•~ <" .' .:• C ' ." • •' • • ' • ~ ( •=.' ./," •'. ; State Attor~~y~·gave .a ·promi~ing ·opening· sp:e:ech to;•th~ · effe<;t~<. -· ,.. · :-:, • • • I ' that the prosecution' was set 'to prove beyorr~ r~asonable doubt _·-_. the following facts; That·· the accused person killed ·two·.· . .. . . --.. .-¢:tiildre1?- ·-_namely_ Edmurtd ·s/ q_. ~lehva aged 8 _ye·ws ~d, AngeJ_a . ·. D/o Mwapinga . aged three. years. ' . That . th_e. . accused . . person was · ·, married to one Asumpta D/o Mlelwa and during the existence.· of their marriage they were blessed with two issues. That their marriage was succun1bed with misunderstandings which led• to official separation before the· Ward Tribunal· on ·31 st. July, . 2007. That following the separation the accused person :· shifted to another village of Madaba - Songea where he stayed till 28 th February, 2008 when he returned to Mbugani village and decided to live with his cousin one George. s/o Msemwa. ·That while at Mbugani village the accused person got ·nimours that while he was away his wife Asumpta was· flirting around with other m.en within the village. The prosecution also vowed to · reveal by evidence . on how . the accused person was seen with a machete "pangd' around the village on 7 th March, 2008 hunting for men who were committing adultery with his wife. That in the night of 8 th March, 2008 the accused person set the house of Asumpta D / o Mlelwa on fire where the two · deceased children were sleeping and burnt to death while their mother Asumpta was at a nearby local pub drinking local beer. :t ·- In·the course of the hearing of the' Eaiie; trre prosecutlon.., { . 2 called- four witnesses.to. establish, their C?,Se.. PW.~, Emillian LJohn,Mlelwa .a 8hairman of Jv1ap~n1~ p.amlet ~estified on how he heard an alann ·'Ngolo: being. raised .within the village in the night of 8 th March, 2008 and quickly ·rushed .to the Scene. At the .. sc_e~e hy fourtd . a:." grass . thatched house .of Asumpta :: bur.ning while Asumpta_.· crying . . with pains : . .\ as her children were inside the house burning as well. Ap·art f~om what PW. 1 saw in that night . at the scene there was nothing from him to connect the accused person with the offence except the . hears~y_ . evidence fron1· :.··Asumpta .who claimed that she . ~uspected her enraged husband, the accused to be the person who burnt her house. PW.2, Frank Mwambasariga was a medical Doctor who ' .' - performed postmortem examination on the bodies of the deceased children and produced his autopsy report as Exhibit. There was nothing in his evidence to directly connect the accused person with the offence. PW. 3 was the police officer Corporal Alex Makassy who recorded the ~aution statements of the accused person. The alleged caution statement was rejected by the court for being recorded out of time and in contravention of the law. PW.4 was Mr. Mohamedi Siliti, a Primary Court Magistrate cum Justice of peace who recorded the Extra Judicial Statement of accused. The said Extra Judicial Stateme:t1t was equally rejected by ~the~_c9u1;'t,.following -~ a tria:l,·'·withip . ,,.,, ··trial' .whic;h -_: .. was 3 conducted · ·tff ·_ ascertain · its · validity and · whether it : :\V8:S -· voluntarily· obtairied. : · The court found·. that the.·said ·Extra Judicial Statement was· not obtained voluntarily. In·. the circumstances the prosecution . side· remained· with the· evidence of PW.1 and PW.2 only arid Mr. -Ri~iki Matitu, learned State Attorney who took over the: prosecution of the . case from Mr. Francis Rogers opted to close the prosecution case. ·. Mr. Rwezaura Kaijage, learned advocate ·who represented .the. accused person tequested to make a submission on no ca,se . to answer as per Section 293 ( 1) of the Criminal Procedure Act, Cap. 30 R.E. 2002. There was no objection from the prosecution side. ~'~:-·_:' ... . - ~ .. , . ,.•.. ·-:: Mr. Rwezaura Kaijage submitted at length on what I have tried to point above regarding to the available prosecution evidence ~d insisted that there was no sufficie11:t prosecution evidence to connect the accused with the alleged offences or to warrant the accused person to make his defence on the charges laid again.st him or any other offence as provided under the law. The learned advocate supported his submission with the decision in the case of R. Vs. Edward Mongo (2003) TLR 45 where the court 9f Appeal of Tanzania stated that a submission of n,o case to answer may. be admitted when;_ there . is .no sBfficient eviden~e to conn~ct the· acctis~ea with ~the 4 offence and where the. prosecut~on have failed to establish. the. essential elements :of the' offence. : . Politely but ·with ···"much endurance, Mr. Riziki Matitu, learned . ·state. Attomey . Gan.ceded .. tp the si:tuation an,d _the position of the law .an.d supported the defence motion ·to tlie effect that indeed there was no case to answer against the accused ·person. In my considered ' '. view, . there is no need to waste time on . '. ,; this matter. The promise by the prosecution w~s not fulfilled. Mr. Rwezaura Kaijage, learned advocate has said it all and· supported by the learned State Attorney. There is no tangible prosecution evidence to . connect· the ·accused person with the offences laid against him or apy other offence to the extent of requiring him to make his defence. I therefore find the accused person EMMANUEL S / 0 MWAPINGA not guilty and he:reby acquit him on both counts. The accused person is to be released from custody forthwith unless he is lawfully detained on another matter. It is so ordered. M. S. SHANGALI JUDGE _.· ·23-/6/~014 5 ..-3• ; .• ...· -- -- - ~ ...._..,, ,. - -· "' ---- - - ' , .··,.,.. ( • Ruling'delivered .. . . today 23/6/2014-in .. - the pi.esenc~· . . bf Mr.. .'.,.. ~ -.· ·_:-~, <~· ~ :. '·r' ·' .. Riziki Matitu; learned~ State -Attorney for the Republic and Mr;. ,! . . _One_smo :F:ra11:cis,- learned advocate ·holding brief for. Mr. Rwezaura representing the accused person. . .. ·- ' M. S. SHANG.i\LI JUDGE 23/6/2014 , • ...., : ~ . :!I "" • • ...._, < -~ ., ·1"-., - •• ' \ . .. 6