20151103 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 28 OF 2012 THE REPUBLIC VERSUS AGNES MKUYA ............................................................... ACCUSED High Court Sessions at Dodoma RULING H.H. KALOMBOLA, J. Before this court is an accused AGNES MKUY A who is facing a charge of Murder an offence contrary to Section 195 and 197 of the Penal Code, Cap 16 of the Laws 2002. Mr. Kuwayawaya learned defence counsel has submitted in court that the accused has no case to answer having the Prosecution side closed its case after testimonies of six witnesses. Briefly, Prosecution witnesses ADAMU MAPUNIGWA calls the accused as his elder mother joined other people on 4/1/2010 who have been running towards the home of the accused 23 where an alarm was raised. They found the accused crying following her grandson's death. PW I was asked by elders to go and call deceased' s grandfather one Abel Mlulu the thing he did. He remember on 1/1/2010, before this incident, happened to escort the deceased to Hospital who had stomach ache. PW 2 ABEL MLULU identified the accused as his sister. He went to accused's home having being told of the incident. He went inside on his arrival and in the afternoon to see the accused about funeral arrangements. It was in the afternoon before burial when deceased's mother told him that burial should not proceed as the accused has killed her son. He then called the Executive officer as he saw it was now a big issue. PW 3 JOSEPHAT WILSON MUHAWI was in year 2010 an Acting Village Executive Officer. He was informed of the death of the child by Abel Mlulu. He went to the home of the accused and see the dead body in a room. He informed the village chairman one Steven Ndahani about complain of deceased's mother and he phoned Police having been directed by the village chairman. PW 4 STEPHEN GEORGE NDAHANI explained to have worked as a village chairman from 2009-2013. He said to have informed of the complaint by the Executive Officer whom he directed to 24 phone police. Policemen went to the scene and leave with accused and deceased's body. Later the body was returned for burial processes of which he participated. PW 5 HILDA MLELE is accused's young sister. She only said her sister is accused of killing the deceased. That she has never l/ n,,J Q.,(11;t'.., seen her sister -irr9"0t r 1e for the whole of their life. Last, 6th witness is Principal Assistant - Medical Officer Grade I H. MYALLE. He is a doctor in Dodoma Referral Hospital. He is the one who conducted the postmortem and identify the report in court (Exhibit Pl). He said to have found the neck of the deceased loose such that it could be turned to the back. He concluded cause of death could be fructure of upper neck, reason would be external force. And in cross examination by defence counsel, he answered, this would happen incase one falls. At this juncture Mr. Kuwayawaya submitted on a no case to answer that Prosecution side has failed to prove Prima Facie case as none of their ·witnesses connected the accused with the commission of the offence. That, the 1st to 5th witnesses were only informed of the death who said nothing about the cause of the death. Moreover 2nd witness Abel Mlulu a close relative 25 arrived at the home of the accused around 8:00 am, he talked with the accused and deceased's mother but this problem was not aired to him, even afterwards when he went inside for burial arrangements. It was at 2:00 pm when a priest was about to conduct a burial mass when this complain was raised. That PW6 said the problem might occur if one falls. In the present situation, it was not easy to explain what was the cause. The defence counsel in this regard referred to Section 293 (1} of the Criminal Procedure Act, and cases of JUMA HATIBU , Criminal Session No. 12/2005, Dodoma Registry and that of REPUBLIC VRS MOHAMED @ SUNGURA, Criminal Session Case No. 106/ 1998 asked this court to find the accused having no case to answer following Prosecution failure to establish its case and enter a finding of not guilty to the accused person. After receiving the evidence by Prosecution witnesses as herein put forward, I find nothing which points a finger to the accused as a very person who did any act or omission that led to the death of the deceased grandson. What does Section 230 of the Criminal Procedure Act Cap 20 R.E. 2002 provides as to the present situation?. 26 S.230 "If at close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which, under the provisions of Section 300 or to 309 of this Act, he is liable to be convicted the court shall dismiss the charge and acquit the accused person". I therefore, under the above quoted section of Law i.e Section 230 of the Criminal Procedure Act dismiss this charge facing the accused Agnes Mkuya, consequently I acquit her, she is forthwith released unless held for a lawful cause. It is so ordered. (H. H. KALOMBOLA) JUDGE 29/10/2015 27 DATE: 03/11/2015 Coram - Hon. H. H. KALOMBOLA, J. Mr.Mwamunyange, State Attorneys for the Republic- Present. Mr. Kuwayawaya, Counsel for the Accused, Present. Accused (name) AGNES MKUYA (Charge withdrawn under Section. 91 ( 1) of Criminal Procedure Act is present under bail conditions and represented by Mr. Kuwayawaya - ADVOCATE. Interpreter Ms. F.NKAMIRWA English into Kiswahili and vice versa. Accused. Present. ASSESORS. 1. TONOO LEGHATA 2. ANNA EDWARD 3. EDDA KALONGA MR. MWAMUNYANGE STATE ATTORNEY SUBMITS. We are ready to receive courts ruling. MR. KUWA YAWA YA DEFENCE COUNSEL. We are also prepared. 28 COURT. Ruling read today 3rd November 2015, in the presence of Mr. Mwamunyange State Attorney for the Republic and Mr.Kuwayawaya advocate for the Accused. The accused is present. (H. H. KALOMBOLA) JUDGE 03/11/2015 Right of Appeal Fully explained. (H. H. KALOMBOLA) JUDGE 03/11/2015 29