20151113 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT TARIME ORIGINAL JURISDICTION (Mwanza Registry) CRIMINAL SESSION CASE NO. 78 OF 2015 THE REPUBLIC Versus 1. DEUS S/0 THOBIAS @ HEKWE 2. MASESE S/0 WAMBURA 3. HASSAN S/0 !NANO SIMON 4. MAITARYA 5/0 MARO@ MWITA 5. PETER S/0 WILLIAM @ MHONO WILLIAM 6. ROBERT S/0 MATENYA@ TABAGE 7. DAUDS/0 MARWA@ NYARANDA JUDGMENT 11 th & 13th November 2015 Hon. Kitusi, J. Deus s/o Thobias @ Hekwe, Masese s/o W-ambura, Hassan s/o Inano Simon, Maitarya s/o Maro @ Mwita, Peter s/o William @ Mhono William, Robert s/o. Matenya @ Tabage and Daud s/o Marwa @ , Nyaranda are jointly charged with two counts of Murder C/S 196 and 197 of the Penal Code [Cap 16 R.E 2002]. It is alleged that the accused persons on 19/7/2008 at 11.00 a.m. at Nyamakobiti Village within Serengeti District in Mara Region, jointly murdered one Magesa s/ o Msiloli @ Sensera and William s/ o Mantage @ Isuto. 1 The accused persons have pleaded not guilty to the charge. The prosecution called two witnesses to prove the guilt of the accused, who are Chacha Magiwa (PWl) and Mukori w/o Juma (PW2). I ' CHACHA s/o MAGIWA MARO (PWl), runs a business of selling ,I goat soup at a place known as Majimoto Centre and he has testified that on 19/7/2008 at 11.00 a.m. while at his business place he saw five young men who were armed. He named the young men as Deus Thobias Hekwe who was armed with a stick, Masese Wambura who was armed with a gun and panga, Ina_no. Simi on had a stick and an elastic rubber ordinarily used in bicycles, Robert Matenya had a stick and Maneno Ngeya was wielding a stick. PWl stated that he saw the said young men approaching Magesa Masilori Sensera the deceased at the market area popularly known as Centre. PWl saw Deus Thobias hit the deceased with -a stick on the · head as Inano Simion secured the deceased's hands biting them using the bicycle elastic rubber which he had been carrying. Then PWl saw Masese Wambura cut the deceased's head with the panga before firing the gun in the air as he bragged that he was too rich to be taken to task even if he killed somebody. The actual words according to PWl were "MIMI NI MTU MWENYE FEDHA NINA UWEZO WA KUUA NA SITAPELEKWA POPOTE PALE". He has testified that he saw the 2 deceased being cut on the front and back of his head. The deceased fell down and went unconscious for about ten minutes before rising up. All this was happening about ten paces from where PWl was. PWl stated further that, he moved closer to the assailants and asked them the reason for assaulting the deceased.- Deus Thobias the first accused and Masese Wambura, the second accused, told him that the deceased was being suspected of stealing cattle and they were taking him to police. However, PW1 was surprised to see them lead the deceased to the bush of Nyamakobiti villc;ige. It is in PWl's evidence that the deceased was still able to walk. PW1 called Yohanes Chacha Masirori the Chairman of Nyamakobiti village to inform him that his elder brother Magesa Masirori had been apprehended and assaulted. There is no dispute that Magesa Masirori was the brother of the said Yohanes Chacha Masirori a fact which the accused person have heavily relied on in challenging the legitimacy of this case. They have claimed that, Yohanes Chacha Masirori who holds the post of Village Chairman is their political arch rival and is using this case to get rid of them. When later the police from Mugumu Serengeti arrived they drove with PW1 to the scene where two dead people, that is Magesa Masirori Sensera and William Mantage Isutu were found. They carried the bodies into the police vehicle and took them to Iramba 3 Health centre. The bodies were examined by a Doctor and then the relatives were given permission to carry on with burials. til ,-U> PW1 testified further that, he was among the people· who t'\ J' identified the deceased body to the Doctor. While cross examfned by Mr. Makongo, PW1 stated that, in his statement to the police (Exhibit Dl) he did not tell them that the gun which was fired by the second accused was a rifle. PW1 stated further that, the 6th accused is known as Matenya Kabage and not Robert s/o Matenya @ Kabage. He said that he knows those who killed Williams/a Mantage@ Isuto as Daud Maitaria Maro a~d Peter Muhono. They assaulted the deceased William Mantage by sticks on-the head. The second witness to testify on the. part of prosecution was MUKORI w/o JUMA MASIRORI (PW2) who on the same date and at about the same time, that is at 11.00 a.m, was walking with Magesa s/o Msirori @ Sensera (the deceased) from Nyamirogoro to Majimoto centre Market to sell millet, she being the one who was carrying the millet. While crossing Kenyo River, Deus Thobias and Inano . Simian appeared . suddenly and attacked the deceased. Deus Thobias .was carrying a stick. Inano had the elastic rubber as menti~ned by PWl. 4 ~ ·& - ' •~...ti-·• It is PW2's testimony that Deus Thobias struck the deceased with a stick on the back of his head. The deceased Magesa fell down and remained silent although he was conscious. Inano Simion tied Magesa's hands by the elastic rubber. When PW2 inquired from the aggressors the reason for the attack Deus Thobias repli~d that he was being suspected of stealing cattle. They then said they were going to take the deceased to police. They left with the deceased and PW2 followed ·r behind them, but the aggressors had not had enough for a few steps later Masese s/o Wambura the second accused and Nyabise Mwita appeared. Masese Wambura was carrying a gun and a panga while Nyabise Mwita was carrying a stick. Masese Wambura cut the deceased with a panga and fired a gunshot in the air. Then Masese Wambura said he was rich so even if he killed a person nothing would be done to him. PW2 made a telephone call to the Chairman of Majim(?to Village, Yohanes Masilori to inform him that his brother was being assaulted. She said she knew the assailants. because Deus Thobias and Nyabise . Mwita are her neighbours while !nano Simion lives in the neighboring .village they whom she used to see. at the market. She went on to identify Masese Wambura as a person she sees at the market and shopping centre.· PW2 surmised that, she had no conflict with the assailants. 5 . i I In her testimony PW2 said Kenyo River is so close to Majimoto village centre that a person who is at the centre may see what is •'\,: ·'0 happening at Kenya River, a fact vigorously disputed by the defence side. According to PW2, she saw Chacha Magiwa at the centre. She further testified that, the stick by Deus Thobias did not cause bleeding. While cross-examined by one of the counsel for the accused PW2 ! I testified further that, she did not raise an alarm (Yowe), because l assailants told her that, they were taking the deceased to police. She l ! stated further that, she did not -see a cut wound on the batk of deceased's head. When further cross examin·ed PW2 said it is Masese Wambura who fired the gun and not Machumbe. Many questions were put to PW2 to impeach her against the statement she recorded at the police in the course of which she said she does not know_ what the police recorded in that statement (Exh.O2). -The defence case consists of denials by the accused to have had anything to do with the killing of the deceased. DEUS S/O THOBIAS @ · HEKWE (DW1) gave his account of what transpired on 19/07/2008 that from morning at 9:00 am he heard people passing by and talking about the recovery of stolen cattle and arrest of the thieves at Nyamakobiti Village. Since a cow had previously been stolen from his 6 relative's kraal and since that relative was away from the village, he first accused assumed the responsibility to go to Nyamakobiti Milimani to see if his relative's cow was one of those recovered. At the scene he saw the cow and identified it as his relative's and that three people alleged to be the thieves were under arrest. He identified two of those under arrest as Masikoi Wambura Matiku and Magesa Masirori Sensera. The first accused stated under oath that there were so many people from about three villages of Majimoto, Nyamakobiti and Iseresere, and the alleged thieves had been badly beaten by the angry mob, he decided in that tense situation not to take any action in respect to the cow stolen from his relative. He contradicted PWl showing that, he lied when he said he saw him at Majimoto Centre at 11.00 am while at the same time he was seen by PW2 at Kenyo River which according to him(first accused) _it is 400 metres away. He further referred to the terrain of the area and the vegetation as providing no possibility. for one at Majimoto Centre to see what was happening at Kenyo River. First accused referred to the Postmortem Report as proof that he did not kill the deceased because it does not show that death was a result of a blow caused by something 'like a stick, the size of PWl's arm as he. testified. DWl stated that, Johaness Chacha Masilori is his 7 ·t- t . ·1 ' I ,I political rival, a line of defence which, as I have said earlier is shared by the second and third accused in this case. The said second accused and third accused have each stated that they were at their respective homes on the material date and time. They said that Johaness Chacha Masilori is the current Chairman of the village and brother of the deceased Magesa. He is using this case to level scores with his rivals. They cited as proof of this the fact that PW1 and PW2 have only testified in respect of the deceased related to him that is Magesa Masilori. The version of the accused is supported by Chedi John Haule (DW2) who was at that time the Officer Commanding Station of Majimoto Police. He has confirmed the fact that it would not have been possible for PWl positioned at Majimoto Centre to see events taking place at Kenyo River. He has confirmed the fact that the first accused had earlier reported theft of a cow belonging to his relative while second accused had earlier escorted his· father to report theft of five cows from his father's kraal. He had earlier received rumours that a mob had surrounded cattle thieves at the hill, so when the pt accused turned up later and told him that he had been at the scene and saw the thieves surrounded by an angry mob, DW2 confirmed the rumors, According to DWl and DW2 the purpose of first accused's report was to get Police 8 I. , intervention. DW2 telephoned the police at Mugumu Serengeti to ask for re-enforcement. On the assertion by PWl and PW2 that the second accused fired a gun in the air and that he did so at Majimoto Center, DW2 stated that it is about fifty (50) paces from Majimoto Police Station to the Centre so that it can be said that the station is within the centre. He stated that if there had been gunshots he could have heard them but he heard none. Under cross examination by Mr. Kainunura learned senior State Attorney, Dw2 conceded that he did not deal with the reports of the first and second accused officially because he issued no reference number to them. The defence of Masese s/o Wambura (DW3) was that the case is a manifestation of the political rivalry that exists between the deceased's brother on the one hand and the accused on the other. He gave an account of how he had stayed at home despite the fact that people had gone out. to trace stolen cows of his father, and the ·reason is that he had not fully recovered from a major operation which he had undergone. He has denied to own any gun let alone firing it on the date . . of the incident as alleged by the prosecution. He has referred to his · arrest almost twelve months later that is on 6/6/2009, as indicating that the story against him is a concoction. He has questioned, if he had 9' I I openly assaulted the deceased and fired the gun at a market place near the police station, why would it take a year before arresting him? _.,;- ~ The third accused Hassan I nano (DW4) stated that on the 19/07/2008 he was at home grazing his cattle and did not leave the compound although he heard the alarms that had been raised. There were two for this, one being that he had nobody to give him a hand and two he had a sick .child with him. Later, in the evening at 6:00 pm the third accused met a mob which was proceeding from Nyamakobiti highlands and learnt from. one of them that cattle rustlers had been· rounded up by the mob and killed DW4 testified that, he was arrested for murder of Magesa s/o Msiloli @ Sensera and William s/o Mantage @ Isuto. However, the evidence of PWl and PW2 is solely on the death of Magesa s/o Msiloli @ Sensera. None of the two witnesses has testified on the death of William s/o Mantage@ Isuto. DW4 has denied to have tied Magesa's hands at Majimoto. He also denied to have gone to Kenya River on that day for the simple reason that he was at home. He has also referred to the long time that elapsed between .the incident and his arrest as suggesting that the case was a fictitious one. •I The sixth accused Robert Matenya Kabage testified as (DWS). His testimony was that he runs a restaurant at Majimoto centre within the same area that PW1 has his business of selling goat soup. He has denied seeing and hearing what PWl claimed to have witnessed at Majimoto centre. He has also referred to the distance between Majimoto Centre and Kenyo River as very far and that PWl was lying when he intimated that he witnessed the deceased being assaulted at Kenyo River. The last defence witness was Daudi Marwa Nyaranda (DW6), the seventh accused. He said he had nothing to defend himself from because none of t_he prosecution witnesses implicated him. He gave a brief account of his whereabouts on 19/07/2008 that he spent his day at his shamba until in the evening when he was informed that there had been theft of cows and two people had been killed as suspects. The Lady and Gentlemen assessors unanimously made a finding of not guilty. I want to preface my evaluation of the evidence by stating that, the en.tire evidence received has referred to the alleged killing of Magesa Masilori, the deceased whose killing· forms the basis of the second count. No witness has referred to the alleged killing of William Mantage. Not 11 even a postmortem report was tendered in- exhibit in his respect. There - . . is therefore no material on which to hold that William Mantage is dead . However, on the evidence of the postmortem report (Exhibit Pl) i which is not challenged on the fact that Magesa Masilori is dead, I find l as a fact that he is dead and ·he died an unnatural death. The issue at hand is whether there is evidence to establish beyond reasonable doubt that the accused are the ones who caused the death of the said Magesa Masilori. This takes me to the evidence of PWl and PW2, the only wttnesses for the prosecution. Before I go further, I need to resolve two small issues which, however, are of great relevance to the case. The first is the distance between Majimoto Center and Kenya River. For reasons that will shortly be made clear, I do not accept the version of PWl and PW2 regarding this point. I find it as a fa_ct that the distance from Majimoto Center and Kenya River is over 200 metres and that there· are obstacles between · the two points such that no one standing at either points may see what is happening at the other. The next small issue is where was the assault that led to Magesa · Masilori's death carried out? The two prosecution witnesses have materially differed on this point. PWl has said. he was assaulted at 12 Majimoto Center at 11.00 am, while PW2 testified under oath that the assault was at Kenyo River at 11.00 am. It is a known fact that people may have different ways of telling the same thing, and capacities to remember events differ from one person to another. It is therefore expected that people testifying on the same event may differ here and there on some insignificant details. However, when contradictions go to the root of the matter, as in this case, it is the duty of the court to resolve the contradiction in favour of the accused. See M~HAMED MAHITA [1990 TLR 3] quoted with approval in: HARUNA BERNADO AND ANOTHER versus. REPUBLIC, CRIMINAL APPEAL NO.13 OF. 2013, C.A, TABORA REGISTRY, (unreported); The court stated: "Where the testimonies by witnesses contain inconsistencies and contradictions/ the Court has a duty to address the inconsistencies and try to resolve them where possible/ else the Court has to decide whe_ther the inconsistencies and contradictions go to the root of the matter.// In this case, it is not possible to tell who between Pwl and Pw2 is telling the truth, and I have two reasons for saying so. In the first . . place,. they both seem to have watched this very cold blooded a~ack on the deceased silently without drawing the attention of other people to it. 13 i. ! This is very unusual, to say the least. Secondly, the two witnesses . appear to me to have been anxious to exaggerate some facts. I do not 0; see how anybody would have managed to walk after receiving two cut wounds on his head coupled with a strike by a thick stick the size of an arm of a normal adult. On that basis it is my finding that Pwl and Pw2 are both untruthful witnesses and their depositions are unworthy to base any meaningful findings in this case. Thus although Magesa -Masilori is undisputedly dead arid that according to the accused's own testimonies he died an unnatural death, there is no evidence to support that the accused persons are the ones who assaulted him and caused his death. I find all accused persons not guilty and accordingly acquit them. Right of Appeal explained .. ~~Q. I.P."KITliSI JUDGE Judgment delivered today in the presence of Mr. Kainunu~a Senior State Attorney, Mr. Makongo Advocate for 2nd accused, Mr. Cosmas Advocate for 3rd accused, Mr. Mweya Advocate for 6th accused, Mr. Cosmas Advocate for ih accused and Mr. Makongo Advocate holds brief 14 for Mr. Magoiga Advocate for 1st accused and in the presence of all accused persons. ~l, I.P.kitJsi - JUDGE· AtTarime 13th Novemb~r,-201_5_ ,,-· \ ~Y'.~: .'.L'~~-<~>,, : ~-·: • i,_ .·~' 15