20151029 TZHC Mwanza2

"" -. ---.L-- IN THE HIGH COURT OF TANZANIA AT MUSOMA ORIGINAL JURISDICTION (MWANZA REGISTRY) CRIMINAL SESSION CASE NO. 72 OF 2014 THE REPUBLIC ...................................................... PROSECUTOR VERSUS EMMANUEL S/O KITASHOKA@ DOMESHIMBA ............... ACCUSED ·JUDGMENT Date of last Order: 21/10/2015 Date of Judgment: 29/10/2015 Munisi,J. EMMANUEL KITASHOKA @ DOMESHIMBA, the accused person stands charged with the offence of murder contrary to section 196 of the Penal Code, Cap 16 RE 2002. In the information filed, the prosecution alleged that on 15/2/2011 within Lake Victoria waters at Rukuba Island, Butiama District the accused person murdered one NYAKUSANSA ATHUMANI. 1 Deceased body was identified to be that of Nyakusansa Athumani by D/Cpl Deusdedit and one Bernadus Machage From the contents of exhibit Pl- the Postmortem Report, deceased's death was due to severe head injury resulting from a penetrating wound on the skull caused by a machete which was found stuck in the skull bone. The accused person was arrested and charged with the murder following a report that he was the fishermen who paired with the deceased on 15/2/2011 when the two left to the lake for fishing purposes. When the charges were read over to the accused person, he refuted them and pleaded his innocence. Due to that, the prosecution brought a total of three witnesses to prove the allegation. PW1 was Visiwa Rusubo Baelezee Ondiyo, a fisherman of Rukuba Island. His evidence was to the effect that between 2011 and 2013 he carried out his fishing activities at a camp owned by one Garugi Bega situated at Rukuba Island where he was also a supervisor of four ( 4) fishing boats, each being manned by two fishermen at a time. He went on that he had known the accused person as a fisherman from a nearby fishing camp for about a month prior to the fateful incident. On 15/2/2011, the accused approached PW1 in his capacity as a Supervisor seeking casual 2 'I labour whereby upon agreeing on a wage of 20,000/= Shs, he paired him with the deceased following the partner of the latter having fallen sick. PW1 went on that the two left with a boat known as Obama IV at around 15:00pm. On 17/2/201 PW1 received information that the boat - Obama IV had been seen abandoned at Bwai area, an information which perplexed him because normally, fishermen remain fishing in the lake for about 2 days before coming back on the 3rd day. In that regard, that was the day the boat Obama IV was expected back. Following this information, his boss Garugi Bega made a follow-up and confirmed that it was true his boat - Obama IV was at Bwai area, consequently, he directed PW1 to go fetch it back to the Camp. This was followed by the search for the two fishermen which went on until the 20/2/2011 when deceased's body was found floating in the waters about one and half hour boat ride inside the lake from the camp. The body was found with a machete stuck in the skull bone. The same was fished out and ferried to the police Musoma and thereafter to Musoma Hospital where postmortem was conducted to determine deceased's cause of death. On being cross examined, PW1 said that he had been meeting the accused for about one month prior to the 3 incident at their social centre on the island. He claimed that although he had no close relationship with him, as the accused was working at a nearby camp owned by one Amdun Maiga, he used to see him walking around with his friends who he could not however recollect their names. He added that on the fateful day he employed the accused orally which is basically the mode of engagement in fishing business and that there were no written agreements. With regard to the machete alleged to have been stuck in the deceased's head, he claimed that it was the same machete that the deceased used to go fishing with in Obama IV, adding that it is normal for every boat or fisherman to go fishing with a weapon for various reasons including security. He concluded his evidence by saying that later his boss made a follow up and managed to facilitate the arrest of the accused person in Sengerema, insisting that in his opinion the accused must have killed the deceased because the two left together on 15/2/2015 in Obama IV and two days later the deceased was found dead in the lake. PW2 was Garugi Bega Boga, the owner of the Camp in which PWl used to work. His evidence was to the effect that at his Camp he owns four fishing boats with four corresponding engines and PWl was his supervisor. 4 On 17/2/2011 he received information from one Yahaya that one of his boats known as Obama IV was seen abandoned at Bwai area. Upon inquiring from PW1 as to who had gone to the lake with the boat, he was informed that it was Nyakusansa ( deceased) and one Emmanuel Kitashoka (the accused). After learning that, he made a follow up at Bwai area where upon confirming it was his boat, he called and instructed PW1 to go fetch it back to the camp. PW2 then reported the matter to the police and on 19/2/2011 he was issued with a letter to search for the two missing fishermen whose whereabouts were up to that time unknown. In search of· the two fishermen, PW2 began by making telephone calls to the deceased's village where he was informed that deceased had not been seen. He thus decided to go to Bugombe B Village in Sengerema District, a place where PW1 had informed him that Emmanuel Kitashoka (accused) originated from. Upon going to the area and making some inquiries he managed to trace Emmanuel Kitashoka in a fishing camp known as Vodacom and arrested him. He thereafter took him to Kaunda police station in Sengerema and came back to Musoma where he reported to the police about his arrest. PW2 identified the accused in the dock as the person he 5 arrested on 23/2/2011 and that he only knew him the day he arrested him after the accused himself had announced his name which was Emmanuel Kitashoka, thus PW2 knew he was the person he was looking for. On being cross examined he admitted that he did not know the accused person nor did he at any time employ him and that it was PWl who employed the accused on the material day. PW3 was D/Cpl Deusdedit, a detective with Musoma Central Police Station. His evidence was to the effect that on 19/2/2011 he was assigned to investigate a case in respect of a complaint lodged by Garugi Bega PW2 regarding a theft of his boat. At that time he noted that the said boat had already been recovered however the fishermen involved, namely Emmanuel Kitashoka and Nyakusansa Gwanji or Athumani were yet to be found. PW3 on getting the information, he recorded an additional statement from PW2 and issued him with a letter to search for the missing fishermen. In the course of his investigation on 20/2/2011 he received information that deceased's body had been found floating on the lake and the same was brought to Musoma Hospital. He saw the deceased's body which was excessively swollen and the doctor conducted a postmortem 6 examination on it. On 25/2/2011 he received a telephone call from PW2 who informed him that the accused person had been arrested and was remanded at Sengerema Police station. On 7/3/2011 he went to Sengerema Police station and transferred the accused person to Musoma Police Station. On arrival he called PWl to the station to confirm whether the arrested person was Emmanuel Kitashoka who had gone to the lake with the deceased on 15/2/2011. PWl confirmed that the accused was indeed the person; hence PW3 recorded the accused's statement and later charged him with the offence of the deceased's murder. On being cross examined he admitted that he did not know both the deceased and the accused persons before he took over the investigation. Adding that he only came to know the accused when he went to pick him up from Sengerema police station. Answering to a question put to him by the court, PW3 said that the deceased's body was excessively swollen to the extent that his clothes were torn necessitating the postmortem examination to be conducted at the lake side. With the above evidence, the prosecution closed its case. 7 The defence called two witnesses to refute the claim that the accused was involved in the murder of the deceased. DW1 Emmanuel Dome Shimba testified to the effect that the name of Kitashoka is not his name rather it is the name of one of the fishing camps that he worked at earlier on in his fishing carrier. He went on that his home place where his parents reside is Monoguru Village in Magu District. His occupation has always been fishing which he started at Igombe, Ilemela District since 2002. In the year 2007 he moved to Mei some Island in Sengerema District where he worked at different fishing camps. He started with Kitashoka camp which was owned by Shinje Selemani where he worked up to 2009. He then moved to Vodacom camp where he worked up to September 2010. From there he went to Soweto Camp owned by one Mugaya where he worked from October 2010 to January 2011. From there he went back to Vodacom where he worked from January 2011 until his arrest on 23/2/2011. He disputed knowing the deceased Nyakusansa Athumani Gwanji or ever been at or knowing Rukuba Island and that he had never been to Mara Region ever. He disputed knowing PW1 and PW2 saying he 8 only saw the former in court and the latter at the police and herein court. DW1 categorically refuted any involvement in the murder of the deceased. DW2 was Mashauri Pangani Vodacom the owner of the Vodacom Camp at Mesome in Sengerema where DW1 was employed as a fisherman prior to his arrest. His evidence was to the effect that in the year 2011, he was operating his fishing activities at Mesome Island in Sengerema District and that he had twice engaged DW1 in his fishing carrier; once in 2010 and the second time was on 1/2/2011 when he employed him on a two months contract. He went on that on 23/2/2011 he received a telephone call from people who were about to arrest DWl on allegations of murder and he told them that on the date they claimed DW1 committed the murder he was with him at his camp. DW2 was categorical that on 15/2/2011, DW1 was with him at his camp and that he assigned him to go fishing at around 16:00 pm with one Rajab. He insisted that he only knew the accused by the name of Emmanuel Dome Shimba and had at no time known him by any other name or by the name of Emmanuel Kitashoka. At this juncture the defence also closed its case. 9 Having heard the evidence from both sides, it is now my turn to . determine on the strength of the evidence presented by the prosecution whether the guilty of the accused person has been established to the required standard. It is trite law that in criminal trials the onus is on the prosecution to prove the case beyond reasonable doubt and such duty never shifts; the provisions of Section 3 (2) of the Evidence Act are clear on the point. There is no doubt the determination of this case stands on whether there is credible evidence to establish that on 15/2/2011, the accused person was at Rukuba Island and he went fishing with deceased. In that regard, the law is settled that the prosecution's duty is not only to prove that deceased was murdered but also that it is the accused who indeed murdered him. It is notable that the only piece of evidence connecting the accused with the offence charged is PWl's testimony whose testimony was to the effect that on the material day i.e. 15/2/2011 he assigned casual labour to accused Emmanuel Kitashoka who came seeking for casual labour of going fishing. He said he knew accused well because while on the material day he only met him briefly, in the past one month they had been rubbing shoulders with each other at their social center. On his part, the accused vehemently negated the claim. His defence which was supported by DW2 was essentially that he could not have been at Rukuba Island and be the one referred to by PWl on the main grounds that on the claimed day, he was at Vodacom Camp situated at Mesome Island in Sengerema which is far away. From the totality of the evidence presented, it apparent that geographically, Sengerema District where the accused is claiming to have been on 15/2/2015 and Butiama District where Rukuba Island is located are not bordering one another. In that regard, I have failed to tell who is telling the truth between PWl on one side and DWl and DW2 on the other side because if the two districts do not border each other as it is glaringly evident, then the two camps i.e. Vodacom's Camp in Sengerema where the accused was working and Amdun Maiga's Camp and/or PWl's camp which are within Butiama where the offence occurred will be factually miles apart. In that respect, it was for the prosecution to state whether, the camp in which the accused was working is one and the same that DW2 referred to in his evidence. As observed from DWl's evidence, he was employed by one Mashauri Vodacom (DW2) who indeed came to court to vouch for him. 11 This in my view makes it improbable for the version given by PW1 to stand and be believable. Further the accused's testimony which was supported by DW2 sounded more tenable considering the obtaining circumstances and the improbable version given by PW1 and PW2. Apart from the above raised flaws in PW1 's evidence, there are other aspects which were not established conclusively. One such aspect is the controversy with regard to the true names of the accused person; as noted from PW1's testimony, he met the accused briefly on 15/2/2011 when the latter had gone to his camp seeking casual labour and he realized that he had been seeing him around. Further he claimed that although the accused was not his friend he knew him by the name of Emmanuel Kitashoka. It is notable also that in the course of giving his evidence, PW1 did not explain what made him remember the names of the accused, a casual labourer he just met briefly while he could not remember the names of most other regular fishermen who were working under him at his Camp for a longer period. On his part the accused vehemently refuted having ever used or been known by the name of Emmanuel Kitashoka insisting that while in the 12 past he worked at a camp known by that name, his name has always been Emmanuel Dome Shimba. On this he was supported strongly by DW2 a person who had in the past employed him twice at Vodacom Camp. DW2 was emphatic that he only knew accused by the name of Emmanuel Dome Shimba and was not aware of the Kitashoka name. There is no doubt it was the prosecution's duty to resolve the controversy with regard to what is the accused's real name and not for the accused to disprove the claim that his name is Kitashoka. As noted from PW2's evidence, when he went to Igombe B Village, searching for Emmanuel Kitashoka, he was taken by the Village chairman to Mzee Kitashoka's homestead where he met Emmanuel Kitashoka's wife. Surprisingly, the prosecution did not bother to bring any witness to assert such fact. The question is whether if indeed PW2 was taken to any homestead in Bugombe B which was alleged to belong to the said Mzee Kitashoka, why considering the mystery surrounding this name didn't the prosecution call either Mzee Kitashoka or Emmanuel Kitashoka's wife to unravel the puzzle. On his part, the accused testified under oath that his home village was Monoguru in Magu District where his parents live todate 13 and not Igombe B as claimed by PWl, insisting that he was at the latter place for fishing purposes only. In my considered view, PW2's claim that he was taken to Mzee Kitashoka's homestead is doubtful considering that he did not know the person he was looking for and the unchallenged testimony by the accused that his father's name is Dome Shimba and his home Village is Monoguru in Magu District. It follows therefore that the credibility of PW2's evidence on whether he was taken to Mzee Kitashoka's homestead is seriously doubtful when judged in the context of DWl's evidence. Another issue of concern that has challenged my mind is whether deceased's body was positively identified. PWl tried to impress the court that he was very familiar with deceased. On this aspect PWl told the court: " I have known Nyakusansa for a long time we worked together and even our villages are close by and we used to visit each other. ..... // Yet despite the above clear assertion, on being cross examined PWl said:- 11 I am the one who identified the body to the doctor. I do not know Bernadus Machage// However on re-examination PWl said:- 14 " I used to know the father of deceased and his name was Athumani. Deceased's father was there when the Postmortem Examination was been done" It is clear from the above three extracts of PW1 's evidence that this witness contradicted himself so much on the issue of knowing deceased's father. If he was as familiar to the deceased as he claimed in his evidence in chief, it is surprising that he did not know his father's name as shown in his later extracts. Suffice it to say that his demeanor was not impressive as he appeared to be exaggerating in some of the aspects he testified on. For instance he was emphatic that he was the one who identified deceased's body to the Doctor, however looking at the contents of the Postmortem he was not one of the identifying persons recorded there. In my view PWl's evidence was thus not credible on the identification of deceased's body. Further since there was no other evidence to lend credence to it, the prosecution having failed to call Bernadus Machage, the identity of deceased remained inconclusive. In the final analysis, in my considered view, the evidence by the two prosecution witnesses is -full of doubts with regards to the names, true 15 identity of the accused person and the improbability of the presence of the accused person at the _scene of crime at Rukuba Island on 15/2/2011. As observed, the defence evidence sailed unshaken with regard to the accused's name and place where he was working at the time of the· incident on 15/2/2011. The lady and gentlemen assessors who sat with me were of a divided opinion; while two of them opined that there was insufficient evidence to enter a conviction, one of them was of the view that there was sufficient evidence from PWl to support a finding that the accused went to the lake with deceased alive and since deceased was later found dead, he must be held accountable for the latter's death. While I appreciate and respect the opinion of. the sole assessor who found sufficient evidence to support a conviction, for the reasons that I have earlier on explained, I join hands with the two wise assessors that there is insufficient evidence to support a conviction of murder or any other offence against the accused person. The prosecution has not been able to establish beyond reasonable doubt that the accused person was at Rukuba Island in Butiama District or that he went to the lake with the deceased on 16 ,. 15/2/2015. The doubts have to be resolved in favour of the accused person, which I accordingly do. In the final analysis, I am of the settled view that the prosec:ution has failed to advance sufficient cogent evidence to prove the charge of murder facing the accused person. Consequently, the accused person Emmanuel Dome Shimba baptized Emmanuel Kitashoka @ Dome Shimba in the charge sheet is hereby acquitted of the offence of murder which he stands charged. Accordingly he is to be released from prison forthwith unless otherwise lawfully held. ~ I Court: Assessors Julias Magoro, Olipa Bigambo and Peter Palemo are 17 I '1 \ \ l