20160428 TZCA Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO 69 OF 2015 THE REPUBLIC VERSUS 1. ABASI JUMA 2. ABTWALIBU RAMADHANI 3. JUMA SELEMANI High Court Session at Kondoa 18/04/2016 & 28/4/2016 A. MOHAMED, J; RULING This is a ruling in respect of a submission of no case to answer by by Mr. Matirnbwi, counsel for the defence in respect of two counts of murder facing the accused persons namely Abasi Juma, Abtwalibu Ramadhani and Jut-no Selemani. It was alleged by the Republic that on 14/3/2013. at lgunga Village within Kondoa District the three persons had burnt to death one Rasuli Omari and Adam Salimu after arresting them on allegations of burglary. The Post . modem ... 1 Examination Report indicates the cause of death was by burning. A total of five prosecution witnesses testified for the Republic. On 21/4/2016 at the close of the prosecution case, Mr. Matimbwi submitted that his clients had no case to answer as the prosecution had failed to establish a prima facie case against them and consequently they were not required to defend themselves. Mr. Mwamunyange, Senior State Attorney for the Republic opposed the contention and submitted that the Republic had established a prirna facie case against the accused and they were required to defend themselves. This court directed the Republic and the defence to submit on the contention on 22/4/2016 which they duly abided. At the hearing of the submissions, /V1r. Matimbwi was of the view that his clients had no case to answer. He submitted that the three accused persons were alleged to have murdered Rasuli Omari and Adam Salimu contrary to sections 196 and ·197 of the Penal Code [Cap 16 RE 2002]. He further stated that the Post ·Mortem Examination Report gives the cause of death was by burning. He went on to say that this court is therefore .required to verify the persons who burnt the two victims. The counsel stressed that in every criminal offence there must be two elements present; a mens rea and an actus reus. He added that in homicide cases there ought to be causation and an ill motive to cause death. He stressed that these principles guide courts to 2 determine whether an accused person caused the death of a deceased. He submitted that all five prosecution witnesses to wit Mashaka Juma, D6052 D/sgt Saidi, Yahaya Machira, Abdallah Machira and Saidi Ibrahim Mafita could not establish that the accused persons in the dock had a case to answer. And he supported his stance with a quotation from B.B. Chipeta's book "A Handbook for Public Prosecutors", 3rd Edition, Mkuki and Nyota Publisher, Dar es Salaam, 2009, where at page 63 the author had commented on essentials of the establishment of a prima facie case thus; "To put it differently at the close of the prosecution's case, the court considers whether or not a case has been made out of the prosecution sufficiently to require the accused to give his defence" It was Mr. Matimbwi's view that according to the above explanation, no case has been established against the accused persons requiring them to give their defence. He went on to argue that even thou·gh the prosecution's case had contradictory evidence including differences in time spans and the sequence of events, the Republic's witnesses utterly failed to say anything on how they saw the accused persons planning to execute the crime with the necessary instruments. He added that secondly, they also failed to say how they burnt the deceased persons. 3 The counsel went on to say that he would not consider the l st and 2nd prosecution witnesses' testimonies. He submitted that the 5th witness, Saidi Ibrahim Mafita, had testified that he was at the scene of the crime but he did name Juma Selemani the 3rd accused person at all. He added Mafita said he talked to Abasi Juma, the l st accused person who told him that they had arrested the suspects in order to take them to the village government officials. Mr. Matimbwi said Mafita had stated that there was no motive or intent to burn the suspects on the part of the accused. Mafita had said he saw Abtwalibu, the 2nd accused driving his truck. When cross examined on the presence of the 2nd accused person, Mafita had responded that Abtwalibu used to assist in . transporting villagers in village occasions such as weddings and funerals with his truck. The counsel rounded up on his argument by saying that one can say that Abtwalibu 's truck was an ambulance, a crop carrier and it would even have had ferried villagers to this trial if Abtwalibu were not in jail. Mr. Matimbwi further submitted that there is no doubt from the testimonies of PWl to PW4 that there was any ill motive on the part of Abtwalibu as he had in good faith rendered service in carrying the theft suspects. He went on to say Abtwalibu could have had provided fuel from his truck to douse the deceased if he had so wished. Mr. Matimbwi stressed that all the prosecution witnesses failed to establish any motive or act on the part of the three accused persons in killing the deceased persons. 4 r The learned counsel then referred to the 3rd, 41h and 51h prosecution witnesses' accounts of being at the scene and of seeing one Yahaya Selemani bringing the petrol that was doused on the victims. They had seen Adinani ldrisa lit the victims with a match. He said both Yahaya Selerr1ani and Adinani ldrisa were not in the dock. He argued that these persons who had not been arrested are those with the mens rea and the actus reus who caused the. death of Rasuli Omari and Adamu Salimu. He argued that th~ case against the accused is purely circumstantial. And that . the actual perpetrators of the crime are named and known. He then referred this court to the. case of R v. Vicent Flavian Mbaga & others, Criminal Session Case No. 1.17 of 2002, at Morogoro (unreported) in which the accused village sungusungu had arrested the deceased in order to escort him to the Morogoro Police Station. His body was later found with a head injury. The court considered a number of legal principles including the possibility that the accused has caused the deceased' s death and at page 25 of the judgrnent. Judge E.M. Mushi had this to say; "And he (deceased) could have been attacked by some people other than the accused persons" Mr. Matimbvv1i argued that the mere doubt of the possibility sufficed the court to acquit the accused persons. He submitted that 1 in the instant case all prosecution witnesses said Yahaya Selemani and Adinani ldrisa were involved with burning the two deceased 5 i persons. He therefore argued that the doubts in the present case and the presence of the named perpetrators make this case against I the accused person baseless. Consequently, the counsel submitted that the accused persons have no case to answer and are not required to make any defence. He submitted his clients were innocent and they have been remanded for a long period for a crime they are not responsible. He concluded by submitting that the killers are known and the law enforcement organs should arrest them. Accordingly, he saw no reason for the accused person to defend themselves as their defence was clear and self-explanatory. Finally he prayed this court finds the accused persons have no case to answer and acquit them as they are good citizens and are innocent of the act they are alleged to have committed at lgunga village on 14/3/2015. In resisting the contention, Mr. Mwamunyange, Senior State Attorney responded to the defence counsel's argument on the witnesses' contradictions by arguing they were minor and did not shake- the credibility of the Republic's witnesses. He added that· had the testimony been false, it would not have been. used by the defence counsel in defence of the accused persons. He went on to say that although all were the deceased persons' relatives and could have desired the accused to be found guilty of the charges facing them, they did not directly point their fingers at the accused persons. As such they were truthful and credible. 6