20160303 TZHC Dodoma2

/ IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 72 OF 2012 THE REPUBLIC VERSUS SILVESTER MNEMELA........................................................ACCUSED JUDGMENT 10/02/2016 & 03/03/2016 H. H. KAIOMBOLA,J.: Accused in dock is called SILVESTER MNEMELA. He is before this court charged with an offence of murder which offence is contrary to Section 196 and 197 of the Penal Code. It is alleged on or about 2nd day of September,201 0 at SIMAYI - IGOJI village within Mpwapwa District in Dodoma Region did unlawfully murder one YOHANA MKUYA MAONEZI @ NGUBI. The accused denied commission of the offence. The Prosecution side called 1 a number of four witnesses to testify in move to discharge its burden of proving the case beyond all reasonable doubt. It is hereby put clear at the outset that YOHANA MKUYA MAONEZI @ NGUBI is dead, there is no question about it. This is according to the Postmortem Examination Report that was admitted without objection during Preliminary hearing as exhibit P1 wherein it was revealed the deceased's death was due to Severe Hemorrhage due to multiple cut would on the anterior and posterior trunk. Moreso according to this report, the deceased's body was found with multiple cut wounds over the whole body (posterior and anterior trunk) and some parts of limbs with clotted blood and soiled on the body. With this report, it goes without saying that the deceased was killed or rather his death was unnatural. The issues to be determined here are:- Whether the accused is the one who killed the deceased. Whether the accused killed the deceased with malice afore thought. As I said eorlier, four witnesses testified in court so as to prove that the accused in dock killed the deceased person. The first witness to testify in court was MARIA MKUYA the wife of the deceased. She said while sleeping inside with her husband (deceased) on the fateful night at around 11:00 pm a door was knocked, her husband asked for a torch and go outside. At first the deceased saw nothing and guess it was a cat. While on a decision of entering inside he heard one calling him. After a while and still inside she heard the deceased raising alarm "rwangi" three times and mention "Sin" ,Siri, Sin" and further said "kama utaniva we niue tu". That the deceased never went back, inside the house. She later went outside and raise alarm "rwangi". That her son Venon Mkuya, Dustan Mkuya, Victoria Mkuya and Hamisi Masudi attended so as other people who attended Later. She went to see the deceased body at 8:00 am after arrival of sungusungu. She said, village chairman was informed who later informed the Ward Secretary and Police. She knew it was the accused (pointed at him in dock) Siri who killed the deceased. The 2nd witness (PW3) was AMOS MKWALA who in 2010 happened to be village chairman. He used to know the deceased who was killed. He was informed of the incident on 3/9/2010 at 1:00 midnight. He went to the scene and by aid of torch light he saw the deceased body and guess a sharp object was used to stab him with on the ribs and other parts of the body. That he was given the whole story by PW1. He directed 3 Ward Secretary and Sungusungu chairman to make follow up of Silvester later on sungusungu Chairman informed him that they have arrested Silvesfer. Himself and others went to Silverster's home they asked Silvester's wife to take outside Silvester's bag, they opened it and find a knife with blood. He also saw the knife. The third witness (PW3) was MZIGABA ISEMALYA the Justice of Peace who recorded accused's extra judicial statement on 7/9/2010. He said in his statement, the accused admitted to have stabbed the deceased with a knife as he guessed him bewitching his mother. Lastly PW4 No. F.142D/S/SGT EDWIN said to have visited the scene of crime while with others on 3/9/2010. That the deceased was stabbed all over his body by a sharp object. The doctor examined the body and he .interrogated some witnesses and record their statements. The suspect and a knife were handed to him by Ward Secretary. The accused having the above witnesses testified, was found having a case to answer he built up the defence himself. He essentially denied any involvement in the crime. He denied to have killed the deceased who was his elder father. He was arrested on 3/9/2010 by militiamen while in his mother's ru home. He denied to have misunderstanding with the deceased. He said none of prosecution witnesses testified to have seen him killing the deceased. That even in court PW1 did not mention his name as his name is Silvester Mnemela. He was never taken before the justice of peace to record his statement. That on 7/9/2010, policeman Edwin took him out of the lock up to his superior who introduced himself as a judge. Before this person, he was told to sign, he signed by a thumb as he does not know writing and reading. He does not know PW3, he came to know Edwin (PW4) on 3/9/2010 at Igoji 1. Edwin (PW4) escorted him from Igoji to Police Station. He saw the knife just in court. He further said, no witness who testified to the court to have handed the knife to Edwin although Edwin told court that he was handed the knife by the Ward Secretary. Finally he insisted, there is no evidence that the killed he deceased. At this juncture let me say that, it is the duty of the prosecution to prove its case beyond reasonable doubt (See YUSTAS KATOMA VRS REPUBLIC, Criminal Appeal No. 242 of 2006, (CA- Mbeya) (unreported). From the collected evidence, it is not disputed that no any prosecution witness testified to have seen the accused person killing YOHANA MKUYA MAONEZI @ NGUBI. It is therefore the observation of this court that this case depends on circUmstantial evidence, however, the question is whether the evidence adduced by the prosecution side suffices to incriminate the accused to the offence of murder he stands facing. In the said position, the Court of Appeal in the case of HASSANI MOHAMED MLEPEKA VRS REPUBLIC, Criminal Appeal No. 66/2004 (CAT-DSM) unreported, citing with approval the case of SIMON MUSOKE VRS REPUBLIC (1958) E. A 715 at page 718 stated that:- "In a case depending conclusively upon circumstantial evidence, the court must before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis that of guilty.., it is also necessary before drawing the inference of the accused guilty from circumstantial evidence to be sure that there are no other circumstances which would weaken or destroy the inference." In the present case, the accused denied to have been seen at the scene of crime by any of prosecution witnesses and I understand the accused has no burden of proving his innocence. In the final submission, defence counsel insisted that nobody witnessed the accused killing the deceased as it is also seen by this court. What is left is whether the testimony by PW1 alone would have weight to an extent of convincing this óourt find the accused an offender. PW1 is recorded to have testify in court that while inside the house she did hear the deceased mentioning "Siri,' hence his being arrested for this offence. From the evidence, PW1 did not testify to have even came outside immediately to see what was happening to her husband. She could not go outside immediately because of fear, the act which was challenged by defense counsel. On this point, prosecution while on final submission said PW1 feared going outside. In fact prosecution relies on PW1 statement and say in their final submission that PW1 evidence is corroborated by the extra judicial statement (exhibit P3) and the fact that PW1 knows the accused and a belief that the accused was accusing the deceased for bewitching his mother. PW1 as to the evidence was never recorded saying to have may be hear the voice of the accused when exchanging words with the deceased. This is to say there is no more apart from PW1 who heard the deceased mentioning Sin. In addition to this I am driven to go fyrther and analyse what was the time when this incident is said to have take place. According to PW1, it was during night at around 11:00 pm. It was therefore dark that is why even the deceased asked for a torch from PW1. Since it was dark, can it be said that the deceased identified the accused without any doubt? 7 Mindful it was dark and in the village? Was the light of the torch enough for the deceased to have clear vision of the accused?. One could not even guess the distance which would have been between the deceased and the accused because nobody is said to have gone out, to wit PW1. Therefore a question as to how the deceased managed to identify the accused in the dark and hence mention his name, remain unanswered. Anyway I fail to proceed further in discussing as to how the deceased came to mention Siri because he is not available to explain, as he is now the deceased. Now what would be said of the Extra Judicial Statement? As I have said earlier, Ms. Shio Principal State Attorney submitted finally that it is a document that provides corroborgfion to PW 1 's statement. Accused on his part denied even to have been taken before the justice of peace to record the same. He just saw the witness in court for the first time when testifying and further the defence counsel submitted the same would not have weight in absence of Caution Statement. As to this point this court finds, the defence counsel failed to spell out under what law this argument is based. On a point by prosecution side on Extra Judicial Statement corroborating PW1 evidence, I find the Extra Judicial Statement has no weight because looking at it, it was not recorded as per "A GUIDE FOR JUSTICES OF THE PEACE," Chief Justices Rules. Although the Extra Judicial Statement was admitted as an exhibit. I understand it is common ground that the admissibility of evidence during the trial is one thing and the weight to be attached to it is a different matter. At this juncture having the doubts in prosecution evidence as herein above explained and the fact that the Extra Judicial Statement is accorded no weight by this court, I find PW1 's evidence without corroboration. This court concurs with the opinion of the 1st Assessor who wondered whether the accused committed the offence. Consequently this court finds the accused not guilty of committing the offence of murder, he is not the one who killed Maonezi Mkuya. The accused is acquitted. Itis so ordered. (H. H. KALOMBOLA) JUDGE 3/3/2016 DATE: 03/03/2016 ./ Coram - Hon. H. H. KALOMBOLA, J. Ms. Shio, State Attorneys for the Republic. Mr. Kuwayawaya Adv, Counsel for the Accused. Accused (name) SILVESTER MNEMELA is present under custody and represented by Mr. Kuwayawaya- ADVOCATE. Interpreter Ms. F.NKAMIRWA Englishinto Kiswahili and vice versa. Accused- Present. ASSESSORS. 1 . KAMILA LIHAMBA-Present MOSHI KATIMA - Present TATU KUWE - Present MS. SHIO PRINCIPAL STATE ATTORNEY - SUBMITS. The case is coming for Judgment. Mr. Lubyama advocate is appearing for the accused and the accused is present. We are prepared to receive the Judgment. I humbly pray. UL (H. H. KALOMBOLA) JUDGE 3/3/2016 10 COURT Judgment is read today 3rd March, 2016 in the presence of the Principal State Attorney Ms.Shio, Mr.Lubyama for the accused and the accused. ILk (H. H. KALOMBOLA) JUDGE 3/3/2016 Right or Appeal fully explained. LLL (H. H. KALOMBOLA) JUDGE 3/3/2016 COURT Assessors are thanked and discharged. IL4 KALOMBOLA) I; JUDGE Awø 3/3/2016 11