20160303 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 71 OF 2012 THE REPUBLIC VERSUS JUMANNE RAPHAEL MAGINGI ........................................... ACCUSED High Court Sessions at Kongwa JUDGMENT 17/2/2016 & 3/3/2016 2010 at Lwihomelo village Mpwapwa District and Dodoma Region. The accused pleaded not guilty. The prosecution side called seven witnesses namely ALFRED KAMBONA (PW]), KAMBONA SALUSTIAN (PW2), CASTORY SALUSTIAN LUKOSI (PW3) FESTO LAURIAN MWAMBA (PW4), JOAKIM JOHN MWELANGE (PW5), D/SGT SALUM (PW6) and No. F.142 S/SGT EDWIN (PW7). Beginning with PW 1, who called the deceased grandfather, said he was killed on 5th of year 2010 at Kambini, Itavi village. He discovered the incident when he went at Kambini at around 6:00 am to 7:00 am. He detected further that the cows were missing. He went back home and inform his parents. He did not see the killer. PW 2 is deceased's son who said his father was slaughtered on 5/2/2010 at Kambini. He said the cows were stolen. He reported the incident to the Ward Secretary. As well he did not see the offender. Also PW3 is deceased's son who said to have been with his father while with one Alfed Kambona on 4/5/2010 at 4:00 pm. He said his father was killed on 5/5/2010. He was informed of -th incident by, Alfred Kamboha. He went to Kambini where he saw the deceased body and witness the cows missing. He further said they were informed the cows were found at Idoho village whereby himself and others went to see them and he identified 9 cows by a mark who said "zilichomwa kwenye matezi". He was told one Raphael Magingi took the said cows to the viHage. He used to know Raphael Magingi since at Ihomelo. He pointed at him in the dock. PW 4 said to be living with the accused in the same village. That on 9/5/2010 at around 7:30 pm the accused followed him, who was in search of cow calves "ndama". At that time the accused was with cows who told him they are his property. He wanted to leave them there but he did not agree, he advised him to go and keep the said cows in chairman's kral, the chairman is called Jeremiah Lutengwe. He followed behind the accused and when with one Joakim, they found the cows outside chairman's kral (in the first fence), but the accused was not there. One Mathias Lutengwe told them the accused had left the cows, in counting while with the Ward Secretary they were 9. He guarded the cows, the accused did not go back in that night but on the foUowing morhing. He went to take the cows, the chairman and Ward Secretary asked him where he got the áows who answered they belong to him. 3 PW 5 who identified the accused in dock said to have been informed on 9/5/2010 at 7:33 am by one Festo Mwamba that the accused went to their home with cows, he refused to keep the cows for him. He went to chairman's place and find the 9 cows. Festo and Chilolo told him that the accused was not there. The accused went to the place at around 7:30 am, he told him that the cows belong to him, he was given by his relatives who are living in Wota village. Later on the youths from Wota village went to identify them. PW 6 only recorded Sikitu's statement, who was later on found by this court as having no case to answer. A last witness, PW 7 wrote accused's statement which statement was rejected by this court. After closing of Prosecution case, accused was called to give his defence, opted to give a sworn testimony of defence, having no other independent witness to call. The accused denied committing the offence. That none of prosecution witnesses testified to have seen him killing the deceased or to have seen him around the area which the deceased was- found killed hence iti nOt true that he kiTibd the deceased. Finally this court received final address of the case from both sides. The defence counsel Mr. Kuwayawaya submitted there in no prosecution witness ever saw the accused killing the deceased hence no evidence to connect the accused with the offence. The evidence of Sikitu has no weight because Sikitu was finally found having no case to answer by this court. The chairman or any other person did not come to prove before the court that it was the accused who took the cows to the chairman's place. There is no witness who testified in court that the accused was arrested having in his possession the cows. There is no witness who testified in court about connection between the marks on the cows and the deceased or either explanation on colours of the cows. On the other side the Principal State Attorney, Ms. Shio adrnitted their case mainly lies or:1 circumstantial evidence but the evidence from their seven witnesses is enough to convince this court find the accused guiLty, - because, the accused was- found having in possession the cows and on the following day I' he went to claim them. Therefore under the doctrine of recent possession he should be held liable, and Sikitu's story is different from that of the accused in dock; There is explanation from PW 4 and PW 5 of the marks on the cows and deceased's children were called to identify their cows. After the summary to assessors they opined as hereunder; ]st Assessor TANOO LEGHATE gave weight to the evidence of PW 4 who said to have seen the accused with the cows, therefore he is offender. 2nd Assessor BETTY BAKOBI saw the evidence on prosecution side circumstantial, there is no eye witness, thus the accused not guilty. Having the record as hereinabove, it is ample time now to find out whether the prosecution case has been proved beyond all reasonable doubt. In so doing let me put it that there is no doubt. that SALUSTIAN.. KILEMILI. LUKOSI met unnatural death, as revealed in r.i the post mortem examination report which was tendered and admitted by this court as exhibit P1". The collected evidence as correctly submitted by the learned Principal State Attorney while finally addressing this court, no prosecution witness testified to have seen the accused person killing SALUSTIAN KILEMILI LUKOSI so the observation of this court is that this case depends on circumstantial evidence, but the question is whether the evidence by the prosecution side suffices to incriminate the accused in dock to the offence of murder he stands facing. What is that evidence in the instant case?. This court has found it that it is the cows which were said to have been found in the possession of the accused and later said to have been identified by deceased' children. This court have been fold by PW 4 and PW 5 that they saw the accused having in his possession the disputed cows. It was later said the accused went on the following morning to claim for the cows, the cows he had left in chairman's kral. There is explanation from prosecution side that the Chairman was present who also saw the accused who went to claim the cows. And later these cows were taken by owners, deceased's children. With this evidence, I am moved to agree with the counsel for defence that there is no enough evidence on the side of prosecution that the accusd was seen and found in possession of the cows. Moreover there VA is a question which is left unanswered where it is said the cows were left at Chairman's place, the chairman was present at time the accused went to claim for the cows but it wonders why the chairman himself or a person who was handed with the cows by the accused were not called to bring that evidence that it was the accused and not any other person took the cows to that place. That is why I am saying this piece of evidence is missing thus create doubt whether it was the accused who was found having in his possession the cows and therefore could have been connected with the offence of murder he stands facing. I see the importance of the chairman or any other person who received the cows who was in chairman's kral to have been called as witnesses. I understand, prosecution is at liberty to call witness it wishes because what matters is to discharge their burden of proof and not the number of witnesses they summon that is, even a testimony of a single witness is believed to establish any fact (See Section 143 of the Evidence Act Cap 16 R.E 2002; MOHAMED ABUBAKARI VRS REPUBLIC, Criminal Appeal No.48/20 (CAT - AR) ( Unreported). But I say those witnesses were required as I have earlier • mentioned, this cde bIéf>' depends. on ciàumstantiaLevidéndé whereby corroboration is required as it was stated in the case [4] [4] of HASSAN MOHAMED MLEPEKA VRS REPUBLIC, Criminal Appeal No. 66/2004 (CAT- DSM) (Unreported) that:- "In a case depending conclusively upon circumstantial evidence,.., 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, I have noted that there is circumstance like I have stated herein above of failure on prosecution side to call the chairman or that other person who is said to have received the cows from the accused so as to draw the inference of the accused guilty. The evidence at hand leaves doubt as correctly submitted by defence side and the 2nd assessor,• The accused is said to have been seen with the cows but the evidence brought by prosecution does not so demonstrate. It has been left in air that the accused was found in possession of the cows, the evidence does not show that he was led to police station with the cows, fherefore an investigator was not there to say the accused was taken at Police having in his possession the cows. Even there in no evidence4hcf, deceaseds children• identified the- cows- or at---- Police Station or even before village authority such that this court I,sJ could be convinced that it was not any other person but the accused who had the possession of the cows which were stolen from Salustian and this Salustian was killed out of the process. Indeed there is a lot left to be desired in prosecution evidence, such that this court finds prosecution case have not been proved beyond all reasonable doubt. As a result, the accused in dock is found by this court not guilty of the offence of murder he stands facing, he is acquitted forthwith, he is to be released unless otherwise held for lawful order. Itis ordered. lut (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) JUMANNE RAPHAEL MAGINGI is present under custody and represented by Mr. Kuwayawaya- ADVOCATE InTerpreter Ms F NKAMIWA English into Kiswahili and vice versa 10 ASSESSORS. TONCO LEG HATA - Present BETY BAKOBI - Present MIS. SHIO PRINCIPAL STATE ATTORNEY SUBMITS. The case is coming up for Judgment today. Mr. Lubyama is present for the accused and the accused is present. We are ready to receive the Judgment. I humbly pray. COURT: Judgment read today 3rd March, 2016, in the presence of Ms. Shio Principal State Attorney, Mr. Lubyama defence Counsel and the Accused. U (H. H. KALOMBOLA) JUDGE 3/3/2016 Right of Appeal fully explained. 11 ORDER: 1. Assessors thanked and discharged. UI (H. H. KALOMBOLA) JUDGE 3/3/2016 12