20160805 TZHC Singida

IN THE HIGH COURT OF TANZANIA ATSINGIDA ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 148A OF 2007 THE REPUBLIC VERSUS SHABANI S/0 WILLIAM ..................... ACCUSED 04/08/2016 & 05/08/2016 JUDGMENT The accused person stands charged with the offence of mUrder contrary to 'Section 196 of 197 of the Penal Code, Cap. 16. It is alleged by the prosecution that Shabani s/o William on 6th day of September, 2006 atUseswanoni- Kayui village within Manyoni District in Singida Region, murdered one Juma s/o Ramadhan @ Malunde. In this case the prosecution and defence agreed to the following facts:- 1) that the accused name and address; and 2) that the accused was arrested and charged in connection with 0 the murder of Juma Rarnadhan @ Malunde. All other facts establishing the offence of murder were denied. As such the 1 C- ill prosecution has a burden of proving beyond reasonable doubts the followings: Whether on 6th day of September, 2006 at Useswanoni- Kayui Village within Manyoni District in Singida Region there was a death of Juma s/o Ramadhan @ Malunde; Whether the death of Juma Ramadhan @ Malunde was unnatural; Whether the accused Shaban s/o William was involved in killing Juma Ramdhan @ Malunde; and Whether Shaban William was actuated with malice aforethought. To prove the above ingredients of murder, the prosecution brought a total of nine witnesses and tendered four exhibits. The first witness for the prosecution was Musa Bakari Musa (PW1). PW1 was. Ward Executive Officer of Mitundu Manyoni District in 2006. He recalled that on 3/10/2006 at around 2200hrs five people from Itigi came to his house looking for Juma Ramadhani. Amongst them were Mfaume Salehe, Musa and Maneno (the brother of the Accused person). These people told PW1 that Juma Ramadhani was last seen with Shabani William but since then the ( have not seen Juma Ramadhani and that they managed to find Shabani William whom they left at their sister's place. PW1 told this court that the sister is his neighbour. He went to see the Accused person and asked whereabouts of Juma Ramadhani. Accused told PW1 that, Juma is at the traditional healer but he does not remember the place. PW1 said he had to ask the relatives to leave him alone with the Accused person. So the relatives left, and PW1 started to question the Accused. The Accused told PW1 that because PW1 is a justice of peace then he will tell him the truth. PW1 testified that the accused narrated to him how he stole a bicycle and two bags full of clothes, properties of Juma Ramadhan and how he killed Juma Ramadhan and that he remembered the place where he killed but urged him not to tell the relatives as they might kill him. PW1 said in the morning at 0600hrs PW1 told the relatives that the Accused already told him where their father is but he will first go with the Accused and then he will notify them. So PW1 left with the Accused, Musa and the brother of the Accused (Maneno) together with one Militiaman. At the scene, PW1 said he found 3 skull that had blood, some skeletons and pieces of clothes (shirt, bed sheet, coat and trouser). They then went to Mgando police station to report the crime. They took police Officer Kamala, from Mitundu they took one militiaman and relatives of the deceased. They used a bicycle to transport them to the scene of the crime. At the scene of the crime the remnants were still there and police procedure started. In his cross examination, he said he took more than eight hours to question the accused. The second witness for the prosecution was Bakari Juma Ramadhani (PW2) who testified that on 28/8/2006 his father Juma Ramadhani Malunde told him that he was going to Mitundu to look for his stolen things which are bicycle, a bag full of clothes and small radio that were stolen by his-in-law, Shabani William. This witness told this court he left with his mother (the sister of Shabani William) to look for his father. He said they went to Mitundu village at the house of the accused's brother who told them that Shabani William is not there but he went to Useswanoni. They went to Useswanoni where they met a person, whom he referred him as "msukuma". He told this court that Msukuma told them that Shabani William is there but went to buy tomatoes so they should hide, waiting for him. They hid, Shabani came, Msukuma called them, Shabani wanted to run but managed to arrest. This witness said Shabani William told them that he left their father at traditional healer at Kiombol because their father had a stomach ache. He said Shabani William requested them to leave him and he will meet with them on Thursday at Mitundu village with their father. Because PW1 had no enough money, he returned to Itigi village, notified his relatives that he has not yet found their father but Shabani promised to bring him at Mitundu. PW2 further testified that on Thursday he went with his family to Mitundu to wait for Shabani. At Mitundu they were told that Shabani has not yet arrived so Mfaume and Omary Mwanjiwa went to look for Shabani. The next day at 1400hrs they brought Shabani to Mitundu, they looked for WEO, WEO came, asked them to leave the Accused with him. This witness said that WEC remained with the Accused for hours then told them "tuwe na subira" since the Accused will show WEO in the morning where their father is. In the morning, he 5 said WEO left with Musa, Militiaman and Shaban and returned at around lOOhrs. WEO told them "Poleni sana Mzee wenu kauwawa". And that Shabani William is at the police station but at 1400hrs he will take them to the scene of the crime. At 1400hrs they went to the scene of the crime by bicycle, Shabani showed them where he killed the deceased, they saw a skull that had a big hollow; a piece of trouser, shirt and belt, bones/skeletons. PW2 said they managed to identify the clothes as they belonged to his father. After that they returned to Mitundu, Shabani taken to the police, police went to the scene, took the remains. The remains were taken to Government Chemists then returned to them for burial services. Mfaume Adamu the third witness paraded by the prosecution (PW3) said that in August, 2006 he was residing at ltigi and in the same month of August, 2006 his grandfather Juma Malunde lost his bicycle and bags and when he asked around he was told that his in-law took his bicycle i.e. Shabani William. He said Shabani William was first residing at Mlowa but then moved to his-brother-in-law Mzee Juma. He said his grandfather decided to 11 follow his things so he went to Mgandu village and since then they did not hear from him. After a month, he said four of them decided to look for him at Mgandu but Bakari and Juma Issa remained at Mitundu while PW3 and Mwanjika went to Mwamagembe. At Mwamagembe, they were told that Shabani has left to Mitundu. So PW3 decided to go back to Mitundu and left his colleague at Mwamagembe. On his way, he saw Shabani resting at Msuku ma's house but when he saw him he started to run so PW3 asked Wasukuma to help him and they managed to arrest him. So they took him to first to Kilumbi Village slept there and in the morning they went to Mitundu. At Mitundu they reported to VEO and Shabani was questioned by VEO he was questioned till midnight by Mzee Bakari, and other people. After midnight VEO told them that the Accused left their father at traditional healer and he will show him where he is in the morning. In the morning Shabani left with VEO Mzee Bakari and one militiaman. They returned at 1000hrs or 1 lOOhrs and VEO told them "poleni sana" that their father has been killed by Shabani William 7 The fourth prosecution witness was Bakari Kasereya (PW4) a resident of Mitundu. This witness recalled that on 4/10/2006 at 1415hrs was called by PC Kamala and asked him to carry Shabani William in his bicycle. So he carried him and Shabani William was pointing for directions. Upon reach, PC Kamala drew sketch map and then went to a bush (Kichaka) and saw some skeletons, white shirt and a jacket. PC Kamala (PW5) who worked at Mgandu police station in 2006 testified that on 4/10/2006 at around 1200hrs he was at Mgandu Police Post and thereby came WEC of Mtandu Musa Bakari with the Accused Shabani William reporting that the Accused stole a bicycle and killed Juma Ramadhani. He questioned the Accused and the accused confessed that it is true and was willing to show them the area. So they left to the area. At the scene he saw human skull, some skeletons, coat and pieces of trouser and shirt. He said he drew the sketch map and collected the remains and then returned to the police station. Later on he said, his seniors came from Manyoni with a Doctor and other legal actions followed. He tendered the sketch map as Exh. P1._ 8 Emmanuel Robert Nganya an Assistant Medical Officer at Manyoni District Hospital appeared as PW6. This witness told this court that he conducted a Post Mortem Examination on parts of body skeletons, skull, upper hand parts , ribs, hips, pelvic and legs. He said the skull had a depression in the middle as if it was hit by a heavy object which means that the deceased had head injury hence death. He tendered the post-mortem report as Exh. P2. Anna Elia Chilongola a Resident Magistrate at Manyoni District Court said in October, 2006 she was a Magistrate at Manyoni Urban Primary Court. She recalled that on 19/10/2006 an Accused was brought before her in order to record his extra judicial statement as justice of peace. She said she informed the accused his rights and was willing to confess. So he recorded his statement. The statement after trial within a trial conducted was admitted as Exh. P3. The Government Chemist David Elias who analysed the skeletons remains was called as (PW8). This witness said according to his analysis he was able to establish that the skeletons are that of a human being. He tendered his report as Exh. P4 qw- The last witness is the investigator PC Hallah who said he was assigned the file of this case by his OC-CID on 7/10/2006 and was instructed to look for a doctor and go to the scene of the crime. He said he was able to secure one doctor from Manyoni District Hospital. He testified that he went together with OC-CID to Mgandu Police Post where the Accused was arrested and some exhibits were collected. They went to the scene of crime with the Accused, recorded some witness statements and then took the Accused and the exhibits to Manyoni police station. On 9/10/2006 he recorded the Accused's caution statement. The caution statement was rejected by this court as it did not comply with the provisions of the law. This witness also testified that he then took the Accused to the justice of peace on 9/10/2006 to record his extra-judicial statement. He also said on 10/10/2006 he filled PF.180 to forward the exhibits to Government Chemist for analysis. The Government Chemist returned the results stating that they are of Human being. On the other hand, the accused who testified under oath stated that he was arrested on 1/10/2006 at around 1400Hrs by Musa Bakari Musa and Bakari Juma Ramadhan at Useswanoni at 10 his home without being told why he was being arrested. He was taken to WEO office and WEO asked him to show where Juma Ramadhan Malunde is but he told him that he does not know because he has not seen him for a long time. He testified that WEO started to beat him by asking him to show where Juma Ramadhan is, he kept telling him that he does not know. He was beaten till late night and then locked in the office. He said he slept there till morning. At around 0800Hrs thereby came WEO with the children of Malunde, took him to Ukimbu police post, put in police lock up. On the next day that is 3/10/2006 was taken to Nyarumono Game Reserve by bicycle. The bicycle was riden by Bakari Kaselenge. They followed the road and at a certain point they stopped, diverted a bit into the bush (chepuka kidogo njiani) and went to place where there was grass. The person who was leading them, DW1 said it was Musa Bakari Musa. At that place he said they found skeletons and pieces of clothes. PC Kamala asked him if he knows anything about the skeletons, he replied him that he does not know. He said PC Kamala and Musa Bakari collected the skeletons and pieces of clothes. He told this Court that after that he was taken back to Mgandu police station and was locked 11 till 7/10/2006 when a car arrived from Manyoni and he was taken into the car, went back to the place where Kamala first took him and then was taken to Manyoni police station. He arrived at Manyoni police station on the same date and there he was put at police lock up till 8/10/2006 taken out and recorded his statement in which he denied the charge of murdering Juma Ramadhan Malunde so Hallah started to beat him heavily forcing him to confess but he kept on denying so he was taken back to lock up. On 9/10/2006 he was taken out again by Hallah and was taken to interrogation room where there were other police officers namely Mwanjiwa, Frank and Kamala. Hallah instructed him to undress and started to torture him by placing speck handle over his !egs and Hallah was swinging on top of his legs, beaten by the handle and was asked to sit on top of the soda bottle. Seeing all these tortures, DW1 testified that he acceded to confess so Hallah gave him a paper to sign which he signed. After that he was taken to WEO to record his extra judicial statement where he denied any involvement. Hallah took him again back to the police and threatened him that if he does not confess he will beat him again, so he was taken to Elia Chilongola,a Primary Magistrate where he IAVH 12 did not confess but the magistrate asked him to sign the paper which he signed it. DW1 denied to live with Juma Ramadhan and he said that he last saw him sometime in April, 2006 when DW1 was admitted at Itigi Hospital and Juma Ramadhan went to visit him. It was his believe that the whole case was concocted against him by the children of Juma Ramadhan since his sister who is the third wife of Juma Ramadhan has misunderstandings with the other two wives of Juma Ramadhan Malunde. I will start with whether there was a death of Juma Ramadhan @ Malunde that occurred on 6th day of September, 2006 at Useswanoni - Kayuki village in Manyoni District within Singida region. Let me start whether there was death of Juma Ramadhan @ Malunde. We are told by PW2 and PW3 that Juma Ramadhan @ Malunde left his home sometime in August, 2006 and since then he was nowhere to be seen. Mr. Ng'hoboko argued that by virtue of Section 117 of the Evidence Act, Cap. 6 Juma Ramadhan @ Malunde is presumed dead since ten years have lapse since he was last seen by PW2 and PW3. Section 117 of the Evidence Act, Cap. 6 provides: 13 "When the question is whether a man is alive or dead and it is proved that he has not been heard of within the preceding five years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is on the person who asserts it." PW2, Bakari Juma Ramadhan is the son of Juma Ramadhan and he told this Court that his father bid farewell to him on 28/8/2006 that he was going to Mitundu and since then he never heard of him. Further PW3, Mfaume Adamu who is the grandchild of Juma Ramadhan told this Court that his grandfather left in August, 2006 to Mgandu and that since then he never heard of him. PW2 and PW3 being persons who would naturally have heard of Juma Ramadhan told this Court Juma Ramadhan was last seen in 2006 then it is proper according to circumstances of this Court to invoke Section 117 of the Evidence Act, Cap. 6 by presuming that Juma Ramadhan @ Malunde is dead. The next question when did he died. Did Juma Ramadhan died on 6th day of September, 2006 as alleged by the prosecution. Looking at the testimonies of PW1; PW2; PW3; PW4; PW5; PW6; PW7; PW8; and PW9 none of them told this Court that the deceased met his 14 1 death on 6th day of September, 2006. What we have is that skeletons of human being were collected on 4/10/2006. We are also told by PW1 that on 3/10/2006 the accused confessed to him that he killed the deceased a month ago. If we go by PW1 's story then the deceased died on 3rd September, 2006 and not 6th September, 2006 as alleged by the prosecution. Further, none of these nine witnesses proved that the deceased died at Useswanoni Kayuki Village. Most of them such as PW1; PW2; PW3; PW4; and PW5 suggest that the deceased was found dead at a forest nearby game reserve. They did not come forward with the testimony that the deceased was found at Useswanoni Kayuki Village. The next question that I have to consider is how the deceased met his death. It was testified by Emmanuel Robert Ngaya that the deceased skull had depression in the middle as if it was hit by heavy object which means that the deceased sustained head injury hence his death. Mr. Ng'hoboko testified that the death was not natural as it was proven by the doctor that the skull had a depression which might have been caused by a hit of heavy object. Mr. Nyangarika argued that this witness is not 15 reliable because there are evidences which prove that the skeletons were found at the forest, nearby game reserve as such it the possibility that the death of the deceased was caused by wild animals cannot be ruled out. In order to determine whether PW6 is a reliable witness I have to evaluate his evidence. PW6 told this Court that the skull had depression. The post mortem report which this witness tendered as Exhibit P2 to establish the cause of death of the deceased is written "head injury (brain haemorrhage)". Further, this exhibit shows that PW6 examined the body of a male African adult and not skull or skeletons. Here there are apparent contradictions on the testimony of PW6 and exhibit P2 which he alleged to have prepared. The exhibit talks of head injury and not depression and it talks of a body of an adult African male and not 'skull or skeletons. Without resolving the contradictions on whether the death of Juma Ramadhan @ Malunde was caused by unnatural event then I cannot hold that the death of Juma Ramadhan @ Maunde was unnatural. Let me now turn to the issue whether the accused person who is before this Court was involved in the killing of Juma 16 Ramadhan @ Malunde. In this case no one saw the deceased being killed and there is no direct link to the accused person. This means, as ably suggested by the learned State Attorney that, the case depends wholly on circumstantial evidence. It has been emphasised by the Court of Appeal of Tanzania in its numerous decisions that where the case is based wholly on circumstantial evidence the court must always be on guard to avoid the danger of allowing suspicious and emotions to take place of legal proof, however strong the circumstances may be (See the cases of Mohamed Selemani Vs Republic, Criminal Appeal No. 105 of 2012 and Majuto Lungwa Vs. Republic, Criminal Appeal No. 269 of 2015 (both unreported)). It is therefore an established principle of law that, for an accused person to be found guilty on purely circumstantial evidence, the inculpatory facts must be such as to be incompatible with the innocence of the accused, and incapable of any other reasonable explanation than that of his guilt (See the case of Abdul Mganyizi v. R (1980) TLR 263; and Simon Musoke v. R (1958) TLR 715). Further in the case of John Magula Ndongo v. 17 Criminal Appeal No. 18 of 2004 (Unreported) the Court of Appeal echoed that: .in a case depending entirely on circumstantial evidence before an accused person can be convicted the court must find that the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt. And it is necessary before drawing the inference of guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. Indeed, this principle is well enunciated in the case of Ilanda Kisongo v. R (1960) EA 780 at page 782." Thus the question in the present case is whether the circumstantial evidences on which the prosecution side relies do irresistibly lead to establishing the guilty of the accused person beyond reasonable doubt and there are no other co-existing circumstances which would weaken or destroy the inference. This 18 question can only be answered by analysing the evidence brought forward by the prosecution. The circumstantial evidence which is heavily relied upon by the prosecution is the evidence of PW2. PW2 is one of the witnesses who told this Court that he went to look for his father after his father disappeared. This witness testified that his father left on 28/8/2006 heading to Mitundu to look after his stolen things. However, PW3 gave a different story as he told this Court that his grandfather went to Mgandu and not Mitundu. It was also the testimony of PW1 that the accused confessed to him that the accused met the deceased at Mwamagembe. From these contradictory statements it is not proved how and where the deceased met with the accused. The other circumstantial evidence which is relied upon by the prosecution is the testimony of PW1 who said that the accused confessed and showed him where he killed the deceased. As submitted by Mr. Nyangarika there is great possibility that this witness was influenced by PW2 and PW3 since he took the matter personally. I say so because PW1 told this Court that after the 19 accused was brought to him he started to question the accused and in his cross examination he said, he questioned the accused for more than eight hours. Further there are evidences from PW2 who told this Court that PW1 questioned the accused for hours and from PW3 who said PW1 questioned the accused till midnight. In that circumstance it is highly doubtful whether the accused confessed to PW1 on his free will without any threat or promise from PW1. There is also startling evidence that the remnants of skeletons were found nearby game reserve. Generally, it is usual and natural to find human body remnants such as skulls and skeletons at game reserve. All these evidences, if taken singularly or together, rise suspicious if after all it was the accused that showed PW1 the place. Another circumstantial evidence relied upon by the prosecution is the extra judicial statement which the accused made before PW7. The extra judicial statement was admitted as exhibit P3. The accused person in his defence was very adamant that he did not confess before PW7 even though he was taken before her. The accused person testified that he did sign the document that he was given by this witness but such document is 20 not the one that was tendered before this. The question that follows is whether the extra judicial statement having been admitted can be relied? In order to know whether I can put reliance on it, I have to be satisfied as to whether its contents are truthful or not. Exhibit P3 shows that it was recorded on 19/10/2006 and it was D/Cpl Mabula who brought the accused before PW7. However, both PW9 (the investigative officer of this case) and DW1 (the accused person) told this Court that the accused was taken before PW7 on 9/10/2006 and it was Hallah who took the accUsed before PW7. Here the testimonies of PW9 and DW1 differ in substance with what is contained in Exhibit P3. In that regard, the contents of exhibit P3 are not truthful and cannot be relied upon by this Court. It was also submitted that the skeletons found at the scene were of human being and they belonged to Juma Ramadhan @ Malunde because pieces of clothes were found at the scene which PW2 and PW3 were able to identify that they belonged to the deceased. Unfortunately, PW2 and PW3 gave different description of items found. PW2 said he saw a piece of trouser, shirt and belt, bones/skeletons while PW3 said he saw some 21 skeletons, white shirt and a jacket as such it is not clear what exactly was found at the scene of the crime being the belongings of the deceased. Worst still the items were not brought before this Court to prove that they were found at the scene of the crime. Further there is great possibility that remains are not of Juma Ramadhan @ Malunde and if they are then he might have been killed by wild animal. The Lady and gentleman assessors were of the unanimous opinion that the accused person is guilty as charged because they found the prosecution evidence of all nine witnesses corroborate each other. With great respect I do not subscribe to their opinion as circumstances narrated by the prosecution witnesses as implicating the accused, are inconclusive, in that not only are they consistent with innocence of the accused as with guilt, but also that they are capable of other reasonable explanation. I say so because there is no scintilla of evidence to link the skeletons found at the forest with Juma Ramadhan @ Malunde. It might well be that the skeletons found are not of Juma Ramadhan @ Malunde. Further there is no evidence linking thec PA accused to the crime. It might as well be that the deceased death was caused by wild animals. Lastly there is question of malice aforethought. Mr. Ng'hoboko argued that there was malice because the deceased was hit on vulnerable area. Mr. Ng'hoboko argued that there was malice because the deceased was hit on vulnerable area. As I have instigated earlier no evidence was brought forward by the prosecution to prove that the deceased's skull had depression. We have on record two contradictory evidences. The evidence of PW7 is in disparity of what it is contained in Exhibit P2 as they both cannot be relied upon by this Court. I resolve them in favour of the accused person. At the end I hold that the charge of murder preferred against the accused person has not been proved beyond reasonable doubt. I accordingly find the accused person not guilty to the charge of murder. The accused person is therefore acquitted and he is to be set free forthwith unless otherwise lawfully detained for another offence. DATED at Singida this 5th day of August, 2016. 23 JUDGE Judgment delivered in open Court at Singida under my hand and seal of the court, this 5th day of August, 2016 in the presence of the two assessors, Mr. Ng'hoboko, learned State Attorney and Mr. Nyangarika, learned counsel for the accused person. Right of Appeal is fully explained to the parties. Accused person is to pro''de his address. JUDGE 5th August, 2016. COURT: Assessors thanked and discharged. k. B.M.A Sehel, JUDGE 05/08/2016. 24