20170530 TZHC Mwanza

, IN THE HIGH COURT OF TANZANIA ATTARIME ORIGINAL JURISDICTION (AT MWANZA) CRIMINAL SESSiON CASE No. 61 OF 2014 THE REPUBLIC- versus 1. ORIKO S/0 KAJULA 2. RAMADHAN S/0 EZEKIA@ KAJULA JUDGEMENT • 29" & 30" May, 2017 J. A. DE-MELLO, J; Two blood sibblings namely; Oriko s/ o Kajula and Ramadhan s/ o Ezekia Kajula, are jointly are charged with the offence of murder c/s 196 & 197 of the Penal Code, Cap 16, R.E 2002. It is alleged that-they killed one S"mson Nehemiah over a land dispute. It was after the mid night of 23 rd of February, 2013 at Ochuma village in Rorya District within Mara Region that the two accused, among other three, invaded the deceased's homestead and killed him by setting fire on his iron sheet roofed house made of mud bricks. 1 Two witnesses in the care of State Counsel Heri Mbogoro, on behalf of the prosecution were summoned to build up on the case. These were none other than PW1 Meshack Samson, the deceased's eldest son and PW2 Casius Gachuma the then Acting VEO of the village where it happened. Lead by his Counsel PW1 testified to be residing at Kowaki village within Rorya District together with his father the late, mother Prisca and .two other young brothers, Lucas and Elphasi. Two times and following a land dispute, that is on the 15/02/2013 at around 5:00 p.m while the family was seated under the tree shade, the accuseds and other of their relatives invaded them equipped with machetes uttering words threatening to kill him. The other three (3) were Ezekiah, Adera and Ogoye. They all were from the same family, he stated. They left and, returned again on on 20/02/2013, at around 2:00 p.m this time around two of them equipped with clubs over and above each holding a machete. In fear, the family rushed inside and, the team approached the door shouting 'toka nje tukumalize'. All they wanted is vacant possession of the suit premise which the Primary Court after hearing parties, decided in favour of the father the deceased, PWl testified. They then left and the father took actionas he left to report the matter to the VEO. It was6n the 23/02/2013 and, while was asleep at his own house just within and close in the com.pound PW1 heard a yell froni his sibblings shouting for help from fire saying "moto moto". Waking up, he found the house on huge fire flames and could easily by those same flames managed to identify one Ogoye Anundu carrying a jelly can and making his way, running. Efforts to rescue both his parents ensued but could only managed to do· so with 2 f her mother who took a risk of passing through fire at the entrance door, while the father stuck inside and died. All the belongings inside the house to include beds, furniture, bicycle and motorcycle went into ashes. The alarm, pulled many neighbours who assisted to put the fire off. On cross- examination by the Defence Counsels PW1 narrated how he recognize Ogoye the.one and only he could identify at the scene. Being familiar and with the aid of light from the flames it was just easy to do so he observed. As a result of his statement all the five culprits were arrested, two of which Ezekia Kajula@Anundu and Adera Anundu who died while in custody but Ogoye Anundu is still at large to-date. It is the land dispute that is the cause of all this PW1 believes. I Then followed the evidence of PW2 Canisius Gachuma, the Village j Executive Officer (VEO) at Deti village but acting the time the -j incident happened at Kowaki. In his own sworn testimony he adduced l that on 22/02/2013 while at his office, he received a summons from the deceased from Yagoro Primary Court to one Adera Anundu for criminal threats. Acting in that capacity he submitted the same to Anundu, who inquired the origin and informed duly them coming from Samson. With that Anundu then signed acknowledging receipt. Strangely,· and not aware of the land dispute between the two sides, on the early morning of 23/02/2013 about 5:00 a.m he was duly informed of fire that gutted Samson's homestead leaving him dead while the wife badly wounded and, hospitalized. The matter was reported to the police who arrived promptly at the scene. He attended the burial and could spot the 3 . ' second accused's presence. The prosecution's was closed with the Court establishing a case to answer against the two accused. The defence, was lead by Counsel Msafiri Henga for DWl Oriko Kajula while, Godfrey Martine fending for DW2 Ramadhani Kajula. It was DWl Oriko Kajura, evidence that, he resides in Kamute village within Rorya District whilst remembering what transpired that fateful night of the 23/02/2013 when his neighbour Samson Nehemiah was burnt to death. However, he claimed to have heard the news while in Buturi bus stand from a bodaboda rider where he and his wife went to visit an ailing sister suffering from HIV. On cross-examination, he admitted not I to attend the burial for fear of the rumours that their family was alleged to .l be the culprits but on returning home that same day in the afternoon he was also arrested as well. He knew of the land dispute between his young father Adera and the deceased, though. He denied to have visited the deceased home with the rest threatening to kill on those stated days. DW2 Ramadhan Ezekiah@ Kajura, vehemently refuted the allegation as charged and, maintained to corroborate DWl's evidence never to have visited the deceased house on those two occasions. He however, was home all along and even heard and responded to the. yowe on the 23/02/2013 that came for Samson Nehemia's homestead. He even assisted in putting away the fire with other villagers and attended the burial. He is innocent and prayed for acquittal. Both sides opted not to present oral or written submission as the Court aligned itself for summing up in accordance with section 298 (1) of Cap. 20. Asssessors were lead of. the essence of summing up, charge levied, 4 . f facts, witnesses for both and the principle underlying all criminal matters ~ that of proof beyond reasonable doubts. With one voice all the three assessors found both accuseds 'NOT GUilTY' as charged with reasons ranging from the circumstance of the land dispute, the two threats visits on the 15/02/2013 & 20/2/2013 which even if true the incident for burning that lead to death never touched the two accused but Ogoye who is at large. Two principles underlies this case that of, visual identification which is of weakest kind and the most unreliable and, circumstantial evidence. It is trite law that unless all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely watertight, visual identity is horribly weak. In the case of Waziri Amani vs. The Republic (1980) TLR 250, Mhembo Ndalu vs. R, Criminal Appeal No. 33 of 2005 (Unreported) have amongst many that set the pace towards the reliance or not to visual identification. It is equally settled law that in a case depending for its determination essentially on identification be of single witness or more than one witnesses, that evidence must be watertight, even if it is evidence of recognition. Hassan Juma Kanenyera vs. R (1992] T.L.R,· Mengi Paulo Samweli Luhanga & Another vs R, Criminal Appe.al No. 222 of 2006 (unreported) are all evidnce to this. There is no magic in agreeing with PWl and the only eye witness that he could identify Ogoye and, no one else. including the remaining. four -accuseds two of which are dead now. Much as the existence of a land 5 I ! 1 l. I • I 4 dispute which all parties knew, the two visits which the two accused denied V to be part of leaves much to be desired to link them in actual burning of the suit premise and causing de9th of Samson. The law is very clear when dealing with circumstantial evidence, the Supreme Court of India in Balwinder Singh vs State of Punjab, 1996 AIR 607, had this to say:- "In a case based on circumstantial evidence the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they r:nay be, to take the place of proof (See, also SARKAR ON EVIDENCE, 19'1 Ed, p.65). In addition the case of R. vs .. Kipkering Arap Koske and Kimure Arap Matatu (1949) 16 E.A.L.R. 135, the Eastern Africa Court of Appeal held::- "That in order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than of his guilt, and the burden of proving facts which justify the drawing of· this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused" (See, also Attorney General vs. Murakaru {1960) EA. 484 at 488- 489; Ilanda 5/0 Kisongo vs. R {1960) EA 780). Shaban Mpunz.._ @ Elisha Mpunzu vs. R, Criminal Appeal No. 12 of 2002 (CAT) i {Unreported). I ;I The case of Ally Bakari & Pili Bakari vs .R. [1992] TLR 10, this Court ' J l stated:- "Where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be interred". To add more the learned author SARKAR ON EVIDENCE, is" Edt, 2004, at pages 66-68, pertinently observers: "Where circumstances are susceptible to two equally possible inferences, the inference favoring the accused rather than the pro~ecution should be accepted". The above cases and law were amplified in the recent decision of Mohamed Seleman vs. R, Criminal appeal No 105 of 2012 CAT at Mwanza. I for one, will not stop appreciating the findings in the qetailed case of Armand Guehi vs. Republic, Criminal Appeal No. 242 of 2010 which the Court in length and detail dealt with Circumstantial evidence in arriving to conviction. In the· absence of all the principles, this case is wanting and thus lacking. I urge you all to peruse and comprehend the findings. Suspicion alone, however incriminating, can not suffice conviction worse even to the two accused whom PWl categorically claimed not to ~ave seen that night. It is Ogoye and one on the run who was seen and maybe 7 the reason why he is at large to-date. On an obiter though it is sad to observe the laxity the village authority acted even when the threats were duly submitted by the deceased. If not for their passiveness, the deceased would have saved his life as the criminal matter would been attended to as the land had been determined and addressed promptly. In the above scenario I am left with. no option other than to release the two accused forthwith. The prosecution failed on its part to establish their case in accordance with the law. I therefore acquit both accused persons from custody, unless held for any other lawfully offence. It accordingly ordered. 8 ....