20170630 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 58 OF 2013 REPUBLIC VERSUS SAID HARUNA MAPEVO 15/05&30/06/2017 JUDGMENT MWANDAMBO, l Said Haruna Mapeyo (the Accused) stands charged with the offence of murder contrary to section 196 of the Penal Code, Cap. 16 [R.E 2002]. According to the information filed in this Court, the prosecution alleges that on 23 rd July 2010, at Ruvu Kisabi within Kibaha District in Coast region, the Accused did murder one Mussa Michael Mhagama now deceased. The Accused denied any involvement in the murder of the deceased and~.a-plea of not guilty was accordingly entered. According to the facts read during the preliminary hearing, the prosecution alleged that on 23 rd July 2010, the Accused who was a friend of the deceased and a fellow boda boda rider at Mlandizi, hired the deceased to fetch iron sheets from a place called Kwembe at a cost of Tshs. 4000/=. The deceased who was riding a boda boda T 553 BFS make SANLG accepted the offer and the duo left to the destination but never 1 ... returned. The following day, the deceased's relatives started looking for him but in vain and had his unexplained disappearance reported at Mlandizi Police Station at which investigation commenced. In the course of investigation, it was discovered that the Accused had travelled to Itigi Manyoni District and was in possession of a motorcycle Reg. No. T553 BFS make SANLG which was ordinarily being used by the deceased. The Accused was thus arrested by the Police at Manyoni and held in custody pending his transfer to Mlandizi Police station for the purpose of investigation in connection with the theft of the motor vehicle and disappearance of the deceased. The prosecution alleged that the Accused confessed to have killed the deceased and recorded a cautioned statement to that effect followed by an extra Judicial statement before a justice of the peace on 8 August 2010. According to the prosecution after a few days later, the Accused led the investigation to the place where he confessed to have killed the deceased and the body was found floating in Ruvu river. Owing to the decomposed state of the body, the Medical Doctor who examined the body did not establish the cause of the death. The following facts were agreed to be undisputed at the preliminary hearing that is to say; that the arrest of the Accused at Manyoni in Singida region on 28 July 2010, the fact that the Accused was a resident of Mlandizi and that a dead body of a person identified to be that of the deceased was found in Ruvu river. Likewise, the following exhibits were tendered and admitted during the said preliminary hearing namely; a sketch map of the scene of crime (exh. Pl) and a postmortem report (exh. P2). 2 . Except for the facts admitted as indicated earlier, the Accused denied the rest of the facts laid by the Prosecution. During the trial, the Prosecution produced five witnesses to prove of its case and tendered three more exhibits namely; a Motor Vehicle registration card for T 553 BFS registered in the name of Motokeo Michael Mhagama (PWl) and the Motorcycle T 553 BFS SANLG red colour admitted as exhibits P3 and P4 respectively and a cautioned statement of the Accused person tendered by PW4 admitted as exh. PS. The substance of the prosecution's evidence runs as follows. The deceased was a motorcyclist driver popularly known as boda boda at Mlandizi area, Kibaha District, Coast Region. PWl (Matokeo Michael Mhagama) who had bought the motorcycle in June 2010 entrusted it to his younger his younger brother, Mussa Michael Mhagama (the deceased) who used it for transport business at Mlandizi. Ally Rashid Salum (PW2) was a close friend of the deceased and a fellow boda boda operator at the same place. The duo used to visit each other at their respective homes and this witness knew the Accused as well as they were engaged in the same boda boda transport business at Mlandizi but the Accused operated from a different location from where the deceased and PW2 operated. PW2 and the deceased operated from a place called Zimbabwe Bar, Mlandizi Area. It is the prosecution's evidence that early in the morning on 23 July 2010, PW2 visited the deceased at his home before the start of their daily business. According to PW2, he found the deceased dressing up ready for the day's business and saw him putting on sports short popularly referred to as buckta, a khaki trouser a blue polo type T-shirt. Later in the day PW2 and the deceased were in a hotel at Zimbabwe Bar having their 3 meals. A little later the Accused whom both knew well as their fellow boda boda driver arrived at Zimbabwe Bar at/about 20:00hrs. He (the Accused) asked the deceased to drive him to Kwembe in Kinondoni District to which the deceased obliged after finishing his tea. Skeptical of his friend's safety driving to Kwembe that hour, PW2 offered to remain at the Bar waiting for his friend's return from the tdp. Unfortunately, the deceased did not return as expected. PW2's efforts to trace him and his passenger by their mobile phone numbers did not succeed because both of them turned out to be unreachable. In consequence, PW2 left the bar to his home and returned in the morning to find out if he could find his friend but in vain. Later on, PW2 met Mama Suzy who was deceased's aunt staying at Mlandizi. The said aunt had gone to that place to enquire the whereabouts of her nephew since she had not seen him again from the previous day. After unsuccessful search of the deceased they made a report to Mlandizi Police Station at which they were advised to continue looking for him and report back after expiry of 24 hours. In the meantime, PWl had reported at the police about the theft of his motorcycle and the police begun investigation on the theft. It is the prosecution's evidence that on 28 July 2010 PWl and PW2 got information from Mlandizi Police Station that the motorcycle, T553 BFS SANLG type used earlier by the deceased was found in possession of the Accused at Itigi Manyoni, Singida Region. Earlier, PWl, PW2 and the deceased's aunt had visited the Accused's place of residence to enquire about his whereabouts but he was at large. Later on they went to the home of the Accused's parents for the purpose but the parents couldn't tell their son's whereabouts. Subsequently, on 8 August 2010, PWl and PW2 received information about the return of the Accused along with the 4 ... Motorcycle. PW1 was asked to go to the Police Station to identify it which he did. and confirmed that the motorcycle to be his having given to his younger brother. To prove ownership, PW1 produced in evidence a Motor Vehicle Registration ·Card which was admitted as exhibit P3 whilst the Motorcycle was admitted as exhibit P4. On the same day, the deceased's relatives including PW1 and PW2 accompanied the police investigators which included E 2126 D/CPI Danstan (PW4) to Kisabi area near Ruvu Secondary School where the Accused had told the police to have killed the deceased by a hammer and threw his body in the river. It is the evidence of PW2 that he witnessed a pool of clotted blood and a hammer where the deceased met his fatal blow. PW2 also witnessed a channel of blood· and fallen grass towards the river where the body of the deceased the prosecution maintains that the Accused dumped the deceased on the material night. However, it is the prosecution's evidence that they did not see the deceased's body on that day until 12 August 2010 upon information relayed to the police by Jumanne Shamte (PW3). There is also evidence _by the prosecution through PW2 and PW4 that before they left the scene, they were invaded by an angry mob of youths who happened to be boda boda drivers from Mlandizi. The mob had demanded to get hold of the Accused with a view to killing him in the same manner he killed the deceased but eventually the police prevailed over the angry mob which dispersed. The prosecution evidence goes further that upon return to the police station, PW4 took the Accused to an office where he recorded a cautioned statement. Initially, the defence through Mr. Innocent Sama learned Advocate objected to the admission of it but after conducting a trial within 5 a trial to determine its admissibility, the Court overruled the objection and admitted it as exhibit PS. PW4 who was led by Mr. Emmanuel Maleko learned State Attorney read the contents of exhibit PS out loudly in Court. Essentially, the substance of the contents of exhibit PS is to the effect that the Accused had planned to own a motorcycle to run transportation business but due to financial inability he could not manage to own one and hence the plan to rob it from the deceased who had a newly acquired· motorcycle. This he did after hiring him to a fake trip with a view to robbing the motorcycle after killing its driver. Exhibit PS goes further that the Accused executed his intention on 23 July 2010 by asking the deceased to drive him to a place called Ruvu Madimla to fetch a luggage and gave him Tshs. 4,000/= as fare for the trip. The statement explains how the Accused asked the deceased to park a motorcycle at a certain place near Ruvu river and the two walked towards the river where he hit the deceased on his head by hammer he had hid in a small bag he was carrying on his back and later on the deceased lost consciousness and succumbed to death. After the killing, the Accused confesses in exh. PS having dragged the deceased and dumped the body in the river and took to his heels to where the motorcycle had been parked. Having changed his clothes he took the motorcycle and drove that night to Itigi to his cousin where he was arrested on 28 July,2010 and brought back to Mlandizi Police Station on 7 August, 2010. Regarding the discovery of the deceased's body, the evidence of PW3 says it all. This witness who is a peasant undertaking farming activities near Ruvu River saw a body of a dead man stuck in tree log in the river on 12 August 2010 and called the police at Mlandizi. Later on, PW3 assisted 6 C, the police to fetch out a composed body whose head and palms had been chopped off. That body according to PW4 was sufficiently identified by the deceased's relatives including PW1 and PW2 and upon completion of the requisite formalities including conducting a medical examination by a doctor, the police released the body to the deceased's relatives for burial. A medical examination report was tendered during the preliminary hearing and admitted as exh. P2. The identity of the body as that of Mussa Michael Mhagama was established by the evidence of PW1 and PW2 was not challenged. According to PW3, he saw no other body of a deceased person in Ruvu river between 23 July and 12 August 2010. Betran Mfalamagoha (PWS) was the last witness for the prosecution. PWS was at the material time a ward Executive Officer (WEO) for Mlandizi Ward to whom the police at Mlandizi took the Accused for recording an extra judicial statement following confession killing the deceased. Although his so called extra judicial statement taken from the Accused did not pass the test of admissibility, PWS was firm that the Accused told that he killed the deceased and expressed remorse for luring the deceased to rob his motorcycle and disappearing with it. Having ruled that the Accused had a case to answer, it was the Accused's turn to put up his defence which he did on oath. The Accused's defence was a complete denial of the prosecution's evidence. Firstly, the Accused denied that he was in Mlandizi on 23 July, 2010 having travelled by a lorry to Itigi, Manyoni District on 12 June 2010 for crop buying business. Secondly, whilst admitting having been arrested in Manyoni District, the Accused stated that his arrest was in connection with a 7 J . defective weighing scale and not theft of motorcycle or murder of the deceased. Likewise, the Accused admitted having travelled from Singida to Mlandizi on 9 August, 2010 with PW4 but denied having been informed the reason for his transfer or the offence with which he was alleged to have committed. It was his evidence that he did not make any statement before PW4 whom he Accused of torturing him to extract an admission to an offence he never committed. Further, the Accused denied having volunteered to be taken to any justice of the peace because he had nothing to confess for an offence he never committed. The Accused denied knowing PW2 and the deceased though he was a resident of Mlandizi. With that testimony the trial came to an end. Neither the Prosecuting Attorney nor the defence Counsel found it necessary to exercise their respective rights to make final submission as a result of which the court did not have the benefit of counsel's arguments on the case. I will begin my discussion by stating the obvious. As all criminal cases, the burden of proof is on the prosecution leading evidence that it is the Accused and no other person who committed the offence and the standard is that of proof beyond reasonable doubt. It is settled law that the burden of proof never shifts to the Accused at any stage of the trial. That is settled law in numerous cases including Mohamed Said Mtula V. Republic [1995] TLR 3. Discussing on the extent of the doubt required by the defence, Court of Appeal reiterated in Joseph John Makame V. The Republic [1986] TLR 44 that the Accused's defence need only raise a reasonable doubt into the eyes of the Court and no more. In homicide cases in particular, the prosecution has to lead evidence to prove not only 8 • the death but also the fact that the death was unnatural followed by evidence linking the Accused with the death of the deceased. - As indicated earlier, the death of Mussa Michael Mhagama is not in dispute. Indeed, PW1 and PW2 positively identified the body of the deceased as that of Mussa Michael Mhagama. According to the postmortem report (exh. P2) the cause of death was not established because the body was seriously decomposed with its head chopped and palms off. Consistent with the holding in Mathias Juma Bundala V Republic, CAT Criminal Appeal No. 62 of 2004(unreported), proof of death need not necessarily be proved by a medical examination report rather by other evidence including circumstantial evidence. It has not been suggested in this case that the death was natural and the fact that there is no direct evidence from a person who could have witnessed the killing of the deceased calls for evidence other than the medical examination report. Happily, the cautioned statement (exh. PS) tendered by PW4 provides an answer. It will be recalled that the Accused unsuccessfully attempted to assail the admissibility of exhibit PS but the fact that the cautioned statement is now part of the prosecution's evidence is not the end of the road. It is trite law that admissibility of evidence during the trial is one thing and the weight to be attached to it at the trial is a different matter altogether (see: Steven S/o Jason & Two Others V. R. CAT Criminal Appeal No.79 of 1999 (unreported). It has been consistently held that despite admission of a cautioned statement as in this case the court has to test its probative value and that the court can act on such statement if it contains nothing but the truth incriminating the maker of the charge he stands charged with- see luma Magori@ Patrick& 4 Others V R, Criminal Appeal No 328 of 2014 9 cited in Joseph Stephen Kimaro & Another V R, Criminal Appeal No 340 of 201S(both unreported). Having examined exhibit PS I cannot but state that it contains nothing but the truth and I can safely rely on it without the need for corroborative evidence. According to the contents of exh. PS, the deceased was hit several times on his head by a hammer which the Accused had in his bag on the material date and time. That resulted in him being totally unconscious and hence his death. In the circumstances, it can be safely concluded that the deceased meet his death result of a hit on his head which led to unconsciousness and oozing of blood found at the scene of the crime as confirmed by PW2 and PW4 who physically visited the scene on 8 August 2010 led the Accused person. In the same vein, according to exhibit PS it is the Accused who caused the death of the deceased and he did so with malice aforethought. Malice aforethought can be clearly established by the following; one, the Accused had made a plan to own a motorcycle to run a transportation of passengers' business at ltigi which according to him proved to be more lucrative than Mlandizi but due to financial constraints he could not afford one. Two, the deceased had a new motorcycle (exh. P4) which was entrusted to him by his brother (PWl) who had acquired it in June 2010. The Accused is on record stating that he planned to rob the motorcycle from fellow drivers and eventually he started making preparations to execute his plans by acquiring a hammer with which to hit and kill a driver whom he could hire and later flee with the motor vehicle. Three, true to his plans, the Accused hired the deceased at night hours by pretending to drive him to drive to Ruvu Kisabi or any other place where he could easily execute his intention without being seen by anybody. That piece of 10 ~ " evidence is corroborated by PW2 1s testimony who is on record to have seen the Accused hiring the deceased 1s motorcycle on the night of 23 July, 2010 at•Zimbabwe Bar Mlandizi area pretending to go to Kwembe to fetch iron sheets and never returned. Four, the Accused had prepared a hammer which he hid in a bag on his back and used the hammer to hit the deceased on his head as they walked towards Ruvu River after parking the motorcycle. Despite the deceased running after suffering the initial hit by the hammer, the Accused chased him and applied his hammer to hit him until he met his fatal death. Five, the Accused dragged the deceased towards a river and dumped him in the river before running back to where the motorcycle was parked and left to Itigi that very night without the knowledge of his parents. PW2's and PW4's testimonies indicate that they both saw a hammer which the Accused used to hit the deceased as well as remains of blood and fallen grass towards Ruvu River. Furthermore, the body of the deceased was discovered by PW3 floating in Ruvu driver in a decomposed state. The totality of the evidence establish beyond reasonable doubt that the Accused killed the deceased with malice afore thought. The motive was to rob the deceased's motorcycle without being seen by anybody. At any rate, even assuming one was to discount the confessional statement, there is still further evidence to connect the Accused with the death of the deceased. Admittedly, none of the witnesses for the prosecution testified to have seen the Accused killing the deceased but in the context of this case, circumstantial evidence is strong enough to link the Accused with the deceased's death. I am alive to the principle that such circumstantial evidence can only be relied upon if the circumstances 11 \J are such that they lead to the only irresistible inference th.at the Accused committed the offence consistent with various decisions of the Court of Appeal binding on this court. The cases include: Halima Mohamed & another V R, CAT Criminal Appeal No. 30 of 2001(unreported), Ally Bakari and Pili Bakari V Republic [1992] TLR 10 cited in Kulwa Malinganya V Republic, CAT Criminal Appeal No. 338 of 2007(unreported). Guided by the foregoing authorities it will be clear that the circumstances in this case are so closely connected that they lead to an irresistible inference that the Accused committed the murder. Firstly, the evidence of PW2 established clearly that the Accused hired the deceased from a place called Zimbabwe Bar, Mlandizi area on 23 July, 2010 at/about 20.00 hours to kwembe. Two, contrary to PW2's expectation, the deceased never returned to Zimbabwe Bar on that date or at all neither was the deceased seen against alive. Indeed, the rule that the last person to be seen with the deceased is presumed to be the killer applies squarely against the Accused in this case on the authority of Mathayo Mwalimu & Another V.R, CAT Criminal Appeal No. 147 of 2005 (unreported). Three, the Accused was never seen again in Mlandizi both at his and his parent's home. His sudden disappearance from his usual place of residence without -...__ the knowledge of his own parents is inconsistent with innocence. Four, the evidence of PW4 clearly indicates that the Accused was arrested at Itigi, Manyoni in Singida on 28 July 2010 in possession of a motor cycle previously used by the deceased. That brings me to another important point for determination namely; the doctrine of recent possession. 12 ,: /'I " In essence the doctrine of recent possession appears to be derived from a Kiswahili proverb which runs thus: Mkamatwa na ngozi ndiye muuaji meaning that person found in possession of an animal's skin is taken to be the killer of the animal. In criminal jurisprudence the doctrine means in effect that unless reasonable and/ or satisfactory explanation is given, a person found in possession of a recently stolen property is deemed to be the thief, burglar, or robber or receiver (See: Mussa Ally V.R (1968) HCD n. 157) or the murderer (See: Kulwa Athman@ Mpunguti & 3 Others Republic, CAT Criminal Appeal No. 29 of 2005 (unreported) and Ally Bakari & Pili Bakari [1992] TLR 10. The prosecution must prove that the thing found in possession of the Accused is the one which was stolen during the commission of the offence. In Alhaji Ayub Msumari and Others v Republic, Criminal Appeal No. 136 of 2009 (unreported) the Court of Appeal held that: 1 ~ •• before a Court of law can rely on the doctrine of recent possession as a basis of conviction in Criminal Case, ... it must positively be proven, first, that the property was found with the suspect; secondly, that the property is positively the property of the complainant, thirdly, that the property was stolen from the complaint, and lastly 13 .. -· · - ·-·-- · - - - - ---- ·-·---- .. that the property was recently stolen from the complainant. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and only discredi(ed evidence on the same cannot suffice, no matter from how many witnesses." See also: Julius Matawa@Babu@ Mzee Mzima V R, CAT Criminal Appeal No. 137 of 2015(unreported). It is indisputably in evidence that PWl was the legal owner the motorcycle (exh. P4) as confirmed by exhibit P3 having entrusted it to his younger brother (the deceased). The fact that exh. P4 was so entrusted to the deceased was sufficiently proved by PW2 who witnessed the deceased driving that motorcycle for the last time on 23 July 2010 and left with the Accused as his passenger. Two, PWl reported the theft of exhibit P4 at Mlandizi Police station on the wake of 24 July 2010 and according to PW4, the police opened a file and mounted investigation thereafter. Three, a few days later, the Police in Manyoni District arrested the Accused in possession of exhibit P4 having the same description contained in exhibit P3 and others as explained by PW2. Four, PWl positively identified that the motorcycle was his corroborated by PW2. Five, the Accused did not offer any explanation how he came into possession of exhibit P4 and in the circumstances, the only irresistible conclusion must that he robbed the motorcycle from the deceased and this he did after killing him. There is no doubt that the prosecution's evidence has sufficiently established the basis 14 for a positive application of the doctrine of recent possession. I will now turn my attention to the Accused's defence to see if it has raised any reasonable doubt in the prosecution's evidence. As seen earlier, the Accused's defence was a complete denial of responsibility of the murder of the deceased. In particular, the Accused raised the defence of alibi. Although he did not lodge any notice to rely on that defence as required by section 194(4) of the Criminal Procedure Act, Cap. 20 [R.E 2002] (the CPA). I am bound to consider that defence all the same guided by the Court of Appeal decision in Marwa Wangiti Mwita and Another v Republic [2002] TLR 39 in which the Court held that the absence of notice required by section 194(4) of the CPA does not mandate or authorize the outright rejection of an alibi, though it may affect the weight to be placed on it. A similar stance was taken by the Court earlier in Charles Samson v Republic [1990] TLR 39 and Rashid Seba v Republic, CAT Criminal Appeal No. 95 of 2005 (unreported). According to the Accused, he travelled to Itigi by using a lorry on 12 June 2010 for business entailing buying of various crops including sunflower. Whilst admitting his arrest on 28 July, 2010 the Accused stated that .he was arrested in connection with a faulty weighing scale which had nothing to do with theft of a motorcycle (exh. P4) or the murder of the deceased. By that evidence DWl meant to say that he was not at Mlandizi area or anywhere near that place on 23 July 2010 the date the prosecution alleges that he committed the offence. If this defence is sustained, it will be enough to exonerate the Accused from the offence. It should be noted that scanty as the defence might appear to be, the duty to prove that the 15 ."I ·• Accused was present at the scene of crime lies in the prosecution. This is consistent with the fundamental principle of law that proof in criminal cases lies squarely on the prosecution and never shifts to the Accused person (See: Mohamed Said Mtula V. Republic (supra). The question for my consideration and determination is whether the Accused's defence has raised any reasonable doubt to displace the prosecution's case. PW2, who was very familiar with the Accused and the deceased, saw the Accused on 23 July, 2010 at/about 2000 hrs hiring the deceased's motorcycle. That evidence has not been seriously challenged and indeed it has been corroborated by exhibit P4 which details out how the Accused planned to rob the deceased's motorcycle after killing him. That evidence clearly indicates in sufficient details how the Accused travelled to Itigi, Manyoni District on the night of 23 July, 2010 using exhibit P4. Similarly, PW4 who went to the Accused's parents to enquire about the whereabouts of the Accused told the Court that he talked to Accused's uncle by phone at the home of the Accused's parents and the said uncle confirmed to PW4 that the Accused had arrived there two days before with a motorcycle (exh. P4). Subsequently, the police at Manyoni arrested the Accused and held him in custody until he was transferred to Mlandizi Police Station by PW4 on 7 August, 2010. In my view, the prosecution's evidence proving the presence of the Accused at the scene of crime is too strong and water tight to be displaced by the Accused's defence of alibi or at all. I would thus reject that evidence. The gentlemen assessors have each returned a verdict of guilt and I entirely agree with them. I am satisfied that the evidence by the 16 prosecution taken individually and in its totality on each aspect has proved '.""'," ' the charge beyond reasonable doubt that the Accused and no other person killed the deceased with malice aforethought. He is accordingly found guilty of murder contrary to section 196 of the Penal Code _and accordingly - convicted of that offence. There is only one mandatory sentence which this court is required to impose to a person convicted of murder as it were. The Accused is accordingly sentenced to suffer death by hanging. Order accordingly. 17