20171113 TZHC Dar es Salaam

. IN THE HIGH COURT OF TANZANIA ~ (DAR ES SALAAM DISTICT REGISTRY) AT DAR ES SALAAM CRIMINAL SESSIONS CASE . NO. 120 OF 2015 REPUBLIC ·vERSUS . iDDI S/0 JUMA@ KALOWELE, : . JUDGMENT ·,L.·'.·:~~~-.:{)foJi~;~:i-i3th Nov. 2011 - :-<J,;l;}i"~UMANYIKA, J. · · ·:::.\. · · -· Iddi. Juma @ Kalowele (the accused), stands charged with murder. · <.. ·.-:: r·; ?t~f$;~~l96 Cap:16- RE-2002: · That he murdered Ashura-Alfan Kisuguru (the. ·:;~. ;'.J}i_'.:j}fi:ije:c~~;e!cl).on 09/08/2010 at Mdimuni area Mkuranga district Coast Region. . -. _- - •~.:·,.:_.,~•.I_,:....•••,\:;~:•:.• I•<; ...: ... ~;.•...... •. • ' • . : ·• . ;\:·:·_?·:~~essrs V. Kidabulo and E. Olomi learned state attorneys appeared for . . . •· _·:_ : : _ :,:,:,,_J~7:._ R~public. Mr. Robert' Kipingili learned defence counsel appeared for the : _;_ ·L/{:;:;J!t¢.~sed. · Messrs Banard Ntumbp, Msakala Tambazi and Shedad K. Shadad ·-• i:-_- - gentlemen.assessors . . . . ably sat with me. . . . ; ·-:.:. · :C::PW1 Hidaya Mwarami (42) stated that just as the deceased (mother) . ·-:;._ ._-.:.::··.'. . '<:"ah~f:hefself .- ....... . had left home on the 9/8/2010 at about -·: .. . 10.00 am, thereafter . . C:.::."., .:}f::th.~/,B~~~ased proceeded to bushes fo.r some herbs. Therefore on. the way .. '· •• ·--~~- -,-..::·\_·:.-:-. :",•;,.-: • •• - •• > ···- • • • _. • • •• • · ·.: : ;:_ ··t11e·,two parted company. Suspiciously however, she (Pw1) could. not _· .··:·.·_,., ·.· ".:-": :-.•._:.,_,_:.· {- ,pr;o~~ed ..:.·,/.:~·:- · ... to buying fish. She u-turned. That as was still around looking for .·- ., . . . . . ,· 1 . -~,--. ' .. . .'.·. -·· .. ~~'.f_;~~f.:~~§..~;§;7=:---~·-·=,·~--..,,\:f'=~:~---,-- :·-,,~_-:c;..,-·~---.- - - - c - , . _ : - , - - ._ _ _ _:____;__ _.,..--_..::_ •. - -----:--·---,...:..~·-·::·.·- 'L : . ·::•>·.. ··- - -----. . .._:.·--~~ •·· • ' 1 • i -· , .-•• • 1 .·; ·.·~,;.- ; •, -. "';, • .,_ . ••,~ ,, ; ' .I. • •;-.."' • 1·, ~,· . .·_ .,.,.;,..· t-,.·. >·-''~~ ·. '> ~-. ;•:·: . J'. ·. . · I. · the deceased in order to inform her about the cancelled trip, Pw1 met the . accused. She doubted and warned him. That had the mother been found · in_ any way murdered, only the accused would be held responsible. That as c:igreeably as spouses were now looking for the mother, PW1 just in front sa~_ .th~_ ~ead body. Instead, the accused turned to her and deadly stabbed her with a knife. and threatened to kill her. Allegedly Just as he· had done to the deceased. That very difficultly though, she walked around · · and reported him to the Local cluster chair and Village executive officer. Then rushed her to Mkuranga and later Muhimbili hospitals. That for reasons not known_ to Pw1, the accused, (who then disappeared until 2012) .,_ :a~d de~e~sed h~d been at. lcigge; head~. -A~ the accused ·always lamented · :. · · that the deceased was responsible _for unhappy marriage life that the spouses hc!d. But she (Pw1) had not reported it to any authorities. Pw2 Lemki Bakari Born (1953) stated that he was at the time the cluster Chair thereof. That with regard to the matter, he met Pw 1 around . but deadly cut injured. Reportedly by the accused. It was at 9/8/2010 at · ~bout noon. . Tha~. the deceased was in the bushes brutally murdered. Indeed, Pw2 and team found, at the scene, the dead body in pools of · > blood. That the polic;:e and doctor did the needful. That shortly, Pw1 fell unconscious before could name- the responsible murderer. That the ._ accused was at the time at large. Pw3 Mwajuma Yusufu (Born 1942) stated that the accused was, with respect to Pw1 her brother in law and village mate. But could not know about private/marriage life style of the spouses before. That 11ke others, · she learnt about the terrible and shocking two incidents about noon. Pw1 2 ' : . •-£S;::Jif:if;$,~~-:y'c'.~~;t'.•·•-'~:.·. ••:rr• ,. - ·',~ .•·. ·--· . . . .·. · :-.· ~-}:::::., -~ ~ ~.: ~~ )}~,,;ri ;t. .:_i:\f,~~i .. · .. -~-- ' 7 - •• - - - - < I seriously cut injured and the deceased brutally murdered. That the dead body was found abandoned naked in bushes in a water trench. That she (Pw 2) could not know whether or not accused was the murderer. But the latter did not at all join them. It being for attending Pw1, or in the burial ceremonies and rites. Pw4 Constantine Mathias Kibela (60) a Medical doctor with 36 years work experience. A graduate of 1997 with Advance Diploma in Clinical Medicine, stated that he was, at the time not yet retired from public service. Stationed at Mkuranga District Hospital. That he, with respect to the incident conducted on 9/8/2010 at about 16.00HRS at the very scene ~ post mortem examination on a female dead body. Supervised by one Afande Rajabu (Pw5). Cause of death established - severe· hemorrhage "through sharp object" cut wounds (copy of the PMR on examination - Exh . "P1 '') • Pw5 E. 7622 D/CPL Raja bu (47) stated that as he was at the time at . work Mkuranga CID, but through a phone call having learnt it from the local V.E.O, he joined the investigations team. The doctor (Pw4) also joined them. Whereby the deceased had been found slashed with a panga ap~:>'arently in the head and shoulder. That he (Pw5> also drew a sketch map of the scene (Exh "Pi''). That the accused remained at large say for two years. Until was arrested in 2012 away at Mbagala Rangi Tatu in the City. That by this conduct also, the accused was charged. Pw6 Hamisi Bakari Tega (Born 1967) stated that he was accused's brother and knew well the latter's family. That like others, he was 3 -~--- -.. ...~.. -- - - ~ ... •. · . ~~, . -· ·--- ... ,• . : -. -;_ -~ - '. . ' . informed about the incident by the local VEO. That he did not see the accused since. But herein the court. And could not remember when and where he saw him last. That is it. The accused in his defence just denied the charges and involvement in the two incidents. That he was, on the alleged material date and time away but busy as laborer in shambas. That now on his way back home, he learnt about the shocking news from one Vicent. Whereby the latter advised him not to. Indeed the accused never went home since. Until at the time he was arrested at Mbagala Rangi Tatu in the city. That he infact had, from distance been supporting the family., That he was not obliged to attend the funeral/burial ceremonies and rites. Suffices Pw1 (his wife, with whom had been not less than s· years in marriage) and others did it on behalf of others ( copy of his statement made before police - exh "D1"). The issue is whether the accused is the responsible murderer. Apparently, the prosecution case only hinges on circumstantial evidence. Namely the accused's conducts immediately after the incident, i.e. running away and remained at large until such time he was arrested at Mbagala Rangi Tatu in the city (two years later). Circumstantial evidence is evidence other than the direct one. It is settled law that by adverse inference, accused's conducts before, at the time or even after the incident, can be convicted. It is trite law that circumstantial evidence forms conviction only where the evidence available irresistibly finger pointed and suggested that nobody but the accused committed the offence 4 charged (See the case of Haruna Mohamed & Another V.R. Criminal Appeal No. 30 of 2011 (CA) - unreported. Looking at the evidence, there has been, frankly speaking no proof by prosecution that indeed they looked for but could not trace the accused · for two consecutive years or even shorter time. This one being material . and as said the sole evidence, it needed to be proved beyond reasonable doubts. No police RB No. was even disclosed. With a view at least to seeing when exactly the accused was by them declared Persona Non Grata. It was not enough only to allege. He who alleges must prove. More so, the accused in his defence insisted that while was busy earning bread for the family, and wife (Pw1) was always aware, he, from the distance, but here in the very city supported the family. This crucial evidence was not challenged. Even if, on this one the accused told lies (he in fact may have simply deserted the family). It can not be proof by the prosecution of their murder case. Accused would only be the irresponsible husband/ father. As the case may be. Whether or not the accused and deceased ( according to Pwl) had been in cold blood is immaterial. Accused, on that basis may have been suspected yes! But however strong may be suspicion alone is no basis of conviction. Moreover, admittedly having been the last person accompanied. by the deceased, as she met the accused Pw1 just very quickly and simply expressed to him, her fears and possibilities of the deceased being murdered! Leave alone her (Pw1's) allegedly through "instinct" leading to cancelling the trip, u-turned and just began looking for the mother around. It sounds like Pw 1 knew, and reasons to know what shortly may have 5 ',}#()l~~b;jeJ"la;i:l;l:::e.:.n_··._.· the deceased. T-he accused .and deceased may have·· been at ~·:._,~~-::.-~:./~.::'.~~\'.·\:.'. •..~.;.~(- ... .:~ . . . ' _·: •. ~/:;.::{::iB.~ig~r' heads. yes.I But . admittedly the daughter (Pw 1) never bothered to . . /:_·/_.::-·;-~.:-:i_>:\:-\f< (-"::. ··::·:,:'· . -.. . . . . -.. ·_ .:\:\_:\:f~h~v~ttfe· differences solved. Leave alone attempt to. Nevertheless both or · .\··.-_:-::--\:·-.~::·.--:~~--:·.\.<J·~':·;::~:.-: ·. :::"' ;-_ . . . . . . . . ,:<~>:/;(:.ifi\h.~if-:6ft.he spouses had, on it a concealed agendum. That also casted:·-. , > '.jjj~)i~::%f-1:~i~'.~tj:n~·ple doubts on the prosecution case. I don't think one needs to talk .: . -~: ~: . . :<;-~::.:~~/\ '. ~:).:· ~:;~<:: ~-\ _.;. -~ .·- ~ __._ . " - •i - ~ • ·-- .... - • - . . • • . •.• ~ - - • •· - • •• : --- • .: _- • •• •·:::t::.-:·)\.>i~pput:motive thereof. Because it is trite law that complex as human ~:-'~-·:\:".\).=:-f>?.!;_-.:~·/,/::i://·:~\-:~ - ~, :. _. ._· . . . <::t':\::?::?)0!P.&Y~h9l:9gy it is, proof of motive. in homicide cases. is immaterial. •_.,t/ff:T(fff :}}):.·::,::.: ·. :. . · . · ·. ·· ::\·/;\\}:;7\/':?·rt . Irtthe up short, the accused in hereby acquitted. Him be set free.·. :-::-<\-:: ,~:.~-:.)_:~\:.~:-:-..\~::.~::.::•.: -._t- . ~---.. .. . . . .. . . ·_ ,:',:·· ·:::.\' : ,qp!$_S!i wa·s otherwise held lawfully for some other cause. . Ordered :: :::;:.::· ·:-:.::: .... ··.. ·.. ···;~ {i~ri?\tM}iiir::~:,of appeal explained. -··-- ·- ,--s:·M. Rumanyika· JUDGE 04/11/2017 ·. ·,- :.. ···:,':::\ · \[)eliver:ed under my hand.- and seal of the court in court. This · · · ,13/11/2017 in the presence of Messrs V. Kidabulo and Elizabeth Olomi : ,;;;·.:: ,,·.>l,ea:r.nep_State . ,._ Attorneys and Mr. Robert Kipingili learned defence counsel. .. ·:.-- '· _-; ·-· S. M. Rumanyika 'JUDGE 13/11/2017 6 --I"-'!'.-· .,,....2.,. -:~ • • • :..~ ·1 :---.....---•.·- -- - . - .