republic vs mohamed said others 2018 tzhc 127 30 october 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 35/2014 THE REPUBLIC VERSUS 1. MOHAMED SAID 2. ISACK CLAVERY @ ISACK 3. MASUNGU RUGOMA Date o f last order: 26/10/2018 Date o f Judgment: 30/10/2018 JUDGMENT MALLABA, J On 21/07/2015, Information was filed by the Republic, against three accused persons, namely, Mohamed Said; Isack Clavery @ Isack; and Masungu Rugoma for the offence of murder c/s 196 of the Penal Code [Cap. 16 RE. 2002]. It is alleged in the Information that, the three accused persons killed one Edward Angelo on 07/03/2013 at Rutewe Village, Kimwani Ward in Muleba District, Kagera Region. On 18/10/2018, the case against the 3rd accused abated, after the court was informed by the Republic of his death. Page 1 of 15 In order to prove the case against the accused persons, the Republic brought four witnesses. One Rodrick Edward testified as PW1. He testified that, on the evening of 07/03/2013, he was at the shamba of one Leonard Nchimani, essentially stealing maize from that shamba. In other words, he was caught stealing the maize. The one who caught PW1 was one Rashid, who raised alarm. Many people came and participated in beating him. They then took him to the house of 1st accused Mohamed Said, who was the Hamlet chairman. While at the house of the 1st accused, he was beaten and asked to stop stealing. Thereafter, the Hamlet chairman ordered the father of the witness to be brought. The Hamlet chairman Mohamed Said asked one Kajama and Isack to go and bring the father of PW1, Edward Angelo. The deceased was indeed brought. When brought, they started to beat him using clubs and sticks. They beat him at different parts of the body. It is claimed that, there were solar lamps at the scene. The same were bright, that is why the witness claimed to have seen and identified those assaulting his father. He was also closer to where his father was, that is, 5 paces away. The deceased was beaten till he fell unconscious. There were no barrier in between where the witness was and where his father was. He identified those beating his father as being Mohamed, Rugoma, Isack, Rashid and others. His father died right there. They were thereafter put in a house. People dispersed save for Mohamed and Isack. In the morning, the Rutemi Village Executive Officer came and took the witness to his office. PW1 Stated that, it was his father, the deceased, who directed him to go and steal maize. When Page 2 of 15 he was being brought where the witness was, the deceased was being beaten. When he arrived, he was already swollen and on arrival, he just said to the witness “mimi naenda, ubaki unamlinda mdogo wako”. Thereafter he continued to be beaten. One Tumwesiga Lwakayongo testified as PW2. He is the Village Executive Officer of Rutemi Village from 2011 to 2014. He knew the deceased Edward Angelo as a resident of his village. On 08/03/2013 at around 7:00am, while at Muleba, he received a call from the Rutemi Village Chairman called Maungo Maingu, informing him that, at Galu Hamlet, a person has been killed by beating. He went to the scene. He found the deceased at the house of the Hamlet chairman, Mohamed said, the 1st accused person herein. The body had injuries at the face, head and legs. The witness called by phone, the OCS for Kajimorwa Police Station informing him of the incident. The police came with a doctor, who performed a postmortem examination. After the body had been examined, it was released to relatives for burial. PW3 was one G 792 D/C Isack. He is a policeman at Muleba Police Station. In 2013, he was at Kijimorwa Police Station. On 08/03/2013 at 10:00am, while at his station, he received a phone call from the Village Executive Officer of Rutemi Village, informing him of a murder incident at the house of the Galu Hamlet chairman. He informed the OC-CID, who allowed them to proceed to the scene of crime with a doctor. He was with E. 904 CPL Athumani. They went to the scene of crime which was at the home Page 3 of 15 of the 1st accused. He saw the body of the deceased, which was outside the house. It had injuries at the head, face and the legs. The sketch plan was admitted as exhibit P I. The witness, who was with the doctor who performed postmortem examination, tendered the report of post-mortem examination as exhibit P2. The defence made an application that, despite the postmortem being tendered and admitted as an exhibit, the doctor should be availed so that could be cross-examined. PW4 was Dr. Fidelis Nyanga Mabula. He is the doctor who performed the postmortem examination on the body of the deceased. At the material time, he was the Muleba District Medical officer. He found the cause of death to be severe internal bleeding. The whole body indicated signs of canning. At the back, there were a haematoma inflammation. At the closure of the prosecution’s case, this court was of the opinion that, the prosecution established a prima facie case. It ruled accordingly and the accused persons were given their right to defend themselves in terms of section 293 (2) of the Criminal Procedure Act [Cap. 16 RE 2002]. The two accused persons each testified on oath. The 1st accused called another person as a witness for his case. The 1st accused testified as DW1. He stated that, before his arrest he lived at Galu Hamlet, Rutemi Village, Kimwani Ward in Muleba District. He was the Hamlet Chairman. On 07/03/2013, he was at home with his family. At 8:00pm, he went to bed. While at Page 4 of 15 bed but before getting a sleep, some six people knocked at his house door. The six included Cleophas Bejumla who was a ten cell leader at the place where the deceased lived. There were also Rashid Clavery; the deceased Edward Angelo; Rodrick Edward and other two whom the 1st accused did not know. Cleophas Bujumla, the ten cell leader stated to the 1st accused that, they have taken the deceased from a mob which was administering mob justice after the deceased and his son (Rodrick Edward) were found stealing maize. As it was night, he gave them a place to sleep. It was between 10:00pm and 10:30pm. At around 3:00am of the next morning, Rodrick Edward knocked at their door saying his father has dropped down. The 1st accused went to call Rashid Clavery and Cleophas Rwejumla, the two who had brought the deceased. When back, the deceased was already dead. He asked the two to go and report the incident to the village chairman. While there, the two were arrested. The witness was later arrested on 08/03/2013. At his home, he claimed to be using a kerosene lamp (kibatari). He did not have solar lamp. He claimed that, he did not see the deceased with injuries or wounds. DW2 was Apolonia Mohamed, the wife of the 1st accused. She testified that, on 07/03/2013 at around 9:00pm, as she was at bed, two persons went at their home. They were with the deceased Edward and his son Rodrick. His husband, the 1st accused person, went to open the door. She also went out very briefly. At 3:00pm, the son of Edward (deceased) went to the door where the 1st accused was, to say that the deceased had fallen at the door. His Page 5 of 15 husband went out and also she went out. In cross-examination, the witness testified that, as she saw the deceased person, “alikua na tualama alama” such that she concluded that, the deceased had been beaten. The 2nd accused, Isack Clavery, testified as DW3. He is a fisherman. On 07/03/2013, from morning, he was at home. At 4:00pm, he went to the fishing beach of Kibele. He remained there up to 8:30am of 08/03/2018. After the summary of the evidence for both the prosecution and defence as above, this court will now turn to consider and evaluate the said evidence, to see if the prosecution has managed to prove the accused person’s guilty to the required standards. In criminal cases, the burden of proving the accused person’s guilt always lies with the prosecution side. This is in terms of Section 3 (2) (a) of the Law of the Evidence Act (Cap. 6 RE. 2002). The position was also stated by the case of Tyamos Asao VR. (1967) HCD No. 251, among many others, where it was stated: “The burden o f proof in a criminal case is on the prosecution . . . ” The standard of proof, as was stated in the case of Said Hemed VR. (1987) TLR 117, is beyond reasonable doubt. In the present case, therefore, the prosecution has the duty to establish the accused persons’ guilty to the required standards. This court’s Page 6 of 15 review of the evidence on record will therefore be on the basis of that burden and standard of proof. As already indicated, the accused persons stand charged of the offence of murder c/s 196 of the Penal Code. In a charge of murder, the prosecution has the burden to establish the following four elements as follows: a. death of a person; b. the death being caused by an unlawful act or omission; c. the accused being the one who did the unlawful act or omission; and d. the killing was done with malice aforethought. To substantiate the charges against the accused persons, the prosecution called and brought a total of 4 witnesses. To raise doubts to the prosecution’s evidence and case, the accused persons testified on oath. In addition, the 1st accused also brought his wife as a witness for defence. As regards the first element, in the evidence of the two accused persons, they did not specifically dispute that the deceased person Edward Angelo is dead. The learned counsel Mr. Mbekomize in his final submissions, specifically stated that, the deceased is indeed dead. Further, the prosecution’s PW1 (Rodrick Edward), the son of the deceased; PW2 (Tumwesiga Lwakayango), the Rutemi Village Executive Officer; PW3 (G792 D/C Isack) of Muleba Police Station; and PW4 (Dr. Fidelis Nyanga Mabula), the doctor who medically examined the body of the deceased, all go into showing Page 7 of 15 that, the deceased person is indeed dead. This is therefore a proved fact. The second element, in regard to whether the death of the deceased was caused by an unlawful act or omission, the same was also not specifically disputed in the defence evidence. The only contention, specifically by the 1st accused is that, the deceased had already been beaten by the time he was brought to his house. In addition, the evidence of PW1, who claimed to be an eye witness of the incident, he saw the deceased being beaten to death. Thus, this is also a proved fact. The most disputed aspect is in regard to the third element, which is, whether it is the accused persons who did the act which caused the death of the deceased. The evidence in proof of that element is essentially one of identification. In this regard, in the celebrated case of Waziri Amani V. R (1980) TLR 250, the Court of Appeal stated on evidence of identification as follows: ee. . . the first point we wish to make is an elementary one and this is that the evidence o f visual identification . . . is the weakest and most unreliable. It follows therefore, that no court should act on evidence o f visual identification unless all possibilities o f mistaken identity are eliminated and the court fully satisfied that the evidence before it is absolutely watertight. . . it must be shown on the record a careful and considered Page 8 of 15 analysis o f all surrounding circumstances o f the crime being tried . . . ” The case of Waziri Amani (supra) cited, gave the circumstances to be considered in order to eliminate all possibilities of mistaken identity to include; one, the amount of time the witness had the accused person under observation; two, the distance at which he observed the accused person; three, the conditions in which such observation occurred - was it day or night; four, whether there was good or poor lighting at the scene; five, whether the witness knew or had seen the accused person before or not; and six, whether the identification was made by the witness after a long period of observation or in satisfactory condition by a relative, neighbour, friend, workmate and the like. In the case of Mathew Stephen @ Laurence V. R, Criminal Appeal No. 16 of 2007 (unreported), the Court of Appeal added two more circumstances to those stated in the Waziri Amani Case. It added circumstances that, seven; whether in the course of observing the accused person, did the witness face any obstruction; and eight, whether, considering the whole evidence before the court, there were any material impediments or discrepancies affecting the correct identification of the accused person by the witness. In the case of Emmanuel Luka and 2 Others V. R, Criminal Appeal No. 325 of 2010 (CAT-Mwanza) (unreported), the Court of Page 9 of 15 Appeal exemplified on how the Case of Waziri Amani (supra) should be applied. It stated that: “The test, in our mew, should be objective as opposed to subjective. Objective in the sense that when considering the eight (8) circumstances as enumerated above, or others, the court should always bear in mind the ordinary conditions under which the witness lives or was subjected to as an ordinary person o f his class. Such conditions would be, fo r example, the kind o f place where he was or lived; the intensity o f the light (hurricane, lamp, moonlight) and the like. The court should not invoke the subjective test when evaluating the guidelines in Waziri Amani case. It should not, fo r example, judge by its standards (that o f the class o f a judge or magistrate); o f what would be the situation if there is no electricity, fenced houses; where the victim or witness is well versed in matters related to law or other professional life . . . ” In other words, the Case of Waziri Amani is not supposed to be taken as “mwarobaini” in every case of visual identification. This court agrees with that, because that is the position which was also stated by the Court of Appeal in the case of Mussa Mbwaga V. R., Criminal Appeal No. 39 of 2013 (CAT-Mbeya) (unreported), which Page 10 of 15 was cited by the learned State Attorney in her final submissions, where it was stated: “In addition to the much cited guidelines from the case o f Waziri Amani V. Republic (1980) TLR 250, subsequent decisions o f the Court o f Appeal have enlightened further, leading to a considered view that the said guidelines are not ‘azadirachtaindica (mwarobaini)’ to all cases o f this kind. It is worth noting further that those guidelines need to be given a purposive interpretation as circumstances o f each case determine the fate o f the parties involved. Therefore those guidelines ought to be considered objectively. Generally, the court should consider the following before arriving at its decision:- • The kind o f light that existed and its intensity. • Time taken by the witness to have the accused person under his/her observation. • The distance between the assailant and his victim. • Whether the victim knew the assailant before the fateful moment. I f so, when and how often. • The whole evidence considered, were there any material impediments or discrepancies, affecting correct identification of the assailant by the witness. Page 11 of 15 • In the court o f such observation o f the assailant by the witness was there any obstruction experienced by the witness”. This court will consider the issue of identification of the accused persons, on the basis of the position of the law as amplified in cases from the cases of Waziri Amani V R (supra), Mathew Stephan @ Laurent V R (supra), Emmanuel Luka and 2 Others V R (supra) and ultimately Mussa Mbwanga V R (supra). In all those cases, the first thing to consider in clearing every possibility of mistaken identity is the kind of light that existed at the scene and its intensity. In the present matter, whereas PW1 testified that there were solar lamps at the scene, all the defence evidence stated is that, there were no solar electricity at the house of the 1st accused. They alleged to use only kerosene lamps. There is, therefore, a dispute on the source of light. In the view of this court, the prosecution had an opportunity to conclusively establish as to what was the source of light. There were an opportunity of doing so in the sketch map/plan. The sketch map could have been a source of clearing doubts on the source of light. Where there were identification of the accused persons at night, it is expected that, the sketch plan should have shown the place where the deceased was beaten to death. The sketch map should have shown the house where the incident occurred and also indicate wherever there were sources of light. Unfortunately, the sketch plan at present did not play that role. Page 12 of 15 The prosecution in their final submissions cited the case of Goodluck Kyando V. R (2003) TLR 363 to substantiate a point that, every witness deserves to be trusted in his testimony, save where there are reasons to convince the court to treat it otherwise. This court is agreeable with that principle. However, just like the prosecution wishes that principle to apply to PW1, to establish that that the source of electricity was solar lamp, equally the defence would like the same principle to apply to their witnesses, including to the 1st accused as a witness, who specifically stated that, there were no solar light at the scene. Rather, they were using kerosene lamps. As already mentioned, the prosecution, which had an opportunity to clear the dispute through the sketch plan, did not use that opportunity. This has to work in favour of the accused persons. In the circumstances, the prosecution has not established the source of light in the present case. The prosecution submitted that, this court should consider the fact that, whatever source of light that was there, it is the same light which enabled the 1st accused and DW2 to see the deceased when brought to their house, and to notice the injuries he had. In the view of this court, that submission does not appreciate another obvious fact that, it is the prosecution which has the duty to clear and establish that, the identification couldn’t be a mistaken one. The submission by the Republic presupposes that, the prosecution can establish the source of light without specifically proving as to what such source of light was, and its intensity. It presupposes that, the prosecution can establish an unmistaken identification Page 13 of 15 without specifically showing the time taken by the witness to have the accused person under his/her observation, without showing the distance between the accused and the source of light, and whether there were any material impediments or discrepancies, affecting correct identification of the assailant by the witness. On the last aspect just mentioned, one of the assessors was of an opinion that, in the circumstances of the present matter, PW1, who was also being beaten at the time that the deceased was being beaten, it was difficult for him to observe the deceased’s assailants with certainty. Circumstances were not conducive to a correct identification. This court wishes to restate that, it is the prosecution which had the duty to prove all the requirements of law in identification of accused persons as stated above. In the circumstances of this matter, this court finds that, there were no watertight evidence to clear all the possibilities of mistaken identification. The 1st accused, supported by his wife, who testified as DW2, claimed that, the 1st accused did not take part in assaulting the deceased person. They were at bed by the time the deceased and his son were brought to him as a hamlet chairman. Coupled with the deficient identification, it makes the 1st accused person’s defence credible and one creating a reasonable doubt. The second accused gave a defence of alibi. Although he did not give any notice of raising such defence, all the same this court is of a considered view that, it also creates a reasonable doubt to the prosecution’s case. Page 14 of 15 The ladies and gentleman assessor gave differing opinions as regards whether the prosecution proved its case against the accused persons to the required standards. Of the two assessors who attended the summing up, the 1st assessor was of the opinion that, the prosecution failed to establish the accused persons’ guilty to the required standards while the 3rd assessor was of the opinion that, the prosecution established the accused persons’ guilty to the required standards. On the grounds as stated in this judgment, this court agrees with the 1st assessor that, the prosecution has failed to establish the accused persons’ guilty to the required standards. This court accordingly acquits the two accused persons, Mohamed Said and Rashid Clavery @ Isack of the offence of murder c/s 196 of the Penal Code which they stood charged. Page 15 of 15