republic vs abdallah athuman dulla another 2018 tzhc 133 23 october 2018

IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF BUKOBA AT BIHARAMULO ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO 22/2015 REPUBLIC VERSUS 1. ABDALLAH ATHUMAN @ DULLA 2. CHOVYA SAID JUDGMENT 19/ 10/2018 & 23/ 10/2018 Kairo, J. The above named accused persons namely Abdallah Athuman @ Dulla and Chovya Said both stand charged with murder c/s 196 of the Penal Code, Cap 16 RE 2002. It was alleged that on 22/07/2014 during night hours at Ngazi Saba area, Sido Street within Biharamulo Township in Kagera Region, the duo murdered one Method s/o Buzaire @ Mulokozi. Both of the accused persons pleaded not guilty to the charge. The prosecution case was conducted by Mr. Haruna Shomari, the Learned State Attorney. The 1st accused was represented by the Learned l Advocate Mr. Byamungu Christian while the 2nd accused was receiving legal services of the Learned Counsel Advocate Aneth Lwiza. It is not in dispute that Method Buzaire is no more and has died unnatural death. This is confirmed by the evidence of all of the prosecution witnesses in particular the evidence of Pw2, a doctor who conducted an examination of the deceased body. Besides, Pw2 also tendered a postmortem examination report (exhibit PI) which stated that the death was due to injured brain (severe head injury). The report further states as follow under part 9 which is titled "summary, of report". "deceased had severe head injury to the brain tissue causing severe bleeding to the brain and came out through both ears". The issue for determination before this court therefore is whether or not the offence charged was proved beyond reasonable doubt. In order to so prove, the begging questions to be answered is whether the accused persons were the assailants of the deceased, the result of which has caused the death of Method \ Buzaire and further whether they had the intention of causing his death (malice). The prosecution summoned five witnesses and produced two exhibits to wit the postmortem examination report (PI) and a sketch map of the scene of incident (P2) in order to prove that it was the accused persons who murdered the deceased. The first prosecution witness (Pwl) was Alibina Anaclet. The essence of her evidence was to the effect that, on the material date ie. 21/7/2014, she was serving customers including Medard Buzaire (Pw3) at the Pombe Club owned by her mother Alistidia Vedasto. She was serving together with the 1st accused. All of a sudden Pw3 emerged from inside complaining that his money was snatched by the 1st accused and they started fighting. Pw3 later left. The witness went on that she went to sleep at 11:00pm which is the time they normally close the club and left behind both of the two accused and Msanifu, adding that her mother Alistidia had long slept as she was sick on that day. While asleep, she was awakened up at around 1:00 midnight by a big bang on the door where the 1st accused was. Pwl peeped through the opening of her door and saw a person outside standing on the road throwing stones. She identified him to be Medard Buzaire (Pw3). She stated that she managed to identify him as there was an electricity coil luVnp which was illuminating outside. Besides she knew Medard Buzaire and she has seen him before (when drinking and during the fight). But also he was just five paces from where she was. After the throwing of stones stopped, she heard the door where the 1st accused was sleeping being opened, she also opened hers which was next to and get out. Pw l went on that, after opening, she saw a person laying at the door step of the room where the 1st accused and others slept and identified the person to be the late Method Buzaire whom she knew before. She then saw the two accused and Msanifu lifting the deceased and entered with him into their room. She went to sleep but she heard a cry for help of the late Method. However she didn't offer any assistance as she was afraid of Pw3 who stood on the road. The witness stated further that not long thereafter she saw the two accused and Msanifu carrying/lifting the late Method who seemed to be in bad condition and went with him towards the road until she could no longer see them, but she didn't know where they were taking him to. In the following morning she was told that the two accused and Msanifu were at the police station and Method Buzaire was admitted atTeule Hospital Biharamulo. When cross examined she stated that she \ didn't know what was happening inside when the deceased was entered in. Further she denied to have seen any of the accused beating him. She went on that she knew the 1st accused as he was working for Alistidia in the club serving customers. As for the 2nd accused she stated to be their usual customer. She concluded her testimony by stating that on 24/7/2014 around 10:00 am, she got information that Method Buzaire has died. The second prosecution witness (Pw2) was Dr. Tumpale Raphael Akim who was working at Teule Hospital Biharamulo where the late Medard was admitted before he passed away. This is the doctor who conducted the postmortem examination of the deceased's body. She stated that the body was identified to her by Agnes Buzaire and Dioniz Leonidas (Pw4). The witness testified that before postmortem examination, she was also involved in his treatment, stating that the late Medard was in acute condition, not talking and was bleeding in both ears. She went on that, after his death she was also involved in conducting the postmortem examination and observed that the deceased's skull was fractured and both of his ears were bleeding. Pw2 went on that she discovered that his death was caused by severe head injury to brain tissues causing severe bleeding to the brain which came out through both ears. She concluded that the result of the said examination was filled into the postmortem report which was admitted in court as exhibit 'PI'. 4 The third prosecution witness (Pw3) was Medard Buzaire who was the decease's brother. He testified that on 21/7/2014 around 4:00pm he went to drink wanzuki at Alistidia's Club after selling his coffee. That when leaving the club to go home \ at around 8:00pm, the 1st accused grabbed his money about Tsh. 110,000/= and in the course of that fracas, he lost his three upper teeth. He further told the court that he went home and informed his mother who advised him to go to report to the police. He did as advised and was given a PF3 for him to go to hospital but didn't go for treatment as the 1st accused refused to give him the money for treatment when he went to request for it. He thus decided to go home and sleep. He went on testifying that later the late Method came back home and he narrated to him what happened at the club. The deceased decided then to go to ask the 1st accused as to what transpired. Pw3 followed him stating that it Was around 9:00pm. Pw3 went on that on reaching there they found the club was already closed but there were some customers still drinking inside and thus the deceased knocked. The door was opened by the 1st accused who on being asked by Method about the money, the 1st accused hit the late Method with his fist on his head. He fall down and the 1st accused pulled him inside. The witness stated that he identified the 1st accused as there was an electricity light which he described to be of a coil illuminating outside and he was there watching. Besides he knew Dulla before. He further stated, after seeing that he knocked very h,ard on the door through which the late Method was pulled inside so that he can also enter but the door wasn't opened. On hearing the hard knock, some people gathered with weapons but didn't attack him. He went on that, later Dulla and his fellows brought the late Mulokozi outside but he was in bad condition. Pw3 identified the persons to be Dulla, Alistidia, and other three youths whom he 5 didn't know. He added that when the late Method was brought outside while in bad condition, Alibina (Pwl) was also outside. The late Method was then carried and taken to the Police Station. Pw3 mentioned the persons who took him to the police where went with them as well to be Alistidia, Dulla and three other youths. The witness went on that the late Method was taken to the Police so that he can be given PF3 and go for treatment. He added that when taken to the Police, the late Method was carried as he couldn't walk nor could he speak and his eyes closed. He went further stating that, they later went with the late Method to the hospital where he was admitted but Dulla and Alistidia were left at the Police Station. He added that he didn't see the 2nd accused at the Police nor was he present when the incident occurred. When cross examined, Pw3 denied to have heard any cry for help from the late Method when pulled into the room by Dulla. On further cross examination, he insisted that he has never seen the 2nd accused at the place of incidence, nor was he among the person who carried the late Mulokozi to the Police. He added that he only noted his name when they came to court. He also stated that when the late Method was pulled inside the room by Dulla those who were present were Dulla, Alistidia and other three persons, but he can't say who was involved in beating Method as he couldn't see what was going on therein. He insisted that what he witnessed was the 1st accused hitting Method with his fist on the face. He concluded by stating that Method stayed in hospital for three days and passed away. Pw4 was Dioniz Leonidas who stated to be a friend of Buzaire's family and a close friend of the late Method. He testified that on 23/7/2017 morning hours while going to the market, he met Mama Salome, the mother of the late Method. She told him that her son Method was beaten and was admitted at Teule Hospital, He went on that mama Salome told him that Method was beaten by Msanifu, Chovya and Dulla. Mama Salome said to have so informed by his son Medard (Pw3). Pw4 decided to go to the hospital and found Method to be in critical condition. He was informed by hospital officials that an X-ray was conducted on the patient and that the result would be given later. The witness went on that he went back to the hospital the next day on 24/7/2014 around 8:00am and the doctor on duty told him that the condition of Method wasn't good and that they have to make arrangement to transfer him to Bugando hospital for further examination and treatment. Pw4 went back home to discuss with the family and agreed to sell some coffee to get the money to assist them in the process. However at around 10:00am on the same day, he received a phone call informing him that Method has passed away. The witness went further testifying that, he went back to the hospital on the same day around 12:00 noon after instructed to be there to witness the postmortem examination of the decease's body. He stated that the examination was conducted by Dr. Tumpale, at the presence of the police, Agnes Buzaire and himself (Pw4). He went on that during examination he observed bleeding from both ears, and mouth of the deceased, bruises on the neck and one side of the head while the other side of the deceased's head was squeezed and sunk inside by what Pw4 explained to be a blunt object clarifying that if it was a sharp object, he would have seen some blood on the squeezed area. He concluded that according to the Doctor, the cause of death was bleeding in the brain. They were then handed over the body for burial processes. When cross examined, Pw4 stated that he has never heard that there was any 7 misunderstanding or quarrel between the deceased and the 1st accused. He further stated that he can't confirm the killing of Method by Dulla as he was not there when the incidence occurred. The last prosecution witness (Pw5) was Police Officer No.G. 1846 D/Constebo Salum who investigated the incident. He testified that on 24/7/2014 morning hours while at his work place he was instructed by the OCCID to investigate the murder incident of Method Buzaire. He stated that he started by going to scene of incident on the same day and drew a sketch map of the scene of crime. The sketch map was admitted as exhibit 'P2'. Pw5 further stated that he was also instructed to go to Teule Hospital Biharamulo so as to witness the postmortem examination of the deceased body to which he did. That he witnessed the examination together with the deceased relatives, and Afande Hamza and observed the body of the deceased to have bruises on the neck, head and that it was bleeding in both ears. Further to that he noted one side of the head was squeezed and sunk inside which signifies that he was beaten by a blunt object. Pw5 further stated that the doctor has informed them the cause of death to be bleeding in the brain. He went on that according to his investigation he noted that the persons who caused the death of the deceased were Dulla, Chovya Athuman who are accused in the case at hand and Msanifu whom he said to be at large. Pw5 went on that he confirmed the involvement of the triple through interrogating witnesses he named to be Alibina (Pwl), Medard Buzaire (Pw3) and Dioniz Leonidas (Pw4). The witness went on that apart from the said witnesses, he also wrote the statements of both of the accused, Pw3 and Pw4. He stated that in the statement, Dulla said that it was Chovya who beat the deceased, likewise Chovya in his statement claimed that it was Dulla who beat the deceased. Pw5 however on cross examination told the court that he didn't tender the statements before the court but he believed the accused statements to be true. Pw5 went further testifying that Pw l has told him that she saw the two accused lifting the deceased and entered with him inside. She thereafter heard the cries of help from Method. He added that, though Pwl didn't witness what went on inside, but she sensed that something bad was being done to Method and later they brought Method outside while in bad condition. The witness also testified that Medard Buzaire (Pw3) who was present at the place of incident has told him that the 1st accused has hit Method by his fist on the face and that on examining the body of the deceased, he discovered three teeth were not there adding that mouth is part of the face. That marked the end of the evidence by the prosecution witnesses. The defence side had two witnesses who were accused themselves who tendered no exhibit. In his defence Abdallah Athuman @ Dulla who testified as D1 stated that on 22/7/2014 he was at Alistidia's Pombe Club serving customers. He went on that, he remained at the club on that night and was in the company of Msanifu, Alistidia, Lolo and Rasi. He went on that at around midnight, he heard stones being thrown at the door of the room into which they were in, the action which made Alistidia to shout for help and people gathered outside. He estimated their number to be about 15 people and the throwing of stones stopped. He went on that they then opened the door and found a person sleeping at their door step and he identified the person to be Method Buzaire. Then Alistidia told them to enter the person inside for questioning but when sought for clarification by the 2nd Assessor, he changed and said that they entered the person inside'for his safety as the people who gathered outside wanted to continue beating him. He went on that after a short time they took Method Buzaire to the Police and he was in the company of Alistidia, Msanifu, Lolo and Rasi. When entering him inside Dwl stated that Method Buzaire was observed not to be speaking and was drunk. They left Method at the Police and they went back home. He further stated that, on 24/7/2018 he was followed by the Police being a saver of the club where the incidence occurred so as to give his statement but was locked up instead until 28/7/2014 when he was taken to court for the murder of Method, the charge which he denied. He was later sent to Biharamulo Prison. The witness denied what has been testified by Pw l who said that he was with the 2nd accused insisting that he met him for the first time on 22/7/2014 when Chovya went to drink at the club and served him adding that Chovya drunk until 7:00pm and went off. He further he met him again in prison. With regard to what was testified by Pw5, D w l denied that he has told him that it was Chovya who beat Method. He denied to have written any statement nor explained anything to Pw5. He further refuted what Alibina (Pwl) has stated when testifying that when she went to sleep on 22/7/2014 she left him with Chovya among others, instead he was left with Alistidia, Lolo and Rasi insisting that Chovya was not there. When cross examined by the State Attorney as to why he didn't call any of those he claimed to be with to come to testify on his part, D w l stated that he was not given the summons nor was he told the right to call witness. On further cross examination as to why they took Method to the Police instead of the hospital, the witness stated that they took Method to the Police so that he can get the PF3 first 10 before going to hospital as he was in bad condition. Dw l concluded by praying the court to discharge him as he didn't commit the offence charged with. The second defense witness (Dw2) was Chovya Said, in his testimony he denied to know neither Method Buzaire nor Medard Buzaire (deceased and Pwl respectively) adding that he has seen Medard in the court session. He further denied being present at the scene of incidence when the incidence occurred. Dw2 told the court that he went to drink Pombe (local brew) at Alistidia's club on 22/7/2014 around 4:00pm and left at 7:00pm to go home where he slept till morning. He told the court that he was staying with his mother and aunt (mama mdogo) and they all slept till morning. He further stated that when leaving the club, the 1st accused saw him. He however conceded to have called none among those as his witness stating that he was not asked by the court if he wishes to call them. On further cross examination by the State Attorney he conceded that he didn't give any notice to indicate that his defense would hinge on alibi but still insisted that he wasn't present when the incident occurred. Dw2 also denied to have given his statement at the Police, though when cross examined by the State Attorney he indicated to have given it. However he changed immediately. Dw2 also prayed the court to discharge him as he wasn't present when the offence was committed. After all of the parties closed their cases, the learned counsel for defense and the Learned State Attorney were invited to make their final submissions. Generally Advocates Byamungu and Lwiza, the counsels for the 1st and 2nd accused respectively submitted that the prosecution has failed to prove the case against both of the accused persons to the required standard. Advocate Lwiza added that 11 n<H his client, the 2 accused was not present at the scene of evidence when the incidence resulting to death occurred, thus prayed the court to discharge them. Mr. Haruna Shomari, the Learned State Attorney on the other hand submitted that, the prosecution had managed to prove the case against both of the accused beyond reasonable doubt and thus enjoined the court to find them guilty of murder and sentence them accordingly. After summing up the case to the Gentlemen Assessors, the 1st and 3rd Assessors were of the opinion that only the 1st accused was the one who caused the death of the deceased, but there was no malice attached to the said killing. The 2nd Assessor had a dissenting opinion with regards to the 1st accused as he was of the opinion that he was not the one who caused the death of the deceased. However despite the distinct views on the 1st accused, the Assessors unanimously held an opinion that the 2nd accused was not present at the place of incidence when the offence was committed. I will be referring to the submissions of the learned counsels together with the opinions of assessors in the course of writing this judgment. As earlier stated the cardinal principle in criminal cases is that, the prosecution has to prove its case and the standard is beyond reasonable doubt as was decided in the many cases, among them being the cases of Mohamed Matula vrs R [1995] TLR and Woodmington vrs DPP (1935) AC 462. 12 In the case at hand, the prosecution to greater extend hinged their case on visual identification of the accused persons and on circumstantial evidence. According to the evidence adduced, the eye witnesses were Pw l and Pw3. Pw l in her testimony confirmed to be in the place of incidence when the incident occurred and that she had identified both of the accused carrying the deceased from their doorstep where he was lying and entered with him in their room. She then heard a cry for help from the late Method. She also told the court that both of the accused later and another person she named to be Msanifu get out with the late Method while carrying him and she noted him to be in bad condition and went towards the road with him but she didn't know where they took him to. However Pw3 when testifying in chief denied repetitively that the 2nd accused was never present at the scene of incidence nor was he among those who carried the late Method to the police station. In fact to show his insistence on the absence of Chovya, Pw3 told the court that he noted his name when they come to court for this case. The absence of the 2nd accused at the scene of incidence when it occurred was also echoed by the 1st accused who mentioned those he was with on the fateful date and took the late Method to the police to be Alistidia, Msanifu, Lolo and Rasi. Dw l also told the court that he met the 2nd accused for the first time on 22/7/2014 when he came to the club for pombe admitting to have served him. But he left at 1:00pm. He added that he met Chovya again in prison. The 2nd accused also when defending himself denied being present at the scene of crime when the incidence occurred and further denied to know neither Pw3 nor 13 the deceased adding that he has seen Pw3 in court, the evidence which confirms the testimony of Pw3 when led in chief. When cross examined by the State Attorney, the 2nd accused conceded that he didn't give notice that he would rely on the defense of alibi. I am aware that section 194 (4) of the CPA Cap 20 RE 2002 requires an accused person to give notice if he wishes to rely on the defense of alibi. However section 194 (6) of CPA supra comes in as a guidance in the circumstances the notice was not given but the defense was raised as in the case at hand. The said section has been interpreted in the case of Marwa Wangati Mwita and Another vrs R [2002] TLR 39 wherein the court has observed as follows; "the essence of notice required by section 194 of the CPA doesn't mandate or authorize the outright rejection of an alibi, though it may affect the weight to be placed on it". The State Attorney in his submission prayed the court to according no weight to the defense of alibi by the 2nd accused for failure to give notice as required. However I am of different views: First the said defense was corroborated by Pw3 and Dwl. But further the time taken from the arrival of Pw3 and the deceased at Dulla's place, pulling the late Method inside, later taking him outside and carrying him to the police was more than an hour (considering that Pw l was awakened at 1:00 midnight and 1st accused stated to come back home to sleep after leaving the deceased at the police around 2:00 midnight). In my view, that time was enough for Pw3 to have observed the 2nd accused if he was present. 14 Besides Pw3 being a brother to the late Method, it is unconceivable that he would have concealed the 2nd accused presence if at all he was at the scene of crime. Sincerely I see no reason of not to believing him in that aspect. The State Attorney also cautioned the court in believing the evidence of the 1st accused exonerating his co accused citing the case of The DPP vrs ACP AbdaHoh Zombe& 8 others: Cr. App. No 358/2013 CAT DSM (unreported) to fortify his argument. But in my view, considering the charge they face (murder) and the tact that they were not such god friends (as per Pwl), it is more likely than not that the 1st accused would like to implicate the 2nd accused than to exonerate him j having in mind he stands no gain by exonerating him if at all the 2 accused was present. I am also alive that Pw5 has testified that he took the statements of both accused into which they were implicating each other, but the said statements were never tendered in court as an exhibit thus the court cannot rely on mere assertion which is against the principle that he who alleges must prove and even section 110 of the Evidence Act Cap 6 RE 2002 is to that effect. A document is required by law to speak by itself and not otherwise. On top that, the denial by both accused persons to have never given the alleged statements negates the said assertion by Pw5 on that matter. With regards to Pwl's assertion that the 2nd accused was present suffice to state that this court after observing her conduct or demeanor and analyzing her testimony has came to conclusion that she is not witness of truth and unreliable thus not credible as rightly submitted by Advocate A. Lwiza. According to her testimony, Pw l was present and witnessed the incidences from when she opened 15 her door and found a person lying at the door step. She identified him to be Method whom she knew before. She heard his cry for help after the two accused and Msanifu entered him inside the room. She also saw the two accused and Msanifu carrying Method while in bad condition to unknown place and it was midnight. Yet she want back to sleep as if nothing happened. Sincerely that is not normal. But further to that she concealed the presence of Alistidia Vedasto when the incidence took place though the 1st accused and Pw3 testified to have seen her. Her conduct to conceal some facts can in the same vein make her concoct other facts as for reasons known to herself. The court after analyzing the evidence on this issue it is totality convinced that the 2nd accused defense of alibi has not been shaken for want of notice. After all, even if the 2nd accused wouldn't have raised the said defence, the finding of this court with regard to his presence at he scene of crime when the offence was committed wouldn't have changed basing on the evidence of the, D w l and Pw3. The State Attorney also submitted that the 2nd accused lied when he said that he wasn't told that he could call his witnesses concluding that the court has to find the said lies to benefit the prosecution case. Suffice to state that an accused ought not to be convicted on the weakness of his defence but on the strength of the prosecution case [Refer the case of Christian Kale &Anor vrs R (1992) TLR 302]. I thus join hands with the opinions of the Gentlemen assessors who all had the opinion that the 2nd accused was not present. It follows that the court is inclined to find that prosecution has failed to prove the offence of murder of the late Method Buzaire @ Mulokozi charged against him as rightly submitted by both counsels. I am thus acquitting him forthwith unless held for other lawful reasons. 16 I now revert to the 1st accused to determine whether he was properly identified by Pw l and Pw3. Both of defense counsels have submitted that there was no positive identification as per factors stipulated in the famous case of Waziri Amani vrs R [1980] TLR 250. The proposition was vehemently refuted by the Learned State Attorney. Generally courts have been warned to be cautious to ground its conviction basing on visual identification. The above cited case has observed as follows:- "the evidence of visual identification is of the weakest kind and most \ unreliable and courts have been cautioned to base its conviction on it unless it is satisfied that all possibilities of mistaken identify has been eliminated and the evidence before it is absolutely watertight [Also Refer cases of Kazimili Mashauri vrs R Criminal Appeal No. 257/2010 CAT Mwanza (unreported)". In determining as to whether there were no mistaken identify, the court through the case of Waziri Amani (supra) has stipulated factors to be considered as follows:- 1. Whether the witnesses knew the accused person before the incident. 2. The amount of time the witness had the accused under observation. 3. The distance between the two persons during the commission of the offence. 4. The kind of light present and its intensity 5. Whether there was any impediment or obstruction between the accused and witness. 17 In his submission, Advocate Lwiza has stated that though prosecution witnesses explained the source of light to be electricity from a coil lump but none explained the voltage of the said coil lump, or its size and of how many watts so as to know its intensity. She further stated that the witness also didn't state where the lamp was mounted (inside or outside) and worse both Pw l and Pw3 using the same light, Pwl saw the 2nd accused but Pw3 didn't and further Pw l didn't see Alistidia but Pw3 saw her. She thus concluded that there was no positive identification to both of the accused. As earlier hinted, in the present case there were two eye witnesses. However for the above explained reason, this court has discredited the evidence of Pwl. As such I will not base on it in determining whether 1st accused was properly identified. Having discredited the evidence of Pwl in this case, the court is remained with Pw3. The law is settled that no particular number of witnesses shall in any case be required for the proof of any fact. I am fortified in this stance through the case of Yohanis Msigwa vrs R [1990] TLR 148 at page 150 whereby the court observed as follows: "There was admittedly one eye witness in this case (Pwl). Her evidence is not however detracted from because of the fact alone. As provided under section 143 TEA, no particular number of witnesses is required for the proof of any fact, what was important here were Pw l's opportunity to see what she claimed to have seen and her credibility". According to his evidence Pw3 went to Alistidia's pombe club for drink where the 1st accused was serving. He stayed from 4.00pm to 8:00 pm and when he was leaving, his money was snatched by Dulla and a fight ensued. These facts show 18 that Pw3 knew the 1st accused before the incidence. Pw3 categorically stated that there was an electricity coil type lump illuminating outside when Pw3 and Method reached at the 1st accused home. That Pw3 saw the 1st accused hitting the late Method with his fist and he fell down. Time taken for Pw3 to observe the 1st accused can be explained by the chain of events from when Dulla opened the door and hit the late Method, seeing Dulla pulling him inside, then later taking him to the Police with Msanifu and others. It should be noted that Pw3 also went together with those carried the late Mulokozi to the Police, the 1st accused being inclusive. The stated chain of event took more than one hour according to the first accused who stated that they went back home after leaving Mulokozi at the Police around 2:00 midnight while Pw3 went to the 1st accused home around 9.00 pm, and even if we take the time when Pw l stated to have been awakened ie 1:00 midnight, still Pw3 had long time to observe the 1st accused whom he knew before. The argument by Advocate Lwiza that the intensity of light didn't favor positive identified is thus negated by the explained chain of event, more so by the fact that the 1st accused and Pw3 went together to the Police to take the deceased. This point also confirms that the distance between them was short and negates the presence of any obstructing object between them. But also even the action of Pw3 throwing stones which reached the door shows the absence of any obstructing object. I thus don't subscribe to Advocate Aneth's conclusion. Instead it is the finding of this court that the 1st accused was properly identified as submitted by the learned State Attorney as factors stipulated in the Waziri Amani case were met and the possibility of mistaken identity were completely eliminated. 19 Despite visual identification, the prosecution case also hinged on circumstantial evidence as previously stated. The law with regards to circumstantial evidence provides that the court can ground its conviction basing solely on circumstantial evidence provided the court satisfy itself that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of guilty. [Refer the case of Simon Musoke vrs R (1958) EA 718 and Elisha Ndataye vrs R; Criminal Appeal No 51/1991 CAT Mwanza (unreported). The court has further clarified that, to ground conviction on circumstantial evidence, it must be incapable of more that one interpretation. The wanting question therefore is whether the circumstances in this case are incapable of no other explanation or interpretation than that of guiltiness of the 1st accused. Both of the counsels representing the accused pointed out the contradictions and inconsistencies by the prosecution witnesses which they submit to have broken the chain of events to the guiltiness of the 1st accused. Advocate Lwiza went further to ask if at all the incident occurred. It is true that there are inconsistencies or contradictions on the evidence of prosecution witnesses particularly Pw l and Pw3. The law is settled that that minor or slight differences in witnesses testimonies that don't go to the root of evidence are acceptable in evidence [Refer the case of Mohamed Said Matula vrs R (1995) TLR 3 and Dimltrive Kosya Koff and Another vrs R Criminal Appeal No. 1/2002 CAT Zanzibar (unreported). It was also observed by courts that human recollection is not infallible and that a witness is not expected to be right in minute detailed 20 when telling his or her stories [Refer the case of Evarist Kachembeho and others vrs R (1978) LRT 80]. The question to be resolved by the court therefore is whether the inconstancies go to the root of the evidence or not. According to the evidence adduced, the observed inconsistencies are in terms of time of occurrence of the incidence (Pw l stated to be at 1.00 midnight while Pw3 testified to be around 9:00) and also with regards to the shouting for help of the deceased (Pwl heard the shouts but Pw3 didn't) The issue the pieces of evidence was addressing is whether the incidence occurred which the answer is yes as per all witnesses save Dw2. In the circumstances therefore, the said inconsistencies were minor and didn't go to the root of the evidence. With regards to the inconsistencies on the presence of the 2nd accused and Alistidia at the place of incidence, which again was observed during the testimonies of Pw l and Pw3, I concede that they are grave and go to the root of nd the matter. The issue which was being addressed was whether or not the 2 accused was present at the scene of incidence when the offence was committed. However having resolved that the discrepancy goes to the root of the matter, the court has given the benefit of doubt to the 2nd accused and acquitted him as above stated. Further to that, it was the testimony of Pw3 that the 1st accused has hit the late Method with fist on the face on the incident date and fall down. He was pulled inside by the 1st accused and when taken to go to the police, his condition was bad as he couldn't walk nor talk. According to Pw2 and exhibit 'P2' the cause of death was the bleeding into the brain due to severe head injury. Pw4 and Pw5 21 told the court that they observed one side of the deceased head was squeezed and sunk inside and all were of the view that, the object that caused the squeezing and sinking inside of the head must be a blunt one. I am aware that all of the prosecution witnesses told the court that they don't know what transpired in the room where the late Method was pulled in. However I am of the firm view that either way whether the blow of the fist by the 1st accused has caused the observed severe head injury which resulted to bleeding into the brain or whether the severe head injury was caused by the falling down following the fist blow, it makes no difference as far as causing the death of the deceased is concerned. Though it was testified that there were other persons at the scene of incident (Pw3 and Dwl) particularly when the late Method was entered inside by the 1st accused but Method didn't enter himself rather he was pulled in after being hit by fist on the face and fall down while he came walking alone. Even if it is assumed that some further blows/beatings might have been inflicted on the deceased while inside has caused his death, but regardless of whether the 1st accused wasn't the one who inflicted, he is legally an accomplice to the killing, as such he is not in a better position either. I am further aware that the first accused has indicted that the late Method was beaten by the people who gathered outside following the shout for help of Alistidia on the fateful night, but I am not convinced with the said allegation as the circumstances doesn't so suggest. This is because the first accused has testified that the people who gathered outside had no weapons and Pw3 stated that the gathered people didn't attack any. Besides if the said people attacked Ihe late Method and wished to continue attacking him as D w l stated that to be the 22 reasons they entered the deceased inside for his safely, it was more likely that they would break the door so as to get their victim and continue attacking him. However the 1st accused gave no explanation as to whether the gathered people attempted to get their victim forcefully and the reasons of the said attack. In my conviction therefore the circumstances negates the said allegation. Instead it is my finding that the circumstances are incapable of explanation upon any other reasonable hypotheses than that of guilty of the 1st accused. I thus join hands with the State Attorney and the 1st and 3rd Gentlemen assessors that it was the 1st accused who caused the death of the late Method @ Mulokozi. Having found that the 1st accused was the one who caused the death of the late Method Buzaire, the court has also to determine as to whether the said killing was with malice afore thought or not. The law has stipulated factors that would guide or assist to infer malice on the accused person as normally the attacker would not declare his intention. [Refer the case of Enock Kipela vrs R; Criminal Appeal No. 150/1994 (unreported) wherein the factors were stipulated to be:- 1. the type and size of weapon used if any in the attack. 2. the amount of force applied in the assault 3. the part or parts of the body the blows were directed or inflicted on. 4. the number of blows though one many suffice defending on the facts of the case. 5. the kind of injuries inflicted 6. the attackers utterance if any made before during or after the killing 7. the conduct of the attacker before or after the killing. 23 The State Attorney in his submission has inferred the intention to kill by the 1st Accused on the motive behind. He submitted that the motive was proved as Pw3's money was snatched by the 1st accused; Pw3 then told his mother and the late Method with whom they went together to the 1st accused to enquire and demand the snatched money back. On reaching there, the late Method was hit and taken inside and later was taken to the Police while in bad condition. However I am of different views in this aspect; It is true that the money of Pw3 was snatched by the 1st accused as he didn't refute when defending himself. It is also true that the late Method went to enquire on the snatched money to the 1st accused. But it is also true that there was no preparation for the incident or hitting on the part of the 1st accused having in mind that he didn't even know if they would go to enquire for it so as to form an intention to eliminate him as rightly opined by the 3 Assessor. But even the factors in Kipela's case (supra) to the evidence adduced negates the presence of malice; the 1st accused used his hand (fist) to attack the late Method (Pw3). Though it was inflicted on the face which is part of the head, but it was testified to be only a single blow which creates doubt if at all it can cause the severe injury observed to the head (exhibit PI). It cannot be ruled out that the impact on the falling down when hit could also be a cause of severe head injury observed. I am saying so because the late Method fall down following the said blow and no evidence was adduced as on which has he fallen to. The court was only told that he was found lying on the door step that is where he probably fallen to but it is not testified if the door step was of a concrete or of 24 what. Further to that no evidence was adduced on any utterance by the 1st accused before, during or after the attack, and also that there was no quarrel between the deceased and the 1st accused as per Pw4c ' It should be remembered that the deceased followed the 1st accused at his home which suggest that there was no preparation of the said attack as opined by the A , 3 Assessor. Besides, the I s accused was among those who carried the late Method to the Police following his bad condition after he hit him. During cross examination by the State Attorney the 1st accused stated that they took the late Method to the police instead of hospital so as to get the PF3 first. Thus his conduct after hitting the deceased together with the evidence^ as recapitulate above creates doubts on the existence of an intention to kill the deceased on the part of the 1st accused. As to what is the way forward, the case of Augustino Kaganya 2 others vrs R (1994) TLR 16 (CA) serves as guidance where in the court in observed as follows:- “in a charge of murder, only where it is doubtful on the evidence that an accused intended to kill or cause grievous harm to the deceased, will the court give the benefit of doubt to the accused and find him guilty not of murder but on manslaughter". This court having entertained doubt on the existence of an intention to kill on the part of the 1st accused is constrained to found the 1st accused guilty of a lesser offence of manslaughter c/s 195 of the PC Cap 16 RE 2002 and hereby convict him accordingly. 25 L. Judge 23/10/2018 SENTENCE The court has heard the prayer by the State Attorney for stern sentencing for the 1st accused so as to deter other people of similar bullying habit among other reasons he gave. The court has also heard the counsel for the 1st Accused in his mitigation and prayer to court that it should be lenient in sentencing the 1st accused. Further to that the court has also heard the allocutus by the 1st accused as he pleaded with the court to consider his reasons for a lenient sentence. \ The court has taken into consideration all of the above. It is true that the 1st accused is young and still energetic for production. However it is equally true that the deceased was also young and the nation has lost his workforce despite the fact that he had a mother and relatives who depended on him as well. But his life was shortened by the action of the 1st accused who caused his death. Worse he met his death when he went to ask for the snatched money of Pw3, his brother to which in my view had a right to so enquire. As rightly submitted by the State Attorney, the 1st accused has shown bullying behavior which is disgusting and need not be entertained in a society. In that respect I join hands with the State Attorney that stern sentence should be given to the 1st accused to deter others with similar habits. 26 I thus sentence the 1st accused to serve seven (7) years imprisonment effective the date of this judgment. Right of Appeal explained iro Judge 23/10/2018 Court: Gentlemen assessors are thanked and discharged. Judge 23/10/2018 7' k k r ? ' - - . AT BIHARAMWLO V \\ It- 23/10/2018