republic vs minani john others 2018 tzhc 131 31 october 2018

IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF BUKOBA AT BIHARAMULO ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO 30/2015 REPUBLIC VERSUS 1. MINANI JOHN 2. JACOB SIGIRI 3. DIONIZ GEREVAZI 4. WILLIAM JULIUS JUDGMENT 26/10/2018 & 31/ 10/2018 Kairo, J. The accused persons namely Minani John, Jacob Sigiri, Dioniz Gerevazi and William Julius jointly stand charged with murder c/s 196 of the Penal Code, Cap 16 RE 2002. It was alleged that on 1/8/2014 about night hours at Mubitasha Village l within Ngara District, Kagera Region, they jointly murdered one Bigiramungu s/o Tadeo. All of the accused persons pleaded not guilty to the charge. The 1st accused was represented by Advocate Byamungu Christian, while the 2nd, 3rd and 4th accuseds were receiving legal services of Advocate Aneth Lwiza. The prosecution was conducted by Mr. Haruna Shomari, the Learned State Attorney. There is no dispute that Bigiramungu Tadeo is no more and that he met a violent death. This fact is confirmed by the evidence of Pwl, Pw2, Pw3 who told the court that the deceased's body was found laying on the road having injuries all over his body especially on the head and hands due to beatings. This is further confirmed by the report on post mortem examination (exihibit'Pl') which is one of the matter not in dispute. The report states that the death was possibly due to severe brain traumatic injuries and severe bleeding. The report further states as follows under part 9 which is tilted "summary of report"; ............... The dead body has a lot of injuries especially the head. There is no 9th tooth. Upper lip left has crushed wound. The face has lacerates, penetrative and crushed wounds, ....... Total no of injuries on the head were about 1 1 ...........". With regards to the external appearance of the body, the report under part 10 stated; "a dead body (male) about 28 years old with a lot of injuries and a lot of clots of blood especially in head and chest". Therefore, there can be no doubt that the deceased met a violent death and whoever is responsible must have intended to cause death or grievous harm. The 2 only issue for determination in this case is as to whether it was the accused persons in the dock who have caused the death of the late Bigiramungu Tadeo. The prosecution paraded three witnesses and produced three exhibits in order to prove that it were the accused persons who murdered the deceased. The tendered exhibits were sketch map of the scene of crime (P l); Postmortem examination report (P2) and cautioned statement of the 1st accused (P3). The first prosecution witness (PW1) WAS Anna Faustin, a girl child of 12 years of age. According to her age, the court had to conduct first a voire dire test to ascertain if a child witness knows the meaning of oath and possesses sufficient intelligence to justify reception of her evidence. The test was accordingly conducted and the court was satisfied that the witness possesses sufficient intelligence, knows the duty to speak the truth and further promised to speak the truth. She however told the court that she doesn't know the meaning of oath, thus the court received her evidence without swearing her. The witness started by telling the court that she was residing at Mubitasha Hamlet, Kashinga village in Ngara District Kagera region and that she knew all of the accused persons as they were living together at Mubitasha Hamlet in Kashinga Village. She went ahead and explained what each of the accused person was doing at village and she correctly identified them at the dock. The witness also told the court that she knew Bigiramungu who was also residing at Mubitasha but he died, adding that he didn't died naturally as he was beaten. Pw l went on that on 1/8/2014 around 7:00pm she was sent to buy some salt at Mkapela centre and by that time the sun wasn't set yet. That on reaching there she saw Bigiramungu sitting in the Kibanda of Frederick Stanslaus. Later she saw Minani John (1st accused) coming and entered into the said Kibanda as well. Pwl then heard the two exchanging harsh words and among them is the accusation by Bigiramungu against Minani that he had love affairs with his wife. That the duo were about to start quarreling but they were chased outside the Kibanda and started fighting outside in an open space. The witness went on that she later saw Dioniz Gerevaz and William Julius coming. That at first she thought William Julius was coming to stop the two from fighting (kugombelezea) ie. Minani and Bigiramungu, instead even William Julius joined in beating Bigiramungu. She went on that, she law saw Dioniz Gerevaz going to take a bench from Jacob Sigiri's club and went to beat the deceased with it on the head. She further stated that Minani John held a stick and all of the three were beating Bigiramungu on the head and arms adding that Bigiramungu had no weapon. Pw l went on that she managed to identify Minani John, Dioniz Gerevaz and William Julius because the sun wasn't set yet, and she was about five paces from where the fight was and that there was no obstructing object in between. She further told the court that she witnesses the fight for about % hour and went back home around 7:30pm leaving the fight continuing. However she stated not to know why they were beating Bigiramungu. The witness went on that on 2/8/2014 morning hours while at home she got information that Bigiramungu has died. She went to witness at the centre and saw the body of Bigiramungu being laying on the road. When cross examined, Pw l told the court that there were also other people about 30 at the centre who gathered when the fight started. When the court sought for clarification the witness stated that Jacob Sigiri was not present at the 4 scene area and that when she went to centre on 2/8/2018 after hearing the death of Bigiramungu, her body was about 20 paces from where he was being beaten the previous day. The second prosecution witness (Pwl) was Joas John who stated that he was a resident of Mubitasha Hamlet, Kashinga village, Ngara District and that he knew all of the accused with whom he lived together at Mubitasha. He also told the court that the late Bigiramngu was also a fellow resident of Mubitasha. The essence of his testimony was that on 1/8/2014 there was a meeting convened by the Hamlet Chairman and he attended. That the said meeting was also attended by the 1st and 3rd accused, the late Bigiramungu together with about 40 other people. He we went on that after discussing the agenda, the Chairman invited the people to air or speaks their grievances. That the deceased raised his hand and complained that Dioniz Gerevaz used to force Bigiramungu to buy some local brew (pombe) for him whenever they meet at the club, the allegation which was denied by Dioniz. The witness stated that Bigiramungu became bitter and nearly fought with Dioniz but people stopped them. The witness went on that, Bigiramungu again raised his hand and this time accused Minani John for to be making love to his wife. As a reply, Minani charged at the meeting that if anything bad happen to him, the causer will be Bigaramungu. That the meeting was then closed and the people dispersed; some went to the centre including Pw2 and others went to their homes. Pw2 went on to testify that on reaching at the centre, he found Bigiramungu already at the centre sitting outside of the Kibonda belonging to Stanslaus. That later Minani came to where the deceased sat and Bigiramungu told Minani to stop having love affairs with his wife. The two exchanged bitter words and the deceased wanted to fight Minani but William Julius stopped them. However exchange of bitter words continued and they started to fight. He went on that William Julius held Bigiramungu by his clothes and he was beating him with his hands, then Minani beat Bigiramungu by a stick and Dioniz took a bench which was outside the club of from Jacob Sigiri and beat the deceased as well on his head. He went on that Bigiramungu had nothing on his hands and he was being beaten all over his body. Pw2 told the court that he was able to identify the assailants he mentioned as he was close to them and there was still sunlight. Besides, there was no object in between adding that he observed the incident for about 30 minutes. The witness further told the court that he tried to stop them from fighting but he was threatened to be beaten as well with the stick and the bench. When cross examined by advocate Lwiza, the witness mentioned those who threatened to beat him when tried to stop the fighting to be William Julius and Dioniz Gerevaz. He eventually went home around 7:30 leaving the fight going on. He added that if it wasn't for William Julius who held Bigiramungu by the color of his clothes, he would run away to rescue himself. On further cross examination by Advocate Byamungu, Pw2 told the court that apart from Minani, Dioniz and William, he also saw Bukuru Michael beating the deceased with "kufuli la baiskeli" on his head and Philipo Andrea @ Safari beat the deceased with a bench taken outside of Jacob Sigiri's club. He also explained that Minani came at the centre with a stick he explained it to be big like the one used for cattle grazing. 6 Pw3 was E. 5296 D/Stg Charles who told the court that he works at Rulenge Ngara Police Station and that he was an investigator of his case. In his testimony he told the court that on 2/8/2018 while in office, he was instructed by OCS to go and investigate the murder incidence at Mubitasha Hamlet, Kashinga and the deceased name was Bigiramungu Tadeo. That he went with the OCS and other Police Officers including a doctor. He went on that according to his investigation through the witnesses he questioned at the scene, he was told that the deceased was beaten by the 1st, 2nd, 3rd and 4th accused and also by other people who were still at large he named to be Bukuru Michael and Safari. He went on that he was told that the deceased was beaten by a stick and a bench on his head and hands. He went on that he was further informed that on 1/8/2014 there was a Hamlet meeting whereby after discussing the agendas, the Chairman before closing the meeting invited the people with grievances to air them out. He went on that the deceased complained that whenever he met Dioniz at the club, he force him to buy pombe and further complained against Minani that he had been committing adultery with his wife, but the people resolved the issue and the meeting was closed. However, the deceased wanted yet to fight Minani who went to complain to the chairman. He told the court that the Chairman told him to do whatever he wants to him as he was notorious person (mkorofi). Pw3 went on that thereafter Minani and other people went to Mkapela centre and found Bigiramungu who went to the centre earlier, seating at the kibonda of Anjelina Stanslaus. The deceased and Minani exchanged bitter words and a fight ensued. He went on that Minani beat the deceased with on his head and hands. Then Dioniz Gerevaz emerged and went to take the bench outside of Jacob Sigiri's club and went to beat the deceased with it on his head. He further told the court that William 7 Julius, a militiaman got hold of the deceased by his clothes and the three other accused (Minani, Jacob Sigiri and Dioniz) continued beating him. He added that, the people who gathered there tried to stop the fight but they were chased and threatened to be killed by the deceased as well. Pw3 stated further that when he went at the scene, they found the body laying at the road side, soaked into blood with a lot of injuries on the head. He also noted that the deceased was killed at the area where Jacob Sigiri's club was where they found the deceased's jacket, yebo (shoe) together with stick and bench pieces used to beat him all stained with blood. The witness also told the court that he noted that the deceased was pulled from where he was beaten to the road side about 130 paces where his body was found. He went on that it was Minani John who mentioned the other three accused that they jointly killed Bigiramungu. The witness went telling the court that in his investigation he noted that the accused had bad intention of killing the deceased because they used stick and bench to beat him on the head while the deceased had no weapon. Besides, both Minani and Dioniz were accused by the deceased at the meeting. Further the accused threatened to beat the people who tried to stop them from continuing beating the deceased. On top of that they shifted the body from where they killed to another place so as to conceal their action and destroy evidence. The witness went on that when questioned Minani, he told him that they were advised to shift the body by William Julius. The witness further told the court that after being told those who were involved, they went to search for them and Minani was arrested at his home on 2/8/2014 at 3:00pm and that when he saw them he wanted to run away. He further stated 8 that Minani was then taken to Rulenge Police Station where he wrote his statement after being informed of his rights and that he admitted to have beaten the deceased in the company of Dioniz Gerevaz, Jacob Sigiri and William Julius. That he then read over the statement to him and after verification, Minani signed each page. The statement was admitted in court as exhibit P3 after overruling the objection to admit it by the defence counsel. When cross examined by Advocate Byamungu, Pw3 stated that he believed the statement of Minani John. On further cross examination by Advocate Lwiza, the witness stated that he didn't tender the items collected at the beating place (jacket, yebo, stick and pieces of bench) as the same were not found at the accused persons' houses adding that the items were kept at Rulenge Police. He also refuted that William Julius didn't hold the deceased to stop the people from beating him but for the people to beat him and he himself was involved into the beating as well. In re examination, Pw3 stated that if William Julius was at the fight to stop it, he would have held the one who was beating him and not the deceased who was being beaten and had no weapon. When sought for clarification by the 2nd assessor on the Hamlet Chairman's statement, Pw3 told the court that; first the Chairman denied and further he didn't believe Minani's statement that the Chairman told them to do whatever they want to the deceased as he was notorious considering his position and status (Chairman). The defense side had five witnesses; the four accused persons and one Specioza Jacob, a wife of the 2nd accused. Dw l was Minani John. In his defense he told the court that he knows the charge he is facing but denied to have committed the offence. He further denied to have made any statement to the Police (P3). In his testimony he stated that he knows all of the accused persons as were his neighbors together living at Mubitasha Hamlet, Kashinga village. He went on that on 1/8/2014 evening hours she went to the Hamlet meeting convened by the Hamlet Chairman. After completion of the agenda, the Chairman invited anyone who had any grievances to speak out. That the deceased blamed him for making love to his wife and the issue was resolved at the meeting. The meeting was then closed and people dispersed to go home and others went to Mkapela centre including him while on his way to his home. He added that he has to pass to the center when going to his home. He went on that on reaching the centre he found the deceased sitting at the Kibanda of Frederick Stanslaus and it was around 7:30pm. He stated that Bigiramungu stopped him and told him not to repeat loving his wife and he answered him that the matter was already resolved. He went on that, but the deceased threatened to kill him and eat his flesh. The deceased further told him that he has groups (gangs) from Rwanda and Burundi which he can instruct to kill him and misunderstanding erupted. He further told the court that Anjelina Stanslaus pulled Bigiramungu to stop but he pushed her and suddenly the deceased took some sand, throw into Dwl's face and started to beat him. D w l shouted for help and many people came to help him. He went on that after removing the sand from his face, he didn't see Bigiramungu. He thus decided to go home and it was around 8:00pm. D w l refuted the testimony by Pw l and Pw2 that he chased those who tried to stop the fight between them by threatening to beat them. He added that he couldn't have stopped the people who were beating the deceased from 10 continuing beating him as they were many. He also denied to have a stick at the centre or to have beaten the deceased. He also added not to know anything concerning the bench. Dwl went further to tell the court that he remembers on 2/8/2014 around 5:00pm to 6:00pm he was at the Police Station Rulenge but he has never made any statement to the Police. He stated to have been arrested at 10:00am while at the scene where he went to witness what transpired like others. He also stated, in his view he was arrested because Bigiramungu had accused him to have relations with his wife when cross examined by Advocate Lwiza. Dw l stated that William Julius came to stop the quarrel between him and Bigiramungu before he threw the sand to his face but he couldn't succeed as the gathered people were beating the deceased and even William Julius, refuting the testimony that William Julius held Bigiramungu so that he could be beaten. He further denied to have seen Dioniz Gerevaz beating the deceased and also denied to have seen Jacob Sigiri at the Hamlet meeting. When Cross examined by the State Attorney, D w l told the court that he didnt know how Bigiramungu disappeared after he threw the sand to him, but when further cross examined he stated that Bigiramungu disappeared before throwing him the sand. He also stated the he didn't leave the place after the threats from Bigiramungu. When asked why he didn't answer. When asked again by the State Attorney as to whether Bigiramungu was beaten by the people before or after he was thrown the sand, Dw l kept quiet. When sought for clarification by the 1st assessor, he said that he shouted for help after being overpowered by Bigiramungu and that he didn't know what went on li after the sand was throw to his face and that the time taken from when the sand was thrown to him, removing it from his face and discovering that Bigiramungu had disappeared took about one minute. The second defence witness (Dw2) was Jacob Sigiri who conceded to know all of his fellow accused and the deceased as well as they were neighbors under one Ten cell leader at Mubitasha Hamlet. Dw2 went on to tell the court that he had two wives; Specioza and Janeth end each was living in a separate house. He denied knowing anything on Bigiramungu's murder as he wasn't at the scene of incidence. He told the court that he remember on 1/8/2014 he left his club at Mkapela centre around 1.00 pm and went he his wife Specioza and continued to work on his banana farm and slept at the house of Specioza. Dw2 went on that he heard about the death of Bigiramungu on 2/8/2014 and went to the centre to witness where he found a lot of people starring at the body. He went on that later the police came including Afande Charles who arrested about 18 people including the four accused and were taken to Police Station Rulenge. The witness denied to have beaten the deceased with the 1st accused and prayed the court to hear the testimony of his wife Specioza with who they were together when the incident occured. During cross examination by Advocate Byamungu, Dw l denied to know anything concerning the Hamlet meeting as he was not invited to attend. When asked how were they being invited he stated that normally invitation is done orally by passing through their houses and that he doesn't know why he wasn't invited in the said meeting. 12 When sought for clarification, Dwl stated that the people who came to his club would seat on the mobonzi mounted on the floor denying to know anything on the bench said to have been taken from his club nor the items said to have been collected at the back of his club (yebo, jacket, stick and pieces of a bench with blood stains).when the court wanted clarification if on 1/8/2014 he went again at the centre or his club after 1:00pm, he denied. The third (Dw3) defense witness was Specioza Jacob she told the court that she knows Jacob Sigiri who is her husband married in 1994 having eight children. She further told the court that she knows 1st 3rd and 4th accused being neighbors as they share boundaries. She told the court that on 1/8/2018 she went together with her husband Jacob to the farm. That they came back in the afternoon and ate lunch together with him and their children. Then the husband went to work on their banana farm. She went on that she later cook the evening meal and they again ate together and both went to sleep. Dw3 further told the court that she knows Bigiramungu as they were living together at Mubitasha but now he is dead. She went further that she heard about his death after coming from the farm on 2/8/2014 while her husband went to the centre to buy some pombe for selling at home. She went on that, she went to the centre and joined others to witness the said incident. On reaching there, she found the Police had already arrived. She further told the court that the Police examined the body and arrested some persons including the accused person but denied to know the reason why were they arrested. Dw3 also denied knowing what type of evidence she came to give as she was told to come to testify through the form brought to her to sign. 13 During cross examination by Advocate Byamungu, the witness told the court that she doesn't know if there was any meeting of the Hamlet on 1/8/2014 as she was not invited to attend. She also stated that there was no quarrel between Minani and Jacob Sigiri. She further told the court that all of the suspects were arrested at around 1:00pm and it was not true that Minani John was arrested at 10:00am as all were arrested together. She added that her husband was arrested for being suspected to have killed the deceased. The fourth defense witness (Dw4) was Dioniz Gerevaz. In his defense, he told the court that in 2014 he was residing at Mubitasha Hamlet, Kashinga village. He went on that on 1/8/2014 morning hours, a child of Balozi one Clement came and invited him to the meeting of the Hamlet on that afternoon to which he attended. He further stated that after completing discussing the agenda of the meeting, the chairman invited any person with concern or grievance to raise it. That Bigiramungu raised his hand and alleged that Dioniz used to force him to buy pombe whenever they met in the club. Dw4 refuted and the Chairman resolved the issue. He went on that later the wife of his brother came and informed him that his wife was sick. The witness left the meeting and went to find some medicine for her and gave her. He then went to the center around 6:30pm to demand his money and he was successful. He then went to the club of Ndabemeye Katula and drunk Lubisi together with Ndabemeye and Noel Katula. He went on that while at the club drinking hey heard the shouts of drunkard people exchanging bitter words outside the club and they all went out to witness. That he saw the gathering of people and then he saw William Julius who was a Militia Commander trying to 14 stop the people who were fighting and identified them to be Minani and Bigiramungu. He clarified that in a move to separate the two so as to stop fighting, William Julius held the deceased by his clothes. The witness told the court that he knows the charge he was facing but denied to conspire with other people to kill the deceased adding that he doesn't know who has killed him either. Dw4 went further that he decided to go home after seeing their commander (William Julius) as he believed that he will resolve and stop the fight. He went on telling the court how chaotic the said fight was, equating it with a war. He clarified that there were stones which were being thrown, he was afraid and went home. He further told the court that on 2/8/2014 morning hours, a wife of his brother, Anna Machumi told him that Bigiramungu has died at the centre and decided to go to witness. That on reaching there he found a lot of people have gathered and when went closer, he found the body of Bigiramungu laying on the road. That the police then came and after questioning some people, they read out the names of the suspects including that of Dw4. They were all taken to the police station around 10:00am and locked up. The witness refuted the testimony that he took the bench from Jacob Sigiri's club and beat the late Bigiramungu with it on the head. He also said he doesn't know why Minani mentioned his name in his statement (exhibit P3). When cross examined, Dw4 stated that he drunk about six bottles of V* each while at Ndabameye's club on 1/8/2014 adding that he was drunk as he felt loosing energy, the state which he used to feed when drunk. On further cross 15 examination by Advocate Byamungu he said that he doesn't know why he was suspected for the killing of the deceased. He also told the court that he knew that the deceased was beaten on the following day (2/8/2014) but he doesn't know what caused his death. When cross examined by the State Attorney, he told the court that he felt bad for the accusation by the deceased and complained to the Chairman right away at the meeting. On further cross examination, Dw4 told the court that he was too drunk to comprehend what was good or bad but was left with some senses to enable him go home. He also stated that despite the thrown stones, he was protected by God adding that even Minani was not beaten by the thrown stones either but didn't know who was throwing them as it was dark. The witness also on further cross examination by the State Attorney stated that when the stones were being thrown, William Julius was still holding the deceased. He also denied to have seen Minani wiping the sand from his face nor hearing him shouting for help. The last defense witness (Dw5) was William Julius. He started his defence by telling the court that he was a militia commander of Mubitasha Hamlet, the rank or status he got after completing militia training of nine months. Among the training they received include how to stay with the public in harmony. He explained his duty as a commander to include ensuring safety in the hamlet. The witness told the court that he remembered on 1/8/2014 while in his mgahawa selling tea, a quarrel ensued between Minani and Bigiramungu. That he knew about the quarrel after seeing his tea customers leaving to follow the shouts at 16 the place of Frederick Stanslaus and the time was 7:30 pm. He went on that he also followed them to where the people were shouting. He went on that when going closer he found Minani John and Bigiramungu fighting and other people were beating them. That he went and separated them to stop them from fighting by holding Bigiramungu by his clothes adding that Bigiramungu was his nephew as he married the daughter of his aunt. He further stated that he did so to rescue him as many people were attacking him using bottles, sticks and stones. The witness also stated that he (Dw5) was also beaten by a bicycle lock. He run away as the people attacking the deceased were many and they had overpowered him. He went on that while holding the deceased, Minani was still beating him. The witness went on that he left the fighting going on and went home around 8:00pm. He told the court that he didn't identify the people at the fracas as they were many. He denied the testimony that he held Bigiramungu so that the people can continue beating him. Dw5 went on that on 1/8/2014 around 9:00pm he got information from Tadeo, the deceased's father that his son Bigiramungu has died. That together with Tadeo, they went to inform the Hamlet vice chairman one Gervas Bisagwe who resides near him. All the three went to the Chairman to inform him on the incidence as well. They then all went to the incidence and slept there. The witness went on that; he found the deceased laying on his back with his head on the road and the rest of the body beside the road. Dw5 went on that on 2/8/2014 around 5:00am, the Chairman went to the police to report. The police arrived at the scene around 10:00am. They investigated and they later read the names of suspects among them were Minani John, Jacob Sigiri, Dioniz Gerevaz, Tadeo John 17 together with the names of the people with vibanda who were all taken to the Police. He went on that he later went on to the burial, that when coming back home in the company of the Hamlet Chairman he was told that he was required to give his statement at the police. He went to the police together with other four persons on 3/8/2014 but when reached there he was locked up until 5/8/2014 when he was taken to the District court of Ngara. That he was later told that he was involved in the killing of Bigiramungu which he denied. He further denied what has been stated by Minani in his statement insisting that, his involvement in the incident is that he went to separate Minani and Bigiramungu to stop fighting. He further denied to have seen a stick or bench as people were many. He added that he was also attached by a bicycle lock which is stick like by Bukuru whom he heard his voice and saw him when he turned to look at after being beaten but didn't see others who beat the deceased. When cross examined by Advocate Byamungu, the witness stated that she had no experience to curb similar chaos like the one occurred at the centre. The witness was asked several times as to why he held Bigiramungu when fighting while he had no weapon with Minani instead of holding Minani who held a stick and he gave various distinct answer or reason; He stated that Bigiramungu was more bitter (mkali) and was uttering threatening words "nitakuuo" so he held him so that Bigiramungu couldn't kill Minani. However during cross examination by the State Attorney, D5 conceded that the person to be held was Minani who had a weapon as to why he didn't hold him then, he stated that it was because Bigiramungu was fat and tall (giant) However during re - examination by Advocate Lwiza, he gave the reason that it was because Bigiramungu was near to 18 him than Minani. Dw5 has further stated that the distance from the centre to his home is a walking distance of 20 minutes and that the deceased's father passed to his house before going to report to the vice chair of theHamletas Dw5 was residing near him so that they can go together. When cross examined by the State Attorney, Dw5 stated that Bigiramungu was beaten by unknown people. When further questioned, he conceded to have seen Minani beating the deceased with a stick. He also stated that no stone has beaten him (Dw5) as he ran away early and he don't know who was throwing them. On further cross examination by the State Attorney, he said that the deceased was beaten before holding him and didn't witness the stones beating the j deceased. When asked by the 2 assessor as to why he went home leaving the fight continuing instead of taking steps to stop it being a trained person she replied that he had pains following the beating by a bicycle lock from Bukuru thought he didn't go to the hospital but drunk some local medicines. He also said he told the deceased's father and Chairman that he left a fight at the centre but conceded that he didn't informed them properly. After the learned counsels for defense and the State Attorney closed their cases, the court invited them to make their final submissions. In general Advocate Byamungu for the 1st accused and Advocate A. Lwiza representing the 2nd, 3rd and 4th accused submitted that the prosecution has failed to prove the case against all of the accused beyond reasonable doubt. On the other hand Mr. Haruna Shomari, the learned State Attorney for the Republic submitted that the prosecution has proved the case beyond reasonable doubt against the 1st 3rd and 4th accused and thus enjoined the court to find them guilty of murder and sentence them to suffer 19 death by hanging as the law provides. However the State Attorney conceded that the prosecution has failed to fault the alibi defense fronted by the 2nd accused but rested the matter to the court and the assessors if they have found any piece of evidence that negates the alibi defense pleaded. After summing up the case to the Lady and Gentlemen Assessors, all were of the unanimous view that the 1st 3rd and 4th accused were the ones who caused the death of Bigiramungu Tadeo with malice afore thought. They also held common view that the 2nd accused was not present at the place of incidence when the offence was committed. I will keep on referring to the submissions of the learned counsels together with the opinions of the assessors in the course of writing this judgment. The main issue for determination before that court is whether the prosecution has proved the case against the accused persons beyond reasonable doubt. This is essentially so because the burden of proof in criminal cases generally is always on the prosecution and the standard of proof is beyond reasonable doubt [Refer cases of Said Hemed vrs R [1987] TLR 117 and Mohamedi Matula vrs R [1995] TLR 3. The prosecution in this case relied on the identification of the accused persons, confession or cautioned statement of the 1st accused, the circumstantial evidence and common intention of the accused persons. According to evidence adduced, Pw l and Pw2 were the eye witnesses. As earlier stated, Pw l was a girl of a tender age (12 years). During voire dire test, the court was satisfied that she fulfilled the requirement of section 127 of the Evidence Act Cap 6 RE 2002 as amended by section 26 (a) of the written Laws (Miscellaneous 20 Amendments) Act No. 4/2016 and thus went on to receive her evidence. Both of the witnesses (Pwl and Pw2) in their testimony testified to have been present at the place of incidence and that have identified the 1st, 3rd and 4th accused beating the deceased around 7:00pm on 1/8/2014. The question to be addressed by the court is whether there was no possibility of mistaken identity on the identification of the 1st, 3rd and 4th accused. Generally the courts are required to be cautious to ground its conviction basing on visual identification unless it is satisfied that all possibilities of mistaken identity have been eliminated and that the evidence before it is absolutely water tight [Refer the case of Waziri Amani vrs R [1980] TLR 250 and Kazimili Mashauri vrs R: Criminal Appeal No. 252/2010 CAT Mwanza (unreported) ] The celebrated case of Waziri Amani (supra) has stipulated guiding factors to assist the court when determining as to whether there was no mistaken identity as follows:- 1. Whether the witness knew the accused before the incident 2. The amount of time the witness had the accused under observation 3. The distance between the witness and the accused person 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. In their testimony both Pw l and Pw2 testified to know the 1st, 2nd, 3rd and 4th accused as they were all living together at Mubitasha Hamlet, Kashinga Village. Pw l went further to state the activity each of the accused was doing which activities were echoed by them when giving their defense. Besides Pw2 have seen 21 the 1st and 3rd accused at the convened Hamlet meeting on the incident date which further confirms that Pwl and Pw2 knew them very well even before the incident. Pw l and Pw2 both stated that when the incident occurred the sun was not yet set and that Pw l observed the beating of the deceased for % hour while Pw2 testified to have observed the same for 30 minutes which time were enough for correct identification. Pw l in her testimony stated that she was 5 paces from the incident and Pw2 though didn't give the estimate but stated to be "very close". Both witnesses also stated that the said fight was outside in an open space thus there was no impediment between the witnesses and the incident. In this regard therefore I agree with the argument by the State Attorney that there was no mistaken identity of the 1st, 3rd and 4th accused rather the evidence by Pw l and Pw2 is absolutely water tight. The same sentiments were also shared by all of the assessors. In their testimony Pw l and Pw2 told the court that they saw the 1st, 3rd and 4th accused beating the deceased on the head and hands. They testified that 1st accused had a stick which he used to beat the deceased and 3rd accused went to take the bench which was outside the club of Jacob Sigiri and went to beat the deceased with it on the head. Pw2 described the size of a stick to be like the one used when grazing cattle. Pw2 further stated that the deceased was also beaten on his head using a bicycle lock by one Bukuru and the bench was also used by Safari to beat the deceased on his head. But the two are still at large as per Pw3. Pw l stated to have observed the beating for % hour and Pw2 observed it for 30 minutes. Each of these witnesses went to their homes leaving the fight 22 continuing. Pwl and Pw2's testimonies are confirmed by the postmortem report (exhibit P2) which stated that the dead body had a lot of injuries especially on the head. But further to that Pw l and Pw2's testimony were echoed by the 4th accused (testified as Dw5) who during cross examination conceded to have seen the 1st accused beating the late Bigiramungu with a stick on his head. This testimony was also confirmed by Dioniz Gerevaz (Dw4) who told the court that when William Julius held Bigiramungu, Minani was still fighting him. Pwl and Pw2 also testified to have seen the 4th accused also beating the deceased using his hands after holding him by his clothes while the rest were beating him. Advocate Lwiza has argued that, William Julius believed that he was trying to stop them from continuing fighting when held Bigiramungu by his clothes (kuwaamulia). She based her argument on section 18 A (1) (a) of the Penal Code Cap 16 RE 2002 stating that he was defending violence against 1st Accused. Advocate Lwiza further prayed the court to judge the 4th accused by his belief and not by facts as they were. However, I should hasten to add that the legitimacy of his belief is to be tested against what transpired, which in my conviction negates the alleged belief as apart from holding the deceased, he himself beaten him. (Pwl and Pw2). Besides even his failure to report after what he alleged to run away after being beaten by Bukuru and being overpowered doesn't show the spirit of stopping the fight. More so, the 4th accused being a militia commander in the Mubitasha Hamlet with the task of ensuring safety of the Hamlet (Dw5). I paused to ask; were his actions demonstrated a conduct which conforms to what Advocate Lwiza called "his belief" Certainly not. Or is what he did amounts to ensuring safety? Again no. Honestly speaking, his actions were strange and were not expected from the person who is a Militia Commander. No wonder Pwl 23 when testifying couldn't hide her surprise as she stated "nilifikiri anaenda kuomuo lokini kumbe naye okowo anapiga" Besides Pw2 observed in his testimony that if Bigiramungu wouldn't have been held by William Julius, he would have run to rescue himself. In my conviction, the 4th accused has been an instrumental and played an active role in the killing of the deceased. Advocate Lwiza has also argued that the prosecution has stated that the 3rd accused has used a bench to hit the deceased but the same wasn't tendered thus raise doubts. She cited the case of Malongo Mahaja & 2 others vrs R: Criminal Appeal No. 236/2015 CAT BK (unreported) to fortify his argument. It is true that the pieces of the bench testified to have been used to beat the deceased were not tendered, together with other items collected at the scene (Pw5). The issue is therefore whether the said omission has prejudiced the prosecution case. I have gone through the cited case and observed that the case was wholly dependent on circumstantial evidence. Further to that the deceased was not identified and the items alleged to belong to the deceased weren't tendered in court among other flaws observed. The court thus resolved the said circumstances not to point an accusing finger to the accused. However, in the case at hand Pw l and Pw2 were eye witnesses who have seen the 3rd accused among others hitting the deceased with the bench at issue. Though it might be argued that Pw l and Pw2 didn't witness the deceased dying as they all went to their homes leaving the beating continuing, but the circumstances irresistibly point to the guilty of the accused to the exclusion of any other person as there was no break of chain as far as 1st, 3rd and 4th accused is concerned as follows; 24 - that the said accused and the deceased were together at the Hamlet meeting whereby the deceased complained against the 1st and 3rd (Pwl, Dwl, Dw4) - that after the complaints which was refuted by both 1st and 3rd accused, the deceased wanted to fight them but stopped - the 1st and 3rd accused complained to the Hamlet chairman who told them to do what they can to the deceased as he was notorious (Dwl) - that after the closure of the meeting, the 1st 3rd and the deceased went to the centre (testimony by Pwl, Pw2, Dwl and Dw3). Further that the 1st accused went where the deceased sat (testimony by Pw l, Pw2 and Dwl) - that the misunderstanding between the 1st accused and the deceased ensued and they started fighting (testimony by Pwl, Pw2, Dw l, Dw2 and Dw5) - that the 1st 3rd and 4th accused were seen beating the deceased using stick and bench on the head and hands while the deceased had no weapon while held by the 4th accused. (Pwl, Pw2 and Dw5). - That the deceased was found dead on the next day and the body had injuries on the areas they were beating him the previous day (Pwl, Pw2 Pw3, exhibit P2). - Some properties of the deceased (jacket and yebo) together with pieces of bench and stick all stained with blood were collected from where the beating happened The above narrated chain of events, lead to one interpretation; that the accused were the one who caused the death of the accused [Refer the case of Simon Musoke vrs R (1958) ea 718 and Elisha Ndatoye vrs R: Criminal Appeal No 25 51/1991 CAT Mwanza (unreported). In that regard therefore, the cited case of Malongo Mahaja (supra) is distinguishable with this case with due respect. In my conviction, despite non-tendering of the bench and other items, the circumstantial evidence as above narrated implicates not only the 3rd accused but also 1st and 4th. Besides I agree with the 2nd Assessor's opinion that Pw l and Pw2 gave consistent, coherent and firm evidence and even their demeanor was straight and unquestionable. As such the court has no reason to disbelieve their testimony that they saw 3rd accused beating the deceased with a bench on the head. [Refer the case of Goodluck Kyando vrs R [2006] TLR 363. I am also aware that the 3rd accused has told the court that he was too drunk to know what was good or bad. However he told the court that he was remained with some senses to go back to his home. Suffice to state that his testimony doesn't show that he was too drunk to fail to know that his action to beat the deceased with the bench could have harmed him having in mind that he had the senses to go back home despite the alcohol he took, it goes that he was as well able as well to form an intention to kill as rightly argued by the Learned State Attorney [Refer the Case of R vrs D.H. Retief (1941) 8 EACA 71. Apart from visual identification, prosecution also sought to rely on the cautioned statement of D w l (exhibit P3). Generally reliability or otherwise of a statement regarded to be confession is based on an assumption that it was in fact made and further it was voluntarily made. In the case at hand Minani John has repudiated when Pw3 prayed to tender it. However the defense counsel when objecting to its admission didn't address the said renouncements by the 1st accused, in the same way even the court didn't address it as a trial within a trial wasn't conducted. The 26 1st accused repeated the renouncement when giving his defense. Having in mind that the confession though admitted in court, it has never been tested as to whether or not the 1st accused has made it through trial within a trial, the court is of a firm view that the same has no evidential value in the eyes of law and consequently accorded no weight and the court is hereby declining to rely on it. The same applies, in my view on the evidence of Pw3 as his testimony was hearsay and worse the person from whom was alleged to tell him has renounced it. Advocate Byamungu has argued during the final submission that though the four accused charged together for causing the death of the deceased, but there was no common intention to cause the deceased death and fortified his argument by the case of Shija Luyeko vrs R [2004] TLR 254. He clarified that when the fight between Minani and the deceased ensued, it was not expected that the others would join. The court has gone through the cited case and observed that the court therein dismissed the presence of common intention as the killer was hired to do so, thus he couldn't have formed common intention to kill with the person who hired him. But in the case at hand the 1st, 3rd and 4th accused all have actively participated in the beating of the deceased which resulted to his death. Thus distinguishable with the case at hand. The question as at what time accused persons can be said to have formed common intention to commit an offence was well articulated in the case of Godfrey James Ihuya vrs R [1980] TLR 197 CAT wherein it was observed as follows; 2. "To constitute a common intention to prosecute an unlawful purpose eg - to beat the so called thief as a result of which he died. It is not necessary 21 that there should be any concerted agreement between the accused prior to attack of the so called thief. Their common intention may be inferred from their presence, their action and the omission of any of them to disassociate himselffrom the assault". In the matter at hand, the fact that the fight begun between the 1st accused and the deceased, then the 3rd and 4th accused joined in the beatings, the 4th accused went ahead and held the deceased by his clothes while others continued beating him in a way to stop his escape and the accused persons chased away the people who came to stop the fight were sufficient facts to constitute or infer common intention regardless of whether they had any prior agreement to that effect. I thus don't subscribe to Advocate Byamungu's argument with much respect. The analysis of the facts in their totality have convinced the court that the 1st, 3rd and 4th accused had common intention to cause the death of Bigiramungu as rightly concluded by the Learned State Attorney. However the State Attorney when making his final submission joined hands with the submission of Advocate Lwiza who represented the 2nd accused among others that the 2nd accused was not present at the scene of crime when the same was committed. The same sentiments were also unanimously expressed by the Assessors. According to record the 2nd accused had given notice as per section 194 (4) of the CPA Cap 20 RE 2002 during the preliminary hearing on 9/11/2015 that he will rely on the defence of alibi during trial. He further notified that he will call his wife one Specioza who testified as Dw3 to confirm his assertion. During the trial neither Pw l nor Pw2 incriminated the 2nd accused despite testifying to know him very 28 well. Even when a clarification was sought by the court, Pw l was firm that the 2nd accused was not involved on the said beating and was he neither present at the scene. Pw2 stated that the 2nd accused was not in the meeting either and categorically stated that he doesn't know why Jacob Sigiri was in court when asked by the 3rd assessor. Further to that, the evidence of Dw3 (Specioza w/o Jacob) confirms that she was with the 2nd accused when the incidence occurred. But also even his club was closed when the incidence occurred (Pw l & Pw2). I am aware that what incriminated the 2 accused was exhibit P3 which this court has already ruled out that the document is legally of no evidential value having been repudiated by the 2nd accused (maker) and no trial within a trial was conducted. In the said circumstances I agree with all of the assessors that the 2nd accused was not at the scene of crime when committed. The State Attorney told the court that he had found no evidence to shake the alibi j defence by the 2 accused and rested the matter to court. I should equally confess that I didn't find any either. It goes that the prosecution has failed to prove the offence of murder of the late Bigiramungu Tadeo charged against the 2nd accused as rightly submitted by Advocate Lwiza. Consequently I am constrained to acquit the 2nd accused, one Jacob Sigiri as I hereby do unless held for other lawful cause. Following the finding that it was the 1st, 3rd and 4th accused who caused the death of the late Bigiramungu Tadeo the next wanting question to be determined is whether the killing was with malice aforethought. 29 According to section 20 of the Penal Code Cap 16 (supra) the law gave various scenarios through which the court can infer malice. The said section was well interpreted in the case of Enock Kipela vrs R: Criminal Appeal no 150/1994 CAT Mbeya (unreported) where in the court has stipulated the guiding factors as hereunder; 1. the type and size of weapon used if any in the attack 2. the amount o f force applied in the attack 3. the part or parts of the body the blows were directed or inflicted on 4. the number of blows though one may suffice depending 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 of after the killing. In the case at hand, the type of weapons used were stick and a bench (Pwl, Pw2 and Dw5 who seen a stick being used). The size of the stick was like the one used in grazing cattle (Pw2). The amount of force used could be explained by the pieces of bench found at the scene (Pw2 and Pw3). But also on the wounds which were explained to be penetrative on left face below the eye and some observed to be crushed wounds (exhibit P2). Pw l and Pw2 in their testimony told the court that the deceased was beaten on the head which fact was also echoed by Dw5 who saw the 1st accused beating the deceased with a stick on the head. The evidence was also corroborated by the exhibit P2, the postmortem report which under part 10 stated 30 ............. a dead body (male) about 28 years old with a lot of injuries and a lot of clots of blood especially in head and a chest". While under the summary of report (part 9) it was stated ........dead body has a lot of injuries especially the head..... With regards to the number of blows it was stated .....total number of injuries on head are about 11....... " And further on the type of inflicted injuries were explained to be penetrative and crushed ones (exhibit P2). Another aspect that assists to infer malice is the conduct of the assailants. Starting before the attack; the 1st accused went to the centre of Makapela straight to where the deceased sat (Pw l and Pw2). That despite the exchange of bitter words and the threats from the deceased the 1st accused didn't leave the place the conduct, which shows that he was ready for anything. During the incident: the 1st and 2nd accused attacked the deceased with sticks and a bench while the deceased had no weapon (Pwl, Pw2, Dw5). The 4th accused went on and held the deceased while others including the 4th accused continued beating him, the joining of the 3rd and 4th accused in the beating and the accused threats to beat the people who came to stop the fighting. After the killing: That the accused shifted the deceased body from where the beating occurred and laid it along side of the road, the action which had a motive to conceal the act and destroy the evidence in my views. Pwl, Pw2 and Pw3). But further the 4th accused's action to run away from the scene area and went to his home while he was a Militia Commander of the Hamlet vested with the task of ensuring safety was not normal. Besides, failure by the 4th accused to report the 31 incidence (Dw5) yet he lives near the vice chairman of the Hamlet one Gervazi Bisagwe. On top of that he didn't even tell the father of the deceased (Tadeo) of the fight when the said father informed him the death of his son. The concealment can be interpreted to shows guilt mind on his part. All of the above evidence has left no doubt in my mind that the 1st, 3rd and 4th accused had an intention to kill Bigiramungu as rightly submitted by the State Attorney and opined by the Assessors unanimously. The State Attorney in his submission has also argued that there was reason why the accused persons committed the offence (motive). I am aware that motive is not an ingredient for murder, However the law is settled that its presence strengthens the prosecution case and its absence weakens it "Refer the case of Kachuchura Nshekanabo @ Kakobeka vrs R: Criminal Appeal No. 314/2015 CAT Bukoba which cited with approval the case of R v Tindikawe (1940) EACA 67. The State Attorney has narrated the reasons for killing in this case which views was also shared and expressed by the 2nd and 3rd Assessors to be; accused's accusations at the Hamlet meeting against 1st and 3rd accused, the deceased's threats to the 1st accused (that he can hire groups from Burundi and Rwanda to kill him). The deceased's toughness (tall and fat) as per Dw5 was the reason why they teamed up in attacking him. Suffice to state that I agree with the State Attorney's submission that there was motive behind the killing of the deceased as above narrated which further strengthened his case. It is from the foregoing and analysis of the evidence in its totality that I have come to the conclusion that the 1st, 3rd and 4th accused persons have intentionally caused the death of Bigiramungu 32 Tadeo. I therefore enter the conviction for the offence of murder against them as charged. L.G. Kairo Judge 31/10/2018 SENTENCE As rightly stated by Advocate Matete, in our contrary the position of law is uncompromising when it comes to conviction of murder against the accused person. The only punishment available is death penalty. I understand that the punishment has been criticized by various groups of human rights activists, religious leaders, lawyers and even common people to mention but few, arguing that the sentence is inhuman, degrading and lowers human dignity. Be it as it may, since those sentiments or wishes haven't been included yet into our laws, the position still stands. I am thus constrained to apply the law as it is regardless of the expressed sentiments. Thus as far as this case is concerned now, my hands are tied up by my oath of office I took to uphold the Constitution and respect the laws of the land including this one. From the premises of the conviction entered, I sentence the accused persons namely:- 33 1. Minani s/o John 2. Deoniz s/o Gerevaz 3. William s/o Julius to death which shall be suffered by hanging. Judge 31/10/2018 Right of Appeal explained L Judge 31/10/2018 Advocate Matete: Hon. Judge, I submit my intention to appeal against the conviction and judgment by the all of the 1st, 3rd and 4th convict. Court: Intention to appeal against the conviction and sentence against the 1st, 3rd and 4th convict is noted and granted being their rights as categorically explained in my judgment. Lady and Gentlemen Assessors are thanked and discharged. 34 Judge 31/10/2018 35