20181102 TZHC Mwanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA : IN THE DISTRICT REGISTRY ATMWANZA SITTING AT MAGU CRIMINAL SESSION CASE NO. 30 OF 2014 offense shows that on 3rd June 2013, while at Shighumulo, a village which is located in Kwimba District in Mwanza Region, the three named accused persons killed one John Sylvester@ Nkinga. According to the facts of the · case, the story on how they were arraigned and connected to the 1 'I ' unlawfully killing of the said John Sylvester @ Nkinga is simple and straight forward. On 3rd June 2013, around 24hrs Mectrida Charles, (the deceased's second wife) and Felister Patrick (the deceased daughter) were sleeping at their residential premises in Shughumulo with the· deceased when a knock of the door was heard. Not knowing the fate that would follow him, the late John went to see who wa~ocking. He met two people at the seating room who without ask~rt~,2him with bush knives commonly known in our sSihm l~~~Panga. Panga in her head and ri,Cnd/llit b~ron bar in the back before . \' v\\V being escorted back~the b~-..room and told to keep calm as the assault -~~~/ against her l;n1sb~r1'd continued. She therefore remain in the bed room until wheni\~?k~~z being satisfied that they quenched their thir~hn's l~llas been taken. His body was examined and a Post mo1~~ort)~s is:ued and later during the preliminary hearing of this ~ case, it was tendered and admitted as Exhibit Pl. According to the said report on Post Mortem examination the cause of death was severe hemorrhage due to multiple cut wounds in the head, neck and chest. 2 <f Unfortunately, both Felister and Mectrida who testified in Court as PW1 and PW2, told the Police in their statements that they failed to identify the culprits. It was only through Police investigation, the details were revealed that the late John had a family issues with his ex-wife one Leticia Yohana (the 3rd accused person) and his son Edward Jo~(the 1st accused person) over division of matrimonial asserts. ~ ~ ~ o r e arrested and interrogated. ~ It was stated that upon the said,~a~1~e two confessed to have planned and later hired t,~.d acctls'e~~ Senni Leonard@ Makaya \\ u</\') (/ and another persoao howe~er r~mains at large to execute the late ~~~/ John in th~~appenedphat confession led to arrest of the 2nd accused_as w~nd}ialnin~f murder charges against them, allegations whie~st:;y denied. During the trial, Ms Ajuaye Bilishanga, the learned senior State Attorney represented the Prosecution-Republic, and the defense side was marshaled by Counsel Boniphace Sariro, Joseph Kinango and Melchizedek Gunda appeared for the 1st, 2nd and 3rd accused persons respectively. 3 While the prosecution procured a total number of four witnesses, the defense had no additional witnesses apart from the accused themselves. In their defense all three accused person denied to have neither plotted nor participated in the unlawful killing of Sylvester John @ Nkinga. While it was the defense testimonies from the 1st and 3rd accused persons that they lived in harmony with the deceased to his final d ~ t ~rd accused contested. It was also a common~nd ~his death did not arise from V '"\~ ~ a natural cause, rather his\i(e wa~~yv,short by the attackers. The offence of murde~ ~~ecused persons stand charged, requires the pr.osecutio~e to pro~ainly three ingredients. These are one that t~Q~...un~~ death human being who has died an u n n ~ ~ a t the said death must be a result of an \\I __ L.\\ V unlawfu~ the accused persons and third that death or at least seriou~ily~~m was intended by the accused persons when doing that unlawful act. In considering whether the prosecution side has proved its case beyond reasonable doubts, I wish to combine the first and second issues on 4 whether a human being called John Sylivester @ Nkinga has died a death which is unnatural one. The key evidence in this issue came from exhibit Pl, a Post Mortem report which was tendered and admitted without objection from the defense side during the preliminary of this case. Since there was no contention on the Post Mortem report, then the fact that John Sylvester @ Nkinga has died an unnatural death, ~P.roved beyond reasonable doubt and I accordingly hold so. . ~ The first question being answered"f~~ining issue for my determination is whether t y ~ \ u s ~ o n s are responsible for unlawful killing of John s 4 s t e ~ ~ o prove this question, the prosecution side r ~ ~ ~ ~ o n y of Felister Nkinga (PWl), Mectrida Charl~~"P0lice Officer No. 6837 D/C Jamila (PW3), an ' ~"'( ,_~ investigato~~h)J~~,·No?Zs10 D/C Baraka (PW4) and the cautioned sta/~~)~ward John @ Nkinga @ Bugumba (1 st accused per1~etkia Yohana@ Shilughumika (3 rd accused person). ~ Let me state from the outset that the alleged cautioned statements from the 1st and 3rd accused persons which were recorded by PW3 and PW4, were found to be inadmissible after trial within trial and therefore the same does not form part of evidence in this case. Since PW3 and PW4's 5 testimonies were on the cautioned statements of the accused persons which were not admitted, then it is obviously that the prosecution's case remained with only evidence from PW1 and PW2 to respond to the question on whether the accused persons are the ones who killed the late John Sylvester @ Nkinga. testimonies in Court, that she failed to iden~the Killers~ father on « ,~.~ that material night, PW2 on her side;.~pfte-i~h~g~ her statements to the Police that she as welHailecl~~tity,the perpetrators of this ( ; _,,,.,-~ "-.:,~ V brutal killing, changed h t t o ~ ) . ~ u r t and insisted that she managed to identirao people. One,is the 1st accused person and two; ~ '~'\~ is a person called,N. gusa. 'f~ second person however, was not party to ~~ ) ' <7- this case.-anc:N'.orvtflabasen, I will confine myself only to the claim of u i d e ( ~ ~ ~ ~ n i : ;of the 1st accused person by PW2. V . When cross examined as to the reason behind this turn over, PW2 contended that by the time she gave her statements to the Police on 3rd June 2013, she was scared and in fact feared that mentioning the killers would have brought them back to her and face a similar fate as her husband. In other words, PW2 concealed this crucial fact and one will not 6 be faulted if he construe the above statements to mean that PW2 lied either before the Police or before this Court because only one of those statements might be true. In whatever case, since PW2 claimed to have recognized the 1st accused person; the question that can be posed here is whe~~ properly identified or recognized the 1st accused person~ a p ~ s to~her step son and so well known to her prior t~~d✓n~;:case. I will start by stating the position ot./U~::~~n:t~g~~n/ identification / \ ~ ---.._,, of suspects in our country. Of,tb~ ci'utmost importance is that such kind of evidence must be careCCamin'ed~~~ing relied by any Court. That is essential in ~r~~~e possibility of mistaken identity and in so doi~'e ~)\!-Jactors has to be considered: First, the period und~ic;))lle-accus"ed was under observation by the witness. SecC~~~\s::ating the two during the said observation. Third;\in~)dentification was done at night, whether there was sufficient light. Fourth, whether the witness has seen the accused before and if so, when and how often. Fifth, in the course of examining the accused, did the witness face any obstruction which might interrupt his concentration. Sixth, ability of the witness to name a suspect's name at the earliest opportunity, seventh, credibility of the identifying witness and 7 eighth, the whole evidence before the Court considered, were there any material impediments or discrepancies affecting the correct identification of the accused by the witness. [See MATHEW STEPHEN @ LAWRENCE vs. THE REPUBLIC, Criminal Appeal No. 16 of 2007 Court of Appeal of Tanzania] Having listed factors to be considered, I will n o w ~ ~ t i ' " y to . \\2 ~~/ in an attempt to answer the question w~her or t')o,(p-W2 properly recognized the 1st accused p e r s o ~ ~ ~ ~ ) i find it prudent, for easy of reference, to reproduce~tlle PW2~ testimony on how she ~'> encountered the culprits: . We were,,.slee~ith mfr;:;band the said John Nkinga. Sudde~"ard t h ~ being knocked. My husband asked who;_wa~~/;;{J;ifiii.e was not reply. We thought may be the (fs ;;;/e,.g~i::gut to attend the call of nature. We woke up. ~d /vent to the door. Suddenly I heard him cry. I raised from,mY,..,bicJ. I went to see what was happening. I saw two people. The third one was outside with a torch. I jumped to one of those people who were attacking my husband I was also hit by an iron bar in the shoulder. Then I was escorted by one of those people to the childrens bed room. I was ordered to keep calm while they were attacking my husband I couldn't stop crying. While in the room/ I tried to have a look on them but my 8 body lost strength. The two people who were inside our house continued to attack my husband with Panga. They attacked him in several parts of his body till he couldn't do anything then they left ... One of those attackers had a black shirt and the other was in red shirt There was lights from the torch. I saw the person who was outside had a torch which was directed inside. I recognised those people who attacked and killed,my husband. I "'·~ saw Edward John and another person called Ngusa w b ~ away; [Underlined emphasis is mine] ~ M I have given a length consideration o ~ ~ i e c e of evidence from PW2 and I am of the settled v i e ~ t ~ ~ : n evidence is too weak. Even though PW2 c1£oha~oognized the 1st accused person, r.'\ //--.. " ) /.'> .\ <./ "' ,, v-1/ she doesn't say the~playe~lll of the two persons who attacked her husband. F,orinsta~~sh~ed to describe the attackers, PW2 just said ons~).ed.s~ilnd another in black. Who among the two was i n ~ k \ d ' ~ i n in red shirt? Had she recognized the 1st accu~~~e could have simply said described his appearance that night. PW2's-iimonies also doesn't tell us who among the two she manage to recognize, hit her with an iron bar and actually escorted her to the bed room and told her keep calm. I believe had she recognized any of them, she could have mentioned the persons. The fact that PW2 kept referring the attackers as "that person" instead of names presupposes, in 9 my view that she didn't identify any of them. In cases which depends on identification or recognition evidence, ability of the witness to describe the culprits is very important. It is not enough to merely state that the accused person was identified. Specific and not general descriptions must be given. In RAYMOND FRANCIS vs. REPUBLIC [1994] T.L.R 100 the Court of Appeal of Tanzania cited with approval the decision o~~"-defunct Court ~ --~ of Appeal for Eastern Africa in MOHAMED ALHUI v~x (19~,EACA ,t2 72, which observed the following: 1/~ . ~ In eve,y case in which thea.~~est~rz:.,s to the identi~ of the accused, the factrf!!!.re hav,fJ!!,,!'lf'I a descnptton gwen and the terms oftJat'descriptf9~iv,t,afe matters ofthe highest imnortance of4ict"la~.ce o~Pht alway.'S to be given ,, . ~~/ As to the ~ ~ ~ , o n l y said there was light from the torch. Sher r y r ~ h . Was it the light from the said third person who~s ou~)~\he carry a torch? Was there a torch in the seating room? ~!apart from failure to disclose where the light came from, nothing was said on the intensity of the light from the said torch. The need to give sufficient details on the intensity of the light to enable the Court to easily assess whether the conditions prevailing were favourable or not for correct identification was underscored by the Court of Appeal 10 in Issa s/ o Mgava @ Shuka Vs. Republic, Criminal Appeal No. 37 of 2005 (unreported). The Court stated:- Even in recognition cases where such evidence may be more reliable than identification of a strange~ clear evidence on sources of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness!!.:urporting to recognize someone whom he knows, as<as fhe~se here, ~~ r mistakes in recognition of close relatives ancl~~,ds made. ~ "--'-\. \/, ·~~ The Court went on to say: . . ' ~~· · In our settled minds, ~~~jlt<!f4s not sufficient to make bare assertions .{Jlq~~was light dt the scene of the crime. It is common kn0wled~~iatn~hey electric bulbs, fluorescent tubes, ha{'Qe~mps, ~{)amps, lanterns etc. give out light with "'~ / L____ v ;1;ing-inte~~s;-De7iflitely, light from a wick lamp cannot be \°,r;;;a~'::witfl,lif!jt from a pressure lamp or fluorescent tube. f/1,ce the 1,Jrriding need to give in evidence sufficient details the in~~~aiize of the area illuminated. Again, as PW2 didn't say who had a torch, a claim that she identified the 1st accused person through the light from a torch usual needs more clarification especially if the alleged light came from the third person whom PW2 said was outside with a torch. This is because in normal 11 circumstances, it is not easy to identify reliably the user of the torch who directs the light from the torch to objects in front of or around them. In BARIKI KINYAIYA, JACOB HUBERT & ELIAONI KINYAIYA vs. REPUBLIC, Criminal Appeal No. 220 of 2007, the Court of Appeal of Tanzania observed that; Ordinary human experience is that a pe~n~a"}!:!;/f) otherwise known as flashlight in America)<'irit}1isli'~nable them to see an object or a person in fro~}o~)~t::,_~'d,out ;:; ~~·~"" the user being clearly seen bY. th~o"';Shon~)Jvt because of the blinding effect of such light,on that·o!!!_,er person. It may be possible, however, fo{_a'pe'rso";;-;~.f!..(of.Jhe user of the torch who is not directly sht'/e at to'S'ee an(Jdentify the person using the torch if fhe1@N fr~FIJ... t~~) is reflected by a shiny wall v""~ ", :-:--.___/; or object}?;_tberwiSe, us~lly,Jt is hot easy to identify reliably the user of:/the~ wh~"rtects the light from the torch to objects in froo~~rk_lJ!L"!fr¼ In the case under discussion there w~viden~hat the light from the torches was reflected by t¼~;::i~!}the room or by shiny objects in the room. As said earlier, PW2 did not reveal to anyone that she recognized the pt accused person. She stayed with it five years only to reveal it during the hearing of this case. Ability of a witness to name a suspect's name at the earliest opportunity is an all important assurance of his reliability. Failure to name a suspect for long time may as well shake the credibility of a 12 witness. [See Marwa Wangiti Mwita and Another vs. The Republic, Criminal Appeal No. 6 of 1995 CAT (unreported). In this case for example PW2 told the Police that she never identified any of the culprits. She kept it a secret for five years. I believe had she revealed it to the investigation officer, her additiona~tements would have been recorded. By not disclosing it, ~ ~)'.~¥me issue remains in this case. One is from PW2~5,sta\me~the Police where she told them that she f a i l e d ~ ~\kers. Two is the version given in Court w h ~ ~ ~ i e s that she recognized the 1st accused person ~(. 1the m'ateriah n,ight. Which set should be \\ (,/" 0 V believed? In my coiaered'~is an incredible witness. She can't be believed;/.{~ ~~IBU ABDALLAH vs. THE REPUBLIC, Criminal "~ 1L )V/> AppiNo.~~99~,~durt of Appeal ofTanzania had the following to sa/c:~ity,of~nesses; ~ l i t e r s of identification, it is not enough merely look at factors favouring accurate identification. Equally important is credibility of witnesses. The conditions for identification might appeal ideal but that is no guarantee against untruthful evidence. 13 All that being said it is my finding that, the condition inside the house of John Sylvester @ Nkinga in the night when he was attacked to death, was _not conducive for PW2 to identify those who killed her husband. The question whether the 1st accused person was properly identified by PW2 is therefore negatively answered. With that question answered as such it is obvious that the main question whether the three a~ed persons are responsible for unlawful killing of John Syli~~\~gacks supportive evidence. \~· v In my considered opinion,,,.-h~~~d cautioned statements evidence as indicated ear~~~:;:;s":hat touches the 2nd and the 3rd accused pe~s~\ ~ ~ h e r e is therefore no evidence to . . . mcnmma e \\)se. t t h ~ ~d "-"' per~n . th" 1s case. ~~ As I conclude, l\wist)Jo refer, though by way of passing, the words the late~~kingira,} (as he then was) in Mohamed Katindi and Another -~ Vs Republic (1986) TLR 134 where he stated: The onus is, unless otherwise stated, on the prosecution to prove the guilt of the accused beyond reasonable doubt An accused person may not be convicted on the weakness of the defence which would include the omission to cross-examine on a crucial 14 ,- • matter✓ but can only be convicted on the strength of the prosecution case. In the circumstances and for the reasons stated, the prosecution side has failed to prove this case to the required standards. I therefore share the 15