20180328 TZHC Mwanza

' ,• :-t ··-_,.! '~ '"· ;, J, ·{' • IN THE HIGH COURT OF TANZANIA In the District Registry at Mwanza ORIGINAL JURISDICTION ; .HIGH COURT CRIMINAL SESSION CASE NO. 119 OF 2012 (Original Criminal Case No. 25/2012.ofNyamagana District Court at Mwanza) THE REPUBLIC ... VERSUS YUSUPH S10.HAMADI MAGESA@ BABUU Last Order date: 16/03/2018 Hearing dates: 06th , 09th & l0th of November, 2015 & 14th ,15 th & 16th of March, 2018 Judgment date: 28/03/2018 Counsels: . For the Republi~: Mr. Kidahdo R., learned Senior State Attorney M/s Gisela Alex; learned State Attorney · For the Accused: Mr. Outa, learned Advocate JUDGMENT MAKARAMBA, J.: This is Judgment in a case in which YUSUPH S/0 HAMADI MAGESA @ BABUU, the accused,isfacing a chargeof murder c/s 196 and 197 of the Penal Code, Cap.16 R.E. 2002. It is alleged that on 29th day of January 2011, at NORTH-MECCO-NYAKATO,within · NYAMAGANA District in MWANZA Region, the accuseddid murder one BEJAMIN S/0 ,. SAMSON @ TAIFA, the deceased. The accused pleaded "Not Guilty" to the charge. 1 The accused having· pleaded ·"Not guilty~' .to the charge of murder, the prosecution· therefore had· the burden ·of proving 'the offence of . . murder against.- the · accused beyond any ·reasonable doubt.At the Preliminary Hearing. (PH)_ ccm,ducted .on 21/..11/2012before· Hon. M.G. . Mzuna . J., . ,the._. . following . . . . . . matters · were . . ' -recorded . in the - Memorandum of Matters Not in Disp..-te, nam~ly: - . · · · • l • • •, •' •,. • • . • (1) That, the name; bf the· accused and the deceased as per the charge/information;· . ·. . (2) That, one Benjamin s/o Saimon @. raifa is dead and his death was unnatural; • (3) n1at, on the eventful day· the accused and the deceased were together dancing disco prior to his death; and (4)-That, the-·accused was arrested and then charged in court after the deceased's death. _-· · In view of the matters· not in dispute, what remained -for the prosecution was to provethat: .. 1.. The alleged death of BENJAMIN S/O SAIMON@ TAIFA, the deceased, was under the.• contrivance of _the accused, YUSUPH S/O MAGESA @ BABUU, and 2; It is the accused person before this· Court who actually killed the deceased. In establishing its case against the accused, the prosecution brought . . a total of four ( 4). witnesses who testified under oath during the trial, namely; E.8153 D/Sgt.Sagali (PW1), . E.5197 . D/Sgt. Juma (PW2-),Inspector Mbogo (PW3) and IdrissalumaMunungwa(PW4). The ·Prosecution also· tendered in 2 evidence four exhibits, .theSketch ,Map -of the crime sc;:ene· .(Exhibit Pl)an9 the Postm9rtem. Examin~tio.n Repo~ o(, the· Dec~ased (ExhibitP2.), which.were tendered arid admitt~d i11,evid~nce quring the Preliminary Hearing before. Hon. ·M~una. J.,· on 04/1112012.The . knife(Exhibit P3),which is alleged that the accused used. to stab the deceased with, and the Cautioned Statementof the accused (Exhibit P4),which · was recorded . ' by a Police . No.E.5197 . . Officer with . . D/Sgt.Juma on 31/01/2011 from 10.00 hrs. to12.00 hrs., were both tendered and admitted in evidence during the hearing of the case before the predecessor presiding Judge Hon. Mlacha, J., on 06/11/2015 and 09/11/2015 respectively. It is alleged by the prosecution that it is the accused who handed · t, over the knife to the police. It was received .in evidence without protest from the defence. The Cautioned Statement of the accused (Exhibit P4) was however, received and admitted in evidence only after the presiding predecessor Judge Hon. Mlacha, J, had, in his Ruling dated 12/10/2015, overruled one of the two objections the learned Counsel :•, for the Defence, Mr. Outa, had raised in protest to its being admitted in evidence. The two points of preliminary . objection raised by Mr. Outa ' . . . were that, the procedure for recording the Cautioned Statement had not been complied \l\'ith and that, the confessional "extra judicial statement" (sic!) was not voluntarily made by the accused. The presiding predecessor Judge Hon. Mlacha J., having excused · the sitting Court Assessors, so as "to give room to conduct a "trial within . a trial', heard some witnesses namely;Fratern W. Temba(PWl),F.2464 D/Cpl.Theophilous(PW2). ar:td the accused (DW1). The impugned Cautioned Statementand the PF3 •Of the 3 - ·, accused were produced and marked·· as Exhibit "A"and , Exhibit . ~'B"respectively. Ultimately, the presiding predecessor ·Judge overruled ; the .. first limb of the obje.ction ra_ised by Mr. Outa-; and· admittedin ·.: evidence the Cautioned Statementof the accused as Exhibit P4~ Mr . . Outa promptly prayed to withdraw the second limb of the objection on ; ·- the involuntariness· of _ the confession, which prayer. the- presiding _predecessor Judge readily granted. · · Due to the transfer of the presiding predecessor Judge, I took over · . the case and continued with the trial, at a -stage where three (PW1, PW2 and PW3) of the four prosecution \ivttnesses had already testified. Having complied with the ·requirements· of section 299 of the Criminal : Procedure Act, Cap. 20 R..E. 2002, and the accused having readily acceded to proceed·-with the trial from where it had stopped, I continued with the trial by· receiv~ng in evidence the testimony of the last - prosecution witness,· PW4~ -IdrissalumaMunungwa. The events leading up to the· murder of Benjamin s/o Saimon @ · Taifawith which the_accused Yusuph s/o-·HamadiMagesa:@ Babuu now stands charged, took place on the evening of 29/01/2011 at North Mecco-Nyakatoarea withinNyamagana District in Mwanza Region.I take judicial notice that the 29th day of January 2011 wasa · Saturday. On the fatefulevening of the Saturday of 29/01/2011, there · happened to be a wedding ceremony at which both the accused and deceased,as per the testimony· of PW4 (IdrissaJumaMunungwa) ' . · attended, but without being invited. In his defence, the accused (DW1) denied ever being. at such a wedding and not knowing- PW4, who had _claimed in his testimony of knowing each other and even having played ·__football together. 4 I : In _his testimony at the· trial PW4 :stated that on the evening of, the ; -. t:yentf~I day of- Saturday of 29/01/2·911,having had hjs dinner, .went : .tothe place where th~ we~ding ceremony:w~:staking place arriving th~re . ·at around '1.30 pm·.He found -the accus~d ·alteady, there .anddancing · .. • - ~ • • • 4 • • • with a light skinned. huge ~iz•ed~o~an whose name he could not.:· remember although he had. pr~viously ,seen her at Nyakato~okoni. · PW4testified further that, he saw the deceased, :Benjamin s/ oSaimon @ · Taifa,pointing · ··his finger· at •. the accused Yusuph s/o HamadiMagesa @ Babu·u, who wa~ standing behind thelight skinned huge sized wornan,whHe ·the deceased.. holding his hand to. his chest . ~ covered with a black jacket, bl'eeding profusely, whe~eup~n . the decea~ed fell d9wn on_ the ~round and that imm~diately therea~er. he : saw the accused runn_ing away towards the direction· to his home. Wh~n ' ' ~ asked a questi~n by Cpurt Assessor (Constantinelukoma),PW4 - i stated that Babuuwas talking to his friends where he was standing and that he knew that.the deceased vyas pointing at Babuu because he ran away after being pointed at by th~ <:leceased.PW4 explained also that. he was standing in front of Babuu and-that there was a short distance· • ,J ' • J-+,,,,,. between where the deceased was dancing from to where Babuu was :'~_J',. standing and that the deceased andBabuu were close to each other. - According to the testimony of PW2 who passed by the crime scene .., ... . on his way back to the Police Station while in a car with another Police Officer and a father they had arrested ih connec~ion with a case of child abduction, h~ saw "a huge crowd of people at the place where there was . ~ . ~ a wedding ceremony and music being played. PW2 narrated further . . · that they took the deceased who at the time was breathing with problems to the Police ·station where they obtained a PF3 and took the 5 :; victim to the SekouToure Hospital for treatment but he was later informed by the deceased father that the deceased had died at the · hospital while receiving treatment: ·A postmortem examination was ·- carried on the body ·of the deceased· and as per the Postmortem · Examination Report ·(Exhibit. P2), the cause of death of the deceased Benjamin s-/oSaimon @ Taifawas described as. being due to ''hemorrhagic shock due to pericardia/ hematoma die.to chest · wound on the left chest due to sharp object. '7fhe Medical Officer _who examined the body of the deceased stated further in Exhibit P2that, "the said deceased . . . .' found with a stab wound_- left chest . . -~ 2cm max length penetr_ating through· the 5-dh intercostal space to the middle right ventricle of the heart" The knife . (Exhibit P3) which the prosecution alleges that the accused used to stab the deceased with on the fateful Saturday eveninQ of 29/01/2011 was tendered and received .. in. . evid_ence, appc)rently . ' b~ing . . the ·, , "sharp •, .· . obiect'tlescribed in Exhibit P2. On .the part. of the defence, the only witness was the accused -himself and he testified under oath as DW1.The accused did not offer irt evidence any exhibit~ ··· On 16/03/2018 after having_' _s~·mmed up the evidence of the prosecution and defence for the· assessors as required under section . ' . : . . . . ; . ·. 198(1) of the Criminal Procedure Act, Ca, 20 R.E. 2002,each of the . . - . . . three Court Assessors who sat with meon the trial _gave his or her respective opinion. Two of the three Court Assessors having given their opinions retur~ed·a _verdict of "Guilty" against the accused. One Court . . - ~ Assess9r having give·n his opinion returned a verdict of "Not Guilty" against the accused. -I propose to address myself on theopinions of the Court Assessors in ~u_e coLJrse, but let me first deal with the prosecution 6 · : and the defenceevidence with respect to a number of issueswhich have cropped up in the course of the hearing of this case: I propose to begin . -With the evidence in respect of the events which took place at the crime •. :.· .. scene on the fatefu'I evening of Saturday, the 29th day of January · 2011, at NORTH,;.MECCO .. NYAKATOleading to the deceased ·being · stabbed todeath . . · As per the testimony of PW4, on the eventful day of .Saturday the 29th of January 2011, there was a wedding ceremony at which both the accused and the deceased were present albeit without being· invited. ,, . . . In his testimony however, the accused (DW1)has denied being at the wedding ceremony as alleged by PW4 or even knowingPW4 and that he only saw PW4 here i,n court during the trial.· On·the evidence on record, it is only PW4 whodaims to have seen what happened on the evenihg < , • ,: .,;_ .i • '1' of 29/01/2011 when the ·deceased is alleged to have been stabbed Hy the· accused using a· "sharp objecf',which caused severe bleeding leading to his death. i--tbwever,. PW4 ·when being cross-examined by Mr. Outa, learned Counsel for the defence as to whether he (PW4) saw the deceased being stabbed and the person who had stabbed the deceased, . . .. PW4 simply responded that, he neither saw the deceased being stabbed . . . or even the person.who had stabbed the deceased. In the course of his testimony, PW4 gave some quite contradictory account of the time he alleges that the events causing the death of the deceased took place. During the trial, PW4 was contradicted by Mr. Outa, learned Counsel for the defenceon his statement to the police and his testimony in court. In the statement PW4 gave to the Police on 30/01/2011,. PW4is recorded to have stated that the event happenedon 29/01/2011 at 23.00 hrs. However,in his testimony in chi~f while being led by Mr. 7 . Kidando,learned Senior State Attorney for the Republic, PW4 · stated · that the · event happened on 29/0'1/2011at 8.00 pm.On being contradicted on this apparent .discrepancy between the time of the occurrence of the evelit as indicated in his statement to the Police and his testimony during the trial,· PW4 stood steadfastly by bothstatements as being the correct account of the time the event · of stabbing happened. It was also the further testimony of PW4 that on the eventful day he left home for the wedding ceremony having taken his dinner and that, upon arriving at the place where the wedding ceremony was taking place around 7 .30 pm., he found the deceased already there dancing . . with a light skinned huge sized womanto the tunes· of the music which was being played by the DJ. :PW4 described the deceased as · being his ·"great friend:,, .. . PW1, E.8153 D/SgtS~galialso described ·the. time during which the _alleged event is said to have .occurred on the fatef~I evening of the Saturday of 29/0-1/21011._ On being cross-examined by Mr. Outa, PW1stated that. he (PW!) arrived at. . the. place where ~ ~ . there . was . a wedding ceremony and that music was being played and it was at 23:45 Hrs. PW1 stated further that he arrived at the pace in a car in the company of another Police Officer,D/Charles Naftali, and a suspect of a case in which a father was being accused of child abduction which PWl had bee_n assigned to investigate.However, in his statement to the Police dated 29/01/2011, PW! stated that he arrived at the area at 22.40 hrs. At the trialPW1 testified in chief t~at upon passing by MECCO area on his way back to the Police Station between Nunduand 8 NyakatoSokoni, ·that is when he came -across a crowd· of people, who were in a wedding ceremony,•·at·.North of MECCO 'at acplace: called· · . Kangae. PW1 stated further· t~at at.· the place wh,ere.·, the,_ wedding ceremony was taking place there .was· a :boy with_ a Red ·.T-shirt full·of blood whose name he· was told. that it: was Benja~inand who was:still; breathing slowly.PW! stated further that he.. discovered that the boy who had been injured had been stabbed with a knife on his left rib side. because the wound 't'a.s. stiH bleeding • . . PW1 stated further thatBenjamini was, lying on the "foundation" -where there was stream of blood flowing~ PW1stated .further that :in their search for reports about the incidence they managed to arrest one boy called MaroMachota and upon questioning him. he·.told them that the "guy" who had killed the deceased was. Yusuphpopularly known 9s Babuu.PW1 stated· further that they picked the victim from· the area; _and took him to the Police. S~tion, where they opened a file, and issued the victim with a PF3 and D /C Charles took the victim to SekouToure Hospitalfor further management. PWi told this Court that the boy they . . ~· had arrested directed them to. where Yusuphwas and that they went .. . - there and met with his mother ·and. his sister and demanded from them to know where -Yusuphhad spent the night, but upon sear~hing his room they could not find him there. Another prosecution witn.ess, PW2, E.5197.D/Sgt.Jumastated that, . on 31.01.2011he ·was assigned the task of. investigating -the murder case of Benjamin.PW2 stated that hewent:to the crirne scene· and ;got a secret report that, it was Yusuph, a Form TwoStudent at •Binza Secondary School who . had killed Benjamin.PW2stated .,,, ... fu~her ", that, . the Police laid a trap to nabYusuph, and guided by their "secret 9 agents" they made a follow .up on the whereabouts of Yusuph and t· arrested his parents. so that they could show them where Yusuphhad . gone. PW2stated fu1ther. that ·his (Yusuph) parents led the police to . the· house of one a. Mr. Deus at mid. night, whereupon his father knocking at the door, th~y er:,tered inside and arrested Yusuph. . Clearly on the evidence .on record, none of the prosecution witnesses, namely; PW4, PW1 or PW2 in their respective testimonies during the trial stated that they actually saw the accused stabbing the deceased with a knife. Both PW1 anq. PW2 seem to haverelied on hearsay from · what they fondly referred to as "secret agents' as to the fact of the accused being responsible for,?tabbing the deceased with a knife on the material day of 29/01/2011. Curiously, if indeed as PW4 stated that there were many people. at the wedding ceremony, it is baffling that the accused havi_ng J:ommitted such a heinous crime would simply manage to melt away from the.. crime scene and disappear to some unknown . ·place. It does not require ~ lot of imagination to knowthat,for some yet · unknown reasons PW4. decided to comeup. with· a fiction and not concrete facts as to what he actually claims to have seen taking place at area where there was a wedding ceremony on the eventful day of 29/01/2011. PW4 having went to that area at 7.30pm. and having found the deceased already there, it is more improbable than probable that the deceased was stabbed at 8.00 p.m.,and the Police Officer, as per PWltestimony arriving .at the . crime scene at. 23.45 hrs., to find the deceased lying on a "foundation" with stream of blood flowing but still breathing albeit with some difficulty. Given the seriousness of the wound the deceased sustained as evident in the Post Mortem Examination Report (Exhibit P3), the account of the prosecution witnesses who - claim to have -been at th~ crime scene at the tirne ·the alleged· event is said to have happened· or immediately thereafter has failed to establish to the required standard the ·participatioli:ofthe.accused- in the alleged stabbing to death of the dece,fsed. The testimony of the only eye witness of the event; PW4,in ·my considered view has raised some , ·. · - ~ _serious contradictionsas to t~e.tin,e th.~ 911eged stabbing event occurred such that it has left th!s Co1,Jrt with.only one coridusion, that, PW4 was not a witness of truth ofyvhat he? alleges to have seen taking_ place at the crime scene on the eventful evening .or nightof29/01/2011. ; The other piece of evide·nce which in my opinion·vvas so critical-in-this -case was the description of the state of the place wh~re it -is alleged the murder event happened,. particularly with regard to the intensity of light. In. so far as the question of the intensity -of light is concerned, even - assuming for- a moment that, the event took place at 8.00 pm :or · 22.40hrs.or23.45 hrs. still/ itwould be reckoned as being during night - time thus bringing .. into questioh whether-there was· sufficient light to enable PW4 to see aH- that he claims to have seen taking place at the crime scene during that time of the day. In· his testimony in chief, PW4· told this Court that at the· place where the· wedding ceremony vvas taking place there were H,vo large electric bulbs with very bright light which made hirn ·able to see clearly everything that was taking place there. However, while describing what happened when the Police Officer~ arrived at the crime scene, PW4 told this Court that; the police !;lad used a torch to beam at _the deceased .who was lying on a bench like chair made of sand.· When cross-examined by Mr.· Outa -if -he (PW4) remembers if power went out _at the time and whether there was a generator which was being used to generate-power, P~4'did not '11 . seem to remember any of these facts. As·I stated earlier, be it 8.00 ·- ·· hrs. or22.40 or 23.45 hrs., it was at night. If indeed there was bright ·- light from two electric. bulbs as PW4 wishes thus CoLirt to believe, why would the Police use ·a torch to beam at where the deceased was found lying down. Chances are·that itwas dark thus making it difficult for PW4 to be able to see and recognize the person who had· stabbed 'the .·deceased, It is no ·wonder-therefore PW4 could not be able to see the deceased being stabbed and the person who had stabbed the deceased. It is for these reasons that the evidence in this case seems to revolve mainly around circumstantial evidence. · As it was succinctly propounded bythe Court of Appeal in its decision in the case of MalongoMahaja and 2 ·Others v. R.; Criminal Appeal . . No. 236 .of ,201.s(CAT)(Tabora} where the only evide~ce is of circumstantial · nature linking - the actused with the death of the deceased, it. must irresistibly lead to the inference that the accused and ... nobody ·el,se killed b,e 'deceased.- I the nature of things most.of the evidence in this case point .at the suspicious ~behavior of the accused and particularly the accused running away~ if ever· he did, immediately after being. pointed at by the deceased, if tie ever did, as PW4 has narrated during the trial. This Court cannot rely on suspicion to found a conviction on the basis of circumstantial evidence as it was. determined by the Court of Appeal of Tanzania at Mtwara in its decision in the case of Mohamed Selemani vs.· R. Crimina/Appeal No. 105 of 2012. At page 6-7 of that decision, the Court of Appeal cited with approval the decision of the Supreme Court of India in Balwinder Singh v. State of .·Punjab, 1996 AIR 607 that: 12 ''In a case based on circumstantial evidence the court has to be on its guard to avoid the danger·Ofallowing suspicion to take the place of legal proof and has to .pe, watchful to ··avoid the.' dangerc: of bei,:,g swayed by en1otional considerations, hpwever strong theymay be, to . take the place: of proof (See, also SARKAR ONEVIDENCE, Jgh_ Ed, ... .. p.65). : • ·. I • . ' I The Court of Appeal of Tanzania in Mohamed Selemani case (above)· also citedthe decision in R. V. KipkeringArapKoske and KimureArapMatatu[1949] 16 E.A.L.R. 135, where the Eastern Africa Court of Appeal held as follows; "That ·in order to justify, on circumstantial evidence, the inference of guilt, the lnculpatory'facts·must be incompatible with the innocence of the accused · and incapable of ~~:.·• explanation upon any other reasonable hypothesis than of his r · guilt, and the burden of proving facts ·which justify·. the drawing of this inference from the facts to ·the exclusion of any reasonable hypothesis of innocence is always on the Ji ~ ......~, . ..,.·_..,. ~ prosecution and '?ever _shifts to_ ~he_ accused" (See, also ·•--- II Attorney General v. Murakaru [1960] E.A. 484 at 488- 489; Ilanda s/o Kisongo v. R [1960] EA 780; · ShabanMpunzu@) Elisha Mpunzu v.· R, Criminal Appeal No. 12of 2002 {CAT} unreported)." On the trite principles to guide a court of law when dealing with · circumstantial evidence, the decision of-the Court of Appeal of Tanzania in the case of GodlizenDaud@ Mweta and Solomon Joel @ Soloo v. Republic, Criminal Appeal No. 259 of 2014 {unreported},· (CAT) (Arusha) comes into consideration. At page 11 of its Judgment 13 --·---- the Court of Appea1·restated the pflnci'ples for grounding a·con-viction on • circumstantial evidence~ ~as follows; · (i) The-evidence muit be incapable of more than one interpretation; (ii) The fact from . which an_ inference of guilt or_ adverse to the accused. is sought _to b~- drawn, must. be. proved beyond . rea_sonable doubt' and must clearly be connected with the facts: ' .. ·. • • • '. .l • • from which inference is to be drawn or inferred; (iii) In murder cases, evidence should be cogent and compelling as to .co{Jvince a jury, judge or court that· upon no rational hypothesis othe~ _than murder can the facts be accounted for. ,, -.,,. On the,_ evide."nce on record, :_the prosecution has not peen able to establish_ clearly the variouscir~umstances in the chain of events such as to rule outreasonable . . . likelihood . of the. innocence . . . . of the accused. . . . . . . . ·. . - When cross~exam1ned by Mr. o..-ta a~ to whether he was seated o~ standing at the' weddihg"cereinony given tbat he had: not been invited; PW4 ·stated ·that· he· was standing· just about three paces in front of .the place where the deceased and the light skinned huge sized woman ·.· · were dancin·g from and that; the accused was standing behind .that · woman. PW4 stated in examination in chief that while so standing, abruptly the accused patted him on his shoulder from behind and that is - when PW4 saw the deceased pointing his finger at the accused while holding his hand to his chest bleeding profusely and immediately -he coUapsed in front of PW4. PW4 stated further that he saw the accused . - running away immediately after- he had been pointed at by the deceased. However, when PW4 was contradicted by Mr. Outa on what . . PW4, had stated in his statement to the Police,. which he read loud_ly in 14 '· Court, .it came out that there was, a time :when PW4 had_ told the deceased that he (PW4) was feeling tired and that he: yvas .going·. upstairs to get some rest. . . Clearly if what PW4 explained ,..as regards ·. where ·.he ·was positjoned ' . .. at ·· the 'place where the wedding ce~emony was taking place, and what he says he saw taking place there; then it is hard to believe if in~eed what · PW4 stated is what actually took ,place. I my considered view, it could . . . . -·. . not have been humanly possible .for the deceased who was dancing. while the accused standing behind the woman the deceas~d was dancing with, for the accused to stab the deceased on his chest and for , the accused to pat_ PW4on his back while PW4 heading upstairs,and then all of a sudden the deceased to fall infront of PW4, while at the same time the deceased pointing his finger (kusonda) at the· accused· . wh.o was standing behind th.e light skinned huge sized womanPW4 allegeswas dancing wi_th the deceased; Besides, it was the testimony of PW4 that. the accused was charting with his three friends when the dancing was going on, thus making it a guesswork as to whom of the friends of the accused the deceased was pointing his finger at, if ever he did. Clearly the allegation that~ the. accused stabbed .the deceased and that the accused pointed a . . finger at the accused as the person responsible for the stabbing borders on mere speculation and no borne out of the evidence on record. Furthermore, PW4 stated that ·it is the people who were at the ' . wedding who had helped with picking··up the deceased who by then had been seriously injured and bleeding profuseiy and put him on· a bench- ' . like chair made of sand,where the Police found him lying down when they arrived at the crime scene; ·n is curious indeed as I pointed· out 15 --- ---- -----------~-------------- earlier in this Judgment that,the many people who were at the wedding ceremony completely failed to give the suspect a chase and arrest him, · who as it would seem ran away from the crime scene with the murder weapon (the knife),otherwise it would not have been possible as the . . . ·• . . . Police alleges, for the accused later on to lead the police to the- place where he is 'said to have hidden that knife, if he ever did. Let me nowturnto consider the evidence as to th~ unearthing of the murder weapon, the knife (Exhibit P2), which -was admitted in evidence without any protest from the defence during the Prelimir,ary Hearing. It was the testimony of PW2, E.5197 D/Sgt.Jumathat, on 31.01.2011 he was assignedbyinspector Mbogo the murder case of Benjamin Simon--@ Taifa who -had been: stabbed - by a_ knife and - rushed to_ SekouToure Hospital, where he-later died while receiving treatment.PW2 stated further that it was -Yusuph's parents who led the police to the house of one Mr. Deus at mid night (although he did not state the date), and that upon Yusuph's father knocking at the door, the Police entered inside and - arrested -Yusuph.When -cross- · . .. . examined by Mr. Kidando, the ·accused while testifying .for the defence as DW1 stated that, the Police Officers who came to arrest him at his Aunt's housewere with his father who had shown the police to the place. PW2 told this Court that the accused was taken to the -Nyakato Police Station where a File RB 653 was opened and that it is -Yusuphwhosent to PW2the knife which it_ is alleged that he used to stab the deceased with. PW2 stated further that on 31.11.2011 at 10:00hrs. he removed the accused from police lock up and started to record his 16 Cautioned Statement.PW2 ·stated further that the ·accused retrieved the knife from the house of a Pastor at MECco·where the accused had hidden it. That they picked the knife in front of the Pastor at 01:00 am and handed it to the CRO In charge and in turn it was handed over:to the Exhibit keeper where PW2 picked. it up and brought it to Court and tendered it in evidence. When he was cross-examined by·Mr. Outa learned Counsel for th~ defence; PW2 stated that while seated at the sitting room of Yusuph'sUncle one Deo Mathiasand Yusuph's father present as well as some other five police officers, PW2questioned the accused about the knife and that it is the accused who led the Police to the place where he had hidden it.PW2also stated that he knew -that there was a weapon involved and wanted to get it as Exhibit. Wh~n asked a question by Court Assessor Constantinelukoma, PW2 . ' stated that there were six of them present when they were looking for the knife and that,it was Yusuphwho had picked it from 9utside the house in a waste water pipe where he had hidden· it.PW3,Inspector . . .. .· . . ' .. (, Mbogowhen testifying in chief stated that the Police managed to get ...• the knife that was used in committing the crime and that, yvhen he · asked·the accused from where he got it, the accused told. him that he had picked it from a chips dealer (seller!)who had recognized the accused and added that the accused had stolen the knife from the chips seller who was going to be a witness in this case.However, when PW3 was cross-examined by Mr. Outa, he could not remember the name of the chips seller. When asked a question by Court AssessorAsma Said, PW3 stated that by the time the accused was brought to him, the knife was already with the Police.When cross-examined by Mr. Kidando, DW1 denied ever showing the Police where he had hidden the knife with which he is accused of using to' stab the deceased. On the evidence 'bf PVV2. and PW3ther~ is· clea~ly notable .contradiction as to whether it is the accused himself who had handed over the knife to the Police or ,whether it is· the accused. who led the · police to the place Where· he had hidden the knife iind that it was· retrieved from a waste· water pipe. ·If indeed the knife was retrieved from outside a house an·d a Pastor· witnessed its retrieval why didn't the •, .... Prosecution bring to Court this alleged . Pastor, if ever..:};:1e.:existed, ..~. . . _,.. ~ . to give independent evidence to corroborate what PW2 and PW3had stated with rE:?gard to the retrieval of the knife. The failure by the prosecution . . . . .. . . . to bring such a crucial witness has not been explained and this Court is entitl~d to draw an adverse inference over such failure. Furthermore, the'knife,which in my considered opinion was such a · vital piece of evidence in this case, its retrieval and custody should have . adhered to the· strict requirementsof the law as to the preparation arid production of a Certificate ofSeizure,which was to have been signed by the accused, the alleged Pastor .as witness, and the Investigating Police Officer. The legal consequence of failure by an investigator of a criminal case to issue a receipt or certificate of seizure of items or things seized during a search was succinctly explained by the Court of Appeal of Tanzania in · the case of Abdalla . Musa and Juma Rashid Va TheRepublic, Criminal Appeal No. 221 of 2011 {unreported}, where the Court sitting at Mwanza stated at page 7 of its Judgment thus; 18 11 The evidence that the boar engine was_ found in possession of the Z1d appellant is also.doubtful because ··no receipt of 1 '• seizure was issued to show that it 'was found in the house of the Z1d appellant ·. There was not even an independent I:Vitness who was called to _witness 'the recovery of the. boat · engine from the house of the second appellant Section 38(3) of CAP.20 requires the ·officer making the seizure to issue a receipt for.the property seized·and person(s) from, the house from where the property is seized to sign on the receipt Short of that receip~ the evidence of the recovery of the boat engine . of the Z1d from. the house of the house ---- . appellant becomes suspicious. " · Insisting on ·the mandatory · requirement under 38(3) of the Criminal Procedure Acti Cap.20. R.E. 2002 for investigators to . issue a receipt .for anything seized as a result of a search, the Court of Appeal of Tanzania in its decision in the case of Abuhi Omari Abdallah and 3 Others vs. The Republic (unreported). ·sitting at Dar e·s Salaam stated at page 19 of its Judgment thus; · 11 However, when arresting the appellants and seizing the money, the police had failed to comply with the mandatory provisions of section 38(3} of the CPA, by which investigators are req(!ired to issue areceipt for anything seized as a result of a search. " Furthermore, as it would seem, in this case the chain of custody with regard to the handling of the knife from the time of its· alleged ' retrieval from a waste water pipe near the house of the Pastor to 19 . . . . handing it over to theCRO In·· Chargearid · ·in turn·· to the Exhibit keeper where ·pw2 picked- it up and brought it to Co~rt and finally its tendering- in evidence should _have adhered stri~tly to the standards set . out _in case· law. Absence_ of such ·custody clearly the chain· has been broken· such .that it has watered down·· the evidential weight to beattached to the knife as a piece of evidence to establish the existence of the murder weapon. · _ The legal requirement for Police Investigators ·to dotumenteach step involved •in a search to the stage ·of exhibiting items cir things seized in that search as a way of completing the "chain of custody'~ was . - succinctly restated by the Court of Appeal of Tanzania in its decision in . . . . . . the case of MakoyeSamwel@ Kashiilje and·4 ·others· v. The Republic; Criminal Appeal No. 32 of 2014 {unreported}, where . the Court sitting at Tabora stated that~ ~ .... . . . . .",Thus, the _"chain. of_ ~ustoqr',. .require$ that from the moment a piece of evidence· is seized or collected, its every handling, custody or transfer must be documented up to the time qf its production in Court as an exhibit... Unfprtunately, in the situation at hand, this salutary principle pertaining to criminal Jnvestigations was not heeded to. " . In the. instant case, clearly the -Police Investigators have totally . . ·. · failed to comply with the mandatory requirements under 38(3) of the . ·. c:rimi~al Procedure Act, Cap.20 R.E. 2002 by not issuing a receipt . . . 01\.~ertificate of seizure for the knife which they claim was seized during - ~: . ·, .. · . the_ search at the compound of the house of the alleged Pastor and not at the· house of the accu~~d. Consequently, the chain of custody from the moment the knife was unea_rthed fro_m .the waste water. pipe, its ·.' 20 · handling, custody or transfer up to the time of its production in• Court has been broken. PWl who· as J: am made to understand was the one who was overseeing the search at the ·house of the alleged Pastor and collection of the knife completely failed to follow the legal procedures as expounded by the Court·of AppeaLof Tanzania in M.akoyeSamwel@ .· Kashinje and 4 Others vs. The Republic, Criminal·Appeal No. 32 of 2014{unreported). Furthermore, there is the mysterious disappearance of the alleged "chips seller" from whom it is alleged by PW3that the accused stole the knife. This "chips seller" was not called by the prosecution to give independent evidence to·. corrobdratethe evidence of PW3that, the accused stole the knife from a ''chips seller;" Let me now revisit the testimony of PW2, E.5197 D/Sgt.Jurn'a ,.....- .... _.... - with respect to the alleged two feuding groups of youths. In his ~ .•• , •• ·1 testimony PW2 stated that, while seated at the. sitting room of Deo Mathiaswhere th~y had been directed by Yusuph's parents, t~e accused told PW2 that on 28.01.2011while going to. attend Tuition, he . ~ _m~t agroup _of rogu~ qoys who t;>eat him up using a piece of wood with nails, seriously wounding him.When cross-examined by Mr. Outa learned Counsel for the Defence, PW2 stated that, Yusuphhad lodged a complaint withthe Police Station as per RB of 28.01.2011. PW2 stated further that it is after he had checked the RB that he came to learn of the existenceof thetwo groups of youths who , were fighting .· . and chasing each other. PW2 stated further that he did• not know ,, . if ·, the deceased was dancing with a woman and' . there is no witness . ' . . who stated that they·. were fighting over a girl and that he never questioned Edson.In his testimony PW3also talked of a fighting 21 .between "two grodps bf boys esse·ntially ·over bhang and girls, -although fighting over girls was· not the cause of the crime. PW3 stated also that, the· accused had planned -for a revenge, that there were about two police cases, one in which the accused was the complainant. In his testimony as · DWl,YusuphHamadiMagesa @ Babuustated that,on 28.01.2011at 02:00 ·~.m., which was a Friday he was attacked by a group of youths among whom there was PETER JOACHIM and ZUBER! whiJe at NUNDU Primary Schoolwhere he .had gone for evening classes· (tuition) who used ~ piece of wood with nails seriously injuring him. DW1 stated further that he reported the matter at the NyakatoPolice Station where he was given a PF3 given his condition so as to: get treatment and was told to go back to the Station on Saturday-at02:00p.m., which he-did.However, he was told that because the- Investigator~ one Abdallah wbo was handling his case wasnot present he· was told to come .back at 10:00p.m., at night and _when he went there, a. Police Officer came and .introduced himself to· him by the name of ABDALLAH. DW1 stated further that his was no dealt with but on Sunday he was arrested and locked"'upand found himself facing a murder charge.DW1 stated further that having on that· Sunday washed his new school uniform, his sibling by the name of D_OTTO HAMAD came and told him that he had passed by the shopping Centre and there were some Police Officers who had come there enquiring about a person by the name of BABUU who is being accused of stabbing a person at a wedding ceremony(mkeshawaharus1)_ _wit:h a·sharpobje9=.DW1 stated that he spent the whole of that Sunday at home and having taken dinner at around -04:.~0p.m., his sibling came back again and told him that the Police had come back again 22 asking for -BABUU .. -DW1 stated that he decided to go to .. his Aunt's - home at Mkuyuniwhere he was arrested by the police ... -· . , On the evidence of both the prosecution·. Witnesses, . PW2 and PW3 and even of the defenceDW1, it is withoutdispute that there were groups of feuding youths. There is no evidence on record that the deceased and the ·accused· were also members of rival groups and whether the deceased was among the group of rogue youths who had attacked the accused on the Friday of 28.01.2011at Nundu. Primary Schoolso as to provide the basis for the motive of the accused entertaining the idea of hatching a revenge against his attackers. I have gone through the Cautioned Statementof the accused, (Exhibit P3). ·I have noted some similarity in the narration of events as a prelude to the eventful day of 29.01.2011 between what the Polite Officers who testified_ during the trial stated with respect to the feuding youths and what the accused has stated and also about the accused ·going to reportto the NyakatoPolice Stationon . 28.D1.2011after having been attacked by a group of the rogue youths who invaded compounds of. the -Nundu _Primary Sc_hool where the accused had gone for tuition. Let me now make some comments on the opinion of the two Court Assessors who in their respective opinions found that on the evidence on record the prosecution had established its case against the accused. One ~--. of the Court Assessors, Asma Said, · on her part she found the behavior of the accused after the event highly wanting. She wondered as to why did the accused, having reported to the police about being attacked by agroup of rogue youths, on a Sunday while washing his . . _, . . . clothes upon being informed by his sibling about the Police looking for 23 hi~, he decided to run away to hide at his. Aunt's· place. This shows that • the accused is guilty,.. · , . . · The other- Court Assessor, Martha Makuru correctly. noted that in this case in tt")e. absence of direct evidence, the evidence was largely . circumstan_tial. However, on her part she stated that, two rnatters have · made herffnd-_the:·a:ccused: guilty:· In· the first plate, the fact of the accused· voluntarily -leading the police to where he had hidden the knife and the police having found it· there. Secondly~ the fact of the accused pleading with this Court to· be sympathetic on him, showing that he is feeling guilty. Thirdly, the. fact of the deceased patting PW4on his back .and pointing his finger at the .person who had stabbed the deceased and the accused running away-from the crime scene and finally the accused himself confessing that there were groups of youths who had conflict. On the part of the remaining Court. Assessor,· Constantine Lukoma, he opined that for him the conflicting evidence of the prosecution witnesses as to the time in which the even happened as being 8.00 pm and another. saying it was 23:45 hrs.,. has made it difficult to tell when the event occurred. Fu_rthermore, · ~f the four prosecution witnesses none confirmed that they sawYusuph stabbing the deceased with a knife, although PW4 claims that he was very close to the deceased on the eventful day, thus creating some doubts on the prosecution case. On the evidence on record and from the analysis I have made of \· .··: .. ,. . __ .such evidence, I am constrained to agree with _the two Court Assessors ·-:<·:}1~r~:/~~:~'-:t°:-whq/,. after their. respective opinions, returned. a. verdict of ·"Guilty". •: ·:·.-: ·: ·:~.- :>•:; :.. ~ . _:·_~;: :·-:·..: ·•. . .~ .( . . . . .. ·. . · · ·-~ · · · ··· against the accused .. I am in agreement with the Court Assessor who after his opinion. returned a verdict of"Not Guilty"for the reasons I have 24 endeavoured to_ explain irJ this Judgment~ which a!so .constitute the reasons for me differing-with the two Court Assessors. I wish to state her~ that i'1 .the presel')t case, in the absence of direct evidence, the bulk of the. evidence has been purely circumstantial._ Much as the suspicious behavior of the accused after the event could be called to question, and particularly the act of the accused going to his · Aunt's house on the evening. of Sunday (30/01/2011) following. the events of Saturday (29/01/2911) and particularly hav_ing been informed by his sibling about the Police looking for him; or the accused denying being at . the wedding - ceremony on the evening of 29/01/2011 or knowing PW4; all of these circumstances are. mere suspicion on which this Court cannot rely to found a conviction in a such a serious offence such as the one under consideration. The prosecution ., ,. was required to bring concrete evidence to establish the various strings •• :<;:..J in the chain· of circumstances such thcit when pieced_ together_ would form a complete whole to sho_w that it is the accused before this Court and nobody else who is responsible for the death of the deceased. It is for the above reasons that I have differed with the opinions~of the two Court Assessors and find that the prosecution has failed to establish the guilty of the accused beyond any reasonable doubts, which doubts are to be resolved in favour of the accused. In the whole and for the above reasons, the prosecution hasfailed to prove its case against the accused beyond any reasonable doubt. The case of the prosecution against the accused fails.It is accordingly hereby dismissed in its entirety. 25 ~: :i ,1 J, • ,",. The --ac-c-us~d,---Y-u-suphHama_d_i_M~~~~-a--~-- Babuu~-s -herebJ ~- discharged from the offence of Murder c/s 196 and 197 of the Penal · Code Cap.16 of the .Laws and is• hereby acquitted. The accused person YusuphHamadiMagesa @ Babuushall · immediate·ly be released from the remand ·prison .custody where he ·is being held and· set at liberty forthwith unle~s t,,e is being held there for -· some other lawful matters. It is so ordered. ............................ -· _ R.V. MAKARAMBA. JUDGE 28/03/2018 "" . . .• 26 -