20180724 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTY OF ARUSHA) AT BABATI CRIMINAL SESSIONS NO: 79 OF 2016 (Originating from Resident Magistrates Court of Babati at Manyara Pl No.29/2015) THE REPUBLIC VERSUS. ·CASSIAN S/0 GERALD .RAYMOND RULING ·Date of Last order: 23/07/2018 Date of Ruling: 24/07/2018: 21/06/2018 BEFORE: S.C. Moshi, Judge. The ruling is made in terms of section 293 (1) of the Criminal Procedure.Act, Cap. 20 R.E. 2002. The court has to decide if the accused has a case to answer -or not. Ttie accused is charged with murder C/S 196 of the Penal Code Cap. 16 R.E. 2002. The particulars of the offence are that, CASSIAN S/0 GERALD RAYMOND on the 9th day of November, 2014 at Miombo estate, Kimara Village, within Babati district in Manyara region, did murder one 1 JOHN S/0 AKONAAY MARGWE @ JOHN SARWAT .. pleaded not guilty to the charge. During the hearing of the case . the prosecution wat ·. Miss Luciana Shaban, State AttornFy and she was assishnted b Mugeta State Attorney and Mr. Petr~ Ngasa, State Attorney. 'lee Y side, Mr. Jeremia Mjema, learned codnsel represented the accut. 'k 'r For prosecution the evidence was as follows:- PWL SAi\ AMII, stated among other things that he works at Miyombo Estate. mechanic cum driver. On 8/11/2014 during the evening while at the~. he heard the deceased and the accused arguing. The deceased said\,,_ did you touch my wife? Cassian said that the deceased had insulted h i m ' , ~ _ and had slapped him. The accused said, "He does not know me. I can do anything. He doesn't know where I am coming from. I have killed many people. This one is nothing." On 9/11/2014 in the evening, while at home he heard that John was shot by Cassian. PW2: EMMANUEL MARTIN SARWAT is a relative (Niece) of the deceased. On 9/11/2014 at around 8.00 p.m. he received a phone call; he was informed that John Sarwat was dead. On 12/11/2014 he identified the body of the deceased at the mortuary, at Dareda Mission Hospital. The body had a bullet wound on the left side below the nipples. Also there was a wound at the back, 2 on the left side: The doctor told hiim that the cause of death was severe · bleeding due to the bullet wound. PW3: E. 6749 D/CPL DONALD, is an investigator of this case. On I ; 10/11/2014 at 6.00 a.m. he was on duty; at the office. While there, he was · directed by the OC -CID to interrogate the accused who was by then at the police station remand. The accuseq denied to have shot or killed the deceased. He visited the crime scene, he drew a sketch map (Exh.Pl) and he collected other exhibits such as the weapons. The accused person had two catridges; he handed them to inspector , Magembe. He collected three short guns. He also took 32 catridges and 14 live I ammunitions. They took the two guns and the two cartiges from the accused. They took the gun that was used by tile accused person and the other one which was taken from the guard's office. They took the exhibits to the police and later to the ballistic expert for examination. They took two guns only because they smelled gun powder; which is evidence that they had been used just recently. The ballistic report showed that the gun that was used was the gun that was found in the guard's room (office); S/N No.05071280 shortgun. The investigation revealed that when the deceased was shot, there ! were two guards on duty the accused and Paulo Ngassa; and one local 3 guard who had traditional weapon who was guarding a cattle kraal. Ngasa also had a short gun. Ngasa's gun was not brought to the expert. Ngasa did not fire his gun. The accused said that he fired in order to scare the intruders. Ngasa was in possession of a short gun with Serial No.658131; this gun was not taken to a Ballistic expert. The accused was in possession of short gun with S.No.L.2792482 the gun was taken to Ballistic expert. PW4: ABDUL LATIF SULEIMAN, is the director and manager of Miyombo estate. He said that the accused person was one of the guards in the farm. On 9/11/2014 at 8.00pm he was at Longido driving to Nairobi to attend funerals. While on the way he called his manager (the deceased). He didn't get him. Later on the deceased called him and told him that he couldn't receive the call because he was in the bathroom. He then called him and told him that he was already outside the bath. While talking, he heard like something was falling. He called the deceased but he did not pick up the phone. He called three times. Later on the deceased's wife, Tabu called him and told him that John was shot, he was serious, and that he was not talking. He directed them to take him to Hospital. He turned back to the farm. He got at the farm some few minutes before 12.00 hrs. He saw the investigators; Shaban QC-CID and his assistant Donald. They showed him the weapon that was under the control of the guards. There were two guards Cassian (accused) and Ngassa. The guards 4 were using two guns that belong to the security company and one that belongs to Miyombo estate. The guns were kept in guard's room. The gun that belongs to Miyombo farm is the short gun with S/N L 2782482. There were three guns but they had showed only two guns. He asked about the 3rd gun. Cassian entered into guard's room and brought the third gun. The gun was dismantled it was wrapped with a piece of cloth. Shabani opened it and it smelled gun powder; he detected that the gun had been fired recently. PWS: Inspector George Magembe, stated among other things that, in November, 2014 he was the Kiru police station OCS. On 9/11/2014 at 9.15 pm he was informed that armed robbery was committed at Miyombo farm. He called the CID Musa Tahibu; and the QC-CID Shebbe Migire. The OC - CID ordered him to go to the crime scene. He went to Miyombo estate with DC Prosper and DC Goodluck. At the crime scene they saw some workers and guards. The guards were Cassian Gerald and Paulo Ngassa. They did not see the deceased; he was already taken to Dareda Hospital. They interrogated the guards. Cassian Gerald confessed that he shot one bullet in the air. He said that he was scaring the armed bandits. He put the guards under arrest. They inspected and searched the guards. Cassian Gerald had a cartridge and his gun smelled gun powder. When the owner of the property Latif Suleiman came, him they saw another short gun that was in guard's office. Its S/N is 05020280. 5 The short gun was dismantled. It was put in the box and kept under the bed. The gun smelled gun powder. They seized the g·uns as exhibits; they seized three guns. He handed the guns to CPL Donald. He also handed him the cartridge. (Two short guns were admitted in court as exhibit P.2; a gun with S.N L 2792482 and the second one which with S.N 05020280). He again went to crime scene on 10th with prosper for further inspection. They collected more than 30 cartridges. The cartridges were of 12 calibers. He handed the cartridges to Donald. They sent 4 cartriges to a ballistic expert. He was told by Cassian Gerald (accused) and Paul Ngassa that the gun that was found in the room was being used by their colleague who left · the estate three days before the offence was committed. PW6: ASP JOHN MAYUNGA SANGIJA, he works with police, at Head Quarters in Dar es Salaam at Forestic Bureau, Balistic Section. He is the head of the section. He started to work with the ballistic section in 2000. On 8/1/2015 he was in Dar es Salaam in the Ballistic Laboratory. While there he received some exhibits from the RCO's office at Babati. The exhibits were brought by CPL Donald. He received two short guns, 4 live ammunitions; one cartridge and one Wad. He marked the exhibits thus: One short gun was marked "A"; it is S/N No.05071280. The second one was marked "B" S/No L 2792182. They were both of 12 calibers. The 4 live -ammunitions for short guns 12 caliber were marked as C.1 -C.4. 6 The 4 ammunitions; were r11arked as TC i.e. they had been used in !i Testing, so they are marked as TCi.1-TC.4. ,, Two of the cartridges were used to test exhibit A; they are TC.1 an~ TC.2. The other two were used to test •I exhibit P.B; i.e TC.3 and TC.4. ' ·, He also received one shell {cartridge); He marked it as exhibit D. j, Lastly he received the Wad; he ma~ked it as exhibit. E. ·' He was requested to examin~ the exhibits through the letter exhibit. I They requested him to find out yvhich gun between "A" and "B" fired i exhibit D. I He did a ballistic test. He started with exhibit 'A'. He test fired the 'I i• two live ammunitions. The two ammunitions taken from exhibit C.1 - C.4 'I II fired. He remained with two cartridges TC.1 and TC.2. He then tested TC.1 'i I' and TC.2 with the Bullet Comparison Microscope. The Pin impression and i' breech face were similar; with FC.1 L T.C.2. He then tested TC.1; He com~ared it with exhibit.D.1, the cartridge that was taken from the scene. ~e compared the pin impression and breech face characteristics. TC.1 wa.s similar with TC.2 and was similar to exhibit D (the cartridge that was taken from the scene). i I He concluded that exhibit D. ~as fired from the short gun with 5/N I 1 050701280 (exhibit 'A'). He then continued to test exhjbit 'B'; short gun s/N L. 2792482. It testified two live ammunition with e~hibit 'B'. He labeled the cartridges as TC.3 - TCA. He then made a compar'json with the Microscope. He detected 7 I 'I " that the pin impression and breech face characteristic are similar; i.e. TC.3 - TC.4; he then compared TC.3 with exhibit. 'D'. The pin impression breach face characteristics of TC. 3 were not similar with pin impression and I breach face characteristic of Exhibit "D". The result is that T.C.3 is similar ' to TC.4 but different from 'D'. i! Therefore exhibit "D" (the shell taken from the crime scene) was not I ' fired from the short gun with 5/N L.'2792482 (Exhibit B. ). I After completing the tests, he prepared a B.allistic report and a ' photographic book; for the gun whkh fired the ammunition exhibit "A" of SN 0507280 and exhibit "D" the cartridge that was found at the scene; and ' TC.1 and TC.2 He thereafter informed the RCO's office Babati to come to collect the Report. ' I, On cross examination by Mr. Mjema he said inter alia that, the two 1 letters, which brings the exhibit and which collects the report are I, • important; however he did not com~ with the two letters. You can identify the gun that has been used; by testing the cartridges. You cannot detect I otherwise without having forensic apparatus, or devices. PW3 was recalled. He produced the Autopsy Report and it was I marked as Exhibit 5. The report shoV\ls that the cause of death was (acute I hemorrhage). i PW7: TABU RAMADHAN, said that, on 9/11/2014 at 8.45pm at 9.00 p.m. she was at Miyombo Estate at Kimara. She was in the bathroom she 11 8 was taking bath together with John Sarwat who was cohabiting with her as husband and wife. They started to live together on 1/1/2014 until the time of his death. While bathing deceased's phone rang. He received the phone while in the bathroom; he was talking while going out of the bathroom. She heard a sound and Sarwat shouted. She heard a gunshot. The deceased cried out "uwi". She went out of the bathroom, she saw the deceased had fallen on the ground. She called the guards. One of the guards came; his name is Paul. Thereafter another guard Cassian came; the guard was trembling, sweating and breathing heavily. She heard two gun shots. The second gunshot was heard after the deceased had been shot; it was heard after 1/4 an hour. During cross examination by Mjema he said that, Cassian is a guard at Miyombo Estate she is not related to Cassian. It is not true that Cassian (accused) quarreled with the deceased. When she got out of the bathroom she did not see any guard. When the 2nd shot was fired the guards had not come to the scene. That was the end of prosecution's case. The question is whether the prosecution has established a prima facie case that may require the accused to answer. Under section 293 (1) of the C.P.A the court has to decide whether the accused person has a case to answer; then the court will invite the' accused to enter his defense or if he has no case to answer the court will record a finding of not guilty. I have considered the prosecution's evidence; there is no direct evidence that connects the accused with the charge. 9 The evidence that is available tends to implicate the accused because he was a guard at the farm and he had a gun that they suspected that was fired at the time that the deceased was killed; there is also evidence that the accused and the deceased were not in good terms because the deceased suspected that the accused had an affair with his wife. The issue of bad relationship between the deceased and accused was stated by PW1; he said that he heard the two exchanging words; this evidence is in contradiction with the deceased's wife (PW7) who said that her husband had not quarreled with the accused. It is my view that, this evidence cannot be relied upon. Also according to PW1 testimony during cross examination he said that he was in the garage when the two were outside; this evidence is questionable as he did not disclose the distance from the spot that the diseased and the accused were arguing to the garage. There is evidence to show that various exhibits were collected and taken from the crime scene; two short guns, cartridges, live ammunitions and a mad. However, no certificate of seizure was prepared although PW3 said that they visited the scene twice on 9th and on 10th and some of the items were seized on 9th and others on 10th .This is clear contravention of section 38 (3) of the Criminal Procedure Act, Cap. 20 R.E. Also the chain of custody was broken from the time of seizure to the time when the exhibits were taken to the ballistic expert and returned back to the Regional Crimes Officer. The exhibits were seized from the scene by PW3 and PWS inspector George Magembe but nothing was documented. 10 The handling of exhibits and transfer of exhibits must be documented, see the case of Paulo Maduka and 4 others Vs. Republic, Cr. App. No. 110 Of 2007 where the court held among other things that: "The chain of custody requires that from the moment the evidence is collected its transfer from one person to another must be documented and that it be proved that nobody esle could have accessed it " The testimony of PW3 shows: that, the accused person had two cartridges and accused had handed the two cartridges to Insp. George Magembe the OCS of Kiru Police Station. They took the two guns and the two cartridges from the accused. There was also a third gun that was with another guard but the same was not taken for examination. The reason for not taking it was that it did not smell gun powder; while the others smelled gun powder which is indication that they were recently used. There is also evidence that the gun powder test could be testesd within half an hour. However the ballistic expert received only one used Cartridge and two guns. He concluded that the cartridge was fired from short gun with i serial No. 05071280, it is a gun that was found in the room. There is no evidence to show that the bullet was fired from the accused's gun which is a gun with 5/N L.2792482. The ballistic report shows that, exhibit "D" (the shell taken from the crime scene was ,not fired from the short gun with S/N L.2792482 (Exhibit B.). The evidence does not show what happened to the other cartridge. The accused had admitted to have fired, and his gun was suspected to 11 have been fired; and the gun that was in the guard' room was also I suspected to have been used; then it was necessary to test both cartridges. Furthermore one gun was not referred to a ballistic expert at 1 all. PW7 who is a ballistic expert stated in court that gun powder smell cannot be a conclusive test that a !QUn has been recently fired as the residues may remain in the gun up to three months. That said, I find that the prosecution has failed to establish a prima facie case. There is no evidence to show that the accused committed the offence. I thus acquit the accused person under section 293 (1) of the I Criminal Procedure Act, Cap. 20 R.E. 2002. I Right of Appeal is exjplained. i s.c.~ JUDGE i 24/07/2018 12