20180608 TZHC Mwanza2

-'-'- ,i .l i:: i . 1 t..., . ,I · IN THE HIGH COURT OF TANZANIA ATGEITA CRIMINAL SESSIONS CASE NO 247 OF 2014 REPUBLIC VERSUS 1.MAROMO KULOMWA 2.DOTTO KWENZI JUDGMENT 20.05.2.{)18 & 08.06.2018 Matupa,J. During the evening of the 18th day of March, 2013 one Faustine James, who on the day he gave his evidence was 41 years old, had retired to sleep. This person was awakened by ' screams of a person outside his house, who was screaming that he was dying. He woke _up and rushed_ to the place where the screams came from. He met one Mzee Katigwa a neighbour, who 1 --~ ·~ was laying there with injuries on his neck.His fingers were also cut. The injuries, according to the witness were cut wounds. This witness rushed to a neighbor nearby, one Kibalongwa Beinye. The witness and the neighbor came together to the place where the injured person was lying. Together, the two asked him who was responsible for the injuries he had. He replied that it was his in-laws, relatives of his wife, who had injured him. Immediately, they started to arrange for transport. They called a motor cycle, commonly known as "boda-boda". They ____re_a.JJzed_tbat the boda-boda was delaying. They thus resolved to make a hammock. As they were making the hammock, the man gave up his life; he passed on. Christina Katigwa Pw2, repeated this testimony, that the said Mzee Katigwa died in the circumstances Faustine James explained. This witness responded to an alarm (mwano), which was raised at th~ time, from the direction of Mwaloni (Lake 2 ; Beach). When she ·went to the place, she learned that the alarm was in relation to her father. The father was lying_ on the ground with the injuries, which also the said Pwl describe~ftS=filel:£.wJ that the deceased had a cut wound on· the hind side of his neck. Also, he had his fingers cut. According to the lady, she pleaded with the persons who had responded to the "mwano" to help sending the ailing father to hospital. According to this witness, she promised the people there present, that she would sell a shamba for the costs of sending the father to the hosQital. It was her testim.o_o_y_tbat_tbe _ __ father -responded that there was no need to sale the shamba, as he was dying any way. This additio_nal testimony did not come out _ of Pwl Faustine- James. It was the testimony of PW2 that the old man died soon after the last utterances. From the facts of the two witnesses, there is no doubt that the late Kasigwa is - dead. At the time of his death, the two 3 - witnesses saw him with two wounds, one on the hind side of his neck, and the other comprised of the cut fingers. PW3 Doctor Bahati Msenye Nyamachagure, conducted the post mortem examination on the body of the deceased person. This witness observed that the deceased had a wound on the skull and on the arm. The witness was mouthful, in his bid to reconcile his observation of the wounds he recorded in the postmortem report and the description the other witnesses gave. Nev~rtheless, he was emphatic that the. death of the deceased, was caused by excessive bleeding or to put it the way he recorded in the post mortem report, "severe haemorhage". Since there is no -suggestion that the. deceased died· of any other natural cause, I do not find the variation of description· of the wounds by thewitnesses was of essence. I am satisfied that the · bleeding, which was a result of the wounds, caused the death of the deceased person. · 4 The crucial issue in this case is who caused the injuries, which the deceased person sustained. There is evidence from the two witnesses, that they heard the accused person as he was dying, mentioning his in laws, relatives of his jt.Jnior wife, as the persons who inflicted on him with the wounds, with which he died. This mentioning do not appear to be a cause of any dispute. There is no dispute either, that the alarm men arrested the first accused at the scene. At the time· the persons arrested the accused person, the alarm men were still gathered. It was also not in dispute that the accused person was charged with tbe--- present offence following the arrest. There is also -evidence, coming from Pw2 Christina Katigwa, suggesting that she saw the first accused person, who she could not mention in court by his name, some few days prior to the . death of the deceased person. At the time the witness claims she saw th.e accused person, he _was in the .company of the said deceased father. The deceased father introduced this first 5 accused person and the other person who is not in court to the members of her mother's household, as was the practice of the father, who would ordinarily introduce guests of one of his two households to the other household, whenever guests visited him. There was also suggestion from both, Faustine James (PWl) and Christina Katigwa (Pw2) that the first accused person passed by the place where the alarm men had gathered, whereupon, he was arrested. To be precise, the substance of the testimony of Pwl on this fact of the arrest of the accused is as follows:- "We-managed-to-arrest one person who was by the roadside pushing a bicycle. He was about here and there at the road. (about 25 meters). We arrested him because he had a bicycle; he was bare chest. He said that he was going to Bukondo. He was coming from the direction from where the incident ·occurred. We put him under arrest waiting for the police to arrive. ✓, On the other hand, the following is Christina's (PW2) account of . what transpired when the accused was arrested:- 6 t-·, r ~- t ~.·•·: (•~ ~ " ·j ·1 ·.~ -· 0 . "While there/ one of the guests passed by telling the members j .1 i of Mwano to give way as he was drunk. ..people suspected the l ' :1 person. They asked him if he was the one who was l 1 drinking with the deceased. He confirmed their suspicion. The person was coming from the direction li of the home of the deceased. ... he was dressed in trousers/ he had a lace over his upper part of his waist over one shoulder... I don't know the 1st accused person. He was brought by father. He didn 1: introduce his name to us... // Here are two basic versions on how and why the first accused was qrrested. Both versions converge at that, the alarm men arrested the first_accus@ci-wheA-Me-was-p-a-ssing 15y. He said that he was going to Bukondo. The first version does not contain the details o.f the questioning on whether the accused was the one who was drinking together with .the deceased or that he confirmed the suggestion. There is also a difference of how the accused person behaved when he found the "wananzengo" at the "mwano". One can therefore sum· up the situationas follows; that 7 . ;'1 I ·I ' I, "lb'- "~ · the alarm men arrested the accused at the place the alarm was called, and that he was wearing a trouser without a shirt and that he was half covered with a lace. Both versions are clear that the wananzengo did not ask the accused if he was responsible for the injuries the deceased claimed to have sustained as a result of the attack by his in laws. The accused person did not deny the fact that he was arrested under the circumstances which the prosecution claimed. However, he provided an explanation for his presence at the place at the time the wananzengo arrested him. He claimed that he is a resident of Nyambogo village. He also has a farm at a place· called Senga. On his way to his farm at Senga, he has to pass by the village where the deceased lived. On the fateful day, the accused passed by the place on his way from the shamba at Senga. As he was passing by the place, he saw a gathering of people. He denied the claim that .he was 8 / I . ./\' I ' • I I ·~_·;.)L (/\ .. -- · aware of the fact that at the place, there was an alarm. Upon arrival at the place, and as he was passing by, the people who had gathered there, asked him where he was coming from. He told them where he was coming from, but they arrested him anyway, and they locked him up. Eventually, he was charged with the present offence, which offence he has denied. Generally, he admitted that he knows the deceased person; he also admits that the deceased is married to his sister. Nevertheless, he denied to have ever visited the accu_sed person or his sister ever since they were married sometimes in 2011. He denied the suggestion that he was the in law, who the deceased introduced to PW2 on the day, before the incident. . I summed the matter to the gentlemen and_ lady assessors, if at all the accused was, if at all, the person who was mentioned by the· deceased person who was named by" the deceased person. · Most specifically, I addressed them on the capacity of the 9 deceased to identify the persons who assaulted him at that hour of the night. I also warned them on the possibility of there being · any other in law who could be the culprit. This is more specifically so, in the light of the fact that, the deceased person did not mention the person, who attacked him. The deceased only gave a generic description of category of persons who did so. Sospeter Mackanza was of the opinion that, the total effect of the testimony of the witnesses, who are at one, that they heard the deceased naming his in l~ws as the persons had killed him. Also, the testimony of PW2 Christina who claimed that the first accused person was the one who, her late father introduced to them; he was satisfied that the father correctly identified his assailant and he mentioned him as his in law. He was. also satisfied that PW2 identified the accused in court. He was satisfied that the accused was the person who inflicted the fatal wounds on the deceased person. - 10 Hawa Swedi was also contented to return the verdict of guilty primarily for the reason that, she was not satisfied with the explanation the accused person gave, that he happened to be at the scene the alarm men arrested him by co-incidence, as he was coming from the shamba at Senga village. The lady assessor knows the geography of the place well. It was her opinion that the ordinary route from Senga to Nyambogo, from where the accused claimed he hails, enfail passing . through Kisaka. The route he took to Bukondo was therefore a digression. She also suspected the accused for being bare chest at that late hour of the day. Mabula Lucas was not contented that the accused is guilty as charged. He was of the opinion that the only reason the alarm men arrested him was his conduct towards the "mwano". To the gentleman assessor, this alone was not a reason good enough to .connect him with the murder. He was alive to the fact that the accused person only mentioned in laws as having· assaulted him. 11 This alone again to gentleman assessor was vague, to make a solid suggestion that the accused was the intended in law. Further, even if the suggestion that in law assaulted him is to be believed, still, it is short of suggesting who were specifically the in laws, who assaulted the deceased person. Let me record here that at the close of the prosecution, there was not even a scintilla of evidence, which suggested that the second accused person could be a party to the offence. The evidence that survived did not even sh9w how, when or who arrested her. As such, I had no option but to enter a finding of no case to answer and accordingly, I acquitted her. This was a case of a dying declaration. The prosecution referred to me the provisio_ns of section 34 (a) of the Tanzania. Evidence · Act, Cap 6 of the 2002 revised Edition of the Laws of Tanzania, which they urged the court to invoke, to accept the statement of the deceased person that the wounds~ which caused· his death 12 were inflicted by the first accused person. The said section reads as follows:- 34. Statement~ written or oral,of relevant facts made by a person who is dead or unknown/ or who cannot be found, or who cannot be summoned owing to his entitlement to diplomatic immuni[½ privilege or other similar reason or who can be summoned but refuses voluntarily to appear before the court as a witnes~ or who has become incapable of giving evidence/ or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court to be unreasonable/ are themselves admissible in the following cases- (a) when the statement is made by a person as to the cause of _his · death as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into qu_estion/ (b) ... 13 (c) ... (d. .. (e) .. . (f) .. . (g) .. . (h) .. . I agree with the learned attorney that in terms of the foregoing provisions of the law, dying declarations,whether written or oral, concerning the "... the cause of his death as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that p__erson's_death_comes--- into question... "are admissible in evidence. It seems that in the present. case there is no dispute as to the fact . that the- statement of the deceased person concerned the cause of his death, as it explained who actually caused the injuries, which resulted in his death were spoken by him. 14 .,\· ' I / : ' The section 34 (a) of the Evidence Act, on which the prosecution relies, qualifies the cause of death, the cause must also explain the circumstances of the death. Agreeably, and this will be demonstrated in the cause of the judgment, sometimes the proof of the cause of death, may also be presumed from the cause itself. There would appear to be no dispute on the claim by the prosecution that the deceased indeed made a statement just before he died, that his in _laws, relatives of his wife, inflicted on him, the injuries which he sustained, and which all witnesses saw. The only question, which as shown, I also asked the gentlemen . and lady assessors to help in their respective opinion, is whether the statement necessarily and irresistibly meant that, it referred to the first accused person as the person who the deceased intended to mention. In this case, there was evidence from PW2 Christina· Kasigwa, which suggested that the. accused person fitted the description, which the deceased gave. 15 ~-, '- .. 1 / ;\,,,J ·- The issue is whether this description is enough to identify the accused person. ,As a matter of rule, for a dying declaration to be adequate, identification of an accused is of essence. In the case of Mdiu Mande @ Mnyambwa Mande v. R. (1965) 1 EA 193 the East African Court of Appeal had the following to say on identification:- "... The attack in this case took place at night in a room lit by a feeble light; and in our view, where the identification of the assailant was a narrow issue between the prosecution and the appellant; a particular caution must be exer~ised and the evidence for the prosecution must be so cogent as to exclude any possibility of a doubt .. ✓, In the case of Tuwamoi versus Uganda (1967) 1 EA 84, there was a suggestion that the attack to the deceased· was probably done in darkness. The court_ of appeal was not persuaded that the statement was cogent and made the following remark:- ~ This was a case that needed very careful consideration and 11 •• it does not appear .to us ·that the learned· trial Judge fully· directed himself either on the question of the reliability of the 16 /j --~· . ___ / J t . I (,: .· .,:./::-:) deceaseds dying declaration having regard to the circumstances in which her identification of the appellant was made.,.." As a matter of practice, a dying declaration requires corroboration. The justification for this .can be found in the case of Mdiu Mande @ Mnyambwa Mande v. R. (supra) where the court made reference on the following passage in the book Taylor on Evidence (12th Edn.), Vol. I, pp. 462-463, para. 722: "Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken are entitled to great_w_eight,-if-pr-&Gisely-identified;-it should always be recollected that the accused has not the power of cross-examination/ a power quite as essential to the eliciting of the truth as the obligation of an oath can be/ and that, where a _witness has not a deep sense of accounta,bility to his Maker✓ feelings of anger O( revenge/ or✓ in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the accuracy of his statements/ and give a false colouring to the whole transaction. Moreover✓ the particulars of the violence to which the deceased has spoken are likely to have occurred in circumstances of confusion and 17 surprise, calculated to prevent their being accurately observed, and leading both to mistakes as to the identity of persons and to the omission of facts essentially important to the completeness and truth of the narrative (R. v. Ashton (1837) 2 Lewin CC 147. See also Mr. Evanss observations on the great caution. to be observed in the use of this kind of evidence in 2Poth. Obi. 255 (293), 2 St. Ev. 367, and 1 Ph. Ev. 292.)." In Terikabi -versus Uganda, (1975) E.A 60 the Court of Appeal for East Africa found corroboration to an otherwise undoubted case of identification of an assailant, who attacked the accused in a broad day light and who managed to survive for ---several-hot1rs-and--mentioneu-the accusea-to various persons before he died. Also, corroboration came from the conduct of the accused, who fled from the village immediately after he attacked the deceased person. Again, in th_e case of Mohamed Shedafa and three others (1984) TLR 95 this court (Sisya, J.) was not inclined to believe the deceased person, despite his having identified accused persons· by pointing at them before he died, and even 18 · where they could not resist the suggestion. Nevertheless, it was also suggested in the evidence that, circumstances of the assault possibly suggested there being another person who could also have assaulted the deceased. This un-clarity was a doubt, which was resolved in the favor of the accused person. Much as conviction can be secured without corroboration as was the case of Terikabi versus Uganda above, the general rule is that it is unsafe to convict where there is no corroboration as to the circumstances of the death. This is especially where circumstances for identification are not ideal as was the case of Africa Mwambogo V. Republic (1984) TLR 240.In this case, although the Court of Appeal of Tanzania was inclined to the view that conviction is possible on uncorroborated evidence. It proceeded to state that:- "We think that the deceased was quite honest in implicating the appellant in the dying Declaration and we agree that he reportedly did so. We are. of the carefully considered view, 19 however✓ that we cannot safely discount the very real · possibility, in the circumstance, that the deceased could have been honestly mistaken in his belief that it was the appellant who shot at him. The deceased's persistence in implicating the appellant, which seems to have heavily influenced both assessors, is thus mere evidence of consistency, and of honesty even, but not of correctness. This was March/ 1978 and only in 1976 the deceased had allegedly accused the appellant of killing a buffalo and the appellant was arrested The case was eventually withdrawn so the appellant was not only known by the deceased to be at large but was presumably believed by the deceased to possess a gun, and able to use it; and have grudges against the deceased. The appellant's name would in the circumstances naturally rush to the deceased's mind, once he was shot at in the bush. We are satisfied in the absence of corroboration it would be unsafe to uphold the conviction... // · In the· present case, I am faced with three· difficulties. One, the deceased person did not certainly mention the accused person. He only mentioned a generic term "shemeji zangu ndugu wa mke wa_ngu wameniua." There is an attempt by PW2 to supply to· the 20 v~gueness, by trying to implicate the accused person as the possible in law. I do entertain grave doubts on this evidence. The ~vidence is an improvisement on the dying declaration, rather than corroboration. This did not add anything to corroborate the dying declaration, as this could not stand alone and have a bearing on the fact of the death of the deceased person. As a matter of law corroboration is evidence, which stands alone and has a bearing on the guilt of the accused person. A passage in the Ugandan case of Katumba v. Uganda [2000] 2 EA 395 makes a convincing statement of the law on the subject:- "Corroboration . is additional independent evidence which connects the accused with the crime/ confirming in some material particulars not only the evidence that the crime has been committe~ but also that the accused has committed it. // Secondly, the accused was apprehended a short while after the incident. The dominant reason, which led to his being apprehe~ded, was that, either he defied the. alarm or that; he · misbehaved at the alarm gathering·. Yet, there is no evidence, 21 . which shows that the alarm men asked him immediately after apprehended him, the accusation by the deceased in relation to his death. If they did so, the evidence is silent on what was his response.With the foregoing circumstances, the explanation that the accused gave, that he may have been at the place on his own errands, gains a lot of a probable force. This alone clears him. Thirdly, and this is important, the deceased did not say where and how the assailants inflicted wounds on him. He did not suggest that the in laws who were _in his company, were the ones who inflicted the wounds or how "they killed" him. There is every possibility that for example, if we take the evidence of PW2 that they were together for the period she stated in court drinking they may have· quarreled, yes, but another person altogether could have inflicted him with the wounds. This is in the light of the unfavorable conditions,· in which the deceased person sustained the wounds at the hind side of the neck or skull as it 22 ::. I ,; . . ·were, possibly he was hit from the back, at night. Such circumstances are unfavorable for identification . . All these taken together do not provide the comfort that the deceased person is irresistibly intended to be mentioning the accused person. I am inclined· to agree with the gentleman assessor who opined that in circumstances of this case there is grave suspicion on whether the deceased intended to mention the accused person. As a matter of law, there can be no amount of suspicion that can be the basis for conviction! From the foregoing, I have no option but to acquit the accused person of the offence of Murder contrary to section 196 and 197 under which he stands charged. (?ated at Geita, this 8th day of June, 2018. 07 l:~\,~ . /;¼<rt"-ft' . ------- 1/1i:iJ:G:Matupa , Judge. 23 Date: 8.6.2018 eoram: Hon. Matupa, J M/s Christina Chacha State Attorney for Republic assisted by Mr Anossisye State Attorney Mr Kassim Advocare for accused Name accused: Maromo s/o Kulomwa Are present under custody and represented by Mr Kassim- Advocate for accused assisted by-Mr Onyango Otieno Advocate -Interpreter C. Misungwi English in to kiswahili and vise versa Court Assessors: 1. Sospeter Makanza 2.Hawa Swed 3. Mabula lucas Court: The judgment was delivered in open court in the presence of M/s Chritina Chacha State Attorney Assisted by Mr. Anossisye and in - the presence of the accused person together with his advocates 24 Mr Kassim Gilla and Mr Onyango Otieno, this 8th day of June, l018. . ~ /'-_~ Srflr.M.G. Matupa Judge. 25