20191202 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 115 OF 2015 REPUBLIC ••.•....•••••.••••.......•...•••...••••.•••••..••.• PROSECUTOR Versus 1. FAUSTINE SABUNI JILALA ..............•............ 1 5 T ACCUSED 2. SAM IKE MWIHULO KWILASA ...................... 2No ACCUSED 3. JUMA CLEOPHAS KULUNGWANA ................. 3Ro ACCUSED -- -4. -KULWA SHIJA GW-ASHI .............................. 4TH ACCUSED JUDGEMENT Date of Last Order June 28, 2019 Date ofJudgement December 2, 2019 Masara, l The four accused persons stand jointly charge of Murder against the accused persons contrary to section 196 of the Penal Code, Cap. 16 of the Laws of Tanzania. It is alleged that on 6th day of September, 2014 at Kigamboni, Pembamnazi area, within Temeke District, Dar es Salaam Region, the four accused persons did murder one IDRISA LUTEBUKA @MELASI. Hearing of this case started on 13th June, 2016 when the accused persons appeared before Judge Moses Mzuna for preliminary hearing. They pleaded not guilty to the information whereupon the case was set for tric;:il. The trial of the case commenced on 11 th February, 2019 before Irvin Mugeta, J, whereby ten (10) witnesses testified for the Prosecution. Before the trial could be finalised, 1 I ' Mugeta, J was transferred from Dar es Salaam to Kigoma High Court Centre. The trial of the case was then reassigned to me and hearing continued on 10th June 2019 after the accused persons and their counsels were addressed in terms of Section 299 of the Criminal Procedure Act, Cap. 20 [RE. 2002] (CPA) and no objection was raised. Before me, the accused persons were represented by Jeremiah Mtobesya, le~rned advocate for the first Accused; Judith Kyamba, learned advocate for.the 2nd Accused and Thobias Kavishe, learned advocate for the 3rd and 4th .Accused persons. The Republic was --represeot~g ~y_ Mr. Gabriel Kamugisha, learned Senior State Attorney, ·assisted by- Ms. Sabina_Ndunguru ana-MY.--Ben-son-Mwaitencia,Jearned_Stc!te_ Attorneys. In order to prove the case against the accused persons, the prosecution summoned eleven (11) witnesses and tendered six (6) exhibits. The Witnesses are: Rehema Shabani Munaba (PW1); Juma Issa Mkane (PW2); Afya Remson Senyi (PW3); Rehema Peter Reheni (PW4); Shabani Muhsin (PW5); Said Mkopi (PW6); Hambala Mathias Katuchuru (PW7); D. 6878 D/SGT Jumanne (PW8): G. 4125 DC Lameck Lubinza Kubezya (PW9); WP 5432 DC Christina (PW10) and WP 4191 S/SGT Mercy (PW11). The tendered exhibits are Exhibit Pl (Post-Mortem Examination Report), Exhibit P2 (Sketch Map of the Crime Scene); Exhibit P.3 (Identification Parade Register); Exhibit P.4 (Caution Statement of Faustine Sabuni Jilala); Exhibit P.5 (Certificate of Seizure) and Exhibit P.6 (Nokia Mobile Phone with Simcard). 2 . The issue for determination at thit·trial was whether on the evidence available the offence of murder was proved against the four accused persons, either jointly or severally. The law lays the burden of proving a criminal case upon the Prosecution/Republic. It is upon the Prosecution to prove that the accused committed the offence charged. The standard of proof in this respect, like in all criminal cases, is beyond reasonable doubt (Section 3(2) of the Evidence Act, Cap. 6). In this case therefore, it was the duty of the prosecution to prove that the accused persons jointly or severally committed the offence charged beyond reasonable doubts. The accused persons do not bear the burden to prove their innocence. Their duty is just to raise doubts on-the case against them (See Maruzuku Vs. R [1997] TLR 1). In Mohamed Said Matula Vs. R[1995] TLR 3 (CA), the Court of Appeal stated as follows: "Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence. " In order to determine whether the Prosecution proved their case, one has to revisit the facts that led to the arrest and arraigning of the four accused persons. It was the Prosecution case that sometimes before the incident, the first accused's daughter fell sick. The first accused apparently suspected that his daughter was bewitched. He went to a traditional healer who mentioned the deceased, Idrisa Lutebuka Malasi, as the person behind the sickness of his daughter. The first accused then decided to hire the second, third and fourth accused persons to kill the deceased. They were all from Mpanda, 3 I I .. Katavi. The four of them travefled''to bar es Salaam to accomplish the mission. On the 5th day of September, 2014, the 2nd, 3rd and 4th Accused person visited the home of the deceased disguising that they wanted to hire a- farm to cultivate watermelons. The deceased was not at hqme that day. The next day they went back to his house whereby an agreement to hire the farm was reached. They surveyed the.farm and later on went to a local pub to get some drinks. At around 2200 hours they left the pub heading to the deceased's home but while on the way they attacked the deceased and cut him several times using a Panga. The deceased sustained severe injuries and -died-on--the-s-130t.+Re-thr-ee-accused_p_ers_o115- _djsaR_Qear-_~d. The body-of --- - - - --- the - - ~- --· -- cfeceaseff was- Bistovered-the-next-day-in-his far-m.-T"he--cause_of _death_wa_s_ _ revealed to be from multiple cut wounds over the head and neck. The accused persons were then traced using a mobile number one of them had used to get MPesa money. They were arrested in Mpanda and brought to Dar es Salaam. An identification parade was organised whereby the three accused persons were identified. The case was then filed against them. To appreciate the above summary, I will briefly outline the evidence of each prosecution witness and the defence. PW1, Rehema Shabani, testified in court that she was the wife of the deceased, Idrisa Lutebuka @Melasi, who died on 6th September 2014. She informed the court that prior to the death of her husband three persons visited their home wanting to hire a piece of land for watermelon cultivation. When those three people came, her husband was not at home. While they were there discussing on a number of issues, Mkane (PW2) came there. 4 -... SIi': ,.. I ' Those people·left and came back t~~-''hext day with her late husband. They had hoes and slashers. She prepared lunch for them and they ate together. They stayed together for about three hours. She heard one of the guests talking about the money that had come via a phone. The deceased called someone via a phone to come and take the guest to Kimbiji. Later her late husband left with the guests. He never came back. At around 0100 hours on 7/9/2014, she tried to call her husband by phone, but his phone was not reachable. At around 1600 hours she sent her children to collect firewood in their farm. Shortly thereafter they came back running. They informed her -- _ -- ___ ·- th~tthey- saw-theaeceasea-1yingdose-to·the-bush.-She_w_enttb_en~ _Y'{lth Afya (~~3) ~nd Ju~~--(Pwif-a.nc:f found-her-nusband--dead with-several-~~~;~~-: the head, shoulder and throat. PWl further informed the court that on 25 th September 2014, she was called at Chang'ombe Police Station to attend an identification parade. She was asked to identify the guests that visited their homes on 5th September. She identified two of the guests as she had stayed with them for two days. These were the 2nd and 3rd accused persons. She also made a dock identification of the 4th accused person as he was not in the parade that day. This witness further told the court that her husband had a farm/border dispute with the first accused person. Her late husband had sold a four-acre farm to the 1st accused but had excluded an area that fell on the road passage. Her husband also sold a two-acre farm to one Masumbuko who later sold the same piece of land to the pt accused. On buying that land, the pt accused blocked the road passage that had been left for use by other villagers. Her husband ~ 5 ' ' .···., complained but the pt accused kept on cultivating at the passage. So, the dispute continued up to the time her husband died. On cross examination, she informed the court that her husband had agreed to let two acres to the 2nd , 3rd and 4th accused persons. PW2, Juma Issa Mkane, testified that he was a motorcycle/bodaboda driver at Muhimbili, Pembamnazi area. The bodaboda he was riding belonged to the deceased. He informed the court that on 5/9/2014 he went to the residence of the deceased where he found three guests. He had sent sugar . ~~d-~-b~~~-- Th~ -~-~xt-dai he metl:fie ·saicl-<]uests-whe asked-him_aboutJ:_b~ .. - . - - --· - - --- whereabout of the deceased. He took them- to- whe-re-the deceased-was (at- the house of mzee Sudi). At around 1600hours, the deceased phoned him and asked him to take his guests to withdraw money at Kimbiji. He agreed to carry only one of them. They went to Kimbiji, that person withdrew money from an agent. The name that was displayed was of a woman, "Rehema Shomari". He made two withdraws. He then took that person back to Muhimbili centre, where his other colleagues and the deceased were. They were at a grocery drinking beer. He parked the motorcycle. His parking area was about 5 metres from the grocery. The deceased and the three men stayed up to around 2200hours when the deceased said he was ready to go home. He did not take the deceased home because the deceased informed him that he could not carry the four of them in one motorcycle. They left him there. The next day he met PW1 who asked him whether he knew where her husband was as he did not return the previous night. He informed her of what transpired that night. He went to look for him at Muhimbili centre ~ 6 but he was not there. He later got information that he had died. After burial of the deceased, he recorded his statement. He was requested by the police to go show them the place where that person withdrew money. The Mobile money agent was interrogated. This witness also went to the identification parade at Chang'ombe to identify the guests who were with Idrisa. He identified 2nd and 3rd Accused persons. He also identified the 4th accused in court. He testified that it was the 4th accused who went with him to the MPESA agent. His written statement was admitted to contradict his evidence but he maintained that he told the truth as the police who recorded his ·statement--dia-not-read_it__oyer to him and that he was illiterate. Afya Remson Senyi testified as PW3. He testified that he had been living with the deceased family as a Shamba boy until the deceased died .. He informed the court that on 6th September, 2014 three people Visited them looking for a farm to hire. He stayed with them for three hours, then he left. He identified the 2nd , 3rd and 4th accused persons as the people who went there that day. Later in the evening, he was at the same grocery where the deceased and the three guests were drinking beer. He went there to watch 1V. He testified that the deceased and the three left at around 2200hours. He was left behind, but after a while he followed them and managed to catch up with them. One of those people told him to go ahead and that they will meet at home. This was the 4th accused. When asked by PWl where her husband was, he informed her that he was coming with his guests. In the morning he was told that the deceased did not come home. At 1600hours he got information of the death of the deceased. After the burial he left for ~ - 7 Mbeya so he did not attend the identification p§rade. He also told the court that PW2 was also around the Bar area the night of 6 September, 2014 .and that he left PW2 behind when he left. He further stated that there was moonlight that night. The fourth Prosecution witness (PW4) was Rehema Peter Reheni, a bar attendant at the grocery that the deceased and the three persons sat on the night of the death of the deceased. She informed the Court that she is the ------- --- - - --0ne--who__ atte__11g_ed the deceased and the three persons that she later --------~ -identified-as--tne-2 l_ld_,- 3r?__ and_ 1-~h__ accusedpersons-:--sh-e-attendee-tt-lem-on_S!~-- -- and 6th September 2014. On -~;~--S;pt~~be~--thei-dran-R -from around - lS00hours to 2200hours. She also saw Nkane (PW2) at the bar that day. She attended an Identification parade and managed to identify the 2nd and 3rd accused persons. The 4th accused person was identified in court as he was not in the parade that day. During cross examination she stated that although there is 7V show at the bar, that day the 7V was defective. Shabani Muhsin testified as PWS. He informed the court that he was a police jamii and that he visited the scene of the crime which was about 27 metres from the main road. They found the body of the deceased near a shrub bush. The body had many cut wounds. There was a panga next to the body and an envelope with a letter at the back pocket. The area did not show any sign of a fight or struggle. ~ 8 .. The 6th Prosecution witness (PW6) was Said Mkopi. He was a mobile money agent. He testified that on 6/9/2014 PW2 in the company of another person went to his place of work. The person wanted to withdraw more than a million shillings but he had only 500,000/=. Although it was a man, the name displayed as Rehema Shomari. He used mobile phone Number 0768898011. When asked about the name, that person said he had registered the number using his wife's identity card. PW2 confirmed to him about the said person so he agreed to give him the money. After two days police investigators went -- --to~Mis-office_aod__a_~l<~d for the number. He got it from the register and gave -- ---- -- - ---- it to them. Police took the number and the regTstefbook;-photeeopiedJt and __ _ left. He remembered the number for two main reasons, one-that the amount involved was huge, and that the number was registered in a woman's name while the owner was a man. He could not recognise that person. That day he had only dealt with four MPESA transactions. He further informed the court that towards the end of 2014, his business ran bankrupt and he could not remember where he stored the register. During cross examination, he informed the court that the MPESA business belonged to one Hassan Mbwana. PW7 was Hambala Mathias Katuchuru who informed the court that before June 2018 he used to work as an Inspector of Police with the Tanzania Police Force at Chang'ombe Police Station but that he has since retired. On 25/9/2014 be supervised an Identification parade whereby 2nd and 3rd accused persons were identified by 4 witnesses. He tendered the 9 identification parade Register as Exhibit Pl He explained the procedures he adopted in the conduct of the parade. The 8th Prosecution witness (PW 8) was D. 6878 D/SGT lumanne, a police officer attached to Cyber Crime department, Office of the RCO, Temeke. He testified that after the death of the deceased, he was assigned to investigate the case. He went to the house of the deceased on 8/9/2014 whereby PW2 took them to Kimbiji to follow up on the MPESA transaction said to have ---- -- --- - -----been_withdrcJ_yVn by -one ---- -- -- --- -- of the suspects. They got the number at Kimbiji and started making a follow up_ of its loca1T6n-.--Th-e--number--was--0Z68_8_98_Q!_l_ registered in the name of Rehema Shomari. He travelled to Katavi along with D/CPL Marcel. At Katavi they found out that there were three numbers that frequently communicated with the targeted number. They called the one which was more frequent and was picked by a woman. The woman worked in one of the lodges in Katavi. She agreed to meet them at the lodge. She had saved the number as "Mpenzi wangu unayeumiza roho yangu". She was told to call the number, but she said the man was in Dar es Salaam. They insisted and asked her to tell him that she wanted him for sex, she complied. He promised to come in twenty minutes. He came after 30 minutes. The lady pointed him out and the 2nd accused was arrested in the room they had trapped him in. When he inquired why he was being arrested, the witness told him that it was in connection with the murder in Dar es Salaam. The 2nd accused was surprised. He informed PW8 and his colleagues that he was not alone. He mentioned the first accused as the person who had hired them to do the job. He led them to the milling machine of the pt accused. They ~ 10 1..- disguised as if they wanted to buy rice from the pt accused. Then they arrested him and took him to their vehicle. They informed him that he was arrested in connection with the murder of the deceased. He told them that his life was now at a mess and that he regretted doing it. He further told them that it was his friend by the name of Kulwa who assisted him to get the murderers as he was new in Katavi. PW8 continued to state that they decided to go and get the said Kulwa but he was not at home. On their way back to Katavi, they spotted the said - - - - - - - -Kulwa-in a motorcyc_le._Jhey - - - intercepted - -- it and arrested him. On telling him - --· --· - -- - - about the offence, he asked why Juma and Shabani were-·nof-arrested -as- well. Using the 2nd accused's phone, they called the said Juma on the disguise that there was another job and that he should go to the bus stand to discuss details. Juma came using a bicycle and was arrested. Juma called Shabani on the same pretence used to arrest him. Shabani was away in Nkasi district. Then Kulwa told them about a witch doctor that was supposed to treat the pt accused after the event had been executed. They went to his resident and were able to arrest him. Shaban was unreachable since that evening so they left with the four persons to Chang'ombe Police Station, Dar es Salaam. During cross examination he informed the court that they seized the phone of the 2nd accused person. He further said that he got the name of the person who withdrew the money from PW2, that it was the third accused person. ~ 11 L The 9th Prosecution witness was G~4125 DC Lameck Lubinza from RCO's Office Katavi Police. He informed the court that he had recorded a caution statement of the 2nd accused person. He said that the second accused confessed to have participated in the crime. When he sought to tender the said statement, it was successfully objected to during a trial within a trial. WP 5432 DC Christina testified as the 10th Prosecution witness. She informed the court that she works in the Office of the RCO, Katavi Region. - --- _Sbe_r~~9-~9-~9 the caution statement of theist accused person. She informed the court that the 1st accused pers6n--aarrflttecl--to -be- -responsible ~-for_ the murder of the deceased due to the land dispute between them. The confession statement was admitted in court as exhibit P.4. The last witness for the Prosecution was WP 4191 S/SGT Mercy from Msimbazi Police Station, Dar es Salaam. She was the investigator of the case. She informed the court of how they got the information about the murder of the deceased and what she did thereafter. She said that at the scene where they found the body of the deceased it looked like the body had been dumped there after he was killed at another place. She interrogated the witnesses and managed to know about the mobile money transaction. It is from that transaction that they managed to arrest the four accused persons. She tendered a certificate of seizure (Exhibit P.5) and a mobile phone with a simcard retrieved from the second accused. The phone was tendered as exhibit P.6. Regarding the number of the phone, she informed the court that they got it from the MPESA agent at Kimbiji and that it was her colleagues 12 from Cybercrimes that worked on It. At the time she received Exhibit P.6 it was in a perfect working condition ·and that when she tried to send mobile money to it, it displayed the name of Rehema Shabani. The number was 076889.8011, but now the phone is not working. That marked the end of the prosecution case. After the closure of the prosecution case and after it was ruled that the Prosecution had made a case that required the accused persons to defend themselves and call evidence thereof if they so desired, the accused persons __ o_p_tec;l Jc:>_ !__e?~!fy on oath and did not call any witnesses. Two exhibits were tendered by or on behalf of the first a-ccused person-.-Tne·exhibits-are:-The-- witness statement of Juma Issa Mkane (PW2) which was tendered as exhibit D1, and a sales agreement titled "hati ya Mauziano ya Shamb.a Kiwanja Eneo" tendered as Exhibit D2. Mr. Faustine Sabuni Jilala testified as DWl. He denied any involvement in the commission of the offence he stands charged. He informed the Court that he used to live at Muhimbili, Kigamboni where he owned a Shamba. He testified that he was a neighbour of the deceased and that before his death they never had any conflict and that the deceased never sold any land to him. He told the court that he was arrested on 17/9/2014 while at Mpanda where he owns a milling machine. He was arrested by PW8 and others. DWl while narrating the ordeal of that day, he informed the Court that he was whisked into a white vehicle but instead of being taken to police station, they moved to several places along Mpanda Kigoma Road. Other people were 13 being brought to the vehicle at every place they stopped. At night they returned to Mpanda Police Station where he was taken into a lock up. The next day he was taken out and met one woman by the name of Christina. She forced him to sign some papers but he refused until he knows what was recorded therein. He was taken into a torture room whereby he was badly tortured. He lost consciousness until he found himself in police lock up. Later on, he was transported to Dar es Salaam and later charged for the murder of the deceased. He did not know any of the accused persons before and that he was not with them when he was transported to Dar es Salaam. He - denied to- have- hired lhe three- other-accused-persons -to -ace;omplish -ti-le murder as was stated by the Prosecution. During cross examination he admitted to have seen the second accused in the vehicle on the day of his arrest. Regarding the dispute with the deceased, he maintained that he did not have any land dispute but that he had another piece of land that he got from the village authorities before he bought the one in exhibit D2. He retracted his confession statement, which had been admitted as Exhibit P4. The second accused person, Samike Mwihulo Kwilasa, testified as DW2. Like the 1st accused person, he denied involvement in the crime. He informed the court that he was arrested at Embassy Hotel, Katavi on 17/9/2014, where he had gone to meet his girlfriend. He was arrested by PW8 and PW9. Like DW1 he narrated the routes they passed before reaching the police station that evening. He was only asked his names and was sent in the lock up. They stayed there for some days before being taken to Dar es Salaam. He said that the people that were arrested on 17/9/2014 were not among the ~ - 14 accused persons. He informed the c:ourt that the phone he was using is different from the one that was tendered in court and whose number was mentioned by the prosecution witnesses. He sought to tender evidence of the prison record but later withdrew that intention. He testified that he did not know any of the accused person before he was jointly charged with them. During cross examination he stated that he was not subjected to any identification parade and that prosecution evidence was fabricated against him. He mentioned the name of his girlfriend as Sarah and that they had been dating for about two weeks before he was arrested. Juma Cleophas Kulungwana (third accused) testified as DW3. He informed the court that he hails from Namanyere, Nkasi District in Sumbawanga. That he was arrested on 16/9/2014 by policemen that he named as Shaban and Innocent. They did not tell him why he was arrested and put into a lock up in three police stations before he was transported to Dar es Salaam. It is at Dar es Salaam that he was informed that he was facing a murder charge. He did not know any of the accused persons that he was joined with before this case. He confirmed to have been identified in the identification parade and in court by some of the prosecution witnesses. He however denied any involvement and that he had never been to Dar es Salaam before the date he was transported to Dar es Salaam following his arrest at Namanyere. He denied to have withdrawn money from the MPESA agent. During cross examination, he retracted what he had said about being identified at the identification parade. He stated that PWl, PW2 and PW4 did 15 not identify him anywhere. He said the person that identified him at the Identification parade did not testify in court. The last Defence witness was Kulwa Shija Gwashi, the 4th accused person, who testified as DW4. Like DWl, DW2 and DW3 he denied involvement in the case and raised an alibi in his testimony. He informed the court that before he was arrested, he was a farmer at Mwamkulu Village, Mpanda. He said that he was arrested on 17/9/2014 while drinking coffee at the village centre following a complaint by a person that he owed 50,000/= shillings. - He-wa-s-sentto Mpanda-the-next-Elay-a AE1-was-IGcked-u p for tw_o_weeks_before_ -be(ng -transported to Dar es- Sal~fant -u, tneit-journey to Dar-es-Salaam-they were about ten people. He was later charged of the offence of murder. It was the first time that he came to Dar es Salaam. He further said that none of his arresting officers testified in court. That was the end of the defence case. After closure of the defence case and pursuant to section 294 of the Criminal Procedure Act, the counsels for the accused persons made final submissions. In the said submissions, the counsels faulted the prosecution evidence and asked the court to acquit all the accused persons as the prosecution had not proved their case beyond reasonable doubts. In short, they stated that the accused persons did not commit the offence and that the prosecution evidence was not sufficient to convict the accused persons of the offence of murder. They rightly submitted that the prosecution case was circumstantial as none of the witnesses testified to have seen the accused persons or any 16 1, of them killing the deceased. On the confessional statement of the pt accused person, the counsels argued that as the same -was retracted, the court ought to warn itself on finding a conviction thereof in the absence of corroborative evidence. It was argued that no corroborative evidence exists. After the defence summed up their case, in line with Section 298 of the Criminal Procedure Act, I summed up the case to the Gentlemen and Lady Assessors. In their joint opinion, the assessors were of the unanimous opinion that the prosecution proved the charge against the accused persons -- Beyona- re-a-sonable--doubt;- -"Fhey-,tMeref0re--asked- -me--to_ con~icL_ the_m_ accordingly. Having summarised the evidence and the submission made, it is pertinent that, in order to determine the guilty or otherwise of the accused persons, this court assesses whether on the light of the evidence available the accused persons unlawfully killed the deceased; and that they did so with malice forethought. Starting with the first element of the offence of murder, the question is whether the accused persons killed the deceased. Prior to reacting to that question, it has to be ascertained whether the person said to have been killed is actually dead. Exhibit Pl, which was tendered by the Prosecution, establishes that the deceased is dead and that his death was unnatural. We may, therefore, say that the deceased is dead. The remaining question is whether it is the accused persons who killed him. ~ 17 The evidence submitted by the Prosecution in this respect is circumstantial. The Prosecution relied on the caution statement by the 1st accused (exhibit P4) and the evidence of the identifying witnesses who submitted that it was the accused persons who were in the company of the deceased immediately before he was found dead. The prosecution also relied on the evidence that the accused persons left Dar es Salaam to Mpanda, Katavi immediately after the event. Those are some of the circumstances that led to the arrest and therefore pointed an accusing finger to the four accused persons as the persons who killed the deceased. In the caution statement of the 1st accused -person, -the -motive- behiRd-the--killing _and_ the _pe(s_p_ns_ irw9lv~d_ in ~h~ conspiracy and later to th-e killing of the deceased were explained. Although this statement was admitted and it forms part of the prosecution evidence, the ist accused has since repudiated it. The confession statement is augmented by the evidences of PWl, PW2, PW3 and PW4 who testified that three out of the four accused persons were in the company of the deceased the day he was brutally murdered. It is an established practice in our courts that when circumstantial evidence is to be relied upon, the court must ensure that there are no other co-existing circumstances which would weaken or destroy the inference. The law on circumstantial evidence is that it must irresistibly lead to the conclusion that it is the accused and no one else who committed the crime. See August Mahiyo Vs. R [1993] TLR 117 and Hassan Fadhili Vs. R [1994] TLR 89, among others. More recently, the Court of Appeal in the case of Jimmy Runangaza Vs. R, Criminal Appeal No. 159 of 2017 (unreported) held, inter alia, that: ''In order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilty. (See Simon Musoke v. ~ - 18 Republic, {1958) EA 715). Sarkar on Evidence, 15th Ed 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidence, such evidence must satisfy the following three tests which are:· 1) The circumstances from which an inference ofguilty is sought to be drawn, must be cogently and firmly established; 2) Those circumstances should be of a definite tendency unerringly pointing towards the guilty of the accused; and 3} The circumstances taken cumulatively should form a chain so compete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else." The same principle can be gathered from the Court of Appeal decisions in -Julius Justine and Others Vs.- R, CriminafAppeal No -155 of 2005;a-nd Obedi Andrea Vs. R, Criminal Appeal No. 231 of 2005 (both unreported). If the evidence of the Prosecution is what to go by, then a decision whether ., the circumstance of the case points irresistibly to the accused persons as the persons who killed the deceased has to be made. The circumstantial evidence available come from the story that the 1st accused told the Prosecution witnesses, the identification witnesses and the mobile money transaction that tracked them up to Katavi. It is from such evidence that a decision whether it is true that the accused persons unlawfully killed the deceased has to be made. Beginning with the cautioned statement of the pt accused, Exhibit P4, it contains the express confession of the 1st accused in the commission of the offence. In the said statement, the accused does not say that he killed the deceased himself. He alleges to have utilised the services of his co-accused 19 persons. He is said to have paid them for doing what he intended, that is to kill the deceased. In law such evidence can be acted upon to found a conviction against the maker, that is the first accused. However, the accused retracted that confession in his sworn evidence. A retracted confession, though as a matter of law may support a conviction, generally requires as a _ matter of prudence corroboration as is normally the case where a confession is repudiated. Section 27 of the Evidence Act, Cap.6 provides: "(1} A confession voluntarily made to a Police Officer by a person accused of an offence may be proved as against that person. (2) The onus ofproving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution. (3} A confe_ssion sl]all be ~held to be invQluntarily if the court believes that it was not induced by any threat premise or other prejudice held out by the police officer to whom it was made or by any member of the police force or by any other person in authority." The law in relation to confessions is settled. In Hemed Abdallah Vs R, [1995] TLR 172, the Court of Appeal while affirming the erstwhile Court of Appeal for East Africa decision in Tuwamoi Vs. Uganda (1967) EA 84 held as follows: ''It is trite law that generally it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particular or unless the court after full consideration of the circumstances is satisfied that the confession cannot but be true. '' While admitting the cautioned statement, my predecessor intimated that the grounds for admitting the cautioned statement will be given during this stage. I have examined the record of the trial within trial and the statement itself and am of the opinion that the same was admitted after due ~ 20 ,.,.,..., consideration of all essence and tenets of the law. The same was voluntarily made as the contents thereon could not be narrated by a person other than the 1st accused. The Court of Appeal in the case of Ibrahim Yusuph Kalist @Bonge & 3 Others Vs. R, Criminal Appeal No. 204 of 2011 (unreported) did lay conditions to determine reliability of the confession. It stated: "There are several ways in which a court can determine whether or not what is contained in a statement is true. First, if the confession leads to the discovery of some other incriminating· evidence. (See PETER MFALAMAGOHA v R, Criminal Appeal No. 11 of 1979 (unreported} Second, if the confession contains a detailed, elaborate relevant and thorough account of the crime in question, that no otfJ_e(l!_t#($On_ w~1!_ld_h_c1_11e known such_ details ~bufthe maker (See-WILLIAM MWAKATOBE v R, Criminal Appeal -No. 65 of 1995{unrepofted}. Third, since lt ,s-part of the prosecution case/ it must be coherent and consistent with the testimony of other prosecution witnesses, and evidence generally. (SHABAN DAUDI v R, Criminal Appeal No. 28 of 2001 (unreported} - especially with regard to the central story (and not in every detail} and the chronology of events. And, lastly, the facts narrated in the confession/ must be plausible. "(Emphasis added) I am satisfied, and have no reasons to doubt, that the cautioned statement was voluntarily made by the 1st accused, and that it was properly admitted and can be relied to by this court in determining the facts in issue. The next issue is whether Exhibit P4 can be used against co-accused persons. Notably, Exhibit P4 implicates the 2nd , 3rd and 4th accused persons. This evidence in law can be proved against those implicated; however, it has been a practice that such evidence will be acted with caution, more so when the same is retracted. It is trite principle that confession evidence which has been retracted or repudiated cannot be acted upon to found conviction of a co- 21 deceased while alive if believed can be said to be credible evidence corroborating the confessional statement of the 1st accused who stated that he hired the three of them to accompiish his evil intention against the deceased person. Furthermore, the evidence of PW8 on how he tracked the accused persons and on what led to the arrest of the four of them can also be taken to corroborate the confession statement. The next aspect to deal with is whether the accused persons were properly identified as persons that were last seen by the deceased. Prosecution ___ eviden_ce-9g~inst_!_he 2nd,_J_rd an_d 4th accused p_ers_ons_binges on identification.. _ As explained earlier, the prosecution neeEled to prove that the three accused persons were properly identified. In this regard, four prosecution witnesses testified that they identified the accused persons. These are PWl, PW2, PW3 and PW4. Three of the witnesses (PW2, PW3 and PW4) testified to have seen the three accused persons leave with the deceased and that thereafter the deceased was not seen alive. Evidence of identification need to be watertight. Things to look in identification evidence include: Did the identifier know the accused person before? Did he have enough time to observe the said accused: Was the time of identification day or night? If it was at night was there sufficient light to enable identification? Are there other circumstances that may vitiate proper identification? Did the identifier describe the accused in sufficient details? All of the witnesses who alleged to identify the accused persons maintained that they had enough time to observe the three accused persons and that they saw them during daytime. PW3 claims to have seen the three in the company of the deceased at night 23 accused unless the same is corroborated by independent evidence. That has been the position of the law and has been followed by this Court and the Court of Appeal. See Asia Iddi Vs. R [1989] TLR 174 and also Thadei Mlomo and Others Vs. R [1995] TLR 187. The question is whether there is corroborative evidence to support the cautioned statement. Corroborative evidence in law is evidence that confirms, augments or supports a statement in issue. As explained, there are issues that in practice require corroborative evidence before they can be taken as proved facts. In _this case, one of the Lssues that may require corroborative evidenceJs~Exhibit __ P4, which is the caution statement of the 1st accused persons. So which evidence can be said to corroborate the contents of Exhibit P4? In Exhibit P4, the motive for murder is said to be the conflict between the 1st accused and the deceased. The only evidence available to augment this motive is the evidence of PWl. This witness explained in detail the nature of the land conflict that the pt accused had with the deceased. This evidence supports the assertion made in exhibit P4. In the cautioned statement the 1st accused narrated at length the conflict between him and the deceased relating to land that he had bought from the deceased and from the deceased's son in law. The other piece of evidence that may be said to corroborate the said Exhibit P.4 is the identification of the 2nd , 3rd and 4th accused persons as persons who were last seen with the deceased while alive. These accused persons are mentioned in the confessional statement and the plan of the execution of the murder is equally stated therein. The fact that the 2nd, 3rd and 4th accused persons were identified to be the last persons seen with the ~ 22 but that there was moon light. This is when he was leaving the pub to the deceased's home. It is also on record that an identification parade, supervised by PW7, Hambala Mathias Katuchuru, was conducted whereby the- 2nd and 3rd Accused persons were identified by the four prosecution witnesses and the 4th accused was identified in court as he did not participate in the parade. The Court of Appeal has stated in numerous decisions, the most celebrated one being Waziri Amani Vs. R [1980] TLR 250, that the evidence of visual identification is easily susceptible to error. At page 251-252 of the judgment the Court of Appeal it succinctly stated as "The-evidence -of visual identification is-or-the weakest kind aiid riiost unreliable. It follows therefore, that no Court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely water tight " The four identifying witnesses testified to have had ample time with the 2nd, 3rd and 4th accused persons. Some met the accused persons in two or more different occasions between the 5th and 6th September, 2014. None of the identifying witnesses can be said to have mistook the accused persons. I thus hold that the three accused persons; namely, 2nd , 3rd and 4th accused persons were properly identified. The next question is whether the four accused persons jointly committed the offence of murder. As the accused persons have been jointly charged, the Prosecution needed to prove that there was common intention between them. This aspect is crucial. In the absence of common intention to commit 24 the offence of murder against the deceased, then individual liability of each accused person had to be proved. In DPP Vs. Elias Laurent Mkoba and Another[1990] TLR 115, Chipeta, J (as he then was) had the following to say: "There is authority for the proposition that where, in the absence of evidence of common intention, it is not possible on the evidence to say which of the accused persons jointly charged committed the offence, then all the accused persons must be given the benefit of the doubt It was so held in the case of Jumanne Salum Pazi v Republic [1981] TLR 246, in which Kisanga, J. {As he then was) stated, at page 251: 'I take the view that where two or more persons are jointly charged with the offence and it. is impossible to ascertain which - - ----p..,,articular-one-committed-the-offenr::e---rhen a11- of-them must 7J_e _ _ __ -----------.aGquitted-unless-theFe-he-est-ahlished-on--the-part-of-the-accused persons common intention to commit the offence charged~" It is pertinent to decide whether on the evidence available all or any of the accused persons committed the offence for which they jointly stand charged. The evidence indicate that the four accused persons had a common mission to accomplish. While the pt accused played the role of a financier and an architect of the idea of killing the deceased, the three other accused persons actively participated in the killing of the deceased. Under those circumstances, common intention exists. In their sworn evidence, the accused persons submitted that they were not at the scene of the crime when it occurred. This is a defence of alibi. The law requires prior notice to be given if such defence would be relied upon by an accused person. This is per the requirements under section 194 of the CPA. Section 194(6) of the CPA provides that: 25 ''If the accused raises a defence of alibi without having first furnished the prosecution {with notice) pursuant with this section/ the court may in its discretion accord no weight of any kind to the defence. " The record shows that the advocate for the accused persons did inform the court that all the accused persons would rely on the defence of alibi during trial. Formal notice of the alibi was to be filed before trial. The record, however, does not show whether such notice was filed. It is undisputed that the 1st accused person was not seen anywhere close to the deceased immediately before the deceased was brutally murdered. His own cautioned -statenrent is- to the-effect-thathe--was-not-th-etebur that -he_p_a id the- 2nd ; 3 rd and 4th Accused persons to kill the deceased. On the weight of the 1st accused's cautioned statement and the evidence of PWl, PW2, PW3, PW4 and PW8, common intention of all the accused persons exist. Their alibi defence cannot be sustained as they were properly seen at the scene of the crime. Let me add here that I found the prosecution evidence to this effect to be credible. A credible witness is one who is competent to give evidence, and is worthy of belief. Although most of them testified before my predecessor, the record of their evidence spoke loud as to their credibility and truthfulness. I have no doubt that their evidence on what they observed is true. PW8, for example, informed the court how, by the use of the mobile phone number that was used to get money through Mpesa, he managed to arrest all the four accused persons at Mpanda, Katavi, few days after the deceased was murdered. Although he, or the investigator, did not submit the mobile communications to augment his oral testimony, I have no reasons 26 ,'. ...... __ _, •·---· -, - '"--··- -- - - -,-:::!!-~=~~::;t,-~;-~-~- .,: : ~. ,. •""'' 7 --- . . -::; ~ : -=---:--:-.~~ ~'.~?,-iiiJ{;:;· ~- "¢:,,;~-~-~,;;---x:::·~~ - - ·fvj ·· ("l ,~:I• . ~:',·.,. ·-co- --:;---·---:--;,;=1·i~'7~~".':fi,,;;t[1<-lllllilll to doubt that he was telling the truth. His evidence is corroborated by PWl, PW2, PW3 and PW4 who identified the accused persons. The 2 nd , 3rd and 4th Accused persons were in the company of the deceased when he was last seen alive. In court they did not attempt to offer any explanations why they left Dar es Salaam for Katavi immediately after they had hired the farm for watermelon cultivation. Although the burden lies on the prosecution to prove the case, an accused person faced with such strong allegation is expected to offer an explanation. In Mathayo Mwalimu and Another Vs. R, . ____Criminal_Appeal_.No. 147 of 2008 (lJn_!:~_po.rted)L.th~. Court of_!\e P.~~I !~ced ''In our considered opinion, if an accused person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be the killer. " It is therefore the finding of this Court that the accused persons, with the exception of the 1st accused person, were at Muhimbili area, Kigamboni, Dar es Salaam with the deceased, the night when the deceased was last seen alive. The 1st accused person was in Dar es Salaam but not at the scene, according to the cautioned statement. The second element of the offence of murder is whether the accused persons' act was done with malice aforethought. Malice aforethought is defined by Section 200 of the Penal Code, Cap. 16 thus: "Malice aforethought shall be deemed to be established by evidence proving any one nor more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; ~ · 27 r • Ii {b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm Js caused or not,· or by a wish that it may not be caused; {c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; { d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. " -- ~ - -In.. law.,-ma llce-afor:etbought-does-not-bav.e. to_ar:ise_only_w.ber1-arLintention ___ _ -~- -- - -to kill-is-established-:-It ·m-ay-fall-in-any--of-the categories-stated-in-section-200- of the Penal Code. The evidence in this regard comes from the caution statement (Exhibit P4) whereby the 1st accused believed that the deceased was responsible for the death of his cattle and the sickness of his daughter. He therefore intended to kill him. He is said to have ,hired the killers led by DW4 on a consideration of Shillings 2,450,000/=. The three other accused persons managed to accomplish their missions through disguising as people who wanted to hire a piece of land for watermelon cultivation and befriended the deceased by drinking with him and later killed him. It can safely be concluded that malice aforethought existed at the time they killed the deceased. In the circumstances, and on the basis of what I have endeavoured to explain above, it is my finding that the four accused persons with malice aforethought jointly caused the death of the deceased, Idrisa Lutebuka @Melasi. They are therefore guilty of the offence of murder. I accordingly ~ 28 t ' • convict all of them for the off~nde_of murder, eontrary to section 196 of the PenalCode,Cap. 16. t ~~ Y. B. Masara . JUDGE December 2, 2019 I I [ 29 ··- -•;;~ WWW WWW( ....,_....