20190919 TZHC Mwanza

,I ti IN THE HIGH COURT OF TANZANIA ATGEITA ORIGINAL JURISDICTION (MWANZA REGISTRY) CRIMINAL SESSION NO. 100 OF 2015 THE REPUBLIC ..\ VERSUS 1.lUCIA MWANZALIMA ..........................r··~·:······~-~---- 1 ST.ACCUSED . 2 MONICA MN UBI ...........................u..... ·~:·K~ "~ ACCUSED .....?~'\:~'\ 0 ..... p•a 3. VICENT MAKEJA .... .......-.. :_•_ .......... - ~ -...._•.. f. ~-~·- ACCUSED '0 N( . \~ )\-0 J~GMENT ''' . , ~ 19.8 &19.9.2019 ~~ '\.· · MADEHA,l. <::'.) . ~-~ . 196 and :1,97 0f'-the ~ I Code_,Jap i.6--0f the Laws (R.E 2002); The -,\ prosecutio~\s(n~ti~ on 29Th January 2014 about 20:00 hours at ~~ the Mhalamba vUlag~__,within Geita Region the accused persons murdered ~_/ . Welema Kajana, when the case was called for preliminary hearing no material facts· was in agreement, to prove the case against the accused person, the prosecution side called one witnesses, whereas the defence side ~ 1 called a number of witnesses other than the testimony of the accused persons. PWl: E 1454 D/Sgt Shabani, an investigator in the police force testified deceased body in the kitchen surrounded by the blood on the body of the deceased, he found~ wounds on ·the· parties of the neck of tne deceased body that-was being killed by the superstitious belief. · ~ 2 On a swarm defence DW1 the first accused testified that on the day of the event, she was at home with her husband. She has got an eight-month- old baby, she has a good relationship with the deceased, she was arrested after th_e police failed to find the perpetrator responsible for murder, six years . ~"' passed and prayed the Court to set her free. o\N2'is the husband of the DWl who raised the defence of alibi, that on the day of event,DW1 was not at the scene of crime. DW3 stated that; the second~~-·~- er-oon received the - V ).~ ~"' news of the tragedy and went. to bu: t:ier'."'late andfe'W,as~e~€d at the funeral. DW4 is the husban~ the _oJf~~~iV~t_.)Ei ihformation of ~ "'-'~ ,_ -~~7 death and the second accusedANas at"J10m~DWS is th~.Jhird ac~used person who disputed tha~ did n , ~ ~ ~ \ s o n . . What is the-~~~~edi:iiilngs of the deceased, the second . . ,..j•~-th~k~.1-1\ ~~t·t ~ questI0n 1s alu . · e~g amoun ~m4r ~ ) (d' \? \ . . 1 101~~m,e -presente:-;~·e prosecution and found that '\~ .)\ ~ . . the evidence is insufficient to connect all the accused persons of the offence ~ of murder. The evidence is of a single witness who was not present at the scene of crime. Therefore; it is very difficult to associate the accused persons with the offence of murder, the evidence· of the prosecution side needs . . corroborations of other evidence and the evidence is circumstantial evidence, ~ 3 J I in the case ofSadiki Ally Mkindi V. The Director of Public Prosecutions Criminal Appeal No. 207 OF 2009 (Arusha Feb, 2012), the Court said; "We would therefore set out the general rules regarding circumstantial evidence in criminal cases as elucidated in ·Sarkar on Evidence/ Rfteenth Edition Reprint 2004 at pages 66 to 68. Thes~e: . 1. That in a case which depends wholly z.p~stantial evidence, the circumstances must be of such ~~~':?o~pable of su.n'Portinn the excl~h{e h 1/no~.esis-that th(~~Vs nwl.'ty of the ~, ~ . .~ ft'~~.\ ~"'~V!J'()~, cnme of which he 1s charged."-.rhe arcumstanc-es relied upon as establish1f!g, the in~v~~~~d in the crimE! must . ~ \\ \ \ "'" clinch the isstfirofguilt..__)<. '\) '-0 . 2. That a l l ~ ~ ~ n ~ n d circumstances must be i t'' . - .'--:/ ~, in~ible ~.:f!!!_,!_h~');~"0fthl accused or the nuilt of an,, .l ~ ~ ~ f . .other~rsiln\~nl!'-f._ncapable . of expla~ation upon any other hyp~~that of his guilt, otherWJse the accused must be given the benefit of the doubt. 3. That the circumstances from which an inference adverse to the accused is sought to be-drawn must be proved beyond reasonable 4 ) doubt and must be closely connected with the fact sought to be inferred therefore. 4. Where circumstances are susceptible of two equally possible inferences the inference favours the accused rather than the prosecution should be accepted. ' 5. There must be a chain of evidence so far ctfinP._/ete as not to leave reasonable ground for a conclusion rt,~sistent with the innocence of the accused, an~'.tfl~.'~hain~Ust~~ human ~~ ~"'~ probability the act $;lt hav~t~e.by,ffle.l~ed. 6. Where a ~eries of citfamstanr::s a~eRij,ent on one another, they sho<::j;;J b e r e ( ~~,Whole and not considered separately/'?Jt~~h{J,Y,,concept of proof of circumstantial ~\ ~~~ evidence would be defeated.\o ·-·~ (A~~~~-,· 7. Circumstances 0~ong suspicion without more conclusive ~ \ . \\.,.. .~ . t .,_ . •l-fy . ,.,_. . 1-J.. ,J.. 1-J.. ev1ue~~, su111Cten ,v ;us,z a conv1c,10n, even LI ,oug11 LI ,e party offers,10 explc1nation of them 8. If combined effect of all the proved facts taken together is conclusive in establishing the guilt of the accused, conviction would ~ I . 5 ) ,. be justified even though any one or more of those facts by itself is not decisive. // In the case of Elisha Ndatanye V Republic Criminal Appeal no .51/1999 (Mwanza) Court said; "Where the evidence against the ~sed is wholly .circumstantial the facts from which a f L ~ C ~ the accused is sought to be drawn m u ( ~ ~ y o n d ~ {'7"_~_'\) reasonable doubt a&/..must be. rfeaily'{_o.,11,,rzet!e.a d\with the ~ ~\ ~~ ~'-_)~) u . . facts from which the mfefence ,s,to~ m'ferrecl',::_,J /)t ~d~t -~th_e case p .•h~ Th ere fore, 111" an ~ t· "0d beyon d -reasona bl e 1 ~s no ,'5ove doubt and the benefit-,g~0~~~)e all ~ .sed persons. I hereby acquit ~(_ ~~\~ . and set fr~.~I the accuseCL,~~en\t)e) offence of murder. Unless otherwise lawf~etd. ~ ~ ~ . U. E. Madeha Judge 19/9/2019 U. E. Madeha · Judge 19/9/2019 .6