republic vs elia helemani and 2 others 2020 tzhc 4390 8 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KASULU ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 31 OF 2020 (P.I No. 25 of 2018 in the District Court of Kibondo at Kibondo) THE REPUBLIC VERSUS 1. ELIA S/O HELEMANI 2. NDIZEYIMANA S/O MUSSA @ NYAMILEMBE ........................ ACCUSED 3. SINDAIHEBHURA S/O PASCAL @ KASABA JUDGMENT 08/12/2020 & 08/12/2020 A. MATUMA, J. The accused persons herein, ELIA S/O HELEMAN/ NDIZEYIMANA S/O MUSSA @ NYAMILEMBE and SINDAIHEBHURA S/O PASCAL @ KASABA, are indicted of Murder c/s 196 and 197 of the Penal Code (Cap. 16 R.E. 2002). They are alleged to have murdered one HERMAN S/O BUCHUMIKAKUSHWA on the 7th day of August, 2018 at Kanyonza 1 | Pa ge area at Nyabibuye village within Kakonko District in the Region of Kigoma. It was further alleged that they stabbed the herein above-named deceased with a panga around the head, stabbed him with a sharp object at the lumber area and stabbed him with a blunt object on both ribs thereby causing them (Ribs) to fracture. It was established by medical examination that the deceased suffered severe bleeding and subsequently death due to loss of blood. The summary facts of this case are that on the material date the deceased left his home at the evening hours to his shamba for taking millet. He had his bicycle. He did not however return home alive as he was found dead at around 18:00hrs. His body was found with some cut and penetrating wounds. The first accused Elia Helemani who the prosecution allege to be 19 years old according to the charge in the committal court and who himself avers to be 17 years now meaning that at the crime date he was only 15 years old was the only suspect because it was alleged that he had some grudges with the deceased on two issues. One, that his father the deceased refused to pay dowry for him, and two, that he was not happy with the manner the deceased was treating his mother. It was alleged that the 2 | Page deceased used to take the properties of his senior wife who is also the mother of the first accused, sold them and enriched his junior wife (the 1st accused's step mother). With the herein alleged grudges, it was stated that the first accused threatened the deceased that he shall at one time stab him with a club. The Police officers PW1 and PW6 under such suspicious circumstances, arrested the first accused for interrogations. The two witnesses testified before this court that during the interview the 1st accused confessed the crime and named the 2nd and 3rd accused persons as his companion in the killing whom he had hired at Tshs. 100,000/= but had advanced them only Tshs. 20,000/=. At the hearing of this case, the Republic/Complainant was represented by Mr. Robert Magige and M/S Edina Makala learned State Attorneys while the 1st and 2nd accused persons enjoyed the services of Mr. Denis Katambo Kayaga learned Advocate, Mr. Louis Timoth Kusaya learned advocate represented the 3rd accused person. On my party I sat with two lady and gentle assessors M/S Sanyu James Kihungu and Mr. Bathromeo Josephat Furugutu. In criminal charges, it is the prosecution side which owe a duty to prove the charges against the accused person beyond any reasonable doubt. It is not for the accused person to establish his innocence. This responsibility never shifts throughout. This being a Murder charge-^br case, the 3 | Pa ge prosecution had a duty thus to prove beyond reasonable doubts the following elements: i. That death was caused to the deceased person; that means the alleged deceased person Is indeed dead, ii. That the death was not natural, Hi. That the death was caused by an unlawful act or omission, iv. That it was the accused persons who did the unlawful act or omission leading to death and that v. the death was caused with malice afore­ thought in the meaning that the accused who caused the death in question intended to cause such death or grievous harm. As such, the prosecution for discharging its duty of proving the charges against the accused persons to the required standard, called and brought a total of six witnesses while the accused persons were the only witnesses for the defense. The witnesses called by the prosecution were PW1 (A/Inspector Ildephonce Boniphace Ndyanabo); PW2 (Ezekiel Alex); PW3 (Issa Mubuga); PW4 (Ladislaus Fredrick Wakutumwa), PW5 (WP 10497 PC Elina), and PW6 (G. 6194 DC Maige) The evidence of PW1 supra, a police officer and OCS of Nyaronga Police Post was to the effect that on 7/8/2018 in evening hours (18:00hrs) was phoned by a Militia namely Baraka from Kashoza hamlet and informed him that Herman Buchumi has been found dead on the way. Along with some other officers he went to the crime scene where the doctor examined the dead body. He personally saw the dead body with cut and penetrating wounds. 4 | Page At the crime scene he saw a bicycle with a bag of millet (Baiskeli ikiwa na kifurushi cha mtama) and a big stick which he referred to as "limti" which had some blood, he collected the said "limti" exhibit P3. He then got informed from an informer that the responsible person for the murder is the deceased's son Elia Helemani @ Mwakisu, the first accused herein. They arrested him and sent him to Police for interrogation. According to this witness the first accused confessed that he participated in murdering of his father but by hiring two Burundian nationals atTshs. 100,000/=. He named them as Ndizeyimana Mussa and Sindaihebhura Pascal who are the 2nd and 3rd accused persons respectively. They arrested them in the dead night hours and on interrogation they confessed to have murdered the deceased by cutting him with a panga and stabbing him with a certain bicycle metal. He then seized one Panga from the first accused which according to him the first accused confessed to have been a weapon used in the murder. The panga was however clean "HHkuwa Hmesafishwa, halikuwa na damu" but since it is the accused who told them that the same was used in the murder he seized it and believed that the same was actually used in the commission of the crime. He finally tendered certificate of seizure PF91 No. 30481411 (exhibit Pl), Panga (exhibit P2) and a piece of wood which he referred to as "limti" (exhibit P3). . 5 | Page PW2, stated that the first accused Elia is his young sibling "mtoto wa baba yangu mdogo". The essence of his evidence is that on the crime date the first accused asked him a Panga; "Naomba panga" He told him; "sina panga sijanunua panga". He then saw the first accused going to his father Mr. Alex where he obtained a Panga and it was his sister one Bukuru Alex who gave the accused that Panga. Later when he was on his football match he was informed of the murder by one Ednata; "IVe unacheza mpira! Kwenu kuna msiba" He went to the crime scene and found that it was his uncle (baba mdogo) Herman Kakushwa who was murdered. He was later taken by the Police and shown a panga which he identified to belong to his father Alex and which the first accused had prior taken. PW2 during cross examination by Mr. Denis Katambo Kayaga learned advocate, on his previous declaration statement he made at the Police which appeared to contain some facts incriminating the first accused and his own father Mr. Alex as being the persons who had grudges with the deceased prior to the crime he completely denied to have told the police as such. The contradicted issues which are contained in the statement but denied by the witness are; that he told the Police that EHa the first accused had threatened to beat his father (the deceased) with a dub as he had denied to pay for him dowry and that; he told the Police thadhi's father Alex had conflict with the deceased fighting for farms. The statement so contradicted was admitted as exhibit P4 for the purposes of impeaching the credibility of the witness. PW3 in his evidence stated that on the material day he went to visit the deceased at his home. Thereat, the deceased told him that he had a conflict with his senior wife; "kuhusu kinu cha kutwangia ugaii; Bi. Mdogo alikuwa anakitaka kinu hicho iakini Bi. Mkubwa akakikataHa". And that his son one Elia the first accused has threatened him that; "Nitakutwanga fimbo kwa sababu kiia siku unamsumbua mama". PW3 then calmed down the deceased; "hayo ni maneno ya vijana kuropoka ropoka, hawezi kukutwanga fimbd'. After their conversation he went back to his home. In the evening he heard some alarms around 16:00 hrs. He responded to the alarms only to find Herman dead. PW4 on his party stated that he is a Clinical Officer who examined the deceased's body on 7/8/2018. He observed the deceased to have sustained a cut wound on the head, ulceration (michubuko) on left hand, fracture of ribs (mbavu) on both sides, and a penetrating wound on the right side. This witness then established cause of death to be severe bleeding. He finally tendered the Post Mortem Report of the deceased as exhibit P5. 7 | Page PW5's evidence was to the effect that she is the exhibit keeper at Kakonko Police Station. She explained how she received the exhibits a Panga and a piece of wood (kipande cha mti) from DC Maige and kept them until when she brought them to PW1 for trial of this case. PW6 was the last prosecution witness whose evidence centered that he participated in the arresting of the accused persons and also interrogated them. According to him, the three accused persons confessed before him that they indeed murdered the deceased. He attempted to put in evidence the cautioned statements of the accused persons but they were rejected on legal issues. He thus ended up giving oral evidence that the first accused confessed before him to have murdered his father by hiring the two other accused persons at the tune of Tshs. 100,000/= from which he advanced them Tshs. 20,000/=. That having arrested the 2nd and 3rd accused persons and interrogating them, they also confessed the offence. The accused persons on their party generally denied any involvement in the killing of the deceased and alleged torture by the police forcing them to confess the murder. The first accused tried to demonstrated the manner he was tortured and forced to mention the Burundianes who worked at the farm of his cousin as the murderers. "Walichukua pingu wakanifunga humu kwenye mikono na pingu zingine humu kwenye miguu. Nikaningi'nizwajuL 8 | Page kama popo". He then shown or exposed to the court some scars allegedly that they resulted from the torture. The two other accused persons in their respective defenses, stated that they are Burundian by nationality and came in Tanzania to find farm jobs (vibarua vya kulima). The 2nd accused worked to the farms of one Subira while the 3rd accused worked to one Baraka and that Subira and Baraka are siblings and cousins to the first accused. That they were arrested at night and arraigned for this case but they didn't commit it. On the basis of the evidence on record as herein above reviewed, and as rightly opined by the lay assessors whom I concur, it is undisputed fact that Herman S/O Buchumi Kakushwa is indeed dead and his death was not natural and that whoever caused such death had malice aforethought. This is due to the direct oral evidence of PW1, PW2, PW3, PW4, PW5 and PW6 who saw the dead body of Herman Buchumi Kakushwa with big inflicted cut and penetrating wounds. PW4 the clinical officer who examined the cause of death established that it was due to severe blood loss. Even the first accused (DW1) stated to have witnessed his father the deceased dead lying into blood. Therefore, death and the cause is not a disputed fact. 9 | Page To that extent I find that the prosecution has sufficiently proved the death itself, that it was unnatural one, and that the same was unlawfully caused with malice aforethought. The only dispute therefore is on who killed the deceased. To the prosecution, it was the accused persons who brutally murdered Herman Buchumi Kakushwa while to the defense, the accused persons are not in any way responsible for the alleged attack or murder. As I have earlier on said, it is the prosecution side which retaines the duty to prove the accused persons' guilty. All the accused had to do is just to raise reasonable doubts to the prosecution case. Now back to the prosecution case, none of the six witnesses for the prosecution witnessed the crime or identified the accused persons to have committed the offence as rightly opined by the lay assessors. PW1, the OCS of Nyaronga Police Post arrested the first accused on suspicious grounds which he got informed at the crime scene as herein above reviewed. PW2 was incredible witness altogether. He used to think the answers wherever he was examined in chief and even at the cross examination. When he was put to his previous declaration statement he made at the police, he denied it completely especially on the areas seems to incriminate his own father and the first accused. In his such statement exhibit P4 he was recorded to have told the police; that Eiia the first accused had threatened to beat his father (the deceased) with a dub as he has denied to pay for him dowry and also that; he told the Police that his fathenAiex 10 | P a g e had conflict with the deceased fighting for farms. When he was impeached on the statement he stressed; "Sikusema hayo kabisa wananisingizia sitaki kusema uongo". "Hiio wananisingizia kabisa, yaani mbeie za Mungu". The statement he made at police was incriminating not only the first accused but also his own father as the people who had grudges with the deceased, but he has denied such statement in court. There is no any reason leave alone good one which has been advanced by the prosecution for the variance of the statements made at police and in this court by the same person. It is therefore dangerous to act on his evidence including the statement that the first accused went to seek a panga from him or that he saw the first accused taking a panga from his sister Bukuru Alex. Even if that fact would have been true then it was his sister Bukuru Alex to come and testify as she is the one alleged to have given the said Panga to the first accused. She should have come to identify the said panga in court and distinguish it from other pangas in the world. Failure of the prosecution to call such material witness calls for this court to invoke adverse inference against them that had they called her she would have given evidence against their favor as it was held in the case of Azizi Abdallah v Republic [1991] TLR 71 at page 72that; 11 | P a g e "the general and well known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution". Since PW1 acted on information of the so called "informer" and did not discloss him, and since PW2 had his statements to police incriminating the first accused but has denied them in court. There is nothing to hinder my mind to think that PW2 might be the said undisclossd informer and as such the evidence of PW1 has also been damaged. This is due to the fact that the prosecution has brought the evidence of the witness (PW2) which the witness himself denied in court stressing that his statement was fabricated. How do we draw the line between the informer and PW2. What if he was the informer who has repudiated the information. If he was, then the evidence of PW1 based on the wrong base and unreliable one. And if he was not, how are we sure that had that informer been turned into being a witness would stand by the information or he would repudiate them ashe did PW2. W 12 | P a g e Even though and as rightly opined by the lay assessors, the alleged informer gave suspicious information. It was not a direct claim of witnessing the crime. Even the evidence of PW3 was just to establish that the deceased was not in a peaceful and happy life with his senior wife and his son the first accused. It was not evidence to the effect that the first accused committed the offence. In fact, even what PW3 stated was not his own understanding of the deceased's family problems but that he was told by the deceased. He did not witness the alleged grudges nor what the deceased told him amounted to a dying declaration under all the measurements of the law. PW4 and PW5 did not talk anything touching the accused persons as perpetrators of the crime. They explained their respective roles they played in the examination of the deceased's body and custody of exhibits respectively which is not a fact in issue. PW6 had nothing material than alleging to have interrogated the accused persons and recorded their statements in which they confessed to have murdered the deceased. The statements so recorded were not tendered in evidence as they violated the requirements of section 50 and 51 of the Criminal Procedure Agt,-Cap. . 13 | P a g 20 R.E 2019 and or 2002. His oral evidence is also affected by the rejection of the statements. This is because allowing such evidence would amount to penetrating the evidence already rejected because the same is not independent of the statements but reproduction of the contents in the documents themselves which have already been rejected. In the case of Janta Joseph Kornba, Adam Omary, Seif Omary Mfaume, Cuthbert Mhagama Ifs Republic Crim. Appeal No. 95 of2006 the. Court of Appeal of Tanzania held that when the accused persons are held in police custody for such longer period, it is doubtful that they remain as free agents when they finally make their statements. In the instant case, I also doubt whether the accused persons were free agents when allegedly confessed before PW6 because since their arrest on the the 7th and 8th August, 2018, they remained in the hands of PW6 up to 16/08/2018 when they were finally arraigned in the Committal Court. It is thus doubtful as to when exactly he obtained the alleged confessions. There are other factors to doubt the evidence of PW6 as to whether the accused persons really confessed before him. Ope/'that the 14 | P a g e accused persons themselves have denied such alleged confessions. Two, that it was the first accused who is alleged to have been the first to be arrested and it is him who is alleged to have confessed and named the other two as his companions in the crime. Yet the first accused was the last to be interrogated. His statement was recorded after the two were already interrogated. PW6 cannot therefore argue that the 1st accused named the two other accused persons as by the time he was interrogating them he had no statement of the first accused. The lay assessors unanimously, opined that the accused persons are not guilty of the offence as they found the prosecution case to have not been proved beyond reasonable doubts. They opined for the acquittal of the accused persons. I agree with them. The prosecution's case rested on suspicion due to the alleged existed grudges between the first accused and his deceased father. It also rested on the alleged confessions of the accused persons before PW6 which has been orally adduced as herein above stated. I find that the suspicion by the prosecution witnesses against the accused persons particularly the first accused might reasonably create a grave suspicion against the first accused person. Suspicion h^however, not been accepted in our criminal jurisprudence as sufficient evidence to convict. In the case of Raphael Kinashi V. Republic, Criminal Appeal no.67 of 2002 the Court of Appeal held that suspicion however grave cannot be a substitute for proof beyond reasonable doubt. Likewise, in the other cases of Benedict Ajetu V. Republic (1983) TLR 190 and Hakimu Mfaume V. Republic (1984) TLR 201 the court had ruled that suspicion however strong cannot take the place of proof nor can be sufficient evidence to convict. In that regard, I reject and throw away the suspicions by the prosecution witnesses against the first accused as the same have no any evidential value to warrant the conviction of the first accused as rightly opined by the two lay assessors. Now I turn to scrutinize the tendered exhibits. The Certificate of seizure exhibit Pl was intended to establish that the first accused was found with a Panga allegedly used in the murder. Exhibit Pl under the legal doctrine that the documents must speak by themselves denies the allegation that the first accused was either searched or found with the panga. The same is clear that search was conducted at the home of one Consolata D/0 Kasase the mother of the first accused and it is from that home the Panga was 16 | P a ge obtained. The first accused signed the certificate as a mere witness to the search. In my view Consolata Kasase whose home was searched was an important witness for the prosecution to tell the Court how did that Panga got at her home and whether it is not her own Panga. Failure to call this witness has an effect of adverse inference as herein above stated. And I do hereby draw such inference against the prosecution. Exhibit P4 when taken along with the evidence of PW2 speaks that the police who worked on this matter were not faithful and should not be believed. If we have to trust PW2, then police officers who fabricated evidence against their own witness cannot be trusted to have been worked fairly to the accused persons. The Post Mortem Report exhibit P5 and the sketch map exhibit P6 have no any evidential value to the identifications of the accused persons as assailants to the crime. The panga exhibit P2 and the stick exhibit P3 so alleged to have been weapons used in the commission of the crime were not firmly established that they were really used in the commission of such crime nor they were sufficiently tied to the accused persons. What the prosecution did was just to dump them in evidence thinking that the court in seeing tbe-panga and 17 | P a ge the stick will automatically feel sad to the deceased who is alleged to have been assaulted by both sharp and blunt object. Physical exhibits should not be merely dumped in evidence. They must be sufficiently connected to the accused persons and be sufficiently associated with the alleged crime. That may be done by either oral direct evidence or through scientific examination/scientific evidence. A mere dumping of exhibits without establishing them as herein above stated would have no negative effect to the accused persons, so does in this case. Having said all these I stand together with my lay assessors and accordingly acquit the three accused persons of the offence of murder which they stood charged. I order their immediate release from custody unless held for some other lawful cause. Right of Appeal to the Court of Appeal of Tanzania subject to the relevant governing laws is hereby explained to the parties. It is so ordered. ituma Judge 08/12/2020 18 | P a g e Court. Judgment delivered in the open court in the presence of the accused persons and their advocate Mr. Lous Timoth and Mr. Denis Katambo Kayaga and in the presence of Mr. Robert Magige and M/S Edna Makala learned State Attorneys. Sgd: A. Matuma Judge 08/12/2020 19 | P a ge