20201026 TZHC Dodoma

if. IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 81 OF 2017 REPUBLIC vs BUNDALA TUNGU @ MASUNGA SAMSON LUBINZA @ MBHINDA JUDGEMENT 'l Mansoor J 26 October 2020 :, j:_£\ ,L r Bundala Tungu @ Masunga and Samson Lubinza -@ Mbhinda - ("the accused persons") are charged with the offence of murder of one WILLE NHULA ("the deceased") contrary to the provisions of section 196 and 197 of the Penal Code, Cap 16 of the Laws Revised Edition of 2002. 11Page .fVl I • l•, ·!. As the particulars of the offence would show, the offence was committed on 13TH OCTOBER 2016 at Chingulu -Village, within Chamwino District in Dodoma Region. All accused persons pleaded not guilty to the charge. - During the preliminary hearing held on 5 th December f 2018 I the Sketch Map of the Crime Scene and the Postmortem Examination Report were admitted as exhibits Pl and P2, respectively. According to RPME, exhibit P2, the cause of death was due to -very- severe bleeding resulting _from cut wounds_ on the head and on the neck. To prove their case, prosecution called a total of Four (4) witnesses; Salome Msambili (PWl), Daniel· :Mazengo @ Lubeleje (PW2), D-6414 D/Cpl Paul (PW3), and 1' :Police Officer No. G 8216 D/Cpl Malale (PW4). PWl, Salome Msambili testified before the Court that the ......... late Wille Nhuja was slashed by machetes to death, ·she saw ~- ~ -~/ .\, ' ·~: ·.• tJe body of the deceased cut on the neck, and she also saw blood in her room and all over her clothes. This witness 21Page . TL,.. \_,_ l\/t 'I.. rt hf wever told the Court that she did not see or recognized th~ murderers as it was dark, she was in a panic and she ran away while in fear. She said she came back to the house and saw many people gathered outside the house. These ' people told her that the invaders have killed Wille Nhula. She also told the Court that Wille Nhula was an old woman of 85 years old, and she was living next to her son's house. PW2, Daniel Mazengo Lubeleje is the sungusungu of Huzi Village. He and one Matonya and Mwaluko were heading to their farms on· 14th October ·2016 at around 11.30 a.nL, and they found the two accused persons on the way. He said they suspected the accused persons as the murderers since they -~-- were strangers and they looked very tired. He , also said that t:'· l t i: ' the 2 nd accused Samson, was trying to escape but .::Matonya and Mwaluko managed to run after him and catched him. He said they interrogated them, and the accused persons L,:_ '' confessed to have committed murder at Thame, aµd :C.. i.\....L_.. that l they have killed a woman. ·He denies having tor~T'r:ed :?r beaten the accused persons. He says they voluntarily confessed before him. it.·' 3IPage ·1,. ,I f, . !, ·l: He testified further that after the confession, they ca.ffed the Sungusungu of Thame, who came to Huzi with the police. He ·: ·:·:· said after the accused persons were taken by the police, he did not know what happened thereafter. When he was cross examined, he said he found the accused persons unarmed and with nothing. PW3 was the police officer. He testified that he went to the ! scene I *· of crime on 14.10.2016 with the doctor, he found the deceased already dead, that the deceased had a de'ep cut wound on the head and on the neck. He said he interviewed only one witness namely one Marina Manjache. : '. Marina Manjache did not testify in court and her statement ,was not tendered as evidence. PW3 said he drew the Sketch uMap , :of the Crime Scene which was admitted in Court as Exhibit P2. He read the contents of the Sketch Map. PW3 . told the Court . l. that he also went to arrest the accused persons from l.!J.. Huzi • .. I C. Village. He brought them to Mpwayungu Police Post, then 1,\~; ( , • r the accused persons were moved to Cham.wino Police. 41Page 'i ' t '.1 :.1cr - -- ---=;, },· ' PW4, also the police officer. He said he took over the investigation of the case on 7 th November 2016 after the investigation officer who was handling the case resigned. He ~ 1~ r '{ said ,; f he was assigned the case while already the .accused ·t . , .. persons were arraigned ln court and remanded at. Isanga Prison. He said he recorded the statement of three witnesses who arrested the accused persons at Huzi Village including the statement of PW2. His evidence was that he saw the confession statements / cautioned statements of the ) Viaccused ... : pers();ns _1n the file, who confessed before. the police that they have committecf the- - -murder. - -He __ also said the accused - - - - ~1-~_t - - - ~ persons were taken before the Justice of Peace, but they had t..:!! denied committing the offence before the Justice of Peace. The accused persons gave their own defense. They _ -all denied having been involved 1n the commission li10[ _. the <• offence. The accused persons denied having ever making any ~ cJnfessions to PW2 or to the police officers, and saying they were brutally mistreated by the police officers. They. were beaten and tortured and said the police had made them _sign the papers, but they did not know what they were ; signing. SI Page TJ-. ::i_ ..J • They both said they signed for they feared for their life. They both said, they went to Chifutuke Village looking :for one· Lazaro whom he had taken their cattle to sell to Dar es Salaam, but never returned to Igunga, and so they were tipped by someone called Bala William also a trader who :,·· ·. : moved from Igunga to Lindi that Lazaro is living in Dodoma. They both said they went to Dodoma to look for Lazaro, and they were apprehended by a mob of people. The people rob bed their phones and money and had beaten th~IJl. I Tl)e J. ,.. '',. , 2 nd . accused was beaten on the head, he fell unconscio1-1s, .""'· and was treated at the hospital, and this was evidence 1_i_n_ t~e Plf3 on record. It be noted that the PF3 were not tendered : :.t.'\ iri .•. (. l. court as evidence. When the case was summed up to the assessors, . . they . ') ( unanimously opined that the evidence of the prosecution .:;, I • was . . ). weak, and not enough to enter a conviction against the accused persons. They said the prosecution failed to. prove ~he case b_eyond reasonable doubt. GI Page There is no doubt from the evidence tendered in court, ,. ~;_ ¥ 1n particular the evidence of Pw 1, and the Post - mortem examination Report that gruesome, brutal and inhumane murder of the old woman aged 85 years old had occurred on 13th October, 2016, , for which the accused person's have been charged with. No one has seen the murderers,' and no ·t J s arch of the murderers was done either by the villagers or 1 by the police, however as per the evidence of PW2, the sungusungu from Huzi Village had said that the news11.. spread :. l. ~ all over . the neighboring village that the_ old woman in :i'Thame has been killed by an unknown people .. ·. ~ ., The prosecution relies only on PW2 evidence, tlie sungusungu man who together with his friencfs had suspected the accused persons, and said that he _.,' interrogated them, and they had confessed before liihi. His ,...,. \·V . .- two friends who were with him did not testify in court. The Police (PW3) took up the investigation and he visited the ·- premises occupied by the deceased from where the deceased f.; f bcpdy was found. In the presence of witnesses, he prepareGi 71Page _JL Ex. P-2, rough sketch. He examined the one witness namely ,.,,.__. Merina who was sleeping 1n the veranda 1n the deceased ·• r t house. , 'f ,, , Continuing with the investigation, on receipt of a call from the sungusungu who said they have apprehended the murderers, he went to Huzi Village where the accuse'd were ;;: :~ apprehended and the accused persons were arrested on 14 October, 2016 at around 14.00 hrs.. The Police did not however confirm if the accused persons voluntarily came forward to give a confession statement to . the sungusungu and he never said if the confession was recordedd cin ~is presence. He· -said -2 nd- accused. was. ~ent for treatment as _qe was injured on the head. . .;(:~ (: : I. The defense of the accused persons 1s that they were never ,,.,.._ interrogated by PW2, but they were . enquired by 1differe~t ,.J%.• l· l PJlice ~ ·~ _, Personnel; they were asked to state whether they weri. { .. ,. involved 1n any case' for which they replied they we~e never • i) i • ,- involved 1n the murder , and they went to Ch1futuke·· · Village to look for Lazaro. SI Page It be noted that the only prosecution witnesses who said the accused persons had confessed before him is PW2 however his evidence falls short of a convincing chain, which; is the mandatory requirement insofar as circumstantial evidence 1s concerned and, as PW2 never seen the accused persons at the scene of crime, he has never seen them armed, and could not bring any proof that the accused persons had confessed before him. Under the Evidence Act, the burden lies upon the prosecution to explain as to what has happeneq,, to the ~. , ~:.c 1 d 1ceased, how it happened and why it happened. The;_1 fail~fy- of the prosecution to explain th~ same, an adverse inference should necessarily be drawn in favor of the accused persons . .. !,_ .. The case of the prosecution rests on circumstantial fvidenc'e~ The prosecution relies upon only one significant fa·ct, viz., confession of the accused persons to PW2, a militiarriart. The prosecution has failed to bring circumstances to sh6w the 1 connecting link in the chain. It is for this Court to find out whether the entire evidence forms a complete chain, and 11"' . upon the evaluation of the evidence brought by prosecution, 9IPage the link 1s m1ss1ng, and the . evidence of PW2 1s only of susp1c1on. The motive is the cause or reason that moves the will and ' ;, ' .. ,.,__ induces the action of any human being. What could have --- r f bfen the moving force for the accused to have committed thiij ,:, offence? The prosecution failed to bring any witness or to give a link as to why the accused persons could have a compelling and impulsive emotion for them to have committed this kind of offence to the old woman who they do not know. The prosecution has pathetically failed to prove the motive, which is the vital link in the· chain, which having not been established, the accused persons cannot !lt be ; \ convicted for murder. Usually the offence of murder .LU.... : , IS [L • committed by the person who was impelled by the ~ ~ motive. There was no evidence put forward by the prosecution..l to tell the court as to why the accused persons hereinu would .\ commit the cnme as if the murder was alleged to hay~ be~n t -~ committed for a particular motive, it _is relevant to inquire ' 10 I Page f 1 whether the pattern of the cnme fits 1n with the alleged motive. It 1s trite to point out that the evidence regarding the existence of motive which operates 1n the mind ·•· Of the accused is very often limited and may not be within the reach of others. The motive driving the accused to commit an offence may be known only to him and to no other. However the evidence on record does not suggests any existence of the necessary motive required to commit a cnme, which c9uld have helped the court or which would have convinced - -- - - the court that the accused has in fact, committed ·the crim~.. - . ~I.J. ,. by f f T1l.ere was no evidence whatsoever brought lJ.1 .. prosecution which incriminated the accused persons. The statement given by PW2 to the court 1s on oath which was subjected to cross examination. The evidence of P\V2 however was not direct evidence, he was not at the crime scene, he was in a different village, and apprehended the I ' accused persons herein the second day after the comm1ss1on c:. 11 IP age t.l.ll =- · ..., ., ,,_.,,., of the offence. He only suspected them since they were strangers in the village, and they looked tired. He also said they confessed before him. His only useful part • of his ,_.-;; evidence is that the accused confessed before him, ·'he said they freely consented without force, it was a voluntary confession. His evidence was contradicted by the accused persons, and it lS accordingly considered a safe rule of --',, ... prudence to generally look for corroboration of the sworn :~~ t '; '.i' testimony of witnesses and the court lS not impressed by the testimony of PW2 _especially on the part of free and ".R~unt3/i"Y confession made ·by - the accused _persons - - before him, _and,._ \, l it J..1 cannot be safe to rely on his evidence, without such or other corroboration. So far as corroboration 1s concerned, there ~1s no corroboration from other witnesses to corroborate; . the evidence of Pw2·: Even when the court wants to find the • -1 .--. corroboration coming from subsequent circumstances·· that 1s 1 the statement recorded by the accused persons at th~ ·police as stated by PW 4 that the accused persons had confessed 1n . 'i their respective cautioned statements, at the earliest point of time, the exact version of the evidence i.e. the cautioned ·""'~ statements, were not brought to court as evidence. There are two exceptions laid down in the Evidence__ Act so far, the admissibility of confession made by an accused 1s concerned. The first exception, under Section 26, relates to the confession made by the accused in immediate presence of a Magistrate and the other finds a place under Section 27 i.e. When the confession leads to discovery of facts?Sectidn ____ 2_7_ permits the proof of all ·kinds of · information ~\1/hether contained in a confession or not arid. therefore goes- beyond __ the provisions of Section 25 and 26. The broad ground for not admitting confession ··ia made to 1 Police Officer is to avoid the danger of admitting :J false / -r··,.·r ( ~ induced / compelled confessions, and this rule also 1 -··applie~ , i \ to confession made to an ordinary man other than the i police·. The prosecution failed to convince the court that tlie ' . \'\ - '-. r-' confession made by the accused persons before · PW2 was nbt false induced or compelled confession. The confession made 13IPage to PW2 did not even lead to discovery of either the body of the deceased or the weapon used in the commission.,. of the offence. The confession made to PW2, if any, did not fall in any of the provisions of the Law of the Evidence Act. .I '. Apart from the confession of accused no. 1 and 2 .,·to PW2 which was not proved, no other irtdependent evidence was brought to court to corroborate the confessions of the 1st and 2 nd accused persons, thus the court cannot convict a person L. on a serious offence of murder on suspicion . ... If ,o\~.i . J shall refer to the case of N-atharii"el "Alphon·se--- Mapund, ___ -\ and Benjamin Alphonse Mapunda vs. R (2006) TLR page 395, where the Court of Appeal had held that "in criminal charge suspicion alone however g~ave. 11 ~t may be is not enough to sustain a conviction or the more so, in a serious charge of murder." - - - · - · ~ ·- - - - - - - - - - - - - - - - - - - - - - - 14 I Page \, . This 1s a criminal trial. The burden of proof always lies on the prosecution side and the proof must be . _beyond reasonable doubt. In this case the prosecution failed to prove the involvement or participation of accused persons . in the murder of Wille Nhula and that the case against the '. ·accused persons was also not proved beyond reasonable doubt. The prosecution failed to establish that it was the accused persons or maybe one of them who participated 1n the attack that resulted to the death of the deceased For those _r~asons, I find that there 1s no evidence tu ,\ _ adduced against the Accused persons to prove the ·charge against them. Categorically, and as opined by the Honorable ' .~ Assessors unanimously, the Prosecution evidence IS insufficient to warrant the conviction of the Accused persons for the Offence of Murder Contrary to Sections 196 a:nd _197 of the Penal Code Act Cap 16, Vol IR: E 2002. ) Accordingly, all the Accused persons cannot be convicted of the offence charged, and therefore I, ACQUIT all tlie- -·Two t / !, Accused Persons, you BUNDALA TUNGU @ MASUNGA; arid 15 I Page ....,, SAMSON LUBINZA s/o MBHINDA, of the Offence of f :f IvfURDER that you are all charged with and set y()u frer unless there are other Charges against you all or any of you. • ••••••••••••••••••••••••••••• AMANSOOR (, 26™ OCTOBER 2020 L I :u·-,., .. 16 I Page