20201023 TZHC Dodoma1

· ...•.. "',."1<:=~ ·'' -: IN THE HIGH COURT OF TANZANIA AT DODOMA DODOMA REGISTRY CRIMINAL SESSION CASE NO. 59 OF 2017{;} . 0 THE REPUBLIC VERSUS . MSAFIRI BENJAMIN JUDGEMENT DATE OF JUDGEMENT: 23/10/2020 '"ii,,. MANSOOR,l. i:t ,r; • ,,t The accused person herein one MSAFIRI s/o BENJAMIN stands charged with the offence of : Murder contrary to section 196 and 197 of the Penal Code [CAP 16 R. E. 2002]. The particulars of the charge are that .on 15TH August 2016 at Nzali Village within Chamwino District in Dodoma Region the accused person murdered one Mariam Malima or Mariam Madeje "the deceased". Following the 1 ,. incident, the accused person was arraigned 1n court where he denied the charge hence this trial. While the prosecution was conducted by Ms. Lenah Magoma and Ms. Magili learned State Attorneys, . Msafiri :¥ Benjamin, the accused in his defense enjoyed the services of Mr. Isaiah Edward Nchimbi, learned advocate. The facts of the case in a nutshell as presented: by the p~osecution are that Msafiri Benjamin, herein after· referred ~7T.. - , . t ··I.·.\ to as "Msafiri" is the first child of the deceased. The deceased had two children, the first was Msafiri and the second one is Elizabeth Chilendu., Elizabeth Chilendu got married in ' 20 i 6 and moved to live with her husband, a place not far frofn: lMe deceased house. Msafiri was living with his motlier the deceased. In 2014, Msafiri got married to one Janeth Zakaria but they separated in July 2015. Msafiri and. Janet1?,, w~~e cohabiting with the deceased. After Msafiri separate~ with Janeth, .. he wanted to marry . Milka Chidangac1. and ulJe was asking his mother to pay the. dowry to the parents ,of l\tlilka ,.J, ' . . . .... Chidangaa. The deceased was hesitant to pay the dowry .~ . : ' for . . the second marriage of Msafiri but Msafiri was insisting. !.l. On , the date of the incident i.e. on 15th August 2016 atLlaro~1i1;d . , .l 2 ; : j• 17.00 hrs. Msafiri asked his mother if she would pay the dowry to Milka Chidangaa parents, the deceased asked Msafiri not to disturb her. Msafiri got angry, he grabbed a pqunding stick "mchi" and banged her on the shoulder. The t' deceased ran to the house, Msafiri followed her into .· the house, he again banged her twice on the head, and}\bn the ' ' right ear. The deceased fell on the floor while bleeding from the nose. Seeing this Msafiri grabbed her bag and went to his sister Elizabeth Chilendu. He told her that "nenda nyµmb~i j) ~ I • ,t • - ' l. .t ·. kuna tukio nimefanya" . . . . that she should go horn~. to s~_e what he has done. He also asked Elizabeth Chilendu <_l I.. to forgive him for what he has done. ,.., j'.-; •~~ l \,. : ·. °' ; i-- The house of the deceased had two huts, one small" house was roofed by grass "tembe", and another one which 1s the ' 1 main house was iron roofed "the main house." Th~ tern.be : )i: - h•; ._. house was used as a kitchen, and the main house wliich · Ha'.d two rooms and a sitting was a dwelling house. Msafi:ri: had \a ·:. ·· l house near his mother's mrun house. Msafiri 'used ·to work for his mother. He was grazing the cows belonging-:nto his mother. He was also farming with his mother. They were 3 f , having a very cordial and peaceful relationship with his mother throughout their lives. A few minutes after Msafiri told Elizabeth Chilendu to go to·.· their mother's house to see what he has done, Elizabeth · Chilendu went to his mother's house, at their mother~s house - . : . she saw one Jobu Lubasho sitting outside the tembe;: house, ·,' and she asked him about her mother . Jobu Lubasho did n·ot know where the deceased was as he did not find her outside f I .i j I ' ~ ! when he arrived. Elizabeth Chilendu decided · to open the door of the main house, and saw her mother lying down on "" . ~ t4-e floor. .She was lying on the pool of blood and hadu}V'ound§ ••.- ortt her head, on the right ear and on the shoulder. Elizabeth~ C, ~:: . ~- t Chilendu cried aloud for help, and Jobu Lubasho ente;red tl?-e ,:_, • , I ·~ 1 ',, house . and saw the body of the deceased lying on the floor. Jobu Lubasho also shouted for help and he called the, Village : t,. .. Chairman. Many people gathered at the scene including \ ~qe ,., ' ' ' father of the deceased one Benjamin Segu. The,, Village leaders phoned the police at Chamwino. The :, polic~:-LV.,arrived -- ~ and took the body of the deceased to Chamwino Hospital. " \!_ ·.. .,: ·. ~ The body was examined by the Doctor, and the cause of i death was internal bleeding. 4 The prosecution claims that Msafiri Benjamin the accused herein murdered the deceased. To prove that Msafiri Benjamin, the accused had committed the heinous crime of brutally murdering his mother, the prosecution examined Seven (7) witnesses. They tendered Four Exhibits. PWl was Elizabeth Chilendu, the deceased daught~r, and · II tHe f accused sister; her testimony is that on 2016, her brother Msafiri went to her house. Msafiri told her to go to their mother's house to see what he has dorte. She '·. 'l went to their mother's house and saw the body of her ·mother I~' j ., : lying down on the floor. She was wounded on the head, on the shoulder and on the right ear. When she· ·arrived<; at her mother's house, she saw one Jobu Lubasho sitting outside the tembe house waiting for the deceased. PW2 was Jobu Lubasho, a friend of the deceased, and the head of militia in the village. He was at the· house"1cof the . )r . , i- deceased when Elizabeth Ch1lendu opened the door · of tlie -. deceased house and saw the deceased lying down dead. He ·1 .:; Jl . Ji al~ o said he went to the deceased house as he ·had an ·t :, , . i . · .( I appointment to see the deceased at 17.00 hrs. He said· they met in the morning of the fateful day and the deceased had 5 asked him to see her at 17.00 hrs. of that day, and when he went there he found the cooking items (the tomatoes, onions ') fc \' arid a knife) outside the tembe house and a torch, the torch was on and so he decided to wait outside the tembe as he thought the deceased might have gone to a nearby place to fetch for fire. Two minutes later Elizabeth Chilend1.( found him there. What followed thereafter is as what is stated by PWl. PW3 was Mary Chitama, the Doctor who examined thk boa.y of the deceased. Her report, the Postmortem Examination h·· ,. Report was received as Exhibit Pl, and she stated that the deceased had wounds on the head, on the right shoulder and -·· . ~ .1 ~ on the right ear, and it appeared to her that the d~ceased was beaten by a heavy blunt object causing severe uinternhl bleeding. She said the cause of the deceased death is· severe internal bleeding. 1 PW4 was Benjamin Segu, the father of the deceased. He silid he saw the body of his deceased daughter, but he does not know who murdered his daughter. He said the 11quattel between Msafiri Benjamin, and his mother was ldhlrea'.dy I resolved as they had already paid the dowry to ·' l Milka's L '., 6 parents. Mzee Benjamin Segu does not want to believe that his grandson Msafiri who is of good character could do such a heinous act of murdering his own mother. He said, if at all Msafiri has done that he was acting under the influence of the Satan "shetani." PWS was Timothy Joseph Madeje, the cousin brother/ of the deceased. He also did not see who has murdered the deceased but insisted that since Elizabeth told him that it was the accused who confessed to her, then he believes that accused murdered · his mother. He also .: ,f" r. ... -: discovered the pounding stick covered with blood. The Stick was hidden on the roof of the tembe. He said he hand.ed over the stick to the police of Chamwino. But the pounding stick which is the weapon used in pounding the deceased to !. death was not brought to Court as evidence. PW6 was Hamisi Haji Makala. He 1s the Justice of Peace~ and ·•\ 'l' .. '·' a Primary Court Magistrate. He said the accused confess'ed before him that he had murdered his mother as his :.'mother was refusing to pay the dowry to marry his beloved l (woman . l i( namely Milka. PW6 tendered the confession · statement, extra judicial statement and this was admitted as Exhibit P2'. 7 ; j,' i ... The contents of this statement were read over to the accused, and he admitted having recorded this statement freely and voluntarily before the Justice of Peace. PW7 was the Police Officer with No. F6836, namely Detective ' l J crrporal Pilimo. He is the investigation officer of ·this case<,. and said he arrived at the cnme scene on the date of the incident at 22.00 hrs. and interviewed Elizabeth . Chilenqu who told him that Msafiri went to her and asked her to go home to see what he has done, and then Elizabeth went CC• i home and saw her mother beaten to death. · He s'aid the suspect was only Msafiri Benjamin, the accused herein. He also said, him, and the other police took the .. body, to the hospital for examination. The body was examined by ... Pr !.!,.:, M~ .. )'. ~ Chi tama in his presence and in the presence of ~lizabeth , ..~ ., Li ..1. •,. Chilendu. (~ •, , ..... _' ::: ~ PW7 then said he went back to the cnme scene '"on 16th August, 2016 at around 11.00 a.m, and as directed· by PWt 1 f . ,;: . :, ' : (' Mzee Benjamin Segu, he drew the sketch map of tHe crime scene, and this was received as evidence as Exhibit ·p3_ The 1 I I contents of the map were read over aloud to the .,accus~d, 8 't, '1.1~ "-", f; \ ;. 11-. 11 1 l , and he said there is a mistake of the location of his house ~ but otherwise the map is correct. PW7 continued to testify that on 17th August 2016, the villagers "wananchi" had arrested Msafiri Benjamin and took him to police Chamwino. He said he had received:: Msaf1ri Benjamin at around 8.30 a.m. at Police Chamwino, and later he took him to the interviewing room where he reco~ded his statement. He started recording his statement at around 10.21 in the morning and he finished recording it at around 10.57 a.m. PW7 said the accused Msafiri Benjamin confessed to have murdered his mother. PW7 tenqcffed Lf}-~ .. ,,. . :-.. .. e~hibit the cautioned statement of the accused. The accu~~9 --~7- J. cJO:test~d it sa;ing alth.~ugh he sig~ed --the statement,. but th~ _.:.. contents therein are not his words. The accused said he was .i..;;l.\ ; ( ; never interviewed by PW7, he was never taken i ·,.to the : I'. interview room, and that PW7 forced him to sign the statement after slapping him, and he also threatened him '' J that if he doesn't sign the statement he will be tortured, > -. and l. thus h.e. admitted to have signed the cautioned statements but under torture and threat. Following the retraction, ;,:;l tn.e Court conducted an enquiry, and after the enquiries J) ... the ll.l~ 9 l ._ Li. ... .l! . court found that the statement was recoded freely and voluntarily, and hence admitted it as Exhibit P4. The contents of the cautioned statement were read over to the accused in Kiswahili, he denied having recorded it, hence the statement was retracted. After the case for the prosecution was closed, the accused :: gave his own defense under oath, and he did not have any :i ? otper witness or exhibit to tender. The accused in his defens~ . (' 1\ . ,"), denied having · committed the offence. He said he· never wanted to marry Milka as alleged by prosecution and he never had a fight or quarrel with his mother. He said on the date of the incident he had left to Bembe Village ,::and he returned to Nzali Village in the evening. He also said in the morning of 16th August 2016 he told his mother that.:...i. he is going to Makalavati Area to look for work, this means.1::1·that .. 'on ._.. { 16th August 2016, his mother was still alive. He said at Mkalavati he found work from a certain Oldman; he could \.. '- "· l not remember the name of the old man. He said ~ihe. was i l .. making bricks. He also said on 17th August 2016 some people who were in bicycles and motorcycles - had arrested .:.t .. " ~ him alleging that he has killed his mother, and they tpok him . ...I • 10 -- -- -- - -- - - ~ - - - ""' --~-=o----- - - ; to Police Chamwino. He said he was shocked to hear that his mother is dead and wanted to·· be left free as he is innocent ·· and demanded to go and see his mother's grave. He also said ·{ hJ is still grieving the death of his mother. When the case on both sides was closed, the evidencyjfor the . prosecution and defense was summed up to the ~ssessc>rs who unanimously opined that the accused has committed the murder and he had ill motive. The accused has been charged under Section 196 of the Penal Code, for having caused the death of his mother, :ii::. ;.:i . . Mariam Madeje or Mariam Malima, by banging her· several ________ _times _ with a poundin.g stic~'----~_J1~vy __ blunt object. ___T_!i_e_ Murder was 1n the deceased house 1n Nzali Village 1n Chamwino District 1n Dodoma Region. There can,_ r.,' _ , be·· ·no I i i"\ . doubt in this case that the accused and his mother)rMarillih t t ' Madeje were on good terms thus the motive for the murder is not clear. P. W. 4, Benjamin Segu, the grandfather. . of the ·' :'- ,, l.L•. accused, who gave evidence for the prosecution, . has ..!-,, stat~d !Cl 1, . • . . in his evidence that there used to be no quarrels between tqe accused and the deceased as the deceased was de_p;iandi~g ~-· ~ .... l ' .. . payment of the dowry to marry Milka but the dovvry .JI.,:. was j. ,. ..; 11 already paid, and there was no more quarrels or reasons to quarrel. The accused however disputes the fact that he wanted to marry Milka after he separated with his first wife Janeth. It is also an undisputed fact that the accused went)· to his sister Elizabeth Chilendu and informed her that he h~s done something at home, and she should go and see what he has done. Although the Appellant disputed telling her sister this, ,.. •. I the sister Elizabeth Chilendu who testified as PW 1 d6'nfirmed 1··· . : before the Court that the accused told her this, and then after he told her this he disappeared from the Village. The accused said Elizabeth Chilendu who gave evidence as PW 1 is not her sister, but PW4 , the grandfather of the accused proved 1n his testimony that PW 1 was Elizabeth Ch}lendu, the daughter of the deceased, she is his granddaughter born • 1·. by the deceased. The deceased was PW4 daughter , and l.,., . . the I' ' l accused also is his grandson. Thus, the possibility that PWl was planted by prosecution to impersonate Elizabeth ...:. '~ Chilendu, the sister of the accused 1s ruled out. The Jevidence ,_,1 ~ of P. W. 1 in. the Sessions Court is the only .evidence that connects the accused with the murder of his mother. ~--l. The ....... ·. 12 ,· ' evidence of PW 1 was supported by the judicial confession made by the accused before the Justice of Peace. The l' confession was received by the Court with no objection from the accused and received as Exhibit P3. The confession had been recorded from the accused. On the confession the ·/ .:;- '· : accused has made a confession of the offence of murder. The ~-- ~ pfosecution evidently has filed the said judicial confession:; as the accused has made the admission of his having committed the offence in this ~ase. The Justice of Peace J; was .i . examined as PW6 and he was also cross examinedciby the accused. counsel and proved the said judicial confession. The prosecution have adduced evidence about the said. :,, .l ,.,judicial . • ,., confession, ·There was also. the retracted ~c.autioned Lil"· ').1l(J. . statement recorded by the accused before the Police, and ' ' although the statement was retracted, the statement, -< ;I found . corroboration from the evidence of PW 1, and also in the judicial confession. The cautioned statement .requir~d , ~~-;, l \ '. . corroboration, and it was indeed corroborated by the ·' ' evidence of P. W. accused therefore 1 and by the judicial confession.. , the can be . convicted of murder, ion .,. ... t ) - . ;.a . ~( confession, retracted at the trial, corroborated by his own 13 . judicial confession recorded by the Justice of Peace. The t . r Jy.dicial confession or the Extra Judicial Statement was not retracted at the trial, and so it has been used to corroborate a retracted cautioned statement. Evidently, from the testimonies of PWl, which was corroborated by the :•j .:.-\ ti confessions made by the accused before the Justice bf Peace ·. and the Police, the Court is satisfied beyond any doubt that it was the accused who has murdered his own mother. In the present case there are several circumstance~\·!'. whi~h . \, r: ·····: ; clearly. prove the guilt of the accused beyond reasonable . .• ., . j doubt. It should be noted that the accused and his ·mother, the deceased were the only inmates of the house, U{~re wk.s 1~ I~ ' ) : ' nobody else cohabiting with them. In fact, the evidence of· ·P. ~s. 1, 2, 4 and 5 on this aspect has not been d.i~puted:;: There is no suggestion that there was anyone else' · 'in the house. There is the conduct of the accused in reporting what he has done to his sister , the discovery of the pounding stick stained with blood at the scene, though its origin could .. j ::. ~ pot be traced as no DNA was carried out but there l'. was...,_; ia report from the Doctor (PW3) that the deceased was. LC~hit . on • ;_, .:. the head by a heavy blunt object which caused her death. 14 There is also no conceivable reason why all the prosecution witnesses who all are the accused close and blood relatives one being the sister and another the grandfather could have planted a false case against the accused. There is really no reason to disbelieve the evidence of P. Ws. 1, and PW4 about the death of the deceased. Also, .there is no reason to disbelieve the evidence of PW6, the · Primary Court Magistrate and the Justice of Peace about the extra- :, judicial confession made by the accused. Int - fact, .i1t- ririg~ ,~ # l!j., ,f'. }'~ 1~. ,· I/~'.' .: true. All the witnesses except the Doctor, the Justice of -peace 1 \1 ,,. and the Police belong to the community of the accused and they are residents of the same locality. Noth{ng - has --been suggested to any of these witnesses to show why they should . , l . .' '. : come forward and depose falsely against the accuse~. L.. ,. The ~ reason for P. Ws. 1, 2 and 4 and PWS giving evidence about t ' . ' the incriminating circumstances against the accused.· , :. l_. is f9r ' c . furtherance of justice although, as P. W. 1 is his sisterI. j P. W. 4 is his grandfather and they chose for justice for their deceased. I have no doubt that the version of P. W. 11 really . ., L·S.~- '' '; ~ . represents the truth, as it is consistent with the accu~~d :°~ ·~ confession before the Justice of Peace. In fact, there . 1s i ! 15 \'.' '··'• nothing to show that PW 1 gave any different version·· during • the investigation in this case. I am fully satisfied about the truth of the version 1n Ex, P. 3, the confession or the Extra ~~l· ~· · Judicial ,. Statement and Exhibit P4, the Cautioned . . •, r~,' :ff :j it ·? ~1 Statement ?. and these confessions by themselves are-.•. .,,. sufficient, along with other circumstantial pieces of evidenc_e, · (~\-' .. ·, to find the accused guilty. It could not be said that this · evidence and other pieces of circumstantial evidence cannot corroborate the retracted cautioned statement by ·I the appellant. The death of the deceased \Vas not caused by ail.§ othbr incident but by being beaten by a heavy blunt object ··on the head thereby causing internal bleeding. Evid~ntly' P:~:·,w.·:Jj went there at the earliest of the occurrence, wh'~n die -accused had just left_afte:r- e_o_n_(es_siQg ___to _ h~r - tJ:!:~t _h~~ h'.as done -~l ' j ·. -~ mptive of the murder. No one knew the motive of the ~/inurd~'ft except the accused himself who confessed 1n his extra judicial confession. It is quite apparent, the confession .l_'y' he . C'..' f has made before the Justice of Peace and before the L· _ Police ~LL~. ·t ) .. .: that he had beaten his mother to death by a pound~ng _stick 16 ~-·;:;_1, ;:·.: j;~ ,.... ,. ·1":.·._ J::,:·1 .. because she was refusing to pay the dowry to :' i'.Milka's . parents . This shows that the accused was seriously ill- disposed towards his mother. The ill motive •:.-,::_·•··,: !~: :::: : established using the heavy stick in beating her and the. ,.~ . number of blows. He also had ill motive as he. had b~~ten or • pqunded her mother on the head, ' :i/ an action·. whicii~;;!:. ·. ; )1/. shoi! ,: . - ·/,_\'-;_ . ::.:_"/ ' _:'.· that he intended to kill her. He knew that pounding;ther on f :'.:.~;;; :-.:;., ·. . . ·Y:,,~•:'.·-.-.: . , ;;,,,. the head with a heavy stick would kill her. Thus, the motive to kill her mother was also satisfactorily prov½d. \' j byl..'1 :his :·,. • own. ~ ,_(.}.l,. "' !', !: ~ 'F ,, confession, the weapon used and the number of blows. _··l;_;~)(};ly 1.. 1.,. ., ·ii. J. , :·{1 ~- ·- : -:~.;;: ' . ·'i:(1' • !. Under the premises, and the evidence on record,- I JOln 'I'" . . hands with the opinion of the assessors. The prosecutibn has proved the case beyond reasonable doubt. find the accused person MSAFIRI BENJAMIN · g(lihy ,,;bf committing the offence of murder, and he is hereby 'convicted •;, ' . : ~-~(!'.· r·· .;,:. of the offence of murder contrary to section 196 and) 197 ' of .,: ·. the Penal Code, Cap 16 R: E 2002. f DATE ~ ,. ·.+. ,·' :ld.:, . ( ' ··'· 17 i1!(<, ,;:~in1 ~~ /r .: ,· le(~ --- ·1:. -·-