republic vs omary juma lameck 2020 tzhc 1771 29 june 2020

IN THE HIGH COURT OF TANZANIA AT GEITA ORIGINAL JURISDICTION CRIMINAL SESSION NO. 25 OF 2016 THE REPUBLIC VERSUS OMARYJUMA LAMECK RULING 19.06.2020 A.Z. MGEYEKWA. J The accused OMARY JUMA LAMECK charged for the murder of one FRANCISCO S/O TENGAMIJA. The alleged incident took place on 27th day of November, 2013 around 03:30 hours at Katoro Village within Geita District and Geita Region. To prove this charge, the prosecution called four witnesses to wit, F 387 SGT Juston, E8353 D/C Athumani, E8779 D/C Edmund, and Doctor, Kilunga Kusanyika Kilunga, PW1, PW2, PW3 and PW4 respectively. The i prosecution also managed to tender 3 exhibits; a Sketch Map (Exhibit PI), The accused Caution Statement (Exhibit P2) and the Postmortem Report (Exhibit P3). Following the closure of the prosecution case on 19th of June, 2020, 1am obliged to determine, in terms of the provisions of section 293(1) of the Criminal Procedure Act, Cap. 20, if the accused, OMARY JUMA LAMECK charged for the murder of one FRANCISCO S/O TENGAMIJA, have a case to answer. On the earlier date when this matter was called for hearing, I heard the submissions of the learned State Attorney for the Republic and defence counsel, each party submitted in length their position regarding this case at hand. The matter is now left to this court to decide if there is evidence on record to have the accused person in the witness box to answer the charge of murder. On behalf of the accused, Mr. Laurent Bugoti submitted that, the evidence from the prosecution has not established a prima fac/e case and thus called me to make a finding that the accused is not guilty in terms of the provisions of section 293 (1) of the Criminal Procedure Act, Cap. 20 [R.E 2019] and acquit the accused person forthwith. For the Republic, Ms. Kisibo, learned State Attorney submitted that the accused has a case to answer in two fold; One the cautioned statement of the accused is admitted by this court and the accused has admitted to having committed the offence as charged. Ms. Kisibo fortified her submission by referring this court to the case of Mabala Masasi Mangwe V. R Criminal Appeal No. 161 that the best evidence is the accused himself. Two, Ms. Kisibo stated that the variance on the date of commission of crime as stated in the charge sheet and in accordance to PW1 evidence is not fatal because it does not go to the root of this case-the she insited that the prosecution has proved the case beyond reasonable doubt. Having heard the parties and also guide by the provision of section 292 of the Criminal Procedure Act, Cap.20 [R.E 2019] my duty is to make assessment of the evidence of the prosecution to find out whether the prosection has established a prema facie case sufficiently to require the accused to enter a defence. In doing so, I am going to examine two main Issues:- 1. Whether death occurred and the death was unnatural. 2. Whether the accused killed the deceased one Fransico Tengamija. Addressing the first issue whether murder occurred and the death was unnatural, I have gone through the evidence on record and found that PW4, the Doctor who examined the deceased body testified that he examined the body of one Fransinco Tengamija and he found a wound on the deceased left chest which was caused by a sharp object. PW4 confirmed that the deceased death was caused by excessive bleeding. Therefore, there is no dispute that the deceased, Fransisco Tengamija died unnatural death. Now, I will determine the issue whether the accused murdered the deceased one Fransico Tengamija. The evidence on record is as follows:- PW1 evidence is to the effect that he received a call from his superior on 26th November, 2013, he was informed that a robbery occured at Katoro Village within Geita District. PW1 headed to the scene of the crime and found the body of the deceased lying on the ground with a wound on his chest. After being informed by perpetrators, he managed to arrest the accused on 28th November, 2013. Upon interrogation, he admitted engaging himself in a robbery, and the accused mentioned other suspects; Sugu, Hamisi and Shabani. PW1 testified that the incident occurred on 26th November, 2013 and in his statement which is in the court file he testified that the incident occurred on 26th November, 2013around 03:00 hours and not on 27th November, 2013. When he was cross-examined, PW1 insisted the same and when he was asked if the charge was defective since it stated that the crime occurred on 27th November, 2013 he had no any clear answer. During re-examination PW1 stated that a day starts to count at 00:00 PM. The records reveals that the dates shown in the charge sheet and the evidence of PW1 are at variance, the charge sheet shows that the offence was committed on 27th November, 2013 03:30 hours, in his testimony PW1 testified that the crime occurred on 26th November, 2013 00:00 hours. I am in accord with Mr. Bugoti, learned counsel for the accused that the evidence of PW1 was at variance with the charg sheet. Otherwise, it means that the charge sheet which is laid before the accused is defective. Since the prosecution has not amended the charge sheet I have no other choice than to disregard PW1 evidence, his evidence is shakable the same cannot be left to stand. In record, PW2, E8353 D/C Athumani testifies that on 27th November, 2013 around 03.00 hours, he and other Police Officers went to the scene of the crime at Katoro where they found the body of the deceased and he 5 prepared a sketch map which he was able to identify before the court and it was tendered and admitted as Exhibit PI. He went on to testify that, his duty was to draw a sketch map only, he did not know who was responsible for the said murder and when the accused was arrested. PW1 testified that the deceased body was lying inside the house and PW2, the person who prepared the sketch map testified that the body was lying outside the house. The prosecution could not clear the contradiction. Therefore, the question whether the deceased was killed inside his house or outside his house is left without any answer. PW3, E8779 D/C Edmund testifies that on 29th November, 2013 working at Katoro Police Station he was assigned to interview and write a statement of the accused Omary Juma who was arrested on 28th November, 2013 as a suspect of murder. He testifies that during the interview the accused said that he was involved in the murder of Fransisco Tengamila. After the scrutiny by both sides, the caution statement was admitted and marked as Exhibit P2. The prosecution side has insisted and based its submission on the cautioned statement that the best evidence is of the accused himself. Reading through the said cautioned statement I have found that the accused person did not confess killing one Fransico Tebgamila that means the cautioned statement is irrelevant to the offence at hand because the accused admitted to having committed the crime of robbery, not murder. I have to remind both parties that this is a murder case, therefore the accused was required to confess to having killed the deceased or it was upon the prosecution to prove that the accused is the one who murdered the deceased but that was not the done. Additionally, reading through the said cautioned statement the accused was ready to assist the Police Officers to arrest the suspect of murder but the Police Officer disregarded the accused offer. I am asking myself whether the evidence of the accused is enough to render this court to find that the accused has a case to answer? The answer is no. Reading the prosecution evidence it is clear that the evidence on record is based on suspicion. In the case of Ntinda v R Criminal Appeal No. 17 of 1991 (unreported) the court held that:- "There was, we agree a lot os suspicion against the appellant as a person who killed the deceased bu, us the trial judge will no doubt agree with us on reflection, suspicion no matter how grave cannot be the basis o f a conviction in a criminal charge/'[Emphasise added]. Having observed so and as demeostrated above, in terms of section 293 (1) of the Criminal Procedure Act, Cap. 20 [R.E 2019], I am content that the accused, OMARY JUMA LAMECK has no case to answer against the charges levied against him. He is therefore not guilty of the murder of FRANSISCO S/O TENGAMIJA as he stands charged and thus he is acquitted forthwith. Oder accordingly. DATED at GEITA on this date 29th day of June,2020 JUDGE 29.06.2020 Ruling delivered on 29th day of June, 2020 in the presence of Ms. Janeth Kisibo, learned State Attorney for the Republic and Mr. Laurent Bugoti, learned counsel for the accused. JUDGE 29.06.2020 9