republic vs bahati so bubani shiduki 2020 tzhc 1800 30 june 2020

IN THE HIGH COURT OF TANZANIA AT MWANZA ORIGINAL JURISDICTION (Sengerema Registry) CRIMINAL SESSIONS CASE NO. 73 OF 2019 THE REPUBLIC VERSUS BAHATI S/O BUBANI @ SHIDUKI.................................. ACCUSED JUDGMENT 01& 30 / 06/2020 RUMANYIKA, J.: According to information filed on 29/07/2019 by the Director of Public Prosecution, Bahati Bubani @ Shiduki (the accused) stood charged of murder Contrary to Section 196 of the Penal Code Cap 16 R.E. 2002 (the code) that on 15/02/2015 at Busekeseke village within Sengerema district, Mwanza Region the accused murdered Misoji Ibengwe (the deceased). Messrs. Maryasinta Lazaro and Hidaya Haruna learned senior state attorney and caunsel appeared for the Republic and accused respectively. Ms. Elizabeth Zabron and Mr. Ahamada Abdul lady and gentleman assessors sat with me and I enjoyed their assistance. Pw l Adamu Sanya (58) a medical doctor of Sengerema district court stated that he, in ordinary course of business, but following the incident and with respect to dead body of the lady carried out post mortem examination on 27/2/2015 whereby he noticed a mark of hematoma in the stomach led to internal hemorrhage therefore cause of the death (copy of the Post mortem report - exhibit "PI"). Pw2 PF 426 Assistant Inspector Josiah of CID Sengerema stated that following the incident, and as he was duly assigned he, in ordinary course of business took up the matter on 7/3/2015 the deceased having been assaulted by accused and the case was still pending, but the deceased died say 12 days later. Then the accused was charged for murder. Pw3 Paulo Mathias Kabadi (57) a local government leader of Busekeseke village district of Sengerema stated that as the crying elderly lady had reported assaulted by son (the accused) on different parts of the body on 19/10/2014 as they quarreled over shambas, but the accused was at large, they rushed the victim to hospital. That once again on 15/2/2015 the lady similarly reported the accused and he was arrested and arraigned at Bupando Primary court only that shortly the lady was reported dead. That the accused stayed away at Geita but when he came to Sengerema he shared the roof with the deceased mother. Pw4 Specioza Juma (42) a peasant thereof stated that as she was on or about the material 15/2/2015 the local cluster chair now on a meeting, the deceased elderly lady reported to them that she had just been assaulted by accused they rushed her to hospital but shortly the former died that in the beginning the accused was at large but he was apprehended later. Pw5 G. 7940 D/C Anold (35) of the CID Sengerema district police stated that following the incident (the deceased assaulted and injured by accused) now escorted by relatives he, in ordinary course of business recorded the lady's dying declaration on 15/2/2015 and issued her a PF3 (copy of pw5's statement - Exhibit "P2"). That is all. The accused, himself the sole defence witness denied the charges and stated that initially, following claims of shs. 60,000/= against Peter Ndaki, and for that matter were now at police station, he was nevertheless arrested later on charged and arraigned in court for murder. Whereby a police man interviewed and recorded him. That out of seven he was 5th born of the deceased mother but only two of them survived that the deceased only suffered from chronic anemia. That the mother may have fixed him for reasons known to her. That is all. The lay member unanimously opined against the accused that he assaulted deadly the mother and the latter consistently named/reported him. That is all. I thanked and discharged the court assessors. The prosecution case was built on two pieces of evidence essentially; (a) circumstantial evidence and (b) the deceased's dying declaration. With regard to circumstantial, evidence in their testimonies which was not controverted, Pw2, Pw3 and Pw4 were live that having had the elderly deceased mother reported to them beaten up and crying, the deceased named her own son (the accused) as the responsible assailant, and, according to Pw2 the lady died 12 days after the material injuries (as per copy of PF3-Exhibit "P2") also according to copy of the Post Mortem Report on examination (Exhibit "PI"). During preliminary hearing on 10/02/2020 the accused also having admitted that between him and deceased there had been a civil case pending in court. According to Pw3, leave alone the since 2014 pending shamba related dispute and the immediate similar assault of 15/02/2015 which one, against the accused it gave raise to criminal proceedings at Bupando Primary Court but the deceased died before its conclusion. In other words the circumstantial evidence irresistibly pointed to none any other conclusion that that the accused was guilty (see the case of Maulidi Fakihi Mohamed @ Mashauri v. R, Criminal Appeal No.229 of 2004 CA ( unreported). As for the deceased's dying declaration, like the late elderly lady had named the accused to Pw3 and Pw4 immediately but ably on 19/10/2014, and now on 15/02/2015 after she was once again assaulted by him very consistently but just before her death the deceased named and reported the son to Pw5 this time on the very 15/02/2015. It means therefore the evidence wasn't sufficiently challenged that whether written or verbal the deceased's report and or statement of 15/02/2015 it was the one which established the circumstances leading to her death which indeed it connected the accused beyond all reasonable doubts much as the court is satisfied that at the time of reporting the deceased was able and free agent. For some reasons the accused may, or may have not been fixed yes, but two times! On 19/10/2014 and 15/02/2015! What a coincidence! Whereas, I am mindful of the legal principle that in homicide cases proof by prosecution of the accused's motive is immaterial, and without forgetting the cardinal principle that accused had no duty to prove his innocence, I was also persuaded by the accused's evidence that they had since 26/12/2012 amongst them (survivors of the late father) not divided the estate which included a number of heads of cattle and say 200 acres of land, among others for which according to the local government leader (Pw3) the son and deceased mother long time ago they used to quarreling leave alone in his testimonies the accused's concession (without assigning reasons why) that he had had not supported the lonely widow and the biological mother for the previous (6) good years! I entertain no doubts that for a couple of years the son and deceased mother had been in cold blood. The cumulative effects of the circumstantial evidence and the accused's dying declaration will lead to the conclusion that the deceased was murdered by non-other than the accused. Unless on a case to case basis peculiar circumstances were, by way of evidence established, which is not the case here, it is common knowledge, and I think it is because of 9 months plus or minus 14 days of pregnancy, and holly books will exhibit this one, the natural bondage built between them will compels that no mother was expected for whatever reason to fix the sibling. The bondage therefore is two way-traffic so much so that no son or daughter was expected to assault own parents leave alone mere scanty and or remote suspicion. In the upshot the accused is convicted as charged for murder Contrary to Section 196 of the code. rAjWlKA JUDGE 30/06/2020 As there is only one sentence of death provided under the laws of the land, the accused is sentenced to death under Section 197 of the code. It is so ordered. 30/06/2020 Judgment is delivered under my hand and seal of the court in the presence of Ms. L. Meli, State Attorney and the accused and Ms. Hidaya Haruna, advocate this 30/06/2020. ■£V \ :\ S. M. tfuMAN^IKA JUDGE 30/06/2020 6