republic vs wilbert mpyigisa 2020 tzhc 1656 30 july 2020

IN THE HIGH COURT OF TANZANIA AT MAFINGA ORIGINAL JURISDICTION (IRINGA REGISTRY) CRIMINAL SESSION CASE NO. 30 OF 2016 THE REPUBLIC VERSUS WILBERT MPYIGISA 08/7/2020 & 30/7/2020 JUDGMENT MATOGOLO. J. Ihe accused Wilbert Mpyigisa is charged with murder contrary to Section 196 of the Penal Code. It is alleged in the particulars of offence that on 10/04/2015 at Mkangwe village- Mufindi District the accused murdered one Mradi Kinyaga. The accused pleaded not guilty when the charge was read to him. At the hearing, Ms. Edna Mwangulumba and Jackline Nungu learned State Attorneys appeared for the Republic, the accused was represented by Mr. Rwezaula Kaijage learned advocate. In order to prove their case, the prosecution brought three witnesses and tendered in court three documentary exhibits, sketch map of the scene of crime (exhibit PI), Report on postmortem examination (exhibit P2) and Extra-judicial statement of the accused (exhibit P3). The prosecution case is to the following effects, on 10/04/2015, Joas Kinyaga who is the deceased son left from his home at about 8:00 am and went to his shamba to harvest beans. Then he went to the bamboo trees for purpose of drinking bamboo juice at his father's farm. But he found his father lying on the ground struggling seriously injured bleeding from his nose, mouth and head. He asked him as to why he was in that condition. His father told him that he was beaten up by Wilbert accusing him to be a wizard. He raised an alarm to seek assistance while running towards the village. He informed his mother and reported at the village office. He left to the scene together with the Village Executive Officer and found the deceased already dead. He was bleeding from his ears and nose and was beaten on the back of his head. The Village Executive Officer made a call to the police station. The police officers went there together with the medical doctor who examined the deceased body. During cross examination in relation to his statement he wrote at the police PW1 told this court that he has stated other facts not in his statement he wrote at the police station. PW2 Dr. Elias Habias Bonzo told this court that he is the medical officer at Mafinga District Hospital, and that on 10/04/2015 while on his duty he was followed by police officers of Mafinga who told him to accompany with them to the scene where a person was killed. He accompanied with them. At the scene he found a dead body lying by his stomach and had a wound on his head behind which appeared to be caused by heavy object with clotted blood on the head wound, on the ears and on the nose. He also observed brain tissues on the wound. After examining the dead body, PW2 prepared a report (PMR) which he tendered in court. The same was admitted as exhibit P2. PW2 read its contents in court which shows that the cause of death head injury. PW3 Julieth Justine Msiza is the justice of the peace. She told this court that she recorded extra-judicial statement of the accused person. She said the accused told her that he was arrested on 10/04/2015 suspected for beating the deceased. She tendered in court the extra-judicial statement which was admitted as exhibit P3. PW3 read the contents of exhibit P3 in court. In that extra-judicial statement the accused was recorded telling the justice of the peace (PW3) that in June, 2014 his child Gilord passed away. Two weeks after his death the deceased Mradi Kinyaga told his daughter, who is the accused's wife that; " wewe He sehemu kwenye paga/e la mama yako (mama mkwe wangu) nilikukatazaga usitoe chombo pale chini kwenye mafiga umetoa sasa hiyo ndio chanzo cha kifo cha mtoto wakd' After that information he said he was angered. But also the deceased was heard talking the same thing to other people. He was angered that is why on 10/04/2015 he found him near the river where he was taping bamboo juice. But he found him at the fire place, he beaten him once on his head behind and fall down, the accused left. He did not know what happened to him. In his defence the accused stated that he is married to the deceased daughter but he has lived with her for a short period up to the time her father Mradi Kinyaga died. The accused told this court further that on the date of incident he left from his house early in the morning and went somewhere else to one Kihwelo whom they had agreed to buy an Ox chain. He returned back home at around 02:00 pm. On that date he did not come across the deceased. He said he does not know the nature of the deceased death. He did not agree with the evidence of PW1 that he killed the deceased. As to what PW3 told the court, accused said he did not tell her. Accused said although the deceased and himself were living in the same village of Mkangwe but he does not know how deceased was killed. During cross-examination by Ms. Edna Mwangulumba learned State Attorney accused admitted that his son Girold Mpyigisa died. But he does not know the nature of his death. And that he had no any quarrel with the deceased. Although he admitted that he had no quarrel with PW3 but he said what PW3 told the court he did not tell her. Accused denied even to meet with the deceased on the date of incident. Accused denied even the fact that where he went on the date of incident is where Mradi Kinyaga was killed. He said he did not see the 4 |P a g e deceased for a long time before he met his death. He came to know about his death after been arrested. From the evidence received, the fact that Mradi Kinyaga is dead is not in dispute and that according to the report on postmortem examination, he died unnatural death. He had a wound on his head behind caused by heavy object. PW.2 Dr. Elias Habias Bonzo he observed clotted blood on the head wound on which there were brain tissues. He observed also blood on the ears and nose. There is also evidence by Joas Kinyaga, PW.l who found the deceased in his last moment who told PW.l that he was beaten by the accused accusing him to be a wizard. The statement which deceased made to PW.l before he met his death as was correctly submitted by Ms. Edina Mwangulumba learned State Attorney in her final submission is dying declaration which, as it was held by the Court of Appeal of Tanzania in the case of Onael Dauson Macha V Republic, Criminal Appeal No. 214/2007 (unreported), in which it was held:- "dying declaration is the statement made by the deceased person as to the cause o f his death. It is relevant in criminal proceeding and admissible in evidence in case in which the cause o f the death o f that person comes into question". This is a statement written or verbal of relevant facts made by a person, who had died explaining the circumstances of his death. There is no doubt, as it is on record that accused child Gilord passed away and the accused was accusing the deceased to be responsible for the death of Gilord. It is most likely that the accused did beat the deceased to avenge for the death of his child as he was accusing the deceased to be responsible for the death of his child. However that evidence of dying declaration is not the only evidence linking the accused with the committed murder. There is the extra-judicial statement in which the accused implicated himself to the committed offence basing on the fact that in June 2014 his child passed away. Two weeks after his death the deceased Mradi Kinyaga told his daughter Tulia d/o Kinyaga who is the accused wife that he has removed an item "a thigh" under the cooking stones, that was the source of the death of his child. The accused was therefore angered and more so after the deceased was heard talking the same thing to other people in the village. Admittedly this case is based on circumstantial evidence as there is no witness who said he saw the accused while administering the blow to the deceased which caused his death. The accused admitted in his extra­ judicial statement to be responsible for the deceased death. The deceased dying declaration is corroborated by the accused confession to the justice of the peace and also by the evidence of Joas Kinyaga (PW.l). Taking into account such evidence a prima facie evidence was made against the accused. In his defence accused denied any involvement in the commission of the offence. Basically he raised a defence of alibi that on the date of incident he was not at the scene. He set out early in the morning and went to one Kihwelo with whom they have agreed that the later would sell an ox chain to him. Then he returned back home at about 02:00 PM. The accused said on that date he never came across the deceased, and that he does not know the nature of his death. What the accused raised is the 6 |P a g e defence of alibi, but he did not comply with the procedural requirements for raising defence of alibi as provided under section 194 (4) of the CPA. The accused did not issue any notice of his intention to raise defence of alibi, nor did he furnish to the prosecution the particulars of the alibi. Understandably, even if the requirements were not complied with, the alibi is to be considered. Fine, the alibi raised by the accused is not backed up with any evidence. The accused did not bother to even invite the said Kihwelo to support accused presence at his home although he is as a matter of law not bound to prove his alibi but his failure to call a person whom they were together raise suspicion. The accused defence of alibi cannot accorded any weight as it was held in the case of Masudi Amlima Vs Republic [1989] TLR 26. The problem with alibi defence is that the accused denies himself to other defences available for murder such as provocation, the reason is that he has not been to the scene. In Criminal Appeal No. 117 of 1991 A ii Amsi V. The Republic, CAT at Arusha (unreported), at page 5 it was held:- " Ordinarily when an accused person put up an alibi which is demonstrated to be palpable false, and it is established that he was in fact at the place and time the alleged crime was committed, his tusk can be very difficult and his position unenviable. For one thing he will have been proved to be a liar who tried to mislead the court into believing that he was not around so could not perpetrated the alleged crime. For another he will have denied himself the opportunity o f raising other possible defences such as 7 |P a g e provocation or self defence which might be true or which might have at least raised some doubt". (Emphasis supplied). But the accused also alleged that he was angered by the deceased act for killing his child and talking in public the reason for killing his child. What can be gathered from accused defence is that he has not been consistent such that what he has said appears to be an afterthought. At one point he asserted that he was angered by the deceased act of killing his child, but again he put up a defence of alibi. In his final submission, Mr. Kaijage Rwezaura leaned advocate attacked credibility of PW.l who is the deceased son who said he found his father struggling for his soul but instead of shouting to seek assistance, he went to inform and pick other people, when he come back with those people they found deceased already dead. He said PW.l therefore cannot exonerate himself from attacking his own father and then creating a false story trying to incriminate the accused who was in good relation with the deceased. With due respect to the learned counsel, his submission is attractive but with no reality. There is nowhere in point of time the two, that is PW.l and deceased have been in enmity. Neither the learned counsel nor the accused have revealed that. The learned counsel also challenged the ex-tra judicial statement in two fronts, one that PW.3, the justice of the peace did not know what happened to the accused at the police station before he was brought to her and two, the extra judicial statement is not of the accused as the person written there in is Wilbert Mfyagisa and not Wilbert Mpyigisa. He argued that exhibit P.3 is not sufficient itself to justify a conviction against the accused citing the case o f Anyangu & Others V. 8 |P a g e Republic [1968] EACA 239 cited with approval in Mubangizi V. Uganda [2003] EA 164. I also view this argument as baseless and an advocate own invention as the accused never raised this in his exta- judicial statement nor in his defence, what the learned counsel raised on the difference of the accused name in my considered opinion is a slip of the pen and difficult of pronouncing African name especially when one comes from different community. For that case the prosecution case remains unshaken. Now going back to the prosecution case, the act of killing with no doubt has been proved, and the one who killed the deceased is none other than the accused. The only remaining question is whether the killing was actuated with malice aforethought. Usually as it is difficult for an accused to admit that he intended to kill the deceased, malice aforethought can be manifested itself through various ways including the conduct of the accused before during and after the commission of the offence. The type of weapon used, amount of force applied, number of blows inflicted to the deceased and part of the body that blows were directed. It was held so in the case of Moses Michael @ Tall V. R. [1994] TLR195. See also the case of Enock Kapera VR. Criminal Appeal No. 150 of 1994. The present accused although he used a stick to beat the deceased but, as he has himself said, he applied excessive force as the wound was big as even brain tissues get out. Also, he did beat the deceased on the back of his head which is a vulnerable part of human body. The assault was therefore not accidental but it was intended. According to the available evidence, the motive behind was to revenge for killing his child Gilord. With the available evidence of the prosecution, despite the fact that the burden of proof lies on the prosecution, the prosecution has proved the case against the accused beyond reasonable doubt. The honorable assessors who seated with me at the hearing of this case gave unanimous opinion that the accused is guilty of murder. I'm in agreement with them. I therefore find the accused guilty of murder and convict him forthwith. JUDGE 30/07/2020 PREVIOUS RECORDS Ms. Edna Mwanaulumba - State Attorney: My Lord we have no record of the accused previous conviction. However we pray for stiff punishment to him for the accused taking the law in his hand and causing death to another person. That is all. MITIGATIONS Mr. Jackson Chaula - Advocate: My Lord the accused is convicted with murder which has no mitigation we leave it to the court. That is all. 10 | P a g e ALLOCUTUS - Accused: Honourable Judge I pray for mercy. SENTENCE The accused is convicted of Murder, there is only one punishment for Murder which according to section 197 of the Penal Code is death penalty. This court cannot pass sentence other than that provided by law. I therefore pronounce that the accused is sentenced to death. He will be hanged until he die. F. N. O JUDGE 30/07/2020 Right of appeal is fully explained to the accused person. 30/07/2020