republic vs jalilu so mgoba 2020 tzhc 1663 30 july 2020

IN THE HIGH COURT OF TANZANIA AT MAFINGA ORIGINAL JURISDICTION (IRINGA REGISTRY) CRIMINAL SESSION CASE NO. 88 OF 2016 THE REPUBLIC VERSUS JALILU S/O MGOBA 23/7/2020 & 30/7/2020 JUDGMENT MATOGOLO. J. The accused person in this case, Jalilu Mgoba stands charged with the offence of Murder contrary to section 196 of the Penal Code [Cap 16 R.E. 2002]. It was alleged in the particulars of the offence that on 15th day of February, 2016 at Ikangamwani village within Mufindi District Iringa Region, the accused did murder one Zuhura D/O Msusa Mkimbilile. Page 1 of 17 The accused pleaded not guilty to the charge. The prosecution side paraded four witnesses for purpose of proving their case against the accused. At the hearing of this case Ms. Alice Thomas State Attorney appeared for the Republic while the accused enjoyed the service of Mr. Jackson Chaula learned advocate. The prosecution case is to the following effect; PW1, Omary Juma Uganga who is the deceased son in 2016 he was living at Ikangamwani village, the deceased and the accused were also living in the same village. He told the court that in 2016 he was the hamlet assistant chairman. On 15/02/2016 during the morning time he left home to his shamba, on his way back home he met with Jalilu Mgoba, accused coming from his home and stopped him. He was told to go with him at their home to see his mother whom he had killed her. He informed this court that upon arriving at the scene they found the deceased body lying on the ground. He testified further that the deceased body was inside the house which has two rooms but she was using the sitting room as a kitchen. He said he raised an alarm by ringing the bell, the villagers came, they took Page 2 of 17 the accused to the village office for his safety. He further testified that he traced the village chairman who made a call to the police station. The police came and arrested the accused. He did not ask the accused as to why he killed his grandmother. He said he did not know any quarrel between accused and his grandmother (deceased). On her part Hawa d/o Uganga (PW2), who is a resident of Ikangamwani village Malangali, stated that she is the aunt of the accused born by her sister. She testified to the effect that on 15/02/2016 during the morning time she was coming from the shop, she met with the accused who was together with PW.l. The accused told her that he has killed his grandmother. She remained there while accused and PW.l going to the scene. But she was later picked by PW.l who is her brother. She found the deceased lying on the ground with a cut wound on her neck. Accused did not tell as to why he killed the deceased. She said she was told by Jalilu that he was invaded by some people (villagers) during the night time accusing him to be a witch. She said, they did not see any weapon at the scene used by the accused to attack the deceased. Page 3 of 17 PW2 while being cross-examined she stated that the accused was living with his grandmother for the whole of his life. And that Jalilu and his grandmother were living peacefully. She said it was the first time she heard Jalilu talking about witchcraft on that date, and the accused was in a normal mood. PW.3 H.3405 D/Constable Paul, testified that he is a police officer stationed at Mafinga Police station, on 15/2/206 he was at Mafinga Police station, he was informed by the OCCID that there was an incident occurred at Ikangamwani village. He was required to go there together with his leaders. Upon arriving at the scene they met with village leaders who told them the way the incident occurred, and they were shown the accused who was already arrested. They were told that the deceased was called Zuhura Msusa. PW3 testified further that after that they drew a sketch map and the Medical doctor conducted postmortem examination on the deceased body. PW3 went on testifying that according to the village leaders the deceased was killed after been cut on her neck using the machete which he had hidden in the maize farm four paces from the scene. Page 4 of 17 They rearrested the accused and told him to show them a machete, he show them. PW3 went on testifying that they got statement from the village leaders that the deceased was killed due to witchcraft belief. After that they returned to Mafinga. PW.3 was assigned to record accused cautioned statement. On 16/02/2016 at 02:00 pm he started to interview the accused, he informed this court that they delayed to return from Ikangamwani on 15/02/2016, the following morning while preparing to interview the accused they received information that at Ihalimba village there was a suspect who was locked in the village office and people were threatening to kill him. They were assigned to go to rescue the situation. PW3 testified that he recorded accused person cautioned statement. After return from Ihalimba he started to interview the accused. PW3 testified that before interviewing the accused he introduced himself and he informed him of his right for his relative or advocate to be present but the accused opted to give statement while alone. PW3 testified further that after he has recorded his statement he gave the accused the statement which he read and then signed by affixing his thumb. PW3 identified the cautioned statement after been shown, he tendered the same which was Page 5 of 17 admitted into evidence as exhibit "P2" . He also tendered in court the machete which was admitted into as exhibit "P3". Upon being cross-examined, PW3 testified that in the cautioned statement accused told him that he had quarrels with the deceased. The accused informed him that the villagers were accusing his grandmother for witchcraft the act which was embarrassing him that is why he decided to kill her to get rid of those embarrassments. He testified further that according to the accused statement after he has asked his grandmother on allegations of witchcraft she admitted that she was a witch. PW3 stated further that the accused came to know that the villagers were invading him due to his grandmother habit of witchcraft. That is why he decided to kill her so that he could live safe. PW3 went on stating that in his statement accused said that he killed his grandmother after being angered by the deceased behaviors of witchcraft and embarrassment he was receiving from the villagers. PW3 said according the accused, the machete which he used was inside that house. PW4 Zena Abdul Suleiman informed this court that she is a medical doctor, on 15/02/2016 she was at Mafinga hospital continuing with her daily duties. At about 12:30 to 1:00 pm police Page 6 of 17 officers went at the hospital and told her that there was a deceased body to be examined. At about 5:00 to 5:30 pm they left to Ikangamwani village to conduct postmortem examination. She testified further that they entered inside the house and she saw the deceased body lying on the ground in blood. She said the deceased was a female and had a wound behind on the neck. She observed the wound, it was caused by sharp object and there was blood on the ground. She said after she has completed postmortem examination she was of the opinion that the cause of death was excessive bleeding as there was loss of much blood. PW.4 tendered in court the postmortem examination report which was admitted in evidence as exhibit "P4". When cross-examined, PW4 testified that she conducted postmortem on 15/02/2016. The wound was of length of 6 to 7 cm by estimation but she did not measure. The accused defence is to the effect that he is a peasant and was doing his activities at Ikangamwani village. He lived at Ikangamwani for more than 30 years. He was living with his grandmother who is the mother of his own mother. And that on 15/02/2016, he quelled with his grandmother. The quarrel was that the deceased young sister one Kudra Kapoma was accusing Page 7 of 17 her to be a witch. He testified further that there was exchange of words but previously they were living happily. He stated that later the villagers were accusing him and saying his grandmother is a witch, he decided to ask her if it is true she is a witch as people were troubling him. The informed the court that the deceased replied by asking him if he know where was his mother. His mother is dead that is why he became angered and beaten her. He talked to her on the allegation of witchcraft against her which were been raised by villagers. Accused testified that the deceased agreed and told him that, even his mother disappeared because of that witchcraft. After she has agreed he was angered, he had a machete nearby he picked it and cut her. Accused prayed to this court to have mercy on him and forgive him for what he did. Upon being cross-examined, accused told this court that what angered him is the act of his grandmother telling him that she even killed his mother. But before cut his grandmother in the previous night he was invaded by people whom he did not identify them, at that time his grandmother slept to her young sister. Page 8 of 17 From the foregoing evidence, the fact that Zuhura d/o Msusa Mkimbilile was killed is not in dispute. What is at stake is who killed her and if did so by malice aforethought. Starting with the first question as to who killed her, there is evidence by PW1 Omary Juma Uganga to the effect that on 15/02/2016 during the morning time he met with the accused who stopped him and he told to go with him at home and see his mother whom he killed. After arriving at the scene he found a deceased body lying on the ground, PW1 testimony was corroborated with that of PW2 Hawa Uganga who like PW.l on 15/02/2016 was informed by the accused that he has killed his grandmother. PW.2 informed this court the accused told her that he has killed his grandmother "Amemmaliza". Also there is evidence of PW3 D/Constable Paul, who recorded accused cautioned statement, in which accused confessed to kill his grandmother after being angered by allegations by villagers that his grandmother is a witch and according to PW3 accused confessed to kill his grandmother by cutting her on her neck using a machete. There is also evidence of PW4 Zena Abdul Suleiman, the medical doctor who conducted postmortem examination, her Page 9 of 17 report is to the effect that the deceased has a cut wound on her neck caused by a sharp object. Not only that, the accused showed the police the machete which he had hidden in the shamba which was only four meters from their house. Basing on the testimony by the witnesses of the prosecution side as well as the accused defence there is no dispute that the accused is the one who killed the deceased. Immediate after kill he confessed to PW.l and PW.2, the evidence of PW.l and PW.2 is direct evidence from the accused himself who freely confessed his guilty to them. The accused confession to PW.l, PW.2 and PW.3 in his cautioned statement is the true and best evidence as it was held in the case of Mohammed Haruna Mtupeni and Another versus Republic, Criminal Appeal No. 259 of 2007 (unreported) where the Court of Appeal stated; "The very best witnesses in any criminal trial is an accused person who freely confesses his guilty1 The same position was taken in the case o f Ibrahim Ibrahim Dawa vesus Republic, Criminal Appeal No 260 of 2016 (unreported). Page 10 of 17 In the instant case, accused person is the one who reported to PW.l and PW.2 that he killed the deceased and went to show them the deceased body. The two witnessed the dead body which they found inside her house lying on the ground in blood with a cut wound on her head behind. The accused also confessed to PW.3 who recorded his cautioned statement. In his cautioned statement (exhibit P.2), he confessed to kill the deceased. Taking into account that the cautioned statement was admitted into evidence without objection, there is no doubt that the accused confessed freely. Accused confessed to cut the deceased on her neck using the machete, this confession corroborate the evidence of PW.4 who conducted postmortem examination, who testified that in her examination she found the deceased with a cut wound on her neck which was caused by a sharp object, her finding was that the death was due massive bleeding. Basing on the above evidence there is no doubt that the accused is the one who killed the deceased. Regarding the second issue as to whether the accused person killed the deceased with malice aforethought, the accused admitted to kill the deceased but he said he was angered by the Page 11 of 17 accusation of witchcraft levelled against the deceased by the villagers and the act of the deceased to kill the accused mother. As it is not easy for an accused person to confess to have killed with malice of aforethought, the same can be manifested through various ways including the conduct of the accused before and after the commission of the crime, the weapon used, the amount of force used and the number of blows administered as well as the part of the body where the blows were directed. This was discussed by the Court of Appeal of Tanzania in the case of Enock Kapera V. Republic. Criminal Appeal No. 150 of 1994 (unreported). In the instant case the accused used the machete to cut the deceased on her neck and after that attack the deceased fall down she did not wake up until when the PW.l and PW.2 visited the scene of crime and found the deceased lied down on the ground with blood already dead. The use of machete which is a lethal weapon and part of the deceased body (neck) where blow was directed which is a vulnerable part of human body and excessive force used. The accused informed this court that he cut the deceased once it means the force used were excessive. All this indicate that the Page 12 of 17 accused killed the accused with malice aforethought. If the accused had not intended to kill he could not used such a lethal weapon and direct it on the neck. The accused in his defence he prayed mercy of this court and he informed this court that he killed after being angered by witchcraft accusation. By saying that, he was raising a defence of provocation. It is my considered opinion that defence of provocation is not available to him for the following reason; The evidence reveals that the said accusation of witchcraft was of a long time, so that the accused has a chance to cool and control his anger and reporting the matter to the village leaders as well as relatives. In his cautioned statement the accused was recorded stating "ndipo saa 09:30 hrs niliamua kumuuliza bibi kuwa je ni kweti wewe ni mshirikina?. Bibi akajibu ni kweii yeye ni mchawi, ndipo mimi nikamwambia bibi kuwa Saii saia ya mwisho. ndipo mimi nikaenda kuchukua upanga ambao uiikuwa ndani..." Page 13 of 17 With that statement, there was a chance for the accused to cool and think otherwise for the time he spent to tell his grandmother to have her last prayer and the period he went inside to pick the machete and return back to her. Defence of provocation would be available had he acted instantly while on a heat of passion and attack the deceased. From the evidence received it shows that the accused intended to kill the deceased that is why he told her to have her last prayer it means he planned to kill her. In my considered opinion the circumstances under which the offence was committed do not suggest that the accused had no self control. In the case of Said Kigodi @Side Versus Republic, Criminal Appeal No. 281 of 2009 (unreported) No. 281 of 2009 the Court of Appeal held:- "We are of the firm view that the defence of provocation is available to a suspect who kills at a spur of moment in the heat of passion before he has time to cooi down" Also after the commission of the crime the accused went to hide the machete on the shamba, this I think was aimed to conceal that the same was used in killing the deceased although later he disclosed to PW.l and PW.2 by way of confession, if he Page 14 of 17 was innocent why hiding the machete. This is the indication that accused intended to kill the deceased. There is no any evidence to suggest that perhaps accused was suffering from any kind of insanity or mental deceased for him not to be able to discern what was good and what is bad. The available evidence shows that accused had no lawful justification or excuse in killing the deceased who was his grandmother and who had taken care of him from his childhood. The honourable assessors who seated with me during the hearing of this case were of unanimous opinion that the accused killed with malice aforethought. I entirely agree with them thus find the accused guilty of murder. It follow therefore that the accused is here by convicted of murder contrary to section 196 of the penal code Cap. 16 R.E. 2002. JUDGE 30 / 7 / 2020. Page 15 of 17 PREVIOUS RECORDS Ms. Edna Mwanaulumba - State Attorney: My Lord we have no record of the accused previous conviction. However we pray for proper punishment against him according to the law. That is all. MITIGATIONS Mr. Jackson Chaula - Advocate: My Lord we have received the conviction against the accused. But this being Murder case we leave to your hounorable court. That is all. ALLOCUTUS - Accused: I have nothing to say. SENTENCE The accused is convicted of Murder contrary to Section 196 of the Penal, Code Cap. 16 R.E. 2002. There is only one punishment for Murder which is death penalty as provided under Section 197 of the Penal Code. Page 16 of 17 This court is bound to pronounce the sentence provided under the law. I therefore sentence the accused to death penalty and I pronounce that accused shall be hanged to death. F. N. JUDGE 30/ 07/2020 Right of Appeal explained. F. N. mAtOGOLO JUDGE 30/ 07/2020 Page 17 of 17