republic vs juma warioba kisangure 2021 tzhc 9191 10 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA - SUB REGISTRY AT MUSOMA CRIMINAL SESSIONS CASE NO. 50 OF 2021 THE REPUBLIC VERSUS JUMA WARIOBA KISANGURE JUDGMENT 18th NOV & 10th DEC, 2021. F.H. MAHIMBALI, J. Juma Warioba Kisangure, the accused person in this case is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16, R.E 2019, (the Penal Code). It is alleged by the prosecution that on 9th day of January, 2020 at Wegero Village within Butiama District in Mara Region, the accused person murdered one Devotha Mtongori @ Boniface. The accused person pleaded "Not Gutty" to the information of murder. Normally in a charge of murder, the prosecution is duty bound to prove the following elements of the offence of murder: (a) That the deceased person died of an unnatural death; i (b) That the killing was unlawful or not endorsed or certified by the law; (c) That the killer had malice aforethought. (d) That the accused person arraigned before the Court is the one who killed the deceased. It is important to note that during the time of the prosecution of this case, the accused person has been admitting to killing the deceased who is allegedly his spouse. He also admitted all the material facts of the case save the fact that he had malice aforethought. Therefore, the main issue for this trial was whether there was malice aforethought as per law. The accused person and the deceased are spouses. They lived together as spouses for a short period of time after being newly wedded in August, 2019. That on 9th January 2020 around evening time, the accused person had returned to his home from Wegero center where he had spent his evening time allegedly getting some drinks. On his return home (around 20.00hrs), the accused person demanded food from his wife who then served it to him. No sooner had he eaten the said dinner than when he demanded a knife from his wife. Shortly after being given the said knife he used it as a weapon against his wife and stabbed her on various parts of the body including stomach, shoulders, chest and on the head. The said wife following excessive bleeding, died instantly of hemorrhoid shock by cut wound caused by a sharp object. The accused person was then arrested and charged with this offence of murder. As he pleaded not guilty to the offense, the prosecution summoned a total of four witnesses whose testimony is reflected as hereunder; PW1- Benard Alphoxard Nyamanda, currently a doctor at Butiama district hospital testified that he used to work at Kiagata Health Centre and has 33 years of working experience. He recalls on 10/01/2020 while at the home of the deceased (Wegero village) he conducted the post-mortem of the deceased's body belonging to Devotha. He first examined the body from head to toe and he observed that there were wounds on the head, neck, chest, abdomen and that the intestines protruded outside her stomach. It was his observation that the wounds were a result of a cut wound by a sharp object as they were sharp on the edges. He also, testified that the deceased was a woman of middle age and the cause of her death was due to loss of blood due to the severe wounds on the abdomen caused by a sharp object. He testified further that the body was identified and introduced to him by the relatives that it belongs to Devotha Mtongori . He filled the post mortem report and handled it to the police. He identified the post mortem report In court, tendered it in court and it was admitted and marked as exhibit PEI without any objection from the accused person. When cross examined, he stated that he did not know who inflicted the said cut wounds and he conducted the post-mortem on the 10/1/2020 but the death occurred on 9/1/2020. Daudi Kisangure (PW2) stated in his testimony that he lives at Wegero within Butiama district in Mara region and he is a retired government employee but he is now a peasant and a ward councillor of the area. That on 9/1/2020 around 21:00 hours he was at Wegero centre watching tv and he received a call from his son Juma Warioba Kisangure (the accused). Juma informed him that he had killed his wife, therefore he should go to his home. He received the call from a cell phone with this number; 0763290247. This number was not registered in Juma's name. He recognized his son's voice as he told him "baba, nimeua mke wangu". He decided to drive to the accused person's house. On arrival, he then found the accused's wife dead and lying on the floor. When he observed the body, it had several cut wounds on the abdomen, head and hands. He asked young men to go in search of the accused person as he had escaped. As it was night time, they also organised for security to safeguard the place. The following day they went on with the search for the accused person. They eventually found the accused, they arrested him and took him to the scene of crime and later to Kiagata Police station. However, the accused had injured himself on the stomach in attempt to kill himself. He was later taken to Kiagata health centre for medication. PW2 also testified that the accused person is the son of his elder brother who is deceased. He stated that the deceased was living with the accused person and they were newly wedded. They used to live together with the mother of the accused. And on the day of the incidence, he inquired for the accused's mother of what had transpired and there was nothing material he was told. He had previously solved quarrels between the accused and the deceased. He stated further that he also informed by the VEO and the WEO of that area of the incidence. F.6875 D/SGT NELSON (PW3) testified that he lives at Butiama in Mara region and he is a police officer of CID unit, he has 13 years of working experience. His duties include arresting offenders, investigation and other duties assigned to him by his supervisors. He recalls on 10/1/2020 around 8:00 hours he was assigned a police case by ASP- Godfrey Lumbagi (OC-CID). After going through the file he realised that the accused person had not been arrested but other people had already recorded their statements in connection with the offence. He established in his investigation that the deceased was Devotha Mtongori @ Boniphace. He was later on informed that the accused person had been arrested by civilians and he was admitted at Musoma Referral Hospital as he had wounded himself while attempting to kill himself. He stated further that he went to the hospital on 11/1/2020 at around 10:00 hours and he saw the accused person. The accused person told him what had transpired and he decided to record his cautioned statement after he had told him of his rights prior to recording the cautioned statement. After recording it, they both signed the cautioned statement. He tendered the caution statement that was admitted and marked as exhibit PE2. He then asked G.2377 D/C Nicholaus to send the accused person to a justice of peace. He then prepared a case file and forwarded it to RCO and later to NPS. He testified further that it was his view that the accused person killed the deceased because he confessed to him. PRISCA MKEHA (PW4) swore and stated that she is a Resident Magistrate, employed in the year 2017 and she is stationed at Musoma Urban Primary Court. Her duties are adjudication of cases and being justice of peace. That on 14/01/2020 at around 12:20 hours while at her work place, she received the accused person who was brought by D/C Nicholaus of Musoma police station. The accused person was brought before her for the purpose of recording his confession statement. She was informed that the accused person and D/C Nicholaus were coming from Regional Government Hospital of Mara. She testified that the accused person's name is Juma Warioba Kisangure and he was charged with the offence of murder. She then prepared a room so that she could record the accused's confession. She ordered the police to leave the room and she introduced herself to the accused person and inquired about the names of the accused person. The accused person told her that he was arrested on 10/1/2020 at Wegero village and was sent to Kiagata where he was given PF3 and went to the hospital for medical treatment. The accused person informed her that on that day he was coming from the hospital where he was admitted since 10/1/2020 following his attempt to kill himself using a knife, by stabbing himself on the stomach. Save for the stomach wounds the accused denied to having any other wound on his body. He proposed to use Swahili language during the recording of the confession. The accused person then voluntarily gave his statement and consented his statement to be used as evidence in court against him. He then read it to him and signed it and she also signed it. She also stated that P.P. Mkeha as it appears on the extra judicial statement, is her name, there was no enough space for her to write her full name (Prisca P. Mkeha). She testified further that the recording of the statement started at 12:57 hours. She sealed the confession statement in an envelope and gave it to D/C Nicholaus, together with the accused person. She tendered the extra judicial statement which was admitted and marked exhibit PE3. That was all with the prosecution case. The court ruled that the accused person has a case to answer to the charge, he elected to fend for himself on oath. In his defense testimony, he narrated the whole episode that he knows the deceased as she was his wife. They got married in August 2019. Regarding the death of Devotha, he recalls on 9/1/2020 around 09:00hours, he had taken his herds for grazing. While grazing, there was a neighbour selling local brew. He took some local brews. When it reached at 17:00 hours he returned home with his herds. At home, his wife told him that there was no "mboga". He then went to the centre and purchased fish and ordered one motorist to send it to his home. He remained at the centre drinking "K vant" mixing it with Serengeti beer. When it reached 21:00 hours, he returned home and asked for food. His wife then started insulting him and refused to serve food for him and told him to tell her young sister to serve food for him. He further inquired from her as to why she was replying that way. She replied, why did he go to drink pombe leaving them at home. She then started to uttering bad words against him that he should leave her to rest. If it is a matter of food, Irene (her young sister) can serve him as well. Irene woke up and put food for him. As there were avocado fruits unpeeled, he asked his wife to bring for him a knife for peeling the avocados. As she brought it, she continued uttering bad words against him. Saying that he delayed returning at home because he had another wife. By that time she had refused to hand over that knife and kept it. As he wanted the knife for peeling fruits and she refused to handle it to him, he got irritated and took it by force. While she was resisting, eventually he managed to take it and, iri that course, he cut her. He doesn't recall the place where he cut her. He then fell asleep and shortly got up after a text message alert from his cell phone. When held the cell phone, he saw it had blood stains. He was shocked. He got up and saw his wife's body covered in blood and she was uttering "My husband you have killed me". He then took his cell phone and informed his uncle (PW2) and his father-in-law that he had killed his wife. After that, he fled to the bush where he normally grazed his herds. He remained there until next day on 10th January 2020 (next day noon) where he was followed by young men and they told him that they had come to arrest him as he had killed his wife. He was confused. This is because his first wife had died in a car accident at Dar es Salaam in 2014. The deceased is his second wife. He regretted it, so he took a knife and started stabbing himself on his stomach so that he could also die. He used the knife his wife had given him to cut the avocado to stab himself. He was arrested after he had stabbed himself in attempt to killing himself. He was taken to Kiagata police station and later to Kiagata health centre. At Kiagata health centre he was not treated as his case was severe. He was referred to Musoma government hospital. He stated further he did not intend to murder his wife. It was due to minor quarrels that succumbed that day after his wife had refused to put food for him and when she refused to hand over the knife for peeling fruits. But when cross examined, he stated that there was no quarrel between him and his wife. However, he prayed for court's mercy that with these circumstances, he did not intend to kill his wife, they just had a quarrel. That was all about the prosecution and defense case. The learned counsel for defense and prosecution in their final submissions submitted as follows. Maula Tweve for defense submitted that of all the prosecution witnesses, none established malice of the accused person in respect of 10 this offence. However, she suggested in her final submission that the accused person as per exhibits PE2 and PE3, might be insane. She thus suggested he be subjected to mental hospital for establishment. Otherwise, she submitted that in criminal cases, it is always the Republic which has a legal duty of establishing the offence against the accused person (see section 3 (2) a of TEA. There is a plethora of authorities regarding this legal stance. In the case of Daniel Musa Siima Vs Republic, Criminal appeal No 80 of 2019 at page 6 it has been insisted that. " It is the principle o f iaw that the burden o f proof in Criminal cases ties to the Republic." Also in the case of Hemed vs Republic (1987) TLR 117 states on the standard of proof. It is her humble view that the Republic's case is not proved beyond reasonable doubt. The accused person should be discharged. On the other hand, Mr. Yesse Temba submitted that in this case what is in dispute is whether the accused person had malice aforethought when killing/murdering the accused person. With the four prosecution witnesses, the Republic have sufficiently established how the accused person had malice aforethought. In establishing malice, he referred this court to the case of Ajili Ajili @ Ismail Vs Republic, li Criminal appeal no 505 of 2016 at page 12 where the CAT referred to the case of Enock Kipela Vs Republic, Criminal Appeal no 150 of 1994 emphasising that these cases have established principles to be applied. In this case, the nature of weapon used is a knife. It is a dangerous weapon if badly used and life costing. There was strong force used by the accused person against the deceased. PW1 testified how he established multiple wounds (about 20 cut wounds) to the body of the deceased which led to the destruction of the pregnancy. The accused person inflicted the said knife on the abdomen part of the deceased which is dangerous part of the body of the human being. Number of blows inflicted against the deceased (PEI) suggest nothing but rather malice aforethought against the deceased. The kind of injuries by sharp object, suggest nothing but rather malice. In totality, all these elements establish malice in this case. The conduct of the accused person after the commission of the said offence suggests nothing but rather malice aforethought. Considering the conduct of the accused person of calling his uncle (PW2) and informing him that he had killed his wife suggests nothing but high ill motive (malice aforethought). Digesting the contents of PE2 and PE3 exhibits (cautioned and extra judicial statements of the accused 12 person), voluntarily as they are, clearly implicate the accused person with the offence of murder as charged. In the case Muhangwa Simu Vs Republic, Criminal Appeal no 480 of 2019 at page 6 the Tanzanian Court of Appeal ruled that confessional statement if voluntarily made, does not require corroboration. Regarding the issue of sanity of the accused person, he submitted that it lies to the accused person and is supposed to be proved on balance of probability (see Bashim Rashid Omary Vs Rpublic, Criminal appeal 309 of 2017 at page 11 and 12). In considering exhibits PE2 and PE3, there is nothing suggesting insanity but just regrets of the accused person to what he had done. In the case of Agness Dorice Liundi vs Republic it was held that'insanity is not an element to prove the case of murder. What is adjudged, is the conduct of the accused person prior or after the commission of the offence. Despite his allegation that he was drunk but his mental faculty was stable. His post conduct after the commission of the offence that he had phoned his near’ relative, he took hid, he recalls how he was taken to the Hospital, and how he recorded his cautioned and confession statements. With this coherence of events, he is confident that the accused person was very After having heard the witnesses in this case, the submissions made by both learned counsel, there is no doubt that DEVOTHA MTONGORI @ BONIFACE is dead, and she died of unnatural death. It is also undisputed that the accused person in this case JUMA WARIOBA KISANGURE is responsible for the said death. The serious issue for determination is whether there was malice aforethought by the accused person as per law against the death of the deceased person. Whereas the Republic insists that there is malice, the defense maintains that there is no malice established as per law but only unlawful killing. The important issue here is whether this evidence in record has established murder. As a matter of law, the offence of murder involves unlawful killing of another person (human being) with malice aforethought. Malice aforethought is well established as provided for in section 2.00 of the Penal, Code Cap. 16 of the R.E. 2019 which provides as follows: "Malice aforethought shall be deemed to be established by evidence proving any one or more o f the following circumstances- (a) an intention to cause the death o f or to do grievous harm to any person, whether that person is the person actually killed or not; 14 (b) knowledge that the act or omission causing death will probably cause the death o f or grievous harm to some person; whether that person is the person actually killed or not; although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody o f any person who has committed or attempted to commit an offence." I need to address my mind to the predominant legal principles which are of relevance to this case and will guide me in the final verdict of this judgment. These cover aspects of criminal law, as well as the law of evidence. These principles are meant to ensure that no innocent person is convicted but guilty and on proof of evidence beyond reasonable doubt. Legally, it is the prosecution which is placed with a higher responsibility than that of the accused in a proof of criminal charge. The first long-established principle in criminal justice is that on onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. It is reflected under Sections 3(2)a, 110 and Section 15 112 of the Evidence Act Cap.6 [R.E 2019], and cemented by several cases including the case of Joseph John Makune v R [1986] TLR 44 at page 49, where the Court of Appeal held that:- "The cardinal principle o f our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are, a few well-known exceptions to this principlef one example being where the accused raises the defence o f insanity in which case he must prove it on the balance o f probabilities..." The second principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of Tanzania in the case of Mohamed Haruna@ Mtupeni & Another v R, Criminal Appeal No. 25 of 2007 (unreported) held that:- "Of course in cases o f this nature, the burden o f proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength o f the prosecution case and not on the basis o f the weakness o f his defence. " It means the evidence must be legally so convincing that no reasonable person would ever question the accused's guilt. (See the cases of Mohamed Said Matula v Republic [1995] TLR 3, Anatory 16 Mutafungwa v Republic, Criminal Appeal No. 267 of 2010, Court of Appeal of Tanzania and Festo Komba v Republic, Criminal Appeal No.77 of 2015, Court of Appeal of Tanzania (both unreported)). In the case of Enock Kipela v Republic, Criminal Appeal No. 150 of 1994 (unreported) discussed what entails malice aforethought, saying that: - "Usually, an attacker will not declare to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following:- (1) the type and size o f the weapon if any used in the attack; (2) the amount o f force applied in the assault; (3) the part or parts o f the body the blows were directed at or inflicted on; (4) The number o f blows, although one blow may, depending upon the facts o f the particular case be sufficient for this purpose; (5) The kind o f injuries inflicted. (6) The attacker's utterances if any; made before, during or after the killing and the conduct o f the attacker before and after the killing. (7) The conduct o f the attacker before and after the killing. 17 The facts of the present case don't establish any existence of violence between the deceased and the accused person prior to the attack against the deceased by the accused person. What is vivid in this case is evidence that the accused person brutally attacked the deceased by a sharp object against her stomach, chest and shoulder areas (See exhibits PEI, PE2 and PE3). PEI describes the number of injuries the deceased body sustained leading to her unnatural death instantly. Exhibits PE2 and PE3 establish how the accused person admitted committing the offence. In the absence of established existence of quarrel prior to the attack, the offence is nothing but murder. In his confession statement before PW4, the accused person is partly recorded saying the following: "..tarehe 09/01/2020, majira ya saa 18.00hrs nilitoka kuchunga ngombe na nilipofika nyumbani ni/iwafungia mifugo na kumuu/iza mke wangu kama kuna mboga akasema hakuna. Nikaenda kununua Samaki nikampa bodaboda awapeieke nyumbani na mimi nikabaki senta. Baada ya nusu saa nikarudi nyumbani na niiikuta ameshapika. Akanitengea nje na wakati nanawa mikono nikam wambia aende jikoni akani/etee kisu na alipoleta kisu nikaanza kumchomachoma na mke wangu akakimbiiia jikoni na mimi nikakimbilia kwenye nyumba yangu ninayo/a/a na kuchukua mapanga na 18 koti na kukimbia kuelekea porini....." [emphasis added]. (PE3 exhibit as confessed on 14th January 2020 before PW4 - Justice of Peace). When recording his cautioned statement before PW3, he is partly recorded to have stated the following: Nakumbuka mnamo tarehe 09/01/2020 muda wa 20.00hrs nilitokea senta ya Kijiji cha Wegero, na mara baada ya kufika nyumbani, nilimkuta mke wangu ambaye kwa sasa ni marehemu tayari amepika chakula. Ndipo mke wangu a/inianda/ia chakula ambacho i/ikua ni ugaii na Samaki. Kab/a s/jala chakula, nilimuagiza mke wangu ani/etee kisu. Ndipo a/inyanyuka na kwenda jikoni kunifuatia kisu, na baada ya dakika kama mbili hivi, aiinikabidhi kisu hicho. Nikaanza kumchoma mke wangu na kisu hicho maeneo ya turnboni, mara mbili na baadae nikamchoma kichwani. .... Baada ya hapo, mie nikaamua kuondoka pale nyumbani nikiamini lazima atakufa kutokana na sehemu ambazo nilimchoma. Na sababu kubwa ya kumuua mke wangu mimi siijui maana hatukua na ugomvi wowote. Na niiikua sijawahi kutumia kiievi cha aina yoyote, kwanza mimi sinywi pombe na sivuti bangi...." [emphasis. added], PE2 exhibit cautioned statement taken on 11th January 2020 before PW3 - police officer). I am aware that admission was freely taken, is the best evidence to be relied upon than any other evidence in criminal charge, thus 19 incriminating against the maker (see Paul Maduka and 4 Others vthe Republic, Criminal Appeal No. 110 of 2007 (unreported) at page 11 and Hamisi Juma @ Chau Vs. Republic, Criminal Appeal no.95 of 2018 - searchable at Tanzlii [2020] TZA) and does not need corroboration if not repudiated (see Muhongwa Simu Vs Republic, Criminal Appeal no 480 of 2019 at page 6). In my considered view, this confession declaration by the accused person which were freely taken before two different officers and on different dates, are nothing but stating the truth of what the accused person did against the deceased person. This is also in consideration of the law that not every killing has to be witnessed (see Mathias Bundala V. The Republic, Criminal Appeal no. 62 Of 2004 CAT- unreported). I am also firm considering the confession and admission done by the accused person in this case as the best evidence and it is legally incriminating against him. In digest to the defense testimony that he was drunk and that he was provoked by the uttered words, I don't find any connectivity. What is stated in exhibits PE2 and PE3 is clear. The defense testimony is a clear divergence of what was confessed and admitted earlier. I consider it as an afterthought evidence calculated to evade justice of the case which is unreliable (see Chora Samson Kibenti vs Republic, Criminal Appeal No 516 of 2019, CAT at Musoma). 20 The issue of sanity of the accused person considering the manner he brutally killed the deceased was considerably dealt by this court as raised and discussed by both learned counsel in their final submissions. I made a separate ruling rejecting the raised defense in the circumstances of this case. I reiterate here that in the circumstances of this case, upon analyzing and evaluating the evidence and directing my mind on the extra judicial statement, though the accused might have been mentally disturbed by alcohol as per his defense, he was sane within the meaning of section 13 of the Penal Code. The accused person knew everything that transpired on that day from the morning of grazing to his evening lifetime at the Wegero center, infliction of the wounds and his immediate escape to the bush and his subsequent arrest and admissions. Had his mental faculty been sick, I am of the firm view that the accused person would not have acted in such a post criminal regret mood of notifying his near relative (PW2) and the manner he narrated his defense testimony and what he stated before the Justice of Peace (PW4) leave alone his admission before PW3. Since insanity is a question of facts, it is only inferable from the circumstances of the case and the conduct of the accused person at the material time. In this case there was ample evidence to show that the accused person was aware of what he was doing and he knew that what he was doing was wrong. 21 I am guided in this stand considering the position of the Court of Appeal in the case of Hilda Abe! V0Republic, [1993] TLR 246. What constitutes malice aforethought or intention to kill is well defined by laws, literature and decided cases (see section 200 of the Penal Code and the case of Enock Kipera and Ajili Ajili (supra). According to the Black's Law Dictionary, malice aforethought is defined as: "A pre-determination to commit an act without legal justification or excuse.... An intent; at the time o f killing, wilfully to take the life o f human being, or an intent wilfully to act in callous and wanton disregard o f the consequences to human life: but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed" (see Criminal Law in Tanzania, A Case Digest, by Dr Fauz Twaib and Daudi Kinywafu at page 335). By the evidence presented, it has been proved beyond reasonable doubt that, DEVOTHA MTONGORI @ BONIFACE was killed by being stabbed on various parts of her body by the accused person thereby causing massive bleeding which caused her death. Given the circumstances and the manner which includes, the weapons used, the force applied, the part of the body of the deceased where the cuttings were directed, the frequency of cutting and the extent of injuries and his conduct after the attack, I find without any scintilla of doubt that murder 22 of the deceased Devotha Mtongori @ Boniface has been proved beyond reasonable doubt that the accused killed the deceased with requisite malice aforethought and he desired the deceased to die. That said, I find the accused person Juma Warioba Kisangure, guilty and consequently convict him of the murder of the deceased DEVOTHA MTONGORI @ BONIFACE contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E 2019]. This holding draws a concurrence finding with all assessors, who opined the accused person is guilty on murder as dully established by the prosecution. DATED at MUSOMA this 10th day of December 2021. Consideriri^^2feUW^inient for murder is only one known as per law, the accused person is hereby sentenced to suffer death by hanging pursuant to section 197 of the Penal Code, Cap 16 R.E 2019 as read together with section 322 (1) & (2) of the CPA, Cap 20 R.E 2019. 23 Right of Appeal fully explained to any aggrieved party under section 323 of the CPA, Cap 20 R.E 2019. DATED at MUSOMA this 10th day of December 2021. F. H. Mahimbali JUDGE 10/ 12/2021 24