CRIMINAN SESSIONS CASE 198 OF 2022 MWITA MNIKO MALIPA Final

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 198 OF 2022 THE REPUBLIC VERSUS MWITA MNIKO MALIPA JUDGMENT 28th August & 12th September, 2024 BWEGOGE, J.: One Mwita Mniko Malipa, the accused herein, was arraigned in this court on the charge of murder c/s 196 and 197 of the Penal Code [Cap. 16 R.E. 2019]. The particulars of the offence allege that on the fateful day of 11th April, 2022 at Kivule area within Ilala District in Dar es Salaam Region the accused person murdered one Stella Simon Massawe. The accused vehemently refuted the charge when he was arraigned in this court. And the prosecution procured the attendance of six witnesses 1 in a bid to prove the charge herein. The defence case was constituted by the accused sole testimony. The complainant Republic was represented by Ms. Florida Wenceslaus, learned senior state attorney and Mr. Cuthbert Mbilinyi, learned state attorney. The accused person had the services of Mr. Roman Selasini Lamwai, learned advocate. The prosecution case is briefly restated as follows: One Prosper Clemence Asenga, PW1 herein, and Stella Simon Massawe, the victim in this case, were spouses. The victim dealt in liquor. Her business premise was at Kivule in Ilala District. The accused person ran a charcoal business in the same neighbourhood as the victim. The same was familiar to the victim and her husband (PW1). On the fateful day of 11th April, 2024, allegedly, the accused herein happened to be at the victim’s business premise. For unknown reasons, he quarrelled with other boozers and he allegedly threatened to assault them with a knife he was possessing. Then he blamed the victim for hiring mobsters to bully him. He charged to her waving his knife. The victim found refuge in her booth/shop in which she locked herself. Thereafter the accused left the victim’s business premise. It is the prosecution case that allegedly, during the hours of darkness, the accused was spotted at the adjacent premises seemingly, contemplating 2 something evil. The victim and her husband (PW1) opted to report the incident to the nearby police station, having been so advised. It was around 11:00 hrs when the victim and PW1 hired a motorcycle to ferry them to the police station. Allegedly, the accused person hired another motorcycle and tailed the motorcycle which carried the victim and PW1. He caught up with them, blocked their motorcycle and attacked the victim with his knife and disappeared from the crime scene. Eventually, the victim died at the crime scene before the arrival of the law enforcement officers; having sustained severe injuries. Immediately, a police investigation on the criminal incident led by Detective Sergeant Emmanuel (PW6) ensued. In the same vein, an order for post-mortem examination of the victim’s body was issued. And Prof. Amos Rodjas Mwakigonja (PW2), the medical doctor, conducted the post-mortem examination of the deceased body. His finding revealed that the victim’s cause of death was asphyxia and haemorrhage shock. The report on post-mortem examination (exhibit P1) was executed to that effect. Likewise, it is the prosecution case that the accused person, having executed the alleged criminal enterprise escaped arrest by concealing himself in the nearby district of Mkuranga. He was duly arrested by the superintendent of police namely, Rodjas Lucas Tindi, PW5 herein, on 3 14/04/2022 and handed him to the District Officer in charge of Criminal Investigations, Ukonga Police Station, one Ramasota (PW3), the superintendent of police. Finally, the investigation concluded by PW6 implicated the accused person in the alleged killing of the victim. Consequently, the accused person was charged and arraigned in this court for murder. Hence this case. Suffice it to point out that the accused person had consistently refuted the allegation of murder. He deponed that the victim and PW1 as well as all other key witnesses in this case are strangers to him. In substance, he denied every accusatory fact in this case, save his name and means of living. The prosecution in this case was shouldered with a burden of proof in that it was the accused herein, not any other, who executed the alleged criminal enterprise which culminated in the gruesome death of the victim. The standard of proof expected from the prosecution is proof beyond sane doubt, in terms of the provision of section 3(2) (a) of the Evidence Act [Cap 6 R. E. 2022]. 4 Thus, in this case, the prosecution was bound to prove the following matters: 1. That the victim died an unnatural death. 2. That it was the accused herein who killed the victim. 3. That, at the time of the killing, the accused had malice aforethought. The first element of proof need not detain this court. Leaving apart PW1, the eye-witness who deponed direct evidence, PW3 herein, the OC CID of Ukonga Police Station, enlightened this court that when he received a report pertaining to the crime committed at the identified area (junction road, Picha ya Ndege) and rushed to the crime scene, he found the victim’s body on the ground with severe deep penetrating wound close to the right shoulder. Moreso, PW2 herein, the medical practitioner who made an autopsy, enlightened this court that he carried both physical examination and dissection on the deceased’s body. And he found blood oozing through the mouth and nostrils; a deep penetrating wound close to the right shoulder and clavicle extending to the thoracic cavity exposing the 1st rib and clavicle (with size of 7x4cm); and multiple cut wounds on both upper limbs. He summed up his findings in that the victim’s cause of death was asphyxia and hemorrhagic shock secondary to multiple sharp 5 force and penetrating injuries. The Report on Post–Mortem Examination (legal) admitted in evidence as exhibit P1 speaks volumes to that effect. In the same vein, one John Joseph Massawe (PW4), the victim’s brother, ascertained that he well identified the body of the deceased person to be of his sister, Stella Simon Massawe, the victim herein. Hence, I would find that the victim in this case suffered a violent death. Having arrived at the affirmative conclusion above, I proceed to delve into the crucial issue in this case; whether it was the accused person herein who executed the criminal enterprise which amounted to the premature and gruesome death of the victim herein. And before tackling the issue in question, I find it pertinent to revisit the testimonies of key witnesses in this case at length. One Prosper Clemence Asenga (PW1), an eyewitness to the alleged murder is a key witness in this case. In substance, his evidence is thus: He knows well the accused person who dealt in charcoal for a long time. On the fateful day of 11/04/2022, he happened to pass to the business premise of his deceased wife (victim). It was around 16:00hrs to 17:00hrs. He found the premises in chaos. Allegedly, the accused threatened to stab the customers thereof. And he pursued the victim who locked herself inside the store and banged the door waving his knife. 6 Later, the accused left the premises and went to the other side of the road, evading his adversaries. He returned soon thereafter and lamented that PW1 and the victim sought hooligans to attack him. He vowed to make them pay before he left the premises. PW1 and the victim closed the business at around 23:00hrs. Before they left, one Omary Pacha, warned them that the accused was observed at the other side of the road, apparently contemplating something sinister. It was advised that PW1 and the victim should lodge a complaint pertaining to the threat made by the accused to the nearby police station. Both purchased the advice wholesale. Hence, the duo hired a motorcycle which they both mounted and rode heading to Kitunda Police Post. However, when they reached at Picha ya Ndege cross road, they discovered that the accused herein was tracking them on another motorbike. Abruptly, the motorcycle carrying the accused passed them and blocked the motorcycle carrying the PW1 and the victim, forcing the rider to stop. The accused alighted the motorcycle hurling abuses, drew a knife and pursued the victim who jumped off the motorcycle in an attempt to save her skin. She fell down. Then PW1 witnessed the accused, at a close range of two meters, stamp on her back and stabbed her on the neck, hands and different parts of the body with his knife. Having 7 fatally wounded the victim, the accused mounted the motorbike which brought him to the scene and fled away. PW1 maintained that the accused person was well familiar to them. Besides, on the fateful day, they had been with the accused prior to his alleged criminal enterprise, as he had caused chaos to the deceased’s business premise earlier and vowed to make them pay for hiring hooligans to bully him. PW1 clarified that the motorcycle which brought the accused had a headlight which illuminated the scene. Likewise, the motorcycle which they had hired, had its headlight shining towards the accused person/crime scene. And approximately, five meters from the crime scene, there was a house with an electric bulb blazing the crime scene which further enabled PW1 to effectively identify the accused person. The testimony of PW1 was augmented by one Rodjas Lucas Tindi (PW5), the Crimes Officer, Mkuranga District, who arrested the accused herein. This witness enlightened this court that on 14/04/2022, while loitering at his working station (Mkuranga Police Station), around 16:00 hrs, one person (namely, Magige Mkama) approached him and asked if he could see a policeman namely, Dotto who was assigned duty out of office. PW5 apprehended that the stranger had something he wished to communicate; hence, he solicited information. And the stranger told him that at his 8 residence, located at Hoyoyo in Mkuranga District, someone namely, Mniko who was suspected of killing a person at Kivule, in Dar es Salaam, had called to his residence seeking shelter. Thus, he sought the intervention of the police. PW5 informed his superior (OCD for Mkuranga, SP Chasa) of the information conveyed. And his superior, having communicated with PW3 (Crimes Officer for Ukonga/ Sitaki Shari Police Station) confirmed that the guest was a fugitive suspect of murder committed at Kivule in Dar es Salaam. Hence, PW5 in the company of detective policemen effected the arrest of the accused herein and handed him later to PW3 on the same day. PW3 had confirmed the fact when he testified in this court. As hinted earlier, the accused herein made an evasive denial of every fact adduced by the prosecution witnesses save his name and the business he is engaged with. He purports that both PW1 and the victims were strangers to him. Hence, he purports that PW1 concocted this case against him for no apparent reason. It is trite law that every witness is entitled to credence and his evidence must be believed; unless there are cogent reasons constraining the court not to believe the witness. And the cogent reasons for not believing a witness are such that either the evidence deponed is tainted with 9 improbability and, or the evidence in question has been materially contradicted by another witness. See the cases: Goodluck Kyando vs. Republic [2006] TLR 363 and Aloyce Maridadi vs. Republic, Criminal Appeal No. 208 of 2016, CA, (unreported) in this respect. I am alive with the fact that, in substance, the key witness in this case, PW1 herein, gave visual identification evidence which implicates the accused in this case for the alleged murder of the victim. The law pertaining to visual identification is appositely stated in the case of Waziri Amani vs. Republic (1980) TLR 250 in that the court should not act on the evidence of visual identification unless all possibilities of mistaken identity are eliminated. See also the cases; Lusabanya Siyantemu vs. Republic [1980] TLR 275; Jafari Mohamed vs. Republic (Criminal Appeal 112 of 2006) [2013] TZCA 344 (15 March 2013; Said Chaly Scania vs. Republic (Criminal Appeal 69 of 2005) [2007] TZCA 180; Alhaji Ayubu @ Msumari & Others vs. Republic (Criminal Appeal 136 of 2009) [2010] TZCA 20. Based on the circumstances of this case, I have directed my mind to the case of Philemon Jumanne Agala @ J4 vs. The Republic, Criminal Appeal No. 187 OF 2015 [2016] TZCA 278, which, in my opinion, provides 10 a guideline for acting on the evidence adduced by PW1 in this case. In the relevant case, the Apex Court expounded thus: “It is now trite law that the courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient detail the most salient factors to be considered. These may be summarized as follows: How long did the w itness have the accused under observation? At w hat distance? I n w hat light? W as the observation im peded in any w ay, as for exam ple by passing traffic or a press of people? Had the w itness ever seen the accused before? How often? if only occasionally, had he any special reason for remembering the observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance? ... Finally, recognition m ay be m ore reliable than identification of a stranger, but even w hen the w itness is purporting to recognize som eone w hom he know s, the court should alw ays be aw are that m istakes in recognition of close relatives and friends are som etim es m ade.” In light of the above revisited decided cases and having scrutinized the testimony of PW1, I have the following observations: One, PW1 enlightened this court that the accused herein was a person he was familiar with for a considerable period. He identified the same by the business of which he earned his living (charcoal business). Moreso, he conceded his suspicion that the accused was courting the victim. In fact, 11 the same stance was maintained by the defence counsel in the cross- examination throughout the trial in that PW1 might have killed the victim out of jealousy and implicated the accused herein, though it never surfaced in the defence case. Two, PW1 had an encounter with the accused person earlier during the same day. He alleged the accused for instigating commotion at the victim’s business premise having brawled with other boozers and later threatened to harm the victim whom he alleged of hiring mobsters to bully him. This fact, coupled with the evidence adduced by PW1 and supported by PW3 and PW6 in that the crime scene was blazed with electric light from the nearby residential building, apart from the motorcycles headlights, further ascertains the correct identification of the accused person at the crime scene. Three, PW1 mentioned the accused person at the earliest opportunity to PW3 which adds value to the evidence of recognition given by the same. It is the law of this land that the ability of the witness to mention the name of the suspect of crime at the earliest opportunity is an assurance of the witness's reliability [Marwa Wangiti Mwita & Another vs. Republic (2002)] TLR 39. Four, the fact that the accused person was arrested at Mkuranga District by PW5 merely three days after the alleged murder and wanting plausible explanation from the accused as to why he was found thereat, gives inference that the accused concealed himself having 12 committed a heinous crime. The explanation given by the accused person in that he was arrested at Mkuranga having found without a permit to transport charcoal, in the circumstances of this case, doesn’t appeal to my mind. Based on what PW5 deponed in this court, I am inclined to find the assertion made by PW6 in that the accused was a fugitive on the run, valid. Suffices to point out that; I have watched well PW1, the only key witness who gave direct evidence in this case, when he was testifying in this court. And I find no cogent ground to assail his credibility. I consider the same to be a witness of truth in this case. And I certify that the evidence of visual identification given by PW1 herein eliminates all possibilities of mistaken identity. To the contrary, it is the testimony of the defence witness (DW1) herein, that I find tainted with improbabilities, let alone being contradictory. The same deponed nothing in defence but general denial. I hereby dismiss his evidence. I would find the 2nd issue in the affirmative; that it was the accused person, not any other, who killed the victim in this case. At this juncture, I proceed to canvass the last issue in this case, as to whether the killing of the deceased was instigated by malice aforethought. 13 The provision of section 200 of the Penal Code guides this court in determining this issue. The relevant provision aptly provides: “Section 200: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of 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; (e) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. Moreso, in the case of Ibrahim Abubakary & others vs Republic, Criminal Appeal No. 147 of 2022, CA it was aptly held that: “The Courts will have to assess the circumstances of each case and be able to gather and infer the intention that one had when he committed the incident. We expounded this position in M akungu 14 M isalaba v. R epublic, Criminal Appeal No. 351 of 2013 [2014] TZCA 208 (30 October 2014, TANZLII) which made reference to an earlier decision in Enock K ipela v. R epublic, Criminal Appeal No. 150 of 1994 [1999] TZCA 9 (10 June 1999, TANZLII) in which it was held: "Usually, an attacker will not declare his Intention 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 of the weapon, if any, used in the attack; (2) the number of force applied in the assault; (3) the part or parts of the body the blows were directed at or inflicted on: (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker’s utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing." In this case, I have directed my mind to the testimony of PW1 who enlightened this court that he observed the accused stamping on the back of the victim and stabbed her with his knife on different parts of her body. Moreso, PW1 enlightened this court that earlier, the accused having made attempts to assault the victim with his knife, he vowed to make them pay for hiring mobsters to bully him. Likewise, this court directed its mind to the findings of PW2, the medical practitioner, who examined the 15 diseased’s body. The same enlightened this court that he found deep penetrating wound close to the right shoulder and clavicle extending to the thoracic cavity exposing the 1st rib and clavicle (with size of 7x4cm). and summed up his findings in that the victim’s cause of death was asphyxia and Hemorrhagic shock secondary to multiple sharp force and penetrating injuries. Thus, the delicate part on the body of the victim on which the accused inflicted the injury, force employed in the alleged stabbing to the extent that it deeply penetrated the right shoulder, the clavicle and extended to the thoracic cavity exposing the 1st rib; the type of weapon used (knife); coupled with threats to harm the victim; and actual attempts made by the accused to attack the victim earlier the same day, incline me to apprehend that the accused had intended to cause grievous harm and, or kill the victim. Hence, I find that the accused had malice aforethought when he attacked and perpetrated the fatal injuries to the accused person. Given the reasons I endeavoured to give herein above, I find that the prosecution has succeeded in discharging its burden of proof in this case. The charge levelled against the accused by the prosecution has been proved beyond sane doubt. Hence, I am constrained to find the accused person guilty of the charge of murder c/s 196 and 197 of the Penal Code. 16 Accordingly, the accused person is hereby convicted forthwith. DATED at DAR ES SALAAM this 12th day of September, 2024. O.F. BWEGOGE JUDGE 17