Criminal Session 18 of 2022 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) SITTING AT MPANDA CRIMINAL SESSIONS CASE NO. 18 OF 2022 REPUBLIC VERSUS MAIGE S/o NKANDA...................................................... ACCUSED JUDGMENT 15th October & 1st November, 2024 MRISHA, J. The gist of this judgment is to find out the truth behind the serious allegations levelled against the accused person Maige Nkanda that he committed the offence of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2019 [Now R.E. 2022]. The outcomes of that quest will enable the court to be in a good position to determine whether the said accused person is responsible for the commission of that serious offence and take some necessary measures, where need arise. The allegations are to the effect that on the 18th day of February, 2020 at Kabage Village within Tanganyika District in Katavi Region, the said 1 accused murdered one Keflin Thomas who is said to be his wife. It is also alleged that the reason which prompted the accused person to murder his wife, is associated with love jealous as the accused did not want to divorce his wife after finding her living with another man, though the wife was insisting to divorce him. Upon being arraigned before this court with an information of murder, as stated above, the accused pleaded not guilty thus necessitated the prosecution Republic to bring a number of seven witnesses and produce five exhibits in order to prove the above allegations against the accused person. On his part, the accused person fended for himself and did not tender any exhibit, be it documentary or physical in order to support his defence. In short, he strongly denied those allegations against him. At the hearing of the prosecution case, seven witnesses had their evidence being recorded by this court. The first one was Michael Charles Kushoka, a then Village Executive Officer of Kabage Village, Tanganyika District in Katavi Region, who testified as PW1. In the course of his testimony, he mainly narrated that on 19.02.2020 he was called by PW3, Njile Mahimbika through a mobile phone, who informed him about the incident of murder of one Keflin Thomas, the deceased, but he did not know the said deceased before. 2 On getting such information, PW1 reported the matter to PW6, D/c Leslei of Sibwesa Police Post. He later went to the crime scene with that police officer, which is at Mwamkulu „B' and found the deceased body whom he described to be a female. He also said that they found the deceased body with several wounds on her head, neck and vagina and there was a wood stick being inserted on her vagina. He also narrated that at the scene of crime he found PW3, a hamlet chairman who told him about the grudge ensued between the deceased and the accused person which was reported to him by the deceased's daughter. The said hamlet chairman told him that the deceased daughter informed him that her parents had not returned home since on 18.02.2020. From then, he did not see the deceased and the accused person until on 22.02.2020 when PW3 told him that the accused had been arrested by the vigilante. That thereafter, he instructed the vigilante to bring the accused before him, and upon the order been complied with, he questioned the accused who admitted to have killed his wife because she went to Mwamkulu and got married to another man. Another evidence came from Nguda Njile, PW2 and Njile Mahimbika, PW3 who had the same story as the one given by PW1. In brief, in the 3 course of his testimony, PW2 stated that on 19.02.2020 the deceased's and accused's daughter approached and informed him that her parents had not returned home since on 18.02.2020 when they left their home promising to go to PW3. PW2 also told the court that he knows both the accused and the deceased person as husband and wife, and he also told the court he was familiar with their existing matrimonial dispute, though the duo had not consulted him for reconciliation. Not only that, but also in addition to what he had stated above, PW2 narrated that prior to the incident of murder of the deceased, the accused had approached him seeking for a letter to find his wife whom he was suspecting to have gone to another place and not to her parents as she had promised him. Also, PW2 testified that some few days later, the accused approached and informed him that he had known the whereabouts of his wife that she was not at her parents, but at Mwamkulu where he found her being married to another man. That, upon getting such update, PW2 met with the accused and the deceased at the Hamlet chairman's office, then advised them to reconcile their dispute and go back home to live with their children. 4 However, PW2 testified that on 18.02.2020 he was approached by PW3 who asked him if he had seen the accused and his wife, but he denied to have seen them, that is when both of them consulted the vigilante commander and began searching for the said spouses until on 19.02.2020 when they found the deceased body in the bush with several wounds on her head, neck and vagina. PW2 further stated that they found the deceased with a wood stick being inserted on her vagina, then on 22.02.2020 the accused was arrested by the vigilante. On his part, PW3 told the court on 19.02.2020 he was approached by PW2 who asked him if he had seen the accused and his wife, but he denied to have seen them. Thereafter, PW3 made a scream with a view to call other villagers. The villagers gathered, then two groups were formulated and the task of searching for the deceased and the accused person began. Later, one of the two grounds succeeded to find the deceased body with some wounds on her head, neck and vagina and there was a wood stick being inserted on her private part. Apart from the trio prosecution witnesses, there was another evidence from PW4, F. 6702 D/CPL Japhet of Tanganyika Police Station, who testified that he is the one who interrogated and recorded the cautioned statement of the accused person Maige Nkanda after been instructed by 5 his superior boss to do so. Before doing so, he took the accused from the lock up to the interrogation room which had enough air, two chairs and one table. He also introduced himself to the said accused person, as a police officer and informed him he was charged with the offence of murder. Again, he informed the said accused that he has a right to make or not make any statement before him and that if he chooses to make one, the same will be recorded and be used in the court of law evidence against him. PW4 also testified that before recording the accused cautioned statement, he informed him that he has a right to call his friend, relative or a lawyer when he makes his statement, and he also asked the accused which language he would like to use in the course of making his statement before him and the accused opted to make his statement alone and in Kiswahili language. After all those preliminaries were completed, PW4 began to record the accused cautioned statement at 1710 and finished at 1800 hours, then he read over the contents of the statement to the accused person who confirmed to him that they were correct. Finally, he gave the statement to the accused to sign and he also signed it. In the course of his testimony, PW4 told the court that the accused confessed before him 6 that he killed his wife one Keflin Thomas after observing some changes from her and finding her living with another man at a place called Mwamkulu. He further stated that the accused person told him that after killing his wife he run away, and while hiding, he began to have a tooth ache. As a result, on 20.02.2020 at 1600 hours he decided to go to a person called Shija for the purpose of getting some medicine for treating his tooth, that is when he was chased and got arrested by a group of people. Apart from that narratiion, PW4's prayer to tender the cautioned statement of the accused person was not objected; as a result, the same was admitted as Exhibit P1. The prosecution Republic also paraded Dr. Seleman Ally Mtenjela who testified as PW5, to the effect that he is a medical doctor whose main duties are to treat patients, provide medical education to the people/patient and to conduct post mortem examination. In the year 20.02.2020 he was at his work place which is Tanganyika District Hospital, then he was called by police officer who informed him about the incident of death at Kabage village and requested him to accompany the police to the crime scene in order to conduct a post mortem examination of the deceased body. 7 That upon arriving at the scene of crime on the same material date, they found the female deceased body whose name, he was told, was called Keflin Thomas. PW5 also testified that he found the deceased body with some wounds on the head, neck and on her vagina. He added that they found a wood stick being inserted on the said private part. According to him, the deceased body was in an unusual condition because apart from sustaining serious wounds as he had described them, the deceased body was stiffened and had some blood clots on its wounds, and her stomach was swelling. Having observed the deceased body, PW5 began to conduct a post mortem examination and observed that the cause of the deceased death was due to severe bleeding and suffocation caused by a wound on her neck. After examining the body, PW5 filled the Post mortem examination report and handed it over to the police officer. Upon completion of his testimony, PW5 urged the court to admit the said report as an exhibit. However, no objection was raised against such document. Hence, it was admitted as exhibit P2. Another prosecution witness was F.1043 SGT. Leslei who stood as PW6. He told the court that on 19.02.2020 he was at his work place Sibwesa Out Post when he received an information of murder from Mr. Michael 8 Kushoka, the Village Executive officer of Sibwesa village. The said village leader informed him that the incident happened at Kabage village. That after receiving that information, PW6 communicated with ASP Meshack and informed him about the incident. He also communicated with the Chief Medical Officer of Tanganyika District Hospital in order to get a medical doctor for conducting the post mortem examination of the deceased body. Thereafter, PW6 joined the investigation convoy team to the scene of crime where they found the deceased body with several wounds on her head, neck and vagina, and they also found a wood stick being inserted on her private part and her tongue was out. PW6 further testified that while at the crime scene, he was instructed to draw a sketch map of the scene of crime and, he did that with the assistance of Njile Mahimbika (PW3). In court, the said map was sought to be admitted as an exhibit whereafter the court admitted and marked it as exhibit P3 due to want of objection from the adverse party. The next one was Hon. Elisante Marco Pallangyo (PW7), a Primary Court Magistrate at Mpanda Urban Primary Court whose evidence was to the effect that on 26.02.2020 at about 1530 hours, he was approached by Corporal Japhet of Police Tanganyika who was with the accused person Maige Nkanda and informed him that the said accused was charged with 9 an offence of murder and was sent to him for recording the extra judicial statement. That thereafter, PW7 directed the police officer to stay away from the court premises and remained with the accused person, then he introduced himself to the latter that he is a Justice of Peace. That the accused told him he wanted to make his extra judicial statement. That was after he told the accused, he is free to either make or not make his statement before him. Thereafter, PW7 sought the consent of the accused to inspect his body, then he inspected the accused body whereby he found no fresh scurries, save for two permanent ones which he had seen on the accused body parts. That PW7 asked the accused if he had been forced or induced to go and make his statement before him whereupon the accused answered that question in the negative. He also asked him if he wanted to make his statement before him on his free will and if he knew that if he would make any statement before him, the same will be recorded and later be used as evidence against him in a court of law and, the accused person responded positively. That upon being satisfied that the accused consented to make his extra judicial statement before him, PW7 began to record the same whereby 10 in the course of doing so, the accused confessed that he murdered the deceased person who was his wife, by beating her with a wood stick on her head, neck and private part and finally, when the deceased had already fallen down due to the beatings he had inflicted on her, he used the same wood stick to insert it on her vagina as a result, the deceased died on the spot. Apart from that evidence, PW7 identified the extra judicial statement he recorded from the said accused person and urged the court to admit it as an exhibit, a prayer which was not objected by neither the accused person, nor his learned advocate. As a result, the same was admitted into evidence and marked as Exhibit P4. That marked the end of the prosecution evidence upon which the court considered and found the prosecution evidence to have established a prima facie case against the accused person as far as the allegations of murder contrary to section 196 and 197 of the Penal Code levelled against him, are concerned. During defence hearing, the accused person Maige Nkanda fended for himself, as DW1. In the course of adducing his evidence before the court, the said accused only admitted to have been apprehended by the police, charged with an offence of murder and arraigned before this court to answer those allegations, but he totally distanced himself from 11 the allegations that on the 18th day of February, 2020 at Kabage Village within Tanganyika District in Katavi Region, he murdered the deceased person whose name is Keflin Thomas. Also, in a bid to maintain his denial in respect of those allegations, DW1 told the court that he used to reside at Kabage Village with his wife whom he named as Kabula Shija. He does not know a person called Kelflin Thomas. Nor does he know those who are responsible for the killing of that person. He added that he was at Isulamilomo area doing mining activities and that is where he was arrested and later charged with an offence of murder which he believes was fabricated, as he had never killed the deceased person. He also maintained that the evidence he had adduced before the court is true. Hence, he prayed to the court to find him not guilty of murder and be pleased to set him free. Flowing from the above evidence, it appears plainly that the accused person in this case has totally denied to have committed an offence of murder with which he stands charged. This means therefore, that the court will have to determine whether the prosecution side has discharged its legal duty of proving the said offence against the accused person on the standard required by the law. 12 The basis of that duty can be derived from section 110 (1) (2) of the Evidence Act, Cap 6 R.E. 2019 (the Evidence Act) and through the aid of various case laws. For instance, under section 110 (1) (2) of the Evidence Act, Cap 6 R.E. 2019, it is provided that: “'110. Burden ofproof (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden ofproof lies on that person” Under the case law, it has been stated that the duty to prove the charge beyond doubts rests on the prosecution and the court is enjoined to dismiss the charge and acquit the accused person if that duty is not discharged to the hilt. (See- DPP v. Peter Kibatala, Criminal Appeal No. 4 of 2015 (CAT) and Msafiri Hassan Masimba vs The Republic, Criminal Appeal No. 302 of 2015 (CAT at Iringa, unreported). Back to the present case, the offence of Murder contrary to section 196 and 197 of the Penal Code the accused person stands charged with, is created by section 196 of the Penal Code which provides that: 13 “196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” From the above provisions of the law, it is therefore, instructive to note that in order to win conviction for the offence of Murder contrary to section 196 and 197 of the Penal Code, the following ingredients must be proved by the prosecution side beyond any reasonable doubts: - (1) That there was a person who died. (2) That the deceased died unnatural death. (3) That the death was caused by the accused person. (4) That the accused person caused death with malice aforethought. Starting with the first ingredient, the particulars of the charge sheet reveal that on the 18th day of February, 2020 a person whose name is Keflin Thomas, died after being murdered by a known person. The said particulars also reveal that the death of that person happened at Kabage Village within Tanganyika District in Katavi Region. Apart from that, there is evidence of PW1, PW2, PW3, PW5 and PW6 which shows that they went to the crime scene a few days later and found the deceased body. Also, in their evidence PW1, PW2 and PW3 14 who are the village leaders, told the court that they managed to identify that body as being of a person called Keflin Thomas who is the wife of Maige Nkanda, the accused person herein. Their evidence was not shaken by either the accused or his counsel regarding the fact that the discovered body was of Kelflin Thomas. In his evidence, the accused did not dispute the fact that on the 18th day of February, 2020 there was a death of a person called Keflin Thomas. What he said is that he does not know who caused the death of that person. In totality of the above, I am satisfied that the first ingredient has been proved beyond any reasonable doubts. Coming to the second ingredient which is whether the deceased died unnatural death, I have revisited the evidence of both the prosecution and defence witnesses and found that almost all of them are in agreement that the deceased died unnatural death. This is evidenced by the evidence of PW5, a medical doctor whose evidence depicts that in the course of examining the deceased body on 20.02.2020, he noticed that the deceased body had several wounds on her head, neck and private part and he also found a piece of wood stick being inserted into the deceased private part. 15 Not only that, but also the evidence of PW5 reveals that the deceased body had some clotted blood stains. According to him, the deceased body was in unusual condition because apart from sustaining serious wounds, it was stiffened and that after conducting a post mortem examination of that body, he observed that the cause of deceased death was severe bleeding and suffocation caused by a wound on her neck. His evidence was corroborated by that of PW1, PW2, PW3 and PW6 who told the court that upon arriving at the scene of crime, they found the deceased body with serious wounds on her head, neck and private part and they saw a piece of wood stick being inserted on the deceased private part. Moreover, the evidence of PW5 is corroborated by exhibit P2, a Post mortem examination Report which reveals that the cause of deceased death was due to severe bleeding and suffocation. This documentary evidence was neither objected by the accused person. Also, I have examined the sketch map tendered by PW6 and admitted by this court as Exhibit P3 and observed that the deceased body was found lying in the bush near the trees and glasses which tells that after completing his brutal act of killing the deceased person, the killer dragged her body in that area and disappeared. 16 In my view, the above evidence portrays nothing, but the actual and undeniable fact that the deceased person Keflin Thomas died unnatural death. The foregoing makes the court to find that the second ingredient of murder has also been proved by the prosecution side on the standard required by the law. Having said the above, I will now determine whether it is the accused person namely Maige Nkanda who caused the deceased death. Looking at the evidence of all the prosecution witnesses, it is apparent that none of them saw and/or witnessed the said accused fulfilling his evil killing mission against the deceased person. In the circumstance, it is apparent that the prosecution case is based on circumstantial evidence. This makes it imperative for the court to be guided by the principles governing reliability of circumstantial evidence in order to see whether it is actually the accused person who caused the death of the deceased person. It is well settled that in order to rely on circumstantial evidence to convict, each and every incriminating circumstance must be clearly established by reliable and clinching evidence, and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no 17 other hypothesis against the guilt is possible. (See: Michael Mgowole & Another vs Republic (Criminal Appeal 205 of 2017) [2019] TZCA 341 (30 September, 2019). It is also a trite law that where there is evidence that an accused was the last person to be seen with the deceased alivec, then there is a presumption that he is the killer unless he offers a plausible explanation to the contrary. (See: Mathayo Mwalimu and Masai Rengwa v. Republic, Criminal Appeal 147 of 2008 [2009] TZCA 53 (2 November, 2009) and Mark Kasimiri vs The Republic (Criminal Appeal 39 of 2017) [2020] TZCA 170 (24 March 2020 (all unreported). Back to the case at hand, it is alleged that on 18.02.2020 the accused and the deceased person left their home telling their children that they were going to the hamlet leader who is PW3, for divorce addendum following their long misunderstandings. It is also alleged that after leaving their home on that date the duo never come back and as a result of that their daughter approached PW1 to report about her parents' failure to return back home. According to the evidence of PW1 which was also corroborated by the one adduce by PW2, PW3 and PW6, upon getting such information, they started searching for the accused and his wife. Then on 20.02.2020 they 18 found the deceased body with serious wounds and a piece of wood stick being inserted on her genital part. Also, it is alleged by on 22.02.2020 the accused person was arrested by villagers and vigilante whereby upon being interrogated, he confessed to have killed the deceased, his wife. Later he was sent to Tanganyika Police Station where he was interrogated by PW4 and confessed to have killed the deceased person accusing her for being an adulterer. That was stated by PW4 who also tendered the cautioned statement he recorded from the accused person and the same was admitted by the court as Exhibit P1. Not only that, but also there is the evidence of PW7, a Justice of Peace who told the court that the accused person was sent to him on 26.02.2020 and consented to make his extra judicial statement before him through which he confessed to have killed the deceased person with a piece of wood stick by beating her on several parts of her body and used it to insert on the deceased private part. All that evidence was not challenged by the accused person during cross examination. However, in the course of adducing his evidence before the court, he distanced himself from the above incriminating evidence. However, considering the strength of the evidence adduced against him 19 by the prosecution witnesses, I am of the view that his evidence on that aspect is not credible worth of being believed. This is because first, he lied to the court when he purported to have denied having known the deceased person as his wife. He told the court that his wife is Kabula Shija, but in the course of making his statement before PW4 and PW7, he did not mention that person as his wife, but he told those prosecution witnesses that his wife is Keflin Thomas. This is evidenced at the second page of his cautioned statement, Exhibit P1 which shows that the said accused told PW4 that: “Pia mimi nilioa mke aitwaye KEFLEN THOMAS tangu mwaka 2005 na kufanikiwa kuzaanaye watoto watano” (Also, I married a wife called KEFLEN THOMAS since on 2005 and bore with her five children). Again, in the extra judicial statement recorded by PW7, the accused described the deceased Keflin Thomas as his wife and he confessed to have killed her after accusing her of being an adulterer. Also, during cross examination, neither the accused, nor his advocate questioned the prosecution witnesses about whether Keflin Thomas was his wife. It is trite that failure to cross examine a witness on a material fact, is tantamount to acceptance of the truth told a particular witness. (See: 20 Cyprian Athanas Kibogoyo vs Republic, Criminal Appeal No. 88 of 1992 (CAT). Since, the accused failed to cross examine the prosecution witnesses namely PW1, PW2 and PW3 who claimed to have known him well as the husband of the deceased person Keflin Thomas even before the incidence of murder, I am inclined to find him estopped from denying the fact that he is the husband of the said deceased person. It also a trite law that lies of an accused person may be used to corroborate evidence against him. (See: Masumbuko Matata @Madata and Two Others vs Republic, Criminal Appeal No. 318, 319 and 320 of 2009. In the case at hand, the accused person not only lied to the court that he is not the husband of the deceased person, but also, he lied when he totally denied to have killed his wife, the deceased person. I am of that view because apart from the fact that no one saw him when killing the deceased person, the accused failed to give a plausible and reasonable explanation to the contrary that he was the last person to be with the deceased person alive. Also, the accused person never objected the prayers sought by PW4 and PW7 to tender the cautioned 21 statement and extra judicial statements respectively, which the said prosecution witnesses alleged to have recorded from him. The said statements contain the confessional statements which no one would have ever known without their maker who is the accused person. For instance, PW4 and PW7 could not know that the accused and the deceased person were spouses who were blessed with five issues. Nor would either of them know if the duo had matrimonial conflicts prior to the incidence of murder of the deceased, how and where the accused fulfilled his killing evil mission, if he had not unveiled those incriminating facts to them. It is therefore, my settled view that the above cumulative circumstances of the prosecution evidence form a chain so complete which irresistibly point to the guilt in the absence of plausible explanation by the appellant to exculpate himself from the death of Keflen Thomas. Hence, I find him to be responsible for causing the death of the said deceased person. Now comes the last question for my determination. Did the accused person have malice aforethought in causing the deceased death? In order to answer that question properly, one has to consider the circumstances for ascertaining malice aforethought on the part of the 22 accused person, as were outlined in the famous case of Enock Kapela vs Republic, Criminal Appeal No. 150 OF 1994 (CAT at Mbeya) to the effect that: “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 ofthe weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow or blows were directed at or inflicted; (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”. Guided by the above authority, I will start by looking at the available evidence along with the factors which are relevant for determining malice aforethought on the part of the accused person herein. It is the prosecution evidence that apart from causing the deceased death, the accused used a piece of wood stick to assault the deceased on her head, neck and genial part and that, those who found the deceased body at 23 the crime scene (that is PW1, PW2, PW3, PW5 and PW6 saw some blood clots on the injuries sustained by the deceased person. The above evidence is well corroborated by exhibit P2, a post mortem report form tendered by PW5 and admitted by this court without any objection from either the accused or his learned advocate. By virtue of that exhibit, the deceased body was found with blood clots and serious injuries. Also, another corroborative evidence comes from the cautioned statement and the extra judicial statement which were also uncontested by neither the accused person, nor his advocate. From the said legal documents, the accused has expressly indicated that he is the one who killed the deceased person, and in doing so, he used a piece of wood stick to beat her on her head, neck and inserted it into her vagina thereby causing her to sustain injuries, bleed and die instantly. In the totality of the above evidence, it is apparent that the kind of weapon used by the accused person to assault the deceased and inflict a number of blows on her body parts which are fragile/sensitive, resulted to the violent death of the deceased person. Also, the conduct of the accused person to disappear from the crime scene soon after fulfilling his evil killing mission until when he was apprehended, indicates 24 that he had an intention to either cause the deceased death or bodily harm. In my view, either of the two intended acts constitute malice aforethought in terms of section 200 of the Penal Code. Thus, based on the foregoing reasons, I am fully satisfied that the accused person Maige Nkanda had a malice aforethought when he caused the death of the deceased person. The fact that the latter was his wife, does not relieve him from the criminal responsibility because the Constitution of the United Republic of Tanzania, 1977 provides the right to life to each and every Tanzanian citizen despite their age, race or marital status. So, even if his wife had committed the matrimonial offences, the accused could have reconciled and/or settled the said dispute by using the available legal means and not to take away his wife's life. It follows therefore, that due to the reasons which I have endeavored assign above, I am of the settled view that the prosecution Republic has passed the test of proving their case against the said accused person on the standard required by the criminal law. I therefore, find the accused person Maige Nkanda guilty of the offence of Murder contrary to section 196 and 197 of the Penal Code, and convict him accordingly for committing that criminal offence. 25 A.A. MRISHA JUDGE 01.11.2024 SENTENCE There is only one punishment for the offence of Murder once it is proved. I have considered all the aggravating and mitigating factors from both sides. However, my hands are tied by the law and I have to pronounce the sentence against the accused. I therefore, sentence MAIGE S/O NKANDA to suffer death as provided under section 197 of the Penal Code Cap 16 R.E. 2022. I further direct that the said accused shall suffer death by hanging, as provided by section 26 (1) of the Penal Code Cap 16 R.E. 2022. It is so ordered. A.A. MRISHA JUDGE 01.11.2024 Right of Appeal is fully explained. A.A. MRISHA JUDGE 01.11.2024 26