republic vs sami nzalia kisenga 2022 tzhc 15846 23 december 2022

IN THE HIGH COURT OF TANZANIA AT SHINYANGA CRIMINAL SESSION CASE NO. 1 OF 2021 REPUBLIC VERSUS SAMI NZALIA KISENGA JUDGMENT 8th & 23rd December, 2022. S.M. KULITA, l. The accused person, one Sami slo Nzalia @ Kisenga stands charged with "Murder" contrary to the provisions of Sections 196 and 197 of the Penal Code [Cap 16 RE 2019]. It is alleged by the prosecution that, on 13th May, 2019 at Nyaligongo village, within Shinyanga District, in Shinyanga Region, the accused person murdered one Holo d/o Kisenga. The facts presented by the prosecution which gave rise to this trial are that; on 13th May, 2019 at about 1930 hours, the accused person went to the deceased's house and attacked her with "panga". He cut her on different parts of her body. The deceased's husband one Luchanganya Luhemeja together with her son namely Seleman 1 Luchanganya tried to rescue her but they only found them attacked too. With the help of a torch light, the deceased's son, Seleman Luchanganya I managed to identify the accused and mentioned him. The accused managed to escape from the scene. Alarm was raised, but the people who responded it, found the deceased already dead. They just managed to take the deceased's son and husband to hospital. The incident was reported to Police, the post-mortem investigation was conducted and cause of death was revealed to be the multiple cut wounds that led to severe bleeding. The accused was thereby arrested and when I interrogated he confessed to have killed the victim. As such, the accused was arraigned to court for murdering Holo Kisenga. When the information of murder was read to the accused person during the Plea taking and Preliminary Hearing, he pleaded not guilty to it. Further, on 8th December, 2022 when the case came up for trial, the charge of murder was reminded to the accused, he further pleaded not guilty thereto. T In discharging the duty of proving the charge against the accused, the prosecution side called six witnesses and tendered five exhibits. The defense side had only one witness, the Accused himself with no exhibit to tender. The evidence of the prosecution and defense sides can be summarized as follows: 2 Richard Mwikwabe Okwochi testified as PW1. His testimony was to the effect that, in 2019 he was working as a Doctor at Shinyanga Referral Hospital. He said that on 14thMay 2019 he received a call from the Regional Crime Officer (RCO) that he should go with Policemen to the murder incident for post-mortem investigation. He added that, they went to Mwakitolyo where they met the deceased body with the cut wounds on the head and neck. He added that, the deceased was a female, aged 50 years old, and that the autopsy revealed that the cause of death was severe loss of blood due to the multiple cuts on her body. The witness further stated that he filled the post mortem-report for the autopsy he had conducted. He tendered it to court and the same was admitted as Exhibit P1. Seleman Luchanganya who testified as PW2 stated that, on 13th May, 2019 at night he was at their home together with his father, mother and sister who was cooking in the kitchen. He stated that, the distance between him and his parents was about 5 meters away. He added that, he heard a shout from them, he lighted a torch and managed to identify the accused who was assaulting the deceased with 1 panga at the neck and head. He said that, the accused is his uncle's son. PW2 went on stating that, the accused then tried to assault him too. He said that it was this time when the accused hat fell down, the point 3 ....__~J. . " ..~_ _~------ ~--.-.--------- ----.----------~ -- -.------------------~-.- ..~-.- ..-.------~- -----.~----- ----------.--- which he managed to identify him. He added that, on that date, he together with his father were all injured by the said bandit. He said he resorted into shouting for help but people gathered when the accused had already left. He said that his torch was of high intensity as it uses 3 batteries. He further stated that, the incident took about five minutes. When cross examined PW2 stated that, without the help of a torch he I could not see the person. As for the cloth that the accused had worn, he said he does not remember. He said that he does not know the source of the attack as they had no conflict with the accused person. Nhale Masumbuko Lushona testified as PW3. His testimony is to the effect that, on 13th May, 2019 he followed an alarm at the deceased house and found that, Holo Kisenga was cut to death. He added that Seleman Luchanganya told them that, he had identified the killer as Sami Nzalia, the Accused herein. He added that, they searched for him, but his wife told them that, he had gone to Masumbwe. On 19th May, 2019 they decided to follow the accused at Masumbwe. He stated that thereat Masumbwe they reported the matter to the Village Executive Officer (VEO) who then arrested the accused and handled him to them on 20th May, 2019. On the same date, they took the accused to Mwakitolyo where he was handled to commander of "sungusungu". He said that, all the time the accused was of good healthy. When cross 4 examined PW3 stated that, they were no conflicts between the accused and the deceased. He added that, on the material date, it was so dark that no one could see the other without help of a torch. He further said that when he arrived at the scene, he saw Seleman Luchanganya without a torch. The 4th witness for the prosecution one Samson Lutema Mtonja (PW4) testified that, he is a Ward Executive Officer (WEO) for the area J. where the incident occurred. He said that on the material date, he was at Salawi, which is located at 45 km away from where the scene. He said that he received an information regarding the incident from VEO. On the next day, he arrived at the scene and upon asking the Sungusungu Commander he was told that, it is Sami Nzalia who had killed the deceased. He ordered for the arrest of the accused. It took up to 20th May, 2019 when the accused was arrested at Masumbwe. He .l added that, upon interrogation the accused person confessed to have killed the victim for the reason that, the victim had bewitched his father to death and that they had a land conflict. The witness further said that by the time the accused was interrogated he was healthy. He added that, he also called the police who arrived and took the accused. When cross examined PW4 stated that, he saw the deceased with one wound at the neck and two wounds at the head. 5 Irene Theophil Makundi (PW5) testified that, in 2019 she was working as a Magistrate at Urban Primary Court in Shinyanga. She said that, on 30th May, 2019 while she was at her working station she was I followed by a Police Officer who told her that she had come with the accused person who was intending to confess before her as a Justice of Peace. She went further stating that, having received the said accused person, she gave him his rights, she then recorded his confession. PW5 then tendered to court the extra judicial statement that she had recorded. It was received and admitted as exhibit P2. PW5 managed to identify the accused person in the dock. When cross examined PW5 stated that, the form shows that what the accused had stated was his confession. PW5 went further stating that, in the extra judicial statement form, she is named as a Magistrate, but she hurriedly said that, she had identified herself to the accused person as a Justice of Peace. She said that, she inspected the accused as he put off his shirt and pulled up his trouser. F 1732 DjSgt Gisabo testified as PW6. His testimony is to the effect that, while he was at his working station at Salawi Police Station on 13th May, 2019 he received the information about the incident. He said that, he, together with other police officers, attended the scene of crime and found how the deceased was cut to death. He further said 6 that they drew a sketch map and interrogated witnesses, while the Doctor conducted the post-mortem examination. It is the further testimony of PW6 that at the scene, people said that, Seleman ... Luchanganya had identified the accused being Sami Nzalia. PW6 also stated that he is the one who drew the sketch map of the scene. He then tendered it to court and the same was admitted as Exhibit P3. He went ahead contending that, as the Investigator of the case, he managed to interrogate Mzee Luchanganya (Luchanganya Luhemeja) on 24th May, 2019. He added that the said Mzee Luchanganya is now dead. The witness prayed to tender to court the said person's statement. _l Under section 348(1) and (2)(a) of the Evidence Act. It was received and admitted as exhibit P4. PW6 went further stating that on 2pt May, 2019 he rearrested the accused person at the WEO's office. As the Accused person admitted that he had committed the offence, PW6 recorded his caution statement after availing to him with all rights that he deserves. He tendered the said caution statement to court and the same was admitted as exhibit PS. PW6 added that, the accused person pleaded guilty and convicted on the Assault case that he had been charged at the District Court. When he was cross examined on that, PW6 stated that he has never seen the judgment for that case. 7 . J, ,~~__~ ..... ~_ ..... ..... ----- ..... ----.-.~------ ..-------.-----~----~--------- ..----~ ..... ---.- ..-- .... -------------------.- ..-- ---------.-- T On these six witnesses as I said earlier, the prosecution case got closed. In terms of the provisions of section 293(2) of the Criminal Procedure Act [Cap. 20 RE 2019] the accused person was found to have a case to answer, hence asked to defend his case. After being addressed in terms of section 293(3) of the Criminal Procedure Act the accused person opted to testify alone on oath. The Accused person herein, Sami Nzalia @ Kisenga who testified as DWl testified to the effect that, on 20th May, 2019 he was at Masumbwe for cultivation. He was arrested and taken to VEO for Masumbwe, then handled to two militias who were from Mwakitolyo. He added that, they took him to Mwakitolyo before WEO where police officers arrived and took him to the police station. He said he was then tortured for some days compelling him to admit that he had killed his aunt. He said as he did not admit it, at last, he was just forced to sign the papers of which he did not know its contents. He went further stating that, he was then taken to Shinyanga Police Station, where he was further beaten. He was also threatened by police officers that he should confess before the Justice of Peace when he is taken thereto. When cross examined he stated that while the deceased passed away, he was at home and heard the alarm but he did not attend. He said 8 that, he left for Masumbwe on 17th May, 2019. He added that, he had no conflict with the victim. That marked the end of both parties' evidence. In view of the above evidence, the following issues call for determination: - 1. Whether the victim's death was unnatural (if yes), 2. Whether the accused person is responsible for that death of the victim (if yes), 3. Whether the accused person with intention/malice aforethought killed the victim. Concerning the first issue, whether the victim's death was unnatural, first, it is not disputed by either party that Holo Kisenga is dead and that her death was unnatural. According to the post-mortem report which ___ I. has been admitted in court as Exhibit Pi, the cause of the death of the victim is severe bleeding caused by multiple cut wounds. The evidence shows further that, the cut wounds were directed to the head and neck of the victim. In my view, such multiple cut wounds on the neck and head proves that the victim's death was unnatural. As there is no evidence __ l disapproving this fact, I find no need of dwelling much on this issue. It is 9 therefore positively answered that the deceased, Holo Kisenga met unnatural death. Concerning the second issue as to whether the accused person is responsible for the killing of the victim, Holo Kisenga, the prosecution I side relies on visual identification of PW2;-oral confession made before PW4, caution statement taken by PW6 and extra-judicial statement noted down by PWS. I am going to discuss this issues one after the other, relying on their reliability. Starting with the issue of identification as testified by PW2 one Seleman Luchanganya. The main issue is, with that testimony of PW2, can we say with certainty that the accused person was properly identified at the scene of crime? Proper identification presupposes whether circumstances at the material time were favorable for a correct identification. See, Paschal Petro Sambula @ Kishuu and 2 Others vs. Republic, Criminal Appeal No. 112 of 2005, CAT at Arusha. In a good number of cases, it was held that, even when one testifies to have known the invaders before, be it his relatives or friends, mistaken identity can be made. This is so when the conditions are not 10 favorable for that purpose. See, Issa Mgara @ Shuka v. Republic, Criminal Appeal No. 37 of 2005, CATat Mwanza where it was held; '!4s occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made" That position of the law carries me to ask myself as to whether the conditions at the material time were favorable for correct identification by PW2. PW2 testified that when he just heard his parents shout, he lighted a torch towards the accused person and instantly managed to identify him. Then, the same witness, while going on testifying, told the court that, by the time the accused person had finished attaching the victim, he turned to his father then to him. He added that, by the time the accused started attacking him, it is when his hat fell down, and that was the point he managed to identify the accused person. These two versions of the same witness, PW2 differ as to the time when he managed to identify the accused person; was it in the beginning when PW2 lightened the torch, just after hearing his parents 11 shouting? or at the time when it was his time to be attacked whereby the Accused's hat fell down? This brings doubts on the testimony of PW2. The second version is the time within which PW2 used in observing the accused person. PW2 told the court that the whole incident lasted for five minutes, but he did not say for how long within those five minutes he used to observe the accused person. If PW2 observed the accused person just when he heard his parents' shout, this also presupposes that he used very few seconds as he could not wait for I that instead of rescuing his mother. And, if he observed the accused person by the time it was his turn to be attacked, it follows therefore that he used very few seconds, as he was busy defending himself. Further, during both of the periods the accused was not static, but in movements. This situation shows that, the circumstances were not favorable for correct identification. Furthermore, as PW2 and PW3 in their testimonies told the court that, the material date was so dark, that I observation could not be done without the" help of a torch light, the fact that PW3 told the court that at the scene of crime he saw PW2 without a torch, casts much doubts on the testimony of PW2. That conclusion is cemented with the statement of Luchanganya Luhemeja, the father of PW2. In his statement which was admitted under section 348 of the Evidence Act and marked as exhibit P4, the author was recorded just to 12 have asked PW2 whether he correctly identified the accused person. The statement is silent as to the falling down of the accused's hat, the ground which PW2 wants this court to regard as a point that he properly identify the accused person. Had he used this chance to identify the . Accused, he could have not failed to say it to his father. On that account, I am of firm views that, conditions at the material time, were not favorable for correct identification of the accused person. This presupposes that, the accused person was mentioned to have been the killer because of the grudges that he had with the deceased as stated by Luchanganya Luhemeja in exhibit P4. Concerning the extra-judicial statement, the same was tendered to court and admitted as exhibit P2. The record is clear that, the same was admitted without objection from the defense side. Its impact is that, the accused person can never say that, the extra-judicial statement was involuntarily taken. This was stated in the case of Vicent Ilomo. v. The Republic, Criminal Appeal No. 337 of 2017, CAT at Iringa (unreported) where the Court cited a passage from the case of Emmanuel Lohay and A.nother v. The Republic, Criminal Cas~ No. 278 of 2018, CAT at Arusha (unreported). In that case, the said Court had this to say: 13 'It is trite law that if an accused person intends to object to the admissibility of a statement/confession he must do so before it is admitted and not during cross-examination or during defense - Shihoze Semi and Another v. Republic (1992) TLR330. In this case the appellants 'missed the boat' by trying to disown the statements at the defense stage. That was already too late. Objections, if eny, ought to have been taken before they were admitted in evidence" The availability of the above quoted principle of law, overrules the accused person's defense that, he was threatened to confess before the Justice of Peace by the police officer who took him to the Justice of \ Peace. Further, concerning the same extra-judicial statement, the law is clear that, conviction can safely be sustained basing on it alone. This position was also confirmed in the Court of Appeal case namely Mashimba Dotto @ Lukubanija v. The Republic, Criminal Appeal No. 317 of 2013, CAT at Mwanza (unreported). \ However, in this case, prosecution side depends also on the retracted caution statement which was tendered by PW6 and the oral statement 14 as testified by PW4. The peculiar thing is that, the caution statement is so much detailed with all features just like those read in the extra- judicial statement. This shows that, the same was also procured without torture and justifies nothing but the truth. The question is, if the prosecution side were to end up with the only above kind of evidence, would the accused person's defense exonerate her from conviction? The accused person, when testifying in court as DWl admitted to have known on the same material night that the deceased who was his aunt had passed away. Further, he admitted to have heard the alarm (mwano) calling people to the scene of incident. Yet, he testified to have not gone for the alarm, Worst still, on the following morning he left for cultivation to a place namely Masumbwe located far from where the incident had occurred. The accused's act of not attending the funeral and leaving away from his residential premise, while his aunt whom he admitted to have no conflict with, has passed away, can make any reasonable person wondering as to what the accused person had done. Such conducts of the accused can not exonerate him from this case, but furthering the prosecution case. Further, though it was not so addressed by deceased's son (PW2) and husband, the Accused's admission in the 15 Caution and Extra-Judicial statements that the victim had bewitched his father to death and that they had a land conflict, makes me to believe that the Accused had an evil mind against the deceased. This issue is r therefore answered in affirmative that it is the accused Sami Nzalia who killed the victim Holo Kisenga. Concerning the last issue, whether the accused person killed the deceased with malice aforethought. This issue tends to prove whether the accused is guilty of murder or manslaughter. In the case of Enock Kipela Vs Republic, Criminal Appeal No. 150 \ of 1994, CAT at Mbeya (unreported), the Court of Appeal had an occasion to consider a situation like the one at hand, in which it stated; "Usually, an attacker will not declare his intention to cause death or grievous harm. Whether or not had that intention, must be ascertained from various tsctors, including the following: (i) The type and size of the weapon, if any used in the attack; (ii) Theamount of force applied in the assault; (iii) Thepart or parts of body the blows were directed at or inflicted on; 16 (iv) The number of blows, although one blow may, depending upon the facts 0 f a particular case, be sufficient for thispurpose; (v) Thekind of injuries inflicted; (vi) The attacker's atterences. if an~ made before/ during or after the killing/and (vii) Theconductof the attacker before or after the killing. (Emphasissupplied) In connection to the above excerpt, as we have seen above on what the Post-Mortem report has provided. The victim's body had cut wounds on the head and neck which are vulnerable parts of the human body. Further, the type of object used in killing the deceased is sharp. On those premises it is thus right to conclude that, the accused person intended to cut the deceased to death. If his intention was not to kill, then attack should have not been with a sharp object and should have not been directed to those delicate/vulnerable parts of the body. Further, the accused testimony shows that inspite of being aware I of the death of his aunt (deceased) yet he left for his cultivation activities to Masumbwe, away from the place where the incident had occurred. This depicts the accused person's ill motive, hence it is my conclusion that the killing was intentional. 17 On account of the above analysis,"this issue too is answered in affirmative, that, the accused person killed the victim/deceased with malice aforethought. All said and done, with this evidence, and for want of evidence from the defense to create reasonable doubts, I am settled in mind that, the prosecution case has been proved beyond all reasonable doubts as required by the law. In view thereof, Sami Nzalia @ Kisenga is hereby found guilty of the offence of murder contrary to the provisions of sections 196 and 197 of the Penal Code [Cap. 16 RE 2019] and he is accordingly convicted. 18