republic vs malando marco 2022 tzhc 15469 1 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ORIGINAL JURISDICTION IN THE SUB-REGISTRY OF MWANZA AT CHATO. CRIMINAL SESSIONS CASE NO. 08 OF 2020 THE REPUBLIC VERSUS MALANDO MARCO …………………………………………….….….…. ACCUSED RULING 16th November - 1st December, 2022 ITEMBA, J The accused person, Marco Malando stands charged with the offence of murder, contrary to sections 196 and 197 of the Penal Code, Cap. 16 [R.E 2019]. It is alleged that on 21st September, 2016, at Nyarubanga village within Geita District, in Geita Region, the accused person murdered Ashura Kadoshi. The facts of the case albeit in brief are that; on the fateful night, the deceased and her children Thecla Tenes and Senzo Lusanyika were invaded by the accused person. That the accused was holding machete and a torch, and he cut the deceased on various parts of her body. The said Thecla and Senzo ran away to save their lives. An alarm was raised that gathered neighbours and other villagers, at the scene of crime. The neighbours found Ashura Kadoshi had already breathed her last and they took her body to the hospital. It is further alleged that, on the following 1 day, the accused person went to Senzo Lusanyika and warned him not to tell anyone about what he witnessed at the fateful night. To prove its case, the prosecution marshalled the attendance of two witnesses Christopher Yohana Matola a medical doctor (PW1) and G.206 D/CPL Said an investigator (PW2). The two produced a deceased post mortem report (exhibit P1) and a sketch map (exhibit P2) respectively. Then, the prosecution case was closed. After the closure of the Prosecution’s case and pursuant to the provisions of section 293 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2019, the court has a duty to consider whether the accused have a case to answer, taking into consideration the testimony adduced in court. In arriving at a conclusion, the court has to determine if evidence adduced by the prosecution establishes a case that warrants the accused to put his defence on the matter. In other words, the issue is whether a prima facie case has been established against the accused person. This mandatory requirement of the law is long established by the East African Court in Ramanlal Trambaklal Bhatt v. Republic (1957) 1 EA 332, wherein the following remark was made: (a) “It may not be easy to define what is meant by a “prima facie” case, but it must mean one on which a reasonable 2 tribunal, properly directed its mind to the law and the evidence could convict, if no explanation is offered by the defence. (b) The question whether there is a “case to answer” cannot depend only on whether there is “some evidence” irrespective of its credibility of weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. (c) The onus is on the prosecution to prove its case beyond reasonable doubt, and a “prima facie” case is not made out if, at the close of the prosecution the case is merely one which, on full consideration might possibly be thought sufficient to sustain a conviction”. Having gone through the evidence of the said two prosecutions’ witnesses along with the two exhibits, I do not find any evidence which incriminates the accused person with the offence of murder under section 196 of the Penal Code which he stand charged with. The elements of murder being unlawful killing and malice aforethought do not feature in the prosecutions’ evidence and have not been proved against the accused person. This is a homicide case which attracts a capital punishment, unexpectedly, the evidence adduced by the prosecution in case is, largely built on the hearsay evidence from the medical doctor (PW1) and an 3 investigator (PW2). This evidence was not corroborated anyhow and clearly, it cannot be relied to establish a prima facie case. Consequently, pursuant to the provisions of section 293 (1) of the Criminal Procedure Code, I find and hold that the accused person has no case to answer and, therefore, not guilty of the offence of murder. The information is hereby dismissed. Accordingly, I order the acquittal of Malando Marco, and that he be set to liberty, unless held for other lawful reasons. It is so ordered. Right of appeal explained. L.J. ITEMBA JUDGE 01.12.2022. 4