republic vs msiba wegoro 2 others 2022 tzhc 15262 12 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY O MUSOMA AT MUSOMA CRIMINAL SESSIONS CASE NO. 95 OF 2022 REPUBLIC VERSUS MSIBA WEGORO............................................................................................ 1stACCUSED UNJO WEGORO.............................................................................................. 2ndACCUSED RUGINA GASIGE @ JOGORO........................................................................ 3rdACCUSED JUDGEMENT 21st Nov & 12th Dec, 2022 M, L, Komba, J.: In this case, the accused persons were arraigned before this court for the offence of murder contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E. 2019 now 2022]. According to the information of murder filed in this court, it is alleged that, on 25/12/2020, at Bulaga village in Musoma District, accused persons murdered Jagina Buriro @ Mwijarubi. It was further alleged that; the accused and the deceased were in the bar having drinks where they exchange words alleging the deceased has more money than the other. Story continued and the deceased went outside of the bar where he faced his death. According to exhibit Pl cause of death was over bleeding which resulted from being beaten by blunt object on the back side of the head. As a result, Msiba Wegoro, Unjo Wegoro and Rugina Gasige @ Jogoro were i both accused and consequently, arrested and arraigned before this court facing charge of murder of the deceased contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E. 2019 now 2022]. Accused persons denied the charge against them. To prove this story for accused persons to be convicted, the prosecution had a total of four witnesses namely, Musiba Mwijarubi Kailanya (PW1), Magesa Wang'uba Magesa (PW2), Saidi Maneno Hussein (PW3) and G 3785 DC Coplo John (PW4). The prosecution had one exhibit which is the deceased's post­ mortem report (Exhibit Pl). During the trial, the Republic was represented by Mr. Nico Malekela and Mr. Tawabu Yahya, the learned State Attorneys. The three accused persons were represented by Mr. Godwilly Mweya, an advocate. On the prosecution evidence, PW1 (Magesa Wang'uba Magesa) testified that it was on 25/12/2020 around 21:00 hrs he was at the bar for a drink with Jagina Buriro, Kasaka Mwijarubi and Magesa sharing a table. Then four young men emerge who are Marko Jonas, Msiba Wegoro, llnjo Wegero and Rugina Kasige who had their table closer to one which PW1 set with his friends. He testified further that, there were exchange of words between 2 Rugina and Jagina whereby Jagina said he has money from fishing activities and that he will drink beer until down and that others don't have money. In due cause Rugina took a beer from PW1 table and went out the bar that action forced Jagina to follow Rugina claiming for his beer. It was his testimony that when the two were outside along the road they started fighting, Rugina and others beat Jagina. He said he heard a sound from outside saying beat him he claims to have money "piga anajifanya ana he/a/' and he decided to go outside where he found deceased laying on the land while bleeding from the back head (kisogoni). PW1 informed the court that he asked Rugina why he beat Jagina and he replied do you want the same? At that time 1st accused and 2nd accused were carrying stones. There after he decided to run to his home because Musiba Wegoro and Unjo were chasing him. Upon arrived at his home they were stopped by the dogs. It is his testimony that he went back at the scene and found Jagina was dead and he informed police. The body were taken to deceased fathers' home where on 26/12/2022 investigation was conducted and later on burial ceremony followed. He said he was aided by electricity light to identify those who beat deceased. 3 During cross examination, PW1 said the beer was taken by Marko and that he saw what happened outside while he was inside the bar. They beaten deceased by using stone but he did not take any one for exhibit. He testified further that he did not hide Marko, Marko ran away and they failed to catch him because they afraid of his muscular body. PW2 (Saidi Maneno Hussein) informed the court that he was with Musiba Mwijarubi, Jagina Buriro, Kasaka Mwijarubi drinking beer in the bar and when he felt enough, he left the area and go home only to be informed by Mchambe Daudi that his nephew (the deceased) was beaten and has fallen over the road. It is his testimony that when arrived at the scene he asked Musiba Wegoro who has beat his nephew he answered to be the one and upon inquiring reasons for that Musiba attacked PW2 with a stick. PW2 ran to nearby homestead for help till when the police came for other logistics. It is his testimony that he managed to recognize Unjo Wegero and Musiba Wegero by the aid of the electricity light and that he knows their voices as they were living in the same village, furthermore the distance from him to where Unjo and Musiba were standing was like three steps only. 4 During cross examination he testified that Unjo and Musiba Wegero were not drinking at the bar rather they were outside the bar and he further testified that he did not witness when they were beating the deceased. PW3 Said Maneno Hussein also was paraded by prosecution in order to build their case. He is a Clinical Officer working with Kurugee Dispensary having 4 years' experience who was tasked to investigate the body. Deceased person was a male, black adult introduced to him by Kasaka Mwijarubi and Musiba Mwijarubi. He testified that the deceased was called Jagina Buriro whose body was found lying looking upward. The deceased had three wounds. Two of them was bruises, one on the right side of his head, the other one on the back side of head. He also had a wound in backside of his head (kisongo kilichanika) and that the place was bleeding. He testified that source of death was over bleeding due to the beating by blunt object on the head. PW4 (G 3785 DC CpI John), testified to be a Police Officer in Musoma Central Police working, in investigation of crime Department having ten years' experience in the field. On 27/12/2020 he was assigned a file to conduct investigation about murder which occurred in Bulaga village, Musoma Rural in Mara Region. He testified that the crime took place on 25/12/2020 and the file concerned three (3) accused persons who are Msiba Wegoro, Unjo 5 Wegoro and Rugina Gasige. He further testified that on 25/12/2020 the accused together with deceased they were in bar having drinks in two different tables. During the drinking there arise debate by exchange of words where the deceased was telling other, they don't have money they have to leave the place, he has money. It was PW4 testimony that after exchange of words, a person from the table of accused stood up and take a bottle of beer from the table where the deceased was sited and they went outside with it, the deceased was forced to follow them where they went with his bottle. He further adduced that while they were outside the exchange of words continue. They were 4 people outside who are Unjo Wegoro, Msiba Wegoro, Rugina, Gasige and Marko Jonas. The accused attacked the deceased by stone on the backside of his head, he fell down and died on the spot. After that occurrence Marko Jonas ran away. He further testified that Musiba and Unjo decided to go home fearing to be attacked by the accused relatives. And then went to Saragana where they were arrested from there, Rugina was arrested at bulaga village and one accused is at large. When cross examined PW4 testified that he was informed by Rugina himself that he was arrested at Bulaga and further that he was informed of the whole story while he was at bar for investigation. 6 The prosecution case was marked closed and the accused persons were required to enter their defence in accordance with section 293(2) of the Criminal Procedure Code [Cap 20 R.E 2019]. The defence case was opened, the accused persons testified. Musiba Wegero testified as (DW1), Unjo Wegoro testified as (DW2) and Rugina Gasige Jogoro, testified as (DW3). In his defence DW1 Musiba Wegero testified that on 25/12/2020 he went to bar found other people in bar including Marko Jonas, Musiba Mwijarubi and Kasaka Mwijarubi and other people whom he joined Marko for a beer in the same table. While drinking, Jagina and Marko were exchanging words. Jagina was telling Marko he has money and that Marko has no money for drinking. Marko decided to take Jagina's beer and went outside and Jagina followed him. PW4 informed the court that he heard voice of people shouting from outside "stop the music" then DW1 and his colleague went outside the bar and found the body of Jagina was laying down and Marko was around. He testified further that Msiba Mwijarubi asked DW1 whereabout of Marko because they were in the same table. Msiba attacked DW1 by words demanding DW1 to show where is Marko who was already run away and he was told that if he won't show Marko, he will face the music at night. 7 Following that threat then DW1 decided to go to Saragana and on 26/12/2020 DW1 was arrested. During cross examination he confirmed that it was Marko Jonas who took Jagina's beer and that he did not informed village leaders nor the police about the threat from Jagina's relatives. Unjo Wegoro, DW2 had the same story just like DW1 and testified that on 25/12/2020 while in bar Jagina and Marko went outside he heard a command of shutting down the music, then someone said Marko has beaten Jagina. He decided to go outside and found Jagina laying down. Musiba asked Marko why he did that then Marko decided to run away and Musiba Mwijarubi decided to run after Marko but he missed him. It was DW2 testimony that when Musiba failed to catch Marko he told those who were drinking with Marko that they will face the music as Jagina. "msalaba utakuwa wetd' we will do as Jagina. DW2 was arrested in Saragana and taken to Police Station where he was interrogated and record statement. During re-examination he testified that DW2 failed rescue Jagina and Marco fight because he was inside the bar and the fighting took place outside the bar. 8 DW3 (Rugina Gasige Jogoro) informed the court that on 25/12/2020 he went to Bulaga center into a bar for a drink where he joined his friends who are Marko Jonas, Unjo Wegoro and Msiba Wegoro and there were other people in the bar in different table including Jagina Buriro, Msiba Mwijarubi, Kasaka Mwijarubi and others. DW3 further testified that Jagina and Marko exchange words over who has money and then one gave the other beer Marko took beer and drank then Jagina started to claim back his beer. He holds Marko by squeezing his shirt and they went outside, suddenly people were shouting put the music off some body was beaten. It was his testimony that following that alarm, most of people who were in the bar went outside including DW3, his friends and relatives of Jagina where they found Jagina laying down facing upward while Marko was around. When Msiba asked what happened, Marko started to run away and Msiba decided to run after Marko but he did not catch him and decide to shift the burden to Markos' friends. He further testified that when he went home, that night people went to look for Marko including Msiba Mwijarubi and he decided to go Busekela Police Station to report the incidence where he found relatives of Jagina and DW3 was arrested so that he can assist police to find Marko. 9 During cross examination he explained that Jagina was injured while he was outside and that DW3 was inside. Having considered the prosecution's evidence, the major question for determination by this court is whether the prosecution proved the case beyond reasonable doubt. I should make it clear that, the law imposes an obligation for the prosecution to prove the case beyond reasonable doubt. For clarity and easy reference section 3 (2) (a) of the Evidence Act, Cap. 6 R.E. 2019 provides that; 14 fact is said to be proved when- (a) In criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;' The above position is also stated in the case of Hemed vs. Republic [1987] TLR 117 where the court stated that: '...in criminal cases the standard of proof is beyond reasonable doubt Where the onus shifts to the accused it is on a balance ofprobabilities.' In line with the above provisions of the law, the prosecution has the onus of ensuring that the offence is proved to the required standard. It implies that the prosecution evidence must be so convincing that no reasonable person would ever question the accused's guilt. The same was held in the cases io Anatory Mutafungwa vs. Republic, Criminal Appeal No. 267 of 2010, Court of Appeal of Tanzania and Festo Komba vs. Republic, Criminal Appeal No. 77 of 2015, Court of Appeal of Tanzania (both unreported). The stance was fortified in the Mohamed Matula vs. Republic [1995] TLR 3 where the Court insisted that: "Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence.' Now, in this case, the accused was charged under section 196 of Cap 16 which establishes the offence of murder. It is therefore pertinent for the elements of the offence to be proved before a conviction can be entered against the accused. The section provides: 'Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.' There are four elements requiring proof in the offence of murder. First, there must be death of a person. Second, the death must be a result of an unlawful act or by an unlawful omission. Third, the prosecution's evidence must satisfy, beyond reasonable doubt, that the accused is the one who ii killed. Fourth, the killing must be preceded by a pre-meditated evil intention (malice aforethought). In the case at hand, there is no doubt that Jagina Buriro met his death on the night of 25/12/2020. The evidence shows that, he was injured in the backside of his head while outside the bar, along the road. There is no hesitation to declare that the death of the deceased was unnatural. Therefore, actus reus\s proved. Next for determination is the issue; who caused the deceased's death. I need to address my mind to the predominant legal principles which are of relevance to this case and will guide this court in this judgment. These cover aspects of criminal law, as well as the law of evidence. In other words, whether or not the accused persons are responsible for the murder of the deceased. There is no eye witness among the prosecution witnesses. In proving this vital element, the prosecution's evidence is hinged on circumstantial evidence. There is a plethora of authorities on the application of circumstantial evidence in criminal cases. For instance, in the case of Bahati Makeja vs. The Republic, Criminal Appeal No. 118 of 2006, Mwanza (unreported), the Court of Appeal of Tanzania observed that: 12 'in a case depending conclusively on circumstantial evidence the Court must before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis that of guilty.' More over in the case of R vs. Kerstin Cameron [2003] TLR 84 the Court had the following to say in connection with application of circumstantial evidence; 'To ground a conviction on circumstantial evidence, the following principles must apply: (a) The evidence must be incapable of more than one interpretation; (b) The facts from which an inference of guilty or adverse to the accused is sought to be drawn, must be proved beyond reasonable doubt and must clearly be connected with the facts from which the inference is to be drawn or inferred; (c) In murder cases, evidence should be cogent and compelling as to convince a jury, judge or court that upon no rational hypothesis other than murder can the facts be accounted for'. See also the case of Sadiki Ally Mkindi v. DPP, Criminal Appeal No. 207 of 2009, CAT at Arusha and Lucia Anthony @ Bishengwe v. The Republic, Criminal Appeal No. 96 of 2016, CAT at Mwanza (both 13 unreported). The latter case reproduces various conditions for the application of circumstantial evidence to apply. In the case at hand, despite lack of an eye Witness, the evidence of PW1 was to the effect that he was inside the bar while the fight, if at all, occurred outside. He heard sound from outside saying 'beat him who claim to have money' then he decided to go outside where he saw deceased laying down while bleeding from backside of his head(kisogoni). Although he insisted to see what was going on outside while he was inside, he then declared he heard voices from outside. The evidence of PW2 shows that he was informed of the crime by his nephew while he was on the way home. PW4 evidence was purely hearsay evidence. Section 62 of Evidence Act, Cap.6 provides that oral evidence must in all cases be direct. Whatever that is not direct is hearsay and therefore the same is not admissible since direct evidence is the best evidence. In the case of Vumi Liapenda Mushi vs Republic, Criminal Appeal No. 327 of 2016. The Court of Appeal of Tanzania held that hearsay evidence has no value and are discredited. The suspicion intensified when the accused were found outside the bar, carrying stones which were not tendered any way as exhibit. The two 14 witnesses confirmed to hear sound and voices of people outside the bar. PW1 also insisted to be familiar with accused persons' voices as he saw them since they were born and growing. However, there is no proof that those who were shouting, are the ones who actually throw stone (s) to the deceased. What was found is that 1st and 2nd accused were carrying stone(s). It is evident that, the accused met his death while laying down facing upward bleeding from the back of his head. The fact that he was laying down suggests multiple actions could be the cause not necessarily be beaten by a stone. If at all stone(s) were used, then, who actually stoned the deceased to death. In alterative maybe he was pushed down and hit his head on hard surface. These questions remain unanswered by the time prosecution closed their case. In murder cases, evidence should be persuasive and compelling as to convince a judge or the court that upon no rational hypothesis other than murder can the facts be accounted for. The prosecution witnesses testified to the effect that they were suspecting the accused persons. I am asking myself whether the evidence of the prosecution witnesses is enough to render this court to find that the accused persons are guilty. Reading the 15 prosecution evidence, it is clear that the evidence on record is based on hearsay evidence and suspicion. In general, there is no water tight evidence to directly link accused persons to the murder of the deceased. The court cannot depart from the standard established on the proof beyond reasonable doubt and decide based on suspicion. Grounded on the reasons stated above, the court does not find accused persons guilty of the offence charged. Therefore, the accused persons Msiba Wegoro, Unjo Wegoro and Rugina Gasige@Jogoro are hereby acquitted. They should be discharged forthwith unless held for other lawful reasons. M. L. KOMBA JUDGE 12th December, 2022 16