republic vs baraka so aron mashimba 2022 tzhc 15095 8 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ORIGINAL JURISDICTION IN THE SUB-REGISTRY OF MWANZA AT CHATO CRIMINAL SESSION CASE NO. 140 OF 2019 THE REPUBLIC VERSUS BARAKA S/O ARON @MASHIMBA……………………….………………ACCUSED JUDGMENT 21st - 29th November & 8th December, 2022 ITEMBA, J. The deceased, Aron Juma, a student of form 2, just like any teenager, was playing football in the neighbourhood not knowing the tragedy which is about to face him. His uncle Baraka Aron Mashimba, the accused person, called him, carried him on his bicycle towards the rice fields. Moments later, the accused made a call to his sister, Neema Mashimba breaking the news that Aron Juma was found dead in the rice field, next to a rice paddy. Investigation commenced and the accused was arrested in connection to the demise of Aron. 1 The accused was arraigned before this court on an Information of murder contrary to section 196 and 197 of the Penal Code Cap 16 [R.E 2002]. The particulars of the offence voiced that on the 18th day of May 2019, during evening hours, at Kona village within Nyang’hwale District in Geita Region, the accused Baraka Aron Mashimba murdered Aron Juma. In efforts to prove the alleged offence, the prosecution relied on three witnesses namely F7363 D/CPL Manase, Emmanuel Mbatano William, and Daniel Martin Nyangi and three exhibits; a report on mental condition of the accused from Isanga institution, (Exhibit P1), a sketch map of the scene of crime (Exhibit P.2) and the cautioned statement of the accused (Exhibit P3). The defence paraded two witnesses, the accused himself and his father one Pastor Aron Mashimba. They did not produce any exhibit. During trial, the prosecution was represented by Ms. Monica Matwe learned state attorney while the accused person had the services of Mr. Constantine Ramadhani, learned counsel. 2 It was F7363 D/CPL Manase testifying as PW1, who recorded the accused’s cautioned statement and told the court that the accused confessed to have killed the deceased. He produced the said cautioned statement which was admitted as exhibit P3, after a trial within a trial was conducted. A tale as to what transpired at the scene, is told by the accused himself through his cautioned statement (Exhibit P3). He narrates that he was living in Busolwa within Nyang’wale District with his family, including the deceased who is his nephew and his father, Aron Mashimba, is a Pastor of an African Inland Church (A.I.C). On the fateful day he left home, in the morning at around 07:00 hrs. together with the deceased. That they went towards Ndelwa village to their rice farms to guard the rice against the birds. He adds that, at around 10:00 hrs the deceased asked if he can go back home and bring food. The deceased left with the accused’s bicycle but he did not come back. At 16:00hrs the accused decided to go home to eat. He was given food by his mother. The accused asked as to why the deceased did not bring food to him, he was told it was because someone had borrowed the bicycle. He states further that when he finished eating, he went back to the farm but he first looked for the deceased who was 3 playing football outside and they went together back to the farm using the accused’s bicycle. The accused also recorded that while on the way, he asked again the deceased why he did not bring the food, the deceased gave the same answer that there was no bicycle. When they reached at a place close to their usual resting place suddenly, he felt angry, attacked and chocked the deceased on his neck, laid him in the rice paddy full of water until he died. According to Emmanuel Mbatano William, (PW2) a Ward Education Officer of Busilwa Nyang’wale, he knows the accused’s father as his pastor at AIC church. He also knew his family members including the accused and deceased. He told the court that on the fateful day, in the evening, he was watching football at the Busolwa centre football hall and received a call from the accused’s father, Pastor Aron Mashimba. PW2 stated that Pastor Aron Mashimba informed him that their family member named Aron Juma is dead. That, Pastor Aron Mashimba asked PW2 to take him to the scene with his motorcycle, which he did. They went up to the village named Kona and found the deceased’s body lying beside the road, about 200 meters from the rice paddies. The accused and other few people were around. PW2 asked the accused as to what happened, he explained 4 about his day with the deceased as it was in the cautioned statement except he changed the version that in the afternoon when they were returning to the farms, the accused left the deceased to guard the rice and he went to the nearby village and when he came back, he found the deceased dead, his body in the rice paddy full of water. PW2 testified that he made a call to Busolwa Police station, a policeman and a militia man came at the scene. That, the accused showed him the said rice paddy, it appeared rough as if someone had walked inside, and the rice plants had flowered. The accused was then taken by the police by a motorcycle. PW2, Pastor Aron Mashimba and other people remained at the scene until the next morning where the deceased’s body was examined by a doctor. It was PW2 and Pastor Mashimba who were allowed to witness the examination and when Aron Juma was held up, PW2 could see foams mixed with blood from the deceased nose and mouth. He ended his evidence by stating that the deceased was buried at Buziku where is father resides. Daniel Martin Nyangi, PW3, is Primary Court Magistrate who claimed to have recorded the accused’s extra judicial statement. The said statement did not look authentic and it was not admitted as it did not pass the test of admissibility. 5 The report on the accused mental condition from Isanga Institution was produced during preliminary hearing and it is to the effect that the accused person was not suffering from any mental disorder. I will quote part of the report: “During the interview, at Isanga institution Baraka Aron @Mashimba was behaving normally and had god rapport. He was talking relevantly. He had no any perceptual or though disturbance. His mood and affect were normal. CONCLUSION: Baraka Aron @ Mashimba was not suffering during the incidence, but he acted from being very angry towards the victim. He was therefore SANE, during the time he committed the alleged crime.” This marked the end prosecution case. The accused defended himself under oath and he had one witness. He totally denied to have killed the deceased. To start with, he told the court that his family had to move from Buziku to Busolwa village because he had health issues. He elaborated that he had a problem that sometimes he loses his mind and do things which are inhuman, he will cause trouble 6 and beat people. That, after moving to Busolwa the situation was better off for a while and then it restarted and that his parents used to pray for him. About what transpired on the fateful day, the accused does not dispute that he went with the deceased at the farm to chase the birds from eating rice. He told the court that at 10:00 hrs the deceased went back home, he also went home later in the afternoon, ate lunch and went back to the farms together with the deceased. That, suddenly he felt an immense power and lost conscious. He has a sister at Ifugandi village named Siwema Gervas. He found himself at Ifungandi village at her sister’s place and he could not tell her where he came from and he could not understand how he reached that place. He just remembers that they were two of them himself and the deceased he was surprised to find out that he was alone. The said sister went to the market to do her business and he went back to the rice paddy. The accused further testified that, he went back to the rice paddies where he was with the deceased and saw the rice plants appearing to have tilted sideways. He was curious to know more as to what was in there. That is when he noticed it was human’s body and after turning it, he saw it his nephew the deceased. He raised an alarm and one of the people who responded was Mashaka. That, the said people 7 asked him what happened he said he does not know. They took the body from the water and put it at the dry area. He took his phone and called her sister Neema Mashimba and broke the news of Aron Juma’s death. In the same evening his father Aron Mashimba, his sister and other people came at the scene, they were all keen to know what happened and he was puzzled and could not know what happened. He told them that he went to her sister’s place and when he came back, he found him dead. The accused denied to have recorded a cautioned statement voluntarily. He stated that the police officers showed him a firearm which was on the table and threatened him. He also stated that he never went to the justice of peace to record any extra judicial statement. Upon being cross examined, the accused stated that he has been at remand prison for four years but the situation of being possessed happened only once at night and he was tied with ropes. However, he stated that while at Isanga institution he never caused any trouble. He does not remember if he was the last person to be with the deceased and he has never been treated at any mental hospital before although his parents knew of his situation. 8 Upon being probed by the court, the accused explained further that the problem started in 2015 and that his father and other people used to pray for him. That, he once attempted to kill himself in 2017 and sometimes he would throw stones at people. As mentioned, the second defence witness was Aron Mashimba (DW2), the accused biological father and a church Pastor. He corroborated the accused testimony to the extent that in 2016 his family had to move from Buziku to Busolwa because of the accused’s health status. He asked his office to change his working station. DW2 stated that his son started being confused, was losing memory and becoming unconscious. That, based on his faith he realized that the accused was demon possessed so they prayed for him. He added that, when they moved to Busolwa the situation was on and off but one day in 2018 the accused went missing. Someone from church saw the accused along the road and he was not talking to anyone. That they prayed for him and he came back at 15:00 hrs he was weak, had lost weight and he was not talking. DW2 mentioned another incidence where his church member found the accused rolling on the ground, he was demon possessed and DW2 was informed and they arranged to take the accused to the hospital. That, 9 before moving to the hospital they prayed and the accused was still kicking them up, he then started to write on a piece of paper that the devil plans to destruct their entire family. As regards to what happened on the incidence day, DW2 stated that at around 17:00 or 18:00 hrs. he was informed of the deceased’s death by his daughter Neema. He went to the scene with PW2 where he found the deceased’s body and the accused told him that he had left the deceased and went to the nearby village, when he came back, he found him dead. He also witnessed the deceased’s body being examined; it had no wounds. DW2 explained further upon cross examination that after moving to Busolwa, the deceased was possessed more than six times but he has never taken him to hospital. That, he did not want to move anymore upon realising that the accused’s situation is a battle against the devil and he did not want to run away. That, the person in Ifugandi village whom the accused has visited shortly before the incidence is named Gervas Shija and they did not see the reason of summoning that person as a witness. He added that he had lost three people in his family. 10 Upon further questions from the court, DW2 told the court that a piece of paper which the accused wrote was given to the police and he commented that the number of attacks decreased when the accused was in remand prison because sometimes the demons can be inside a person and decide to remain quiet. And that he does not know who killed the deceased even the whole family is still in the dark about that. Having heard both parties, the issue is whether the prosecution has discharged its duty of proving beyond reasonable doubts that it was the accused person who unlawfully killed the deceased. The prosecution case is based on the 3 prosecution witnesses and the 3 exhibits. It is a fact that the case against the accused person is based on circumstantial evidence and the accused’s cautioned statement which was admitted after a trial within a trial. It is also undisputed that on the fateful day, the accused was with the deceased at the rice farms up to evening hours. I am alive on the danger of grounding a conviction based on a repudiated or retracted confession of an accused person. When it comes to 11 repudiate and retracted confessions, the landmark case of Tuwamoi v. Uganda (1967) EA 84 provides and I quote: “A trial court should accept with caution a confession which has been retracted or repudiated or both retracted and repudiated and must be fully satisfied that in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually, a court will act on the confession if corroborated in some material particularvby independent evidence accepted by the court. But corroboration is not necessary for law and the court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true.” Such a warning was well elucidated in the case of Kashindye Meli v. Republic [2002] TLR 374, where the Court of Appeal of Tanzania stated inter alia that: '...it is now settled law that although it is dangerous to act upon a repudiated or retracted confession unless such confession is corroborated, 12 the court may still act upon such a confession if it is satisfied that the confession could not but be true.' There are a number of cases which provide the same position of the risk in relying on retracted/repudiated confession for a conviction including Hemed Abdallah v. Republic [1995] TLR 172. What is gathered from these cases is that there is a danger of convicting an accused person based on the confession which was retracted or repudiated and to evade such a danger, it is important for such a confession to be corroborated. Nevertheless, the court may convict an accused person based on a repudiated or retracted confession if it is satisfied that such confession contains true story about the offence. I have considered the evidence from the accused’s cautioned statement and I find it worthy going through the evidence therein. Looking at the said cautioned statement, the accused explained that after eating lunch, he left his home and went back to the farms with the deceased and that was after 16:00hrs. The evidence of timing of the events leading to the deceased’ murder which is between 16:00hrs and 18:00 hrs, is corroborated by PW2 who 13 said he received a call while watching football at evening hours. According to the prosecution’s evidence, the chain of events from the time when the accused left home with the deceased to when the deceased was reported dead, is limited between sometimes after 16:00hrs and 18:00hrs. Therefore, the assailant must have met the deceased between this time when the accused is allegedly to have been at Ifungandi village. I do not see the loose end between these moments which is the time frame of less than 2 hours, where the accused could have left the scene, go up to Ifugandi village, have conversation with his sister and come back to the scene or where a third person would have met the deceased, attack him and putting his body in the rice paddy before the accused noticing. I have seriously considered the accused defence. Generally, the accused is denying to have killed the deceased. Yet, I must say, the defence witnesses were unclear of what they were trying to establish even after being probed by the court. What I can gather is that the accused is distancing himself from the liability, and his defence is that he did not kill the deceased or if he killed him then he was demon possessed and he did not know what he was doing. 14 I understand that DW2 is the accused’s father, yet, I cannot say DW2 had interest to serve. I say so because although the accused is his biological son, the deceased was his own grandson from one of his daughters and the deceased was even named after DW2 therefore the deceased and DW2 must have close ties with each other as well. Incidences of people being possessed by demons happens in our societies and the possessed person may act wild and seriously dangerous. However, even if the court will attempt to accept this defence, how will it be tested? As compared to the defence of insanity where the accused will be tested by the medical officers and the report will be issued, what will be the central authority to establish that actually this person is demon possessed? This defence is new to our jurisdiction; and it cannot be proved either scientifically or objectively. Therefore, although these are spiritual matters and DW2 is a Pastor, probably in better position to rationalize his testimony, with respect, I will reject that line of defence. That being said, whether the accused was demon possessed or not, the court is not prepared to accept the blaming of the devil as a proper defence in criminal liability. I find support in the case of Ally Shabani @ 15 Swalehe v R Criminal Appeal No. 351 of 2020 CAT (Dodoma) where the Court of Appeal held that our law does not recognise influence of the devil as one of the defences available to an accused person and the Court rejected such defence. At the preliminary hearing, the accused had tried to raise that his mental wellness was affected but there is a report from Isanga Institution stating that the accused is sane. The accused was examined by several Dr. Enock Eterego Changarawe among other 5 medical specialists and the report issued (Exhibit P1) is clear that the accused is mentally fit. Besides, as regards to the accused’s ‘unconscious visit’ done to his sister, why didn’t the accused bring his alleged sister whom he visited while the deceased was murdered? I am alive to the principle that the accused need not be convicted based on the weakness of his defence but in strength of prosecution, but some questions needed to be answered to straighten the accused defence. Those questions remained unanswered which makes the accused defence shaky. The Court of Appeal has pointed out in the case of Fidelis s/o Selemani v The Republic Criminal Appeal No. 2 of 1979, that: 16 "The law regarding circumstantial evidence has long been settled in East Africa, including this country and is as stated by the court of Appeal for Eastern Africa in the case originating from Kenya, that is, the case of Kipkering Arap Koske and Klmure Arap Matatu 16 E.A.C.A. page 136 where it is said that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” The same rule is stated in Ngunjiri s/o Mugl vs. Rex page 93 where it was stated: “in a trial for murder where circumstantial evidence is relied on, that evidence must lead to the inevitable conclusion that the death was the act or contravance of the accused and if there is an alternative which can with any reasonable probability account for the death this excludes the certainty which is required to jjustify a verdict of guilt.” In Mathayo Mwalimu and another v R criminal appeal no. 147 of 2008 the Court held that: 17 “………. If an accused person is alleged to have been the last person to be seen with the deceased, in the absence of plausible explanation to explain the circumstances leading to the death, he or she will be presumed to be the killer” In this case, I do not find any alternative explanation which can be the causation of the deceased’s death. Based on the cautioned statement and the circumstantial evidence, there is an unbroken chain of events within the span of less than 2 hours, from the moment when the accused went to the farm fields with the deceased to the moment when the deceased was found dead in the same farm fields. The evidence against the accused person leads to the conclusion that it was the accused who was the last person to be seen with the deceased and there is no other reasonable explanation apart from that he is the one who killed the deceased. In respect of the malice aforethought, the fact that the accused person chocked the deceased’s neck and laid him in the rice paddy full of water, he wanted nothing else but to end the life of the deceased. 18 Consequently, I am satisfied that the prosecution has proved its case to the required standard, that is beyond reasonable doubt, against the accused person. I therefore, find the accused Baraka Aron Mashimba guilty of unlawfull killing Aron Juma and consequently, I hereby convict him for the offence of Murder contrary to section 196 and 197 of the Penal Code Cap. 16 [R.E 2002], as charged. Dated this 8th day of December 2022. L. J ITEMBA JUDGE SENTENCE In compliance with section 197 of the Penal Code, the convict, Baraka s/o Aron @Mashimba is sentenced to suffer death by hanging. 19 It is so ordered. Right of appeal explained. 20