republic vs emmanuel deus gola 2022 tzhc 15714 2 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA SITTING AT SHINYANGA CRIMINAL SESSION CASE NO. 90 OF 2020 REPUBLIC VERSUS EMMANUEL DEUS @ GOlA JUDGMENT 7" November-Z'd December ,2022 NDUNGURU Ji It was on 7th November 2022 the trial of murder commenced against accused person one Emmanuel Deus @ Gola who is alleged that on 26/9/2018 at night murdered the one Amos slo Mboyele. On 5/10/2021 the court conducted the Plea taking and Preliminary hearing. Accused person pleaded not guilty to the information. The Prosecution adduced the brief facts by stating that accused person decided to kill the deceased after he suspected that the deceased had having love affairs with his wife. He was ferrous. The allegation is that on 26/9/2018 at night hours accused found the deceased with other persons Shija Shomba and Darushi Luhende on their way back home. Accused hit the deceased on his back neck by using a panga, the deceased 1 upon got hit he run to his home looking for help he called his parents for help. Unfortunately, before he reached his parents, he fallen down bleeding. His parents attended the call of help. They found the deceased down bleeding. They called people for help. They rushed the victim to hospital, but shortly before they reached the hospital, the victim died. The Postmortem report revealed that the death of the deceases was caused by excessive blood bleeding (hemorrhage) due to cut wound by a sharp object on his back neck. Accused was arrested for suspect of murdering the deceased, he arraigned to Bariadi District Court. The district court conducted the PI No. 26 of 2018. On 18/03/2021 accused person was committed to this court for trial. On 17/11/2022 the trial commenced; the Republic was represented by Ms. Rehema Sakafu assisted by Safi Kashindi both learned State Attorneys while Accused person enjoyed the service of Getrude Faustene learned advocate. To prove the offence against the accused person, prosecution called a total of four witnesses Shija Somba (PW1), Mbuke John (PW2), H.335 D/CPL Bwire (PW3) and Jumanne Manyama (PW4) the same they tendered two exhibits which are Sketch Map and the Post Mortem Report. The defence had one witness, the accused he tendered no exhibit. 2 PW1 Shija Shoma was the first to testify his evidence. He stated that, on 26/09/2018 about 21:00hrs he was at Bunamhala Village Center he met Darushi, Gola (the accused person) and the deceased one Amosi Mboyele they were both about to go back to their home. He said, while on their way, Darushi and the deceased were discussing their business which they were doing, meanwhile accused person was listening to music. He said he was ahead from them almost about 100 meters from where they were discussing, he went on telling that reached at the departure junction ways where the deceased had to leave to his home Darushi and Gola (the accused person) were still talking, he was still ahead from them. He went on saying that as it was night hours, he was assisted by moonlight to see them where they were standing. He said he went back to them to give Gola his radio, before he reached them, he saw them disappearing and saw Amos (the deceased) running away to his home calling his mother for help while Darushi Luhende running to his direction and Gola running to the direction where they were coming from. He said he was about 100 meters where they disappeared. He told that when he met Darushi, he heard Darushi telling one Charles Chone via phone that Gola attacked Amos with Panga and Amos ran to his home and he did not know the condition of Amos. Later he was informed that Amos is dead, 3 thereafter, he said he went to the home of Amos where he gave his statement. He ended to testify that he believed that it was Gola who injured Amos as he was told by Darushi Luhende. When crossed examined, he responded that both of them got drunk and they voice tones were a drinkers' tone and if the person is total drunk cannot remember what he talks. Lastly, he responded that he did not know if Darushi was still in Village and he did not know where Darushi is. He said, what made him to believe that Gola is a person who cut the deceased with a panga is just because he heard from Darushi saying. PW2 Mbuke John, is a mother of the deceased. In her testimony she stated that she knows Emanuel Gola (accused person). On 26/09/2018 about 23:00hrs the deceased knocked her window complaining to have been attacked by the accused with a panga at his back neck. She said she went out and found the deceased fallen down bleeding. He saw the deceased had a cut wound on his back neck. She said she shouted for help and people gathered, they assisted them (her and her husband) to take the victim to hospital. Later her husband came back from hospital told her that Amos died. She said she never seen the accused person until when she was called to give evidence in the court it is when she saw the accused person. 4 When cross examined, she answered that she met the deceased lying down and saying Gola had cut him with a panga, he uttered those words after he was already fallen down. She also said the deceased was taking alcohol but she did not notice if he was drunk. Also, she said the deceased on the material time were three of them coming from village center. PW3 DCPL Bwire a Police Officer at Bariadi Police Station, his evidence was to the effect that in 2018 he was working at Itilima District as Criminal Investigation Officer his main duties were to arrest and patrol. He informed the court that on 27/09/2018 morning hours, he was instructed by the OCCID to attend the incident of murder at Bunamhala Village within Itilima District. He said, the OCCID, Insp Owen, DC Mfaume and him they went to the scene where they found Amosi Mboyele was killed. He went on testifying that at the scene they met Village Chairman and other villagers. They were told the deceased was attacked with a panga. The event occurred on 26/09/2018 about 23:00hrs. they said the father of the deceased heard the voice of the deceased crying by saying "baba nakufa nimekatwa panga na Emmanuel Deus Gold'. 5 He testified that he recorded the statement of Mboyele and drew the sketch map which he tendered. The court admitted it as Exhibit Pl. PW3 went on to tell the court that they went to Bariadi Government Hospital where they identified the deceased body. They found the deceased had a cut wound in his back neck. The medical report revealed that the death caused by the severe bleeding due to cut wound. He said that on their investigation they collected information which revealed that on the event date the deceased had with other three person who were Shija Somba, Darushi Luhende and Deus Gola. He said the said Darushi Luhende had never seen since the occurrence of the event. Later they came to know that accused person was the one responsible for the killing the deceased because the deceased told his parents that it was Deus Gola who attacked him with a panga. When cross examined, PW3told the court that, the deceased before death named three persons who were with him, he said it was the father of the deceasedwho said the deceased constantly named Gola when they were heading to hospital with the deceased. PW4 Jumanne Manyama, the Medical Officer at Namkoma Health Center within Itilima District. In his testimony told the court that on 27/09/2018 he received the order from Police which required to 6 conduct Post Mortem examination. He said he went to mortuary section where he found the relative of the deceased.They identified him the body of the deceased one Amosi Mboyele. He then investigated the body and found the body had wound. He examined the body of the deceased and found had cut wound by a sharp object on deceased's back neck which caused the death due to severe bleeding which caused excessive loss of blood. He said he prepared the Post mortem report and allowed the relative to take the body for burial process. He tendered the Post mortem report which the court admitted as exbibit P2. When cross examined, he said he conducted the Post Mortem on 27/09/2018 but it was human error to write he conducted the Post mortem report on 26/09/2018. He said the date of on 26/09/2018 was a date which he received the body of the deceased. DWl Emmanuel Deus defended his case by testifying that, on 26/09/2018 at about 20-21 he was at Village center where he went to borrow drums for keeping water. On way back home, he said he saw the Kiosk of Darushi Luhende unclosed he passed there so that he can join him to go back home together. While there he said he met Darushi Luhende, Ngusa maduhu and Amosi Mboyele (the deceased). 7 He added that he asked them to go home, they responded that time for going back home was not already. He said he hired a motorbike which ferried him to his home. While at home he heard noise/shouting but he could not attend the shout because he was attending the running stomach. On 27/09/2018 when he went at nearby kiosk to buy airtime (voucher) he said he met four villagers. They told him that he was responsible with the event of shouting. He said they went to Maplala Police post. While there he was arrested and locked up for two days and sent to court where he was charged with the offence of murder the offence he was not committed. He ended his defence. The above being the prosecution and defence case, the ball now is left to the court to determine whether the charge laid against the accused person has been proved to the standard set by the law in criminal cases. To arrive to the above main issue, the following issues are to be determined: (i) Whether the person one Amosi Mboyele alleged to have died is actually dead; if yes (ii) Whether the death was of unnatural causes, if in affirmative, (iii) Whether it is the accusedpersons; Emmanuel Deus @ Gola is responsible person for the death of the deceased who is subject to this trial if the answer is in affirmative. (iv) Whether his action was actuated with malice aforethought 8 For the purpose of landing to the destination, I will resolve the above raised issues in the light of the evidence available in the record. I will start with first issue whether Amos Mboyele is died. This issue actually during the trial from both sides orally and document is not disputed. The evidence that Amos Mboyele is died is clear proved by PW1, PW2, PW3 and PW4. In proving of death of the deceased PW1 who was with the deceased at night while they were on their way back home. He later he heard Darushi Luhende telling CharlesChone via phone that Gola attacked Amos with a panga. Later he was told by his elder father that Amos is died. He said he attended the home of the deceased and made a statement of what happened. PW2 Mbuke John proved the death of the deceased by saying that when the deceased nocked the window and complained to have had attacked by the accused with a panga, her husband with other people took the victim to hospital for medical treatment, later her husband came back and told PW2 that Amos had died. PW3 proved the death by stating that on 27/09/2018 him and other police officers attended the event of murder at Bunamhala Village at the home of Mboyele where it was reported the son of Mboyele was killed. He 9 said at the scene, they were told the deceasedwas attacked with a panga. After they recorded the witnesses' statements and drew the sketch map, they went to Bariadi Government Hospital where they met the deceased and identified the deceased's body. He said the medical officer revealed to them that the deceased death caused by severe bleeding due to cut wound. PW4 Jumanne Manyama on the other hand a doctor who attended the deceased proved that the cause of the death of the deceased was due to severe bleeding which caused by excessive loss of blood due to the cut wound. PW4 tendered the postmortem examination report (Exhibit P2) which described the cause of death as severe bleeding caused by cut wound, this fact proves the death of the deceased as the same time proves the death of the deceased and the same was not an ordinary death. As for now, the most disputed issues as in its nature are issue number (iii) and (iv). Starting with the issue number (iii) that is whether or not it was the accused person Emmanuel Deus @ Gola is responsible for the death of Amos s/o Mbojele who is the subject in this trial. In tandem with it is, if it is held affirmative, whether his action was actuated with malice aforethought to commit the offence. 10 This is a murder case, to understand the definition of murder, the provision of section 196 of the Penal Code Cap 16 RE 2022 clearly defined murder as; 196- Any person who/ with malice etoretnooam; causes the death of another person by an unlawful act or omission is guilty of murder Starting with the (iii). In evaluating the evidence tested by the Prosecution witnesses, I find the key witnesses who carried material evidence is the evidence of PW1 and PW2 who in their particular statements suggested that they had with the deceased immediately before his death and, they heard the deceased asking for help. Generally, among the two witnesses no one saw the accused person killing the decease, their evidence in particular based on circumstantial evidence. The question is whether the court can ground conviction based solely on circumstantial evidence. In the case of Augustino Lodaru V. Republic [2014] TLR 45 (CAD the court held: 'tt is settled law that a court of law may ground a conviction based solely on circumstantial evidence. This is so where the said evidence irresistably led to the inference that it was the Appellant and nobody else who committed the offence. Such evidence must also/ be incapable of more . one interpretation and the chain linking such evidence must be unbroken" 11 In dealing with circumstantial evidence, the Supreme Court of India in Balwinder Singh V. State of Punjab, 1996 AIR 607 had this to say: "In a case based on circumstantial evidence the court has to be on its guard to avoid the danger of aI/owing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they maybe to take place of proof" I took time to closely look their evidence particularly I started with evidence of PWl. He told the court that on the material date, time and place him and other persons including the deceased (they were four persons in number). He mentioned names as Darushi Luhende, Emmanuel Deus @ Gole (accused person) and the deceased. he said, he left them back almost 100 meters he was listening to music. Amos and Darushi were discussing their business. While arrived at the departure junction way Amos (the deceased) had to leave to his home. PW1was still listening to the music where he was. He said he decided to go to his home. Before he reached his home, he heard the deceased in abnormally cry heading to his home cailing her mother. He said he saw Darushi running to his (PW1 direction) while the accused running to the direction where they were coming from. After 12 sometimes he met Darushi Luhende with one Charles Amos. He said, he heard Darushi Luhende telling Charles Chone via phone that Gola (accused Person) attacked Amos with a panga. I also seen PW2 evidence which was to the effect that on 26/09/2018 at about 23:00hrs she heard the deceased knocking her window complaining to have been attacked with a panga at the back of neck by the accused. She said she went out and found the victim fallen down while bleeding. Having evaluated the two witnesses' evidence, I find two principles are relevant to lead the court to determine the (iii) issue whether accused person is responsible on murdering the deceased. The evidence in record is clear that no eye witness identified the accused or any person killing the deceased but key witnesses are two PW1 and PW2 who their evidence suggested that the deceased before his death had with other persons. Though PW1 and PW2 evidence have had different stories, but their stories in particular assist the court to test the two different principles. For instance, PW1's evidence is fit story to establish the principle of last person to be seen with the deceased and PW2 bring about the test of principle of dying declaration. 13 I start with first principle. PW1 told that on the material date and time when he passed through the Kiosk of Darushi Luhende so that they can go together, he met the said Darushi, Gola (accused), and Amos Mboyele (deceased) they were at the scene, he said he left them discussing almost 100 meters and later heard the voice of the deceased calling his mother for help. This fact brings the evidence that if PW1 had ahead for almost 100 from the deceased, Darushi and the accused person were the very persons to be seen with the deceased as per evidence of PW1. Now, whether the test proves that PW1 and his company killed the deceased, the answer is not clear. why, One, the statement of PW1 is clearly that he was almost 100 meters ahead from where he was waiting to where accused person, the deceased and Darushi were discussing. It has said that it was at about 23:00hrs and light was moonlight which could not be favorable for him to see what happened to the persons he left about 100 meters. The good evidence for PW1 is to prove that the deceased on the material time had with two persons the accused and one Darushi Luhende, then among those two who were left with the deceased who could be the one killed the deceased. The evidence of PW1 is not clear in Richard Matangule and anor V.R, (1992) TLR 5 at p.9 (CAD 14 ..•••.•......•....•....•.... tl7t? C1fJfJt?//C1l7t~ t1It?l"t? tl7t? /C1~t )(17(Jt1Il7 fJt?I"~(JI7~ to I7C1Vt?been witt: the deceased. This fC1Ct t1Iitl7(Jut C1l7ydoubt; CC1~t~C1 Vt?l"y aood sospicion (J17them. But tl7i~ In ts it~t?/f i~ not condusive proo/ that the C1fJfJt?//C1l7t~)(i//t?d the deceased". The only fact to be considered from the testimony of PWl is that he heard Darushi Luhende telling one Charles Chone via phone that Amos was attacked by the accused, but it is hearsay which the court cannot rely upon and the fact that, PWl left the deceased with two persons Darushi Luhende and the accused person why only accused was arrested and left Darushi Luhende un arrested. It is from those doubts above, the last principle of last person to be seen with deceased person collapsed. The explanation of PWl is clear that he saw nothing happened at the scene as he was almost 100 meters from the place he had to the place the deceased and accused were talking. Another principle which could be tested to prove the offence against the accused person is the principle of dying declaration, I have directed my mind to test the principle of dying declaration in this case because I have based on the evidence of the PW2 and PW3. During the trial PW2 15 and PW3 adduced evidence of dying declaration. PW2 evidence is to the effect at the material date at about 23:00 she heard the deceased through her window complaining he was attacked by the accused with a panga. When she went to help she found the victim had with a cut wound in his back neck. PW2 stated that the words spoken by the deceased that he was attacked with a panga at his back neck by the accused person. When when she got out to assist the deceased, she found the deceased fallen down bleeding. The deceased uttering words that he was attacked with a panga by the accused. Later the deceased was rushed to hospital he died before he reached the hospital. This the fact evidence directed to test the principle of dying declaration. PW3 in other side established that he heard the father of the deceased who was telling him (PW3) that when they took the deceased to hospital, the deceased constantly was telling his father he was attacked by the accused person by saying "baba nakufa nimekatwa panga na Emmanuel Deus Gola." I disregard this statement as hearsay, this statement was supposed to be testified by the said father of the deceased and not PW3 therefore the court cannot rely upon that evidence. 16 Now I pose with statement of PW2 who heard the uttering words of the deceased that he was attacked by the accused, It is title law under provision of section 34 (a) of the evidence Act Cap 6 RE 2022 as provides that; 34- . Statements, written, electronic or oral, of relevant facts made by a person who is dead or unknown, or who cannot be found, or who cannot be summoned owing to his entitlement to diplomatic immunity, privilege or other similar reason, or who can be summoned but refuses voluntarily to appear before the court as a witness, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court to be unreasonable, are themselves admissible in the following cases- (a) when the statement is made by a person as to the cause of his death as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, whether the person who made them was or was not, at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; 17 As I have narrated above that PW2 adduced the evidence that she heard the deceased complaining to behave been attacked. She went out and found the deceased with injured in his back neck. The injury which led to death of the deceased. The statement which was supported with the post mortem report that the deceased had back neck cut wound. I Basing on evidence of dying declaration by the PW2 as said to be stated by the deceased before he died that he was attacked by the accused person. Is that enough to prove that accused is the very person killed the deceased, my analysis and evaluation is too far to believe. Why a number of reasons pulled me back; One, the event of knocking the window by the deceased occurred at 23:00hrs. She heard a call for help form the deceased. When she went to attend it she found the deceasedfallen down bleeding with a cut wound at his back neck. PW2 failed to tell the court if the voice of the deceased occurred while PW2 was outside or inside, if she was inside and went out to attend the call, PW2failed to tell the court that when she arrived where the victim fallen down, the victim maintained to utter the word he was attacked by the accused person. it is not satisfactory if the voice heard by PW2 was the voice uttered words by the deceased. 18 Two, PW1 when cross examined he stated that when he joined the deceased and other persons at the village center, both the deceased and other persons in their company had drunk and the deceased tone voice had changed, the fact which PW2 proves that the deceased used to drink, it is possible the deceased as he had drunk he mistakenly mentioned the accused while the act committed by another person as the fact that at the scene the deceased had with another person Darushi Luhende who disappeared after the event occurred. Three, the event as per evidence of PW1 that they met at 21:00 and PW2 said the deceased nocked the window of PW2 at 23:00 night. It is my view that as far as the incidence occurred at night hours, the deceased had with two person and were drunkers. The possibility of mistake to identify the attacker is big, this fact suggests that the state of mind of the deceased had partial intoxicated as he was drunk. Basing on the night environment and the geographical position that, the deceased and his friends discussing out with help of moonlight, it was not easy for the deceased to proper identify the attacker. The moonlight could favored him to identify the attacker. I am convinced the most celebrated case of Waziri Amani v The Republic [1980] TLR 250. The Court in this case at page 251 in determining the question of identification said: 19 "that the evidence of visual identification is easily susceptibe to error. The evidence of visual identification is of the weakest kind and most unreliable. It follows therefore", that no Court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely water tight If In a broader picture though the deceased him is the source of information through dying declaration that he was attacked by the accused person the mistake of identification is not eliminated. I am with view stated in the case of R.V.Marwa ,(1971) HCD 473 '}1 dying declaration is evidence which is admissible against an accused person, but such evidence falls into that class of evidence which needs to be corroborated it before can be acted upon ...... But where circumstancesexist showing that the deceased could not have been mistaken in the identification of the accused, a conviction can result even though such was the only evidence against an accused person ... Such corroboration can either be circumstantial or through the conduct of the accused." In our case as the findings speaks by themselves, the deceased had drunk, he was with two persons with him and light had not favourable to him to Identify the attacker. It is very possible the deceased mistakenly wrongly identified the attacker or the attacker was another person and not the accused person as at the scene the deceased had with other two 20 persons accused Person and Darushi Luhende. Again, in Hamisi Mchana V.R, (1984) TLR 319 (CAT) .... We are satisfied that the deceased made the dying declaration However in view of the condition under which the deceased made the dying declaration that is the fluctuating capacity to talk, we are of the view that it would be unsafe to base a conviction upon the dying declaration without corroboration. I for the aforesaid reasons, I find the principle of dying declaration could not implicate an accused person to murder the deceased. basing on the findings that the prosecution failed to prove that accused person one Emmanuel Deus @ Gola killed the deceased, I find it irrelevant to determine the last issue if the murderer had malice aforethought. I therefore for reasons stated above, I acquit the accused person and order the accused person be released from the Prison custody unless he is lawful COiliRT: Right of appeal explained. D. B. NDUNGURU JUDGE 02/12/2022 21