republic vs paulo emil mnyasa mziray 2022 tzhc 14851 30 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI CRIMINAL SESSION CASE NO. 11 OF 2021 REPUBLIC VERSUS PAULO EMIL MNYASA @ MZIRAY JUDGMENT 24/11/2022 & 30/11/2022 SIMFUKWE, J. The accused person Paulo Emil Mnyasa @ Mziray stand charged with the offence of Murder contrary to section 196 of the Penal Code, Cap 16 R.E 2019. The accused is alleged to have murdered one Erick s/o Francis Mtui on 29/01/2019 at Mbitini village, within Rombo District in Kilimanjaro Region. The accused person pleaded not guilty to the charge. In proving the charge against the accused person, the prosecution paraded a total of five witnesses; Mr. Severine Roman (PW1), Ms Jackline Salvatory (PW2), Dr. Godlisten Samwel Kawiche (PW3) Mr. Nicodemus Francis Mtui (PW4) and Ex E. 3450 D/CPL Kisumo (PW5). Also, the prosecution had one exhibit, a Post-Mortem Examination Report prepared by PW3 (Exhibit P1). In his defence, the accused person called one witness Mrs Nalamai Rehema w/o Rayasi (his mother). Evidence tendered by the prosecution in support of the charge is to the effect that the death of the deceased Erick s/o Francis Mtui was unnatural; and that the cause of death was severe traumatic brain injury and excessive bleeding. Evidence of PW3 and Exhibit P1 are relevant. 1 PW1 testified inter alia that on 29/01/2019 at about 02:00hrs midnight he was at his homestead at Kibanda Hasara when he received a phone call from his son Roman Severine. That, Roman informed him that he heard an alarm of robbers from the homestead of Jackline their neighbour. PW1 responded to the alarm in the company of four youths who were asleep at his homestead. PW1 alleged further that at the scene he saw four robbers at the veranda of the shop of his son while two robbers were inside the shop and his son was lying down. That, the four robbers had covered their faces with masks while two robbers had not covered their faces. PW1 said that he was a distance of about 15 paces, thus he managed to identify the four robbers through the solar bulb which was on at the scene of crime. He mentioned the name of one of them as Emil the accused herein. PW1 testified further that his youths continued to raise an alarm and throwing stones. After about two minutes, the said robbers came out of the shop and headed to Kenyan border and disappeared. Then, they approached his son who had fainted. Jackline went at the scene and informed them that his worker was also injured. Thereafter, they were informed that Erick (deceased) was also injured. They took the victims to Faraja hospital at Himo and informed police officers through a phone call. Police officers went to Faraja Hospital and issued PF3s to the victims. Jackie’s worker was referred to KCMC Hospital while Erick’ condition was said to be worse. After a while Erick passed away while undergoing treatment. Later, they were informed that there was a suspect who was arrested. An identification parade was conducted, they managed to identify Emily the accused herein. 2 PW2 Jackline Salvatory’s testimony corroborated the testimony of PW1. She stated inter alia that on the fateful day the robbers invaded their homestead at night. That, after the said robbers had failed to break the door, they did cut an iron sheet on the roof. PW2 and her husband opened the door and tried to escape but they were caught by the robbers. The robbers took PW2 to her business place where they forced her to order her workers to open the doors. Then, the robbers stole various items and money. PW2 testified further that Erick Francis had responded to their alarm. Thus, he was cut by the bandits with a sword several times. That, all of them were taken to hospital where Erick passed away while being treated. PW3 was a doctor of Kilema Hospital who conducted an autopsy of the body of the deceased Erick Francis Mtui. His testimony was that the body of the deceased had wounds on the head which extended to the skull. After examination of the body of the deceased, PW3 prepared a report on Post Mortem examination which was admitted as exhibit P1. PW4 was the brother of the deceased who participated to take the deceased to hospital and witnessed examination of the body of the deceased. PW5 a retired police officer and investigator of this case, his testimony among other things was that on 30/01/2019 in the morning, he was at his homestead resting when he received a phone call from the OCS informing him that there were robbers who had invaded at Kibanda Hasara area. He went at the police post where he found other police officers and together, they headed to the scene of crime. They confirmed that the area was invaded by robbers. They were informed that there 3 were two people who were seriously injured and taken to Himo Faraja Hospital. They went to Faraja Hospital where they found Erick Francis Mtui died. PW5 stated further that later, he was informed that one Severine Roman had identified one robber called Paul Emil Mziray. After preparing a request for conducting an autopsy, they made arrangement of arresting the suspect Paul Emily Mnyasa @ Mziray who was arrested at the homestead of the grandfather of his wife one Mzee James Kipupwe. After closure of prosecution case, the accused person was found with the case to answer. The accused had filed notice to rely on the defence of alibi. In his defence, the accused after being sworn stated that on 29/01/2019 he was at the homestead of his parents where he had gone since 15/01/2019 after a misunderstanding with his wife. In the morning, he took his child to school and went at work at Kibanda Hasara. While at work, he was informed that armed robbers had invaded that place at night. He continued to work. On 02/2/2019 he went at the homestead of his in-laws to greet his wife and children when police officers went there and said that they were looking for Paulo. His father-in-law showed them where he had seated. The accused was told that he was under arrest, he obeyed. Then, he was taken to his homestead where their house was searched and nothing related to the incident was found. Thereafter, he was taken to the police station. The accused testified further that he stayed at the police station from 02/02/2019 to 04/02/2019 when he was taken to another room for interrogation. He was asked whether he knew why he was at the police 4 station, he said no. Then, he was told that he was suspected with the offence of Murder. On 07/02/2019, he was taken to court. DW2 Nalamai Rehema w/o Rayasi testified that Paulo Emil Mnyasa is her son. She said that she was before this court due to the arrest of her son on January 2019. That, she was told that her son was arrested due to an incident which happened at Kibanda Hasara. That, Paulo Emil Mnyasa was at her homestead on that day as he had a misunderstanding with his wife since 15th January 2019. DW2 alleged that her son used to come back from work at about 20:00hrs to 21:00hrs. That, after having his dinner, the accused never went out till morning when he took the child to school. After three days they heard that there was an incident which had happened. DW2 stated further that on the material day, after taking the child to school, the accused went back home and they had breakfast together. Then, he left. In his final written submission Mr. Julius Focus learned defence counsel for the accused person raised two grounds: i) That the evidence on visual identification was not watertight. ii) That the prosecution did not proof (sic) the case beyond reasonable doubts. He submitted inter alia that PW2 was in a better position to identify the bandits than PW1 who was a distance of about 15 paces at the bush frightened. That, evidence of PW1 is not reliable because after the incident he did not mention the accuse person immediately to anyone he knew even at the police station until when they were called for 5 interrogation. Mr. Focus supported his argument with the case of Jaribu Abdallah v. Republic [2003] TLR 271 in which it was held that: “In matters of identification, it is not enough merely to look at facts favouring accurate identification; equally important is the credibility of the witness. The ability of the witness to name the offender at the earliest possible moment is a reassuring though not a decisive factor.” Mr. Focus stated that looking at the prevailing circumstances of the case at hand, it is evident that the only witness who testified to had identified the accused at the crime scene was PW1. That, PW1 admitted that he did not mention the accused at earliest time as possible to any other person until the date when police officers went there for investigation. He suggested that evidence of PW1 be discounted for being unreliable on the reason that he delayed in naming the accused despite testifying that he knew him for a long time. Mr. Focus cited another case of Chacha Jeremia Murimi and 3 Others v. Republic, Criminal Appeal No. 551 of 2015 [2019] TZCA 52, where the Court of Appeal clearly elaborated factors to be considered before the court in order to rely on evidence of visual identification, that: “…. the common factors are: How long did the witness have the accused under observation? At what distance? What was the source and intensity of light if it was at night? Was the observer impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? What interval has lapsed between the original observation and the subsequent 6 identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses, when first seen by them and his actual appearance? Did the witnesses name or describe the accused to the next person he saw? Did that/those other persons(s) give evidence to confirm it? Also, the case of Waziri Amani v. Republic [1980] T.L.R 250 has clearly provided underlying principles for proper identification and stressed that such evidence must be watertight and leave no doubt. Furthermore, similar situations were discussed in the case of Said Chaly Scania v. Republic, Criminal Appeal No. 69 of 2005 (unreported) thus; We think that where a witness is testifying about identifying another person in unfavourable circumstances, like during the night, he must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids to unmistaken identification like proximity to the person being identified, the source of light and its intensity, the length of time the person being identified was within view and also whether the person is familiar or a stranger.” Emphasis mine From the above authorities, Mr. Focus was of the view that since PW1 was at the bush and still being frightened and at a distance of 15 meters, it was hardly possible for him to state that he clearly identified the accused as the circumstances shown would lead to mistaken identity. He prayed that evidence of visual identification be discounted. Concerning evidence of PW2, the learned defence counsel opined that it was not reliable on the reason that she stated that she did not identify 7 anyone at the crime scene which was supported by the evidence of PW5 and PW4. That, evidence of PW5 was as much as hearsay evidence because he testified that, evidence he adduced in court was obtained from his informers. Mr. Focus concluded the first ground by stating that PW1 did not identify the accused clearly as he was at the bush and that an identification parade was tainted with irregularities as PW5 appeared to contradict himself on whether there was identification parade or not. That, when PW5 was cross examined, he gave contradictory evidence on the issue of identification parade. On the second ground that the prosecution side did not prove its case beyond reasonable doubts; Mr. Focus submitted that there was no witness who mentioned to have seen the accused killing the deceased. Rather, all five prosecution witnesses testified on the incident of robbery where PW1 and PW2 stated to be at the scene of crime but never mentioned the accused as the one who killed the deceased or mentioned his role which led to the death of the deceased. The learned counsel stated further that the offence of murder needs to be proved when two elements which are actus reus and mens rea (malice aforethought) are well established and thus in this case there is no any witness who proved that there was malice in the said commission of the crime. It was submitted further that the prosecution did not prove its case beyond reasonable doubts due to the fact that all the witnesses testified that the offence of murder occurred on 29th day of January, 2019 while the particulars of the charge show that the offence was committed on 29th day of January 2021. Mr. Focus subscribed to the case of Abel Masikiti 8 vs Republic, Criminal Appeal No. 24 of 2015 [2015] TZCA 8 (21 August 2015) in which when the Court of Appeal faced similar circumstance had this to say: “If there is any variance or uncertainty in the dates then the charge must be amended in terms of section 234 of the CPA. If this is not done, the preferred charge will remain unproved and the accused shall be entitled to an acquittal.” Basing on the above quoted case law, Mr. Focus submitted that evidence brought before this court was not enough to implicate the accused person that he committed the offence of murder as charged as it was at variance with the charge sheet and doubtful. He prayed this court to find the accused person not guilty of murder and that the doubts raised be resolved in his favour. Having summarized evidence of both parties, it is undisputed fact that the deceased Erick s/o Francis Mtui died unnatural death. Also, the fact that there were bandits who had invaded at Kibanda Hasara was not disputed. What is in dispute is who killed the deceased Erick Francis Mtui? In criminal cases, it is trite law that, the prosecution has the duty to prove the offence charged beyond reasonable doubts. In this case, the prosecution is obliged to establish through evidence the elements of murder which are; death, the involvement of the accused as the person who caused the death and malice aforethought (evil intention) of the accused person. The accused’s duty is to raise doubts in the prosecution case. Thus, since the fact that Erick Francis Mtui is died and that he died unnatural death is not disputed, there are two issues for determination: 9 a) Whether the accused person was properly identified. b) Whether it is the accused herein who killed the said Erick Francis Mtui. Starting with the first issue whether the accused was properly identified; it is an established principle that where conditions of identification are unsatisfactory, evidence must be watertight. In the case of MOHAMED BAKARI & 7 OTHERS V. R [1989] TLR 134 it was held that: “Where the conditions for identification are unfavourable, corroboration is necessary.” In this case, PW1 testified that he managed to identify the accused person properly through the light of a solar bulb which he explained to be bright to the extent of seeing a fallen coin. PW1 also alleged that he knew the accused even before the incidence. The conditions of identification in this case as rightly submitted by the learned defence counsel, are to the effect that PW1 had hidden himself behind a sisal a distance of about 15 paces. The Court of Appeal of Tanzania has underscored the issue of identification of the accused person in a number of decisions. In the case of Hamis Ally and 3 Others v. Republic, Criminal Appeal No. 596 of 2015, CAT at Dodoma at page 4, it was held that: “Time and again this Court has insisted that when a case is centred on evidence of visual identification, such evidence must be watertight before arriving at a conviction. This insistence is borne out of the fact that visual identification is of the weakest kind and hence the necessity of ruling out any possibility of mistaken identity. In the celebrated case of Waziri Amani v. R 10 (1980) TLR 250 this Court stated that visual identification is of the weakest kind of evidence and most unreliable, and that a court should not act on it unless all possibilities of mistaken identity are eliminated. And in Raymond Francis v. R [1994] TLR the Court stated: “…. It is elementary that in a criminal case whose determination depends entirely on identification, evidence on conditions favouring a correct identification is of utmost importance.” Emphasis added In the instant matter, considering the fact the incident took place at midnight and that PW1 stood a distance of about 15 paces behind a sisal, possibility of mistaken identity is inevitable. PW1 alleged that there were four bandits outside the shop and two bandits in the shop. That, four of the bandits had masks on their faces while two of them had no masks. However, PW1 did not state whether the accused herein had a mask on his face or not. One would wonder how did he manage to know the number of bandits who were inside the shop at a distance of 15 paces? There is no doubt that PW1 was not a credible and reliable witness. In the circumstances, I hesitate to believe that the accused person was properly identified by PW1. Moreover, apart from PW1, there was no other corroborating evidence in respect of identification of the accused person at the scene since even those who were invaded denied to have identified any of the bandits. In addition, I subscribe to the factors to be considered in order to rely on evidence of visual identification as stated in the case of Chacha Jeremia Mrimi and 3 Others (supra) cited by the learned defence counsel. Even 11 the identification parade purported to have been conducted was useless as conditions for identification at the scene were unfavourable, plus the irregularities of the said parade as noted by Mr. Focus. Concerning the issue Whether it is the accused herein who killed the said Erick Francis Mtui; assuming that the accused person was properly identified, on the available evidence of both parties, it is not certain who did assault the deceased at the scene. Meaning that, the accused person was implicated on the basis of circumstantial evidence. It is trite law that in order to ground conviction on circumstantial evidence, the same must not be capable of more than one interpretation. It was stated by PW1 and PW2 that they were invaded by six bandits. Apart from the accused herein the rest of the bandits were never identified or mentioned. Possibly, the assailants who were not identified/mentioned by PW1 are the ones who assaulted the deceased and caused his death. Thus, the deceased might have been killed by the accused person or the other assailants who were not identified by PW1. The Court of Appeal in the case of Hassan Fadhili v. Republic [1994] T.L.R 89, found that circumstances relied upon to convict the appellant were capable of more than one interpretation. The appeal was allowed on that basis. It is therefore a settled opinion of this Court that circumstantial evidence in this case is not safe to ground a conviction against the accused person due to the fact that, the same is capable of more than one interpretation as well noted herein above. On the basis of the above findings, I concur with the learned defence counsel that the prosecution has failed to establish beyond reasonable doubts that it is the accused person herein who killed the deceased Erick Francis Mtui. Though in a different perspective as I found it prudent to 12 ignore the issue of variance of the date on the charge sheet and evidence tendered; on the reason that, according to the evidence of both parties, it is manifestly a typing error. I therefore find the accused person Paulo Emil Mnyasa @ Mziray not guilty of the offence charged of Murder contrary to section 196 of the Penal Code, (supra). Hence, I acquit him forthwith under section 235 of the Criminal Procedure Act, Cap 20 R.E 2019; and order his immediate release from custody, unless held lawfully for other reasons. It is so ordered. Dated and delivered at Moshi, this 30th day of November, 2022. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 13