republic vs kalalile brand mbwile 2 others 2022 tzhc 15037 30 november 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBOZI/SONGWE CRIMINAL SESSON CASE NO. 25 of 2020 Between THE REPUBLIC VERSUS KALALILE BRAND MBWILE SIFA NJOWELA ONESIMU k ........... ACCUSED GOD SOLA BEKI JUDGMENT Date of last order: 23rd November, 2022 Date ofjudgment: 30th November, 2022 NGUNYALE, J. The background giving rise of this case is that; on the night of 21/7/2017 the home of Wilhem Watson Myombe was invaded by four bandits who were armed with the gun. In the cause the deceased Faraja Wilhem Myombe was shot to death while approaching the scene to see what was happening to his parents' home. In the course of investigation, the i W I ’ ( accused persons were arrested in connection to the murder they stand now charged. The accused persons are before this court facing the information of murder contrary to section 196 and 197 of the Penal Code Cap 16 R: 2002 now R: E 2022], It was alleged by the prosecution that the accused persons did unlawfully cause death of Faraja Wilhem Myombe. All accused person denied committing the offence charged. To prove the case the prosecution side paraded eight witnesses, Wilhem Myombe (PW1), Msenga Tosamali Kota (PW2), Dudu Wala Ngalikwela (PW3), E2820 CPL Nisile (PW4), Anama Adinam Dule (PW5), ASP Deventine Nyahoro (PW6), E5150 DT SG Stephen (PW7) and Dr. Mohamed Selemani (PW8). They presented two documentary evidence namely; cautioned statement of the first accused (exhibit PEI) and post mortem report (exhibit PE2). On part of the defence the accused persons Kalalile Brandi Mbwile (DW1), Sifa Njowela Onesem (DW2) and God Sola Beki (DW3) fended themselves and they had no any documentary evidence. The prosecution side was represented by Ms. Mwajabu Tengeneza Senior State Attorney assisted by James Mwenda, state attorney whereas Issack Chingilile, learned advocate was assigned the dock brief to represent the accused persons. PW1 testified that on 21/7/2017 at around 11:00 hrs four people went to his home as buyer of coffee. They could not reach consensus as they wanted to buy at 3000/ while he was selling at 4000/= per kilogram. They spent almost an hour negotiating business unsuccessful. During night at around 23:00 hrs four peoples stormed the door. They had two guns. They wanted to be given 5,000,000/= he told them that he had no such money but unsold coffee. They decided to take five bags of coffee. Meanwhile he heard a sound of gun outside and a command "wamalize had'. The bandits left with coffee. When he moved out, he found his son lying down due to gun shot. He was in bad condition due to injuries at the chest and neck. When they were preparing to go to Vwawa police station his son died. The witness identified the bandits as those who came during day time at his home asking to buy coffee. At night his house was illuminated with enough solar light and they spent almost fifteen minutes where he identified as those who went there in the afternoon. PW2 testified that on 21/7/2017 he was asleep at his home during night he heard people shouting. When he moved outside, he saw Samwel Haonga, Victor Mwasenga, Gidion Nteba, Faraja Myombe going to Myombe, he followed them when he reached at Myombe he saw a person standing he could not recognise him. Then he heard a shout "maliza hao watu", there explosion was heard and they immediately dispersed. After some minutes they returned to Myombe where they found Faraja missing, Samwel told them that there is a person lying beside the road, they went to see and found Faraja lying on the ground. When they were arranging for motor cycle to send him to hospital he died. PW3 stated that he was a hamlet chairman, he was informed that at his area there was murder, he went to the scene to witness where he found the deceased body lying on earth. Myombe told him that he had been invaded by people who entered his home. The deceased body was about 20 spaces from Myombe's home. Pw4 testified that he is a police officer based at Vwawa, on 10/10/2017 he was assigned by OCC ID Mwamfupa to record statement of Sifa Njowela. He took the accused from lock up ready for recording his statment. He introduced himself and told the accused his rights. He told him that he was accused of murder. He started recoding the statement at 09:00hrs and finished at 1030hrs. During recording the accused admitted to participate in the murder with other persons. When he wanted to tender the caution statement, it faced objection from the defence on ground that it was recorded outside four hours as required by section 50 and 51 of the Criminal Procedure Act [Cap 20 R: E 2022] and that it was obtained through torture. The objection was sustained after conducting trial within trial. PW5 testified that in 2017 he was dealing with buying coffee through CMS company. He remembered that on 17/5/2017 while asleep he heard a motor cycle outside, he went out and found two motorcycle carrying coffee. He identified them as the accused persons in court. They told him that they were selling coffee. He told them that he cannot buy at that mid night, they should wait till morning. Those people told him to weigh it and money to be paid in the morning, he accepted their request. The next day he went to the company to take money and handed it to Godfrey sola the fourth accused. After three weeks, that is on 15/8/2017 he was arrested by police from Vwawa in relation to coffee he bought from the accused persons. He testified that the accused persons were familiar to him as residents of the same village he is living. PW6 testimony was that on 11/8/2017 he was involved in the arrest of Kalalile Mbwile who was suspected to have participated in the murder which occurred on 21/7/2017. The accused was arrested and he was sent to Vwawa police station. He was interrogated, upon interrogation he mentioned others people he cooperated in commission of the offence. Those people were the first, second and third accused person. The third accused persons before the trial. On 13/8/2017 they conducted search at the home of the first accused where they recovered a gun which was found buried near his house under the banana plant. Subsequently all other accused persons were arrested. In the course of committing the offence of murder they also robbed coffee which they sold to Anania Dule. PW7 testified that he is a policeman stationed at Vwawa police station and on 21/7/2021 they went to the scene of crime at Iganduka village where the offence of murder was committed. They found the deceased murdered far from his house; he drew sketch map of the scene. The deceased was called Faraja Myombe. He was given the file to investigate in the course of investigation he detected that Kalalile Mbwile was involved in murdering the deceased. On 11/8/2017 they managed to arrest kalalile at Matula hamlet Shanko village and sent to Vwawa Police station. He added that on 13/7/2017 the accused Sifa Njowela was arrested at Saza and sent to Mkwajuni police station. On 10/7/2017 he was brough to Vwawa police station. He went on to testify that the accused God Sala was arrested on the same day 10/7/2017 at Matula village at his Pombe club after he was mention by Kalalile. He stated that on 11/8/2017 interrogated the first accused. The interrogation started at 00:00hrs and ended at 01:00hrs. cautioned statement of the accused was received as exhibit PE2 after trial within trial. PW8 testified that he is a medical doctor stationed at Vwawa District Hospital. On 22/7/2017 he received the deceased body which he was required to conduct post mortem. He observed the body and found the cloths at the stomach and chest torn by blood and had small wounds which were about 20. The deceased was oozing blood trough the mouth and nose. The wounds were caused by penetration of sharp objects. The result was filled in the post mortem report which was admitted as exhibit No. PE2. In the report he concluded that death was caused by severe bleeding and injury to internal organs around the chest and stomach. After hearing the prosecution witnesses the court found that a prima facie case had been established against the accused persons. The accused persons were found having a case to answer, they were called to make their defence. Each accused testified oneself without extra witnesses or exhibits. DW1 testified that on 11/8/2017 his home was searched on allegation that someone mentioned him that he owned a gun. After search nothing was recovered. He was taken to Vwawa Police Station where he stayed for two - weeks and on 23/8/2017 he was taken to investigation room. There he was beaten by afande Nyahoro and Stephen commanding him to confess to the offence of robbery and murder. He added that on 18/10/2017 he was taken to court for two offences of armed robbery and murder. The armed robbery case was No. 110 of 2017 in the District Court of Mbozi in which they were convicted and sentenced to thirty years imprisonment. He added that they appealed to the High Court but the case was heard by the Resident Magistrate with extended jurisdiction via Criminal Appeal No. 5 of 2021. He further testified that in the appeal they were acquitted because they were not identified at the scene of crime. He stated further that the scene where armed robbery was committed is the same where murder occurred. He further added that PW1 did not say he identified him as he never touched him in court while Dule did not produce receipts to show that they sold coffee to him. DW2 testimony was that on 2/10/2017 was arrested at Saza and on 3/10/2017 was transferred to Vwawa police station. He added that PW1 did not identify him or he was not arrested at the scene of crime. He further stated that he did not participate to sale coffee to Anania Dule. DW3 testified he was living at Saza where he rented a house since 2015. On 1/10/2017 he was arrested and taken to Mkwajqni Police station being accused of murder of Faraja Muyombe. He said that all witnesses did not connect him with murder and PW1 did not identify him. He denied having done any business with Anania Dule. The above marked the end of summary of evidence from the prosecution and defence. From the evidence adduced three issues is pertinent to be determined by the court; - 1. Whether Faraja Myombe died of unnatural death; 2. Whether the accused persons were properly identified at the scene ofcrime; and 3. Whether the prosecution has proved the case against the accused beyond reasonable doubts. Starting with the first issue, a death is termed unnatural when it is caused by violence or under suspicious circumstances or the body of any person is found dead without it being known how that person died or it happen in sudden circumstances. In this case there is no dispute that Faraja Wilhem Myombe is dead. As to whether it was unnatural death or otherwise evidence of PW1, PW2, PW7 and PW8 are crucial. PW1 testified that after his home being robbed, he heard a sound of gun and command that maliza hao. After the robbery they found the body of Faraja with injuries at the neck and chest. This evidence was also supported by PW2. PW7 went to the scene of crime after occurrence of murder was reported to police. He went to the scene of crime where he found the body of the deceased by the side of the road. The testimony of PW8 was to the effect that he examined the body of the deceased and found it had injuries at the chest, stomach and mouth, also nose were bleeding. After conducting examination, it was observed that the death was due to injuries in the internal organs and severe bleeding. This result was filled in PF3 which was admitted as exhibit No. PE2. It is in evidence that the defence did not dispute that Faraja Myombe is dead rather they distanced themselves from the commission of the crime. Taking into account the evidence of PW1, PW2, PW7 and PW8,1 find that the prosecution proved to the hilt that Faraja Myombe died and such death was due to unnatural cause. The second issue is a bit complex, the issue of identification of the culprits of the murder is very crucial in this case. In the matter under scrutiny there is no any eye witness rather circumstantial evidene which came from PW1 and cautioned statements tendered in court. Given the above the Court of Appeal in the case of Mathias Bundala vs Republic [2007] TLR 16 observed that it is not the requirement of the law that every killing has to be eye witness. Had it been the requirement then many homicides would remain unsolved. /) 10 Starting with the exposition of the law on evidence of visual identification, it is a settled law that visual identification evidence is of the weakest kind which in order to found conviction must be absolutely watertight. In resolving whether the witness identified the offender some factors should be considered in determining if evidence is watertight or not, it include; the time the witness had the accused under observation, the distance at which he observed the accused, the conditions on which such observation occurred, if it was day or night time, whether there was good or poor lighting at the scene, whether the witness knew or had seen the accused before. In our jurisdiction these factors were properly set in the most cited case of Waziri Amani vs Republic [1980] TLR 250 and other cases which followed after it. It was the evidence of PW1 that during day time four people visited his home as buyers of coffee and they spent almost an hour before they failed to reach consensus in negotiations of coffee business. At night time when his house was invaded he identified the invaders as persons who went there during day time seeking to buy coffee. He identified them by solar light and they spent fifteen minutes. Starting with evidence of recognition by solar light, PW1 testified that in the room there was solar light and the culprits spent fifteen minutes in the room. It is the law that where the offence is committed at night and the question of light is in issue, there must be clear evidence as to the intensity of the said light. It is true that solar light is brighter than other sources, but its intensity must be given, mere assertion that there was solar light may not suffice. In this case there is no evidence whether they covered their face or not for easy of identification. Although time spent by the culprits in the room was enough to recognise them but without evidence that they exposed their faces or not it cannot be ruled with certainty that they were identified. Indeed, during day time there in no any difficult in identifying a person, even if it is a stranger but for such evidence to be watertight it has to be preceded by describing the body and attire of the suspects to the person who come first to witness the event where the offender is not apprehended at the crime scene. In the case of Raymond Francis vs Republic [1994] TLR 100, the court stated that; 'In every case in which there is a question as to the identity of the accused, the fact of their having been a description given and the terms of that description given are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given.' The contrary is true in this case, PW1 did not state any description of the accused persons to person who came to witness the event including PW2 and PW3. In the same vein even when the police went at the scene of crime, there is no evidence that they were described to PW7 by PW1. maybe that is a reason as to why there was no identification parade conducted by the police to prove identification. In the case of Magobo Njige vs Republic, Criminal Appeal No. 442 of 2017, CAT at Shinyanga (Unreported), the court held that; - 'It is also settled law that, if the culprit is a stranger and no identification parade was conducted, it cannot be said that the accused were properly identified.' The undisputed fact is that the star witness PW1 did not testify that he knew the accused before. Likewise in their defence the accused person never testified that they knew PW1. In addition, although the accused person did not testify anything concerning the 21/7/2017 but the overall evidence was that they denied committing the offence of murder. Furthermore, I agree with the defence evidence that PW1 did not bother to identify and describe their appearance on the date of event. Although this could be dock identification which highly discouraged by the court unless it is preceded by identification parade but at least it could have added credence to PW1. From the above it is glaring that there are lot of 13 gaps in the prosecution evidence in regard to identification of the accused person by PW1. The identification gaps leads to the conclusion that the accused persons were not properly identified at the scene of crime. This now takes the court to determine whether the prosecution has proved the case beyond reasonable doubts. The position of law in criminal proceedings is well settled that, it is the duty of the prosecution to establish the charged offence beyond reasonable doubts. In the case of Mohamed Said Matula vs Republic [1995] TLR 3 the court held 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.' In this case evidence mainly linking the accused person with murder is the confession statement of the first accused Exhibit PEI. Under section 27(1) of the Evidence Act [Cap 6 R: E 2022], a confession made to a police officer is admissible and may be proved against an accused person, if it is proved that it is voluntary and lawfully recorded in accordance with the provisions of the Evidence Act [Cap 6 R: E 2022]. Furthermore, it is an established principle of law that a person who confess to a crime is the best witness, although there are criteria as laid in the case of Jumanne Ahmed Chivinja & Another vs. Republic, Criminal Appeal No 371 of ■■ 2019( Un reported) that for a statement to qualify to be a confession it must contain the admission of all the ingredients of the offence charged. I have gone through the cautioned statement of the first accused exhibit PEI reading between the line it cannot be said the first accused admitted committing the offence of murder. For easy reference I reproduce an extract relevant on confession '.... Nakumbuka tukiendelea na zoezi hiIo walitokea majirani zake na ndipo mimi niliwamuru wasimame hapo hapo baadhi yao walitii na wengine kukaidi amri hiyo. Baada ya kuona hall hiyo mwenzangu Sifa Njowela aiidai ninawachelewesha na ndipo aiininyang'anya bunduki na kumfyatuiia mmoja wao. Baada ya kutokea ha/i hiyo tuiiondoka tukiwa tumefanikiwa kuiba magunia Matano ya kahawa. Wenzangu watatu waiipanda pikipiki pamoja na kahawa hiyo na mimi niiitembea kwa miguu hadi nyumbani kwangu kabia....' From the extract above it can't be said that the first accused confessed to the murder rather pointed a finger to co-accused Sifa Njowela as the one who fired the gun. This implies that he exonerated himself from being part of the murder of the deceased. Given the position of the law I find that the cautioned statement did not amount to confession as he did not incriminate himself in the murder. Regarding the second accused, the only evidence which pointed his involvement was exhibit PEI which is evidence of co-accused. In terms of section 33 of the evidence act such evidence requires corroboration. In 15 AIK n 1 ilAlF the case of Majid Hussein Mboryo & 2 Others vs Republic, Criminal Appeal No. 141 of 2015, CAT at Dodoma (Unreported) it was held; 'Since the 3fd appellant was only implicated by the confessions of his co accused persons and since, in terms of section 33(2) of the Evidence Act such evidence requires corroboration, and since we have found no such corroborative evidence, we find merit in the 3rd appellant's appeal as there is no sufficient evidence to connect him with the commission of the offence in this case.' In this case evidence of PW3 was only to prove that the accused sold coffee to him at the night on 21/7/2017 but it did not prove any involvement in the murder of the deceased. Although PW7 testified that the first accused mention fellow accused but do not corroborate that the second accused was the murderer considering that exhibit PEI which he recorded fall short of being confession. For the third accused upon going through the prosecution case I have found no evidence connecting him with the commission of murder which implied that the offence has not been proved against him. In the upshot, as discussed above I find the prosecution has failed to prove the information of murder against the accused persons beyond reasonable doubts as required in criminal justice. In the end result, the accused persons Kalalile Brand Mbwile, Fifa Njowela Onesimu and God Sola Beki are hereby acquitted on the information of murder c/s 196 and 197 of the Penal Code [Cap 16 R.E 2019 now R: E 2022] per section 312 (3) of the Criminal Procedure Act [ Cap 20 R: E 2002]. DATED at Mbozi this 30th day of November, 2022 17