CRIMINA SESSION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC Of TANZANIA (KIGOMA SUB-REGISTRY) ATKIGOMA CRIMINAL SESSION CASE NO. 16 Of 2023 REPUBLIC VERSUS REHEMA O/O MAKSONI SHADRACK S/O PASCHAL AJUAYE S/O MAKSON JUDGMENT Date 13 & 23/09/2024 NKWABI, J.: The deceased, Lameck Makupi, met his brutal and painful death in the night of 23/02/2023. He was stabbed in the stomach by a sharp-edged object which stabbing led his large intestine got out of the stomach. He was taken from his home when a group of five men visited his house, four of them were wearing police uniforms and two of them had guns which looked like those are usually held by police officers. That is according to the testimony of DW.l, Rehema Maksoni who is also the pt accused person and DW.2, the son of the deceased. 1 When the door was knocked, the 1" accused person respondent to the knock, she opened the door and found the brother of the deceased one Gideon Makupi in company of four police officers. They demanded for the deceased, who she said at that time was sleeping. She went and called him. When he got outside, the visitors took him and embarked him on motor vehicle/cycle saying they were sending him to the police station. DW.1 and DW.2 identified only one police officer. In the morning, the driver of a lorry who was passing-by in Samvura village, saw a body of a person lying on the side of the road and would not tell if that person was alive. He informed PW.3, Ladslaus who relied the information to the village chairman and headed to the scene of the incident. At Nyamatore area, PW.3 saw the body lying on the side of the road. A doctor declared that person dead. The wife of the deceased was arrested on suspicion of being involved in the murder of the deceased. On being interrogated, by PW.4 Frida, she confessed (in exhibit P.2) to have arranged for the murder of her husband on the reason that her late husband was squandering the properties of the family by selling foodstuffs and use the money obtained from such sales for buying alcohol for drinking, thus got tired of him and wanted to get rid of him. She sought advice and assistance 2 from her brother Ajuaye Maksoni who enlisted the assistance of the 2nd Accused person, Shadrack Paschal at a cost of T.shs 100,000/=. She repeated the confession (in exhibit P.3) before the Justice of Peace, PW.5, Sophia E. Rimtenge. Indeed, PW.5 recorded too the extra-judicial statements of the 2nd and 3rd accused persons and tendered the same in Court as exhibit P.4 and P.5 respectively, without objection by the defence counsel, while insisting that the makers of the extra-judicial statements did so freely. Truly, the body of the deceased was medically examined by PW.1, Salehe and opined the deceased met his death due to brain hypoxia and severe hemorrhage as his stomach had been stabbed by a sharp-edged object. Prior to such examination, the body was identified to the doctor by Filemon Makupi and Michael Makupi, who came to testify as PW.2, to be that of Lameck Makupi. The pt accused person had previously, confessed, orally, to PW.7 D/Cpl. Felix to have sought the assistance of the 3rd accused person who in turn sought the assistance of the 2nd accused person. 3 Under the assistance of Moran Enos (PW. 9), the police were able to arrest the 2nd accused person at Malagarasi street in Kibondo town who in turn assisted the arrest of the 3rd accused person. Exhibit P.6, the knife suspected to have been used in the killing of the deceased, was seized at the rented room of the 2nd accused person in a search that was witnessed by Ester Kapela (PW. 8) the ten-cell leader. The accused persons, in their respective defences unequivocally disputed to have committed the offence of murder, which is contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. They denied to have recorded any caution statement or extra-judicial statements on their free will but on being tortured and being threatened respectively. The ist accused person denied to have plotted the killing of her beloved husband. She said she was certain that when he was taken during the night, was taken to the police station because it was not his first time to be taken and sent to the police station. Further, there was the deceased's brother one Gidenon Makupi, her brother-in-law, who insisted her to remain back home as everything would be fine with the deceased. 4 The 2 nd accused person, Shadrack said he was arrested when he was in his room. He denied to have committed the offence. The 3rd accused person, Ajuaye, too disputed to have committed the offence because on the fateful night, he was in Kasulu town where he was engaged in supplying goods in various villages in the district. He brought DW.5 to bear him out on his defence. In the premises I am enjoined to consider and determine the following two issues: 1. Whether the accused persons killed the deceased Lameck Makupi. 2. Whether the accused person had the requisite malice aforethought for the killing to amount to murder offence. I have painstakingly considered the evidence of both parties. I am of the considered opinion that the accused persons killed the deceased in cold blood. I will start examining the case of the 1st accused person. According to the prosecution, the police officers were suspicious on the way the deceased left home and when interrogated, the pt accused person confessed to have 5 plotted to kill the deceased and actually facilitated by obtaining money at T.shs 100,000/= to pay the person who would kill the deceased. But on her side, she says that she could not kill her dear husband and that it is the police who are to blame for they took him during the night in collaboration with Gideon, his brother. She called DW.2 her son to add force to her defence. I forthwith reject the defence of the pt accused person. In rejecting the defence of the 1st accused person, I am guided by the decision of this Court in Samweli Msivangala v. Republic [1980] T.L.R. 319 (Samatta, J. as he then was) at 320 where he stated that: ·~.. I venture to point out, without, I hope/ any disrespect, that if the law were as the two courts below took or thought it to be/ the man on the UDA omnibus would have been tempted to ask his neighbor: Why has the law parted company with common sense? I have always understood it to be one of the duties of courts ofjustice to strive/ as far as is possible for the non- existence of friction between the law and common sense/ so that the former may continue to enjoy the 6 respect and obedience of the common man. // [ emphasis mine]. Further, my stance emanates from the stand view of the Court of Appeal in Damian Ferdnand Kiula & Charles v. Republic [1992] T.L.R. 16 where it was held that: ''For our part we do not think there were good reasons for regarding the dying declaration in Ex.P.2 as weak and unreliable. It was recorded by a police officer who had no reason to lie against the appellant. // [emphasis mine]. In my considered opinion, if I accept the defence of the 1st accused person who did not call Gideon Makupi as her defence witness will leave the society asking itself, "why the law has parted company with common sense because?" If true, Gideon was with the police officers when they came to arrest the deceased, he would have loved to defend his sister-in-law. I am guided by Aziz Abdalla v. Republic [1991] T.L.R. 71 (CAT) it was underlined that: 7 ':4dverse inference may be made where the persons omitted are within reach and not called without sufficient reason being shown by the prosecution. // The above rule does not apply only to the prosecution side, it applies to the defence as well. Why would the police harm an unarmed civilian. The police themselves did not say that the deceased was an offender. I am sure, if the deceased had been killed by the alleged police officers, Gideon Makupi would have not rested until he finds justice for his killed brother. It is unsurprising that he did not come to testify in Court to support the defence of his sister- in-law. Like in the case of Kiula (supra) I do not see any reason why the police would have implicated the ist accused person without cause. She did not assign any reason for the police officers to implicate her. Above all, there is an extra-judicial statement in which she confessed before the Justice of Peace apart from her caution statement. See also Hatibu Gandhi v. Republic [1996] T.L.R. 12 (CA) where it was held that: "We think the position in Hammond's case is more appropriate to this country where criminalJustice is required to be administered not as a game of football but as a serious business of acquitting the innocent and convicting the guilty 8 in a reasonable and sensible manner according to law. This Court has emphasized this approach in a recent case, that is, the case of DPP v Peter Rowland Vogel.... We agree that on the Authority of Aneriko's case a confession which contains material falsehoods, knowingly made by the person confessing, is valueless unless such falsehoods can be separated from the body of the confession. Can it be said that in the present case these falsehoods were knowingly make by the fifth appellant? We do not think so. // See also Mukami Wankyo v. Republic [1990] T.L.R. 46 (CAT) where it was held that: ''If the contradictions are severed from the central story and the confessions contain nothing but the truth they can safely be relied upon to convict the appellant as per the case of Tuwamoi v. Uganda [1967] EA. 84// 9 I am as well perfectly entitled to convict the pt accused person based on confessions as per R. v. Gae Maimba & Another [1945] 12 EACA 82 it was held inter alia: "There is no rule of law or practice making corroboration of a retracted confession is desirable but if the court is fully satisfied that the confession cannot but be true, there is no reason in law why it should not act upon it. " The same stance was later taken in R. v. Kaperere Mwaya [1948] 15 EACA 56 it was held that, '11 court may convict on a retracted confession even without corroboration though such confession must be received with great caution and reserve. " In yet another case, the case of William Mwakatobe v. Republic, Criminal Appeal No. 65 of 1995 (Unreported) (CAT) (Mbeya) it was underscored that: .... In this case we are with respect to the learned trial Judge fully satisfied that the appellants confessions to the justice of peace were so detailed, elaborate and thorough that no 10 other person would have known such personal details but the appellants. Appellants retracted confessions were clumsy attempts to evade the consequences of their criminal sets." My point I am making at this juncture, finds more elucidation in the case of Hemed Abdala v. Republic [1995] T.L.R. 172 at 174 where it was observed that: ''... According to Y.S. Maperala (PWJ) the Justice of the peace, when the appellant was brought before him (PWJ) the appellant was cautioned that he was before a Justice of the Peace and that he was free to tell PWJ what had happened in relation to the incident if he so wished. There were no policemen around then, but still the appellant did not raise that question of having been tortured or forced to make any statement by the police or anybody else. A physical examination by PWJ of the body of the appellant did not reves! any marks of injuries in his body. In that situation we think the question of torture was nothing but an afterthought // 11 See also Magongwa v. Republic, Criminal Appeal No. 31 of 1979 (Unreported) (CAT) in which the Court of appeal indicates with clarity the significance of extra-judicial statements before a Justice of Peace: ·:... Parliament in its wisdom . . . felt it safe to render admissible statements made by suspects to Justices of the peace presumably on the basis that the Justices ofthe peace and the courts would carry out their duties seriously and thereby safeguard the legal and human rights of suspects. " My citing a number of decided cases as above is not in vain. I am trying to indicate that the law on confessions, in our jurisdiction, is well settled and very clear. In this case, ist accused person confessed before the Justice of Peace. I am satisfied that her extra-judicial statement (confession) before the Justice of the Peace is truthful and I hold that the ist accused person plotted the killing of the deceased and financed the same. It should be noted that though the 1st accused person did not go to the scene where the deceased met his death at the material time, she is responsible for his death under the doctrine of common intention as stated in Richard 12 Ndege v. Republic, Criminal Appeal No. 11 of 1979 (Unreported) (CAT) (MWANZA) that: "Of course, the appellant did not fire the bullet that killed the deceased but under the doctrine of common intention "where two or more persons set out armed with lethal weapons with the common intention of stealing, and one of them (as in this case) in order to fulfill their purpose, kills the custodian of the goods, all are liable to be convicted of murder. H See also Wanjiro W~imath v. Republic [1955] EACA 116 where it was underscored that: "Common intention is not necessary to be arranged but can develop in the course of the act H In Godfrey James Ihuya v. Republic [1980] T.L.R. 197 (CAT) it was elucidated that: "To constitute a common intention to prosecute an unlawful purpose e.q. to beat a so-called thief a result of which he dies, it is not necessary that there should have been any 13 concerted agreement between the accused persons prior to the attack of the so-called thief. Their common intention may be inferred from their presence, their actions and the omission of any of them to dissociate himself from the assault." The same sentiments were stated in Stanley Musinga v. Republic [1951] EACA 211 at 216 where it was stressed that; •~ person who Joins a conspiracy is responsible in law for all the acts of his fellow conspirators done in furtherance of the conspiracy, whether done before, during or after his participation. '' Next, I turn to consider the case against the 3rd accused person, Ajuaye. I have already discussed at length the relevance of the extra-judicial statements. The extra-judicial statement of the 3rd accused person is sufficient to ground conviction on the 3rd accused person. However, there is corroboration of the extra-judicial statement by his acts and behavior after he committed the offence. Though he had hired a motorcycle on the fateful day in Kibondo town, after committing the offence, he escaped to Kasulu 14 and claimed that he was there busy with his business of supplying shop items in various villages on the material day. His escaping after committing offence does not go unnoticed against the 3rd accused person. In Ramadhani Salum v. Republic, Criminal Appeal No. 187 of 1994 (Unreported) (CAT) (MWANZA) it was stated that: "... the appellants defence ofAlibi was duly considered but rejected after it was disproved by other evidence adduced by both the prosecution (exh PS) and the defence (DW2) To this should be added that the appellants conduct after the killing was not consistent with his innocence. For. the appellant escaped and disappeared from the locality and when he was eventually traced, he denounced and disowned completely the name of Chato by which he was properly known in the area of the incident Such conduct could reasonably be explained only on the basis that the appellant was trying to avoid responsibility for the offence he knew he had committed // 15 I now revert to consider the case against the 2nd accused person. He too confessed before the Justice of Peace, but there appears to be falsehoods in his confession before the Justice of Peace when looked at in relation of the confession of the 3rd accused person whereby they mention each other to have inflicted the fatal blow on the deceased. The falsehoods in confessions in the confessions of the 2nd and 3rd accused persons whereby they mention one another to have inflicted the fatal blow to the deceased do not deter me from finding that the 2nd and 3rd accused persons are responsible of killing the deceased because I am well guided by Kashindye Meli v. Republic, Criminal Appeal No. 12 of 1996 (Unreported) (CAT) (Mwanza) thus: ''. .. Like the learned trial Judge we are firmly ofthe view that the appellant's extra Judicial Statement was truthful. First, we can see no reason at all why the appellant could not tell PW4 (Justice ofPeace) ofany torture by the police if he had been tortured. Secondly, and more importantly in the statement the details pertaining to the sequence of events leading to the death of the deceased are such that no one else other than a participant to the murder could do so. In minute details the statement outlines what happened ..... by 16 the nature of the statement we are satisfied that the extra Judicial Statement was true and freely made by the appellant. " The accused persons, including the 2nd accused person, were reassured by PW.5, the Justice of Peace, as in Athuman Hussein v. Republic [1988] T.L.R. 246 (CAT) where it was observed that: ".... The third piece of evidence is the extra judicial statement made by the appellant to the Primary Court Magistrate (PW7). Although the appellant submits that this was just a reiteration of the admission allegedly exerted from him at police station we are satisfied that even if there was prior exertion, PW7 succeeded to reassure the appellant that he was a free agent at the time he made this latter statement. " rd I also do not forget that a confession made by co-accused like that of the 3 accused person lends assurance against another accused person as held in Seleman Rashid & Others v. Republic [1981] T.L.R. 252 (HC): 17 "The Court ofAppeal has on numerous occasions held that a confession by an accused person can only be used as lending assurance to other evidence against the co-accused and that it cannot be used as the basis for the prosecution case. See Gopa v. R (1993) 20 EACA 318 NS Ezera v. R (1962) EA 309. Thus. as a matter of practice/ a conviction should not be based solely on the co-accused .... I see no good reason for departing from the rule of practice as laid down by the Court ofAppeal because I see that the rule does provide an important safeguard against possib11/ities of convicting the innocent Thus, for example an accused person who has committed an offence may take a true confession of that offence. That is well and good and he may properly be punished for it. He may do so/ for instance/ out of an old grudge or some misunderstanding or purely out of malice simply in order to get a companion in sufferance. Such possibil!ties could not be ruled out and should it happen then there be no doubt that it amounts to a serious miscarriage ofjustice. // 18 The 2nd accused person admits in his defence that he communicated with the 3rd accused person and enabled the arrest of the 3rd accused person. That acts as corroboration in the case against the 2nd accused person. That proves communication between them as was the position in Emmanuel Lyabonga v. Republic, Criminal Appeal No. 257 of 2019 CAT (unreported) thus: ''Actually, this piece of evidence was supported by the appellants co-accused who, in cross-examination, said that the appellant had phone communications with a person he did not know. That apart, it is also momentous that the appellant acknowledged the communications in his cautioned statement ... '' There are also some complaints raised by the defence counsel in cross- examination about the search order and certificate of seizure in regard of some places not filled in. In the search where the z= accused person rents a room, a knife was seized from that room. It was the z= accused person who took the knife from under the bed where it was kept in a basin and handed it over to the police officer. The answer to those complaints could be seen in Chacha Jeremiah Murimi & 3 Others v. The Republic, 19 Criminal Appeal No. 551 of 2015, CAT at Mwanza (unreported) where it was stated that: "On the complaints in respect of the certificate of seizure to the effect that it was not procured according to the law. We agree with the submission of the learned Principal State Attorney that since the said certificate was prepared and signed at the place where the exhibit was seized, then failure to indicate time in the certificate of seizure as to when the exhibit was seized was not fatal as it did not prejudice the appellants. As rightly submitted, the omission dtd not remove the truth that the first, second and fourth appellants were arrested in possession of a bone of a human being at the scene of the crime which was later diagnosed to be from the deceased body. N The seizure of the knife corroborates the prosecution case against the 2nd accused person. Further, in my considered opinion, 2nd accused ought to have reported to the police if he were not part of the plot to kill the deceased when it turned so while it was not part of his errand. His receipt of money shs. 40,000/= is he 20 admitted before the Justice of Peace is inconsistent with his innocence. Owner of bobaboda only paid T.shs 10,000/=. Why he was paid 40,000/= if nd he were not an offender? Consequently, I hold that the 2 accused person killed the deceased. It is on account of the above consideration and determination; I answer the pt issue in the affirmative. Lastly, I consider whether the accused persons had the malice aforethought for convicting them for murder as charged. Determination of this issue has been easy by the decision in Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 (unreported) where it was underscored that: ·: .. usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, ,f any used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of 21 injuries inflictecf/ (6) the attackers utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing. " Connected with the intention to kill the deceased as seen above is the nature of injuries and way he was tied with rope and a piece of cloth, see Joseph Hamis & Another v. Republic, Criminal Appeal No. 13 of 1990 (Unreported) (CAT). (MWANZA) where it was categorically stated that: ''. .. . We are firmly of the view that where cause of death is not medically established, that is not necessanly fatal to the charge. This is so if there is other cogent evidence, direct or circumstantial from which to arrive at a conclusion as to the cause of death. The deceased in this case had sustained a bruised neck, a cut wound on the head and a fractured neck. Considering the nature of these injuries, especially those on the neck, we are of the view that they cannot have been self-inflicted, and indeed there has been no suggestion whatsoever to that effect We think that they were sustained in the cause of violence or assault on the deceased, and that 22 ... the deceased must have died from the injuries tnttided, in the exercises of such violence or assault // The accused persons, at least the 2nd accused person, stabbed the deceased on the stomach, a vulnerable part of the body. The reason behind the killing st of the deceased was that the deceased had annoyed the 1 accused person by squandering the family properties, so she wanted to get rid of him, and that is what was done. Malice aforethought is clear in this case, I need not belabor any more. The above discussion clearly proves that the accused persons had the intention to kill the deceased. The 2nd issue is accordingly answered in the affirmative. I therefore find the accused persons namely REH EMA D/O MAKSONI, SHADRACK S/O PASCHAL and AJUAYE S/0 MAKSON guilty of murder contrary to section 196 and 197 of the Penal Code, Cap. 16. R.E. 2022 and proceed to convict the accused persons of murder of the deceased, Lameck Makupi under section 196 and 197 of the Penal Code, Cap. 16. R.E. 2022. It is so ordered. DATED at KIGOMA this 23rd day of September, 2024. ~\ J. F. NKWABI JUDGE 23 PREVIOUS RECORDS Mr. Peterlis: The convicts are the first offenders. We pray for severe punishment to address the offence, given the nature of the offence the convicts are charged with. MITIGATION Mr. Daudi: I pray for a lenient sentence for the. following reasons: 1. The convicts are the first offenders, 2. The convicts are remorseful of the offence, That is all. SENTENCE Court: There is only one punishment for the offence of murder, that is, sentence to suffer death by hanging. As such I condemn the convicts namely REHEMA D/O MAKSONI, SHADRACK S/O PASCHAL and AJUAYE S/O MAKSON to death by hanging in terms of section 197 of the Penal Code Cap. 16 R.E. 2022. It is so ordered. ~ I 24 J. F. NKWABI JUDGE 23/09/2024 Court: Sentence delivered this 23rd day of September, 2024 in open Court. ~' J. F. NKWABI JUDGE Court: Right of appeal is explained. 25