CRIMINAL SESSIONS CASE NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 88 OF 2023 THE REPUBLIC VERSUS MWAJUMA ATHUMANI KIGODA JUDGMENT 19th & 20th September, 2024 BWEGOGE, J.: The charge levelled against the accused person herein is murder c/s 196 and 197 of the Penal Code [Cap. 16 R.E. 2019]. The particulars allege that on 30th May, 2022, at Ubungo District in Dar es Salaam Region, the accused persons did murder one Erickson Erick. The accused person herein pleaded guilty to the charge when she was arraigned in this court. Nevertheless, based on the nature of the offence levelled against the accused, the prosecution procured the attendance of six (6) witnesses in a bid to prove the charge. 1 In prosecuting this case, the complainant Republic was represented by Ms. Brenda Massawe, learned senior state attorney and Mr. Tumaini Mafuru, learned state attorney. The accused persons had the services of Mr. Roman Selasin Lamwai, learned advocate. A short resume of the prosecution case is as follows: On 30 th May, 2024, the victim in this case, a child of 8 years suffered gruesome death. Allegedly, as opined by the medical practitioner who testified in this case namely, Dr. Dammy Abdurahman Shimbo (PW6), the victim died by asphyxia, secondary to manual strangulation. The circumstances leading to his suspicious death are narrated hereunder. One Dr Digna Narsis Riwa, PW1 herein, is the mother of the victim in this case. Way back in 2022, the same needed a housemaid. She was acquainted with one Japhary Abdallah, a taxi driver who usually provided transport services to her. The said taxi driver proposed to provide PW1 with a housemaid, the daughter of his brother who had accomplished primary education and resided with her parents in Handeni Tanga. PW1 had agreed to the proposal. Consequently, the accused herein was brought by her uncle (Japhary Abdallah) to the residence of PW1 on 28/05/2022. Promptly, the accused was engaged in the family and commenced her contracted domestic work. 2 On 30th May, 2022, during the evening when PW1 was returning home from work, she received a disturbing phone call from the accused pertaining to the suspicious health condition of the victim who had returned home from school being of sound health. The accused informed PW1 that the victim had retired to bed having returned from school, but her attempt to wake him up proved futile. PW1 instructed the accused to employ several techniques in an attempt to wake up the victim supposedly from his slumber, but all the procedures failed. Then, PW1 checked with all persons who had been with the victim the previous hours of the day, commencing with school bus driver one Joseph Charles Urio (PW2), and Ms. Zanisha Yassin Kinyoa (PW4), the class teacher. Both ensured her that the victim was of sound health when they parted with him. Suspicions engulfed the mind of PW1. PW1 rushed home in the company of Kazimoto, an office colleague, and was joined by Japhary Abdallah, the accused’s uncle. They found the accused with normal composure washing clothes. PW1 proceeded into the bedroom of the victim and the horrifying scene welcomed her. PW1 found the child victim lying on the bed lifeless, with a swollen face and tongue stuck out. His face was cold but the chest and lower part of the body were still warm. PW1 noticed bruises on his face and neck. She rushed the child 3 to Mloganzila Hospital in an attempt to save her life. The doctors had teamed up and examined the body. Disappointingly, PW1 was informed that the child had died. Hence, PW1 and her husband headed to Temboni Police Station to lodge the report on the suspicious death of the child. And investigation by police promptly commenced. Eventually, an order for post-mortem examination of the deceased body was issued. Dr. Dammy Abdurahman Shimbo, PW6 herein, was among the panel of doctors who conducted an autopsy on the deceased body and reached the conclusion that the deceased died an unnatural death. Detective Sergeant Alfonce, PW5 herein, of Gogoni/Temboni Police Post, was assigned the duty to investigate the circumstances pertaining to the death of the accused person herein. He visited the residence of the deceased person, Kimara Temboni and interviewed key witnesses, including the accused and the victim’s parents. Likewise, the investigator interviewed PW2, PW3 and PW4; and attended the autopsy of the deceased body. Conclusively, the investigator summed up his investigation in that in all circumstances, the perpetrator of the murder is none other but the accused herein. He opined that the child was well and sound when he returned home. The child died within a short period having retired home 4 from school. There was nobody else at home, but the accused and deceased person. Based on this conclusion, the accused was charged and arraigned in this court for murder. Foremost, it was the duty of the prosecution in this case to prove the charge levelled against the accused herein, beyond reasonable doubt, in terms of the provision of section 3 (2) (a) of the Evidence Act. Hence, in substance, the prosecution in this case was obliged to prove the following matters: 1. That the victim in this case suffered unnatural death. 2. That the accused persons herein killed the victim 3. That the accused person herein had malice aforethought when she killed the victim. Pertaining to the first element of proof, it is my considered opinion that the prosecution has effectively discharged its burden. As I said before, PW1 enlightened this court that when she entered the bedroom of the victim, she witnessed the child victim with a swollen face and stuck out tongue. Likewise, PW1 noticed bruises on his face and neck. This testimony is supported by the finding made by PW6 and her colleagues who conducted a post-mortem examination on the body. PW6 enlightened this court that the deceased had bruises on her neck, hand and back. 5 They noted tense congested blood vessels on her brain, lungs and heart with petechial haemorrhage and edematous airway. Hence, they concluded that the cause of death found was asphyxia secondary to manual strangulation. The Report on Post–Mortem Examination (exhibit P2) speaks volumes of this fact. Hence, it is an uncontroverted fact that the victim in this case suffered unnatural and, or violent death. Now, having answered the 1st element of proof in the affirmative, I proceed to delve into the pertinent question arising herein; whether the accused person before this court killed the victim. Admittedly, no direct evidence has been adduced by prosecution against the accused person herein. The only evidence implicating the accused herein is circumstantial. It is settled law that for the circumstantial evidence to sustain a conviction; it must point irresistibly to the accused's guilt. See the cases: Simon Musoke vs. Republic, [1958] EA 715; Jimmy Runangaza vs. Republic, Criminal Appeal No. 159B of 2017 [2018] TZCA 188 and Menroof January Haule vs. Republic, Criminal Appeal No. 121 of 2022 (2024) TZCA 69. In particular, in the case of R. vs. Kipkering Arap Koske and Another (1949) 16 E.A CA 135, wherein the Court of Appeal for Eastern Africa quoted with approval an excerpt from a book by Wills on Circumstantial Evidence (6th Edn.) at page 311 6 thus: "In order to justify the inference of guilt, the inculpatory facts, must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts by the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused” Suffices to point out that conviction on circumstantial evidence must be watertight and incapable of any other explanation incompatible with the accused's innocence. Reverting to the case at hand, I am inclined to test whether the prosecution case passes the test enunciated in the above cases. Having scrutinized the prosecution case as a whole, the following matters worth my consideration in this case. First, it is in the testimony of the bus driver (PW2), victim’s schoolmate (PW3) and class teacher (PW4) that the child was of sound health during the whole time he was at school to the time they parted company. Secondly, PW2 enlightened this court that when he brought the child home on a fateful evening, he was received by the accused herein, the lone person at home who opened the gate to let in the child and closed it. Likewise, PW1 enlightened this court that the 7 accused was the only person who was left home. Indeed, the accused conceded to this fact. Thirdly, it was the accused who, shortly after the victim retired home, purported to have found the same lying lifeless on a bed and made a disturbing call to PW1 informing her that there was a problem with the victim of which she could not make a plausible explanation. The only explanation given by the accused was that she attempted to wake up the child but failed whereas PW1 gave her instructions to wake up the child having misapprehended that the child was in normal sleep. Fourthly, the condition PW1 found the child in, could not tally with the explanation given by the accused. Needless to mention the accused didn’t disclose facts such as; the victim was observed with a swollen face, stuck out tongue and noticeable bruises on his face and neck. Thus, it is obvious that she concealed the facts pertaining the actual condition of the deceased when she purported to wake him up. The non-disclosure is inconsistent with innocence. Fifthly, having apprehended that the victim’s clothes had been changed, both PW1 and PW5 demanded the accused to show them the clothes previously worn by the victim. She responded that the respective clothes had been washed. However, 4 days later, the victim’s clothes were found concealed in a washing basin in one of the premises. PW5 alleged that the underpants, among the clothes worn by the victim on the fateful day he died, had 8 faeces and what was perceived as drops of blood. Both PW1 and PW5 enlightened this court that when the accused was called upon to explain her omission to disclose the whereabouts of the respective clothes, she didn’t provide any explanation. In this respect, PW5 opined that the accused deliberately concealed the evidence to hide the truth. I agree with this opinion. Sixthly, PW6 opined that the bruises on the victim’s neck, hands and back coupled with tense congested blood vessels on her brain, lungs and heart with petechial haemorrhage; and edematous airway suggested strangulation. In consideration of the above factual matters, I am constrained to agree with the opinion made by PW5 that the circumstantial evidence in this case irresistibly points to the accused's guilt. Moreso, the above conclusion tallies with the accused own testimony. In substance, during defence, the accused admitted to having caused the death of the victim. She admitted that she approached the victim who was in sleep and strangled his neck until he died. However, she imputes criminal responsibility to her grandmother who had assigned her the work, through witchcraft, to steal someone’s star/destiny for rituals. She insisted that the victim in this case was one among her many victims of witchcraft practices. This court is not in the position to ascertain the alleged 9 witchcraft practices of which the accused claims she received instructions from her grandmother. Nevertheless, the accused’s own admission ascertains my finding above. Suffices to point that, I am without any scintilla doubt that it is the accused herein who killed the victim in this case. Lastly, I would proceed to discuss the last question in this case; whether the accused intended to cause the death of the victim in this case. The provision of section 200 of the Penal Code [Cap. 16 R.E. 2022] guides this court in determining the issue in question. The relevant provision aptly provides: “Section 200: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; 10 (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (e) …………………………………………..(inapplicable). Likewise, I am instructed by law to assess the circumstances of the commission of an offence and infer the intention the accused had when she committed the incident. See the case Ibrahim Abubakar & Others vs Republic (Criminal Appeal No. 147 of 2022) [2024] TZCA 752. In the same vein, the number of force applied in the assault; the part or parts of the body the blows were directed at or inflicted on: the kind of injuries inflicted; and the conduct of the attacker before and after the killing can shed light on the intention of the accused when he/she caused the killing. See Makungu Misalaba vs. Republic, Criminal Appeal No. 351 of 2013 [2014] TZCA 208 and Enock Kipela vs. Republic, Criminal Appeal No. 150 of 1994 [1999] TZCA. In this case, at large, I have considered the testimony of PW6 in that they found the victim bruises on the victim’s neck, hands and back coupled with tense congested blood vessels on her brain, lungs and heart with petechial haemorrhage; and edematous airway suggested strangulation. The above matters, coupled with the conclusion made by PW5 in that the 11 accused concealed evidence, lead to the inference that the accused herein intended to kill. As aforesaid, the accused imputes criminal responsibility to her grandmother who had assigned her the work, through witchcraft, to steal someone’s star/destiny for rituals. I reiterate that I am not in the position to ascertain the alleged witchcraft practices of which the accused claims she receives instructions from her grandmother. Given the foregoing, I find that the prosecution has succeeded in proving the charge beyond sane doubt. Hence, I am constrained to find the accused person guilty of the charge of murder c/s 196 and 197 of the Penal Code. Accordingly, the accused person is hereby convicted forthwith. DATED at DAR ES SALAAM this 20th day of September, 2024. O. F. BWEGOGE JUDGE 12