CRIMINAL SESSION CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL SESSION CASE NO. 26 OF 2023 THE REPUBLIC VERSUS MUSSA SALUM MANDUTA JUDGMENT 19h November, 2024 & lffh February, 2025 MPAZE, J.: . I did not act intentionally; what happened was purely an act ofself-defense. Had I not defended myself, I would have been the first to lose my life.' Mussa Salum Manduta (DW1) concluded his defence with these words. When examined closely, they suggest that DW1 does not admit to premeditation but rather portrays his actions as a necessary response to an imminent threat. This potentially indicates a case of manslaughter rather than the murder charge he is facing. His defence implies that he acted solely to protect his own life, asserting that had he not done so, he would have been the one to lose his life. 1 However, Mussa Salum Manduta was charged with the offence of murder of his wife, Amina Yohana Madodo, contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E. 2022] (the Penal Code). According to the information filed before the court, it was alleged that; 'On the 19h day ofAugust2022, at Lipome Village within Lindi District in Lindi Region, Mussa Saium Manduta did murder Amina Yohana Madodo.' The primary issue before this court is whether DW1 committed the offence of murder. While his defence suggests that the circumstances align more with manslaughter than murder, the burden of proof lies with the prosecution to establish the charge beyond reasonable doubt. In this case, the prosecution was required to prove that the accused indeed committed murder. To secure a conviction for murder, the prosecution must establish the following essential elements beyond reasonable doubt; 1. That the death of the deceased occurred; 2. That the death was unnatural; and 3. That the accused was responsible for causing the death and did so with malice aforethought. With these essential elements in mind, the court now turns to the evidence provided by both parties to determine whether the above 2 elements have been met. From the evidence presented by both sides, there is no dispute regarding the occurrence of death, nor is there any contention that the death was unnatural, thereby satisfying the first two elements. With the first two elements established, the remaining issue is whether the accused caused Amina Madodo's death, and if so, whether it was with malice aforethought. In resolving this issue, I will evaluate the evidence in its entirety, first determining whether DW1 was responsible for the deceased's death and then assessing whether the act was carried out with malice aforethought. To establish its case, the prosecution paraded seven witnesses; Arabi Haji Bandari (PW1), F4196 D/SGT Elizeus (PW2), Fakii Hassan Uchepa (PW3), Rashida Simoni Madodo (PW4), Hassan Rada Amri (PW5), MG 462986 Sadik Mohamed (PW6), and G635 D/CPL Emmanuel (PW7). Among them, the testimonies of PW3, the village chairman, and PW4, the grandchild of DW1, are particularly significant. PW3's evidence concerns the deceased's dying declaration, while PW4's testimony is crucial as she claims to have seen DW1 fleeing the house holding a blood­ stained machete. It is undisputed that PW4 was living with both the deceased and DW1 at the time of the incident. In her testimony, PW4 stated that on the 3 fateful day, she had prepared a meal for DW1 before leaving for her aunt's house nearby. While there, she heard screams coming from DWl's home and immediately rushed back. Upon arrival, she saw DW1 running out of the house, holding a blood­ stained machete. Inside, she found the deceased lying on the ground, bleeding from wounds on her head, arm, and neck. PW4 then went to inform her aunts and uncle about the incident. When they returned, the deceased was no longer inside the house. Later, one of the aunts arrived with the devastating news that the deceased had passed away. On his part, PW3, the village chairman, testified that on the fateful day, he received information from Rama, who informed him that Amina Madodo (the deceased) had been attacked with a machete. In his capacity as village chairman, PW3 proceeded to the scene, where he found the deceased lying outside in the yard, bleeding profusely from multiple injuries. According to PW3, the deceased stated, 'lam dying, and the one who hacked me with a machete is my husband.'We. then arranged for transportation and rushed her to the hospital. While PW3 found the deceased outside, PW4 testified that she had left her inside the house before going to inform her aunts and uncle. At first glance, this may appear to be a contradiction in the evidence. However, PW2, a police officer, stated that upon examining the scene, he observed 4 bloodstains inside the house, with a trail of blood leading from inside to outside, indicating that the deceased had dragged herself out. Although PW2 did not specify the reason for this movement, the court finds that the continuous blood trail suggests that, despite her critical condition, the deceased struggled to move outside, likely in an attempt to seek help. This explains why PW3 found her lying in the yard. In his defence, DW1 testified that on the day of the incident, he returned home from the farm and found his wife (the deceased) engaged in sexual intercourse with another man. Upon seeing him, the man fled, and although DW1 attempted to pursue him, he was unsuccessful. He then returned home and confronted the deceased about her actions. In response, she allegedly stated that the man was now her future husband and that they had committed to each other. DW1 claimed he struggled to comprehend this revelation and proposed that they visit the Village Executive Officer (PW5) to resolve the matter. According to him, the deceased agreed, and together they proceeded to PW5's office. After discussing the issue, PW5 advised them to reconcile and continue their marriage, which they both accepted before returning home. DW1 further stated that upon their return, he remained outside for some time before entering the house, where he found the deceased 5 packing her belongings. When he inquired about her intentions, she allegedly responded that she was leaving to be with the man he had found her with earlier. DW1 claimed he tried to stop her, but she pushed him, causing him to fall onto the bed. Despite his pleas for her to stay, she refused to listen. Instead, she allegedly grabbed a machete and attempted to strike him in the chest. According to DW1, he blocked the blow with his arms, sustaining cuts on his hands. As he tried to evade further attacks, the machete struck his left leg and later his right leg, causing additional injuries. He claimed that after being wounded, he managed to wrestle the machete away from the deceased. In the heat of the moment, he struck her before fleeing the scene, leaving her inside the house. However, he insisted that his actions were not intentional but purely an act of self-defense. He further asserted that had he not defended himself, he would have lost his life. To support his claim, DW1 displayed scars on his legs and hands, alleging that they were inflicted by the deceased during the altercation. Upon careful analysis of the evidence, it is clear that the prosecution's case on the identity of the perpetrator primarily relies on two aspects; the circumstantial evidence of PW4, who claimed to have seen DW1 emerging from the house running with a blood-stained machete, and the 6 alleged dying declaration made to PW3, in which the deceased purportedly named DW1 as her attacker. However, this evidence does not directly establish that DW1 committed the offence. In other words, there is no direct evidence linking him to the act of murder, making the prosecution's case purely circumstantial. It is a well-established legal principle, upheld throughout the ages and remaining unchanged over time, that for a conviction to be based on circumstantial evidence, such evidence must be strong enough to exclude any reasonable hypothesis of innocence. Moreover, it must be sufficiently compelling to establish, beyond doubt, that no one other than the accused who committed the offence. In the case of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, the Supreme Court of India held; 'In the case at hand, there is no eyewitness to the occurrence, and the prosecution's case rests entirety on circumstantial evidence. The normal principle in cases based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was 7 committed by the accused, and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.' Turning to our jurisdiction, the legal position remains aligned with that established by the Supreme Court of India. The Apex Court of Tanzania, in Majaliwa Ernest v. R (Criminal Appeal No. 465 of 2022) [2024] TZCA 313 (7 May 2024), when confronted with a case where the findings were based on circumstantial evidence, stated; "The law on the subject of circumstantial evidence was summarized in Bahati Makeja v. R, (Criminal Appeal No. 118 of2006) (unreported), where this Court stated that: first, the facts upon which guilt is to be affirmed must be firmly established beyond reasonable doubt; second, the evidence should unerringly point towards the guilt of the accused; third, all pieces of evidence should form a chain leading to only one conclusion that the crime was committed by the accused and no one else; and fourth, the evidence must be incapable of any explanation other than that of the guilt of the accused.' Given this settled legal position on circumstantial evidence, I now turn to the case at hand to assess whether the evidence presented meets the requisite threshold to conclusively establish that no one other than DW1 committed the crime. 8 Upon evaluating the evidence of PW4, testified that she heard an alarm coming from DWl's house. Rushing to the scene, she saw DW1 emerging from the house, running while holding a blood-stained machete. Upon entering the house, she found the deceased lying on the ground, bleeding. She then left to inform her aunts and uncle about the incident. However, by the time they returned, the deceased was no longer inside the house. During PW4's absence, PW3, the village chairman, arrived at the scene and found the deceased outside, bleeding from multiple injuries. According to PW3, the deceased uttered the words; 'I am dying, and the one who hacked me with a machete is my husband.' Shortly after, arrangements were made to transport her to the hospital. This statement, made in her final moments, constitutes a dying declaration under the law. A dying declaration refers to an oral or written statement made by a person facing imminent death, explaining the circumstances leading to their demise. This principle was emphasized in Onael Dauson Macha v. R, Criminal Appeal No. 214 of 2007 (unreported). The law mandates that dying declarations be carefully scrutinized before they can be relied upon for conviction. In Onael Dauson Macha {supra), the Court underscored the necessity of corroboration, stating; 'It is now settled law that where a dying declaration is admitted in evidence, it should be scrupulously scrutinized, and in order 9 to be acted on, corroboration is highly desirable.' [Emphasis added] Likewise, in Tembo Hussein v. R (Criminal Appeal No. 430 of 2013) [2014] TZCA 2187, and Pius Jasunqa s/o Akumu [1954] 21 EACA 331, the Courts reiterated the importance of corroboration, noting; 'We have examined the decisions of this Court on the subject of dying declarations since 1935and have been unable to find a single case where a conviction was upheld solely based on a dying declaration without satisfactory corroboration.' From my research, I have not encountered any case in our jurisdiction where an accused person was convicted solely on the basis of a dying declaration without corroboration. Unlike in Tanzania, where corroboration is strongly encouraged, the legal position in India takes a slightly different approach. In Rajendra Ramdas Kolhe v. State of Maharashtra [Criminal Appeal No. 2281 of 2011] (15 May 2024), the Indian Supreme Court held; 'The law relating to dying declarations is now well settled. Once a dying declaration is found to be authentic and inspires confidence in the court, it can be retied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, the court must be satisfied that it was rendered voluntarily, is consistent and credible, and is devoid of any tutoring. Once such a io conclusion is reached, a great deal of sanctity is attached to a dying declaration, and as stated earlier, it can form the sole basis for conviction.' Thus, while Indian courts permit a conviction solely based on a dying declaration provided it meets the required standards of reliability Tanzanian courts exercise greater caution. Before relying on a dying declaration for conviction, courts in Tanzania must carefully scrutinize its credibility and, as a matter of prudence, seek corroboration, though it is not an absolute legal requirement. Having examined the legal position and after considering the evidence given by PW4, PW3, and PW2, alongside the defence of DW1, the next step is to determine whether the prosecution has discharged its burden of proving beyond a reasonable doubt that DW1 was responsible for the deceased's death. Despite DWl's denial of responsibility for his wife's death, a close examination of his defence reveals a direct link between his actions and the fatal outcome. This connection is established for the following reasons; First, DW1 admits having a quarrel with the deceased, throwing a machete at her, and then fleeing the scene a sequence of events that aligns with PW4's testimony. PW4 stated that she saw DW1 running out 11 of the house holding a blood-stained machete. Upon entering, she found the deceased lying in a pool of blood. DWl's presence at the scene, coupled with his admission of a violent altercation with the deceased, strongly reinforces the conclusion that he was responsible for her injuries. Second, DWl's assertion that he left the machete inside the house appears to be an attempt to distance himself from the crime, as the weapon was never recovered. PW2, the police officer who conducted the crime scene investigation, testified that no machete was found where DW1 claimed to have left it. The absence of the weapon raises serious doubts about DWl's credibility and suggests that he may have removed it to conceal evidence. Third, PW3's testimony, which includes the deceased's dying declaration, further corroborates the prosecution's case. Before her death, the deceased explicitly named DW1 as the person who inflicted her injuries. There is no reason to doubt the reliability of this statement, as it was made in a critical condition, with no apparent motive for fabrication. Moreover, her statement aligns with PW4's eyewitness account, further reinforcing the conclusion that DW1 was the assailant. Fourth, there is no evidence of any prior conflict between PW4, PW3, and DW1, making it highly unlikely that PW4 and PW3 conspired to falsely implicate him. This further bolsters the reliability of their accounts. 12 Furthermore, DWl's own words 'I did not act intentionally; what happened was purely an act of self-defense. Had I not defended myself, I would have been the first to lose my life' carry significant legal implications. His statement confirms that he took action against the deceased, and while he claims self-defense, his assertion that 'had I not acted, I would have lost my iife'\vwp\\QS that his actions directly led to the fatal outcome. Thus, when the testimonies of PW3, PW4, and PW2 are assessed alongside DWl's defence, it becomes evident that DW1 was responsible for the deceased's death. The deceased's dying declaration, as testified by PW3, provides crucial corroboration for PW4's eyewitness account. Additionally, PW2's crime scene findings support the prosecution's case by demonstrating that the deceased sustained fatal injuries inside the house. Taken collectively, this evidence eliminates any reasonable doubt. Consequently, I find that DW1 caused the death of the deceased. After establishing that DW1 is responsible for the death of Amina Madodo, the next question is whether DW1 acted with malice aforethought. Malice aforethought, as a key element of murder, refers to the intention to cause death or grievous harm, which can be inferred from the conduct of the accused before, during, and after the incident. 13 Section 200(a) to (d) of the Penal Code outlines the circumstances under which malice aforethought is established. To determine whether DW1 had the requisite intent, it is necessary to assess his conduct before, during, and after the incident in light of the available evidence. Malice aforethought, a fundamental element of murder, refers to the intent to cause death or grievous harm, which can be inferred from the accused's actions before, during, and after the incident. Section 200(a) to (d) of the Penal Code, sets out the circumstances under which malice aforethought is established. To determine whether DW1 possessed the requisite intent, his conduct before, during, and after the incident must be examined in light of the available evidence. In the case of Enock Kipela v. R (Criminal Appeal No. 150 of 1994) [1999] TZCA (10 June 1999), the Court of Appeal held that malice aforethought is not always expressly declared by an attacker but must be inferred from various factors, including; 7. The type and size of the weapon, if any, used in the attack; 2. The amount of force applied in the assault; 3. The part of the body targeted or struck; 4. The number of blows inflicted, though even a single blow may, depending on the circumstances, be sufficient; 5. The nature and severity of the injuries sustained; 14 6. Any statements made by the attacker before, during, or after the killing; and 7. The attacker's conduct before and after the incident.' In this case, DW1 admitted having a quarrel with the deceased, which escalated into a physical altercation. He claimed that the deceased attacked him with a machete and that, in an attempt to defend himself, he managed to seize the weapon and throw it back at her before fleeing the scene. However, several factors cast doubt on his claim of self-defense and instead point to the existence of malice aforethought. One, DWl's account of the events remains uncorroborated, as no other evidence supports his claim that he and the deceased were involved in a quarrel on that day, which later resulted in her death. Even if one were to assume that such an altercation took place, DWl's handling of the situation raises significant concerns. According to his own testimony, the deceased was the first to attack him, but after successfully disarming her, he chose to throw the machete back at her before fleeing. This raises the question; if he had already gained control of the weapon, why did he resort to further violence against the deceased instead of disengaging from the situation? 15 Furthermore, if he had indeed struck her only once, why did the deceased sustain multiple deep wounds across different parts of her body? Considering that DW1 was a man who had already overpowered the deceased a woman who was inherently more vulnerable his decision to strike her again with the machete is highly questionable. The use of force in such circumstances appears excessive and unwarranted. If his intention was purely defensive, there was no necessity to inflict additional harm once he had disarmed her. This inconsistency weakens his self-defense claim and suggests an intention to cause grievous harm. Two, the testimony of PW1, provides crucial insight into the extent and gravity of the injuries sustained by the deceased, Amina Madodo. PW1 described multiple deep wounds on the left elbow, right shoulder bone, right side of the neck, head, and back of the neck, each measuring approximately 3 cm in length and inflicted by a sharp object. He further confirmed that these injuries led to excessive blood loss, ultimately resulting in hypovolemic shock and death. Moreover, the depth and location of the wounds, particularly those on vital areas such as the head and neck, strongly indicate an intention to cause grievous harm, if not death. This satisfies the requirement under Section 200(a) of the Penal Code, which establishes malice aforethought based on the nature and severity of the injuries inflicted. 16 PW1 further testified that upon arrival at the dispensary, the deceased was unconscious, unresponsive, and had already lost a significant amount of blood. His medical assessment confirmed that she had no heartbeat or blood pressure, underscoring the fatal nature of the injuries. The excessive bleeding from multiple deep wounds supports the conclusion that the assailant acted with knowledge that such injuries would likely result in death, as per Section 200(b) of the Penal Code. Third, the testimony of PW4 provides further insight into DWl's actions at the time of the incident. PW4 testified that she heard an alarm coming from DWl's house, and upon arrival, she saw DW1 fleeing while holding a blood-stained machete. This raises serious doubts about DWl's claim of self-defense. If he had merely been protecting himself, it would be expected that he would have sought help or remained at the scene to explain what had transpired. His decision to flee, rather than report the incident or seek medical assistance for the deceased, suggests an awareness of wrongdoing rather than a legitimate act of self-preservation. Another troubling aspect of DWl's defense is the issue of the missing murder weapon. DW1 claimed that he left the machete inside the house, but PW2, the investigating officer, did not recover it from the crime scene. This discrepancy raises suspicion that DW1 may have deliberately disposed of the weapon to conceal evidence. Such an act is inconsistent 17 with self-defense and further suggests a calculated attempt to cover up the crime. Fourth, DW1 himself stated,' had I not defended myself, I would have lost my life' While he insists on self-defense, this statement acknowledges that he took actions that directly resulted in the deceased's death. The phrase 'had I not defended myself'suggests that he believed he needed to act to survive, but the manner in which he responded seizing the weapon and using it against the deceased demonstrates an excessive and disproportionate use of force. A legitimate act of self-defense requires that the force used be reasonable and necessary to neutralize the threat. However, the multiple deep wounds inflicted upon the deceased strongly suggest an attack intended to cause fatal harm rather than a measured defensive response. Fifth, PW6 testified that DW1 was arrested in a different village, at Hassan Lebu's house, contradicting his claim that he was merely sitting under a tree at the time of his arrest. This raises doubts about his credibility and suggests an attempt to evade responsibility. While flight alone does not conclusively establish guilt, when considered alongside other evidence, it reinforces the inference that DW1 was aware of his culpability. If he had truly acted in self-defense, he would have reported the matter to village authorities or the police instead of fleeing. 18 Moreover, if he was indeed injured, as he claimed, it is questionable why he neither sought medical attention nor reported the incident. Instead, he remained in hiding for five days until his arrest, further undermining his defense. Sixth, the nature of the attack; inflicting multiple deep wounds on vital areas negates any claim of accidental or defensive action. The use of a sharp weapon, the deliberate selection of target areas, and the severity of the injuries indicate intent rather than a spontaneous act of self­ preservation, establishing malice aforethought under Section 200 of the Penal Code. Additionally, DWl's reliance on scars as proof of injuries sustained during the altercation is unconvincing. No medical report or independent testimony corroborates his claim that these wounds were inflicted on the day of the incident. In the absence of such evidence, his assertion remains unsupported beyond his own words, weakening its credibility. In light of the medical findings, eyewitness testimony, and DWl's conduct, it is evident that his actions were not merely defensive but intended to cause grievous harm, leading to the death of Amina Madodo. His flight from the scene, the severity of the injuries, and the absence of the weapon all point to malice aforethought. Consequently, I find that DW1 caused the death of Amina Madodo with the requisite intent, 19 meeting the legal threshold for malice aforethought under section 200 of the Penal Code. In view of all what I have been discussing above, I find the prosecution has successfully established that DW1 intentionally caused the death of Amina Madodo. His conduct before, during, and after the incident satisfies the requirements of sections 196 and 197 of the Penal Code, Cap 16 R.E 2022, which criminalize unlawful killing committed with malice aforethought. Consequently, Mussa Salumu Manduta, is hereby found guilty of murder and accordingly convicted under section 196 and 197 of the Penal Code. It is so ordered. Upon convicting and finding Mussa Salum Manduta guilty, the next stage is sentencing. Unlike other offences where the court has discretion to impose a lesser penalty, in this instance, the law leaves no room for such discretion. I am bound by the mandatory sentence prescribed under Section 197 of the Penal Code. 20 Accordingly, I hereby sentence Mussa Salum Manduta to suffer the death penalty by hanging until he die. gt- M.B Ju 18/2/2025 Court: The right of appeal in terms of section 323 of the Criminal Procedure Act [CAP. 20 R.E. 2022] is fully explained. M.B Mpaze r- Judge I I 18/2/2025 Court: Judgment delivered today in the presence of Mr. Jagadi Jilala assisted by Ms. Atuganile Nsajigwa S/A's for the Republic, Mr. Alex Msalenge Advocate for the accused and the accused person. 21