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. 39 OF 2023 THE REPUBLIC VERSUS RAYMOND RAYMOND MILANZI JUDGMENT ffh March & 4” April, 2025 MPAZE, J.: Despite the absence of direct evidence, the surrounding circumstances of the killings and their location suggest the possibility of an underlying land dispute between the victims and the accused. The sequence of events appears to have been fueled by longstanding tensions over property ownership, ultimately culminating in a violent confrontation. On the morning of 18th September, 2022 Anjela, the mother of Hebeti (PW4), picked him up early to Mchangani village to clean his grandfather Hebeti Mshungeni's grave. On their way, they gathered Lidia and Ester, PW4's maternal cousins, and proceeded to the farmland where the grave was located. Little did they know that this day would mark the i end of their lives, and soon, others would be the ones tending to their graves. Upon arrival, they discovered that the cross marking the grave was missing. Determined to find it, they began searching the surrounding area. As they were engrossed in their search, a young man named Matei arrived. According to PW4, Matei, the grandson of the deceased landowner, aggressively ordered them to leave. However Ester, undeterred, firmly responded,' We are not leaving; we are looking for our grandfather's cross.' Enraged by her defiance, Matei struck her with the flat side of a machete before turning to PW4 and stating, 'Old man, get your people out of here.' Sensing the escalating hostility, PW4 urged them to leave. However, as they were departing, Matei returned this time accompanied by Raymond (the accused), who was armed with a knife. Without warning, Raymond lunged at Ester, stabbing her in the chest. She collapsed instantly. He then turned to Anjela and stabbed her above the right armpit, causing her to lose consciousness. 2 Realizing the imminent danger, PW4 and Lidia attempted to flee in opposite directions. As PW4 ran for safety, he saw Raymond pursuing Lidia. Desperate to escape, PW4 sprinted towards an elder in the village, Mzee Felix, where he sought refuge and immediately called for his relatives. Upon returning to the crime scene, they were met with a harrowing sight Anjela, Lidia, and Ester lay lifeless. While PW4 was the sole eyewitness to the incident, other witnesses played critical roles in the case, providing accounts of their involvement and the steps they took following the crime. Dr. Rajabu Sadiki Nasoro (PW1) conducted post-mortem examinations on the three bodies and concluded that all had succumbed to excessive bleeding from deep stab wounds. He described Ester's fatal injury as a chest wound approximately 7 cm deep, Lidia's wound as 4 cm wide and 6 cm long, and Anjela's as 6 cm long and 4 cm wide. His findings were documented in three post-mortem reports, which were collectively admitted as Exhibit Pl. A/INSP Johnson (PW2), a police officer who arrived at the scene, sketched a detailed map of the area, indicating the positions of the bodies 3 and the distances between them. This sketch was later admitted as Exhibit P2. Anjelina Joseph Milanzi (PW3), the street chairperson of Machinda within Mchangani Village, received reports of the murders from a passerby and promptly relayed the information to the Village Executive Officer (VEO). Later that night, she accompanied police officers in a search of the accused's house, where they recovered a knife suspected to be the murder weapon. However, for reasons known only to the prosecution, the knife was never tendered as an exhibit in court. Sgt. Boaz (PW5), the investigating officer in this case, testified that on 18th September, 2022, Raymond Milanzi voluntarily surrendered at Nachingwea Police Station and confessed to the murders. After informing him of his legal rights, Sgt. Boaz recorded Raymond's statement. He then led the investigation, collected witness statements and exhibits including the sketch map and post-mortem reports and, upon completing the investigation, forwarded the case file to the National Prosecution Service for further action. This evidence, as it was gathered, led to Raymond Raymond Milanzi being brought to court and charged with three counts of murder for the 4 deaths of Anjela, Lidia, and Ester, which occurred on 18th September, 2022 in Mchangani village. In his defence, Raymond Raymond Milanzi (DW1), despite having an extensive defence, briefly denied committing the offence, asserting that the case was fabricated due to an ongoing land dispute. He alleged that on the fateful day, he encountered a group of seven people, including the victims, PW4, Valency Matei Jota, Charles Matei Jota, and a prospective buyer who had accompanied them to purchase the disputed land. DW1 claimed that upon questioning their presence, a confrontation ensued. According to him, the group was armed and turned on each other in a violent altercation, during which he sustained injuries. He contended that he was neither responsible for the killings nor involved in any attack, insisting that he was unfairly implicated due to the land conflict and coercion during the investigation. When examined by the court for clarification, DW1 stated that PW4 is his uncle and that they have no personal conflict. He further claimed that he witnessed Charles striking Lidia Matei and also saw Charles killing Ester. 5 In summary, the evidence presented demonstrates how the killings of the three relatives occurred. Since murder is a criminal offence, it is a well-established and universally recognized legal principle that in criminal cases, the burden of proof lies solely with the prosecution, which must establish the accused's guilt beyond a reasonable doubt. This fundamental principle was reaffirmed in Woolminqton v. DPP [1935] AC 462, where the court held that the prosecution carries the duty of proving the accused's guilt, and any reasonable doubt must be resolved in the accused's favour. Similarly, in Mohamed Said Matula v. R and Abraham Daniel v. R [1995] TLR 3, the Court emphasized 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.' Furthermore, this position aligns with section 3(2)(a) of the Tanzania Evidence Act, Cap. 6 [R.E. 2022] (TEA), which provides that a fact is considered proven in criminal cases when the court is satisfied of its truth beyond a reasonable doubt. 6 Accordingly, in the present case, the prosecution bore the responsibility of proving, beyond reasonable doubt, the following essential elements of the offence of murder; (i) That death occurred; (ii) That the deaths were unnatural; (Hi) That the accused caused the said deaths; and (iv) That the accused acted with malice aforethought. There is no dispute regarding the occurrence of the deaths of Anjela, Lidia, and Ester. The evidence of PW1, who conducted post­ mortem examinations on the bodies, confirmed that all three victims succumbed to excessive bleeding from deep stab wounds. His findings were documented in post-mortem reports, which were admitted as Exhibit Pl. Furthermore, the testimonies of PW4 and the investigating officers reinforced the fact that the deaths indeed occurred. Notably, even in his defence, DW1 did not contest the occurrence of these deaths. While he denied being responsible for the killings, he acknowledged that a violent confrontation took place and that victims sustained injuries. His primary contention was that he did not inflict the 7 fatal wounds, asserting instead that the victims were harmed during a broader altercation involving many people. Similarly, it is undisputed that these deaths were unnatural, as they resulted from fatal stab wounds rather than natural causes. The severity and location of the injuries clearly indicate that the deceased persons suffered violent attacks that directly led to their deaths. The next issue for determination is whether the accused was responsible for the killings. PW4, the sole eyewitness whom I find to be a credible and reliable witness, provided a clear and consistent account of how the accused carried out the attack. PW4 stated that he saw DW1 stab Ester in the chest before subsequently attacking Anjela. Furthermore, PW4 testified that, despite fleeing in the opposite direction, he saw DW1 chasing Lidia, who was later found dead. Additionally, DW1 himself admitted that he had no prior conflict with PW4, thereby eliminating the possibility of fabrication or malice on PW4's part. Notably, DW1 did not cross-examine PW4 regarding the number of people present at the farm, nor did he challenge PW5 on whether he had 8 reported an attack and was issued a PF3, despite claiming in his defence that he did. His failure to cross examine PW5 on the important issues weakens his credibility, as one would expect him to clarify such a critical point if his claim were true. See the case of Khaji Manelo Bonye v R, Criminal Appeal No. 388 of 2008) TZCA 419 (23 September, 2011). Regarding the knife, PW3 testified that it was recovered from the accused's house, yet it was not tendered as an exhibit in court. This omission raises concerns and leaves gaps in the prosecution's case, as the tendering of the alleged murder weapon would have strengthened the evidentiary link between the accused and the crime. However, the absence of the knife alone does not exonerate DW1, particularly when other compelling evidence establishes his connection to the offence. Beyond direct testimony, circumstantial evidence also supports the prosecution's case. PW4's account was consistent and unshaken during cross-examination. Additionally, the prosecution established that DW1 was present at the scene and that his defence suggesting the victims inexplicably turned on each other lacks logical coherence and contradicts normal human behaviour. There was no plausible explanation as to why a group of unarmed people would suddenly engage in a violent altercation among themselves leading to their deaths. 9 Taken together, the direct eyewitness testimony, supporting circumstantial evidence, and DWl's inconsistencies sufficiently link him to the commission of the offence. While the prosecution's failure to tender the knife leaves room for questions, it does not negate the overwhelming evidence pointing to DWl's culpability. In light of this evidence, I have no doubt that it is DW1 who is responsible for the deaths of Ester Matei Jota, Lidia Mateu Jota and Anjela Barnaba. His defence, that he may have been implicated in this case due to the ongoing land dispute, is unconvincing. Despite the compelling evidence establishing that DW1 caused the deaths of Ester, Lidia, and Anjela, for a charge of murder to be sustained, the prosecution was also required to prove that the accused acted with malice aforethought, as defined under section 200 of the Penal Code. Malice aforethought is a crucial element in murder cases and is inferred when the accused intended to cause death or grievous harm. In Wanqaeli Kandaeli Urasa v. R, (Criminal Appeal No. 45 of 1992) (unreported), the Court held that: io 'Malice aforethought can be inferred from the nature of the weapon used, the part of the body where the injuries were inflicted, and the number and nature of the injuries sustained by the deceased.' Similarly, in Paul Elias v. R,(Criminal Appeal No. 7 of 2004), the Court of Appeal stated; 'Malice aforethought may also be inferred from the nature of the weapon used and the part or parts of the body where the harm was inflicted. In this case, a stone was used to strike the victim's head, chest, and abdomen vulnerable parts of the human body.’ The case of Enock Kipela v. R (Criminal Appeal No. 150 of 1994) [1999] TZCA 9 (10 June 1999), further outlines seven factors that assist in determining whether malice aforethought can be inferred; 1. The type and size of the weapon, if any, used in the attack. 2. The amount of force applied. 3. The part(s) of the body where the blows were inflicted. 4. The number of blows, though a single blow may suffice depending on the circumstances. 5. The nature of injuries sustained. 6. Any utterances made by the attacker before, during, or after the attack. 7. The attacker's conduct before or after the killing. Applying these principles to the present case, the evidence of PW1, corroborated by the post-mortem reports (Exhibit Pl), confirms that the 11 victims sustained deep stab wounds in vital areas of the body. Such injuries, inflicted with a sharp object like a knife, demonstrate a clear intention to kill or cause grievous harm. Furthermore, the deliberate targeting of critical body parts, coupled with the force applied, strongly supports the conclusion that DW1 acted with malice aforethought. As to whether the accused's actions reflect premeditated intent, the testimony of PW4 provides critical insight. According to PW4, before DW1 arrived at the scene, a young man named Matei was the first to reach the area. Matei urged the victims to leave but left shortly afterward, only to return with DW1, who was armed with a knife. Upon arrival, without uttering a single word, DW1 immediately began stabbing Ester, then proceeded to attack Anjela, and later chased down Lidia, ultimately killing her. This sequence of events clearly demonstrates both premeditation and intent, as DWl's actions were not spontaneous but rather deliberate and calculated. The choice of a deadly weapon, the specific targeting of the victims, and the severity of the inflicted injuries all point to a well-thought-out plan to kill rather than an impulsive reaction. If DW1 had no intention to eliminate all three victims, he could have refrained from pursuing Lidia, 12 who had already fled the scene. However, his relentless pursuit of her until she was eventually killed further reinforces his singular objective to ensure their complete annihilation. Furthermore, the victims were elderly women, classified as vulnerable people under the law. According to the post-mortem report, they were aged 76, 68, and 58 years old. Given their age and physical frailty, they stood little to no chance of defending themselves against a violent attack. This vulnerability exacerbates the gravity of DWl's actions, as it underscores his intent to target persons who were incapable of resisting his assault. Taken together, these factors provide overwhelming evidence that DWl's actions were not only deliberate but also executed with malice aforethought. His calculated approach, the manner in which he carried out the attacks, and the selection of defenseless victims leave no room for doubt regarding his intent to kill. As stated at the outset, and reiterated here, in criminal trials, the prosecution bears the burden of proving the accused's guilt beyond a reasonable doubt. In this case, the prosecution has successfully discharged this burden through strong and corroborative evidence that 13 clearly establishes DWl's culpability. By contrast, the accused's defence is riddled with inconsistencies and lacks any credible foundation to counter the allegations. Before concluding, I find it necessary to address the issue concerning the variations in the spelling of Lidia's name. In the charge sheet, the name was recorded as Lidia, while in the post-mortem report, it appeared as Ryidia, and in the sketch map, it was written as Ridia. The key question is whether these discrepancies in spelling prejudiced DW1 in any way. PW5, in his testimony, stated that during the course of the investigation, he inquired about the correct name of the deceased and was informed that she was called Lidia. Additionally, in his defense, DW1, while listing the seven people present at the farm, included all the victims, thereby confirming that Lidia, the deceased, was among them. This demonstrates that he was aware of her presence and familiar with her identity. In Shedrack Sospeter © Mkaruka Maqanqari V. R ( Criminal Appeal No. 223 of 2022) [2025] TZCA (4 March 2025), the Court of Appeal when confronted with the similar situation had this to say; 14 'We agree with Mr. Obwana, the learned advocate for the appellant, that the name of the deceased appearing in the charge sheet on page 1 of the appeal record differs from the deceased's name later in the proceedings of the trial High Court. The deceased's name on the charge sheet is JAFFAR S/O JOEL ASUBUHI. The record of the Preliminary Hearing refers to Joe! Jaffer Asubuhi. In her testimony, the deceased's wife (PW2) refers to her deceased husband as Jaffer Joei Asubuhi. In his ruling on the prima facie case against the appellant, the trialjudge referred to Joel s/o Jaffer @ Asubuhi. The appellant refers to Joe! Jaffer in his defense evidence (DW1). The Report on Postmortem Examination (Exhibit PI) refers to Joei, Jaffer's son. The judgment of the trial High Court refers to Joei s/o Jaffer @ Asubuhi. JVe shall dismiss the fourth ground of appeal. Despite the casual way the record of appeal has treated the deceased's name, we agree with Ms. Madikenya's argument that variants of the deceased's name did not prejudice the appellant's defence nor occasion a miscarriage ofjustice. '[Emphasis added]. Applying the same principle to the present case, the manner in which Lidia's name was recorded in the charge sheet, Exhibit Pl, and Exhibit P3 did not in any way prejudice DW1 or affect his defence. Given the overwhelming evidence and established legal principles, the court finds that the prosecution has proven its case beyond a reasonable doubt. Accordingly, I find Raymond Raymond Milanzi guilty of 15 murder of Ester Mate! Jota, Lidia Matei Jota and Anjela Barnaba and convict him under section 196 and 197 of the Penal Code, Cap 16 R.E 2022. It is so ordered. Dated at ytwara this 4th March, 2025. M.B Mpaze I Judge SENTENCE Having convicted Raymond Raymond Milanzi, the next step is sentencing. Unlike other offences where the court has discretion to impose a lesser punishment, in this case, my hands are tied, as I have no authority to impose any alternative sentence other than the one prescribed under Section 197 of the Penal Code. Accordingly, I hereby sentence Raymond Raymond Milanzi to suffer death by hanging until he die. M.B Mpaze Judge 4/4/2025 16 Court: Right of appeal fully explained as per section 323 of the Criminal Procedure Act, Cap 20 R.E 2022. Judge 4/4/2025 Court: Judgment delivered today in the presence of Mr. Sebastian Majaliwa for the Republic, Mr. Emmanuel Ngongi Advocate for the 17