Judgement REPUBLIC vs WALTER JUSTINE MUSHI NAIKE SARIANDUMI MUSHI Criminal Sessions Case No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL SESSIONS CASE NO. 26 OF 2023 THE REPUBLIC VERSUS 1. WALTER JUSTINE MUSHI 2. NAIKE D/O SARIANDUMI MUSHI JUDGEMENT 22nd October & 06th November, 2024 MONGELLA, J. The accused persons are mother and son. They are charged for the offence of manslaughter contrary to Section 195 and 198 of the Penal Code, Cap 16 R.E. 2022. The victim in the offence is one Japhet Asseri Mushi @ Malyo. The offence is alleged to have been committed on 30.06.2022 at Sawe village within Hai district in Kilimanjaro region. Page 1 of 15 During trial, the prosecution side, represented by three learned state attorneys, Mr. Ramadhani Kajembe, Ms. Imelda Mushi and Ms. Julieth komba, managed to prove the cause of death being unnatural. PW1, one, Dr. Abdul Mussa Msuya, a medical doctor at Hai district hospital, proved the cause of death resulting from extensive fire burns causing oxygen suppression and eventually leading to respiratory failure. In his testimony, he stated to have found the whole body severely burnt, especially at the chest and stomach area, though the face was still recognizable. He said that the body was identified to him as being that of one, Japhet Asseri Mushi, by the deceased’s relatives. PW1 tendered a postmortem report (PMR), which was admitted as “Exhibit P1.” His evidence on the deceased’s being burnt was corroborated by that of PW2 and PW3 who also witnessed the body at the mortuary during examination. Such facts were also not disputed by the defence rendering the fact that the deceased died unnaturally being proved. Following proof of the deceased’s unnatural death, the prosecution remained with the task of proving whether the accused persons jointly caused the death of the deceased. To prove this issue, the prosecution paraded two witnesses. The first was one, Inspector Bernard Jackson Msuya, a police Page 2 of 15 officer who attended the case. The second was the deceased’s wife, one Wikansia Eliamini Munisi. It was the prosecution evidence, particularly from PW2, that the deceased died in the course of stealing from the accused persons. He testified that when assigned to attend the case, he was told that there were some people injured in the incident who were at Sawe dispensary for treatment. He said that before going to the scene of crime, he passed first at the dispensary whereby he found the 1st accused, Walter Justine Mushi and another person named “Tukuzaeli.” PW1 testified to have found the 1st accused and the said Tukuzaeli with minor injuries. He directed them to take him to their home and they did that. He said that while they were few paces from the 1 st accused’s home, he found on the road the deceased burning in fire. That, the 1st accused then woke up the 2nd accused, Naike Sariandumi Mushi, who was sleeping inside her home. PW2 further testified that when he interrogated them, the 1st accused told him that when he was sleeping inside with Tukuzaeli, they heard a sound of something falling down “kishindo”. That, when they got outside, they met the deceased who had invaded their place. To prove that the deceased had indeed invaded them, PW2 said that the accused persons showed them two Page 3 of 15 pieces of iron sheets that were outside the house and claimed to have been moved from the place they were kept, which was inside the house. PW2 testified further that while inspecting the area, they found a machete and a rock outside the accused persons’ houses whereby the accused persons told them that the rock was used to break the door lock. He testified further that the 1st accused told them that they fought the deceased preventing him from taking anything else from the house. He said that they thereafter took the 1st accused and the said Tukuzaeli to the police station, gave them PF3 for treatment at the hospital. Thereafter, they interrogated them about the incident and let them go free. PW2 went ahead to testify that on 01.07.2022 at 12hours in the afternoon, while he was at his duty station at Boma Ng’ombe police station, there arrived one lady named Wikansia who introduced himself as the deceased’s wife. He said that she informed him that on 29.06.2022 at 22hours at night, while at her home with her husband, there arrived two people whereby she recognised one of them being Walter-the 1st accused. That, Wikansia told him that those people asked the deceased to escort them to go past the river and he did that despite her prohibiting him to do that. Page 4 of 15 PW2 continued to state that Wikansia told him that the deceased never came back until when she got the information from her young brother named Joseph that her husband had been attacked, burnt and his body was at the mortuary. That, the said Joseph had told her sister Wikansia that he witnessed the deceased being burnt with fire and to have seen Walter-the 1st accused, his mother-the 2nd accused, and other fellows attacking the deceased whereby the 2nd accused poured oil on the deceased. PW2 testified further that after receiving that information, and since Walter and the rest were already treated and discharged, he started searching for each of them and interrogating them. He said that they managed to arrest Walter and her mother and interrogated them regarding the murder of the deceased, however they denied being involved in the murder. He said that they told him that they were invaded and raised alarm which was responded by the villagers, who burnt the deceased. Part of PW2’s testimony was corroborated by that of PW3, Wikansia Eliamini Munisi. She testified that on 29.06.2022 at around 22 hours, Walter-the 1st accused and another person she did not recognise, went to her home saying that he needed to be escorted by her husband, the deceased, to cross the river in Kyeri village where she lives. Talking about how she identified the 1st Page 5 of 15 accused, she said that it was at night and she identified him through the aid of moonlight which was big. She as well claimed to have known the 1st accused very well as they grew up in the same village, for about 30 years. She said that when the 1st accused asked for that help from her husband, she told his husband not to go. However, the deceased insisted on escorting the 1st accused and promised to be back soon. That, she went inside to sleep, but her husband never returned. PW3 testified further that on 30.06.2022, her young brother, one, Joseph Eliamini Munisi, went to her home asking her as to where her husband was. She told him that her husband had escorted Walter yesterday and had not returned. Then that is when her young brother broke the news to her that her husband was no more as he had died. She explained that her young brother told her that when he was at home sleeping, he heard an alarm being raised. He thus woke up his neighbours telling them to go respond to the alarm. When he arrived at the scene, he found her husband-the deceased, tied hands and legs with ropes. That, he also found Walter and his mother lighting fire using kerosine and heard Walter’s mother telling the deceased that “today I won’t leave you as I am tired of you.” PW3 continued to state that her young brother told her that when he asked them as to why Page 6 of 15 they should not take the deceased to the police, they threatened to also set him on fire, which made her young brother to ran away. She stated further that her young brother ran to his home to sleep. That, her young brother could not report to her immediately as he lives a bit distant from her. After getting the news, PW3 reported the incident at the police station on 01.07.2022. She identified both accused persons in the dock by recognition claiming that she had known them since she was born as they lived together in the same village before she got married into another village. The accused persons entered their defence upon the Court ruling that they had a prima facie case. They testified solely as DW1 and DW2, respectively and on oath. In essence, they both denied committing the offence claiming that the deceased was set on fire by the villagers who responded to their alarm. What I discern from their testimonies is that they were even not present at the crime scene when the deceased was set on fire. In his testimony, DW1-the 1st accused, claimed that on the alleged date of the offence, at 20hours, while sleeping with his friend Tukuzaeli, they heard a heavy sound at the door. After waking up to see what it was, he met a person he did not know and that person hit him on the head with a heavy Page 7 of 15 object. He claimed to have fallen unconscious following being hit and later found himself at the dispensary of Sawe village. That, when he regained conscious at the Dispensary, he saw Tukuzaeli and many other people who explained to him what had happened. He said that they waited for treatment unsuccessfully at the dispensary while the police were being called. That, after like one hour, the police arrived whereby they took him and Tukuzaeli to the scene of crime. When they arrived there the police found a body on the road burning in fire. Later, they took him and Tukuzaeli and the deceased’s body to the police station. At the police they gave him a PF3 which enabled him to get treatment at the district hospital in Boma-Ng’ombe. He further explained that later, the police released him and Tukuzaeli. Then on 01.07.2022 at around 12hrs in the afternoon, he was called to attend to the police station. That, he attended at the station with Tukuzaeli and the police detained them for further investigation. He said that he stayed at the police for three days whereby his statement was recorded. Thereafter they continued being detained at the police station till on 29.07.2022. On 29.07.2022 at around 09hrs in the morning, they were taken to the district court of Hai district at Boma Ng’ombe and a charge of manslaughter was Page 8 of 15 read to them. They were later released on bail, but continued attending the district court each after every month. That, one year later, that is, in August 2023, they were again arrested and kept under remand custody, which was from 17.08.2023 to 13.10.2023 when they were taken to the district court of Hai at Boma Ng’ombe and a charge of manslaughter read to them. He added that later, Tukuzaeli was dropped from the charge and his mother, Naike Sariandumi Mushi, was joined. They were then taken to the district court of Hai district and the charge of manslaughter read to them. They again obtained bail until they were arraigned before this Court for hearing of this case. Explaining further about the incident at his home, he stated that when he heard the sound, there was no electricity at his house. That, since it was also raining on that night, the area was so dark to the extent that he could not identify the person who attacked him. He said that he was hit by a heavy object on the head, but he could not detect what the heavy object was. He claimed to have been injured by that unidentified person on the right side of his head and on his palm on the smallest finger on his right-hand palm. Page 9 of 15 The 1st accused denied going to the deceased’s home on the night of 29.06.2022 and leaving with him. He challenged PW3’s testimony for being untrue as he was working at his father’s house the whole day and never went out until the time he went to sleep. In her brief testimony, DW2-the 2nd accused, testified that on 29.06.2022, she was sleeping at my home. That, at around 01hrs at night, she heard noises at Walter’s house. She said that Walter who is the 1st accused in this case is her biological son. Explaining the environment, she said that it was rainy and cloudy that night, but she woke up and went to the road. At the road, she found youths making noises that a thief had invaded Walter’s house. That, the said youths pushed her telling her to go back home. She then went back home and stayed at the veranda waiting for his son Walter to come from the hospital where she was told he had been taken, but she did not see him. Later, Walter came back with the police and left with them, leaving her going inside the house to sleep until morning. She continued to testify that in the morning, she was informed that Walter had been taken by the police, but she did not know what had happened. Then on 05.08.2023 she was arrested by the police whereby she was told that she had a case of murder together with her child. She denied the charge Page 10 of 15 and she was taken to jail until 03.10.2023 when her children bailed her out. She added that she did not know what had happened as Walter stays in a different house from hers though in the same compound. After considering the testimony by the prosecution witnesses, I find that there is no direct evidence linking the accused persons with the offence they stand charged with. The prosecution evidence is partly circumstantial and partly hearsay. With respect to the evidence being circumstantial, I consider the evidence of PW3 who alleged that the 1st accused left with her husband-the deceased on the night of the incident and the deceased never came back until news of his death reached her. The Court of Appeal in the case of Ndalahwa Shilanga and Buswelu Busaru vs. Republic (Criminal Appeal No. 247 of 2008) [2011] TZCA 159 (15 November 2011) settled conditions that have to be met for circumstantial evidence to be considered by the court in finding the accused liable of the offence charged. The said conditions are that: i. The circumstance from which an inference of guilty is sought to be drawn must be cogently and firmly established; ii. Those circumstance must be a definite tendency unerringly pointing towards the guilt of the accused; iii. The circumstances taken cumulatively, should form a chain so, complete that there is no escape from conclusion that Page 11 of 15 within all human…the crime was committed by the accused and not one else. In the case of Zakaria Jackson Magayo vs. The Republic (Criminal Appeal No. 411 of 2018) [2021] TZCA 207 (19 May 2021) the Court further stated that the facts must be so connected to lead to no other conclusion than the guilt of the accused person. The Court revisited its previous decision in the case of Hamida Mussa vs. Republic [1993] TLR 123 in which it held: “Circumstantial evidence justifies conviction where inculpatory fact or facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” The Court further cited the decision in R. vs. Kipkering Arap Koske & Another (1949) 16 E.A.C.A 135 in which the Court of Appeal for Eastern Africa quoting with approval an excerpt from a book by Wills on Circumstantial Evidence, 6th Edition, at page 311, stated: “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 to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.” Page 12 of 15 See also: Mashaka Juma @ Ntatula vs. The Republic (Criminal Appeal No. 140 of 2022) [2022] TZCA 506 (15 August 2022); Gabriel Simon Mnyele vs. Republic (Criminal Appeal No. 437 of 2007) [2010] TZCA 97 (22nd December 2010), cited by the defence counsel, Mr. Emmanuel Anthony, in his submission; and Ecksevia Silasi & Another vs. The Republic, Criminal Appeal No. 93 of 2011 (CAT at Mtwara, unreported), in which the Court insisted that circumstantial evidence must irresistibly point to the guilt of the accused person. In my considered view, the evidence of PW3 alone does not irresistibly link the 1st accused to the offence in any way. This is because when cross examined as to her health condition following giving birth through cesarian section and the ability to wake up she gave contradictory answers rendering her credibility in question. The only linking factor in her testimony is the evidence from her young brother, the said Joseph Munisi, which takes me to the next point as to the evidence being hearsay. It should be noted that PW3 relied on the statement of the said Joseph Munisi, her young brother that the accused persons had set the deceased on fire. As far as this testimony is concerned, it is purely hearsay, thus not admissible in accordance with the provisions of Section 62 of the Page 13 of 15 Evidence Act, Cap 6 R.E. 2019, which requires oral evidence to be direct. See also, Daimu Daimu Rashid @ Double D. vs. Republic (Criminal Appeal No. 5 of 2018) [2019] TZCA 366 (4 November 2019). The prosecution therefore ought to have furnished the said Joseph Eliamini Munisi, who allegedly was an eye witness, to come and give direct evidence and thereon corroborate PW3’s evidence. It however, failed to furnish that witness. In my view, the alleged Joseph Eliamini Munisi, was a material witness in this matter. As such, failure to furnish him bears adverse effects on the prosecution case as it is a trite position of the law that failure to call a key witness can be adversely interpreted against the party who ought to have called such witness. See, Martin Jacob @ Mlila vs. The Republic (Criminal Appeal No. 434 of 2021) [2024] TZCA 447 (11 June 2024) and Simon Edson @ Makundi vs. The Republic (Criminal Appeal No. 5 of 2017) [2020] TZCA 1730 (18 August 2020). To this point, I am of the finding that the prosecution has failed to prove the charge of murder against both accused persons beyond reasonable doubt. In the premises, I find the accused persons WALTER JUSTINE MUSHI and NAIKE SARIANDUMI MUSHI, NOT GUILTY of the offence of murder they stand charged with under Section 196 and 197 of the Penal Page 14 of 15 Code, Cap 16, R. E. 2022 and consequently acquit them from the same charge. Dated and delivered at Moshi on this 06th day of November, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 15 of 15