Republic v Tofisio Michael Criminal Session No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CRIMINAL SESSION NO. 2 OF 2023 REPUBLIC .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS TOFISIO MICHAEL .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J 15/11 & 13/12/2024 The accused person is charged with murder contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. On 07/08/2022 the deceased passed away. PW.2 Advera was told by the accused person that he had killed his mother he would kill them too. She said her husband was insane but he used not to be insane. PW. 3 Kusekwa, testified that they saw two houses at the compound of the accused person burning. They went there and arrested the accused person who was sitting in one of the burning houses. It was on 08/08/2022 when the deceased, Mkazuba d/o Bunyenyeli was found dead. It is then the police arrested the accused person. He confirmed that the incident happened during the night. PW.4, Nyawenda too confirmed that the accused person told them he had burnt his houses. He said that they were sure that the accused person who had caused havoc during the nigh should have killed the deceased. PW.5 Cpl. Makolongo investigated the case and collected exhibits. In cross-examination, PW.5 said that the case is proved by circumstantial evidence. PW.1 Sharifu, the clinical doctor, examined the body of the deceased and opined that the deceased met her death due to traumatic brain injury. In his defence the accused person said, he does not believe he killed his mother because he loves her. He insisted that prior to his being arrested he was mentally healthy. Page. 1 Hon... JOHN NKWABI Arising from the evidence of the rival parties in this case are the following issues: 1. Whether the accused person killed the deceased Mkazuba d/o Bunyenyeli 2. Whether the accused person had malice aforethought necessary for conviction on murder offence. To answer the issues raised one has to appreciate that the prosecution case is reliant on circumstantial evidence because of the prosecution witnesses no one saw the accused person commit the offence. Thus, the prosecution evidence must be at the standard stated in Abdul Muganyizi v. Republic [1980] T.L.R. 263 CA where it was held that: “In a case depending purely upon circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of guilty. Appeal allowed.” It should be remembered that the incident happened during the night with the possibility of another person committing the offence. Nonetheless, I begin to determine the 1st issue which is whether the accused person killed the deceased Mkazuba d/o Bunyenyeli. I have gone through the evidence that is available on the record, I find a handful oddities which leave the prosecution case crumbling to the ground. It is mundane law that previous quarrels and threats are not basis for conviction, I exemplify Hakim Mfaume v. Republic [1984] T.L.R. 201 at 202. Further, one to be the last person to be with the deceased does not prove that one is responsible for his or her death as was stated in Richard Mtangule & Another v. Republic [1992] T.L.R. 5 at P. 9 (CAT): “…. The appellants were the last known persons to have been with the deceased. This fact, without any doubt, casts a very good suspicion on them. But this in itself is no conclusive proof that the appellants killed the deceased.” It is also the law of the land that weaknesses in the defence cannot be the basis of conviction. I re-echo John Makolobela Kulwa Makolobela & Another v. Republic [2002] T.L.R. 296 where it was held that: “A person is not guilty of a criminal offence because his defence is not believed; …” Page. 2 Hon... JOHN NKWABI Having observed as above, I should note here that though there were complaints against the accused person that he was threatening to kill his family members, there is no any evidence that such quarrels and threats were reported to local leaders. If reported, such leaders did not come to testify in Court. That goes against the spirit of the law as enunciated, very recently by the Court of Appeal in Hussein Hassan @ Antiti v. Republic, Criminal Appeal No. 541 of 2021, CAT where it was stated that: “We have also considered complaints of the appellant on failure to call material witnesses. We have demonstrated above that; the deceased body was identified by relatives. The record of appeal is silent as to who are those relatives and their whereabouts. It is in evidence further that one Kombe had knowledge regarding the dead body at the crime scene. Again, his whereabouts is unknown. As if that was over, given the nature of the offence, none of the local leaders testified, at least on account of witnessing the dead body in their locality. …” In the testimony of the prosecution, there is evidence which is controverted by the accused person, that he was suffering from the decease of mind (insanity). The accused person is supported by a medical doctor who stated that the accused person is sane. In the premises, it is unsafe to hold that the prosecution proved that it is the accused person who killed the deceased. It is unfortunate that the circumstantial evidence, in this case, is not one that the inculpatory facts are incompatible with the innocence of the accused, and are not ones that are incapable of explanation upon any reasonable hypothesis other than that of guilty. Consequently, I find the prosecution has failed to prove the accused person is guilty of murder of Mkazuba d/o Bunyenyeli. I acquit the accused person namely Tofisio s/o Michael of murder which he was charged under section 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. Embarking into determination of the 2nd issue is not worthy it because it dies a natural death. It is so ordered. Dated at KIGOMA this 13th of December 2024 . J. NKWABI JUDGE OF THE HIGH COURT Page. 3 Hon... JOHN NKWABI