Republic v Mahmoud Salum Musa Criminal Session No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CRIMINAL SESSION NO. 5 OF 2023 REPUBLIC .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS MAHMOUD SALUM MUSA .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J 15/11 & 13/12/2024 The accused person stands charged with murder contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. The deceased who is said to have been killed by the accused person is called Lazaro Kalihamwe. According to PW.3 Aswile, the deceased sustained a press wound on the head which caused the deceased to suffer severe traumatic brain injury. He opined that the press wound was caused by a blunt object such as a rock or a log of a tree. The incident happened at Kiganza village which is within Kigoma district. PW.2 Perusi said the accused person struck the deceased by use of a brick. She was in her farm weeding. She was at a distance of five paces from her husband. She said, the accused struck the deceased and ran away. She mentioned the deceased to be Lazaro s/o Kalihamwe Lusumagiza. She added that the culprit entered into another person’s house where he was arrested by neighbours. In his defence the accused person denied to have committed any offence. He added that he was told that he used a piece of brick to kill the deceased. He said it was the devil which caused him to kill. He concluded his testimony by saying that at the time of the incident he was conscious of what he was doing. Arising from the evidence of the rival parties in this case are the following issues: Page. 1 Hon... JOHN NKWABI 1. Whether the accused person killed the deceased Lazaro s/o Kalihamwe Lusumagiza. 2. Whether the accused person had malice aforethought necessary for conviction on murder offence. I commence my determination of this case with the 1st issue which is whether the accused person killed the deceased Lazaro s/o Kalihamwe Lusumagiza. On my evaluation of the evidence, the prosecution case suffers from several frailties. PW.1 Mwatano seems to have just been informed about the incident because she even did not see which weapon the alleged assailant used to hit the deceased. The evidence of PW.2 Perusi has no description of the assailant. That is contrary to the position of the law as per Republic v. Ally [1971] H.C.D. No. 306 quoted with approval the case of R. v. M.B. Alluis (1942) 9 EACA where it was underscored that: “That in every case in which there is a question as to the identity of the accused, the fact of there having been given description and the terms of that description are matters of the highest importance of which evidence ought always to be given, first of all of course by the person who gave the description or purports to identify the accused and then by the person to whom the description was given …” Further, the owner of the house where the accused person allegedly was arrested was not mentioned by PW2. Even the arresters as well as local leaders were neither mentioned by PW.2 nor called to testify. This is the demand of the Court of Appeal, in its recent decision, I parrot 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 this case, PW.2, at the time of the incident, was weeding, the incident happened as a surprise to her. When she looked, it appears that, the assailant was running away with his back side to PW.2. In the situation it was difficult for PW.2 to identify the culprit. In the situation, I exemplify Africa Mwambogo v. Republic [1984] T.L.R. 240 (CA) “The deceased was encumbered with two bottles of milk and, evidently, a gun, and accordingly to what he allegedly told PW3 he was shot at before he looked “at the direction” and when he did so is when he saw the appellant running away. The assailant was presumably running away with his back to the appellant, in an area already described, in circumstances of traumatic surprise. In his judgment the learned trial judge correctly pointed out that there was no evidence of the distance between the assailant and the deceased, no evidence of how long the latter was able to observe the former, or whether the assailant was on the road or in the bush … Evaluating the evidence on identification we are respectfully of the view that the conditions of identification cannot be said to have been ideal.” Page. 2 Hon... JOHN NKWABI It is unnoteworthy law that evidence of identification must be absolutely water tight as stated in Mwalim Ally & Another v. Republic, Criminal Appeal No. 39 of 1991 (Unreported) (CAT): “Where the evidence alleged to implicate an accused is entirely of identification, that evidence must be absolutely water tight to justify a conviction.” It is further revered law that any doubt in evidence in a criminal case, should be resolved in favour of the accused person. See Republic v. Athuman Hatibu [1986] T.L.R. 396 where it was stressed that: “Doubt as to the accused age should be resolved in favour of the accused.” Over and above, the prosecution, to me, appears to have not taken into account the adage that, don’t think there are no crocodiles because the water is calm. It should equally be remembered that an accused person cannot be convicted based on the weakness of his defence. See Christian s/o Kale & Another v. Republic [1992] T.L.R. 302 (CA). Based on the above deliberation, I answer the first issue in the negative. To put it all together, I find the prosecution has failed to prove the accused person guilty of murder of Lazaro s/o Kalihamwe Lusumagiza. I proceed to acquit the accused person namely Mahmoud s/o Salum Musa of murder which he was charged under section 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. I would not consider and determine the 2nd issue because it perishes 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