YOBO JDGT CR

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 22 OF 2023 REPUBLIC VS YOBO WILLIAM MUNISI....... .......Ist ACCUSED SAID HAMIS @ AMOUR................................ 2ND ACCUSED JUDGMENT Date of last order:20-11-2024 Date ofJudgments-11-2024 B.K.PHILLIP, J The accused persons are charged with the offence of manslaughter contrary to sections 195 and 198 of the Penal Code. The information filed in this court reads as follows: Yobo William Munisi and Said Khamis @ Amour, on the 14th day of November 2022 within Mkuranga District in Coastal Region, unlawfully killed Jumbe Said Ally. The learned State Attorneys, Daudi i 2 Masaya and Asifiwe Mzava, appeared for the Republic, whereas the learned Advocates, Yohana Kibindu and Gidion Openda, appeared for the 1st and 2nd accused, respectively. Briefly, the facts of the case presented before this court by the learned State Attorneys during the preliminary hearing are as follows: The incident, which culminated in the deceased death, occurred on the 14th day of November 2022 at Vikindu area within the Mkuranga District in Coastal Region. On the fateful date, the accused persons arrested the deceased on the allegation that he was a thief and, among other things, he stole a car engine from one Hope Maghimbi Godfrey. The accused persons assaulted him by using sticks and a wire until he was unconscious. Then, they reported the matter to the village authority and later to Vikindu Police Station. They were given PF3 and took the deceased to Mkuranga Hospital, where it was revealed that he had already passed away. On 30th December 2022, a postmortem was conducted, and the report revealed that the deceased's cause of death was traumatic brain injury due to severe head injury. On 16th November 2022, the accused persons were arrested and put under custody at Vikindu Police Station. Upon interrogation, they denied having caused the death of the deceased. 2 3 In proving their case, the learned State Attorneys paraded four witnesses. PW1 was Mercy Solomon Kilekalili, Assistant Medical Doctor. Her testimony was that she examined the deceased, identified by his relatives. His body showed that he was assaulted and sustained a head injury. She prepared the postmortem report ( Exhibit Pl), which revealed that the cause of death was traumatic brain injury due to severe head injury. PW2 was Asia Mohamed, the deceased's mother. Her testimony was that on 14th November 2022, she was at her residence. Her granddaughter, Cleshima, came to her crying. She told her that Mpemba ( 2nd accused ) and Baba Joshua ( 1st accused) were beating her father. Mpemba is her neighbor. She went to the crime scene and found Mpemba and Baba Joshua beating the deceased on the head with sticks. She requested them to stop beating him and instead take him to the police station, but they refused. She continued beseeching them to stop beating him. Finally, they agreed and started going to the village leader. However, while going to the village leaders, they continued beating the deceased. Unfortunately, they did not find they did not find the village leaders. She advised them again that his son should be taken to the police station. They refused and continued beating him until he fainted. Finally, Mpemba paid "a Bajaji" driver Tshs. 3 4 10,000/= and requested him to take the deceased to the police station. There were many people around just looking at what was going on. Baba Joshua boarded the "Bajaji"and went with the deceased to the police station. She returned to her residence to prepare to go to Vikindu police station. Within a short time, a police officer came to her. He told her that she had to go to the police station because the condition of her son (deceased) was not good. She went to the police station, only to be informed that her son had been taken to Ngunguti Hospital. She returned home. At 3.00 pm, she went back to Vikindu police station, where she was informed that her son passed away. She was told to return at 7.00 pm. She returned to the police station as directed at 7.00 pm. The deceased body was taken to Mkuranga Hospital, and she went back home. Finally, the deceased was buried the following day. PW2 identified both accused persons before the Court. PW2's testimony was supported by the testimony of PW3, Cleshima Abdallah, the deceased daughter, who testified that on the 14th of November 2022, in the afternoon, she was at home. When she was about to go to her mother's workplace, her friend Sauda, told her that her father was being assaulted along the road. She went to that place where her father was being assaulted. 4 5 She saw Baba Joshua and Mpemba beating him on the head with sticks. She knew Baba Joshua and Mpemba because they were their neighbors, and it was daylight. She saw them clearly as she was standing about three steps from where they were beating her father. After that she returned home told her grand mother, Asia ( PW2) what she saw. She did not return to the crime scene.PW3 identified both accused persons before the court. PW4 was a police officer, G.7298 D/CPL Emmanuel. His testimony was that on 15th November 2022, in the morning, he was assigned to conduct investigation in respect of file No. MK/IR/2828/2022-murder case. He perused the file and noted that the deceased was Jumbe Said Ally. His body was at Mkuranga Hospital. He contacted the deceased's relatives and went with them to the hospital. The deceased's relatives identified the deceased as Jumbe Said Ally. His body was examined, and it was revealed that his death was due to traumatic brain injury due to severe head injury. He was hit with a blunt item. After examination of the deceased, the body was handed over to the relatives for burial services. The Doctor filled in the postmortem report. (Exhibit Pl). He visited the crime scene known as Magogo Matatu in Vikindu. He was led by the deceased's mother, Asia 5 6 Mohamed. He managed to gather information from different witnesses who told him that the accused persons before this court were the ones who assaulted the deceased. The accused persons were arrested and taken to Vikindu Police Station. In the oral interrogations, the accused denied having assaulted the deceased. He knew the 1st accused before the incident and the 2nd accused after arrest. In his investigations, he discovered that the accused persons were witnessed by the deceased's mother (PW2) and daughter (PW3) beating the deceased. The 2nd accused is the one who gave money for transportation of the deceased to the police station. PW4 was cross-examined using his caution statement under sections 154 and 164 of the Tanzania Evidence Act. The learned Advocate Kibindu moved this court to admit PW4's caution statement as Exhibit DI. The same was so admitted. Upon closing the prosecution case, I ruled out that both accused persons had a case to answer. The accused persons made their defense under oath. The first accused testified as DW1. His testimony was as follows: On 14th November 2022, a veterinary Doctor visited him to treat his goats. Upon being treated, the goats were taken out for grazing. After some time, he 6 7 went to the grazing area to see his goats. On his way, he found a person being assaulted (Hereinafter referred to as the "victim" or "deceased"). He asked the people around why they were assaulting the victim. They told him that he was a thief. He chained the victim and stopped the mob from assaulting him. He snatched a stick from one person in the mob and used it to stop people from assaulting the victim. Then, the victim's mother arrived. She requested her son (the deceased) be taken to village leaders. The road was blocked since there were so many people. The 2nd accused was driving his vehicle to his residence and tried to pass along that road but could not manage. He had to stop there. He disembarked from his vehicle and inquired what was the matter. At the same time, a " Guta " (tricycle used for carrying luggage/passengers) arrived at that area. He requested the "Guta" driver to take the victim to the police station and gave him Tshs. 10,000/=. When they were putting the victim in the" Guta," other people were still assaulting him. The 2nd accused snatched a stick from one of the people in the mob and used it to stop them from beating the victim. He took the victim to Vikindu police station, where WP Fatuma received him. She interrogated the victim, and he learned that his name was Jumbe, as by that time, he was still alive. The victim explained to WP Fatuma what had happened to him. 7 8 He took Jumbe to Ngunguti Hospital under the directives of WP and handed him over to the Doctor. He left the victim at Ngunguti Hospital. Further, DW1 denied having assaulted the deceased and that the police arrested him. On 15th November 2022, he went to the police station on his usual schedule since he was a local Militia. Upon arriving there, he was informed that the person whom he had taken to Nguguti Hospital died. So, the police detained him at the police station to wait for Adamu, the boss. When Adamu arrived, he told him that he was among the people who assaulted the deceased. About 16 people had been arrested in respect of the death of the deceased. He prayed this court would set him free as he took the deceased to the police station in the course of discharging his duties as a local militia man with 20 years of experience. He has never been accused of committing any offence. He tendered in court his Identity Card, which was admitted as exhibit D2. The 2nd accused testified as DW2. His testimony was as follows; That he is a businessman. His offices are in the Temeke Stereo and Tabata area. On 14th November 2022, at around 1.00 pm, he found a mob on the road going to his home while driving back to his residence. The road was not passable. 8 9 He stopped and disembarked from his car. He saw the victim being assaulted. He inquired about the matter from the people around him. He was told that the victim was a thief. He saw the 1st accused, who was a local militia trying to stop people from beating the victim. He requested the people to stand aside to allow him to pass through. However, because there were so many people, it was not possible. Then he told them it was better to take the victim to the police station. Lucky enough, he saw a " Toyo/ "Guta" coming behind his car. He stopped that "Toyo" and asked the driver to take the victim. The driver of the "Toyo" refused. He beseeched him to assist them. Finally, he agreed to take the victim. They started putting the victim in the "Toyo," but some people were trying to obstruct them. Finally, they managed to put the victim in the Toyo. He gave the driver of the "Toyo" Tshs. 10,000/=. After that, he drove home. On 16th November 2022, at around 7.00 am, he received a call from WP Fatuma. She told him that he was required to go to Vikindu police station. He heeded the call and went to Vikindu police station to meet WP Fatuma. Upon arriving at the police station, he was told to stay in a room and wait for further instructions. He stayed there for a whole day. In the evening, he was informed that the thief, who was arrested on 14th November 2022, died. His name was Jumbe. He 9 10 spent a night at Vikindu police station. He was not interrogated. He stayed at the Vikindu police station for 3 days. After that, he was taken to Mkuranga Police Station. He stayed at Mkuranga police station for 4 days. Finally, he was arraigned at Mkuranga District Court for the offence of murder together with other people. They were about 8 to 9 people. After that, he was taken to Keko prison. He was bailed out after staying in Keko for three months. Further, DW2 prayed to be set free, as he knew nothing about this case. He did not beat the deceased. He paid for the "Toyo" since he wanted to save the life of the deceased. Before going further with the analysis of the evidence adduced by the witnesses, I think it is opportune to state here that the issue for determination in this case is whether or not the accused persons assaulted the deceased and, thus, caused his death. The standard of proof in criminal cases is beyond reasonable doubt. In the case of The Director of Public Prosecutions Vs. Shirshir Shyamsigh, Criminal Appeal No.141 of 2021 ( unreported), the Court of Appeal had this to say on the standard of proof in criminal cases; io 11 "We must emphasize that in a criminal trial, the prosecution is bound to prove the case beyond reasonable doubt instead of shifting the burden of proof to the accused, as it seems apparent in the case at hand..." ( Emphasis is added) The evidence adduced by both sides reveals that the deceased died an unnatural death. A mob assaulted him. This is per the evidence of PW4, who, during cross-examination, told this court that Inspector Adam Nyangaka arrested Eugine Eustard Kagaluke, Iman Browm kajiba@ Kiara, and Ally Omary Athumani @ Kibenteni, concerning the death of the deceased in this case. The information they received for the first time was that a mob assaulted the deceased, and there was an allegation that the deceased stole some properties. In his caution statement ( Exhibit DI), PW4 stated that a mob assaulted the deceased after being accused of stealing some properties. The mob forced him to show the properties he stole. Those properties were found and taken to Vikindu Police Station. Six people were arrested in connection with the death of the deceased, and fourteen witnesses were interrogated, two witnesses, who are the deceased's relatives, said that they managed to identify the accused person among many people who assaulted 11 12 the deceased. Additionally, PW2 and PW3, during cross-examination, told this court that at the crime scene, there were other people around, but they were not assaulting the deceased. The star witnesses in this case are PW2, the deceased's mother, and the deceased's daughter, PW3. Being related to the deceased, these witnesses have an interest to serve as would like to see someone held liable for the deceased's death and that is natural. Thus, their testimonies must be taken cautiously and be corroborated with other witnesses with no interest to serve.In the case of Godfrey Elisalia and three others Vs The Republic, Criminal Appeal No.39 of 2022, (unreported) the Court of Appeal held as follows; Under these circumstances where PW11 was a colleague of the 2nd and 4th appellants and where he was dropped from the charge and turned a prosecution witness, the complaint by the counsel for the appellants that PW11 was a witness with his own interest to serve, cannot be disregarded. In the case of Hassan Mzee Mfaume Ifs Republic (1981) T.L.R 167, the Court stated that; " Furthermore, it would appear that the witness Asha ( PW5) whose evidence tends to implicate the appellant, was a person with an interest of her own to serve in the matter. Once it is held that Asha was a witness with an interest other own to 12 13 serve, then her evidence requires dose scrutiny and, as a matter of procedure, corroboration" Basing on the above, we find that PW11 was a witness with his own interest to serve, and his evidence ought to have acted upon with great caution" ( Emphasis added) A pertinent question emerges here: PW4 stated in his caution statement (Exhibit DI) that there were about 14 witnesses. Why didn't he find a neutral witness who had no interest to serve and not close relative of the deceased to come to testify in court? The above aside, it is a trite law that minor contradictions are not fatal, but serious contradictions that go to the root of the case are fatal. In the case Musa Hassan Barie and another Vs The Republic, Criminal Appeal No. 292 of 2011, (unreported), the Court of Appeal held that : "In MOHAMED SAID MA TULA vs R {supra) this Court directed that where there are such contradictions inconsistencies, and lies in the evidence of witnesses, the trial court has a duty to address them and make a finding whether or not they were material. The trial court in this case did not, and 13 14 stepping into its shoes, we find that the inconsistencies and contradictions in the evidence of PW2 and PW3 tarnish the credibility of those witnesses and so go to the root of the prosecution case, which largely depended on their evidence.." [ Also see the case of Mohamed Matula Vs Republic (1995) TLR 3] In this case, leaving alone the fact that the testimonies of PW2 and PW3 are not corroborated with any other testimony, the same are contradictory to the testimony of PW4. In their testimonies, PW2 and PW3 denied completely that the deceased was accused of stealing and that he was assaulted by a mob who wanted him to show the properties allegedly stolen, whereas PW4 stated in his caution statement ( Exhibit D4) and during cross­ examination that the deceased was accused of stealing properties. Moreover, PW2's and PW3's testimonies that other people who were at the crime scene were watching the accused persons assaulting the deceased and did not raise the alarm or take any action is doubtful because it is incomprehensible that all people who were at the crime scene could watch the accused persons assaulting the deceased until he fainted without intervening. In response to questions posed to him during the cross­ 14 15 examination, PW2 told this court that all people who were at the crime scene were against his son (the deceased), and she did not know why they were against her son. This court cannot rely upon such general and unsubstantiated answers in its decisions. On the other hand, the accused's defense has raised so much doubt about the prosecution case and shaken it. For instance, The 1st accused proved that he was a local militia. Thus, his defense that he chained the deceased to rescue him from the mob that was assaulting him makes sense. The 2nd accused testified that he paid Tshs. 10,000/= for transportation of the deceased to the police station to rescue him from the mob that was assaulting him. The testimony of PW4 corroborates the accused persons' testimony that a mob assaulted the deceased. During cross-examination, PW2 told this court that at the crime scene, there were other people apart from the accused persons, including a person who was holding a wire whose name she did not remember, and in the facts presented in court during the preliminary hearing it was alleged that deceased was assaulted by the accused persons using sticks and a wire. However, none of the prosecution witnesses testified that the accused persons assaulted the deceased with a wire. 15 16 In this case, I have demonstrated profound contradictions among the prosecution witnesses that go to the root of the case, as it touches on what happened to the deceased on the fateful date, that is, whether or not he was assaulted by the accused before this court as alleged by the state Attorneys or was assaulted by a mob. As I have endeavored to demonstrate herein, evidence shows that the deceased was accused of stealing, but PW2 (the deceased's mother) and PW3 (the deceased's daughter) denied that. Under the circumstances, it is the finding of this court that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt as required by the law. Thus, the accused persons are not guilty of manslaughter and are hereby acquitted unless held for other lawful cause. Dated at Dar es Salaam this 29th day of November 2024 B.K.PHILLIP JUDGE 16