r vs lazaro mojerwa sepu 2023 tzhc 16541 28 march 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF DODOMA) AT DODOMA ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 42 OF 2021 REPUBLIC VERSUS LAZARO MOJERWA SEPU JUDGMENT Date of 0rder:06/03/2023 Date of Judgment:28/03/2023 Mambi, J. The accused person LAZARO MOJERWA SEPU stands charged with an offence of Murder contrary to section 196 of the Penal Code CAP 16 [R.E 2019]. The accused person stand charged after causing the death of his mother namely HAGALI MASWAGA. The prosecution fact shows that the incidence occurred on the 8th day of February, 2016 at lyumbu area within Dodoma District in Dodoma Region. The prosecution facts and evidence reveal that on the material date the i accused person was seen by one Obedi Mtipi and Steri Mwamba with a "matched' full of blood arriving at their residence. The facts alleges that the accused told Obedi Mtipi and Steri Mwamba that he had killed his mother and they should not tell anybody. In a bid to prove the charges against the accused persons, the prosecution called three witnesses and produced some exhibits to prove their case against the accused person. For easy of reference, I find it more prudent to summarize the evidence from prosecution witness as follows: In his evidence the first witness Obedi Mtipi PW1 who was the accused blood relative testified that the deceased was killed on 8/2/2016. He stated that on the material date while sleeping, he heard somebody knocking at the door, when he opened the door he saw Lazaro (the accused). PW1 told the court that the accused ordered them to sit down and told them that he had killed the deceased and he also informed them not to disclose the secret. PW1 testified that on that day there was strong light, from the bulb. He stated that" WakatiLazaro anatutishia tusiseme, aiikaa kama saa zimd'. PW1 said that the accused told him to bring water as his "pangak had blood. PW1 stated that he brought water but Lazaro ordered them to wash his "panga" He stated that "Siku alipokuja nyumbani usikuf mshitakiwa alikuwa amevaa shuka la kimasai na Kaptula". The second (PW2) prosecution witness was Steli Mwamba who was the sister in-law for the accused, she briefly testified that Lazaro came to their house at night with a "panga" that had blood. She said that he threatened her and told her to sit down. She stated that "Siku alipokuja Lazaro tulikuwa wengl' PW2 testified that Lazaro is the one who killed the deceased. She said that the incident occurred on Sunday at 22hours and the accused come to my house with panga on the same day. 2 The third Prosecution Witness (PW3) F615 Detective Surgent Charles (the police Officer) testified that the death of Hagali Masagwa occurred on 8/2/2016 at lyumbu Dodoma (usiku wa kuamkia tarehe 8). PW3 told the court that the accused was arrested by "wananchT before we arrived. PW3 testified that they received an information from mtaa Chairman at UDOM, Dodoma. PW3 said that: "Mwiii wa marehemu ulionekana kusababishwa na kitu chenye ncha kalikatika eneo la shingoni." that the deceased woman had a husband, but on the date of incident, the deceased's husband was not at home as he went to attend his sister in law who had died. PW3 told the court that when he interviewed the people at the area, they told him that the accused was responsible for the death of his mother. PW3 said that: " tulipomhoji mshtakiwa a/isema kulikuwa na ugomvi kati ya mshitakiwa na mama yake (marehemu) kutokana na kifo cha Watoto wa mshitakiwa". PW3 stated that he also noticed that when the accused wife died, the accused become more angry. PW3 said that: " Tulipomhoji mshtakiwa aiisema aiifanya mauaji ya mama yake kutokana na vifo vya kutatanisha vya mke wake na Watoto wakd'. PW3 stated that when the accused was informed about the death, of his mother he did not go to see his mother and he just proceeded drinking alcohol. PW3 further testified that the examination report indicated that the death was due to excessive bleeding from the wound cut by sharp object. PW3 further testified that "Uchunguzi unaonyesha chanzo cha mauaji ni ugomvi kati ya mtuhumiwa na marehemu kutokana na Imaniza kishirikina". He said that, "Mshitakiwa aliamini kuwa marehemu mama yake ndiyo aliwaroga na kuwaua mke wake na Watoto wake wawiiT. He (PW3) also said that: "Mshitakiwa aiitoa taarifa kwa baadhi ya ndugu zake aliowakuta ndani kuwa yeye ameua mama yakd'. 3 In his defence, the defence used one witness (the accused himself) who testified that he was informed about the death on the 8lh of February, while he went to the Pombe club. He said that "Nilipotoka kwenye Pombe nilimkuta Baba na familia nyumbani". He said that; "Sijajua mama yangu aliuawa vipi kwa vile sikwenda msibani ingawa niiipata taarifa" DW1 denied the evidence of PW1 who said they met on that material day. DW1 testified that he went to drink "Pombe" on the 7th February. He stated that " Mimi niiigombana na marebemu mama yangu kwa vi/e mtoto wangu kafariki 1998 na mama yangu hakufika msibani, hapo ndipo ugomvi uiipofika ingawa baadaye ugomvi uiiishd'. He told the court the he was informed the death of his mother on the 8th of February while he was out of home. He stated "Niiishindwa kwenda amsibanikwa mama kwaviie niiikamatwa". After briefly narrating the facts, and evidence from both parties, let me now address and answer the key issues I have raised hereunder. In my considered view, in the case at hand, this court needs to mainly address itself in determining the following key issues:- 1. Whether the prosecution has proved the case against the accused person beyond reasonable doubt and whether the accused caused the death of the deceased. 2. If the first issue is in affirmative, then the second issue is whether the accused had malice. I wish at this juncture to address the first issue that is whether the prosecution has proved the case beyond reasonable doubt. This will enable this court to make a concise conclusion as to whether the accused person is responsible for the murder of the deceased or not and if yes, whether he had malice in his mind. 4 It is the trite law that in criminal cases the burden of proof has always remained on the state throughout, to establish the case against the accused beyond reasonable doubt. What does then this mean in the end7. This, simply, means that the prosecution evidence must be strong enough to leave no doubt to the criminal liability of an accused person. This was also re-ephasiced by the then court of East African Community in Ah Ahmed Saleh Amgara v R [1959] EA 654. In other words the burden of proof in criminal cases means that the state has the primary duty of proving that the accused has committed the art^srewselements of the offence charged, with the mens rea required for that offence. In my view as viewed by others that this means the principal burden is on the accuser, and in criminal cases the accuser is the prosecution, usually the state or Republic. The brief conclusion to be drawn here with regard to this principle is that since the burden lies throughout on the state, the accused has no burden or onus of proof except in a few cases where he would be under the burden to prove certain matters. This position was more clarified by the court in 1/V Milburn v Regina [1954] TLR 27 where the court noted that: "it is an elementary rule that it is for the prosecution (the Republic) to prove its case beyond reasonable doubt and that should be kept in mind in all criminal cases". My through findings and analysis from the evidence produced by the prosecution, I find no merit in the complaint by the accused person that the prosecution had failed to prove the case beyond reasonable doubt. Looking from the sequence of events and evidence adduced by the prosecution through their witness especially PW1, PW2 and PW3, there is a clear conclusion that the prosecution have proved their case beyond reasonable that the accused is responsible for the death of the deceased person (his mother). I have carefully analyzed the sequence of evidence and events of the death of the deceased as presented by prosecution. I am therefore, on the evidence on record convinced and satisfied that the charge of murder against the accused person has not been conclusively proved beyond reasonable doubt. The only issue that I will address later is whether the accused had malice or not. Now, having considered and analyzed the evidence it is clear that the accused did cause the death of the deceased without malice. The sequence of evidence, facts and events that led to the death of the deceased can be traced from the day the accused took his matchete and went to kill his mother. The evidence further reveal that having killed his mother the accused went to see PW1 and PW2 while still having matchete that had blood. The evidence of PW1 and PW2 also reveal that the accused told them he killed his mother and threatened them not to tell anybody. The evidence of some of the prosecution witnesses and the evidence of the accused himself show that the accused had stiff conflict with his mother on the death of his wife and children. In this regard, I doubt it if the accused had intention. The prosecution evidence and defence evidence show that there is a great likelihood that the conflict between the accused and his mother (the deceased) resulted into the death of the deceased. For instance the accused in his evidence states that: "Mimi niligombana na marehem u mama yanga kwa vile mtoto wangu kafariki 1998 na mama yangu hakufika 6 msibani. Mke wangu pia a/ikufa kifo cha kutatanisha hapo ndipo ugomvi ulipofika ingawa baadaye ugomvi uliisha". This in my view (basing on the prosecution and defence evidence) show that the accused person had no clear malice of killing the deceased rather there was a conflict resulted from the allegation by the accused that his mother was source of death of his children and wife through witchcraft. This in my view this angered the accused and acted beyond his control to kill his mother by believing that she was the source behind the death of his wife and children. The evidence show that the accused went to drink "pombe" before he went to kill his mother. It appears from the evidence that the source of conflict between the accused and the deceased was the death of the accused children and his wife where the accused was blaming his mother that she was bewitching them. The conduct of the accused before and after the death of the deceased shows that the accused was responsible for the offence of manslaughter and not murder charge. This court finds the circumstantial evidence is justifiable to prove the accused guiltiness on the offence manslaughter. Indeed circumstantial evidence that is based on the conduct of the accused before or after has been used by the court to determine as to whether the accused person is responsible on the death of his mother. In our case the conduct of an accused person before or after killing may also infer malice or unintentional killing. It is also in evidence, and undisputed for that matter, that the appellant left the scene immediately after the killing and went to inform his relatives that he killed his mother who was the source of the death of his wife and children. It is also undisputed that the accused was seen with the "panga" that had blood after killing his mother before he disappeared. 7 In my view if the accused had malice he could have not gone with the panga full of blood to inform his relative and he could instead hide or run away. See also ELIAS PAUL VS THE REPUBLIC, CRIMINAL APPEAL NO. 7 OF 2004, CATMWANZA (unreported) at pg. 12. It is also in evidence, and undisputed for that matter, that the appellant left the scene immediately after the killing. If he was all that of an innocent person he would not have left the said scene. The evidence of PW1 and PW2 also reveal that the accused was the last person to be seen with the deceased. It is also clear from the case at hand that since the accused persons was the last person to be seen with his mother where he informed both PW1 and PW2 he killed his mother there is no other reason for the court not to believe that he was responsible for the cause of the death of his mother. See also MATHAYO MWALIMU & ANOTEHR V REPUBLIC CRIMINAL APPEAL NO. 147 OF2008, CAT DODOMA (unreported). Our law is also clear where the Evidence Act Cap. 6 [R.E. 2019] under section 122 permits courts to draw certain inferences from established facts. That section provides as follows:- "A court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." The sequence of events, until the accused went to show PW1 and PW2 a "pangd' that had blood and his act of narrating them how he killed his mother gives no other reasonable hypothesis than that; it was the accused person who intentionally killed his mother. 8 The main issues before convicting the accused person is whether the accused person had malice in committing an offence that he stand charged. I will also refer the relevant provisions of the Penal Code Cap 16 [R.E.2019 J which clearly to set down key principles and conditions on how malice aforethought can be said to have been established to indicate the accused intentionally committed the offence which he stand incriminated. Under section 200 of the Penal Code Cap 16 [R.E.2019] malice aforethought is said to be established on proof of any of the following circumstances: (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not. (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused. (c) an intent to commit an offence punishable with a penalty which is greater than imprisonment for three years. (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. The Court of appeal in Saimon Justine, MboneaMbwambo and Elia Mnandi Versus Republic Criminal Appeal No. 53 OF 2006 clearly explained as to how malice aforethought can be established. The court made 9 a reference to Stroud's Judicial Dictionary (2000 edition) which describes malice aforethought as any one or more of those states of mind, preceding or co existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated. Malice aforethought has therefore been held to have been manifested by such acts as the culprit's utterances before or after the event, the amount of force used, the nature and size of weapon/s (panga) used, the part of the body to which the attack is directed, the conduct of the accused, the purpose for which the injury or grievous harm is inflicted etc. However, all these must be established by evidence. Looking at the evidence from the prosecution evidence in line with evidence from the defence, in the present case, there is no doubt that elements (c) and (d), of Section 200 of the Penal Code Cap 16 [R.E.2019] do not apply. It is clear from the evidence that the accused person had quarrel with his mother on the death of his wife and children. All these sequence of related events of conflict between the accused person and his mother creates doubts as to whether the accused person had malice aforethought or intention to commit an offence of murder under section 200 and 196 of Penal Code Cap 16 [R.E.2002]. This misunderstanding among them most likely lead to the death of deceased. In our case in hand that involved accused person, one could conclude by saying that it is clear that all three elements of malice aforethought under section 200 above has not been established. The accused had neither intention to cause the death of the deceased nor knowledge that his act or omission would probably cause the death of or grievous harm to the deceased as per section 200 (a) (b) of the Penal Code Cap. 16. In this regard, the prosecution therefore had not established beyond any reasonable doubt that the accused persons did intend to cause death to the 10 deceased. As I said earlier, the evidence in our case clearly indicates that the prosecution has not properly discharged its duty of establishing beyond reasonable doubt that the accused person had malice in causing the death of the deceased. In my considered opinion basing on the evidence the accused did cause the death of the deceased without intention. I am therefore, of the view that there was no malice aforethought in our case; in that the accused action was caused by quarrel between him and his mother whom he believed was causing death of his children and wife by witchcraft. Although the accused person did not admit the killing at the court but since the prosecution has proved beyond reasonable doubt that the accused did kill the deceased, in this situation, the only crucial issues to be determined is whether or not he killed with malice aforethought so as to make the killing murder. I have already concluded that the accused had no malice of killing the deceased. Indeed even the evidence of accused during his defence show he had conflict with his mother and he did kill the deceased. My approach will not differ with the approach adopted by the court in Juma KiHmo vs, The Republic, Criminal Appeal No.70 of 2013 that is in resolving this issue I will base on two legal issues namely that the duty of the prosecution is always to prove the charge against the accused beyond a beyond reasonable doubt. Secondly where death occurs as a result of fight or provocation, the killing is manslaughter not murder. The Court in Richard Tarimo vs. R [TLR] 242 held that normally the defence of provocation is available in circumstances which would otherwise constitute murder except for the sudden loss of control of oneself as a result of some act which provokes the accused person. In our case though the accused did not rise such defence but the circumstance such as misunderstanding and quarrel between the accused person and his mother made the accused person 11 provoked and decided to stab the deceased that lead to her death. Similarly, in the case of Kelvin Haule v R, TLR 2005, at page 54 the Court of Appeal in convicting the appellant with manslaughter held that: "(/) Killing on provocation is murder which is reduced to manslaughter because of provocation; (ii) The appellant killed on provocation and thus could not be convicted of murder; " Reference can also be made to the decision of the court in SAID HEMED v REPUBLIC 1987 TLR 117 (CA) it was Held that: " (i) Where a killing is done in the heat of passion, the defence of provocation applies and the killing is not murder, but manslaughter; (ii) if a person feloniously assaults another in such circumstances as would make the killing of that other person manslaughter, by accident hits and kills a third person whom he never intended to hit at all, he is guilty of manslaughter; (Hi) as a matter of prudence, the evidence of a child of tender years requires H corroboration before it can be acted upon" Worth also referring the decision of the Court in R. v Mgambo Kwenyema, (1934) 1 E.A.C.A. 169, "if a person feloniously assaults another in such circumstances as would make the killing of that other person manslaughter, by accident hits and kills a third person whom he never intended to hit 12 at all, he is guilty of manslaughter. Aside from that we think that malice aforethought was not sufficiently established". The entire evidence from prosecution evidence taken together with the defence undoubtedly establishes a likelihood of a quarrel to have occurred between the accused and his mother prior to the accused killing his mother. From the evidence I have analyzed, I am of the considered view that the accused person did unintentionally cause the death of deceased (his mother) hence committed an offence of manslaughter contrary to section 195 of the Penal Code Cap 16 [R.E.2002]. After indicating that the first ingredient of the offence, namely overt act established, I have already explained that the evidence has established that the accused person had no any intention in mind of killing the deceased. Indeed, malice aforethought or "mens rea"\s usually a state of mind concealed in a person. As I earlier highlighted in the previous pages, in homicide cases malice is manifested by looking among others the:- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not. (b) knowledge that the act or omission causing death will probably cause the death ... (c) an intent to commit an offence punishable with a penalty which is greater than imprisonment for three years. A combination of all these events considered, I see no conclusion other than that the accused person did not have intention of committing unlawful act of killing the deceased. I am of the considered view, and find that the second 13 constituent of the offence of murder, namely mens rea has not been established since the ingredients of malice afore thought has not been established. See EDWIN S/O MBUNDA SEUSI VERSUS THE REPUBLIC, CRIMINAL APPELA No. 468 OF 2007 at Iringa. I am mindful of the requirement provisions of section 200 of the Penal Code, Cap. 16 [R.E 2002] on malice aforethought which has not been established in our case at hand. Indeed, there is no evidence on record to establish malice aforethought. In the light of the above, I am satisfied that the accused person is guilty of manslaughter c/s 195 of the Penal Code Cap. 16 [R.E 2019]. To that end, I find the offence of manslaughter fully established against the accused person. The accused persons is eventually and accordingly SENTENCE In terms of sections 198 of the Penal Code Cap. 16 [R.E 20019], the accused 14 Order: The right of Appeal is explained. MAMBI JUDGE 28/3/2023 15