the repuiblic vs mayunga maganga 2 others 2023 tzhc 21585 29 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA DISTRICT REGISTRY SITTING AT NZEGA CRIMINAL SESSIONS CASE NO. 03 OF 2023 THE REPUBLIC VERSUS 1. MAYUNGA S/O MAGANGA 2. SHIJA S/O SHIJA SUMWA 3. BUNDALA S/O SHIJA JUDGMENT Date of Last Order: 07/09/2023 Date ofJudgment: 29/09/2023 KADILU, J. The accused persons herein stand charged with the offence of murder contrary to Sections 196 and 197 of the Penal Code [Cap. 16 R..E. 2019]. The particulars of the offence in the information allege that the trio murdered a person named Maria Kishiwa between the 2rid and 3rd day of August 2021, during night hours at Isalalo Village, Utwige Ward within Nzega District in Tabora Region. Upon arraignment before the court, all the accused pleaded not guilty to the charge hence a full trial. In a bid to prove the charge, the prosecution side called six witnesses namely, Adamu Jumanne (PW1), Kubea Hassani Hemedi (PW2), G.3539 - D/C Hamisi (PW3), G.3280 - D/C Shabani (PW4), Dr. Peter Edwin Chiwanga (PW5) and Maria Kulwa (PW6).. In addition, the prosecution tendered in evidence, a sketch map of the scene of the crime (Exhibit Pl), a certificate of seizure (Exhibit P2), a sisal ■i rope (Exhibit P3), a traditional grinding mill (kinu} (Exhibit P4), a traditional chair {kigoda} (Exhibit P5) and post mortem examination report (Exhibit P6). The accused persons defended themselves and they had no exhibits to tender. It was the prosecution's account that on the fateful day, the deceased was sleeping in her house which was near the accused persons' houses built in the same compound. The accused were then seen with the deceased moving to the kitchen where they hanged the deceased by using a sisal rope. According to PW1 who was by then the Village Executive Officer (VEO) of Isalalo Village, on 03/08/2021 he was called by the Village Chairman informing him that a person committed suicide in the Village. PW1 went to the scene of the crime where he found a female person's body hanging on the roof of the hut and beside it, there were a traditional chair and a traditional grinding mill. He observed that the deceased's tongue was hanging outside the mouth. PW1 accompanied PW3 in drawing a sketch map of the scene. PW1 said he did not see anyone hanging the deceased so, he does not know any person who killed her. The Ward Executive Officer (WEO) for Utwige testified as PW2 and informed the court that on 03/08/2021, he was called by PW1 who told him that one of the villagers recognized as Maria Kishiwa had committed suicide. PW2 stated that he was the one who informed the Officer Commanding Criminal Investigation Department (OC-CID) about the incident. He also went to the scene of the crime and found the deceased's body hanging on 2 the roof of the kitchen. According to him, there was a traditional grinding mill and a traditional chair near the body. Finally, PW2 told the court that he did not know the killers because he arrived at the scene of the crime at 7:00hrs in the morning whereas the incident occurred at 2:00hrs in the night PW3 is the Police Officer at Nzega Police Station who drew the sketch map of the scene of the crime under the direction of PW1. He told the court that there were about 45 metres from where the deceased was sleeping to where he found the body hanging. D/C Shabani testified as PW4 and stated that at the scene of the crime, he found the deceased hanged by using a rope. He explained that beside the body there was a grinding mill (kind) which was turned upside down and oh top of it, there was a chair {kigoda'j. He seized the rope, kigoda and kinu. He proceeded to arrest the accused persons and one other person known as Muhoja Shija who was released after the interrogation. PW4 explained that he saw the signs of two hands on the body of the deceased, which he suspected were the accused persons' hands. He did not however, take further steps to establish whether the two hands were the accused's hands or not. He said that he did not know the killers as he was not on the scene at the time of the incident. PW5 was a Medical Doctor at Itobo Health Centre. He was not the one who conducted a postmortem examination of the deceased's body. The examination was conducted by Dr. Albert Lazaro who passed away before 3 the trial. Mr. Merito Ukongoji, the learned State Attorney prayed the postmortem examination report to be tendered by PW5 as he is knowledgeable about it. The prayer by Mr. Ukongoji was not objected hence, PW5 tendered a postmortem examination report. Reading the contents of the report, PW5 explained that the cause of death was suffocation. He narrated that he found the deceased's tongue hanging out, the body had no stool and there was no tongue bite. According to PW5, the deceased's body had no signs of a person who committed suicide. Maria Kulwa was the sixth prosecution witness (PW6). At the time of the incident, she was 13 years and she was living with her grandmother, the deceased. She told the court that during the night of the incident, she slept with the deceased and her grandfather (1st accused) in the same house. She said that her grandmother committed suicide, but she was asleep when her grandmother died. She continued to explain that Mayunga, Shija and Bundala were the ones who killed her grandmother. She stated that she saw them using light from solar power as it was during the night. She stayed calm after the incident and in the morning, her aunt took her to the neighbour's house, named Mwanashija. PW6 added that her grandmother went to the kitchen that night taking a rbpe with her. However, PW6 did not ask the deceased as to where she was taking the rope, but she was later found dead in the kitchen. It was the testimony of PW6 that she was informed by her mother (Mwanamaganga) that the deceased's body was hanging in the kitchen. She (PW6) went to the 4 kitchen and saw the body hanging. According to her, the grandfather was asleep at that time. In defence, the accused persons were the only defence witnesses and did not produce any exhibit. They vehemently denied their involvement in the death of the deceased. The first accused (DW1) was the husband of the deceased and he told the court that the deceased committed suicide on 03/08/2021 during the night. He said he was asleep during the incident therefore; he does not know the reasons for the commission of suicide. According to DW1, he found his wife missing in the house at 2:00hrs in the night and he went out to search for her. He woke up his children and grandchildren with whom they searched for the deceased. They then found her body hanging on the roof of the kitchen. They raised an alarm which awakened the neighbours and gathered in the deceased's compound. DW1 stated further that during the incident, he was a Chairman of the Hamlet and was the one who called the Village Chairman informing him about the incident. The information on the unusual death was conveyed to Nzega Police Station. Consequently, PW3 under the superintendence of the Officer Commanding Criminal Investigation Department (OC-CID) together with Dr. Albert Lazaro (now the deceased) and other police officers went to Isalalo Village at the deceased's home. It was the testimony of DW1 that the deceased was suffering from stomachache for a long time and she had undergone three surgical operations before the death. 5. DW1 continued to testify that he used to live with his grandchild Maria Kulwa (PW6) in his home together with the deceased. At the time of the incident, PW6 was asleep and when she woke up, her mother took her to the neighbour's house because she was very young and they did not want her to see her grandmother's dead body. He said, that was a common practice in their area in which young children do not participate in funerals. They are usually taken away from home and return after the burial activities. He concluded that although the deceased was sick for a long time, before her death she did not tell him (DW1) that she was not feeling well. DW2 is a grandson of the deceased and she told the court that at the time of the incident, he was living with her wife Diana Kiyenze and other family members. He stated that his grandmother, Maria Kishiwa committed suicide. He explained that on 03/08/2021, he was awakened by DW1 who was looking for the deceased. According to DW2, DW1 awakened all members of the family to search for the deceased and after a while, DW2's mother informed them that she saw the deceased's body hanging in the kitchen. They went to the kitchen and found the body hanging oh the roof and beside it, there were kinu and kigoda. DW2 stated that he does not know why his grandmother committed suicide, but members of their family including himself were arrested and taken to Nzega Police Station. The third accused testified as DW3 and stated that he was living in the same compound with the deceased before the demise. He said that his grandmother (the deceased) committed suicide on 03/08/2021 during the 6 night. He explained that he was awakened by his grandfather who informed members of their family that their grandmother was missing. They held a brief meeting on how to go about it and he suddenly heard his mother's cry from the kitchen saying the grandmother had committed suicide. DW3 continued to testify that they raised an alarm and the neighbours gathered in their compound. The matter was then reported to the police and police officers, the doctor and other people arrived at the scene on 13:00hrs. They inspected the scene, examined the deceased's body and arrested the accused persons. He concluded that he did not know the reasons for the deceased to commit suicide and he insisted that nobody had killed her. During the trial, the Republic was represented by Mr. Merito Ukongoji, assisted by Mr. Enosh Gabriel, learned State Attorneys whereas the accused persons were represented by Mr. Edward Malando, also the learned Counsel. I have keenly examined the evidence presented by both parties. Generally, the learned State Attorneys were of the firm view that the case against the accused persons was proved beyond reasonable doubt through direct evidence of the witnesses and the exhibits tendered. On the other hand, the learned defence Advocate opined that the prosecution case was not proved to the required standard. Without much ado, I commend Counsel for both sides for their good job in the conduct of this case. Now, the central issue for determination is whether the prosecution side has managed to prove the case against the accused beyond a reasonable doubt. It is a trite law that the duty to prove 7 the case lies oh the prosecution and the accused has no duty to prove his innocence. Seethe cases of Hamis Mbwana Suya vR., Criminal Appeal No. 73 of 2016, Court of Appeal of Tanzania at Arusha and Joseph John Makune vR.f [1986] TLR 44, in which the Court of Appeal of Tanzania held as follows: "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case. The duty is not cast on the accused to prove his innocence. There are few well-known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance ofprobabilities..." In this case, two witnesses were the source of information about the unnatural death of the deceased. One is Diana Kienze who is the wife of the second accused person whose statement is in the case file, but she did not testify during the trial. The prosecution failed to trace her whereabouts after she left the Village and was nowhere to be found. The second is Maria Kulwa (PW6) who slept with the deceased in her house on the fateful night. As I will show later, evidence of PW6 is not reliable. The rest of the prosecution evidence presented by PW1, PW2, PW3, PW4 and PW5 was not direct evidence because as shown in their testimonies, none of them witnessed the incident. Since Diana Kienze did not testify, I oniy remained with the evidence of PW6 which I now deal with in detail. A thorough analysis of the evidence of PW6 shows that her evidence was contradictory and full of inconsistencies. 8 At some point, Mr. Enosh moved the court under Section 163 of the Evidence Act to cross examine PW6 due to her inconsistencies, but the prayer was vigorousiy objected by the defence Counsel. Sometimes, PW6 stated that the deceased committed suicide while in other places, she testified that the accused killed the deceased. For example, she stated as follows when she was testifying in chief: "When my grandmother died, I was asleep. People started to shout and many other people came. They started to cry. I stayed quiet. My grandfather killed my grandmother. I do not know how he killed her. She committed suicide." In yet another piece of her testimony, she narrated as follows: "I saw my grandmother in the kitchen. She was hanging. It was the grandfather who hanged her. I saw him. He was with Shija, Maganga and Bundala. I stood at the door and saw them. It was during the night. There was electrical light..." It is pertinent to point out here that the demeanour of PW6 during the trial was also doubtful. On several occasions, she refused to speak until the court directed her the obligation to testify after having taken an oath. The foregoing conduct by PW6 constitutes a general rule which was stated in Mohamed Said Matuia vR, [1995] TLR 3 where the Court of Appeal held that where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible, else the court has to decide whether the 9 inconsistencies and contradictions are only minor, or whether they go to the root of the matter. In the case at hand, I tried to resoive the inconsistencies by seeking clarifications from PW6, but she kept on changing her statements that the deceased committed suicide and that she was hanged by the accused persons. In the case of AwadhiAbrahamani WazirivR., Criminal Appeal No. 303 of 2014, the Court of Appeal quoted with approval the holding in the case of Augustine Njoroge Ritho @ Chabah vR., Criminal Appeal No. 99 of 1986, the Court of Appeal of Kenya in which it was held that: It is trite law that where evidence is inconsistent or where it is contradicted, it cannot be relied upon." It is undisputed that the deceased died a brutal death. The postmortem examination report which was admitted as exhibit P6 indicates that the cause of death was suffocation. There is no dispute as well that the deceased's body was found hanging on the roof of the kitchen. Therefore, the question to be resolved is as to who killed the deceased. All prosecution witnesses testified that beside the body, there was a local grinding mill and the traditional chair to imply that the deceased was killed and hanged. The said grinding mill and traditional chair were admitted as exhibits P4 and P5 respectively. Notwithstanding, there is no cogent evidence to show that the deceased was killed by some person(s). It has been shown that the accused io persons alienated themselves completely from the killing. It was DWl's account that the deceased was suffering from chronic stomachache. DW1 attempted to treat the deceased including by incurring medical expenses at the regional referral hospital, Kitete. Her health did not, however, improve even after undergoing surgery three times. The defence evidence was thus to the effect that, the deceased committed suicide. This was also the testimony of most of the prosecution witnesses, save for the suspicion regarding the. grinding mill and local chair found near the deceased's body. The very fact that the statement made by PW6 that the deceased was murdered differs materially from her other statement made during the same trial session that the deceased committed suicide, raises doubt as to whether the deceased was murdered or she committed suicide. For this reason, it is the finding of this court that the prosecution has managed to prove that Maria d/o Kishiwa had died, but still, it was its burden to prove cogently that it was the accused persons herein who killed the deceased. Seethe case of Maliki George Ngendakumana vR, Criminal Appeal No. 353 of 2014, Court of Appeal of Tanzania at Bukoba, in which it was stated that the prosecution's duty to prove the offence is two folds, first to prove that the offence was committed, and second to prove that it was the accused who committed that offence. Given the suspicion on the veracity of PW6 as a key witness, I find that the evidence adduced by the prosecution witnesses was surrounded by inconsistencies and contradictions to make the Conviction of the accused persons unsafe. 11 I am of the humble opinion that the inconsistencies and contradictions went to the root of the matter and that there is sufficient doubt in the prosecution evidence which should be determined to the benefit of the accused persons. Seethe case of John Gilikola vR.f Criminal Appeal No. 31 of 1999, Court of Appeal of Tanzania at Mwanza. For the foregoing reasons, it is my considered findings that prosecution evidence in this case did not irresistibly establish that it is no other person who killed the deceased than the accused. As such, the case against the accused persons was not proved beyond reasonable doubt as required by the law. That said and done, I find all three accused persons not guilty of the offence they stand charged with, and consequently, I acquit Mayunga Maganga, Shija Shija Sumwa and Bundala Shija. I order the immediate release of all the accused from custody unless held for any other lawful cause. The right of appeal is open to any aggrieved party. ^^LU1, M.X, JUDGE 29/09/2023 Judgement delivered in open court on the 29th Day of September, 2023 in the presence of Mr. Enosh Gabriel, State Attorney and Mr. Edward Malando Advocate for the accused persons who are also present under custody.