republic vs rajabu john kangarawe another 2023 tzhc 22285 31 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT MAFINGA. CRIMINAL SESSION CASE NO. 97 OF 2022 THE REPUBLIC VERSUS 1. RAJABU JOHN @ KANGARAWE 2. SAIMON LUNOCHO @ CHONGOLO JUDGMENT lS h & 31“ October, 2023 I.C MUGETA, J: On 13/2/2022 at 17:00 hours Batista Uhakula entered on guard at African Hardwood Limited factory at Nyololo, Mafinga as a night watchman. It is Mendrad Sanga (PW1) who handed over the guard to him. Mendrad went back to relieve him on 14/2/2022 only to find him missing, the factory store doors opened and blood spatter was obvious in the bathroom and in some parts of the factory buildings. The dead body of Batista was recovered from the bush about 3 kilometres away from the factory. It had cut wounds on the head which a medical doctor, Velentino Chula (PW3) confirmed resulted into severe brain injury and his death. He tendered the postmortem examination report as exhibit PI. Page 1 of 10 Rehema Julius Mbedule (PW5) is the supervisor of the factory. She confirmed to A/Insp. Juma Isike (PW4) that the incident was robbery and items stolen were several including a 9 heavy duty motors and 6 small motors. Out of the stolen properties, one small motor with serial numbers SFGM64664 (exhibit P2) was recovered from the house of the 2nd accused person. Two heavy duty motors with serial numbers U3MSH00500 (exhibit P4) and U3MSHL009298 (exhibit P5) were recovered from Denis Joseph Ndemo (PW6) who received them from the 1st accused person for inspection if they work properly. Denis Ndemo is an electrician. Those properties were positively identified by Rehema Mbedule (PW5) as part of the goods stolen from the factory. Under the doctrine of recent possession, the accused persons are charged with murder of Batista Uhakula contrary to section 196 and 197 of the Penal Code [Cap. 16 R.E 2019]. From the evidence on record, it is undisputed that exhibits P2, P4 and P5 were stolen from the factory guarded by Batista Uhakula (the deceased). It is also undisputed that the deceased died unnatural death and the assault blows directed to his head confirm malice aforethought on part of the murderer. I make a finding that Batista Uhakula was murdered. Page 2 of 10 The first accused person testified as DW1 while the second accused person testified as DW2. They agree that exhibit P2, P4 and P5 is part of the goods they jointly loaded in the second accused's car and transported the same to Mafinga from "Mnara wa Voda" area at night on 14/2/2022 and temporally stored them at the residence of Thomas Mgowole (PW7). The dispute between them is on ownership of those properties. They shift the blame on each other. While the first accused person alleges that he collected the goods after the second accused requested for his escort, the second accused who is a taxi driver testified that he was hired by the first accused person to transport the properties. Their mutual evidence makes a very interesting story! From the evidence on record, I make a finding of facts that Batista Uhakula was murdered after being captured while guarding the factory from which exhibits P2, P4 and P5 were stolen. Did the accused persons or any one of them murder him? There is no direct evidence to that effect. However, under the doctrine of recent possession, they are deemed killers until when they give a plausible explanation of how they came into possession of the properties stolen from the factory which the deceased guarded. In that regard, I shall Page 3 of 10 examine the defence of each accused to see if it makes a plausible explanation. The 2nd accused person is a taxi driver. On 13/2/2022 he was with Thomas Mgowole (PW7) up to 00:00 hours per his evidence and that of PW7. When they parted company, the 2nd accused had received a call from a person who wanted to hire him to Nyololo. Nyololo is a place where the factory which the deceased guarded is located. In his defence the 2nd accused explained why exhibit P2 was found at his residence. He said he retained it because after transporting the goods, the 1st accused failed to pay the transportation charges. However, there is no dispute that he is the one who phoned Thomas Mgowole (PW7) to request for storage of the goods he transported which implicates him with the possession of the stolen goods. He explained, however, that he did so on the 1st accused person's request which fact is disputed by the 1st accused person. He said that on arrival in Mafinga, the 2nd accused person wanted to keep the goods closer to town at Kinyanambo "B". As the person to whom the goods were to be offloaded as planned by the 1st accused person did not pick the phone, he volunteered to assist by asking a space from PW7 who lives at Kinyanambo "B". That he lives at Kinyanambo "A" Page 4 of 10 while the 1st accused lives at Kinyanambo "C" which places are far from Mafinga Town Centre. I find the 2nd accused person's story on how he got exhibit P2 and why he asked PW7 for temporary storage of the goods probable. His defence that he retained exhibit P2 as security for payment of transportation charges is similar to that of Denis Joseph Ndemo (PW6). He retained exhibit P5 for security of the money Tshs. 150,000/= he lent to the 1st accused person. This is the money the 2nd accused said the first accused promised to pay him but the police interrupted by arresting the second accused. Under section 122 of the Evidence Act [Cap. 6 R.E 2022], I infer that retaining a debtor's property as security of the debt is a contractual default rule of business in Mafinga town. This presumption is in favour of the 2nd accused's story on how he got exhibit P2. On whether the 1st accused, indeed, hired the 2nd accused's car, I have considered the evidence of the 2nd accused person and that of PW7 that when they parted company the 2nd accused had received a call and the 2nd accused told PW7 that someone wanted to hire him to Nyololo. Therefore, PW7 corroborates the 2nd accused person that he was hired. Further, since he was with PW7 up to almost 00:00 hours on 13/1/2022, then he was not among those who robbed the factory. PageS of 10 With the finding that the 1st accused hired the 2nd accused to transport the goods, the 1st accused owe us the duty to explain how he came across exhibits P2, P4 and P5 before he hired the 2nd accused to transport them. This explanation is missing. His defence is just that he was requested by the 2nd accused person to escort him to go collect the goods which is untrue as I have held that he hired the 2nd accused to transport the goods. It is my view that his story is self defeating in the face of uncontroverted evidence that he is the one who collected the goods from Thomas Mgowole (PW7) and that he is the one who took exhibits P4 and P5 to Denis Ndemo (PW6). Further, A/inspector Isika (PW4) testified that after arresting the accused persons with exhibits P2, P4 and P5, he questioned them about the whereabout of the rest of the goods. The first accused person, not the second accused, responded that they have been transported to Mbeya. So he is the one who had knowledge of the movements of the goods. His evidence that it is the 2nd accused who directed the Toyo driver to take the goods to Denis (PW6) is also false because PW6 said he is the one who communicated with him about the goods and finally visited PW6's place of work. Without a reasonable explanation he is guilty under the doctrine of recent possession. In the case of Joseph Mkumbwa and Another V. Page 6 of 10 The Republic, Criminal Appeal No. 94 of 2007 Court of Appeal - Mbeya (unreported) where it was held: "For the doctrine o f recentpossession to apply as a basis o f conviction, it must be proved, first, that the property was found with the suspect, second, that the property is positively the property o f the complainant; third, that the property was recently stolen from the complainant; and lastly that the stolen thing in possession o f the accused constitutes the subject o f a charge against the accused". I hold that the prosecution has met the above threshold. I find the evidence of the 1st accused person that the 2nd accused person requested him for escort to collect the goods unreliable. The manner by which the 1st accused person was involved with the goods after they arrived in Mafinga suggest that he knows how they were stolen from the factory. I reject his defence disassociating him from the goods. The prosecution evidence, however, has several contradictions which I must resolve. The first one concerns who informed the factory supervisor (PW5) of the incident. The first person to come to the scene of crime is Mendrad Sanga (PW1). He said he informed PW5 by phone. On her part PW5 said she was informed by her husband. Further, while Joseph Uturo Page 7 of 10 (PW2) said they recovered the deceased clothes and shoes when they followed the trail of the dragged deceased's body, Rehema Mbedule (PW5) said one of his shoes was at the toilet, a place which also had a lot of blood. In the same vein, PW1 said blood was in the bathroom. A/Insp. Isike (PW4) said Rehema told him the factory had stopped production but in her evidence Rehema said the factory had not started operations. Obviously, those are contradictions. However, it is my view that the above contradictions are minor such that they do not go to the root of the matter namely, that the African Hardwood Ltd factory was robbed and in the course of the robbery Batista Uhakula was murdered. In Augustino Lodaru v. Republic [2014] TLR 45 at page 51 and 52 it was held: "Normal discrepancies are bound to occur in witnesses' testimony due to normal differences resulting from age, position ejusdem genesis o f the witness as will as the time factor between the time the crime was committed and when eventually; the witness had an opportunity to testify". This holding is true to the nature and facts of this case. Notwithstanding, the contradictions do not affect the fact that stolen properties from a place guarded by a person who was murdered were found in possession of the accused persons. Page 8 of 10 For the foregoing, I find the 2nd accused person not guilty. I acquit him of the charge of murder contrary to section 196 and 197 of the Penal Code. The 1st accused person is found guilty. I convict him of murder contrary to section 196 and 197 of the Penal Code. Court: Judgment delivered in open court in the presence of the accused persons in person, Florian Makinya, learned advocate for the 1st accused, Vedasto Chonya and Seleli Nyangita, learned advocates for the 2nd accused and Gines Tesha, Senior State Attorney and Phoibe Magiri, State Attorney for the Republic. Sgd. I.C. Mugeta Judge 31/10/2023 Page 9 of 10 SENTENCE The first accused, Rajabu John @ Kangarawe is sentenced to suffer death by hanging. Sgd. I.C. Mugeta Judge 31/10/2023 Page 10 of 10