the republic vs nelson anthony 2023 tzhc 21612 5 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF BUKOBA) AT BUKOBA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 71 OF 2022 THE REPUBLIC VERSUS NELSON S/O ANTHONY RULING ON PRIMA FACIE CASE October & October, 2023 A.Y. Mwenda, J. The victim was an old woman. Before her death, she was residing at Rwele Village which is in Kyerwa District in Kagera Region. Her untimely death was unnatural. It was believed that she was murdered. The prime suspect was the Accused in this matter one NELSON S/O ANTHONY. Investigation was then mounted by the relevant authorities. The same was completed leading to arraignment of the Accused for murder Contrary to section 196 and 197 of the Penal Code 197 of the Penal Code, [Cap 16 R.E 2019], In the charge sheet, the prosecution alleged that on the 26th day of December 2020 at Rwele Village within Kyerwa District in Kagera region he murdered one MARTINA W/Q RICHARD (the victim). i The facts of the case as they were narrated at the preliminary hearing are that on the fateful date, accused went at the deceased's residence. Having found her there he requested for drinking water. Since their relationship was sour due to accusation of witchcraft against her, the victim became suspicious over accused's visit. She then offered him drinking water and left silently to report to her son who was living in a Close vicinity. At her son's residence she narrated a story about accused's visits and her suspicion over his motive. After hearing the said story, her son went at his mother's resident leaving her behind. Upon reaching there, he found the accused seated on the chair. He then asked him the aim of his visits but accused decided to leave. Having so left, the victim's son went back at his resident and toid his mother that accused had already left. The victim went at her resident but shortly afterwards, the victim's grandchild informed her father that she spotted accused person dragging the victim toward the nearby farm. The victim's son left and rushed towards his mother's residence, At his mother's residence he found his mother missing. He tried to make her a phone call and heard her phone ringing from the nearby farm. He went towards that direction only to meet accused person emerging from the direction where the victim's mobile phone was ringing while holding a bush knife. Shortly afterwards he found his mother's body covered with a banana's leaves. He uncovered her body and found it injured with a sharp object. The victim's son reported the matter to the village authority and later, Accused was traced and arrested. The incident was reported before Nkwenda Police Station 2 where: police officers responded and visited the scene of crime with a doctor. The victim's body was medically examined, and the Postmortem examination report was prepared. The source of death as per Postmortem examination report is severe Hemorrhage secondary to multiple cut wounds on the scalp and lower limbs. Accused was then charged but he pleaded not guilty. As such, the hearing commenced, and the prosecutions closed its case with evidence from five (5) witnesses and two (2) documentary exhibits. Before tasking the accused person to defend himself, the court is bound to issue a ruling on whether a prima facie case has been established:. This is a legal requirement which has been discussed in several decisions such REPUBLIC V. KHALID ALMAS MWINYI & 18 OTHERS, CRIMINAL SESSION'S CASE NO. 13 OF 2021.In that case, this court (Mgonya, J as she then was), while citing the case of DIRECTOR OF PUBLIC PROSECUTIONS VS. PHILIPO JOSEPH NTONDA, CRIMINAL SESSION NO. 217 OF 2020, Court of Appeal Zanzibar observed as follows, that. "In any criminal trial, at the closure of the prosecution's case, be it at the subordinate courts or the High Court, the trial court is required to consider the evidence and make a finding as to whether the prosecution had sufficiently made out a case against the accused person 3 to.require him to mount his defense. If a prima facie case is not made out, the trial court is enjoined to find that the accused is not guilty." Before ascertaining as to whether there is a prima facie case established by the prosecutions, I found it prudent, albeit briefly, to revisit the law regarding prima facie case. This phrase/maxim is sometimes referred to as the case to answer. This maxim has been referred to as the level of evidence that should be established to require accused persons to offer their defense. This principle/maxim has been discussed in several authorities. In the case of RAMANLAL TRAMBAKLAL BHATT V. REPUBLIC [1957] 1. EA 332, the defunct East African Court of Appeal held inter alia that: "(a) It: may not be easy to define what is meant by a "prima facie" case, but it must mean one on which a reasonable tribunal, properly directed its mind to the law and evidence could convict if no explanation is offered by the defense. (b) The question whether there is a "case to answer" cannot depend only on whether there is "some evidence" irrespective of its credibility of weight sufficient to put the accused on his defense. A mere 4 scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. (c) The onus is on the prosecution to prove its case beyond reasonable doubt, and a "prima facie-'' case is not made out if, at the closure of prosecution the case is merely one which, on full consideration might possibly be thought insufficient to sustain a conviction/' Also, in the case of DIRECTOR OF PUBLIC PROSECUTION V. MORGAN MALIKI AND NYAISA MAKORI, CRIMINAL APPEAL NO. 133 OF 2013, the Court of appeal held inter alia that. "We think that a prima facie case is made out if, unless shaken, it is sufficient to convict an accused person with the offence With which he is charged or kindred cognate minor one which mean that at this stage, the prosecution is expected to have proved all the ingredients of the offence or minor, cognate one thereto beyond reasonable doubt. If there is any gap, it is wrong to call upon the accused to give his defense so as to fill it in as this would amount to shifting the burden of proof." [emphasis added]. 5 The take away from above authorities is that before calling the accused person to defend his case, the court must be satisfied that the evidence already adduced can convict the accused person. That being the law regarding "prima facie' evidence or 'case to answer", the issue before this court is whether the evidence as adduced by the prosecution's side is capable of leading to a conviction of the accused person. From the record, there is no doubt that the victim one MARTINA W/O RICHARD is dead. The evidence from PW1, PW2, PW3 AND PW5 is to the effect that she was found dead in her banana field near her home with her body having signs of serious bodily injuries. These witnesses testified that the victim's body had cut wounds on her head, legs, and hands. On top of that they testified that her body was found lying on a pool of blood. According to those witnesses, the victim's body was buried after the Postmortem examination was conducted, thus there is no dispute that she is dead. Based on that fact, since the Accused person is facing charge of murder of the said victim who is now dead, the prosecution was bound to firstly, prove that she died on unnatural cause and secondly, to produce evidence linking the accused person to the victim's death. At the outset it is important to point out that the evidence in this case is purely circumstantial. This is so because among the witnesses lined up by the 6 prosecution, none of them witnessed the accused killing the victim. While PW1, testified that the victim was seen being dragged by accused persons to the bananas and coffee farm and left to call her father (PW2), On his part, PW2 testified that when he went at the scene of crime ten minutes thereafter, he met the accused coming from the said field holding a bush knife. This court is mindful that every witness deserves credence and must be believed, and his testimony accepted unless there are good and cogent reasons not believing him. This position was stated in the case of GOODLUCKY KYANDO VS. REPUBLIC, CRIMINAL APPEAL NO. 118 OF 2003, In this case, I have assessed PWl'S and PW2'S evidence only to find them tainted with doubt on the following reasons. Firstly, although there is evidence that in the neighborhood there are other houses, these witnesses did not scream for help. On her part, when she was asked as to why she did not scream for help when she alleged to have seen the accused dragging the victim and instead decided to run home and tell her father, PW1 responded in that she feared Of being attacked too. This cast doubt because with her age of 14 years by then, if she took courage to run toward the victim's home to witness what was happening to her grandmother, she would not have failed to scream for help when she saw accused person dragging her grandmother towards the coffee and banana field. After all she had nothing to fear about as by that time, the accused was merely dragging the victim and not attacking her. 7 On his part, PW2, the victim's son and a father top PW1, despite being informed by PW1 on what was happening to his mother (that she was being dragged towards the nearby farm), it took him almost ten minutes to go at his mother's place. The fact that the distance from the victim's house to PW2's house is, according to them, a one-minute walking distance, one wonders why he took such a long time to respond (ten minutes). Strangely, despite his testimony that before reaching the farm where the victim's body was found, he met the accused person coming from that direction, it again took him half an hour to go back home (his home). Again, upon reaching home, he could not tell PW1 regarding what he saw. When he was asked by the defense counsel as to why he failed to tell his daughter on what befell his mother he kept quite while posing a: shy look. With such observations this court found these witnesses credibility questionable which itself, failed to link the accused person with the death/killing of the victim. On top of that, although the PW 1 and PW2, alleged that accused person was armed with a bush knife(panga) and was arrested on the same day, the said bush knife (panga) was not tendered in Court without reasonable explanations. Again, despite alleging that when he was arrested, accused persons shoes had blood stain, the prosecution did not bother to guide the investigators to collect the blood samples from the victim, accused and from the said shoes for DMA profiling test to ascertain the linkage of accuse person to the victim's death. 8 Furthermore, despite PWl's and PW2's account that the accused person is their relative and was seen on the broad daylight, they contradicted each other regarding accused's attire. While PWl said that accused person was wearing a red hood (sweater), a black pair of trousers/brown (kahawia.) and black shoes (boots), PW2 said he was wearing a pair of khaki trousers, a red sweater, and sneakers(raba). If their testimony was in respect of what they truly witnessed, one would not expect them to contradict each other. Again, although PW 1 testified that when she saw accused person going to her grandmother's house he was armed with a panga and had a radio and a strapped purse, PW2 said he saw him coming from the scene of crime with only panga. If what was testified by PWl was the truth, then PW2 would as well see him possessing not only the bush knife but also the radio and a strapped purse. Even if PWl's and PW2's evidence was free from the mentioned doubts, still the evidence available is insufficient to prove that the victim died over unnatural cause. The evidence from PW4, a doctor who conducted an autopsy examination, is to the effect that he discovered that the victim's death was due to severe hemorrhage secondary to multiple cut wounds on the scalp and lower limb. This witness tendered the Postmortem Examination report as exhibit P2. However, the same had some information missing due to failure to fill the findings on part B & C. The same is regarding the approximately time when the death occurred before 9 autopsy examination was conducted. According to him, that omission was fatal, and the said exhibit is as good as nothing. I had opportunity to observe this witness while testifying in court and noted that his findings based only on physical observations of the victim's body. When he was asked questions as to why he concluded that the victim's cause of death is severe hemorrhage, he said he saw several cut wounds on the victim's head, hands, and legs. Strangely in his report he did not specify the degree of injuries such as the size and depth of wounds. Upon further questioning and reflections, he conceded that, that was not the way he was supposed to conduct an autopsy examination. He then apologized and promised never to repeat that mistake again. This court is aware that the cause of death can also be proved by other pieces of evidence only if they are available. However, in this case the court there is no other evidence which proves the cause of the victim's death as there is ho witness who saw the victim being killed. Since the Postmortem examination has no evidential value due to reasons explained above then, there is no proof that the victim(deceased) died on unnatural causes. On above reasoning and being guided with the above authorities, this court is of the view that the prosecution failed to establish a prima facie case as the evidence adduced is insufficient to convict accused person of murder. Regarding consequence, the defunct court of appeal of East Africa inMU RIM I V. REPUBLIC, [1967] E.A 542 was of the view that it is an error to put an accused 10 person on defense, when the prosecution has not established a prima facie case. The court held as follows, that. "The law requires a trial court to acquit an accused person if a prima facie case has not been made out by the prosecution. If an accused is wrongly called on his defense, then this is an error of the law." Having analyzed the evidence against NELSON S/O ANTHONY it is this court's findings that he has no case to answer as the evidence against him failed to establish a prima facie case to require him enter defense under section 230 of the Criminal Procedure Act. Consequently, I dismiss the charge and acquit the accused person one NELSON S/O ANTHONY for the offence of murder contrary to section 196 and 197 of the Penal Code [Cap 16 RE 2019]. Right of appeal fully explained. It is so ordered. j A.Y. MWENDA JUDGE v 05.10.2023 Ruling delivered in the open court under the seal of this court in the presence of Mr. Noah Mwakisisile Learned State Attorney for the republic and in the presence li of Mr. Lameck John Erasto learned Counsel for the accused person (Mr. Nelson Anthony). JUDGE 05.10.2023 12