the republic vs eradius bernad 2 others 2023 tzhc 22147 30 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. 17 OF 2023 THE REPUBLIC VERSUS 1. ERADIUS BERNAD 2. RWEGAHILILA BILIKWIJA @Rau 3. JUMA OMARY RULING ON PRIMA FACIE CASE .?7'; October & 3ffh October, 2023 A.Y. Mwenda, J. Before this court, accused persons namely Mr. ERADIUS BERNAD, RWEGAHILILA BILIKWIJA @ RAU, and JUMA OMARY are charged with the offence of murder contrary to sections 196 and 197 of the Penal Code [ Cap 16 R.E 2019], According to the information, the prosecution side alleged that on 30th March, 2013 at KITOBO Village within Misenyi District in Kagera Region, they jointly and together, with malice aforethought, murdered one MCHUNGUZI S/O CHARLES. The facts of the case as narrated at the preliminary hearing stage are that on the fateful date, the victim one Mr. Mchunguzi Charles and his wife one Adelina i Sospeter were at Kaninabushwa for a shopping spree in preparation for easter seasons. In the cause, accused persons, with other persons who were not arrested caught and attacked him. They battered him and at the end they tied his legs and hands and embarked him into a motor vehicle, make Datsun with registration No. T 707 BRT, blue in color, the property of the 1st accused. The said incident was witnessed by the deceased's wife, and she managed to identify the 1st accused (Eradius), 2nd accused (Rau) and the 3rd accused (Juma Omary). After being embarked in the said motor vehicle, accused persons, together with other persons who were not arrested ferried the victim to Bukoba police Station as they accused him of being a thief. Upon arrival at Bukoba Police Central Station, they handled him to the police officer. As the victim was severely beaten, he was sent at Bukoba Regional Referral Hospital for treatments. At around 3:00 pm the victim one Mchunguzi died. His body was medically examined, and post-mortem examination report reveals the cause of death as being due to hemorrhage-strangulation. Accused persons were then arrested and investigation was mounted. Upon conclusions of investigation, accused persons were charged for murder. In their plea, they declined any involvement in the said crime. As such, the hearing commenced where the prosecutions side paraded three (3) witnesses and tendered one (1) documentary exhibit which is the postmortem examination report. With the said evidence, the prosecution closed its case. 2 Before tasking the accused persons to defend themself, 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 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 3 discussed in several authorities. In the case of RAMAN LAL 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 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." 4 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]. 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 persons. 5 From the foregoing, it important to point out that before calling upon the accused persons to defend their case, the court must ascertain if the case against them is established in purview of the principles stated the-case of the DIRECTOR OF PUBLIC PROSECUTIONS V. MORGAN MALIKI AND NYAISA MAKORI, CRIMINAL APPEAL NO. 133 OF 2013(Supra). To do so the following ingredient should be considered. One, the fact of the death of the deceased(i.e. whether-the victim is dead),two, the cause of such death(whether the victim died on unnatural cause),three, a proof that the victim met his death as a result of an unlawful act or omission on the part of the accused-person(s) and four, a proof that the said unlawful act or omission was committed with malice aforethought.[See case of The Republic v.Mungei simion ,Criminal Sessions Case No. 56 of 2020] Regarding the first issue which is whether the victim is now dead, there is no doubt from the record that the victim one MCHUNGUZI CHARLES is dead. The evidence from PW1, and PW3 is to the effect that on the material date accused persons took the victim to Bukoba central police station alleging that he was involved in shop breaking and stealing. According to them the was a case against the victim was referred to as BU/IR/1810/2013. They testified further that by the time the victim was brought at Central police Station he was in a bad shape and unable to walk and talk as he was severely injured. With such condition he had, these witnesses said that they decided to arrest the accused persons and the victim was 6 sent to hospital for treatment where he was discovered to be already dead. At the hospital the doctor confirmed that the victim was already dead and PW2 Mr. John Madukwa (the doctor) performed an autopsy examination and prepared a report (Exhibit Pi). On that basis there is cogent evidence that the victim one Muchunguzi s/o Charles is dead. Regarding the second issue which is the cause of death (i.e., Whether the victim died on natural cause, it was the testimony of PW1 and PW3 that the victim was brought at Bukoba Police Central Station by accused persons and others who were not arrested while seriously injured. According to them the victim was still alive. Since there was no witness who witnessed accused persons attacking the victim to death, the prosecution side relied on PW2 (The medical Doctor) to establish the cause of death. In his testimony PW.2 one Mr. Madukwa testified how on the victim's body he observed a wound on the victim's chin and a rope mark around his neck. According to him the cause of death is Hemorrhage and strangulation. However, during cross examination by the defense counsels, PW2 explained that strangulation normally causes instant deaths. Further to that he said that the rope mark around the victim's neck had no bruises and it appeared to be an old mark. Speaking of the said mark he said that the said mark may be caused by even wearing a chain/pendant around the neck. Regarding hemorrhage as cause of death, PW2 explained that it may occur when a person is cut by a: sharp object or ? upon rupture of body parts, he however was of view that from what he observed on the victim's body, hemorrhage is not the cause of death as the victim had a small wound on the chin which would not lead to hemorrhage. I have assessed the evidence by PW2 regarding the victim's death only to find it insufficient to prove that the victim death was caused by causes recorded in Exhibit Pl because it is not certain on what caused the victim's death. This witness was clear in his testimony that although hemorrhage is appearing as one of causes of death it in fact did not cause the victim's death because the wound found on the chin was small a small one. Regarding strangulation, he testified that his findings are based on physical observation on old mark around the neck. Worst still he categorically said that the said marks might be caused by a long wearing of a pendant/chain around the neck. This court is mindful that every witness is entitled to credence and must be believed, and his testimony accepted unless there are good and cogent reasons not believing him [see GOODLUCK KYANDO V. REPUBLIC, CRIMINAL APPEAL NO. 118/2013]. I have subjected the evidence of PW2 to an objective test and concluded that the same is doubtful regarding the victim's cause of death. This is so because what he recorded in Exhibit Pl does not tally with his oral account. On top of that he was clear that strangulation and hemorrhage cannot be the causes of the victim's death. What I noticed from his testimony is that he did not medically examine the victim's body as his findings are not based 8 on it. On that basis I hereby disregard the exhibit Pl thus this court is of the view that the cause of death is unknown. Moreover, since it is settled law that death cannot only be proved by medical evidence but also with other pieces of evidence, I have put the evidence by the prosecution under scrutiny only to note no other piece evidence to prove that the victim died on unnatural causes. As said earlier there is no witness who testified to witness the victim being battered to death. On the other hand, the prosecution's witnesses tried to impress the application of the principle regarding the last person to be seen with the victim. According to them accused persons are the ones who sent the victim at Bukoba Central Police Station while already injured. I have considered this principle; however, it came to me that the same cannot apply in this case because after sending him at Bukoba Central Police station, he was placed under police officers while alive. Under these circumstances, if there is a need to apply the said principle, the same should apply against Police officers Or any person who was taking charge of the victim after he was brought at Central police station. Even if the accused persons were the very last persons to be seen with the victim, the Law is clear that the same is not a conclusive proof that they killed the victim. This principle has been stated in the case of RICHARD MTANGULE AND ANOTHER VS REPUBLIC [1992] T.L.R 9 that; 9 "The appellants were the last known persons to have been with the deceased. This fact without any doubt, cast a very good suspicious on them. But this in itself is no conclusive proof that the appellants killed the deceased." From the reasons and guided by the above authorities, this court is of the view that the evidence adduced by the prosecution is insufficient to convict an accused persons for murder. Regarding consequence, the Court of Appeal of East Africa in MURIMI V. 4 REPUBLIC, [1967] E.A 542 was of the view that it is an error to put an accused 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.'1 Having analyzed the evidence against the accused persons, it is the findings of this court that accused persons have no case to answer as the evidence against them failed to establish a prima facie case to require them enter defense under section 230 of the Criminal Procedure Act. Consequently, I dismiss the charge and acquit the accused persons Mr. Eradius Bernad, Rwegahilila Bilikwija @ Rau, io and Juma Omary for the offence of murder contrary to section 196 and 197 of the Penal Code [Cap 16 RE 2019]. Right of appeal fully explained. J It is so ordered. ,4 I M A.Y. MWENDA JUDGE 30.10.2023 Ruling delivered in the open court under the seal of this court in the presence of I Mr. Noah Mwakisisile and Mr. Erick Mabagara, Learned State Attorneys for the republic and in the presence of Mr. Fahad Rwamayanga learned counsel for the accused persons (Mr. Eradius Bernad, Rwegahilila Bilikwija @ Rau, and Juma Omary). A.Y. MWENDA JUDGE 30.10.2023 11