republic vs ephraim patrick pius baba neira another 2023 tzhc 23313 5 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL JURISDICTION CRIMINAL SESSION NO. 75 OF 2022 REPUBLIC VERSUS 1. EPHRAIM S/O PATRICK @ PIUS @ BABA NEIRA 2. VICENT S/O JOHN @ MAPUNDA @ VINI 04/08/2023 & 05/09/2023 ; JUDGEMENT MWENEMPAZI, J. ;; The accused persons named herein have been arraigned in this Court and charged with the offence of Murder contrary to section 196 and 197 of the Penal Code [Cap 16 R.E 2019]. It is alleged by the prosecution that on the 26th day of December, 2019 at Kipa Village within Sumbawanga District in Rukwa Region, EPHRAIM S/O PATRICK @ PIUS @ BABA NEIRA and VICENT S/O JOHN @ MAPUNDA @ VINI did murder one CLEMENSIA D/0 KATEKA. i When the charge as read over and explained to the accused persons, they denied the allegations. That position was also maintained when the facts prepared under section 292 of the Criminal Procedure Act, [Cap 20 R.E 2022] were read over and explained to them. > It is a common ground that the accused persons and the deceased were residents at the fishing camp located at Kipa Village within. Sumbawanga District. On the date of the event the deceased one CLEM ENSIA D/O KATEKA went to fetch water at river Kavuu. She was accompanying a child known by the name of STANSLAUS S/O KILIMA. This is a six-year child who was a niece to the deceased. She fetched water for the child, helped him carry the bucket on his head and the child left. On the way ;home, the child stumbled in the swaying as a result to the stumble water spilled over. The child had to return back to the river so that she can fetch water for him. When the child came back, as he was approaching the river kavuu, saw the accused persons arguing with the deceased and there were some altercations. The deceased was asking for her money from both the accused persons. He saw VICENT S/O JOHN @ MAPUNDA @ VINI taking a manila rope and strangled the child's aunt and 2 pushed her into river kavuu. These: were the statements made by a child, who on the date he was accompanied with the deceased to the river. As I had said earlier, the accused distanced themselves from the offence hence, the case was scheduled for hearing so that the prosecution could prove the charges against the accused persons. At the hearing, the prosecution was being served by Mr. David Mwakibolwa, State Attorney, Ms. Neema Nyagawa, State Attorney and Ladislaus Nkaro, State Attorney and the defence was handled; by Mr. , Peter Kamyalile and Veronica Mwanicheta learned Advocates. ■ " ' Vip,. The Republic called five witnesses and only one exhibit was tendered which is a Post Mortem Examination Report. The event in this case was at first known by missing of Clemensia d/o Kateka @ Shangazi. According to Geofrey s/o Mahundi (PW2) who was the Chairman of Kamchanga fishing Camp, on the 26/12/2019 two persons went to see him; those are Mr. Athanas and Mzee Kasuli. They went to see him as the chairman. They informed him that they have not seen their aunt. It would seem at the village, the deceased was known and called by name aunt. 3 PW2 as the chairman of Kamchanga Fishing Camp joined with them and they started to look for her. They also involved other neighbouring villages to which in the course of their life at the Camp, Clemensia d/o Kateka used to visit for various purposes, such as to fetch firewood or to buy fish. At her Camp they found fish on a drain table (Kichanja) and other fishes were in a bag. She was absent. After missing her they mounted a. search at the lake. They could not find her and at around 22:00 hours, a member of the village who had gone to fish in the lake told people that he had seen a body in the water. On that night the weather was not friendly. It was windy and there was heavy rain, they decided to wait until the next day. The next day, on 17/12/2019 members of the Camp gathered and went to the lake to look for the body. They found’the deceased's body. The body had a wound on the face and a manila rope on the neck. They took the body to the dry land and also sent information to the police at Muze Police Station. At the deceased's camp, they were told that the previous day when Cleamensia D/O Kateka went missing, the deceased went to the river with a child, Stanley s/o Kilima. They went to fetch water. The child was 5-6 years old. They went and asked the child to take them to the place they were with 4 his aunt the other day. It was at river Kavuu. At the place, they found blood spots. Near the place there were water reeds (Matete). On the date the child did not say anything. PW4 Ass: Inspector Suleiman Hamoud Juma is one of the police officers, then working at Muze police station. He accompanied G. 7082 D/Sgt Alex who was then the OCS at Muze Police Station, together with the doctor Dr. Crispin Clemence Gilata, they went to visit the scene and inspect the area. PW4 is the one who drew a sketch map of the scene though it was not tendered. ■ < ••: '■ ■ On the date, 27/12/2019 the report by the medical doctor says the victim's body was that of a female person. Relatives identified the name of the deceased to be CLEMENSIA D/O KATEKA. The body was lying face upward (supine) it had swollen with bruises on the neck. The neck had a manila rope, she had a wound on the head just above the right eye. According to the doctor who examined the body, PW5 Dr Crispin Clemence Gilata, the deceased had a huge wound on their right side of the face caused by Sharp object. She had severe haemorrhage, leading to haemorrhagic shock. Due to the wound, carotid and jugular artery were severed leading to 5 profuse blood hence shock on the vital organs. The organs are blood, heart kidney whose functioning depends on the presence of blood in the body. The wound was 3cm deep and 4cm in length. The findings are in the Exhibit Pl. Obviously, the death of the deceased was abnormal and or unnatural. In the case of Anthony Kinamila and Enock Anthony vs. The Republic, Criminal Appeal No. 83 of 2021 [2021] TZCA 356 (16th June, 2022) the Court held that: '77? a charge of murder like the one in the instant case, it is trite that the prosecution (s) required to prove all the ingredients of murder in order to win. a conviction thereof. The said ingredients which the prosecution must prove beyond reasonable doubt are: - \ (i) That the deceased is really dead (H) That the death was caused by someone unlawfully; (Hi) That there was malice aforethought; and (iv) That the accused person directly or indirectly took part in the commission of the murder" 6 At this level with what I have already said, it is clear the deceased Clemensia d/o Kateka died on 26/12/2019 and the said death was unnatural as clarified by witnesses PW4 and PW5 who have been referred to herein above. The next question for consideration is who caused death of the victim Clemensia d/o Kateka. According to the evidence of PW2, after they had received news of missing of Clemensia d/o Kateka/ they went at her Camp and were told that she went to the river to fetch water. That journey was not a lone one. She was accompanying a child, who was named Stanislaus s/o Kilima. PW2 testified that after the body was found they followed the child Stanislaus s/o Kilima who showed them where they went. They found blood spots the child did not tell them anything substantial. The prosecution called F. 7082 D/SGT Alex, who testified that on the 2/1/2020 he was summoned by the OCCID. He went at the OCCID'S office where he was assigned a duty to interview a child who went with two women. One was ROSE d/o LYAPA and the other was TERESIA D/O KATEKA. They met with a child Stanislaus's s/o Kilima. He was 5-6 years old. He listened 7 to history and was convinced he had something substantial to resolve a puzzle. He therefore recorded a witness statement of the child. The child said on the 1/1/2020- after his mother came from the funeral, he was able to narrate to her what transpired until his aunt died. He said on the date of the event, his aunt asked him to escort her to the river. They went together to fetch water. She had a large bucket and the child;was Ml’?/ given a small bucket. She fetched water for him and assisted him to carry the buck (kumtwisha). The child left for home, on the way, he stumbled and water spilled out. Though, he had an injury on an ankle, he decided to go ■>.a - back so that his aunt assists him to fetch water again. When he arrived, he saw two people quarrelling with his aunt - They were Baba Neira and Baba Sesilia. They had a quarrel over money they owed his aunt. Vini strangled aunt using a manila rope (mwanja) which normally is used to fish catfish. Baba Neira stabbed aunt with the knife oh the head slightly above the eye. PW3 asked the child where was he standing while observing all the events. The child said he was hiding in the bush made of water reeds (matete). After strangling her they placed her down and they wanted to push her into the water. The child shouted "nyie msimtumbukize kwenye majf. After hearing 8 that Baba Neira threw a knife towards the child, he dodged and ran towards the camps. The story as narrated by PW3 was heard from the child. The child further told PW3 that he knew Baba Neira and Vini. Vini was a friend to his father and Baba Neira used to slaughter cows at village. He was also a friend to his father. That he did not reveal the story early because they were threatening to kill him as well by signalling that they will cut his neck. The witness also testified that he knew the event as information of a missing person on 26/12/2019 and then on 27/12/2019 as information of her death after the body of the deceased had been found in the lake. The child Stanislaus s/o Kilima was called arid testified as PW1. After he had been asked if he knows the importance of speaking the truth, he answered in affirmative. He was then asked if he promises to speak the truth, he did promise. He testified that he currently stays at Malangali area and studies at Mapinduzi Primary School. He stays with his father, James. Before he was staying at Kamchanga. There, they were staying with Baba Neira, Vini, uncle and his mother. His mother is Rose. His parents were drying fish for selling. 9 He testified that he remembers the event of killing of his aunt (mama mkubwa). They went to fetch water with his aunt, they met Vini and Baba Neira who were fishing. He could not remember the name of his aunt. His aunt fetched water for him, helped him carry the bucket (alimtwisha). He left his aunt at the river and left for home. As<he was going home, he stumbled and water spilled out. He decided to go back and fetch water again. As he went back, he saw Vini and Baba Neira-strangling^his aunt. Vini strangled his aunt with a manila rope and Baba Neira stabbed her with the knife on the right side of the face. Vini placed a stick on the rope and was strangling his aunt. He was able to see as he was on the side hiding in the bush made of water reeds. When the child was being cross examined by the defence counsel, Fie testified that the event occurred/happened in the evening hours, He saw Vini wearing clothes he used to put an when going for fishing. When the child was asked the distance of observation, he said it was three meters. But in the testimony of PW4 testified that at the area there was kraal. It was about 25 meters. I could understand the child had no capacity to estimate the distance. 10 With the evidence at hand, we have a clear picture that the event took place in the evening hours but there was ample light to allow visibility of whoever was close. If we take the average of 3 and 25 meters, the distance from the area of observation may be taken to be on average 14 meters from the place the child was observing the culprits while strangling the victim. It is close e hear what is enough to hear what is being said by the other but a child says a knife was thrown at him when he shouted at them. Since the child knew the said Baba Neira and Vini, we may safely say he was able to identify them clearly and that identification was by names and their roles. In their defence the accused particularly the1st accused person has testified that he had a quarrel with the Rose Lyapa, the mother of Stanislaus Kilima who promised that she will make sure he does not cultivate the farm. He did not, however, report anywhere. He says he was waiting for her to see him. During cross examination, he agreed that PW1 knew him. He denied to know Clemensia. He claimed that his arrest was due to the conflict with Rose Lyapa. I have noted however, the defendant did not help his counsel know the facts and so lead them in cross examination, it at all what he said in defence was ii his version of the story strongly he believes to be true. As a result, the same was not reflected in the cross examination by the counsel representing the 1st accused during the hearing of the prosecution case. The second accused also testified that he doesn't know anything linked to the death of Clemensia d/o Kateka. On the 26/12/2Q19 he went to fish to the game area. He returned on 27/12/2019 and that is when he found people searching for the body. He admits he knew Stanislaus s/o Kilima. He never knew the first accused person. He knew him when they were joined. It is clear in the evidence tendered by the prosecution and defence, that no notice was given by the 2nd accused in compliance to section 194(4) of the Criminal Procedure Act, Cap. 20 R.E. 2019/ a condition necessary for anyone seeking to rely on the defence of alibi. However, looking at the evidence it is clear also the accused is a resident of Kipa Village. Surprisingly, the accused alleged he doesn't know that at Kipa Village there was river Kavuu although he said he came at the village since 2010. The defendant does not deny to be a resident of Kipa Village. The defence is an evasive denial which skips the dictates of truth. They have not said they were arrested differently. Obviously, it is a lie to say the 2nd accused 12 knew the 1st accused when they were joined. The second accused has missed some points deliberately or simply he has lied under oath. In the case of Kubezya John Vs. The Republic, Criminal Appeal No. 488 of 2015, Court of Appeal Of Tanzania at Tabora, the Court held that: 'We wish to interject here that we are alive to the position of the law that an accused person is under no legal duty to prove his innocence. But in a situation where, like here, the accused person is depending on the defence of alibi, it is his duty to demonstrate his alibi albeit on a balance of probabilities." In that case the Court held following the case of Kibaii vs. Uganda [1999]lE.A.148\r\ which it held: "4 genuine alibi is, of course, expected to be revealed to the police investigating the case or to be the prosecution before trial. Only when it is so done can the police or the prosecution have the opportunity to verify the alibi: An alibi set up for the first time at the trial of the accused is more likely to be an afterthought that genuine one." 13 Under the circumstances, I can safely conclude that, the accused persons were clearly identified, as the features stated by the child PW1, have also been verified by PW4 and PW5. I say so because in my observation the child showed confidence and would stay on course even when the defence counsel tried to deflect him to say otherwise. Therefore, the accused persons did cause death, of the victim Clemensia s/o Kateka, the deceased the subject of the present case. The next question is whether they had any malice aforethought in the actions they did to the victim. The testimony shows they used a manila rope to strangle her and even to use a stick to make sure the strangling rope holds properly on the neck. Baba Neira used a knife to stab her on the head severing jugular and carotid artery. The areas of attack are compatible with the prepared attacker. In the case of Enock Kipela Vs. The Republic/ Criminal Appeal No. it was held that: "...usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, Including the following: 14 (1) The type and size of the weapon, if any, used in the attack. (2) The amount of force applied in the assault; (3) The part or parts of the body the blows were directed at or inflicted on; (4) The number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this, purpose. (5) The kind of injuries inflicted (6) The attacker's utterance, if any, made before, during or after the killing and (7) The conduct of the attacker before and after the killing". Therefore, all the ingredients of murder have been established and I therefore find that the accused persons EPHRAIM S/0 PATRICK @ PIUS @ BABA NEIRA and VICENT S/0 JOHN @ MAPUNDA @ VINI guilty of the offence charged and I hereby convict him with the offence of murder contrary to section 196 of the Penal Code, [Cap 16 R.E 2019]. 15 It is ordered accordingly. T.M. MWENEMPAZI JUDGE 05/09/2023 SENTENCE Section 197 of the Penal Code, [Cap 16 R.E 2019] is very clear, that the offence of murder has only are punishment. Thus, I hereby sentence the accused persons EPHRAIM S/O PATRICK @ PIUS @ BABA NEIRA and VICENT S/O JOHN @ MAPUNDA @ VINI to suffer death by hanging. T.M. MWENEMPAZI JUDGE 05/09/2023 Right of appeal fully explained. T.M. MWENEMPAZI JUDGE 05/09/2023 16