republic versus richard bahati bahati msumba richard michembe shitungulu 2023 tzhc 23058 20 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF SHINYANGA) AT BARIADI CRIMINAL SESSION NO. 85 OF 2022 REPUBLIC VERSUS RICHARD BAHATI@BAHATI@MSUMBA@RICHARD MICHEMBE@SHITUNGULU JUDGMENT os'" & zo" November, 2023. MASSAM, J.: The accused person, one Richard Bahati @Bahati @ Msumba @Richard Michembe @ Shitungulu is charged with the offence of Murder contrary to Section 196 and 197 of the Penal Code Cap. 16 R:E 2019 and Attempt Murder Contrary to Section 211 (a) of the Penal Code Cap. 16 R:E 2019. The information was read over and explained to the accused person who was required to plea thereto, on his particular plea, he pleaded not guilty to the information for both offences. It was alleged that, on 1st March, 2022 at Lutubiga Village, Busega District, within Simiyu Region, the accused person did Murder one Thomas Buluba and unlawful attempted to murder one Mbuke dlo Masaganya Masuke. 1 The brief facts of the case are such that, deceased and Mbuke Madaganya are husband and wife, on 1st March, 2022 during night hours the deceased was sleeping with his wife one Mbuke dlo Madaganya, while sleeping they were invaded by the accused person who started beating both the deceased and his wife and cause his death. The wife of the deceased cried for help and her son together with his wife who were living in another house heard it and went to rescue them together with neighbors who helped to take the wife of the deceased's wife to Mkula hospital for treatment and the body of the deceased was examined and the result revealed that the death was caused by severe internal and external bleeding caused by cut wounds. After commission of that offence accused person run away and later was arrested at Lamadi where he was interrogated and denied to have committed the mentioned offenses. When the matter was called for plea taking and preliminary hearing, the information of the offenses of murder and attempted murder was read out and explained to him, and he pleaded not guilty to all of offenses. When the matter was called for hearing, the Prosecution side were represented by Ms. Rehema Sakafu and Patrick Chale, learned state 2 Attorneys, while the accused person was represented by Miss Zawadi Lazaro Learned Advocate. In proving their case, prosecution called (4) four witnesses and tendered two (2) exhibits, while the Defense testified with no witnesses nor exhibits. In the main, the body of evidence by the Prosecution presents a case that, PW1 was living with her husband, (the deceased) his son and his wife and three grand children in Lutumiga village from January 2023 st to March 2013. On the fateful day, 1 March, 2022 around 1:00 pm hours, she was sleeping with her husband in their room with two young girls named Jenifer and Grace who were sleeping in the sitting room, she heard dogs barking and their door was suddenly broken where two people entered with torch. The two started to attack her husband by cutting him and her on her hand, cheek and head. She testified further that they left but she heard one of the bandits saying "Maliza huyo" then they came back the accused was in front with a torch, she could not identify him at first but later she identified him to be Richard, who wore a white t-shirt and that there was enough light of torch held by the accused. Also deceased identified him and said that "Shitungulu you are killing me" 3 She added that she knew the accused since childhood as he is a grandson of her brother in law and the attack took about 20 minutes and they were close. She went on testifying that before the incidence on 28/2/2022 the accused came looking for a young girl to massage his sick grandmother. She added that after the bandits killed her husband they went out, locking the door from outside she decided to get out of the house through the window with one of her grand child and raised an alarm when her son came she explained to him what happened and mentioned the accused person to be the one who attacked them, later on she was taken to the hospital with his husband who later passed away. PW2 testified that the said date and time he was sleeping with his wife he heard dog barking and his parent's door being broken, he went outside where he was attacked by one person with a stick, he raised alarm while running to the neighbor namely Sayi, he later heard his mother talking to neighbors at their house, his mother told him that she identified the accused who attacked them, people gathered and his father was unconscious who died later at the hospital. He testified to have not identify the bandits but they had conflict with the accused's family. 4 PW3 testified that the said date she was sleeping with her husband who they heard dogs barking, and her husband went outside to look why dogs were barking. She came to realize that they were invaded as the bandits came to the house which she was and took her husband's phones, and the said bandits went out they managed to break the bulbs which was outside their house. She added that she have heard the commotion and the voice saying "malizeni mbona mnatukawiza" the voice that she identified to be the accused's voice who they knew each other for a long time and before the material date he came to their house to look for a young girl to massage his grandmother who was sick. The last witness PW4 was a police officer who testified that on 2nd March 2022, he received a file of this case for investigation where he gathered information from the witnesses and exhibits to wit PF3 and postmortem report and after investigation he realized that it was the accused person who committed the offenses. He also tendered PF3 and postmortem report which were admitted as exhibit P1 and P2. Having heard the evidence from prosecution the court made a ruling by finding out that, a prima-facie case had been established against the accused person for both offenses and consequently was informed his rights to defense under Section 231 of Criminal Procedure 5 Act, Cap 20, R:E 2022. The accused chose to give a sworn defense without witnesses and exhibits. In his defense, categorically denied to have committed the alleged offenses. His testimony is to the extent that, he was a fisherman living with his wife and his four kids at Lamadi village. On zs" February, 2022, around 8:00pm he was at Lake Victoria fishing until the next day in the morning where he started to sell the said fish, he later went home at Lamadi and received information from his wife that one Thomas (Deceased) passed away, they went to the deceased's house where he was told by PW2 what happened to his father. He further stated that he stayed there from 1st March to 3rd, March after burial and that on 18 March, 2022 he was arrested at Lamadi, and after interrogation he denied to have committed the offenses and that there was misunderstanding between their families but not with him and he never went to the deceased's house on 28th February as contended by PW3. He added that, it is due to their family misunderstanding, he is alleged to have committed the said offenses. In a nutshell, that was the evidence of the Prosecution and defence sides. The counsel for both parties did not exercise their respective rights of addressing the Court on their final submissions. 6 In this case, the accused person is charged with two offenses of Murder contrary to Section 196 and 197 of the Penal Code (Supra) and attempted murder contrary to section 211 (a) of the Penal Code (supra). Therefore, the main issues before the Court for determination on the first offence is: (1)That, the victim of the crime mentioned in the charge are actually died, (ii). Whether the death was not natural, (iii). Whether it was the accused person who caused the death of the deceased, (iv). Whether the killing of the deceased was with malice aforethought And for the second offence are: That there were acts done which were unlawful;. that the acts were intending to cause death of the victim, that the act in the manner it was executed was likely to cause death to the victim, and that it was the accusedperson who did such unlawful acts which resulted into an attempt to murder. This being a criminal case, it is worthy and instructive at this stage, to look at what Section 110 and 112 read together with Section 3(2) (a) of the Evidence Act [Cap 6 RE 2019] as far as the burden and 7 standards of proof is concerned. These two concepts were interpreted in the case of Wilmington Vs OPP, (1935) AC 462. In the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CATand John Makorobera & Another Vs. The Republic (2002) T.L.R296, which insistently held that the accused person should only be convicted of an offence he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. . In line with this principle of burden and standard of proof, another important principle becomes necessary as enunciated in the case of Mariki George Ngendakumana Vs The Republic, Criminal Appeal No. 353 of 2014 CAT - Bukoba (unreported), which inter alia held that: "It is the principle of law that in Criminal Cases the duty of the prosecution is two totds; one to prove that the offence was committed. two that it is the accused person who committed it" With regard to the first question as to , Whether the victim of the crime mentioned in the first charge is actually died, is that, it is not disputed by both parties that the victim actually died, The same was proved by postmortem report which was tendered by PW4 8 and admitted as exhibit P2 which proved that deceased died and the cause of death was loss of blood which was caused by cut wounds, Also PW1,PW2 and PW3 who are all the family members of the deceased proved the same that the deceased died. On the second issue that whether the death was not natural, this is answered also by exhibit P2 which was postmortem report which proved that the cause of death was caused by loss of blood which caused by cut wounds, Also the evidence of PWl the wife of deceased who also was victim testified that they were sleeping with her husband when they were invaded by accused person and his fellows and started to cut them by using bush knives, which caused her some wounds and cause the death of her husband. The same was supported by the evidence of PW2 and PW3 who testified that after their parents invaded they went inside the room where deceased was and found him sleeping having some wounds in his body and he was unconscious, in help of the neighbors and villagers they took him and PWl to the hospital but later the deceased on passed away. This evidence proved that the death of the deceased was not natural. On the issue of whether the accusedperson killed the deceased 9 It is from the evidence of the prosecution that, the deceased was attacked and killed and that it's the accused who was responsible for the murder, the question is whether under the evidence on record the accused was in any way identified to have been the perpetrator of the crime. In this case, out of the four witnesses it is two witnesses who have testified to have identified the accused one of the said witness was PWl who said that she was with the deceased in their room sleeping and the accused person invaded them at the first she did not identify him but when the accused came for the second time she identified him as she knows him for a long time, since his childhood and there are sometimes she have lived with him, Also in their room there was enough light of two torches which was carried by the accused. PW3 testified that he heard commotion in the house of her in laws and she identified accused by his voice telling their fellow that "malizeni mbona mnatukawiza" In order to establish if the visual identification evidence is watertight or not the Court of Appeal of Tanzania in the case of Waziri Amani Vs Republic [1980] TLR 250 gave the following guidelines which must be considered and determined by the trial court. i). The amount of time the identifying witness had the accused under observation. 10 ii). The distance at which he observed him. iii). The conditions in which the observation was made, for instance if it was day or night time and whether there was sufficient or poor lightning. iv). Whether the identifying witness knew or had seen the accused before. Also, in the case of Philemon Jumanne Agala @J4 vs. Republic, Criminal Appeal No. 187 of 2015 CA [2016]TZCA278, the superior court citing the case of Shamir sl» John v The Republic, Criminal Appeal No.166 of 2004 (unreported) emphasized on the issue of visual identification that should only be invoked when the court is satisfied that the evidence is watertight and the possibilities of mistaken identity are overruled. In the evidence of PW1 testified that, she did not recognize the culprit at first when they attacked them but later when they were about to leave, she heard a voice saying "maliza huyo" that's when they came back, and she managed to identify the accused wearing a white t- shirt, and he was close to her, she further testified to have known the accused since childhood and before the attack that night, in the afternoon the accused went to her home. 11 This was supported by the evidence of PW3 who testified to have recognized the accused's voice, she explained that during the attack she heard the voice saying "Malizieni mbona mnatukawiza" and the day before she met the accused at their home. From the evidence there is no doubt that the accused was properly identified and recognized by both witnesses as the attack took 20 minutes that gave enough time for PWl to identify the culprit, moreover she managed to identify him very well to the extent of describing type of clothes worn by the culprit on the fateful day. Also, despite of the light used to identify the culprit being that of the accused's torch, this court is convinced that with the light used for 20 minutes in attacking the deceased and PWl helped PWl to recognize the accused. I find it safe to hold that the accused person was properly identified/recognized by PWl and PW2 on the incident date as among the assailants who actually cut PWl and the deceased to death. Nevertheless, it is from PWl that, during the attack, the deceased recognized the accused as he uttered "Shitungulu you killed me" these words are taken to be dying declaration which is admissible in court as evidence against the named person (Accused). 12 In the case at hand this dying declaration is corroborated by the evidence of PWl to the effect that it was the accused who attacked the deceasedand PW1. Also, PWl mentioned the accused at the early stage, it is testified from the evidence that, PWl after identifying the accused told PW2 that it was the accused who attacked them and the same was testified by PW2. Refer to the case of Patrick Sanga vs The Republic, Criminal Appeal No. 213 of 2008. CA (unreported) Also in Marwa Wangiti Mwita and Another vs. Republic (2002) TLR 39 where it was held that, " the ability of a witness to mention a suspect at the earliest opportunity is an all-important assurance of his reliability " From the above analysis, this court is well satisfied that the accused person murdered the deceased because, the link between the death and the accused person has been proved to the required standard. The only remaining issue is whether the accused person killed the deceased with malice aforethought. Section 200 of the Penal 13 Code illustrateon what amount to malice aforethought. The same provides as hereunder; ''Malice aforethought shall be deemed to be established by evidenceproving anyone nor more of the followingcircumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person whether that person is the person actually killed or not although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be csused: (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years: (d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence, '(Emphasis supplied), See also the cases of Florence Mwarabu v. Republic, Criminal Appeal No. 129 of 2003, Court of Appeal of Tanzania at Oar es 14 Salaam(unreported) and Mohamed Said Matula v. Republic [1995] TLR 3 Also, in the Court of Appeal of Tanzania in the case of Enock Kipela vs The Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7 (10 June 1999) 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 tectors. including the following: (1) the type and size of the weapon, if any used in the stteck. (2) the amount of force applied in the assault (3) the part or parts of the body the blow were directed at or inflicted on, (4)the number of tnows. although one blow mey. depending upon the facts of the particular case/ be sufficient for this purpose/ (5) the kind of injuries inflictect (6) the attackers utterances; if eny; made before/ during or after the killin!h and (7) the conduct of the attacker before and after the killing. " The evidence reveals that the deceased was cut by a bush knife at the right side of neck, chopped on the forehead, right hand fingers were chopped off, this is according to the Exhibit P2, this extent of cutting proves the intention of the accused was to kill the deceased, also the uttering of the words "Maliza huyo" proves the same and the conduct 15 of the accused before the killing, he went to the deceased's house even when they are not used to visiting each other due to their family misunderstanding. The accused's defense that on 28/2/2022 at night was fishing at Nyamikoma Lake Victoria with his four fishermen friends and that on the next morning he went to sell the fish, and later he went home where he received information from his wife that the deceased was killed. On his testimony he failed to bring the said four fishermen as witnesses to support his contention that on the material date when the deceased was killed, he was fishing at the Lake Victoria. He could not bring his wife or any of his child or neighbour in order to testify that on material date he was not home but to the Lake Victoria fishing. The accused's defence did not thus, challenge the prosecution case to the extent of raising reasonable doubts as observed previously. Having answered all the issues on the offence of murder above affirmatively I find that the prosecution has established all the ingredients of the first offence charge against the accused. With regards to the second offence of attempted murder, the question to consider is whether the accused had the intention of unlawfully attempting to kill PW1. The offence of attempted murder in 16 the ambit of Section 211 (a) of the Penal Code encompasses doing any act or omitting to do any act which act or omission unlawfully is then likely to endanger human life. The acts which were done by the accused proves the intention of killing the victim which is evident by exhibit Pl. In the case of Boniface Fidelis @ Abel Vs. Republic, Criminal Appeal No. 301 of 2014, CAT at Arusha, held that the offence of attempted murder is not a stand-alone offence. It must be read together with Section 380(1) of the Penal Code. Which provides that; (1) When a person; intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act but does not fulfil his intention to such extent as to commit the offence, he is deemed to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessaryon his part for completing the commissionof the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he 17 desists of his own motion From the Further prosecution of his intention. According to this section, there are four essentialingredients of attempted murder that Firstly, proof of intention to commit the main offence of murder. Secondly, evidence to prove how the accused persons begun to employ the means to execute his intention. Thirdly, evidence that proves overt acts which manifests the appellant's intention. Fourthly, evidence proving an intervening event, which interrupted the appellant from fulfilling his main offence, to such extent if there was no such interruption, the main offence of murder would surely have been committed. It is testified by PWl that when the accused attacked the deceased she was also beaten with a stick, cut on her hand, cheek and head but she managed to escape through a window and raised alarm to call for help. During trial the prosecution tendered PF3 as exhibit Pl which revealed that, PWl was injured on her right wrist joint, right cheek and below chin, the manner to which the wounds and the injuries were inflicted to the PWl on delicate parts of the body, the culprits by whatever means had intended to cause the death of the victim. 18 From the evidence in this case, we have seen the intention of the accused to commit the main offence of murder, due to uttered words that "Maliza huyo", this is evidenced also due to the invasion of the accused with bush knife which was used to attack the victim and her husband in the different sensitive parties of their body, and that in the course of execution of the accused persons' intention against the victim and the manifestation of the overt acts, there was an interruption by the raised alarm and the victims' running in escape of her life through window where as her husband could not escape the death. With all these clarifications, I conclude by saying that the prosecution's case has been proved beyond reasonable doubt that what was committed was murder and attempted murder as per law. The accused person is hereby found guilty of committing murder contrary to section 196 of the Penal Code and attempted murder contrary to section 211 (a) of the Penal Code Cap. 16 R:E 2019 and convicted forthwith. It is so ordered. R.B. Massam. JUDGE 20/11/ 2023 19 SENTENCE According to the law, there is only one punishment to this offence, as submitted by both sides, because accused person was found guilty and convicted with the offences of murder and attempted murder, I hereby sentence Richard Bahati @ Bahati @ Shitungulu to death and he shall suffer death by hanging on accordance to Section 322 (1) and (2) R.B. Massam. 20