the republic vs onesmo so sikukuu massai anotheruu 2023 tzhc 22874 23 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 10 OF 2023 REPUBLIC VERSUS ONESMO S/O SIKUKUU MASSAI........................ 1st ACCUSED SAID S/O HUSSEIN SUNGI............................... 2nd ACCUSED JUDGMENT l(fh October & 23c November 2023 Kahyoza, J.: Daniel S/O Herman Awe @ Karatu was found dead on 19.11.2022, in the ditch near TAG church. Daniel S/O Herman Awe @ Karatu's death was not natural. He died a violent death. The doctor perceived the cause of death to be haemorrhagic shock due to traumatic brain injury. The police arrested Onesmo S/O Sikukuu and Said S/O Hussein Sungi (the accused persons) and arraigned them with an offence of murder contrary to sections 196 & 197 of the Penal Code [Cap. 16 R.E 2022]. It is alleged that, on the 19th day of November, 2022 at Gichameda village, i within Babati District in Manyara Region, accused persons did murder one Daniel S/O Herman Awe @ Karatu. They pleaded not guilty. The prosecution summoned six witnesses and presented five exhibits in an effort to establish the guilt of the accused persons. It is undisputed that Daniel S/O Herman Awe @ Karatu is dead. According to the post­ mortem report (Exhibit Pl), Daniel S/O Herman Awe @ Karatu's demise resulted from hemorrhagic shock secondary to traumatic brain injury. Exhibit Pl, additionally notes that Daniel S/O Herman Awe @ Karatu was discovered with multiple wounds, a pierced pupil caused by a sharp instrument, and extraction of two teeth. Murder is proved when, the prosecution proves beyond reasonable doubt that; one, a person alleged to be killed is in fact dead; two, that person died a violent death under the contrivance of the accused; three, the killer had malice aforethought, that is the killer intended to cause death or to cause grievous bodily harm; finally, that it is the accused person who killed the deceased. See Hemed vrs R [1987] TLR 117 and Mohamedi Matula vrs R [1995] TLR3. There is no dispute that Daniel S/O Herman Awe @ Karatu died a violent death. The post mortem depicted that Daniel S/O Herman Awe @ 2 Karatu, the deceased sustained multiple wounds, a pierced pupil caused by a sharp instrument, and the extraction of two teeth. It is undisputed that a person who inflicted the injuries had no any intention other than to cause grievous harm or cause death. He used a sharp weapon and excessive force to pierce the pupil and extract teeth. He hit the deceased in the head, which is a sensitive part of the deceased's body. The Court of Appeal in the famous case of Enock Kipella V. R. Cr. Appeal No. 150/1994 (CAT unreported) held that the attacker in most case does not disclose his intention to kill or cause grievous harm. For that reason, malice aforethought may be inferred from- a) the type and size of the weapon if any used in the attack; b) the amount of force applied in the assault; c) the part or parts of the body the blows were directed at or inflicted on; d) the number of blows, although one blow may, depending upon the facts of the particular case be sufficient for this purpose; e) the kind of injuries inflicted; f) The attacker's utterances if any; made before, during or after the killing and the conduct of the attacker before and after the killing; or 3 g) the conduct of the attacker before and after the killing. I find therefore that a person who killed the deceased had malice aforethought. Thus, there is one element of murder, which this Court should dwell on, that is whether the accused persons killed him. The prosecution's case was that the deceased, the accused persons, Gift Emmanuel Joseph Milinga (Pw3) and other people were in the drinking pub on 18.11.2022. Gift Emmanuel Joseph Milinga (Pw3) drunk only one bottle of energy drink, at the courtesy of the bar owner bought him. The bar owner was Gift Emmanuel Joseph Milinga (Pw3)'s brother. Around mid night, the bar attendant asked her customers to leave as it was time to close the business. They obliged, settled their bills, and left. Daniel S/O Herman Awe @ Karatu, the deceased, settled the bill and kept a balance. As they were exiting the bar, Daniel S/O Herman Awe @ Karatu, the deceased, requested Gift Emmanuel Joseph Milinga (Pw3) to accompany him. Gift Emmanuel Joseph Milinga (Pw3) willingly accepted and escorted him. As Daniel S/O Herman Awe @ Karatu, the deceased and Gift Emmanuel Joseph Milinga (Pw3) were about to part ways, Said Sungi, the second accused person, approached Gift Emmanuel Joseph Milinga (Pw3) 4 asking for Tzs. 500/= to buy marijuana (bhang). Gift Emmanuel Joseph Milinga (Pw3) gave him. Said Sundi, accompanied by an unidentified person, forcibly searched Gift Emmanuel Joseph Milinga (Pw3) and robbed him of Tzs. 30,000/- and his mobile handset. They also resorted to physical violence, beating him to overcome his resistance. Gift Emmanuel Joseph Milinga (Pw3) called for help, and the deceased, who was nearby, responded to the commotion. The deceased inquired about the reason for beating Gift Emmanuel Joseph Milinga (Pw3), and in response, they turned their aggression towards the deceased, assaulting him. Said Sungi then took a stick and struck the deceased on the head before pushing him into a ditch. Later, they sought out Gift Emmanuel Joseph Milinga (Pw3) with the intention of killing him, but Gift Emmanuel Joseph Milinga (Pw3) managed to hide and escape. He eventually made it home. The next morning, news spread that Daniel S/O Herman Awe @ Karatu had succumbed to the assault. Gift Emmanuel Joseph Milinga (Pw3) and others proceeded to the scene where they discovered the lifeless body of Daniel S/O Herman Awe @ Karatu. To prove the accused persons guilty, the prosecution summoned Robinson Winfred Katonji (Pwl), the Justice of Peace (JP) who recorded 5 Said Sundi's extra judicial statement (exhibit P.3), E. 7152 D/SGT Masanja (Pw2), who tendered the seizure certificate (exhibit P.3) and Gift Emmanuel Joseph Milinga (Pw3), the eye witness. Furthermore, the prosecution summoned DR. Paul Chacha (Pw5) who prepared the post mortem report (exhibit P.l) and Donald Nyerere Nyamuhanga (Pw6) who recorded Said Sundi's caution statement. Apart from, the post mortem, the sketch map and the seizure certificate, the prosecution tendered an extra judicial statement (exhibit P.3) and a caution statement (exhibit P.5) of Said Sundi, the second accused person. It sought to rely on extra judicial statement (exhibit P.3) and a caution statement (exhibit P.5) of Said Sundi to prove the accused persons guilty. The accused persons denied to commit the offence. They both raised the defence of alibi. Onesmo S/O Sikukuu Massai (Dwl), the first accused person deposed that on 18.11.2022 attended his normal chores and at 07:00 pm went to Catherine Dodo, (Dw3)'s restaurant for dinner. He deposed that Catherine Dodo, (Dw3) was his mother. He took dinner and watched TV. Subsequently, he returned home, passing by at his sister's business place. He waited until his sister closed her business, and 6 together they transported her working tools to his place. Thereafter he retired to bed. Said S/O Hussein Sungi (Dw2) asserted in his deposition that on 18.11.2022, he spent the day on his farm at Kisanji. In the evening, he returned home, took a bath, and retired for the night. The following day, he returned to his farm. He explicitly denied any involvement in the alleged offense. Did the accused person(s) kill Daniel s/o Herman Awe @ Karatu? It is a settled legal principle, in criminal justice machinery, that the burden of proof lies with the prosecution to prove that the accused person is guilty and to do so beyond reasonable doubt. See Hemed v. Republic [1987] TLR. 117 the Court held that- "...in criminal cases, the standard of proof is beyond reasonable doubt. Where the onus shifts to the accused it is on a balance of probabilities." However, when there exists remote possibility in the accused person's favour, the court may ignore that and convict as it was held in Magendo Paul & Another v. Republic (1993) TLR 219, thus- 7 "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed." (Emphasis added) The prosecution heavily relies on the testimony of a single eye witness and the contents of the caution statement and extrajudicial statement. Gift Emmanuel Joseph Milinga (Pw3) testified that he was familiar with Said Sundi before the incident and identified him as his brother-in-law, having lived with his sister as husband and wife at one point. He further stated that on the material night, he was at his brother's bar with Daniel S/O Herman Awe @ Karatu (the deceased), Said Sundi (the second accused), and other people. They remained in the bar until midnight when the bar attendant requested them to leave. Gift Emmanuel Joseph Milinga (Pw3) informed the court that he consumed only one energy drink on that night. Gift Emmanuel Joseph Milinga (Pw3) deposed that as he escorted Daniel S/O Herman Awe @ Karatu (the deceased) when they were parting ways, Said Sundi approached him and requested for Tzs. 500/-. Gift Emmanuel Joseph Milinga (Pw3) complied and gave him the money. Shortly after this exchange, Said Sundi, along with an accomplice, 8 assaulted and robbed Gift Emmanuel Joseph Milinga (Pw3) of his mobile phone and Tzs. 30,000/. When Gift Emmanuel Joseph Milinga (Pw3) called for help, Daniel S/O Herman Awe @ Karatu (the deceased) responded. In turn, Said Sundi and his accomplice redirected their aggression towards Daniel S/O Herman Awe @ Karatu (the deceased), beating him and pushing him into a ditch. The following day, Daniel S/O Herman Awe @ Karatu (the deceased) succumbed to the injuries. Gift Emmanuel Joseph Milinga (Pw3) stands as the sole eyewitness who recognized Said Sundi as one of the individuals who attacked the deceased. It is only Gift Emmanuel Joseph Milinga (Pw3) who deposed that he saw and identified the Said Sundi, the second accused committing the offence at night. The offence was committed at around mid-night. Gift Emmanuel Joseph Milinga (Pw3) deposed he recognized him by help of the moonlight and as they were together a moment before the incident. It is a settled position of the law that when a Court is considering the evidence of a single witness should exercise great care. See Ahmad Omari V R, Criminal Appeal No 154 of 2005 (CAT unreported), where the Court stated that there is a need to take greatest care when dealing with the evidence of a single witness. There is yet another position of 9 the law that, when the court is dealing with the identification evidence of a single witness it must find out if that witness is a credible. This position was taken in Chacha Jeremiah Murimi and 3 Others v R Cr. App. No. 551/2015 where the Court of Appeal stated that- "In matters of identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness. The conditions for identification might appear ideal but that is not guarantee against untruthful evidence. The ability of the witness to name the offender at the earliest possible moment is in our view reassuring though not a decisive factor". (Emphasis provided) In the current case, there is a sole identification witness, Gift Emmanuel Joseph Milinga (Pw3). Gift Emmanuel Joseph Milinga (Pw3) testified that he was well-acquainted with Said Sundi, who had a marital relationship with his sister. On the fateful day, he encountered Said Sundi in a bar with friends before the incident. According to Gift Emmanuel Joseph Milinga (Pw3), just before Said Sundi assaulted the deceased, he requested for Tzs. 500/-. After Gift Emmanuel Joseph Milinga (Pw3) gave him (Said Sundi) the money, Said Sundi and his associates attacked and robbed Gift Emmanuel Joseph Milinga (Pw3) Tzs. 30,000/- and his mobile phone handset. Gift Emmanuel Joseph Milinga (Pw3) called for help, and io the deceased responded. Said Sundi and his associate then redirected their aggression towards the deceased, beating and injuring him. To evade harm, Gift Emmanuel Joseph Milinga (Pw3) hid and later sought refuge at his home. In his deposition, Gift Emmanuel Joseph Milinga (Pw3) asserted that he recognized Said Sundi. The crucial question is whether the circumstances were favorable for Gift Emmanuel Joseph Milinga (Pw3) to make this recognition. The Court of Appeal, in the case of Philimon Jumanne Agala @ J4 v. R., Criminal Appeal No 187/2015, emphasized the importance of considering the circumstances surrounding identification or recognition. The court held that- "It is now trite law that the courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient details the most salient factors to be considered. These may be summarized as follows: How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the observation and the subsequent identification to the 11 police? IVas there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance? ... Finally, recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition of close relatives and friends are sometimes made." Gift Emmanuel Joseph Milinga (Pw3) knew very well Said Sundi before the incident. They had quite considerable time in the bar a few minutes before the incident. He deposed that there was moonlight and Said Sundi asked for Tzs. 500/- from Gift Emmanuel Joseph Milinga (Pw3) before turned against him [Gift Emmanuel Joseph Milinga (Pw3)] and robbed him. Karatu, the deceased was battered because he responded to Gift Emmanuel Joseph Milinga (Pw3)'s call for help. Said Sundi's defence was that he was not at the scene of the crime. I considered the evidence of Gift Emmanuel Joseph Milinga (Pw3) and the Said Sundi's defence, and came to the conclusion that Gift Emmanuel Joseph Milinga (Pw3) was truthful. The circumstances were favorable for him to recognize Said Sundi; they were together in the bar shortly before the incident, and when they 12 left, Said Sundi requested money from Gift Emmanuel Joseph Milinga (Pw3). It is obvious that Gift Emmanuel Joseph Milinga (Pw3) did not lose sight of Said Sundi. In such circumstances, even with the aid of the slightest moonlight, Gift Emmanuel Joseph Milinga (Pw3) was able to accurately recognize Said Sundi. Thus, Said Sundi's defence, claiming he was not at the scene of the crime, did not cast doubt on the prosecution's evidence of recognition. There is no room for mistaken identity. I find it satisfactory in the circumstances at hand; the familiarity, the time spent under observation, the incident occurred a moment after they left the bar, and the distance of not more than three paces eliminate the possibility for mistaken identity. Conditions of proper identification were met, there was no room for mistaken identity. The Court of Appeal in Ausi Mzee Hassani v. R., (CAT), Criminal Appeal No. 17 of 2020 (unreported), quoting its holding in Waziri Amani v. R. [1980] TLR 250 and Raymond Francis v. R. [1994] TLR 100, stated- "Zt will be noted in the instant case that, the appellant's conviction by the trial court and the subsequent dismissal of his appeal by the first appellate court, was a consequence of the following evidential confluence. One, that as opposed to identification resulting from quick glances, considering that in the fateful incident PW1, PW3 13 and PW5 stayed with the appellant at least for a while and he even uttered some words to them, assaulted them and robbed money in the course. In these circumstances, it must be inferred that the appellant could not but let his gaze fall on the witnesses' faces and as such, he was un-mistakenly identified. Two, the observation by the identifying witnesses was not impeded in any way and it was at a very close distance. Three, there was good lightning. Four, the witnesses and the appellant were very familiar to each other and finally, the appellant was mentioned at the earliest opportunity as one of the robbers when PW5 met one Selemani Hassan Sako who testified as PW7 and who had gone to the victims' rescue right after the robbers had left. To us, all the above-mentioned facts had the cumulative effect of adding quality and credibility to the evidence of identification in this case." Robinson Winfred Katonji (Pwl), the Justice of Peace (JP) deposed that Said Sundi confessed. He tendered Said Sundi's extra judicial statement (exhibit P.3). Donald Nyerere Nyamuhanga tendered a caution statement of Said Sundi (exhibit P.5). I examined the extra judicial statement, exhibit P.3 and found that found that the JP complied with the Chief Justice Guide. Compliance with the Chief Justice's Guide for Justice of the Peace is an indication that the second accused confessed voluntarily to the justice of Peace. 14 It is trite law that if an accused person intends to object to the admissibility of a statement or confession he must do so before it is admitted and not during cross-examination or during defence. See the Court of Appeal in Emmanuel Lohay and Udagene Yatosha v. R., Criminal Appeal No. 278 of 2010. Further, the Court of Appeal in Shihoze Semi and Another v. Republic [1992] TLR 330 observed that "the appellants "missed the boat" by trying to disown the statements at the defence stage. That was already too late. Objections, if any, ought to have been taken before they were admitted in evidence." It is settled that the two statements were admitted without objection. Said Sundi, the 2nd accused thought to challenge voluntariness through cross-examination. Thus, there is no scintilla of evidence to establish involuntariness, rather the accused gave the said statement as free agent. In the circumstances, this court is at one that the content of the statement came from the accused himself and not otherwise. I attach a substantial weight to the same. In exhibit P.3 the accused stated "kwa hiyo nakiri kuwa...nikweli nimeshirikiana na wenzangu kumuua Daniel Herman Karatu." 15 Literally to mean:- "That I admit that it is true that I participated with my fellows to kill Daniel Herman Karatu" In exhibit P.5, the accused had this to say:- "... Ninakiri kushirikiana na wenzangu wanne kumuua mzee Karatu Daniel Herman/' Awe kwa kumpiga sehemu mbalimbali za mwili wake hasa kichwani na mdomoni kwa kutumia gongo la mti na kum kata na panga kichwani..." Literally to mean- ".... I admit to have participated with my fellow four others to kill mzee Karatu Daniel Herman/' Awe by biting him on various parts of his body particularly on his head and mouth by using a big stick and cut him on his head with a machete..." Thus, it goes without saying that the 2nd accused person participated in the deadly attack that caused the death of Daniel Hermani Awe @ Karatu. I took time to consider the evidence against the first accused person, there is no doubt that Gift Emmanuel Joseph Milinga (Pw3) did not identify the first accused person to be one of the assailants. The only piece of evidence that connects him with the charged offence is on exhibit(s) P.3 and P.5. 16 Section 33(1) & (2) of the Evidence Act, Cap 3 R.E 2022 provides- "33.-(l) When two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved, the court may take that confession into consideration against that other person. (2) Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co­ accused. " Given the above legal position, confession alone cannot sustain conviction without corroboration. The same was observed in Abubakari Issa @ Mnyambo vrs. R., Criminal Appeal No. 34 of 2010, CAT (unreported) where it was held- "In the absence of corroborating evidence, the appellant cannot be convicted on the sole incriminating cautioned statement recorded by Accused no 2 Emmanuel Rutha." In the end, I find that the prosecution failed to prove the first accused person guilty beyond reasonable doubt. I acquit him of the offence of murder contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2022]. On the other part, I find that, the prosecution proved beyond 17 reasonable doubt that Said Sundi, the accused person, murdered Daniel S/O Herman Awe @ Karatu. I find Said S/O Hussein Sungi, the second accused person, guilty of the offence of murder and convict him of that offence sections 196 and 197 of the Penal Code, [Cap. 16 R.E. 2022]. I order accordingly. Dated at Babati this 23rd day of November, 2023. J. R. Kahyoza Judge Mr. Ndibalema -SA: Your Lordship, we have no previous conviction. We have nothing to add as there is only one sentence to the offence of murder. Mr. Mlingi: Your Lordship, leave it to the court. J. R. Kahyoza Judge 23.11.2023 18 SENTENCE The second accused person has been convicted with the offence of murder under sections 196 and 197 of the Penal Code, [Cap. 16 R.E. 2022]. The sentence for offence of murder is that the second accused person must suffer death by hanging. I accordingly, sentence Said S/O Hussein Sungi, the second accused person, to suffer death by hanging under sections 196 & 197 of the Penal Code [Cap 16 R.E 2022] read together with section 322 of the Criminal Procedure Act, [Cap. 20 R. E. 2022]. JUDGE 23.11.2023 Court: Judgment delivered in the presence of the accused persons, Mr. Festo advocate for the first accused. Mr. Mlingi holding Mr. Mniko's brief for the second respondent and Mr. Ndibalema State attorney for Republic. Right of appeal after lodging a notice of intention to appeal within 30 days explained. A J. R. Kahyoza, J. 23.11.2023 19