republic vs mapinduzi barahiraje 2023 tzhc 16028 10 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB REGISTRY) AT KIGOMA CRIMINAL SESSION CASE NO. 20 OF 2022 REPUBLIC VERSUS MAPINDUZI S/O BARAHIRAJE JUDGMENT Date of Last order: 10/02/2023 Date of judgment: 10 /03/2023 MAGOIGA, J. The accused person, MAPINDUZI BARAHIRAJE stand charged with murder of Angelina d/o Kavura contrary to section 196 and 197 of the Penal Code [ Cap 16 R.E 2019]. This court was informed that, the incidence occurred on the 9th day of January, 2021 at Kiga village within Kakonko District, in Kigoma Region. The accused at all material time pleaded not guilty to the charge of murder. Mr. Benedict Kivuma and Ms. Edna Makala learned State Attorneys, appeared for the Republic, while Mr. Dickson Makongo, learned advocate appeared for the accused person. To prove their case, the prosecutions summoned a total of five (5) witnesses namely; Veneranda Joseph (PWI), Julius Karusha (PW2), Dr. Deus Budeba Bulamuta (PW3), WP2649 Sgt Fatuma (PW4) and E9284 D/Sgt Stanley (PW5) and tendered 2 documentary exhibits. The accused Page 1 of 19 person fended himself with no exhibit to tender. Their testimony to the issue was as follows:- PW1-VENERANDA JOSEPH-under oath and the sister-in-law of the accused and neighbour to the family of the deceased told the court that, on 9/10/2021 at evening while at home his son Emmanuel Oswald came and told her that the accused was beating the deceased. PW1 told the Court that, upon that information, she went to the home of the accused to see what was the problem whereby she found the accused pulling the deceased from the big house to the small house used as kitchen. PW1 went on telling the court that, she personally asked the accused person why was he doing that because he was endangering her wife's life. According to PW1, the accused chased her away and she went back to her home. Shortly upon returning home, and fortunately, the Street Chairman arrived at her home and she readily informed him about the incidence that Mapinduzi (the accused) has seriously attacked his wife by beating her. PW1 said both went to the scene of crime to find out the status of the victim. PW1 went on telling the Court that, upon arrival, the Street Chairman asked the accused the whereabouts of his wife but the accused replied that he didn't know. ’ Page 2 of 19 PW1 went on telling the court that she intervened and advised the street chairman to enter in and verify that she was in, and upon entering they found the victim in bad condition. The street chairman told PW1 not to leave and went out to look for help in order to take the victim to hospital. Under cross examination by Mr. Makongo, PW1 told the court that, the deceased was drunkard (chronic). She drunk all the time and that she was drunk to the extent of not walking alone. Under re-examination by Ms. Makala, PW1 insisted that the accused was drunk to the extent of not walking alone. PW2-JULIUS KARUSHA - under oath told the court that on 9/10/2021 at around 19 hours while doing his official duties, arrived at the family of Oswald Barahiraje, but it was the wife alone who was present by the name Veneranda Joseph. Upon seeing him, PW1 told him about the fight between Mapinduzi and his wife that she saw Mapinduzi pulling his wife but when she intervened, she was chased away. PW1 and PW2 decided to go to the scene crime. At the home of the accused, PW2 asked the accused, the cause of problem with his wife, but the accused never disclosed. He then introduced himself as street chairman and ordered the accused to enter his house together with him and PW1, where they witnessed the deceased was in the small house and in bad condition as opposed to what the accused just told them few minutes. PW2 said that he talked with Mapinduzi in a friendly manner so that he should not escape Page 3 of 19 and went out to call people for arresting Mapinduzi and for taking the victim to hospital. According to PW2, they managed to put Mapinduzi under arrest with neighbours and took the victim to hospital but she died. PW2 informed the VEO (Village Executive Officer) and took Mapinduzi to VEO's Office so that he can be put under custody. Under cross examination by Mr. Makongo, PW2 told the court that Veneranda (PW1) told him that she witnessed the fight. PW2 admitted that personally never witnessed Mapinduzi beating his wife and that Mapinduzi's wife is a habitual drunkard and cannot tell exactly who beat her. PW3-DR. DEUS BUDEBA BULAMUTA- under oath, the medical Doctor told this court that, on 10/10/2021 in the morning with policemen went to Kiga village where there was murder of a woman and did medical examination to establish the cause of death. PW3 told the court that, he medically examined the body of the deceased and came to the conclusion that the deceased died due to injuries because the bottom of the mouth was not there and that there were bruises in the neck, swelling on the left head and the skull had broken. According to PW3, the deceased died due to traumatic brain injury. PW3 tendered Post Mortem Report as exhibit Page 4 of 19 Under cross examination by Mr. Makongo, PW3 told the court that the cause of death is not necessary beating but even falling down can cause such damage. PW4- WP2649 SGT FATUMA- Under affirmation a police officer and an investigator of this case told this court that, on 10/10/2021 she was assigned to investigate criminal case with Ref. KAK/IR/494/2021 for an offence of murder and the accused was Mapinduzi Barahiraje. PW4's evidence is based on the procedural requirement of law in recording the cautioned statement of the accused person and witnesses. According to PW4, the accused in his cautioned statement admitted to slap the deceased but denied to have killed her. Her duty ended by arraigning the accused to the court on believe that he hid that the wife is not around while knowing was around, Emmanuel said the accused beaten the deceased and that the Post Mortem Examination Report showed that the deceased died of brain injury. Under cross examination, PW4 upon referred to written statement of Emmanuel to police and asked to show where Emmanuel said the accused beaten the deceased, PW4 (this Court noted) changing the story of beating and admitted that, what Emmanuel told his mother is that, he heard the deceased crying and not being beaten by the accused person as no single witness saw the accused beating the deceased. fa Page 5 of 19 The last witness was PW5- E9284 D/SGT STANLEY. The substance of PW5 testimony was that, on 10/10/2021 in the morning in accompany with other policemen from Police Kakonko went to the scene of crime and his role was to draw a sketch map of the incidence with the assistance of Julius Karusha (PW2) and thereafter handled the same to Sgt Fatuma who was the investigator of the case. PW5 tendered the sketch map of the scene of crime as exhibit P2. After closure of the evidence by the prosecution, this court ruled out that a prima facie case has been established against the accused requiring him to enter defence under the provisions of section 293(2) of the Criminal Procedure Act (CPA). The accused was dully addressed in terms of section 293(2) and (3) of the CPA and elected to enter defence on oath without calling any witness except himself and without any exhibit. DW1-MAPINDUZI BARAHIRAJE- under oath testified that the deceased was his wife. On 9/1/2021 he woke up in the morning with a program of going to cut trees for making timber where he had someone to assist him to do the job. DW1 went on telling the court that before going to work, he instructed his wife to go and plant maize and that should go with jembe to assist clear few grasses. Upon giving the instructions, he left home leaving her there but when he came back home from work at around 16 hours to 17 hours, he did not find his wife at home. He entered in both houses she Page 6 of 19 was not there and found no water in the house. He started looking for firewood, but it was around 18 hours the wife had not yet returned home. Before going for water, he heard an alarm that someone is falling. Shortly he saw someone coming staggering and fully drunk, only to realize was his wife. When he looked at her, she was in a terrible condition, her chin was with blood, bruises in the neck and the head with mud as if she had fallen down on her head. DW1 went on testifying that, few days back, deceased was raped with people while coming from machine. DW1 told the Court that, when he asked her where she was, she could not answer. DWl's further testimony was that, the deceased was vomiting alcohol and was trembling and he noted that she had not eaten anything since morning. It was against this background, DW1 told the court that, he decided to go to kitchen to take some flour so that he could give her to relief her from drunkenness and hunger. Further testimony by DW1 was that he tried to carry her from where she was seated crying trying to take her to the kitchen so that he could help her with some food but before he had finished assisting her, he heard the voice of Julius Karusha (PW2) who was in accompany with Veneranda calling him, he responded that he was there. The street chairman asked him what was the problem there, but he said no problem except that, his Uni wife had drunk too much alcohol. Page 7 of 19 DW1 admitted that PW2 advised him to take the deceased to hospital and went out. When he came back, he was with more than 7 people who forcefully arrested him and took him to village executive officer's office. In the morning, the VEO told DW1 that his wife was dead. Therefrom, he was taken to Kakonko Police Station. DW1 testified more that in interrogation by the police he denied to have killed the deceased and never touched her on that fateful day. About the injuries the deceased sustained, DW1 said they were inflicted on her before coming home because she came fully drunkard, horrible and very weak. DW1 did not deny on the fact that he was pulling the deceased, but he explained that, was in effort to carry her to the kitchen in order give her the flour that he had mixed with water because apart from drinking a lot of alcohol, she was very hungry as well. About beating the deceased, DW1 denied to have beaten her and that PW1 Veneranda was telling lies because the truth was that he tried to assist her to kitchen so that he can feed her with available flour. On the allegation of throwing stones to the PW1, DW1 stated that PW1 was a liar as well, she is his in-law he couldn't do that. DW1 went on insisting that his wife (deceased) was a chronic drunkard and several times he advised her to stop but she did not heed his advice. He maintained that several villagers including himself know that she was the Page 8 of 19 drunkard. He claimed that, the first incident she came from her drinks and was rapped on the way and this tme was the 2nd incidence she came fully drank and had fallen several times. DW1 insisted, the deceased had reputation on drinks. He prayed this court to acquit him. DW1 also stated that PW2 spoke lies that he left PW1 under surveillance because if he had beaten the deceased he would have run away. He repetitively prayed this court to acquit him because he wasn't responsible for the death of the deceased. Under cross examination by Kivuma, learned State Attorney, DW1 responded that, he was to take the deceased to hospital but he firstly thought to give her first aid in a situation she was. On hiding where she was, DW1 told the court that she was crying and no need of hiding her whereabouts. This marked the end of the defence case and same was dully marked closed. In addressing the court in the final submissions, the accused person speaking through Mr. Dickson Makongo leaned advocate submitted that, the accused is charged with murder of one Angelina Kavura on 9/1/2021 at Kiga village within Kakonko District and Region of Kigoma. It was the submission of the leaned advocate that, after hearing evidence for both sides, the issues for determination are; whether it is the accused who killed the deceased and whether he had malice aforethought. Page 9 of 19 The learned defence advocate strongly submitted that, it is the general rule that in criminal cases, the Republic is required to prove the case beyond reasonable doubt. This is stated under section 4(2)(a) of TEA. To bolt up his point cited the case of Hatib Mohamed Maulid @ Kausha@ Said Maulid vs. Republic, Criminal Appeal No. 26 of 2018 at Mtwara in which the Court of Appeal of Tanzania categorically stated that proving a criminal case beyond reasonable doubt is a mandatory requirement. Further, the counsel pointed out that, in the case of Abdalla Rashid Koka vs. Republic, Criminal Appeal No. 206/2016 CAT said that burden to prove never shifts. The counsel submitted that in criminal cases, the Republic has to prove actus reus and mens rea as amply stated in the case of Hashim Kova vs. Republic, Criminal Session No. 50/2022 (HC) at Morogoro(unreported). According to him, therefore, in this case no witness testified to have seen the accused beating his wife. He said, PW1 and PW2 never saw the accused beating the deceased. PW3 as well told the court that the cause of death was traumatic brain injury. No exhibit was tendered to prove that there was any use of blunt object against the deceased. The learned defense counsel went on submitting that much as no such evidence was led to prove the beatings, then, it cannot conclusively be said that he is the killer. He strongly argued that, in this case, doubts and Page 10 of 19 ( discrepancies as to what actually caused death must be resolved in favour of the accused person. He condemned the Republic for failure to disprove the strong evidence of DW1 that he never beaten the deceased. He pointed out that the deceased was beaten where she had gone for drink and PW1 and PW2 admitted that the deceased was drunkard of the highest degree and that no single witness testified that actus reus was done by DW1. Finally, the leaned advocate submitted that in the absence of actus reus by the accused person no need even to look into the mens rea. He urged this court to find and hold that the Republic has utterly failed to prove its case to the required standard and acquit the accused person. In reply, the learned State Attorney Ms. Edna Makala submitted that, the accused is charged of murder contrary to section 196 and 197 of the Penal Code and that it is equally true that the burden of prove is on the prosecutions as stated under section 3(2)(a) of TEA cap.6 R.E. 2022 and the burden is beyond reasonable doubt. The learned State Attorney referred this court to the case of Magado Paul and Another vs Republic [1993] TLR 220 where the court insisted that the doubts have to be reasonable and not otherwise. She went on submitting that, in this case, the prosecution has proved the case to the standard required in law. She said that there are two ways of proving the case which are direct or circumstantial. c< Page 11 of 19 She insisted that in this case, they have circumstantial evidence that it is the accused and not anyone else who killed the deceased. That, they called 5 witnesses and tendered 2 exhibits. According to the learned Attorneys, PW1 categorically testified that she went to the home of the DW1 and found DW1 pulling the deceased and when she questioned, she was chased away. And on the second visit, she saw the deceased with the aid of the street chairman. Furthermore, the learned State Attorney submitted that, the evidence of PW1 was enough to establish, the accused was the last person to be with the deceased. She therefore said, all circumstances show that they were at home where she died. The leaned State Attorney added more that, the accused lied to street chairman that the wife was not there. According to the learned State Attorney, PW3 told the court that the death was not natural. There was traumatic brain injury. All together taken into account, the circumstances show the accused is the one responsible. On failure to bring the weapon is not a requirement of the law, insisted Ms. Makala. It was her strong submission therefore that, basing on testimony of PW1, PW2 and PW3 shows that the accused person killed the deceased. In concluding her submissions, Ms. Makala said that, in his defense, the accused had never reported her drunkard in the leadership. PW1 admitted Page 12 of 19 the deceased was drunkard. PW2 said the deceased was a normal drunkard but he had no report of chronic drinking. On that note, the learned State Attorney prayed and urged this court to find the accused guilty of murder as charged and sentence him in accordance to law. As it can be seen from the evidence and submissions of both sides, the main issues are; first, whether the prosecution has discharged its duty of proving the charge of murder in this case beyond all reasonable doubts and second issue equally important is, whether the accused Mapinduzi Barahiraje was responsible with the unnatural death of Angelina Kavura with malice aforethought. Quite correctly and rightly as submitted by both rivaling counsel for the parties' it is trite law that, in criminal cases, it is a duty of the prosecutions to prove the case beyond all reasonable doubts. In a murder offence, both the actus reus and mens rea has to be proved. Therefore, in this case, it was a duty of the prosecution to prove that Angelina Kavura is dead and that she died an unnatural death. And further that it was the accused who caused her death, with malice aforethought. Before answering the above issues, I have noted that there are some facts not in dispute between rivaling parties and which will help this court to resolve this legal problem. These are; one, it is not disputed between the Page 13 of 19 parties that the deceased Angelina Kavura died on 9/01/2021 and did not die a natural death but due to traumatic brain injury. Two, it is not disputed between the parties that the accused person before this court was arrested on the same day and interrogated and investigations mounted against him which culminated into charging the accused person before this court for the offence of murder. Three, it is not disputed that, the deceased was the wife of the accused person. However, based on evidence on record and the above undisputed facts, in my opinion, it is one issue which is in serious dispute between the parties, that is, whether, is the accused person who inflicted the injuries with malice aforethought leading to the death of the deceased as charged. From the evidence summarized above, I must firstly agree as correctly submitted by Edna Makala, leaned State Attorney and rightly so in my own observation and in my strong opinion that, the evidence for the prosecution is circumstantial because of all five witnesses none saw the accused person beat the deceased on the parts of the body as observed by PW3. This Court in its research sought guidance from the Court of Appeal of Tanzania in the use of circumstantial evidence to mount conviction. The elaborate and articulated guidance can be gathered from the cases of Jimmy Runangaza vs. Republic, CRIMINAL APPEAL NO.158B/2017 Page 14 of 19 (CAT) (Unreported) and Shaban Mpunzu @ Elisha Mpunzu vs. Republic, Criminal Appeal No. 12 of 2002 CAT at Mwanza in which the highest Court of this land had this to say; "In order for circumstantial evidence to sustain conviction, it must point irresistibly to the accused guilty, (see Simon Musoke vs. Republic, [1958] EA 715). Sarkar on Evidence, 15th edition 2003 Report Volume 1 at page 63 also emphasized that cases which rely on circumstantial evidence, such evidence must satisfy the following three test which are; i. The circumstances from which an inference of guilty is drawn must cogently and firmly established; ii. Those circumstances should be of definite tendency unerringly pointing towards the guilty of the accused person; and Hi. The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused person and on one else." Guided by the above holding in relation to circumstantial evidence at hand, and all considered, it is my strong considered opinion that, the circumstantial evidence in this suit do not irresistibly point to the accused Page 15 of 19 1 person. I will explain. One, while the Republic believes that the accused person was the last person to be with the accused person but in my own respective opinion, every case must be decided on its own peculiar facts. Given the fact and circumstances that the deceased and the accused person were husband and wife, and were at their home, this circumstance cannot be a basis of conviction simply that were at home. In the morning as explained by DW1, they parted ways and their home was just a mandatory meeting point. While I appreciate the principle that the last person to be with the deceased may be held responsible but in the circumstances of this case, the accused person cannot be said conclusively was the last person to be with the deceased but rather last person to meet the deceased as such the principle not applicable here. I, thus, find this point wanting in this suit. Two, the learned State Attorney forcefully submitted that, the testimonies of PW1, PW2 and PW3 proved that it was the accused person and not one else murdered the deceased. I have carefully considered the testimony of PW1 and found it wanting and full of contradictions and lies. PW1 told the court that her son (EMMANUEL) who was not called as witness saw the accused person beat the deceased, which story was carried by PW4 but when PW4 was cross examined on the contents of the said EMMANUEL statement quickly changed her story that EMMANUEAL never said so but that the deceased was crying. PW1 too was not trustworthy witness because she said was chased by stones Page 16 of 19 c the first time she went to the home of the deceased, but when went for second time was easily left without telling PW2 that she will be chased because the first time she came there was chased away. As to the testimony of PW2, never saw the accused beating the accused person and had no evidential value to say conclusively that it was the accused and not someone else who inflicted the fatal wound. As to PW3, the medical doctor, when cross examined by Mr. Makongo learned advocate for defence, categorically told the court that, I beg to quote him verbatim: "the cause is not necessary from beatings but even falling down can cause the damage." This piece of evidence from the witness who examined the body of the deceased has to be resolved in favour of the accused person. It is my considered opinion that, the above piece of evidence is supported by the testimony of PW1 that he found the husband helping her from the big house to small house which was used as kitchen and the defence of the accused that he wanted to feed her some flour as first aid to give her strength. In the totality of the above reasons, is my firm considered opinion that PW1, PW2 and PW3 testimonies did not prove beyond reasonable doubt that it is the accused who actually murdered the deceased and not someone else. Page 17 of 19 Another reason argued by the learned State Attorney was that the accused lied to the street chairman that he did not know the whereabout of his wife. The accused on the other hand testified that he told the street chairman that I have no big problem except that my wife has drunk to much alcohol. PW1 who is the in law of the accused person also admitted that the deceased was hopelessly drunkard when under cross examination and that when she drinks, she usually ends up crying. This point has tasked me a million but considering the conduct of the accused person during the second visit of the street chairman, I find it composed and cannot be a conduct of the actual killer. Even if PW2 testified that he left PW1 in watch but PW1 never testified that the accused person ever conducted himself as someone who wanted to run away. On the above reason, this point alone cannot be a basis for conviction in the circumstances. It on the totality of the above reasons, I agree with the defence counsel Mr. Makongo that much as no circumstantial evidence irresistibly points to the accused person, as such is very unsafe to mount conviction while no cogent and cumulatively evidence firmly established so. In the fine, I find the Republic failed to prove the offence of murder against the accused person beyond reasonable doubt. Page 18 of 19 Consequently, I here hereby acquit the accused person of the offence of murder charged. The accused is to be immediately released from prison unless held otherwise for another lawful cause. It is so ordered. Dated at Kigoma this 10th day of March, 2023. S. M. MAGOIGA JUDGE 10/03/2023 Page 19 of 19