republic vs thomas dolofen mbele 2023 tzhc 15664 21 february 2023

IN THE HIGH COURT OF TANZANIA AT SONGEA - SUB REGISTRY ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 06 OF 2022 THE REPUBLIC VERSUS THOMAS DOLOFEN MBELE JUDGMENT 15/02/2023 & 21/02/2023 E. B. LUVANDA, J. Thomas Dolofen Mbele the accused person herein, is indicted for murder contrary to sections 196 and 197 of the Penal Code Cap 16 R.E. 2019. In the particulars of offence it is alleged that on 20th day of July, 2021 at Muungano "B" Mpitimbi Village within Songea District in Ruvuma Region, the accused person did murder one Jesca Mgomela. At the arraignment, the accused person pleaded not guilty to the information. The prosecution side summoned seven witnesses to prove the accusation levelled to the accused. Briefly it was asserted by prosecution witnesses that on 20/07/2021 at 20:00 hours, the deceased was escorted by her young sister one Pilimina Mgomela (PW2) and her friend one Furaha Ponela to the i accused person's home at Mpitimbi where the later was renting. On arriving there, they saw their host to wit the accused gossiping with one Georgina Samson Haule (PW3) at the main house which by then was vacant. It was said the deceased kept on switching on and off at a whare story making as she used to enter into and exit from the bed room of the accused person, here and there. Thereafter, PW2 followed the deceased at the door of the accused's bed room, and summoned her, implored the deceased to go home, where the deceased asked PW2 to go ahead and promised to follow location. It is when PW2 and her friend Furaha Ponela, departed thereat and resumed to their home. Meanwhile PW3 closed her door and entered to sleep. From then the deceased went missing, until when she was found died and her body abandoned in the scrub bush, it was on 21/7/2021 in the evening, as per the testimony of Johnbosco Mgomela (PW1) deceased's father and Erasto Mbawala (PW4) militia of a security group. Zakaria Kiamwanja (PW7), who is a professional medical doctor, confirmed that the death of the deceased was caused by strangulation, as he saw strangulation marks, neck swollen causing shortage of oxygen in the brain, bleeding on nose and ears, as per a post mortem report exhibit PEI. Dolofeni Mbele (PW5) who is the accused's father asserted 2 that the accused confessed to have killed his fiencee (the deceased) and was making attempt to harm himself by hanging at his (PW5) farm. On defence, the accused person made an evasively denial where he denied knowing the deceased let alone killing her, denied knowing PW2. Refuted being a co-tenant of PW3. He dispelled a fact that the deceased remained inside his bed room. Disowned even his (accused) blood father (PW5). The question for determination is whether the information for murder was proved against the accused person on the standard. Essentially, the evidence presented by prosecution was circumstantial evidence in view of a fact that the accused person was the only person last seen to be in company of the deceased into his bed room, and also an oral confession to PW4 (militia), PW5 (accused's father) and CPL Isaya (PW6) arresting officer. The rule on circumstantial evidence is that the same must be watertight and irresistibly implicating the accused to the commission of offence. This was the position in the case of Hamida Mussa v. The Republic [1993] TLR 123 where the apex Court held that, Circumstantial evidence justify the conviction where inculpatory fact or facts are incompatible with the innocence of the Accused and incapable of explanation upon any other reasonable hypothesis than that o f his guilty. Herein, there was overwhelming evidence from PW2, PW3 who consistently explained that up to the last minute of their departure at main house where they were making stories when the deceased was alive they saw the deceased entering and remained inside the bed room of the accused person who was also inside therein. There is no any other acceptable theory indicating that the deceased was seen alive thereafter by any other person apart from the accused himself. No witness saw the deceased exiting alive from the bed room of the accused person after departure of PW2 and PW3. The only story is a fact that the accused person was the last person to be seen with the deceased while alive and thereafter her body seen abandoned half naked in the forest on a minor path towards farmland. It is a cardinal law that the last person to be seen with the deceased is presumed to be the killer unless he adduce a plausible explanation to explain away the circumstance leading to the death, failure to give a plausible explanation he cannot escape liability for the death. This was the decision in the case of Herman Faida v. The Republic, Criminal Appeal No. 479 of 2019, Court of Appeal of Tanzania at Bukoba, where the Court of Appeal had this to say; 'In addition and taking into account that the appellant was the last person to be seen with the deceased on 3Cfh October, 2013 and he failed to give a plausible explanation when asked on his whereabouts, he cannot exonerate himself on this matter. In the case o f Mathayo Mwattmu and Another v. Republic, Criminal Appeal No. 147 o f 2008 (unreported), this Court held that:- "...if an accused person is alleged to have been the last person to be seen with the deceased, in the absence o f a plausible explanation to explain the circumstances leading to the death, he or she will be presumed to be the killer..." And in view of a fact that, the accused person had made a desire proposing to marry the deceased and in fact he send a formal letter via the matchmaker and ended up being denied, in totally incriminate the accused person as the one who maliciously strangled the deceased to death. This can be inferred from the testimony of PW1 that he saw strangulations marks and neck swollen, implying the accused applied 5 force on a sensitive part of her body to wit neck, until when she lost her breath. As to what circumstances can malice aforethought be inferred was established in the case of Bakari Rajabu Bakiri v. The Republic, Criminal Appeal No. 292 of 2021, Court of Appeal of Tanzania at Mtwara, the Court said that, '...whether or not he had that intention must be ascertained from various factors including the following; the type and size o f weapon, if any used in the attack, the amount of force applied in the assault, the party(s) of the body the blow were directed at or inflicted on, the number o f blows although one blow may depend upon the facts o f a particular case be sufficient for this purpose, the kind o f injury inflicted, the attacker utterances if any made before, during or after the killing and the conduct of the attacker before and after the killing. [Emphasis mine] From the record, the Accused strangled the deceased until she died. Then he throw her corpse at the bush, undress her under panties, lied to the deceased family that the deceased left his house shortly after departure of her young sister and friend, shortly thereafter he escaped to unknown place. There is also an oral confession which the accused was said to have made before PW4 and PW6. The learned defence Counsel attempted to discredit it grounding his argument to what PW4 had explained to had promised to assist the accused person in case he disclose to them (PW4 and PW6) the truth as to what had transpired. Be as it may, the oral confession made by the accused to his father to wit PW5, was firm and true. PW5 was an honest man, even the attempt by the defence Counsel to shake his credibility on cross examination, was abortive. PW5 stood firm and maintained his stance that the accused person explained to him at the farm, that he (accused person) murdered his fiancee one Jesca (the deceased). On my part I see no reason for misbelieving PW5, I take his testimony as a true account of fact for the death of the deceased. In the case of Abel Mathias @ Gunza @ Bahati Mayani vs The Republic, Criminal Appeal No. 267 of 2020, CAT at Mbeya, at page 15 the Court remarked, With respect, we hold views quite contrary to Mr. Maumba's submission on this point. PW3's testimony against his own brother is indeed rare as submitted by the learned counsel, but instead o f that being a reason i for suspecting him, it makes such evidence to be most probable truthful. We would have approached PW3's testimony more cautiously if it was calculated at exonerating the appellant because in such circumstances such witness is suspected to have an interest to serve... here the reverse is the case because PW3 is so candid as to testify against his own brother' PW5 vindicated under oath being a blood father of the accused. On defence, the accused (DW1) disowned PW5, but the accused did not state if at all he is in utter disagreement or bad terms with his father. Indeed the evidence of PW5 portray that whenever the accused is faced with a problem, he usually approach him (PW5) for advice. In view of that a call by the accused for an eye witness is unmerited. Because the circumstantial evidence and oral confession is watertight against him. Therefore the accused person is guilty for murder contrary to sections 196 and 197 of the Penal Code Cap 16 R.E. 2019 and is convicted forthwith. 8