MWITA JUDGMENT for Tanzlii 06 12 2024

Page |1 IN THE HIGH COURT OF TANZANIA (GEITA SUB-REGISTRY) AT GEITA CRIMINAL SESSIONS CASE NO. 26024 OF 2024 REPUBLIC VERSUS CHARLES S/O MWITA JUDGMENT Date of last Order: 22/11/2024 Date of Judgment: 06/12/2024 K. D. MHINA, J. At about 00:00 hours in the midnight of 19th April 2024, at Ililika Village, Nyarugusu Ward within the District and Region of Geita, the deceased Mwita s/o Charles, an infant aged five (5) months old, was found “drowned” in a drum full of water. His lifeless body was found in a position where his head was down and feet up. After investigation, the accused person, Charles s/o Mwita, the father of the deceased, was alleged to be the premeditated donor of the foul Page |2 deed. Now, he stands charged with the offence of Murder in contravention of the provisions of sections 196 and 197 of the Penal Code, Cap 16 R: E 2022. In the information, it was particularized that the accused person, on 19 April 2024, at llilika Village, Nyarugusu ward within the District and Region of Geita, murdered Mwita s/o Charles. The accused person pleaded not guilty to the information. During the Preliminary Hearing conducted under Section 192 of the Criminal Procedure Act, Cap. 20 R.E. 2022, the accused admitted his personal particulars and that the deceased was his son and Anneth Fabian was his wife. The Republic thus brought six (06) witnesses in a bid to prove the prosecution case. The witnesses were PW1 (PF 22347 Assistant Inspector Danford Kunambi), the Officer Commanding Station (OCS) of Nyarugusu Police Station: PW2 (Linda Elineema Jambi), medical practitioner; PW3 (Paul Luhende), the chairman of Ililika Hamlet, where the offence was committed; PW4 (Lazaro Yohana Msengi), the Village Page |3 Chairman of Ililika Village; PW5 (Anneth Fabian), the mother of the deceased and PW6 (F. 2646 Detective Seargent Boniface), investigator of the case. The prosecution side also tendered only one exhibit, i.e. the Post- mortem report, which was admitted as Exhibit P1. At the trial, the Republic was represented by Ms. Deodatha Dotto, Ms. Kabula Benjamin, and Mr. Ipyana Mwantoto; both learned State attorneys. On the other hand, the accused person was represented by Mr. Yesse Lubunda, a learned advocate. Briefly, the prosecution evidence was as follows: PW3 (Paul Luhende), the chairman of Ililika Hamlet, testified that on 20 April 2024 at 23:00 hours, he received a phone from Makisio Kaselya, the brother of the accused, who informed him that the child of the accused person was missing from the house. Upon receiving that information, he informed the village executive officer, Shadrack Mabuga, and the village chairman, Lazaro Yohana. His evidence was confirmed by PW4 (Lazaro Yohana Msengi), the Village Chairman of Ililika Village, stated that on 20 April 2024, around 23:00- Page |4 00:00 hours, while he was at his home, he received a phone call from the Hamlet Chairman of Ililika, Paul Luhende Kisinza. He was informed that the child of Charles Mwita had disappeared from the house. Following this information, both PW3 and PW4 acted in union, rushing to the house of Charles Mwita. According to PW3, when he arrived at the house of Charles Mwita, he found that the Village Executive Officer and the Village Chairman had already arrived. They began their questioning with Charles Mwita, his brother Makisio Kaselya, and Charles Mwita's wife. The response was that they had left the child inside the room and went to the bathroom. Upon their return, the child was nowhere to be found. This statement was given by Charles Mwita. When PW3 was cross-examined, he stated that when Charles Mwita said he went to the bathroom with his wife. Neither his wife nor Makisio Kaselya, who were present, refuted that statement. He also stated that the bathroom was about 15-20 paces from the house. Page |5 In his evidence, PW4 stated that he only questioned some of the relatives at the scene. However, he did not question the parents of the deceased child. PW4 informed the OCS of Nyarugusu Police Station, one Danford Kunambi. Then, they started to search for the missing child. Initially, it was outside the house, and other people went to search on the south side, where Illika Primary School was located. However, they returned without finding the child. Further, in his evidence, PW4 stated that they decided to search inside the room. He entered the room with Makisio Kaselya and Paul Luhende, the Hamlet Chairman (PW3), while others remained at the door. Inside the room was a mattress on the left side, and on the right were kitchen utensils and a water drum. When Makisio Kaselya opened the drum, they found the child had drowned his head down and feet up. The drum, which was maroon in colour, was full of water. The evidence of PW4 was confirmed by PW3, who testified that when they entered the room to search, they found the baby inside the water drum. The child was drowned, his head down and feet up. Page |6 According to PW4, after that discovery, they went outside and apprehended Charles Mwita and his wife. He also informed the OCS, Danford Kunambi, that they found the child drowned in the water drum. After being informed that the child missing was found drowned in a drum of water, PW1 (PF 22347 Assistant Inspector Danford Kunambi) went to Ililika Village accompanied by PW6 (F. 2646 Detective Seargent Boniface), the investigator of this case. Upon arrival at 00:30 hours, they met with the village leaders, neighbours, relatives and parents of that child. The village chairman, Lazaro, informed him they found a child in a water drum inside the house/room. He was taken inside the room and saw the child in the drum, which had water. That drum was a maroon/ brownish crimson colour. It was placed on the right side of the room with other kitchen appliances. They took the child out of the water drum and sent him to Nyarugusu Health Centre. They apprehended the child’s parents, took them to Nyarugusu Police Station for interrogations, and seized the water drum. Page |7 According to PW3, when he was cross-examined, he stated that the suspects, whom police officers arrested and transported to Nyarugusu Police Station for interrogation, were Charles Mwita and his wife. Further, he stated that the bathroom was 15-20 paces from the room, and it was difficult for a person to enter their room without being seen from the bathroom. Further, on his side, when PW4 was cross-examined, he stated that the OCS left with the suspects, Charles Mwita and his wife. And the seized water drum. Furthermore, he said that until the police left, they did not know who caused the death of the child. On his side, PW6 stated that he was the one who sent the deceased child’s body to the Health Centre. He went with Makisio, the Village chairman, the Hamlet chairman, and others. On the next day, the post-mortem examination was conducted, and he witnessed the same. The medical practitioner who conducted the post-mortem examination PW2 (Linda Elineema Jambi) testified that when examining the deceased body, she found the child’s skin started to change to a blue colour. The eyes did not respond to light, there were no heartbeats, and the child was not Page |8 breathing. Therefore, she concluded that the child had already died, and after she completed the examination, she filled the post-mortem report and stamped it. To that effect, she tendered; i. The post-mortem report as Exhibit P1. The post-mortem examination report (Exhibit P1) revealed that the cause of death was hypoxia 2nd drowning. On what happened on the fateful night, the evidence of PW5 (Anneth Fabian) is very crucial. She is a key witness in this case, having been the mother of the deceased child from the union with the accused person. According to her, she was peacefully living with her husband and the deceased child at Ililika Village. At the time when the deceased passed away on the night of 19 April 2024, he was five (5) months old. She testified that on the fateful night, her husband, the accused person, returned home around 22:00 hours. Upon arrival, he said he was not feeling enough to eat; however, he requested her to prepare and send water to the bathroom, a distance of 30 meters from their room. She carried water to the bathroom and left the accused and the child who had slept. When she returned from the bathroom, she found the Page |9 accused at the door of the room, heading to the bathroom. Inside the room, the child was nowhere to be found. She asked the accused who was still on the way to the bathroom, and he responded that he left the child sleeping. The accused told her to wait for him to take a bath, but she insisted him on searching for the child. PW5 further stated that the accused told her to wake up the neighbours, and when the neighbours asked what had happened, she should tell them they had gone to the bathroom together and left the child inside the room. When neighbours arrived, they advised the accused to inform the chairman and relatives. They also started to search for the child. Later, police officers arrived. When they questioned them, her husband told them they went together to the bathroom, and when they returned to the room, they did not find the child. Later, she was informed the child was found in the water drum. At the police station, when questioned about the events, she recounted the story her husband had instructed her to tell, that they had gone to the bathroom together and returned to the room together. P a g e | 10 When cross-examined, she stated that she was present when her husband answered the police officers, and she did not refute what her husband was saying. Further, at the police station, she told the police the same thing her husband had told them. She also stated she did not know who killed the child, and it was possible that the accused did not know who killed the child. Furthermore, she stated that their room had no electricity and it was dark. When a person was in the bathroom, seeing what happened in the room was impossible; however, she never met any person when she took water to the bathroom. She also stated that she was remanded at Nyarugusu Police Station for about a week and at Geita Police Station for over a month. In re-examination, she stated that at the police station, she had said what her husband had told me to say. In the end, according to PW6, the investigator of the case stated that initially, they apprehended both the accused person and his wife. However, after investigation and collecting evidence, they discovered that the accused committed that offence while his wife, Anneth, did not. When he was cross- P a g e | 11 examined, he stated that collected evidence, including the statements of the accused wife and other witnesses, led them to find that the accused was the one who killed the deceased. Therefore, Anneth, who was initially also arrested, was released after an investigation. In re-examination, he stated that the evidence to connect the accused and the killing was circumstantial. In his defence, the accused person, DW1, Charles Mwita, denied having committed the offence charged. He stated that Anneth was his wife for two years, and they had a child named Mwita Charles. On a fateful night, he returned around 21:00 hours and found his wife and child, who had slept. He ate food with his wife, and after, he told his wife to take water for him to the bathroom. DW1 stated that they went together to the bathroom, and his wife waited for him outside while bathing. After he finished, his wife told him that their child was missing. They searched but did not find the child. Therefore, he informed the neighbour and phoned his brother, Makisio Kaselya. P a g e | 12 When he was going to inform another neighbour, he saw a torch light towards the direction of the school. He tried to follow it up but to no avail. They continued to search for the child and decided to search the room with the Hamlet chairman and other leaders. Inside the room, they took a bucket, which was placed over the water drum, and when they opened the drum, they found the child drowned in water inside that drum, his head down and feet up. They tried to give the child first aid by removing water in the stomach. They were apprehended by a ten-cell leader, and the child was taken by a police officer named Bon to Nyargusu Health Centre. He further testified that they lived in a room with no electricity, and the bathroom was at least 20 paces from their room. Further, there was another house between their room and the bathroom. When cross-examined, he stated that when they went to the bathroom, they left the child sleeping, and his wife was the one who closed the door of the room. P a g e | 13 After the closure of the defence case, and having considered the evidence on record, the main issue before this Court for determination is; “Whether the Accused person is guilty of the murder of the deceased Mwita s/o Charles”. Thus, the prosecution has to prove the offence of murder under sections 196 and 197 of the Penal Code. However, the following ingredients must be established cumulatively and proved beyond reasonable doubt in proving the offence. The ingredients are as follows; One, whether the deceased named in the charge actually died. Two, whether the death was as a result of an unlawful act (unnatural cause). Third, whether it was the accused persons who actually caused the death of the deceased and, Fourth, whether the killing of the deceased was with malice aforethought. P a g e | 14 In determining the matter, I will start with the first ingredient: whether the deceased named in the charge sheet actually died. There is no dispute that Mwita s/o Charles. There is no dispute that when his body was recovered in the drum full of water, he had already passed away. According to PW3 and PW4, after they saw the body inside the water drum, they left that body inside it until police officers arrived. The police officers were the ones who retrieved the body from the drum. This was confirmed by the medical practitioner PW2 in exhibit P1, which states that the cause of death was hypoxia second drowning. Further, as it may be noted from the testimony of PW5, the mother of the deceased and DW1, the father of the deceased, the body recovered in the water drum was that of their child, Mwita s/o Charles. Therefore, it is an established fact that Mwita s/o Charles was dead; thus, the first issue is answered in the affirmative. Regarding the second ingredient of whether the death was a result of an unlawful act (unnatural cause), this should not detain me long. P a g e | 15 PW2, the medical practitioner who conducted an autopsy and prepared the post-mortem report (Exhibit P1), testified that the deceased cause of death was hypoxia second drowning. On how hypoxia happens, I found an article written in the News Medical Net titled “What is hypoxia” accessed at https://www.news- medical.net/health/what-is-hypoxia.aspx. The article says, “In medicine, hypoxia is a condition in which the human body tissues are not oxygenated sufficiently to maintain adequate homeostasis, resulting from inadequate oxygen delivery to the tissues due to either low blood supply or low oxygen content in the blood. Oxygen deprivation can severely affect various body cells that perform essential biological processes”. Simply, it happens when the body tissues are deprived of enough oxygen. From above, according to the evidence of PW4, who was among the persons who the deceased person testified that after opening the water drum, they found the deceased inside. That means it was closed probably by a lid. According to PW5, it was a 25-litre drum of water. Therefore, the question is whether the deceased, a five-month-old child, was drowned or accidentally entered into the water drum. P a g e | 16 According to the United Nations Children’s Fund (UNICEF), accessed at Your baby's developmental milestones | UNICEF Parenting. movement and physical development milestones for a baby at four months are as follows: brings their hands to their mouth, push up to their elbows when lying on their stomach, can hold their head up without support, might be able to roll over onto their back, may push down on their legs when their feet are on a hard surface and a shake a toy they're holding. This journey starts at four months and takes off to five months. At six months, the baby enters another milestone. According to UNICEF, at nine months, a baby can get into a sitting position and sit without support, pull up (using furniture for support) to stand and start to crawl. At one (1), a baby can take a few steps without support, get into a sitting position without support and pull up to stand and walk while holding onto furniture. From the above findings, it is quite clear that at the age of five months, the deceased could not move from the bed/ mattress where he slept, enter into the water drum and put a lid. That means someone put the deceased into the water drum, put a lid, and left him to die. P a g e | 17 Therefore, from the evidence, it is inevitable that the deceased death was unnaturally caused; consequently, he was murdered. Coming to the third ingredient, which is a crucial one and a matter of “great moment”, in this case, the question is who killed the deceased, Charles s/o Mwita. There is no dispute that there is no eyewitness who witnessed the deceased when placed/ put into the water drum. According to PW6, the investigator of this case said the evidence collected, including the statement of PW5, connected the accused and the killing circumstantially. The only evidence that indirectly implicates the accused is the testimony of his wife (PW5). However, her account of the events, where she claims to have left the accused and the deceased in the room, only to find the child missing upon her return. However, at the scene, according to PW3, when they questioned the accused and PW6, the accused person told them they had left the child inside the room and went to the bathroom; however, when they returned to the P a g e | 18 room, they did not find the child. PW6, who was present, did not refute that statement or stated otherwise. On his side, PW4 stated that up to the time the police officers left, they did not know who caused the death of the deceased. When PW6 was cross-examined, she admitted that she was present when her husband answered the police officers and did not refute what her husband was saying. Further, at the police station, she told the police the same thing her husband had told them. In his evidence, PW6 said the reason to do so was because her husband told her to say so. Though neither party tendered that statement in evidence but, what happened simply means that PW5 told the police officers that they left the child in the room, went together to the bathroom, and when they went back to their room, they did not find the child. From the above analysis, I have the following; In the case of Goodluck Kyando vs. The Republic (2006) TLR 363, it was held that; P a g e | 19 "It is a trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness." The above is a trite law that every witness, including PW5 in this case, is entitled to be given credibility and testimony to be believed unless there are good reasons not to do so. On how the credibility of a witness can be assessed, the Court of Appeal in the case of Nimo Samu vs The Director of Public Prosecutions (DPP) (Criminal Appeal 31 of 2019) [2022] TZCA 674 (7 November 2022) (Tanzlii), while citing its earlier decision of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2001(unreported), held that; “The credibility of a witness can also be determined in other two ways, that is one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses”. In this case, by looking at the coherence of the evidence of the key, PW5, in her own words in the evidence, she stated that at the police station, she told them that they had left the child inside the room and went to the bathroom but when they returned to the room, they did not find the child. P a g e | 20 But at the court, she testified that she left the accused with the child in the room, and when she was on her way back, she met the accused at the door of the room, heading to the bathroom. When she entered the room, the child was nowhere to be seen. In relation to the evidence to the evidence of other witnesses, it was the evidence of PW3 and PW4 that the accused and PW5 went together to the bathroom, and until the police officers left the scene, they did not know who killed the deceased. From the above, it is clear that; One, the credibility of the PW5, the key witness, is questionable because she has given improbable evidence. In Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 (16 March 2007) (Tanzlii), it was held that: "Good reasons for not believing a witness include the fact that the witness has given improbable evidence or the evidence has been materially contradicted by another witness or witnesses." In the instant case, the key witness (PW5) gave improbable evidence on the incident and the involvement of the accused person in the commission of the offence. There was a controversy on material evidence on whether P a g e | 21 the accused and PW5 went together to the bathroom or PW5 left the accused and the deceased in the room. Two, according to PW5, after they were arrested, she was remanded at Nyarugusu Police Station for about a week and at Geita Police Station for over a month. The question is when the story changed from going together to the toilet to PW5 left the accused and the child in the room when he was at the police station or not. Unfortunately, PW6, the investigator, did not provide any answer. In his evidence, he did not even say what PW5 had said when she was at the police station and at what time during that period of more than a month when she was in custody, she gave her statement. Therefore, technically, PW5 failed to name the accused as a suspect and was unable to report that she left the accused with a child in the room. On this, the Court of Appeal and this Court have consistently held that failure on the part of a witness to name a known suspect at the earliest available and appropriate opportunity renders the evidence of that witness highly suspect and unreliable. See Marwa Wangiti Mwita and Another vs. Republic [2002] T.L.R. 39. P a g e | 22 Conversely, in the present case, there is nowhere stated by any of the prosecution witnesses that PW5 ever named the accused person to have killed the deceased and that he left him with the deceased in the room. Third, the inconsistent nature of PW5 on what she herself testified she said at the police station and what she testified before this Court. On this, the Court of Appeal in Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008) (Tanzlii), the Court of Appeal held “In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter”. In my view, the inconsistency of PW5 evidence in this case is a material one and a matter of “great moment”. It is a decisive piece of evidence. It erodes the credibility of the witness and the prosecution case. The assertion by PW5 that she was told by her husband, the accused, that when asked, she should say that they left the child in the room and went to the bathroom together, in a serious case such as this, is too casual. P a g e | 23 Therefore, in totality, the evidence incriminating the accused person is the evidence of PW5, which was uncorroborated and circumstantial evidence as alleged by PW6, the investigator. From above, I am aware that the law is settled under section 143 of the Evidence Act, Cap 6, that there is no specific number of witnesses required for the prosecution to prove any fact – See Yonanes Msigwa vs. Republic [1990] TLR 148. What is important is the quality of the evidence and not the numerical value. However, in this case, the quality of PW5’s evidence is questionable due to the fact that her evidence was improbable, not credible, and inconsistent thus, corroboration was necessary. In Pascal Kitigwa vs. Republic [1994] T.L.R 65, it was held that; "Corroborative evidence may be circumstantial and may well come from the words or conduct of the accused and, in this case, the appellant independently corroborated the evidence of the co- accused." Therefore, corroborative evidence may be one, circumstantial or two, from the words and conduct of the accused person. P a g e | 24 Regarding circumstantial evidence as alleged by PW6, the investigator I start by citing the decision of the Court of Appeal in Sikujua Idd vs. The Republic, Criminal Appeal No. 484 of 2019 (Tanzlii), where it was held that; “It is unsafe to link the appellant with the final days of Idd s/o Buturumbe. There are so many loose ends for circumstantial evidence to convict the appellant. As we suggested in MARK S/O KASIMIRI V. R., CRIMINAL APPEAL NO. 39 OF 2017 (TANZLII), an accused person, before convicting on circumstantial evidence, must be the last person to be seen with the deceased. In the absence of a plausible explanation to explain the circumstances leading to death, he will be presumed to be the killer”. [Emphasis provided] In this case, the question is whether there is any corroborative evidence to support the evidence of PW5 or the guilt of the accused person. Having gone through the prosecution evidence, there is no evidence which points out that the accused person was the killer who caused the death of the deceased Mwita Charles. Even the investigator of the case (PW6), apart from mentioning that evidence linking the accused to the death of the deceased, failed to point out those circumstances which link the accused person with the murder. P a g e | 25 In fact, the issue of circumstantial evidence in PW6 evidence emerged in re-examination by a single statement that “the evidence to connect the accused and the killing is circumstantial”. Nothing was testified on the circumstances he identified in his evidence, which linked the accused person and the killing of the deceased. The investigator was supposed to collect evidence on the circumstances linking the accused to the killing and later testified in court. The Court of Appeal in Robinson Mwanjisi and 3 Others vs Republic (Criminal Appeal 154 of 1994) [2001] TZCA 28 (13 July 2001) (Tanzlii), it held that; “The purpose of the investigation is to collect facts and, later, to give evidence”. Therefore, due to the mischiefs elaborated above, the third ingredient is decided negatively that the evidence against the accused person linking him to the death of the deceased is not coherent; it is doubtful and weak. PW5 evidence is not credible, and PW6 evidence on circumstantial evidence was very weak. Having held as above, in the case of Galus Kitaya vs Republic (Criminal Appeal No. 196 of 2015) [2016] TZCA 301 (15 April 2016) (Tanzlii), the P a g e | 26 Court of Appeal established a cardinal principle of criminal law that the duty of proving the charge against an accused person always lies on the prosecution. Further, in the DPP. vs Ngusa Keleja @ Mtangi & Another (Criminal Appeal No.276 of 2017) [2020] TZCA 288 (11 June 2020) (Tanzlii), it was held that it is trite that the general duty of the accused person in criminal matters is only to raise doubt against the prosecution case and not otherwise. In this case, it is my settled view that the prosecution failed to prove the case beyond reasonable doubt. In the final analysis, the prosecution failed to prove the information preferred at the court for the offence of murder beyond a reasonable doubt because of the abovementioned reasons. Consequently, the information against the accused person is hereby dismissed. As a result, the accused person is acquitted and released forthwith from prison unless he is otherwise lawfully held. It is so ordered. P a g e | 27 K. D. MHINA JUDGE 06/12/2024 Court: Right to appeal explained. K. D. MHINA JUDGE 06/12/2024