criminal decision 2024 Zawadi Sprian

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA CRIMINAL SESSION NO. 58 OF 2022 REP .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS ZAWADI SPRIAN .............................. RESPONDENT / DEFENDANT JUDGMENT A. MATUMA, J The accused person herein; Zawadi S/O Sprian, is indicted of Murder contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2019. He is alleged to have murdered a watchman at the village business center one Salvatory S/O Francis on the 19th day of November, 2021 at Buganzu village within Bukombe District in Geita Region. To substantiate the charges against the accused person, the prosecution paraded a total of nine witnesses and tendered twelve exhibits while the accused person was the only witness for his defense with no exhibit to tender. The summary facts of this case are to the effect that; on 18th November, 2021 the deceased who was a watchman at the business center of Buganzu village at about 21:00 hours reported on duty as usual. He had his small radio which is also having a torch. At that night PW4 Desderius Leonce Charles closed his shop and handled it to the said watchman. He then went home to kill his night. At the dead night the watchman was invaded by thugs who murdered him, broke the shop and stole various properties. Early in the morning on the 19th November, 2021 the crime was detected as the watchman was found dead thereat and various properties stolen. On the same day at the evening hours police got informed that there was a suspect at Sizya Guest House. They hurried there and arrested the accused who had rented room no. B2. They searched him and found him with various properties namely; A small bag referred to as begi la mgongoni (exhibit P2), A small Radio (exhibit P3), two Tecno mobile smart phones (exhibit P4), 17 lines of airtel (exhibit P5), two phone chargers (exhibit P6), one Tigo line (exhibit P7) and two phone Batteries (exhibit P8). PW2 Dafroza Kizozo the deceased’s widow identified the radio exhibit P3 as her husband’s property which he used at his work as a radio but also as a torch. PW4 Desderius Leonce Charles also identified the rest of the exhibits serve for the bag as being stolen properties from his shop at the crime scene. It is upon this background the accused was arraigned for this offence. During trial the prosecution was represented by M/S Kabula Benjamin, Mr. Godfrey Odupoy and Mr. Robert Neophitus learned state attorneys while the accused enjoyed the service of M/S Martha Nicholaus learned Page. 1 Hon. ATHUMANI MATUMA advocate. The summary evidence from the prosecution witnesses is as follows; PW1 Herman Msafiri Siyengo was the village Executive officer of Buganzu village. Early on 19/11/2021 he got informed of crime and went there where he found the watchman murdered and the shop broken. He reported the crime to Runzewe police. PW2 Dafroza Kizozo the deceased’s widow testified to the effect that her deceased husband had gone to his work on the night of 18th November, 2021 with his small radio which was in blue colour. It had also a local made mark in which it was written letter “F” to mean Furaha their daughter. It had also red dots put by her child. In the morning, she was informed of the crime and that her husband is dead. She identified the body of her deceased husband and later in the evening she identified the radio at police. PW3 Inspector Zephania Munisi was the investigator Incharge at Runzewe police station. He was also acting OCS of such station. On 19/11/2021 in the morning at 07:00 got a phone call from VEO Ruganzu Mr. Herman and informed of the crime. He went to the crime scene and found the dead body scattered with blood. They took the body to Uyovu Healthy center for Post Mortem Examination. The examination of the body was made by Dr. Emmanuel who then filled the Report which he took after the examination. This witness tendered in evidence the Post mortem Report as exhibit P1. The said report reveals that the cause of death was due to excessive bleeding due to cut with sharp instrument at the skull. It further shows that the deceased sustained a wound at the occipital to the skull which got fractured. The witness further testified that on that very day of 19/11/2021 in the evening at 16:30 hours he got informed that there was a suspect at Sizya Guest House. He took police officers and went to that Guest. He searched room no. B2 in the presence of an independent witnesses one Yusta Edward. In that room he arrested the accused and found him with the properties named above exhibits P2 to P8. He recorded the said properties to the seizure form and seized them. He tendered in evidence such exhibits and the certificate of seizure as exhibit P9. PW4 Despderius Leonce Charles as I have said earlier owned a shop at the crime scene. He testified that at his shop he was registering lines, charging phones, selling phone accessories and sell button phones. He also works as an M-pesa Agent. He further testified that on 18/11/2021 at 21:00 hrs he handled his shop to the watchguard now the deceased and went home to sleep. In the next morning he was informed that his shop is broken and the watchman murdered. He went there and found his watchguard dead scattered with blood, his shop broken and his properties stolen. The stolen properties were cash money Tshs. 600,000/=, five smart phones make tecno, three small phones which he was using for M-pesa transactions, 17 new airtel lines which he was using for registering numbers and one tigo line. 18 Phone batteries and phone chargers were as well stolen. On the same day in the evening hours, he was called to police. Thereat he was asked if he could identify his stolen properties and he told them that he could identify. He then disclosed his identifying marks whereas on the stolen phones which he was charging, he was plastering them with stickers; “Nilikuwa naandika majina kwa peni kwenye stika halafu nabandika nyuma ya simu Page. 2 Hon. ATHUMANI MATUMA zilizoletwa kuchaji” He then identified two smart phones with their stickers and names of his clients Furaha and Elias which he had personally written. This witness identified such phones in this court as well. He also identified the rest of the exhibits. He also identified the deceased’s radio stating that he used to charge it, it was blue in colour and had a torch. It had a local made mark “F”. PW5 Yusta Edward Muhozya was an independent witness whose evidence is to the effect that she witnessed the search to the guest house and saw the accused arrested and found with the herein named properties. She identified the certificate of seizure exhibit P9 by her name and signature. She also identified the other exhibits as per seizure form. PW6 H.8179 CPL Joseph in this case he merely took the accused to the justice of the peace for extra judicial statement. PW7 E.8995 Sgt Didas at Bukombe police station was exhibit keeper. His evidence was relating to how he received the exhibits supra, kept them up to when they were needed to court for trial of this case. He identified such exhibits in this court. PW8 E. 5914 D/Sgt Adrian drew the sketch map of the crime scene exhibit P10. He also participated in the arrest of the accused and the seizure process. He then recorded the accused’s cautioned statement exhibit P11 which was tendered in evidence after a stiff battle through a trial within trial. In the cautioned statement the accused is recorded to have confessed to murder the deceased in a company of his fellows namely Emmanuel, Baraka, Shinje and Salumu. PW9 Charles John is a retired Ward Executive Officer and justice of the peace. He recorded the extra – judicial statement of the accused which he tendered in evidence without objection as exhibit P12. In the said statement the accused is recorded to have confessed the crime and explained that it was him who striked the deceased with a wood and that they decided to kill him to avoid being identified. Thereafter they stole various properties and parted until when he was arrested at the guest house. The accused person Zawadi Sprian (DW1) on his part during his defence denied completely to have committed the crime and gave a different story altogether as to how he got arrested and fabricated into this case. He testified that on that material day on 19/11/2021 he was at the Grocery which is joined to Sizya Guest House with his two friends. Thereat came the hamlet chairman and arrested them because one of them was smoking cannabis (bangi). That the hamlet chairman sent them to police. At police each was demanded Tshs. 50,000/= to be discharged. His two fellows paid the requisite money but he on his part had no money. In that respect the two were released while he himself was thrown into this accusation hence fabricated into this case as he heard the police speaking; “Huyu ambaye hana hela ndiye anatakiwa abebe mzigo wote huu kwa sababu hajajiwekeza” Page. 3 Hon. ATHUMANI MATUMA The accused further testified that he lamented to police; “Hiyo kesi mimi siijui. Kesi iliyonileta hapa ni ya uvutaji wa bangi hadharani” but the police ignored him and started to torture him forcing him to confess this crime which he did not commit. He went on that, even the hamlet chairman who arrested him came to police after having heard that he is fabricated into a murder case and told the police; “Huyu mtu nimemkamata mwenyewe, kesi niliyomkamatia ni ya uvutaji wa bangi hadharani. Hii ya mauaji mimi siijui” According to him police became angry against the hamlet chairman and told him; “Sasa kama wewe unatunza watu wa namna hii, labda wewe ni mmoja wao utueleze….hatumuachii, dhamana hamna, ataenda atokee huko mbele” That is the summary of the evidence for both parties and it is now my turn to determine whether the prosecutions have managed to prove this case against the accused beyond any reasonable doubts and or whether the accused’s defence has casted any reasonable doubts against the prosecution case. In criminal charges, it is the prosecution side which retains the duty to prove the charges against an accused person beyond any reasonable doubts. It is not for the accused person to establish his innocence. This responsibility never shifts throughout. The prosecution in this regard had a duty to prove beyond reasonable doubts the following elements: That the named deceased is actually dead; That the death was not natural; That the death was caused by an unlawful act or omission; That it is the accused person who did the unlawful act or omission and that the death was caused with malice afore-thought in the meaning that the accused intended to cause such death. In accordance to the facts and evidence on record, there is no dispute that the deceased Salvatory Francis is actually dead and that he faced a violent death. The prosecution witnesses PW1, PW2, PW3, and PW4 all testified to have seen the dead body of Salvatory Francis with severe wounds. PW1 the Village Executive Officer, PW2 the widow of the deceased, and PW4 the employer of the deceased all identified the dead body as being that of Salvatory Francis. The medical evidence has sufficiently established that the death was not natural as the cause of death was due to excessive bleeding due to cut with sharp instrument at the skull. The Post Mortem Report exhibit P1 further shows that the deceased sustained a wound at the occipital to the skull which got fractured. In that respect I find that it is undisputed fact that Salvatory Francis is actually dead and whoever caused his death caused it unlawfully and with malice aforethought. The only dispute therefore is who killed the deceased. To the prosecution it was the accused who brutally murdered the deceased but to the defense the accused is not responsible for such death. None of the nine witnesses for the prosecution testified to have witnessed the accused committing the offence. The accused is only incriminated by his Cautioned statement, his extra judicial statement and the doctrine of recent possession. The Cautioned Statement was however bitterly disputed on the ground that it was procured after a severe torture and a forced signature. Such laments of the accused were the reason why I received the cautioned statement in evidence after a trial within trial. For the purpose of this case, the cautioned statement shall not be used against the Page. 4 Hon. ATHUMANI MATUMA accused. I have decided so just to relief the accused for his bitter cries that the statement was involuntarily procured. I find that there is other evidence on record which was not contested the way the cautioned statement was contested. Such evidence can be safely used to meet justice to both parties without risking justice by using the cautioned statement which although was received in evidence it was bitterly contested. The extra judicial statement of the accused was a freely and voluntarily made because the same was not objected during its admission in evidence and the justice of the peace was not cross examined to impeach his credibility and or the credibility and reliability of the document itself. I therefore treat it as a none disputed evidence against the accused. In it the accused confessed to have murdered the deceased in a company of other fellows for the purposes of effecting theft. Under the circumstances I have no reason to disbelieve such evidence and I take it that the accused confessed before the justice of the peace to have murdered the deceased in this case. The extra judicial statement Exhibits P12 is corroborated by the evidence of PW3 and PW8 who testified to have arrested the accused at the guest house of Sizya and seized exhibits P2 to P8 which were later identified to have been stolen at the crime scene during the murder in question. Their respective evidence was as well collaborated by the certificate of seizure exhibit P9 which the accused did not dispute to have signed or even allege to have been forced to sign it. Further collaboration was given by PW5 who was an independent witness at the search and seizure. This witness saw the accused being arrested by PW3 and PW8 and witnessed the search in which the accused was found in possession of the stolen items supra. The accused apart from giving a different story as to how he became fabricated into this case, did not contest the evidence of search and seizure and the extra judicial statement. I therefore conclude that the accused was found with the stolen items supra which were sufficiently identified by PW2 and PW4 to have been stolen from the crime scene. The deceased was murdered in the cause of stealing such itemised exhibits. The question is thus; whether the accused was found in recent possession of such properties to constitute the doctrine sufficiently to link the accused to the murder in question. Recent Possession as a circumstantial fact against the accused has its own ingredients as per the case of Alhaji Ayub Msumari & Others versus Republic, Criminal Appeal no. 136 of 2009 CAT which held that; “Before the court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case….it must positively be proven, first, that the property was found with the suspect, secondly, that the property is positively the property of the complainant, thirdly, that the property was stolen from the complainant and lastly that the property was recently stolen from the complainant’ In the instant case in respect of the first element whether the property (exhibits P2 to P8) was found with the suspect, the prosecution lined up three witness PW3, PW5 and PW8. PW3 and PW8 were the arresting officers who explained as per their reviewed evidence herein above. They arrested the accused in room no. B2 at Sizya Guest house and having searched him they found such properties. Certificate of seizure exhibit P9 speaks for itself to that effect. Their evidence was supported by that of PW5 an independent witness who was at the Guest that moment and was involved in the search and seizure. Page. 5 Hon. ATHUMANI MATUMA The accused on his part did not offer any explanation on how he became into possession of such exhibits. Instead, he gave a general denial to the offence. His general denial did not in any manner shake the prosecution evidence against him due to the settled principle that every witness is entitled to credence and have his evidence accepted unless there are good and cogent reasons for not believing him. See; Goodluck Kyando versus Republic (2006) TLR 363. General denial has at no time been taken as a good reason for disbelieving the witness who has given unshaken evidence as it happened in the instant case whereas there is no any suggestive fact to disbelieve the three witnesses, PW3, PW5 and PW8. This is because neither of them was familiar to the accused nor there was any grudge between them. The accused’s story on how he was arrested and got thrown into this case cannot therefore stand and accordingly rejected. The second element for determination on the doctrine is whether the property was positively proved to be the property of the complainant. For this matter, whether exhibit P2 to P8 were positively proved to be the properties of the complainant stolen in the course of the murder in question, there is the evidence of PW2 and PW4. PW2 identified the radio exhibit P3 as the property of her deceased husband which the deceased took when he went to his work. Such radio had a written letter “F” which was locally drawn by the deceased himself. PW2 explained that such letter was symbolising the name of their daughter Furaha. She said that the deceased used such radio at his work to listen and as a torch since the radio had a torch. She also identified it by colour and red spots put by her child. PW4 also identified such radio as the property of the deceased because he used to charge it in his shop. Other exhibits such as two smart phones were identified by PW4 as being the properties of his clients which he had received on the material day to charge. He plastered them with stickers and wrote the names of his respective clients. He then put them on charge and left the deceased to guard them among other properties that night. The witness identified also the rest properties such as chargers, phone lines and phone batteries. The identification of all these properties as the properties owned by the deceased and PW4 and the fact that they were stolen from the crime scene in the cause of murder was not in any manner disputed by the defence side. To that effect the third element on whether the property was stolen from the complainant is answered in the affirmative as well. The last element is whether the property was recently stolen from the complainant. On this it is on record that the crime was committed on the dead night of 19th day of November, 2021 and the stolen properties were found in the same day at evening hours. It was hardly some hours from the time they were stolen. With the herein analysis, the doctrine of Recent Possession has been sufficiently proved against the accused person, and it alone even in the absence of any other evidence suffices to find him guilty of the murder in question as it was held in the case of Manazo Mandundu versus The Republic (1990) TLR 92. During the accused’s defence he was cross examined as to why he did not indicate any intention to call the hamlet chairman and other people he had named to know the truth of his arrest and the fact that this case was fabricated against him for them to support his evidence that he did not commit the current offence and was arrested because of a different crime altogether. His reply was that he was told by the police that an accused has always no witness but the complainant. Just to quote him, he testified that the police told him; “Mtuhumiwa hanaga shahidi ila mlalamikaji ndo huwa anakuwaga na shahidi” Page. 6 Hon. ATHUMANI MATUMA With such statement I informed him that the court is duty bound to assist him to summon the witnesses of his choice and he should not work on statements made by police if truly they informed him as such. I invited him to give the names of his witnesses and the particulars of their addresses so that we issue summonses to them. The accused named Gregory the hamlet chairman and one Charles. He gave out the phone numbers of Charles but when I was about to adjourn the case and issue summonses to such witnesses, the accused changed his mind and told the court; “Kwa wazo langu nilikuwa naona bora tufunge ushahidi tuendelee na mambo mengine mheshimiwa. Naona mzunguko utakuwa mrefu” To ensure that the accused gets a fair trial and should not close his case by being necessitated by matters beyond his control, I returned to his advocate to find from him whether the accused was really intending his case to be closed without calling his witnesses. His advocate replied; “When I communicated with the accused, he wanted me to advise him. I advised him accordingly and told him to choose between closing his case or wait the witnesses. He opted to close the case and has indicated that even the phone number of Charles is doubtful. I thus pray the defence case be marked closed”. To that effect, I find that the accused’s defence has not casted any reasonable doubts against the prosecution case to the effect that the deceased was murdered on the night of 19/11/2021 and various properties stolen from him. That the accused was arrested on the same day just few hours after the crime and was found in possession of the stolen properties which were sufficiently proved to have been stolen in the cause of the murder in question. The defence has as well not casted any doubt against the evidence of the justice of the peace and the extra judicial statement which was admitted in evidence without objection. On all these reasons, I am satisfied that the prosecution case is proved beyond any reasonable doubts against the accused person and thus find him (Zawadi Sprian) guilty of murder contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2019 and convict him accordingly of the offence. Since there is only one sentence against the person convicted of murder under section 197 of the Penal code supra, the mitigations made by the accused’s advocate cannot help because the sentence is not discretional. I therefore sentence the accused person Zawadi Sprian to a death penalty and in accordance to section 322 (1) and (2) of the Criminal Procedure Act, Cap. 20 R.E. 2019 I direct that he shall suffer death by hanging. I further under section 323 of the CPA supra inform the convict that he has the right to appeal to the Court of Appeal of Tanzania against this judgment and that the period available for him to appeal is sixty days from the date of this Judgment. It is so ordered. MATUMA, JUDGE 22/10/2024 Dated at MWANZA ZONE this 23rd of October 2024. Page. 7 Hon. ATHUMANI MATUMA A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 8 Hon. ATHUMANI MATUMA