criminal decision 2024 Charles Matale

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA CRIMINAL SESSION NO. 77 OF 2022 REP .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS CHARLES MATALE .............................. RESPONDENT / DEFENDANT JUDGMENT A. MATUMA, J JUDGMENT 7th & 22nd Oct. 2024 A. MATUMA, J. The accused person herein, CHARLES S/O MATALE, 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 his own biological mother one HONORATHA D/O CHRISTIAN on the 16th day of April, 2021 at Buhungu village within Chato District in Geita Region. To substantiate the charges against the accused person, the prosecution called and brought a total of seven witnesses while the accused person was the only witness for his defense. The prosecution brought PW1 (Julius Msese-hamlet chairman); PW2 (Timothi Tisambilwa-village chairman); PW3 (G.6744 D/CPL Elikana-officer on duty at the police station); PW4 (SP Haruni Kasubi-officer commanding station); PW5 (G.2068 CPL Daniel- investigator); PW6 (Yahaya Yasini-justice of the peace) and PW7 (Dr. Chacha Tubeti) During trial Mr. Godfrey Odupoy and M/S Kabula Benjamini learned state attorney represented the Republic while Mr. Paul Hombo learned advocate represented the accused. The summary facts of the case in accordance to the evidence of the prosecution witnesses is as follows; PW1 is the hamlet chairman of Buhungu hamlet. On the material day on 16/04/2021 at 19:30 hours he was at his home. The accused Charles Matale came to him and reported that his mother has been cut with pangas and died. He went to the crime scene and found the victim Honaratha Christian still alive but in a deteriorating condition. Thereat he heard the victim now the deceased saying; “Mwanangu Charles Umeniua”. They arranged for bodaboda to send the victim to hospital and directed the accused to pick his victim mother on the bodaboda and when the accused tried to carry the victim to the motorcycle, the victim now the deceased told him; Page. 1 Hon. ATHUMANI MATUMA “Unanipeleka wapi si umeamua kuniua?” With those words the accused Charles Matale fainted. They left him there and took the victim to hospital. PW2 the Village chairman on his part testified that on the material day while he was at the village centre received a phone call from the hamlet chairman (PW1) who informed him of the crime. He sent the Bodaboda for the victim to be taken to hospital. The victim was taken to Police for the PF3 under his supervision and he himself heard the victim lamenting; “Charles ameniua”. From the police they sent the victim to hospital but she passed away. PW3 is a police officer who was on duty on the material day and in this case, he merely issued the PF3 to the victim and recorded the victim’s statement but the victim was in a very bad condition. Such statement was not however tendered in evidence. PW4 was the Officer Commanding Station. He was the arresting officer in this case. Having been informed that it was the accused who killed the deceased, he summoned the village chairman to come with the accused to police and when they reported he arrested the accused and directed his subordinate PW5 to interrogate him. PW5 was the Police Officer who recorded the Cautioned Statement of the accused which was tendered in evidence as exhibit P1 and drew the sketch map of the crime scene which he tendered as exhibit P2. The cautioned statement reveals that the accused confessed the crime and explained that on the material day his children had gone to the Video Arena (banda la video). At home he remained him, his wife and his mother. He decided to send his wife to the market and thus he remained with his mother alone. Having remained himself and his mother, he took the panga and slashed her several times until when he became satisfied that she is dead. He then went to the lake to throw the Panga and went to report the matter to the hamlet chairman that his mother is slashed with pangas. The cautioned statement further reveals the motive behind the crime in that the deceased wanted to sell maize but the accused prevented her. The accused having prevented his mother from selling such maize he recalled the death of his four relatives (brothers) and his father in which his mother was associated with their respective deaths. He thus worried that his mother would bewitch him and kill him. He thus decided to kill her for his own safety. PW6 recorded the extra judicial statement of the accused which he tendered without objection as exhibit P3. The extra judicial statement’s contents are similar to that of the cautioned statement as revealed supra. PW7 is the Medical Doctor who examined the body of the deceased and established the cause of death to be Severe haemorrhage due to severe head injury. He further established that the deceased had sustained two huge cut wounds on the head with visible brain tissue. On the defence case the accused was the only witness. He testified that he did not commit the alleged offence. He further stated that on the crime date he had gone for fishing leaving behind his mother, wife and children. On his return he found his mother cut with pangas and decided to go and report to the hamlet chairman. He was later arrested along with PW2 the village chairman alleged for the murder in question but later PW2 was released. He was tortured and forced to sign the cautioned statement but he did not confess before the police. Page. 2 Hon. ATHUMANI MATUMA He further suspected that he was fabricated in this case by PW2’s family because they had farm grudges. He gave in detail the particulars of such grudges and tendered a letter of the Village Executive Officer (exhibit D1) to the effect that Maligarita Athumani and Rehema Athumani whom he alleged to be relatives of PW2 confessed to have threatened to kill him and apologised. That is the summary of the case for both parties. In criminal charges, it is the prosecution side which has 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 Honoratha Christian is actually dead and that she faced a violent death. The prosecution witnesses PW1, PW2 and PW7 all testified to have observed the dead body of Honoratha Christian and PW7 established that the deceased died out of severe bleeding due to severe cut wounds on the head. The Post Mortem Examination Report exhibit P4 is as well very clear to that effect. Even the accused collaborated such fact as he himself testified that his mother was cut to death and he attended at the mortuary for examination of the body of his deceased mother. Also, it is undisputed fact that whoever caused the death in question, caused it unlawfully and with malice aforethought. This is evidenced by the evidence of both parties in which it is established that the deceased sustained severe cut wounds on the head leading to severe bleeding with visible brain tissue. 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 with such death. None of the seven witnesses for the prosecution testified to have witnessed the accused committing the offence. The accused is only incriminated by a dying declaration of the deceased who is said to have named the accused as a person behind her death, the Cautioned statement and the extra judicial statement. The Cautioned Statement was bitterly disputed on the ground that it was procured after a severe torture and signed by force. In that regard the statement was received in evidence after a trial within trial. Such statement cannot therefore be acted upon without collaboration because it is a retracted confession. For the purpose of this case, the cautioned statement shall not be used against the accused. This is because he has bitterly disputed it and alleged severe torture and forced signature. Despite the fact that I admitted the document in evidence after being satisfied that it was actually made, the allegations of the accused cannot be completely ignored. The benefit of doubts is hereby resolved in his favour and thus the cautioned statement is not anyhow considered to determine the guilty or otherwise of the accused person. It is on record however, that the extra judicial statement of the accused was a freely and voluntarily made because the same was not objected, 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 his mother because he feared to be bewitched by the deceased who Page. 3 Hon. ATHUMANI MATUMA was alleged to have caused the deaths of four brothers of the accused and she was alleged to have been behind the death of the accused’s father. Just to quote part of the extra judicial statement the accused is recorded to have stated; “Mke wangu alienda kuhemea na watoto walikuwepo wameenda kwenye ukumbi wa video nyumbani akabaki mama na mimi ndio nikachukua panga na Kwenda anapolala nikamkuta anamenya viazi ndio nikamkata kwa panga kichwani mara nne akaanguka chini mimi nikaondoka Kwenda ziwani kutupa panga…….. Sababu ya kufanya hivyo (kumkatakata mapanga) ni kuhofia kurogwa kwa sababu mama alituhumiwa kuwaua kaka zangu wanne. Na mimi nilikuwa nimeuza shamba hela nikampa ikabaki Tshs. 200,000/= hiyo sikumpa akawa ananidai, pia alikopa vipande vitatu vya vitenge kwa Bela Kachila akawa anadaiwa ndio akataka kuuza mahindi debe tatu nikamzuia akakasirika ndio nilihofia asije akaniroga na mimi nikafa nikamwahi kumkatakata mapanga.” Such evidence was not challenged anyhow by the accused in the meaning that he accepted it as being the truthy. 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 P3 is further corroborated by the evidence of PW1, PW2 and PW3 who testified to have heard the deceased lamenting that it was the accused who was the cause of her death. PW1 for instance testified that at the crime scene he directed the accused to carry and put her mother to the motorcycle and when he did so his mother told him; “Unanipeleka wapi si umeamua kuniua?” PW2 and PW3 as well heard the same lamentations of the deceased against the accused. That is a dying declaration because the deceased uttered such words in a dying state. Although such utterances; “Mwanangu Charles Umeniua”, “Charles ameniua”, “Unanipeleka wapi si umeamua kuniua?” by themselves do not give a direct interpretation to the effect that the accused was the one who inflicted her to the injuries sustained, when such utterances are taken together with the extra judicial and the conduct of the accused at the crime scene as shall soon be demonstrated down here, we find that it was the accused who committed the crime in question. The accused raised some allegations of grudges between him and the family of PW2 suggesting that PW2 was not in good term with him and he was the one who fabricated this case to him but he did not allege any hostility with PW1 and PW3 who also heard the deceased naming the accused as her assailant to the crime at hand. In that regard I am satisfied that the deceased named the accused as her perpetrator to the crime and therefore the extra judicial statement which was not objected is well collaborated and thus establishing that the accused is the one who murdered the deceased. During the accused’s defence he was cross examined as to why he did not indicate any intention to call his wife and or his children who were present at home on the crime date to support his evidence that he did not commit the offence and was away for fishing, his reply was that he has lost communication with them and cannot reach them. To that effect, I invited him to give out their names and their physical addresses so that the court could assist to summon them for his defence for him to enter the defence to his satisfaction but the accused informed this court that he was not in need of any of them; “I have decided that my case be closed. No need to call them. I do not need them”. Page. 4 Hon. ATHUMANI MATUMA Despite the fact that the accused is not under duty to prove his alibi, it is legally expected for him to call those people he claims to have been with at the time of the alleged crime. See; Sijali Juma Kocho Versus Republic (1994) TLR 206. In the instant matter the accused in his defence testified that on the material day he went to the lake for fishing leaving behind the deceased, his wife and his children and on his return found the deceased murdered. Under the circumstances, it was expected that on the strength of the allegations made against him for the murder in question, he would have called at least one of his family members whom he alleged to have left at home with the deceased when he went for fishing so that to support him that the murder was committed in his absence. The said family member would have assisted to enlighten this court on how the crime was committed because they were left with the deceased alive. The accused however did not want any of them to be called as a witness and this alone suffices to draw an adverse inference that had any one of them appeared he or she would have testified against his favour. But again, the conduct of the accused at the crime scene collaborates further the prosecution case against him. According to the evidence of PW1 the accused was told to carry his victim mother to the bodaboda so that she is taken to hospital. He complied but when he picked her up, the deceased told him unanipeleka wapi si umeamua kuniua. With such words the accused dropped down and fainted. The accused both in his undisputed extra judicial statement and his affirmed evidence admitted that he fainted at the crime scene. In his evidence during trial for instance he testified; “We started to take my mother to the motorcycle but; Mimi nikasikia moyo unanibana nikadondoka”. In his extra judicial statement, he explained that he fainted after hearing his mother telling him to leave her die; “Tulipombeba mama akatamka kuwa unanipeleka wapi si uniache nifie hapahapa mimi ndio nikadondoka presha”. The act of the accused to drop and faint after the utterances of her mother is a collaborative fact that the accused committed the crime but it did not happen the way he had planned. The plan was to kill the deceased before other people gather at the crime scene. When he went to call the hamlet chairman, he was believing that the deceased is completely dead and in fact reported so to the hamlet chairman. But when the hamlet chairman came, he discovered that the deceased was still alive and informed them that it was the accused who was behind her coming death. That was a surprise to the accused which led him to faint. On the reasons I have demonstrated herein above, I am satisfied that the prosecution case is proved beyond any reasonable doubts against the accused person and thus find him (Charles Matale) 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 Charles Matale to a death penalty and in accordance to section 322 (1) and (2) of the Criminal Procedure Act, Cap. 20 R.E. 2022 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. Page. 5 Hon. ATHUMANI MATUMA MATUMA, JUDGE 22/10/2024 Dated at MWANZA ZONE this 23rd of October 2024. A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 6 Hon. ATHUMANI MATUMA