criminal decision 2024 Kangwa LubinzaMzehe

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA CRIMINAL SESSION NO. 52 OF 2022 REP .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS KANGWA LUBINZA@MZEHE .............................. RESPONDENT / DEFENDANT RULING A. MATUMA, J RULING 16th & 16th Oct. 2024 A. MATUMA, J. The accused person herein, Kang’wa S/O Lubinza @ Mzehe, is indicted of Murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2019. He is alleged to have murdered one Juma S/O Nkonzwa on the 17th March, 2021 at Lyamchele village within Bukombe District in Geita Region. To substantiate the charges against the accused person, the prosecution called and brought a total of seven witnesses namely PW1 (Abdallah Mshilimu-Acting village Executive Officer); PW2 (Dr. Rudovick Andrew Rundiho); PW3 (Issa Msole Shabani-Ward Executive Officer); PW4 (ASP Tunde Isunja); PW5 (F.3032 Stg. Michael); PW6 (F.1568 D/Sgt. Erick) and PW7 (Daudi Kitwala). Having heard the evidence of all those witnesses, the prosecution closed its case and, in that regard, I have composed this ruling on whether or not the accused has a case to answer. Out of all those seven witnesses none of them pointed a finger of blame to the accused in the dock. In other words, the witnesses did not give any sort of evidence identifying the accused as perpetrator to the crime. PW1 for instance who was the acting VEO arrived to the crime scene soon as he got informed about the crime and found three victims assaulted one of them being seriously injured and later died. Thereat he asked the two surviving victims on whether they identified their assailants but the said victims told him; “Sisi huku ni wageni, hatuwajui watu waliotushambulia”. I think that is why even the surviving victims were not summoned by the prosecution as their witnesses because they had already declared that they didn’t identify the assailants. Page. 1 Hon. ATHUMANI MATUMA PW2 merely examined the deceased’s body and established the cause of death to be traumatic brain injury and severe hemorrhage. He had no evidence relating to the identity of the assailant. PW3 was the Ward Executive Officer. He recorded the extra judicial statement of the accused but such statement was not admitted in evidence for having contravened the Chief Justice’s Guidelines to Justice of the Peace. His evidence is thus not helpful as to the identity of the assailant. PW4 the police officer went to the crime scene and took the victims to hospital whereas the deceased passed away. He was later informed by OC/CID that he has been tipped by an informer of the persons who committed the offence. Among them was the accused in the dock. He went and arrested him. The said OC/CID was not however called as a witness to establish that the accused committed the said offence. The evidence of PW4 and even the information he received from OC/CID were hearsays which is not admissible in evidence. In the case of Idrisa Hamis and James Kanaku versus The Republic, Criminal sessions case no. 34 of 2020, this court held that; Courts of law will never convict a suspect on allegation that the police informer named him even if it is stated that such informer saw the accused committing the offence in the broad day light and that they are familiar to each other. In the circumstances the informer would be necessitated to turn into a witness and be physically available in the witness dock to be subjected to cross examination by the accused or his advocate. And for the court to assess his or her credibility and reliability…What if, it was that informer the actual perpetrator of the crime!” In the instant matter since there was no plausible evidence relating to the identity of the assailant, it was necessary for the prosecution to turn such informer into a witness for him to be physically available for cross examination by the defence. I cannot therefore rely on the statement that the police informer named the accused in the dock to incriminate the accused and or call him to enter his defence against the statement of an informer which is not even evidence on record. In fact, in James Kaliwa @ Mazi, Criminal Sessions Case no. 18 of 2020 in the High Court at Shinyanga, the police informer was later detected as the actual murderer who wanted to camouflage his crime by reporting to police a murder incident incriminating innocent people. The investigation including scientific evidence later revealed that such informer was the actual killer. He was convicted of the offence which he had himself purported to report as an informer. We cannot therefore risk justice by statements of informers. PW5 had only one role. He took the accused to the justice of the peace and had no more. PW6 recorded the Cautioned Statement of the accused. Such Statement was not admitted in evidence for having contravened the provisions of section 57 (4) (b) of the Criminal Procedure Act. PW7 was the only witness whom the prosecution expected to give the evidence of identification against the accused because he had mentioned him in his declaration statement. The witness however denied to have seen the accused committing the offence. He only mentioned one Maneno and Hanga among those he saw assaulting the victims including the deceased. To that effect he testified that; “I identified only two assailants Hanga and Maneno who were assaulting the deceased……Ambao niliwatambua wakiwa wanashambulia walikuwa wawili, nilipiga simu polisi baada ya kuwa wameshindwa kunielewa” Page. 2 Hon. ATHUMANI MATUMA It is upon such evidence the prosecution attempted to turn this witness as their hostile witness because he contradicted his previous statement at police in which he had named the accused among the perpetrators of the crime. This court however rejected to treat the witness as a hostile because it doubted whether he was a free agent at the time of making such statement because the witness testified that he was himself incarcerated for six days accused to have been behind the crime for his failure to stop the villagers to assault the victims including the deceased. The statement also was recorded in contravention of section 10 (3A) of the CPA in the meaning that it was not read to the witness nor it was given to him for him to read it by his own so that to enable him to verify whether it was recorded truly in the manner he intended or could make any changes in it. In that respect the accused has not been identified anyhow to have participated in the crime. In the case of Director of Public Prosecutions versus Morgan Maliki and others, Criminal Appeal No. 133 of 2013, the Court of Appeal held that the court should call the accused to enter his defence only when at the closure of the prosecution case, all the ingredients of the offence have been sufficiently proved. In the instant case, not only the identity of the assailant has not been established but also the identity of the deceased is as well questionable. According to the information/charge and Post Mortem Report exhibit P1, the deceased was Juma Nkonzwa but one of the witnesses PW4 named the deceased as Juma Ng’onzo. In in the case of Seko Masalu @ Makoye versus Republic, Criminal Appeal no. 482 of 2020, the Court of appeal dealing with a matter similar to the instant one doubted the identification of a stranger deceased in the crime scene. It held that the body found at the crime scene being that of the stranger was not adequately identified as being that of the deceased referred in that case. The witnesses in that case referred the deceased as Said but the deceased in accordance to the charge and evidence was Ramadhani Said @ Mchafukuoga. The court doubted whether the name Said could be the same as Ramadhani Said @ Mchafukuoga and acquitted the accused on that ground. In the same way in this case the deceased according to the charge as I have said earlier is Juma Nkonzwa as similarly pointed out in the Post Mortem Report. It was Gaudensia Andrea and Bahati Manyanda who identified the body to the doctor during Post Mortem Examination as being that of Juma Nkozwa. Unfortunately, those who identified the deceased during examination of the body were not summoned to explain how they identified a stranger deceased in the locality. The question as to whether the deceased in this case was sufficiently identified is left uncleared. In the case of Murimi V. R. [1967] 1 EA 542, the court held that it would be wrong to call the accused to enter his defence if the prosecution case is left with gaps as by doing so it is to find out the defence of the accused to fill in the gaps and that by doing so it would be shifting the burden of proof. In the instant case there is no any sort of evidence to the identification of the accused person as perpetrator of the crime. Calling him to enter his defence is to fish out whether he shall identify himself as the assailant who murdered the alleged deceased and reconcile the names Juma Ng’onzo and Juma Nkonzwa. Being obedient to the Court of Appeal decisions, I won’t call the accused person to come and enter his defence in the case which has not established his identification as the crime doer. Page. 3 Hon. ATHUMANI MATUMA Even the crime date is questionable. The charge indicates that the crime was committed on 17th March, 2021 but the evidence on record shows that the crime was committed on 17th March, 2022. Whether the crime was committed in 2021 or 2022 the prosecution did not reconcile. The post Mortem report shows that the examination of the body was made on the 18th March, 2022. Was it examination of the deceased who died in 2021 as per information or examination of the body of the deceased who died in 2022? That was not reconciled. I therefore under Section 293 (3) of the Criminal Procedure Act, Cap 20 R.E. 2022 find that the accused person Kang’wa Lubinza @ Mzehe is not guilty of the offence of murder contrary to Section 196 of the Penal Code, Cape 16 R.E 2019 as he stands charged. Therefore, I acquit him and order his immediate released from custody. It is so ordered. A. MATUMA JUDGE 16/10/2024 Court: Right of appeal explained. A. MATUMA JUDGE 16/10/2024 Dated at MWANZA ZONE this 17th of October 2024. A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 4 Hon. ATHUMANI MATUMA