criminal decision 2024 Matokeo Petro Malila

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA CRIMINAL SESSION NO. 135 OF 2021 REPUBLIC .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS MATOKEO PETRO @MALILA .............................. RESPONDENT / DEFENDANT JUDGMENT A. MATUMA, J 26th Sept. & 2nd Oct. 2024 A. MATUMA, J. The accused herein Matokeo S/O Petro @ Malila, stands charged for Attempt to Murder contrary to section 211 (a) of the Penal Code (Cap.16 R.E. 2019). He is alleged to have attempted to murder one Joseph S/O Mhozi @ Kwezi on the 10th day of November, 2020 at night hours at Namsenga village in the District and Region of Geita. It was further alleged that he shot the above victim with a local made gun commonly known as Gobole on the right side of the chest thereby causing three penetrating wounds leading to bleeding and difficult breathing. The prosecution in discharging their duty of proving the charge against the accused person beyond reasonable doubts called a total of four witnesses namely Josephat Mhozi @ Kwezi (PW1), Helena Kafuku (PW2), Fikiri Mulamuzi (PW3) and Mathayo Malelemba (PW4) while the accused person fended for himself as DW1 and brought one witness namely Anastazia William (DW2). M/S Luciana Shabani and M/S Kabula Benjamini learned Senior State attorney and State Attorney respectively represented the Republic while Mr. Siwale Yisambi learned advocate represented the accused person. The summary of evidence for the prosecution goes this way; PW1 testified that on the material date at 22:00 hours having returned home from his activities entered to his toilet which is thirty meters away from his residing home. When he got out just six paces away, he saw the accused holding a local made gun (gobole). He asked him; “Bwana Matokeo kulikoni usiku huu” but the accused did not answer. He was then shot with bullets to his chest and that the crime took almost three to five minutes. Page. 1 Hon. ATHUMANI MATUMA About identification of the accused the witness stated that he saw the accused dressing “jaketi la rangi ya ugoro” and a black trouser and the accused is a well-known to him because he is the son of his biological Cousin and thus, they are family members. The witness stated the source of light which helped him in the identification to be solar light. To that effect he testified; “Nina sola kubwa pale nyumbani kwa ajili ya ulinzi wangu. Sola hiyo iko kwenye mlango wa nyumba yangu na inaweza kumulika umbali wa heka moja. Choo changu kiko mita thelathini kutokea kwenye mlango wa nyumba yangu” He then raised an alarm and the first responder was his wife Helena Kafuku (PW2) who assisted in raising alarm while the accused fled away. The witness finalized his evidence by stating that people gathered and he was taken to the healthy Centre but due to his bad condition he was referred to Bugando hospital where he got admitted for two weeks. The witness then gave out some historical background which might have been the motive behind the crime. He stated that after the death of his uncle Mzee Malila who was also the grandfather of the accused, the accused remained in custody of his grandfather’s beehives. Later the clan decided that such beehives be sold but the accused was resisting the sale. He bought the beehives (Mizinga ya nyuki) from the clan which angered the accused who in turn threatened him by telling him; “Ntaona nani ataimiliki” That he reported the threats to the local authority and they were summoned and the accused warned. He thought the matter was over and I continued with his businesses until when the accused came and shot him. PW2 on her part testified that on 10/11/2020 at 22:00 her husband PW1 returned home, changed the clothes and went to the toilet. She was outside boiling water. Later she heard a gunshot and the dogs started to bark while her husband was crying for help. She ran to him and met with the accused who was running to her direction holding a gun (gobole). According to her she identified the accused who was in the “ugoro” and black clothes and she asked him; “Matokeo mbona umemuua mume wangu? Amekukosea nini?” The accused did not answer. She went straight to her husband and found him injured. She raised the alarm and people gathered and took the victim to hospital. This witness also testified about the presence of solar light at her home which helped her to see and identify the accused; “tuna sola kubwa mlangoni inaelekea upande wa chooni” She explained that the accused is her son because he is the son of her husband’s cousin and have known the accused since his childhood. PW3 on his part testified that on the crime date he was the hamlet chairman but also acting village chairman. The crime was reported to him that night. He went there and saw the victim Josephat Mhozi @ Kwezi down on the ground near his toilet. He cooperated with bodaboda and other people to take the victim who was in bad condition to hospital. According to him, the victim told him; “Hali yangu ni mbaya, aliyenipiga risasi ni Matokeo Petro. Hata nikifa familia yangu ijue aliyeniua ni Matokeo Petro” Page. 2 Hon. ATHUMANI MATUMA The witness further explained to have known both the victim and the accused as his village members and had been their leader since 2009. The witness also explained about the beehives’ grudges between the two which was reconciled at the village authority. PW4 was a human doctor at Uyovu Health Center. He testified that on 11/11/2020 at 00:00 hours while on duty received Josephat Kwezi Mhozi being injured and complaining of breathing difficulties. That the victim was bleeding and had wounds on the right side of his chest. He noted that the patient needed further management as the health centre could not do the needful according to the condition the victim had. He thus referred him to Bugando Medical Center. That victim having been treated at Bugando and got healed he brought back to him the medical report from Bugando. He used the report and the examination he had personally made to fill the PF3 which he tendered in evidence as exhibit P1. The accused person on his part denied to have committed the alleged crime and explained that on the material date he was asleep at his home. His wife awakened him; “Amka usikilize nje kuna kelele kama mwano” He got out to hear the noises and discovered that they were from his neighbour Josephat Mhozi, now the victim. That he returned inside, took the club and went to the crime scene. At the crime scene he asked the crowd; “Kulikoni?” They replied to him; “Baba yako Josephat Mhozi amepigwa risasi” and told him that the said victim had already been taken to hospital. He went on that accordance to the village customs and rules, when an alarm is raised and the people gather at the crime scene, they all sleep there until the next morning. He thus slept at the crime scene and when it got morning the village authority required them to remain there until the arrival of police officers from Runzewe Police Station. Police came and interviewed the family. In the police vehicle he saw Mayemu Itete and Bahati Fokoro arrested but could not know where they were arrested but they were accused to have committed this same offence. Thereafter they dispensed. He was arrested five days later when he was at his mother’s village Msonga. He denied to have been in any quarrel with the victim Josephat Mhozi nor to have possessed the alleged gun. DW2 on her part testified that she is the wife of the accused. On the material day at 22:00 hours they heard an alarm (mwano). Her husband got out and saw torches at Josephat’s home. He went there and found Mzee Josephat already taken to Bugando. His husband now the accused then came back. She asked him; “Kulikuwa na nini”? Her husband replied; “Mzee Josephat amepigwa bunduki. Kesho asubuhi nitadamka niendepo”. She went on that on the next morning at 06:00 hours she accompanied her husband to the crime scene where the Ward Chancellor (Diwani John Mbuhi) said to the gathering; “waliolala kwenye mwano wakae pembeni na ambao hawakulala kwenye mwano wakae pembeni”. Her husband assembled to the group of those who did not sleep to the crime scene. It was decided that those who did not sleep at the crime be punished but later they were forgiven. That her husband stayed at home for almost five days and then went to his mother’s village for taking groundnut seeds. She was later informed by her sister-in-law that her husband is arrested. Page. 3 Hon. ATHUMANI MATUMA As a cardinal principle 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 therefore, had a duty to prove beyond reasonable doubt the following elements for the offence; That there were acts done which were unlawful, that the acts were intending to cause death of the victim, that the acts in the manner it was executed, were likely to cause death to the victim, and that it was the accused person who did such unlawful acts which resulted into an attempt to murder. There was no dispute that the victim Josephat S/O Mhozi @ Kwezi PW1 was in fact seriously injured by gunshot at the right side of his chest as evidenced by the prosecution witnesses. The PF3 exhibit P1 is also very clear to that effect. Not only that but also this fact is not disputed by the accused who is both a neighbour and relative to the victim. The accused and his wife collaborated that in fact the victim was injured and they themselves attended to the crime scene. Although they found the victim already taken to hospital at least they admitted to have been informed right away at the crime scene that the victim has been gun-fired. Therefore, I find that the prosecution sufficiently proved the actus reus and that the sustained injuries by the victim were very dangerous and could lead to his death. I also find that whoever caused the injuries in question, caused them unlawfully and had intended to cause death of the victim PW1 according to the unchallenged evidence of PW1 and PW4 in relation to the crime and the extent of injuries sustained. The victim was fired at the chest and sustained three penetrating wounds leading to severe bleeding. The only dispute therefore is, who attacked the victim to such extent. To the prosecution, it was the accused person who brutally attempted to murder PW1 while to the defense, the accused person is not in any way responsible for the alleged attack. As I have earlier on said, it is the prosecution side which retained the duty to prove the guiltiness of the accused to the crime alleged. Out of the four witnesses for the prosecution only two of them claimed to have identified the accused at the crime scene. They thus gave direct oral evidence whose propriety is visual identification. Visual identification has always been taken to be the weakest sort of evidence as at times witnesses may with the honest belief mistake the identity of assailants. See Waziri Amani versus The Republic (1980) TLR 250. It has even been decided in a number of cases that even when the witness is purporting to recognize someone whom he knows, the Court should always be aware that mistakes in recognition of close relatives and friends are sometimes made. See Shamir John verus The Republic, criminal Appeal no 166 of 2004. For visual identification to be a basis of a conviction, more so in serious crime like the instant one of attempted murder, such identification should eliminate all possibilities of mistaken identity and the court should satisfy itself that the evidence is absolutely watertight. Evidence on conditions favouring a proper identification is of utmost importance. In the present matter, PW1 and PW2 testified that the accused person was not stranger to them. They were very much familiar whereas the accused is their son born by the victim’s biological cousin. They are also neighbours. The familiarity and neighborhood were categorically accepted and collaborated by the accused himself and his witness. PW1 and PW2 stated that the source of light for their identification of the accused person was a bright solar light fixed at the door of the victim’s home which was illuminating the whole crime scene. They also explained Page. 4 Hon. ATHUMANI MATUMA that they were close to the accused at the time of identification. In the case of Anuary Nangu and Kawawa Athumani versus The Republic, Criminal Appeal no. 109 of 2006, there were similar facts to the case at hand. The Court of appeal discussed the circumstances under which Anuary Nangu and Kawawa Athumani were identified. It stated; “The testimony of the complainant PW1 on the identifying circumstances was the time taken to commit the offence, which was long, there was moonlight, the appellants lived in the same village and he had seen the appellants several times before. He was able to describe the types of clothes which each of the appellants wore when the incident took place.” The court of appeal then concluded that such identifying circumstances were favourable for correct identification; “The conditions for identification in this case, as gathered from the evidence were favourabble. The complainant knew the appellants before, they were staying in the same village and there was moonlight. He was also able to identify the types of clothes the appellants wore…. It took sometime before the offence was committed as the attack was proceeded by a conversation” In the instant case, the facts are identical to that of Anuary Nangu’s case supra. PW1 and PW2 knew the accused person prior to the crime. He is their son (the son of the victim’s cousin), a clan member, neighbour and village mate. There was solar light. The accused and his witness being the victim’s relative and a neighbour did not in their respective evidence dispute that there is solar light at the crime scene illuminating in the manner the witnesses have testified. PW1 and PW2 described the clothes the accused person wore at the time of the crime. They all stated in evidence that the accused had put on shati la rangi ya ugoro na suruali nyeusi. All these circumstances have been held to be favourable for correct identification as herein above quoted in Anuary Nangu’s case. I therefore find that the victim PW1 and his witness PW2 clearly identified the accused as the attacker to the crime in question. It has been decided in a number of cases that Favourable circumstances for unmistaken identity and the Fact that the accused is not a stranger to the witness, it is sufficient to convict. See Eva Salingo MT.6222421 PTE. Peter Magoti and MT.62218 Paschal Mgawe V. Republic (1995) TLR.220. The defence witnesses suggested that there was a delay to arrest the accused for almost five days and prior to his arrest some two other people namely Bahati Fokoro and Mayemu Itete were arrested on the same accusation. With due respect to this evidence, the accused was not the arresting officer to Mayemu and Bahati. He did not even know where and at what time they were arrested. He merely saw them in the police vehicle. Being seen in the police vehicle at the crime scene is not conclusive evidence that they were arrested on the same offence. The evidence of the accused and his witness thus remain to be a hearsay without any evidential value to be relied upon. About the delay to arrest the accused I also find that the victim PW1 was not the arresting officer. His role was just to earlier on disclose his attacker. He did so as testified by PW3 the village leader who testified that when he went at the crime scene the same night and found the victim on the ground injured, the victim told him in clear words; Page. 5 Hon. ATHUMANI MATUMA “Hali yangu ni mbaya, aliyenipiga risasi ni Matokeo Petro. Hata nikifa familia yangu ijue aliyeniua ni Matokeo Petro”. These words from the injured victim would amount to a dying declaration had he passed away. They are thus powerful suggesting that the victim mentioned the accused in the “dying” pain. At that juncture he was not better positioned to think and fix the accused to the crime. I thus find that whatever delay in arresting the suspect when the victim has already named him cannot be taken as an advantage to the crime doer against an innocent victim who has on his part discharged his duty of naming the suspect to the relevant authority such as Police or the local authority as happened in this case. Nevertheless, PW3 the local leader explained in evidence that the accused after the commission of the crime escaped from the village until when they got informed that he is seen at his mother’s village namely Msonga. When they got informed that he is at Msonga Village, they communicated with village leaders thereat and the accused got arrested. In the circumstances if there was any delay as put by the accused then it was because of his escape from Namsenga village. In the like manner the victim in this case who was nearly murdered should not be condemned for failure of other people to discharge their duties. Even though, there is no evidence suggesting any delay. Principally, every witness is entitled to credence and have his evidence accepted unless there are good and cogent reasons for not believing the witness. See Goodluck Kyando v. The Republic (2006) TLR 363. In the instant matter the prosecution witnesses seem more credible and reliable than those of the defence side. The prosecution witnesses gave coherent and consistence testimony while those of the defence contradicted on material aspects. That for instance, while the accused testified that he slept at the crime scene, his wife DW2 testified that he did not sleep there. He just went to the crime scene and returned home the same night and that is why in the morning he stood at the group of those who did not sleep at the crime scene. Under the circumstances either the accused or his wife was lying in his or her evidence. Their respective evidence is thus treated with a great caution. I find it incredible and unreliable. Not only that but also the prosecution evidence disclosed the motive behind the crime to be beehives as stated supra but the accused and his witness denied completely to have ever been in any grudge with the victim. If at all the accused had no grudges with the victim, then PW1 and PW2 had no reasons to fabricate him in this case of a serious offence taking into consideration that the accused is their biological clan son. I therefore, rule out that the prosecution case has been proved beyond reasonable doubts against the accused person. I accordingly find him guilty of attempted murder contrary to section 211 (a) of the Penal Code, Cap. 16 R.E. 2019 and convict him accordingly of the offence. Having convicted the accused persons as herein above, the parties contested for and against the sentence. The prosecution in its aggravated factors against the convict, fortified this Court to enter a stiff punishment to the convict. Page. 6 Hon. ATHUMANI MATUMA On the other hand, the learned advocate for the accused person mitigated for him stating that the accused is a first offender and has been in remand custody for almost four years, has four children and a wife whom depend on him and that the accused is still a youth for the development of the nation. I have considered all these aggravated and mitigating factors and I am of the firm view that the victim suffered a brutal attack as rightly submitted by M/S Kabula Benjamin learned State Attorney. He was nearly murdered by the accused. In that respect I cannot agree with Mr. Yisambi Siwale learned advocate that the accused being still a youth, the Nation depends on his manpower. The society and the Nation at large do not need manpower of Criminals. Likewise having dependants as mitigated by the learned advocate is not a favourable mitigating factor in sentencing as it was held in the Case of Alexander Mpelemba versus The Republic (1990) TLR 2. Dependants needs to see crimes are punishable so that they do not learn crimes from their breadwinners. The offence under which the accused is convicted carries the maximum sentence of life imprisonment. The learned advocate for the accused has pleaded that his client has stayed in remand custody for four years. I think the period spent in remand custody has been a good mitigating factor upon which a lenient sentence can be imposed. I therefore accept that the period of four years which the accused has spent in custody should be considered in his sentence to the instant matter. I do so and sentence the convict Matokeo Petro @ Malila to suffer a jail term of five years. I inform the convict that he has the right to appeal to the Court of Appeal of Tanzania against the conviction and sentence subject to the requirements of the Appellate Jurisdiction Act, Cap. 141 R.E 2019 and the Court of Appeal Rules, 2009 as amended. It is so ordered. A. MATUMA, JUDGE 02/10/2024 Dated at MWANZA ZONE this 2nd of October 2024. A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 7 Hon. ATHUMANI MATUMA A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 8 Hon. ATHUMANI MATUMA