republic v badatu kasanga kapina and another 2024 tzhc 207 31 january 2024

IN THE HIGH COURT OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT IJC MOROGORO CRIMINAL SESSION CASE NO. 20 OF 2023 REPUBLIC VS BADATU KASANGA KAPINA ACCUSED MASONGA PAUL MJANGU 2"'' ACCUSED JUDGEMENT JANUARY 2024 L. MANSOOR. J. The Accused persons Badatu Kasanga Kapina "Badatu" and Masonga Paul Mjangu "Masonga" were prosecuted with the Offence of Murder contrary to Sections 196 and 197 of the Penal Code(Cap 16 R: E 2022). Brief facts of the case as per the prosecution is that on the night of 4*^^ September 2022, at around 20.00 hrs to 21.00 hrs KDA BUNDALA and her daughters, MINZA MABULA and MAGRETH MABULA MASEBU were in their house located at Idunda Area, Madabadaba Village, Itete • Page 1 of27 Ward within Malinyi District in Morogoro Region. Kija Bundala and Magreth Mabula were asleep while Minza Mabula was still awake. According to the unrebutted evidence of eye-witnesses Minza Mabula, that night at about 20.00 hrs., two people armed with machete and a stick, raided the house. One entered the house while another stood at the door keeping guard, the one who entered the house had a machete, he used the machete to slash the two deceased on the head, and several parts of the body, Minza Mabula was also attacked with the machete and she got injured, they cut off her nose, on the head and on the left chick. Minza Mabula did not die. Minza Mabula could not identify the bandits as she was only visiting, and she was not the resident of the rea where the killing occurred. Kija Bundala and Magreth Mabula Masebu were killed on the spot. According to another eye witness Jisenza Siga Mabula (PW6 Jisenza), he said the criminals saw him standing outside, he identified both by using his big torch, he said Badatu was holding a stick and he was standing at the door while Masonga who was holding a machete entered the house. Jisenza ran to the neighbors and raised an alarm. Page 2 of27 thereby attracting to the scene a large number of village people. By the time the Villagers and Neighbors arrived to the scene, they did not find the bandits, but found the two women already slashed to death, while Minza Mabula injured. A report was lodged of the occurrence of the incident that very night at 11 o' clock by the village leaders but no one mentioned the names of the dacoits to the police when the police arrived at the scene, in the morning of September, 2022, Investigation by the police started without delay. Badatu, was arrested on the 17th September, 2022 while Masonga was arrested on 23'"^ September, 2023. None of the witness who appeared in court could mention the motive of the occurrence. Both the deceased died on the spot. The postmortem was done by PW4 one Cliff Mapesa Mchanagandi on the 5^^ September, 2022 at the crime scene. No machete or sticks were recovered from the accused persons, it was stated by PW3, Matano Kitwana Matano, the police investigator that Badatu Kasanga Kapina, the 1^ accused wanted to make a confession, and so he took him to the Justice of Peace, Hon Gloria Godson Marijani, Page 3 of27 the Primary Court Magistrate for recording his confession. Hon Gloria Marijani did not give any evidence regarding this fact, and no extra judicial statement of Badatu was tendered in court as evidence. On behalf of the prosecution, 6 witness have been examined while marking 3 exhibits, which are the sketch map of the crime scene, the Postmortem Examination Report of Kija Bundaia, and the Post Mortem Examination Report of Margret Mabula Masebu. The accused persons gave their own defense, they did not lead any witness or any exhibit. PW5 Minza Mabula is the de facto complainant forming the eye witness to the case along with PW6 Jisenza Siga Mabula . PW5 is the sister of one of the deceased i.e. Magreth Mabula, and a daughter of Kija Bundaia, also the deceased. PW6, is also a relative of the deceased, he calls Magreth Mabula an aunty, and Kija Bundaia his grandmother. PW4 Cliff Mapesa Mchanagandi is the doctor who conducted the postmortem and gave his opinion. The other witnesses are the iofficial witnesses including the three investigating officers, PWl,PW2 and PW3. Of these witnesses, PW3 Matano Kitwana Matano who was the one to undertake the investigation, and who took Badatu Page 4 of27 to the Justice of Peace for recording his confession. PW3 was recalled to tender the statement of Senge Lufunga, the witchdoctor whose statement shows that Badatu went to him for healing and to whom Badatu confessed that he has killed the two women, and that the incident haunted him. Senge Lufunga's statement was received under Section 34 B of the Tanzania Evidence Act, as his whereabouts were not known, and efforts to find him proved futile. During the questioning by the Court under Section 293 of the Criminal Procedure Act (CPA), all the accused made a simple denial, though incrementing materials both oral and documentary, were brought to their notice. Badatu said on the date and time of the incident he was at his house at Madabadaba Village with his family, he also said he heard the noises coming from the neighbors, from the house of Mwanamasebo (the house of the deceased), the deceased were calling for help, he said he went to the deceased house for offering the help. He found a lot of people at the scene, he remained at the deceased house, he slept there until the next day. The next morning i.e. on September, 2022, Page 5 of27 Badatu and the other villagers called the police from Malinyi, the police came with the doctor. The Doctor examined the two bodies of the deceased, and later they were allowed to bury them. He said, they buried the bodies at around 17.00 hrs on the 5^*^ September, 2022, and went back home on the September, 2022. He also said Jisenza, the eye witness who claims to have seen him committing the crime saw him at the funeral, he saw him involved in the funeral, and he also saw him when he responded for the calling of help. He also said, if it is true as stated by Jisenza (PW6)that he saw him committing the crime, and had identified him, why he did not tell the police immediately, why he waited for days later to tell the police that he had seen and had identified him committing the murder of the two women. Regarding, the witchdoctor, Senge Lufunga, Badatu said he does not know Senge Lufunga, and never went to him for any medication or help, and that he heard the name of Senge Lufunga for the first time in Court, when the statement of Senge Lufunga was tendered. He also said he never confessed to police or even to the Justice of Peace. He Page 6 of27 said while at the police he was beaten and tortured, the police forced him to confess, but he never confessed. Masonga Paul Mjangu also gave his own defense. He said Kija Bundala was her i neighbor, and she is dead, and that Kija Bundala was murdered on the night of 4^^^ September, 2022. He also said on that time and date, he was at his house with his family, and he heard the cry for help "mayowe" or "mwano" and went to the crime scene. He saw Jisenza (PW6) standing outside the house with the other youths, him and other elders entered the house. He saw the two women already dead but Minza Mabula (PW5) was injured. He found a bodaboda to help Minza get to the hospital. He remained at the scene till the next morning of 5^^ September, 2022, the police from Malinyi arrived at the scene, and the Doctor examined the bodies, then the police left. The police did not know who committed the crime, and nobody mentioned anybody to the police. The police left their telephone numbers for contacting them if anyone from the village gets any information. The bodies were buried, and Masonga participated in the funeral. He stayed at the deceased home for three days, then he went back home. The police went back to the crime scene three days Page 7 of27 after the incident, they went to give their condolences, and they found him still there. He left after the police left. He said he was apprehended by the police on 23 September, 2022, about 20 days after the incident. He said, ; Jisenza, the eye witness who claims to have seen and 1 identified^ him, never informed the police on the day the police went to the village, he never informed the police even after they went back, three days after the funeral. He also claimed to have been tortured by the police forcing him to confess but he never confessed. They both denied having known each other. In this case, there is the evidence of one eye witness who implicated the accused persons, the evidence of Jisenza Siga Mabula who gave his evidence as PW6. There is also the Statement of the witchdoctor one Senge Lufunga to whom Badatu confessed, which was tendered by PW3 Under Section 34 B of the Tanzania Evidence Act. I shall first consider the evidence of PW6, Jisenza Siga Mabula. It be noted that the injured eye-witness, Minza Mabula (PW5) was of no material ds she did not recognize the bandits. Page 8 of27 While appreciating the evidence of PW6 Jisenza, as the only eye witness who identified the accused persons having committed the crime, but delayed providing the information to the police, I shall evaluate his evidence to see whether his evidence is wholly reliable, or wholly unreliable or neither wholly reliable nor wholly unreliabje. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. Section 143 of the Tanzania Evidence Act has categorically laid It down that ''/70 particular number of witnesses shall in any case, be required for the proofofany fact". This means that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. I am also aware that once I determine that the evidence of PW6 Jisenza is wholly reliable, the accused persons can be convicted solely on his evidence without the need of any corroboration. Section 143 of Page 9 of 27 the Tanzania Evidence Act enshrines the well-recognized maxim that "Evidence has to be weighed and not counted''. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. If I find that the evidence of PW6 Jisenza is neither Page 10 of27 wholly reliable nor wholly unreliable, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. PW6 Jisenza is a related witness, his evidence cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances given the fact that the offence was committed within the precincts of their home. This is a natural witness who has witnessed the murder of his grandmother and aunt committed at their home. The only thing to determine is whether his evidence is clear, cogent and withstood the rigor of cross examination, if his evidence passes that tests, then it becomes wholly reliable evidence, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. The court would also examine the evidence of PW6 Jisenza to see whether he is desirous of Page 11 of27 implicating the accused persons who are his neighbours, people of the same tribe, speaking the same language, and people who he knows since his childhood, and there was no animosity between them. Coming back to the appreciation of the evidence of PW6, at the outset, the attention of the court is drawn to the fact that PW6 Jisenza is the relative of the deceased persons, and this Court should be cautious in accepting his statement. PW6 Jisenza is considered independent. I shall evaluate the evidence to see whether his evidence is likely to be tainted and whether he has a cause to falsely implicate the accused persons, whether there was enmity against the accused persons, to wish to implicate them falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty. The prosecution as well as defence evidence did not give any proof of enmity between PW6 Jisenza and the accused person, and this guarantee that Jisenza PW6 had no reasons to implicate the accused persons. That Page 12 of27 notwithstanding, in appreciating the evidence given by PW6 Jisenza who is partisan and interested, I must carefuily weigh his evidence. I shall first evaiuate whether there were discrepancies in his evidence, and whether or not the evidence strikes the court as genuine; whether or not the story disclosed by PW6 Jisenza is probable. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, the courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard- and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. This is the evidence of an eyewitness who is a near relative of the victims, the evidence should be closely scrutinized and it is not right to treat his evidence as untruthful witnesses. If on such scrutiny, his Page 13 of 27 evidence is found to be intrinsicaiiy reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of PW6 Jisenza. There was discrepancy in the evidence of PW6 Jisenza in that while he saw the accused persons raiding his home, he was outside resting, and there was a solar light. He did not explain the intensity of the solar light. The discrepancies are also on the existence of the torch he was holding. When a person sees the people entering the house holding lethal weapons such as machetes, and sticks, he would have definitely told the neighbors that so and so have raided the house. He did not tell the neighbors the names of the dacoits who invaded the house. He simply said, he went to the neighbor called Shija for help, but he did not tell Shija or the rests of the neighbors that it was Badatu and Masonga who raided or attacked his grandmother and his aunty. He kept the names to himself and never told any neighbor that he saw and identified Badatu and Masonga as the people who murdered or who invaded their house with the machete and the sticks. He even said Badatu was standing on the door while Masonga entered the house, and that Badatu threw a stick on him and chased him. He surely knew Page 14 of27 # and recognized the bandits but chose not to tell anyone. He did not tell the neighbors or leaders when they gathered at the crime scene, he did not tell them during the funeral, and he did not tell them after the funeral. He even did not tell his aunty Minza Mabula who was injured that the people who invaded and attacked them, and who has injured her and killed his grandmother and aunty, was Badatu and Masonga. The evidence of PW5 Minza Mabula, who was the injured eye witness, discredited that of PW6 Jisenza. As Minza Mabula was attacked, he saw the bandits but could not recognize or identify them. She simply said, she saw the two men, these two men were strangers, and could not recognize them as she was only visiting her sister and mother, but she visited them more often, and since the accused persons were neighbors of the same Sukuma tribe, she would have definitely recognized them or at least identify their physical appearance. The prosecution did not bring proof of identification parade to ascertain as to whether the features described by PW5 Minza Mabula matched the features of Badatu and Masonga, the two suspects mentioned by PW6 Jisenza. Page 15 of27 In the instant case, the information about the commission of the offence by the accused persons was lodged by PW6 Jisenza after an inordinate and unexplained delay of more than 10 days at Police Station, which renders the evidence of PW6 Jisenza in this case wholly unreliable. The delay in mentioning the accused names to the police as well as to the relatives and neighbors corrodes the credibility of the prosecution story, in particular the evidence of the sole eye witness. The delay in reporting the names of the accused person whom he saw and recognized at the crime scene creates a doubt. PW6 Jisenza could not explain why he delayed disclosing the names of the accused persons to the police or his relatives or even to the village leaders or neighbors, he said he just decided to keep the names to himself, and he had no reason of doing so. It is important to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used. Delay in giving the information to the police often results in embellishment, which is a creature of an afterthought. On account of delay, the evidence of the eye witness not only gets bereft of the Page 16 of27 # advantage of spontaneity, danger also creeps in of the introduction of a colored version or exaggerated story. Delay in reporting the incident or disclosing the names of the culprits more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a colored version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. There was an inordinate delay in giving the names of the culprits to the police by PW6 Jisenza, the prosecution did not furnish a satisfactory explanation for the delay as a result the evidences given by PW6 Jisenza is found to be unreliable, the prosecution case has to be rejected in its entirety. Again, PW6 Jisenza said, it is true as said by Masonga that Masonga responded to a call for help by the deceased persons, he quickly went to the crime scene after he heard the cries for help. Masonga was the one who called for Bodaboda to help Minza Bundala (PW5) taken to the hospital as she was injured. Masonga spent the night at the house Page 17 of 27 of the deceased until the next morning of 5^^ September, 2022. The police arrived, they carried their investigation and questioned the witnesses. Neither the police nor PW6 Jisenza said whether Masonga or Badatu were mentioned by PW6 as the culprits. The police left and went back to the crime scene 3 days after the funeral, again neither PW6 Jisenza nor any other witness had mentioned to the police the names of the accused persons as the culprits. No witness of the prosecution has told the court as when PW6 Jisenza had disclosed the names of the accused persons to the police, which led to their arrest on September, and 23''^ September 2022. Again, the evidence of Masonga was corroborated by the evidence of PW6 Jisenza that Masonga participated at the funeral, he even organized for the caskets, he organized the funeral, he also organized for the transport of the injured witness to the hospital. It has also been corroborated by PW6 Jisenza that Masonga spent three nights at the house of the deceased before he went back home, and this is the tradition of the Sukuma Tribe in Funeral or Burial Ceremonies. The evidence of PW6 Jisenza became totally and wholly unreliable as a Page 18 of27 person who has committed the murder and left, would not Immediately come back to the same place of occurrence offering help, no one testified that his clothes were tainted with blood, no one said they went to search his house which Is nearby, and found or recovered the weapons used In the commission of the offence. This again, makes the evidence of PW6 Jlsenza, the sole eye witness, wholly unreliable and the court hereby rejects It. The only evidence remained worthy consideration of the court Is the statement of the witchdoctor, whose statement was tendered under Section 34B of the Evidence Act. This piece of evidence lacks evidentiary value as It has not been corroborated with any other piece of evidence. Section 34B of the Tanzania Evidence Act, deal with the relevancy of statements given by persons who cannot be called as witnesses. Senge was the person whose presence In court could not be procured as the prosecution said his whereabouts were unknown and thus his attendance could not be procured without an amount of delay or expense. Page 19 of 27 Section 34 B of the Evidence Act reguiates the manner in which a recorded statement of a witness who cannot be found, can be admitted in evidence and acted upon by the trial court. There are set conditions to be met before the statement can be acted upon. The conditions are described in section 34 B (1) and (2)(e) of the Evidence Act which stipulates as follows: "34B.-(1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written or electronic statement by any person who is, or may be, a witness shall subject to the following provisions of this section be admissible in evidence as proof of the relevant fact contained in it in lieu of direct oral evidence. (2) A written or electronic statement may only be admissible under this section- (a) where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania Page 20 of 27 and it Is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) If the statement is, or purports to be, signed by the person who made it; (c) if it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he wilfully stated in it anything which he knew to be false or did not believe to be true; (d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing Page 21 of 27 to tender it, on each of the other parties to the proceedings; and (e) if none of the other parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence." None of the above conditions were met. The statement was not served unto the accused persons before it was tendered, the accused persons were not afforded a chance to exercise their rights to object given under section 34 B (e) of the Tanzania Evidence Act. There was also no proof tendered by the prosecution to the satisfaction of the Court that indeed the maker of the statement used to reside at Madabadaba Village, and now he has moved to a village unknown to the prosecution. There was no proof forthcoming from the prosecution of the whereabouts of the maker of the statement, and that efforts were made to procure his attendance but they could not find him. Page 22 of 27 The Court of Appeal rejected the dying declaration which was tendered under Section 34 B of the Evidence Act for the reasons that It did not qualify to be tendered as the statement of the person whose attendance could not be procured or who is dead as the requirements of Section 34 B were not met. This was in the case of Adinardi Iddv Salimu and Joseph Evarist @ Msoma vs R, Criminal Appeal no 298 of 2018(reported in TAI^ZLIIT and the Court had this to say: "The answer is in the negative and we are fortified in that account because prior to tendering of the dying deciaration at the triai notice was notserved to the appeiiants so as to enable them to exercise their statutory right to object to its being tendered in the evidence against them. In view ofthe said circumstances, the appeiiants were convicted on the basis of the evidence (dying deciaration) they were not made aware of which was a serious omission. That said, we decline Ms. Suiie's suggestion that the listing ofthe dying deciaration as an exhibit during committal proceedings sufficed as notice envisaged under section 34 B(2)(e)of the Evidence Act and that the appeiiants were aware ofthe statement. We are fortified in that account because what is listed as an exhibit in committal proceedings is not a substitute of Page 23 of 27 notice envisaged under section 34 B(2)(e)ofthe Evidence Act which categoricaiiy requires prior notice to be given to the other party so as to enabie 20 him/her to exercise the right to oppose the statement to be reiied upon by the prosecution. In addition, the omission to compiy with the mandatory statutory requirement cannot be remedied by the faiiure by the appeiiants to object the same because it was incumbent on the triaiJudge to ensure that the iaw is compiied with to the ietter before acting on the dying deciaration. In the premises, since the dying deciaration of the deceased was improperiy admitted in evidence and acted upon to convict the appeiiants, we accordingiy discount it " Similarly, since the requirements of Section 34 B of the Evidence Act were not strictly complied with by the prosecution in tendering the statement of Senge, the witchdoctor, the statement although it was admitted as evidence, the court cannot act on it in entering a conviction against any of the accused person. Again, even when the statement was considered, the evidence contained therein lacked Page 24 of 27 corroboration, hence it cannot be relied upon to convict for the serious offence of Murder. It is trite law that when a person is accused of any offence, the burden of proving the existence of circumstances is upon the prosecution. The burden never shifts on the accused to prove his innocence beyond all reasonable doubt; he can only bring circumstances by creating a reasonable doubt in the mind of the Court. According to sections 100 and 101 of the Evidence Act, a fact is said to be proved when, after considering the matters before it, the Court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that it exists. It will be seen that a fact may be said to be proved under one of the two possible situations. Either the Court believes that the fact exists, or the Court considers existence of the fact probable. There is no indication in section 100 and section 101 of the Evidence Act that a fact can be said to be Page 25 of27 proved, even when the Court entertains a reasonable doubt as to whether the fact exists or not. Since the prosecution fails to give the evidence in support of their case, and so they failed to prove the case beyond reasonable doubt, the accused persons are given the benefit of reasonable doubt and there will be miscarriage of justice if the accused are convicted on the serious offence in which the prosecution failed to prove the charge. Burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution. The failure on the part of the accused persons to establish all the circumstances of their innocence does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, . if insufficient to establish the offence, may be sufficient to give the benefit of reasonable doubt in favor of the accused persons! For those reasons, I find that there is no evidence adduced against the Accused persons to prove the charge against Page 26 of27 them. Ckegorically, the Prosecution evidence is insufficient to warrant the conviction of the Accused persons for the Offence of Murder Contrary to Sections 196 and 197 of the Penal Code Act(Cap 16, R: E 2022). Accordingly, the Accused persons cannot be convicted of the offence ' charged, and therefore I, ACQUIT you BADATU KASANGA KAPINA, and MASONGA PAUL MJANGU of the Offence of MURDER that you are charged with. BADATU KASANGA KAPINA and MASONGA PAUL MJANGU are hereby set free unless there are other Charges against them. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 31®* DAY OF JANUARY, 2024. OF O o /a X Vv uJ re LATIFA MANSOOR •5:- y" JUDGE 31®* JANUARY 2024 Page 27 of27