the republic vs david ismail kisalwa 2024 tzhc 865 4 march 2024

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE No. 10 OF 2023 REPUBLIC v. DAVID ISMAIL @ KISALWA JUDGMENT 20.02.2024 & 04.03.2024 Mtulya, J.: On 18th March 2022 at evening hours, four (4) children were admitted and attended at Butiama Government Hospital in Mara Region (the hospital) for complaints of stomach pains and vomiting. According to the medical doctor on duty at the hospital, Ms. Adventina Victor Mwapiagi (PW4), the four (4) children were smelling pesticides. According to PW4, she started evaluating their conditions and noted that one (1) of them was in bad condition compared to the other, as she was unconscious and smelling chemicals of pesticides species. PW4 testified further that the children were indicating symptoms of swallowing poison as from the displayed stomach aching and vomiting and she immediately started gastric ravaging to push out the alleged poison from their stomach. According to PW4, the other three (3) children were not in severe conditions and were administered First Aid for them to clean their blood. In the four (4) children, two (2) were admitted i for further examination and two (2) were discharged. The two (2) discharged children were later known as Selemani David Ismail and Ismail David Ismail and the dual who were admitted for further examination were Anna David Ismail and Zainabu David Ismail. According to PW4, on the next day of admission of the indicated four (4) patients, 19th March 2022, Anna David Ismail (the deceased) had lost her life due to severe vomiting and stomach ache caused by the suspected poison. PW4 testified further that due to suspicions on poison, she took out samples of the deceased's gallbladder, small intestine, stomach, liver and kidney for further examinations to the Chief Government Chemist. In order to substantiate her participation in attending the patients and death of the deceased, PW4 prayed to tender Post-Mortem Examination Report of the deceased, which was admitted as exhibit P.l without any protest. Exhibit P.l shows the cause of death as: organophosphate poisoning. The samples of the gallbladder, small intestine, stomach, liver and kidney, according to PW4, were collected by police officer, H.4501 D/Cpl. FREDRICK (PW6) for further examination in the offices of the Chief Government Chemist. PW6 was summoned in this court and testified to have conducted three (3) police activities, namely: first, investigation of the case; second, collecting and ferrying of indicated samples 2 testified by PW4, four (4) bottles allegedly to have contained poison, namely: Mocron 720E, energy drink, and two bottles of juice drink; and finally, recording cautioned statement of the suspect called Mr. David Ismail@ Kisalwa (the accused). According to PW6, on 18th March 2022, at evening hours, around 17:00 hours, he was at his working station at Butiama Police Station and had received a complaint from Wakuru Marwa (PW1) that her four (4) children, namely Annastazia, Zainabu, Selemani and Ismail, were allegedly to have swallowed poison. PW6 testified that PW1 had requested for Police Form Number Three (PF.3) to ferry the children to hospital for medical check­ up and treatment. PW6 also stated to have interrogated PW1 who indicated that the accused may have administered poison to the children. From the statement, PW6 had rushed to the crime scene and found the accused already arrested and surrounded by villagers and rescued him from the villagers. According to PW6, the police had searched and seized from the accused two (2) bottles Mocron 720E and Energy drink. On 11th May 2022, PW6 testified, to have collected the indicated samples of gallbladder, small intestine, stomach, liver and kidney from PW4, and a total of four (4) bottles, namely Mocron 720E, Energy drink and two (2) of juice from D/Cpl. Rashid (PW5). In the indicated samples, save for energy drink, 3 PW6 took and submitted them to the Chief Government Chemist offices in Mwanza Region on 12th May 2022. On 19th March 2022, PW6 testified to have recorded accused's cautioned statement in good environment and after introducing all of his rights in accordance to the law. In the statement, according to PW6, the accused had narrated details of what transpired on 18th March 2022 and displayed the source of killing the deceased. PW6 testified further that the accused wanted to exterminate all of his children because his wife had refused to return to his home residence to re-engage again as wife and husband hence went and bought pesticides and administered to his children. In order to substantiate his roles in the case, PW6 prayed to tender and were admitted: first, request letter titled: MAOMBI YA UCHUNGUZI WA KIELELEZO JALADA, BUT/IR/166/2022, KOSA MAUAJI, WATU: DAVID ISMAIL referenced number BUT/CID/B.l/l/VOL. 1/408 (exhibit P.2); second, CHAIN OF CUSTODY RECORD IN CASE NUMBER BUT/IR/166/2022 showing record of 18th March 2022 to 12th May 2022 moving items from Butiama Mara to GCLA-Mwanza (exhibit P.3); and third, cautioned statement of the accused, Mr. David Ismail Kisalwa recorded by police officer, H.4501 D/Cpl. Fredrick on 19th March 2022 at Butiama Police Station (exhibit P.4). 4 PW5 on the other hand was marshalled by the Republic to testify on his roles and stated that on 18th March 2022, he attended at the crime scene and seized two bottles of Jambo juice from Mr. Amos Bina and two bottles from the accused, one written Mocron 720E and Energy drink. According to PW5, all the four (4) bottles were handled-over to PW6 on 11th May 2022 for forensic examination in Mwanza. Rukia Hassan (PW7), a chemist at the Government Chemistry Laboratory Authority (GCLA) was also marshalled by the Republic to testify on examination and report of the alleged poison. In her testimony she stated to have received exhibits on 7th June 2022 in three (3) groups: namely: first group, exhibit A, which contained two tins of pesticides of Mocron 720 EC. The two tins, one had a volume of 1ml and another 100ml; second group, exhibit B which had two bottles of Jambo juice which alleged to have contained poison; third group, exhibit C contained sample of liver, kidney, small intestine, gallbladder, and stomach. According to PW7, she examined the samples and found liver and kidney in good condition. They had no problem. In the small intestine, she found no poison. In the pancrease/ gallbladder, there was no poison. In the stomach, there was poison called profenofos. 5 In the opinion of PW7, prefenofos species of poison is found in pesticides chemical normally used in killing of mites, worms and white flies. Regarding the two tins in exhibit A, PW7 stated that both tins 1ml and lOOmlts had prefonofos poisons. On the two bottles in exhibits B, PW7 had found one bottle with poison of prefenofos type. According to PW7, profenofos species of poison is used to kill pests, but when swallowed by human being may cause a cholinesterase enzyme in the central nervous system and affect brain systems. PW7 testified further that when brain and nervous systems are attacked, a person may vomit due to failure of digestive systems and loss of memory and finally, may cause death to human. In producing human sciences and food mechanisms, PW7 stated that human beings are created with digestive systems and when they eat food, it will start to take its course at the throat, small intestine towards the liver and kidney. In his views, PW7 stated that, the effect of poison in human body depends on the age of the victim, immune system, weight and other factors and death may occur to the victim even if the swallowed poison is at the stomach stage. Regarding apparatus used in examinations at her offices, PW7 testified to have modern macerator and dicloran methal machines which can distinguish chemicals and other particles 6 from human samples by using liquid climatographic formula. According to PW7, the machines always undergo services and verified by Tanzania Bureau of Standards (TBS). In order to substantiate his work and results of examinations, PW7 tendered in the case: Forensic Toxicology Analysis Report Prepared on 26th July 2024, Numbered 1725/2022 referenced BUT/CID/B/l/Vol. 1/408 from the Chief Government Chemistry Laboratory to OC-CID Butiama (exhibit P.5). Witnesses Zainabu David (PW2), Seleman David (PW3) and Wakuru Marwa (PW1) were called to testify what had transpired on 18th March 2022. According to PW2, on 18th March 2022 the accused had asked PW3 to call his relatives Ismail, Anna and herself for soda drink, and accordingly gave the same to Anna and Ismail, but she refused after noticing his father was exchanging soda from one bottle to another, the soda had bad smell and her tongue tasted irritating. PW3 on the other hand testified that the accused had appeared on their home residence on 18th March 2022 and asked him to call Zainabu, Ismail and Anna for soda drink. According to PW3, the accused initially gave soda to him and Anna and drank the same, but PW2 had refused to drink. PW3 testified further that after the soda drink, he felt stomach ache and his mother 7 took them to village chairman and later to hospital. PW3's mother is PW1, who was also marshalled to testify in the case. In his testimony, PW1 stated that on 18th March 2022, the accused went to her residence and took their children namely Zainabu, Selemani, Ismail and Anna for soda drink, but it was not soda as such. According to PW1, as the children came back home handling bottles with some poison smell and children were complaining stomach ache hence reported the incident to the village chairman who had prepared introduction letter to the police station. PW1 testified that at police station, she took PF.3 for hospital and the children were admitted for examination and treatment, but it was unluck for Anna who had expired on the next day, 19th March 2022. PW1 testified further that the accused had previously promised her to witness serious consequences before she expires and she will not forget. In replying the materials brought by the Republic, the defence had brought a total of two (2) witnesses. According to the accused, who was marshalled as defence witness number one in the case (DW1), the police had fabricated the case against him and it was his wife, PW1 who administered a poison to him and he had never recorded exhibit P.4 before PW6. In his testimony, the accused stated that he had married PW1 in 2009 8 and separated in 2021 and in the matrimonial life were blessed four (4) children namely: Zainabu, Seleman, Ismail and Anna. Regarding the events of 18th March 2022, the accused stated that he was at his home residence and around 14:00 hours, he left his residence for PWl's home residence and while there PW1 had prepared ugali type of food with milk and dagaa and was eating with the deceased and PW3. However, immediately after eating, according to the accused, he felt stomach ache and had left PWl's residence for Mr. Nyagawa's toilet to easy himself. The accused testified that at that point his energy levels deteriorated and had informed Mr. Nyagawa of the changes after eating the food prepared by his wife PW1. According to the accused, immediately after informing Mr. Nyagawa the incident, he lost consciousness and could not know what had transpired then until the next day, 19th March 2022, when he found himself at Butiama Hospital and under the control of police authorities. Having noted he is under the control of police authorities, according to the accused, he inquired from PW5, but he was asked to relax and will have details at the police station. The accused testified further that he was taken to Butiama Police Station and was locked-up by PW5, and later was taken to interrogation room where he was asked to tell the truth of the 9 incident, but did not admit any facts. According to the accused, PW5 and PW6 then tie-roped him on hands and legs and started to beat him in different parts of the body and was forced to sign a written unknown paper which they tendered in court as exhibit P.4 alleging that he had killed his daughter Anna. The defence also invited Mr. Ismail Kisalwa (DW2) to testify on what he heard from Nyagawa on the 18th March 2022 regarding poisoning incident. According to DW2, on 18th March 2022 at around 09:00 hours, a text message dropped into his second wife's cell phone from the accused's cell-phone displaying that the accused had swallowed poison, and were both surprised with the text. DW2 testified that on the same day, around 15:00 hours, they received a cell-phone call from Mr. Nyagawa of Kibubwa Village in Butiama District and asked them to go to the Village at the accused's mother-in-law's residence to see the accused. DW2 testified further that he reported the incident to the RCO's offices in Musoma to inform the police authorities on the administration of poison to the accused and accused's mother went at the crime scene within Kibubwa Village. According to DW2, he did not go to the crime scene, but was getting subsequent developments from Mr. Nyagawa and on 19th March 2022 he went to the hospital to see the accused, but was 10 refused entry to see the accused. Similarly, according to DW2, he went at police station and asked police officers to see the accused, but was refused and saw the accused after two (2) weeks and two (2) days and had complained to the RCO's office in Mara Region. In the instant case, the facts shows that parties are not in dispute as to the death of the deceased and the cause of death. From the testimonies of all prosecution witnesses, the accused and exhibit P.l, it is vivid that the deceased had expired on 19th March 2022. Similarly, there is no dispute that the deceased had expired from poison. The Republic has brought materials alleging the accused had administered poison to the deceased, whereas the accused alleged that it was PW1 who prepared ugali with poison which had killed the deceased and affected him. The question this court is asked to reply is who had killed the deceased with the poison confirmed in exhibit p.5. Both parties have brought witnesses to testify in assisting this court to reply the issue. The law regulating credibility and reliability of witnesses shows that: every witness is believed and his testimony accepted, unless there are good and cogent reasons for not believing him. There is a bunch of precedents in this court and Court of Appeal (the Court) cherishing the move (see: Goodluck Kyando v. Republic [2006] TLR 363; Sabato Thabiti ii & Benjamini Thabiti v. Republic, Criminal Appeal No. 441 of 2018; Republic v. John Mbatira @ Mtuke & Three Others, Criminal Sessions Case No. 181 of 2022 and Republic v. Mroni Sarno @ Ryoba, Criminal Sessions Case No. 12 of 2023). However, the law enacted in section 62 (1) (a) of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act), provides that: oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it In the instant case, the Republic had marshalled PW3 to testify to have been given and drank soda drink from the accused and was taken to hospital for treatment. Similarly, they brought PW2 as eye witness who saw the accused administering to the deceased soda drink which was mixed up with another to cause irritation in tongues. The soda drinks were seized by PW5 from the accused and Mr. Amos Bina and given to PW6. PW6 had ferried the drinks and samples of the deceased to the Chief Government Chemist in Mwanza and PW7 had found the stomach sample to have contained a pesticide poison named profenofos which corresponds with the contents in Mocron 720E. According to PW7, the poison may cause death to human beings. 12 On the other hand, the accused claims that it was his wife, PW1 who had prepared ugali, milk and dagaa with poison which was eaten by him, the deceased and PW3. However, PW3 was marshalled in this court to testify and stated that it was the accused who had administered soda to him and the deceased. It is unfortunate that PW3 is the only witness who was not cross- examined by the defence during production of his testimony, let alone the issue of food prepared by PW1. The law allows every witness to be believed, unless there are good reasons to disbelieve him. One of the key factors in assessing credibility and reliability of witnesses is on inconsistencies of testimonies. PW3 had testified consistently and his testimony finds support in the evidences of PW1, PW2, PW4, PW5 and PW6. In law, under section 143 of the Evidence Act, there is no particular number of witnesses is required for the proof of any particular facts. The law has already been interpreted by this court and the Court (see: Republic v. John Mbatira @ Mtuke & Three Others, Criminal Sessions Case No. 181 and Yohanis Msigwa v. Republic [1990] TLR 148). However, failure to call material witness to corroborate party's evidence may move courts to draw adverse inferences against the party (see: Wambura Marwa Wambura v. The Republic, Criminal Appeal No. 115 of 2019; Stanley Janies @ Mabesi v. Republic, Criminal 13 Appeal No. 115 of 2022; and Republic v. Mroni Samo @ Ryoba, Criminal Sessions Case No. 12 of 2023). In the present case, the accused had testified that after swallowing poison at his wife's residence, he went for toilet at Nyagawa's residence and had informed him on his condition and had lost consciousness before Mr. Nyagawa. Equally, DW2 did not go to the crime scene, but was receiving subsequent developments from Mr. Nyagawa on poisoning of the accused. At any rate, Mr. Nyagawa is a material witness to the defence side. However, the defence had declined to call him or produce reasons why he was not summoned to testify. This is unfortunate on part of the accused. Similarly, DW2 heard his son alleged to have been poisoned by PW1, but had declined to visit the scene of the crime or make efforts to collect alleged food samples. In the instant case, PW6 came to this case handling confession statement of the accused and prayed to tender to be exhibit in the case. The prayer was protested by the defence side. Following the protest, a trial within trial contest was conducted and the exhibit was admitted as P.4. In brief, exhibit P.4 shows narrations of the accused in the following words: Mimi.... ni mzaiiwa wa Kijiji cha ISABA na mkazi wa MWIKOKO (w) BUTIAMA. Ni baba wa watoto wane, ZAINABU, SELEMAN, ISMAIL na ANNA d/o DAVID 14 @ISMAIL, ambao nimezaa na WAKURU D/0 MARWA BWANZI. Ninakumbuka mnamo mwezi April 2021 huko katika kijiji cha Mwikoko (W) Butiama (M) Mara niiiachana na mke wangu Wakuru D/0 Marwa baada ya mgogoro wa kutotoa maha/i na kwenda (W) Kahama (M) Shinyanga. Nimekaa huko had! mwezi March 2022 kurudi baada ya kumwomba msamaha muda wote Hi tu/ee watoto iakini aninikataiia, ndipo kuchukua uamuzi wa kurudi tarehe 09/03/2022 majira ya jioni huku nikiendeiea kumwomba msamaha lakini msimamo wake uiibaki palepale, kwa kuwa niiikuwa bado nampenda na kuipenda familia yangu. Pia tarehe 18/3/2022 majira ya saa 10:00hrs nikiwa katika kijiji cha Busegwa (W) Butiama (M) Mara niiiamua kuingia kwenye maamuzi magumu na kwenda katika Duka ia Pembejeo za Kiiimo ii/ipo Butuguri (W) Butiama jirani na maduka ya Mzee MGHABO s/o? na kununua sumu ya kuua wadudu katika zao ia nyanya aina ya MOCRON kisha kununua soda za kopo nne "4"na kwenda hadi kijijini KIBUBWA aiipo mke wangu na watoto baada ya kuachana. Nilipofika majira ya saa 16:00hrs sikuingia kwenye mji niiiishia nje barabarani na kuwaita watoto wangu wote kwa kuwa nina muda biia kuonana waiinikimbiiia kwa furaha waiipofika niiitoa soda ziie na sumu kisha kuzichanganya na kuwapa wanywe nikiwaambia kuwa nemewaietea zawadi ANNA D/0 ISMAIL ambaye kwa sasa ni marehemu pamoja na kaka yake SELEMANIS/O DA VID wao waiikunywa iia ZAI na ISMAIL wao waiigoma kunywa baada ya kuona nazichanganya na kukirnbia kurudi nyumbani. Basi na mimi niiikunywa kwa iengo ia kufa Hi nikose wote kwani mama yao hanitaki na mimi 15 bado naipenda familia yangu. Nikiwa njiani kutoka KIBUBWA barabara ya kueiekea MUPIAZA niiijikuta naishiwa nguvu ghafia na kuanguka chini huku nikitokwa na povu mdomoni na kupoteza fahamu hadi kuja kuzinduka nikiwa Hospitaii ya Butiama pingu mkononi, mkono wa kuiia na Drip ya dawa mkono wa kushoto nikiwa naiindwa na Maaskari. Kwa kwe/i Mungu anisamehe kwa kiiichotokea na nitichokifanya kwani haya yote yamesababishwa na mke wangu. Reading the indicated narrations in the statement, it can be easily noticed that it was produced by a person who has direct knowledge of what exactly had transpired to the deceased on 18th March 2022. This court having considering, it has persuaded to believe that the accused voluntarily made the statement. He was not tortured or forced to confess the statement. In any case, the statement is corroborated by evidence registered by PW1, PW3, PW5 and PW6. Perusing the totality of the evidence brought in the present case, I am convinced that the accused had killed the deceased on 18th March 2022 at Kibubwa Village within Butiama District in Mara Region. The defence produced by the accused does not introduce a reasonable doubt in view of the strong evidence produced by the prosecution. The defence of the accused that the poison was in the food prepared by PW1 was brought in the case to deceive this court. 16 After saying so, the only remaining question in the instant case is: whether the accused had killed the deceased with malice aforethought The circumstances to assist this court in determining malice aforethought in criminal cases of murder species are enacted in section 200 of the Penal Code. The enactment has received interpretation of the Court in the precedent of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994, where it was stated, in brief, that: usually an attacker will not declare his intention to cause death or grievous bodily harm. The intention of accused must be ascertained from various factors, including the following: the type of the weapon used in the attack; the amount of force applied in assaulting; the part of the body where the blow was directed; the number of blows; and the kind of injuries inflicted. From the facts displayed in exhibits P.l, P.4 and P.5, the accused used poison to attack on sensitive part of the body stomach to cause vomiting and brain injury to death. This displays malice aforethought on part of the accused. Similarly, the accused had told PW1 his preparations that she will witness an incident that she will not forget, and the accused moved further to execute the plan by buying and administering pesticides to his children. In the circumstances of instant case, I am satisfied that the prosecution has proved its case beyond reasonable doubt as per 17 requirement of the law in section 3 (2) (a) of the Evidence Act and precedent in Said Hemed v. Republic [1987] TLR 117, that the accused had murdered the deceased. Having said so, I find the accused, Mr. David Ismail @ Kisalwa, guilty to the charged offence of murder against the deceased contrary to sections 196 of the Penal Code. This Judgment was delivered in open court in the presence of the accused, Mr. David Ismail @ Kisalwa and in the presence of Mr. Mahemba, learned counsel, holding brief of Mr. Evance Njau, learned Defence Attorney, and in the presence of Mr. Abdulkheri Sadiki and Ms. Grace Matimbwi, learned State Attorneys for the Republic. Iflk/lAj___ _____ I F. H. imuta Judge 05.03.2024 ANTECEDENTS Sadiki: My Lord, this court has found the accused guilty to the offence of murder. My Lord, section 197 of the Penal Code provides for a penalty in such circumstances. My Lord, we pray the indicated section be complied. That is all my Lord. 18 F. H. Mtulya Judge 04.03.2024 MITIGATION Mahemba: My Lord, as per section 197 of the Penal Code a penalty is only one, that is death sentence. My Lord, we leave it to this court to decide on appropriate sentence against the accused person. F. H. Mtulya Judge 04.03.2024 Accused: My Lord, this court has to scrutinize evidence of PW1 and PW2. My Lord, if I needed to administer poison, I was supposed to administer to the eldest girl Zainabu, and not Anna. My Lord, PW5 and PW6 testified that they found me surrounded by villagers. That is not correct. My Lord, PW1 testified that I promised an incident that she shall never forget. That is not correct. Why did she declined to report the threat to the police. My Lord, this case was fabricated. That is all my Lord. F. H. Mtulya Judge 04.03.2024 SENTENCE Section 196 of the Penal Code enacts an offence of murder and immediately followed by section 197 of the Penal Code, which provides a penalty of death sentence to those found guilty to the 19 offence. In the present case, the accused, Mr. David Ismail @ Kisalwa was found guilty to the offence of murder. This is court is bound to follow the same. Having said so, I am moved to sentence the accused, Mr. David Ismail @ Kisalwa to death which shall be suffered by hanging. Court: This Sentencing Order was delivered in open court in the presence of the accused, Mr. David Ismail @ Kisalwa and in the presence of Mr. Mahemba, learned counsel, holding brief of Mr. Evance Njau, learned Defence Attorney, and in the presence of Mr. Abdulkheri Sadiki and Ms. Grace Matimbwi, learned State Attorneys for the Republic. Judge 04.03.2024 20