republic v juma hamisi mahamudu 2024 tzhc 897 19 march 2024

IM THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 121 OF 2022 REPUBLIC VERSUS JUMA HAMISI @MAHAMUDU......,o..„...............................ACCUSED JUDGMENT: 8th & 19th March, 2024. KIREKIANO, J; The accused person Juma Hamisi @ Mahamudu is charged with one count of manslaughter contrary to sections 195 and 198 of the Penal Code Cap 16, [R.E 2019]. It is alleged by the prosecution that, on 24/09/2021 at Vitendo Street, Misugusugu Ward, within Kibaha District in Coastal Region, the said accused unlawfully killed Omary Shomary Mumba (herein referred to as the deceased). The accused person pleaded not guilty to the information; 1 I Page Briefly stated the facts leading to the accused arrest and trial are as follows; The accused was a Street Executive Officer at Vitendo Street in Kibaha District. The deceased was one of the residents of the street. On 24/09/2021 in the morning hours, the deceased went to the accused' office to inquire about the status of a ban by the local authority on sand mining in the area owned by one Rehema Mohamed. There were arguments and misunderstandings on whether the said ban/ document could be handled to the deceased. The deceased thus snatched and got away with the file and ran to his neighbor. Shorty his health changed when taken to hospital, he was already dead. The cause of death was asphyxia associated with strangulation. It is the prosecution's case that, the accused fought the deceased and strangled him causing complications in breathing which later culminated in his death. The accused line of defence was that he never attacked the deceased, the deceased left the office healthy and he was not responsible tor what happened to him later. 21Pa ge The prosecution side led by Miss. Laura Kimario S/A assisted by Mr. Said Seif, learned state attorneys summoned five witnesses to prove the information. They are; PW1 Veronica Maarifa, PW2 ASP Rashid Chomvi PW3 T. 1048 D/Sgt. Oscar PW4 Juma Gapsi PW5 Dr. Leah Furahini Mnango. The accused was defended by Mr. Fredrick Charles, a learned advocate. According to Juma Gapsi (PW4) on the fateful day of 24/09/2021, he happened to be at the accused office at Vitendo Street. He saw the street executive officer Juma Hamisi (accused) and Mzee Mumba (deceased) fighting. The two were outside the office, Mzee Mumba was down while Juma Hamisi was on top of him. He saw the executive officer holding Mzee Mumba's neck. He tried to settle them from the fight. He was accompanied by Said and Abdul a motorcyclist who normally Carried Mzee Mumba. According to him, the deceased managed to get out of the hook and went home by motorcycle. When cross-examined by defence counsel Mr Charles, PW4 said the deceased tried to run with a piece of paper but was taken home by a motorcycle. He learned later that the deceased passed away. The residence of the deceased was about 1.5 kilometers from the scene. 3 | Page It was from the prosecution case that the deceased did not go home in the first place instead he reached the residence of PW1 Veronica Maarifa According to this witness, the deceased arrived at her residence tired and unable to walk, she asked him to sit down but he could not sit rather requested to get inside. His clothes were dented with dust and also on his head. When she asked him what happened he told her that he was beaten by the executive officer of Vitendo Street Mr. Hamis Juma. This was after the accused had refused to issue him a letter in respect of sand mining in the area. He told her that an argument and a fight caused him to fall, landing on his back and then the accused strangled his neck. As the deceased was speaking, said PW1, he experienced difficulty in breathing, lost his speech and slept oh the couch. PW1 together with the deceased wife arranged, for medical attention at Tumbi where they were it was revealed, that the said Mumba had already lost his life. When cross-examined by Mr. Charles about a series of events unfolding the death of the deceased, she said the deceased reached her home at around 11:30 hrs and was taken to hospital at 14:30 hrs. 4|Page The incident was reported at Kibaha Police station, PW2 ASP Rashid Chomvi who worked as OC-CID for Kibaha by then, told this court that on 24/09/2021 the police went to Tumbi hospital and verified the death of the said Mumba after they had seen the deceased body. The accused was thus arrested on 27/09/2021. PW3 T.1048 D/Sgt Oscar investigated the offence. On 24/09/2021 he went to the scene at the office of the Executive officer of Vitendo, Street. He sketched a map of the scene of a crime (Exhibit Pl) by Said Abdallah. He was satisfied with the testimony of an eyewitness who witnessed the accused fighting the deceased. The body of the deceased was examined on 26/09/2021 by Dr. Leah Furahini Mnango (PW5) a Pathologist at Mu him bi li National Hospital. This was at the request of a police officer from Kibaha namely Peter and the body was identified to her by deceased relatives, Shaban Ally and Said Omary. She said the physical examination of the body showed that the body had bruises and blood contusion at its neck. The nails and tongue had a bluish color suggesting the deceased had minimal oxygen before death. The cause of death was asphyxia due to strangulation exhibited by acute 5 [ P a g.e inflammation. This was indicated in the post-mortem examination report Exhibit P-2. In his affirmed defence the accused Juma Hamisi Mahamudu (DW1) denied having caused the death of the deceased. He admitted to have met the deceased at his office on the fateful day of 24/09/2021 and that there was a struggle over the office file. According to him, he never fought the deceased nor strangled his neck. He said the deceased grabbed the file and got away with it by motorcycle. He associated the deceased death with problems of hypertension and diabetes he was facing. DW2 Juma Mohamed Lubeta DW3 Hawa Hemed, DW4 Mwajuma Athuman and were among the people who at different moments arrived at the scene. According to these witnesses, the deceased was a troublemaker who grabbed the accused office file and got away with it. It was also their testimony that the accused did not attack nor fight the deceased. That being the evidence available, the duty of proving the offence of manslaughter beyond reasonable doubt rests on the shoulders of the prosecution, while the accused bears no duty to prove his innocence this is a principle articulate in Raimu Said vs Republic (Criminal Appeal 391 6 [ P a: g e of2019) [2021] TZCA 273 (7 June 2021). In another case of Bathromeo Vicent vs Director of Public Prosecutions (Criminal Appeal No. 521 of 2019.) [2024] TZCA 186 (18 March 2024) the Court of Appeal citing Makolebela Ku Iwa Makolobela and Eric Juma alias Tanganyika v. Republic [2002] T.L.R. 296 held at page, 8 thus; "A person is not guilty of a criminal offence because his defence is not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt'. In this case, to find conviction against the accused person herein all elements of the offence of manslaughter under section 195 of the Penal Code must be proved beyond reasonable doubt. That is to say; one, the said Omary Shomary Mumba is dead, two, proof that the deceased died as a result of an unlawful act or omission of the accused person and three, the unlawful act or omission which caused the death of the deceased was unintentional and without knowledge that death or grievous bodily harm was a probable consequence. 7 | Page As I appreciate the evidence on record, I wish to start with the evidence of the sketch map (Exhibit Pl) as tendered by PW3 Sgnt Oscar. Mr. Fredrick Charles counsel for the accused during the hearing, questioned the credibility of this exhibit for missing key information on the marks indicated. It is noted here that, according to PW3 and Exhibit Pl, when sketching a map PW3 was led by one Said Abdallah. This witness was not summoned to testify. Considering that PW3 was not at the scene, apart from things he directly saw at the scene, more facts on what happened must have been sourced from the person who witnessed the occurrence of facts intended to be shown in the sketch map. It was thus expected that, when preparing a sketch map PW3 being the Investigating Officer could record what he saw and observed. This would have been direct evidence based on his knowledge. Other facts as to where and how the incident took place, he could derive knowledge from persons who had seen the incident, in this case, Said Abdalah. Failure of the prosecution to summon this witness made the sketch map problematic and not worth of consideration. My assessment is fortified by the decision in In Republic. Vs PAULO POKI [1939] 6 EACA 152, where a police officer gave evidence on a 8 ] Page sketch map led by one Ernest, but Ernest did not give evidence. The erstwhile Court of Appeal for Eastern Africa held; "The sketch plan should not have been received in evidence In the absence of the evidence of Ernest or some person acquainted with the places that he had pointed out to the police officer referred to in the plan/' Given the above, I accordingly expunge Exhibit Pl from the record. I shall now consider the points indicated based on the remaining evidence. On the first aspect of the death of the deceased, there is evidence from PW2 that after police had received a report of the death, he went to Tumbi Hospital to verify the same where he also saw the deceased body. Medical evidence from the doctor who conducted the autopsy verified the death of the said Omari Mumba and the cause of death was stated as asphyxia associated with strangulation. There is no evidence from the defence side raising doubt on the death of the deceased. I thus find as a fact that the said Mumba is dead. The second aspect is the cause of death. There is evidence from the doctor who conducted a post-mortem examination. (Exhibit P2) This report 9|Page opined that the deceased death was caused by asphyxia (suffocation) associated with strangulation. The prosecution's case is that this was caused by the accused. It is noted that there is no dispute that the deceased, on the fateful date met the accused. This is exhibited in evidence of PW1 Veronica but also eye witness PW4 Gapsi. On the other hand, the defence evidence did not dispute that on 24/09/2021 the accused and deceased met at the accused's office. It has to be recalled according to the postmortem examination report and oral testimony of the doctor the deceased lost his life due to suffocation. While PW4 Gapsi testified to have seen the accused fighting the deceased, the accused and his line of witnesses insist he never fought him instead; the deceased left the scene in good health. The question remains whether the accused assaulted the deceased and if so if there was a link between the deceased cause of death and the accused person. Ip | P a g e While I address this, I am alive to the principle of the law of evidence as per the case of Goodluck Kyando v- R, [2006] T.L.R. 363 where the court of appeal held that: " Every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness:" It is on record that the deceased on the very date after he had left the scene went to PW1 and told her what happened. This court considers the evidence by PW1 Maarifa containing the deceased dying declaration as to the cause of his death. I say saw because a dying declaration simply means a statement made by a deceased person as to the cause of his death. See, Onae! Dauson Macha vs. R, Criminal Appeal No. 214 of2007(unreported), Ha mis Said Mchana vs. R [1984] T.L.R. 319; As such dying declaration can be written but also oral as it happened in this case. See, Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024) 111 P a g e Now according to PW1 on what the deceased told her she said; 'When I asked him what happened he said he was beaten by executive officer (Mtendaji) at Vitendo Village, Mr Hamis Juma. Mzee Mumba told me that he needed to talk to my husband about the issue of sand mining at Misugusugu. By then my husband was not home he was at Mlandizi. According to Mzee Mumba, he made a follbw-up on the issue of sand mining but the Executive officer, Juma refused to issue a letter. Argument and a fight caused him to fall to his back, and the Executive officer strangled his neck. As he was speaking, he started having difficulty breathing, he lost his speech and slept on the coach' I have calmly considered, this evidence. PW1 was the deceased neighbor, who knew both the deceased and the accused. When the deceased arrived at her residence, he told her coherently what happened, where it happened and why it happened. This declaration was made the very day in fact a few moments after the deceased left the accused office. 12 | P a g e I have considered this aspect with a view of satisfying myself with the capacity of the deceased to tell PW1 a sensible and coherent account of what happened. There was evidence from PW4 Ga psi that he saw the accused fighting the deceased but also strangling him. The evidence of the attack on the neck also featured in the evidence of PW Dr Leah Mnango the doctor who conducted the autopsy. The deceased body had blood contusion around the neck. As such the cause of the fight was an office document in respect of sand mining in the area. This fact was also stated in the accused defense as a source of what he called a misunderstanding. It is basing on the foregoing; that I find that the declaration to PW1 was made and it was true. Whether the accused and witnesses ought to be believed, I am guided by the principle that the credibility of the witness should, among other means be tested by reviewing the whole evidence on record. See Maloda William and Mahagila Mlimi V. R, Criminal Appeal No. 256 Of 2006 (unreported): - 13 ] Page "... The credibility of each witness in a case ought to be dispassionately assessed by testing it not only against the whole of his or her evidence but more compellingly against the entire evidence on record be it testimonial or documentary. I have considered the whole defence case in which the accused denied to have assaulted the deceased. I find the same not plausible on the reason that DW4 for example testified that when she arrived at the scene the deceased and accused had started "arguing". This means she might not have seen everything. As such looking at the whole evidence, the same consistently indicated that, there was an argument and struggle over the document, which suggests something more must have happened leading to the deceased attack on his neck. I have also considered the accused defence that the deceased might have died because of the problem of hypertension and diabetes. This also featured in evidence by DW3 who said the deceased used to share with her information about his problem of hypertension. While it was not medically established that the deceased had the problem of hypertension or other decease and that was the cause of death, the question one needs to ask is whether "but for" the accused act the deceased would not have died. 14 | Page I have persuasively considered the decision in South Africa Court on the test i.e "but for test". In S v Nsele (CCD 10/2020) [2022] ZAKZDHC 16 (21 February 2022) The court narrated that "but-for" test requires the court mentally to eliminate or think away as much of the defendant's conduct as was unreasonable, and to ask hypothetically whether the plaintiff would still have suffered the harm had the defendant acted reasonably. If the harm would "not" have been suffered, factual causation is established; if the harm "would" have occurred anyway, the required cause link is absent. In this case, having considered the cause of death the time of death and the events culminating in the deceased death, l am satisfied that there was a link between the accused unlawful act of assault and the death of the deceased. Even if the accused version that he deceased was sick had to be accepted that would be immaterial. All said and done on the foregoing analysis, l am of settled finding that, the prosecution has proved the information of manslaughter against the accused in the required standard. The accused person Juma Hamis @ Ma ha mud u is found guilty of the offence charged which is manslaughter contrary to 15 I P a g e sections 195 and 198 of the Penal Code Cap 16 [ RE 2019]. He is accordingly convicted. JUDGE 19.03.2024. COURT: Judgement was delivered in the presence of the accused Miss Asifiwe Mzava. learned state attorney for Republic and in the presence of the accused and Mr. Fredreick Charles, counsel for the accused. Sgd A. J. KIREKIANO JUDGE 19.03.2024. 16 | Pa ge