criminal decision 2024 Magereja shinje Shija Mleka

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA CRIMINAL SESSION NO. 61 OF 2022 REP .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS KARUMBETA KUZENZA KARUMBETA .............................. RESPONDENT / DEFENDANT JUDGMENT A. MATUMA, J The accused persons herein, Magereja Shinje and Shija Mleka are charged of Murder contrary to section 196 and 197 of the Penal Code (Cap. 16 R.E. 2019). Initially they were charged together with two others namely Karumbeta Kuzenza Karumbeta who was acquitted for having no case to answer and Renard Shinje @ Katwale who was discharged for Nolle Prosequi. The accused persons are alleged to have murdered one Elikana Matoro on the 6th day of February, 2022 at Nyamilyango village within the District and Region of Geita. The prosecution owed a statutory duty to prove the offence under the following elements, each beyond reasonable doubts; that the death was actually caused or that it is indeed that Elikana Matoro is dead, that the death was not natural, that the death was caused by an unlawful act or omission, that it were the accused persons who did the unlawful act or omission and that the accused persons caused the alleged death with malice afore- thought. To substantiate the charges against the accused persons, the prosecution brought a total of three witnesses and tendered one documentary exhibit which is the Post Mortem Examination Report (exhibit P1). The accused persons fended for themselves and the first accused herein called one more witness. Mr. Godfrey Odupoy and M/S Kabula Benjamin learned State Attorneys represented the Republic while the first accused Magereja Shinje was represented by Mr. Shija Jeremia learned advocate. Mr. Ernest Makene learned advocate on his part represented the second accused Shija Mleka. The summary facts of the matter are to the effect that on the crime date at about 18:00 hours or running to 19:00hours PW1 Musa Seleleko was at his home. The two accused herein approached him and informed him that they have been hired to kill the deceased for Tshs. 500,000/=. They wanted the said PW1 to join them in the mission so that he also get the share of the money. PW1 refused and was warned not to disclose the mission to any or else he shall face a deadly response. Page. 1 Hon. ATHUMANI MATUMA Just an hour later at 20:00hours the deceased was invaded while eating his dinner outside his house and brutally killed. The accused persons were then arrested for the offence hence this case. The evidence of both sides shall be referred during the determination of each issue and or elements of the offence. Starting with the first issue as to whether the death was actually caused or whether indeed Elikana Matoro is dead, I find this issue to have been sufficiently proved. The evidence of PW1 Musa Seleleko, PW2 Musa Zakayo and PW3 Yohana Bulimbe has sufficiently established the death in question. PW2 and PW3 were together with the deceased at the time he was killed and witnessed the deceased’s body. PW1 also witnessed the dead body and attended the burial. There is also the evidence of exhibit P1 the Post Mortem Report through which Elikana Matoro was identified dead and his body examined in which the cause of death was established to be Brain hypoxia secondary to excessive blood loss. This fact is not even disputed by the accused persons but rather collaborated it when the first accused Magereja Shinje and his witness DW3 Njiga Kachoji Sabuni testified that Elikana Matoro is actually dead and they attended his burial in the village. I therefore conclude this element that Elikana Matoro is actually dead and is no more. As about the second element as to whether the death was not natural, I have no doubt that such death was not natural. It is in evidence that the deceased died of brain hypoxia secondary to blood loss. Such cause of death was a result of inflicted injuries in which the deceased according to the Post Mortem Report sustained extensive laceration wound on the right parietal involving right jugular vein. I accordingly find out that the death of Elikana Matoro was unnatural. As about the third element as to whether the death was caused by an unlawful act or omission, the answer is yes. The injuries sustained by the deceased resulted from the assaults which subsequently led to his death. The injuries were unlawfully inflicted because the deceased was invaded by thugs who assaulted him to such extent without any lawful cause or legal justification. I therefore find the element in the affirmative that the death in question was caused by unlawful acts. As about the fourth element as to whether it was the accused persons who did the unlawful acts or who caused the death in question, the parties contested a lot. While the prosecution witnesses pointed out that it were the accused persons who brutally murdered the deceased, the defence side denied completely such allegations. On the prosecution side the tree witnesses pointed out that it were the accused who committed the offence. PW1 as I have said earlier testified that the accused persons followed him and solicited him to join them for the mission to kill the deceased. That he refused and got threated not to disclose the issue to any. In no time heard an alarm and on attending the said alarm found the deceased already killed. The witness although did not witness the commission of the crime gave circumstantial facts linking the accused to the crime. Thus for instance he testified that when the two accused who are very familiar to him aapproached him, they told him; “tumepewa kazi na mzee Karumbeta ya Kwenda kumuua mzee Elikana Matoro.Tumepewa hela shilingi laki tano……..Tukiungana tukafanya hiyo kazi hiyo hela tutagawana” Page. 2 Hon. ATHUMANI MATUMA When he refused the second accused warned him; “Shija Mleka alinambia; Kwa vile umekataa tusije tukayasikia. Tukiyasikia tutakuja tukufanyie kitu kibaya” Such is oral direct evidence admissible under section 62 (1) (b) of the Evidence Act. It is the evidence who says he personally heard the accused telling him the mission to murder the deceased. In that regard such evidence must be valued on credibility basis of a witness. In this case both accused persons suggested that PW1 is not a witness of truth and should not be believed because each had his personal grudges with the witness. The first accused explained that their family farms and those of the witness are bordered. That sometimes their livestock used to trespass the witness’s farms and destruct crops. That the witness used to be angered and one day the hen of the accused’s family ate the small growing beans in the farm of the witness and the witness became so bitter. In that regard the accused is trying to tell the court that PW1 fabricated him into this case due to such grudges. On his part the second accused explained two grudges; One, that he used to do business with the witness whereas they were buying and selling cassava (udaga). They used the same store but one day his seven sucks got lost. He suspected PW1 to have been behind the said loss and or theft. They quarrelled and fought; “Tulizozana siku hiyo na makofi yalitembea”. He also testified that the daughter of his cousin who was under his custody fell in love with PW1’s son (the son of PW1’s deceased brother). Under the circumstances the two were to discuss the dowry but it became impossible and they became enemies. That is how the two accused persons suggested to this court to disbelieve the witness. The general rule in relation to credibility of witnesses is that every witness is entitled to credence and have his evidence accepted unless there is good and cogent reason for not believing him. See; Goodluck Kyando versus Republic (2006) TLR 363. On my part I find that the reasons raised by the accused persons to suggest that PW1 was lying against them are not sufficient enough to discredit PW1. This is because both accused persons raised such grudges at the back of the witness. The witness was not cross examined to suggest that indeed there were such grudges. He gave his evidence and cross examined but he was not put to an inquiry about such grudges. In that respect it is either that the grudges were a cooked story during the defence which never existed or that there were such grudges but were very minor with no effect and that is why the witness was left to leave the witness dock without being cross examined on them. In the circumstances the accused persons decided to raise them as an afterthought which cannot be accepted under the law. I therefore reject the accused’s raised grudges and rule out that PW1 was a witness of truth, credible enough and reliable. We have again the evidence of PW2 and PW3 who are an eye witness to the crime. They were eating with the deceased outside the house. They all testified that the two accused appeared and they greeted each other. According to these witnesses, they even gave chairs to the accused persons who in turn asked the deceased; “Una warundi wangapi hapa”. The deceased responded that he had no any Rundi. Thereafter PW2 got up and entered inside. In no time he heard a Club Bang! He came to the door only to find that his grandfather was already striked and injured and the first accused herein was coming towards him. He ran away and hide in the kraal but the first accused followed him. He ran out of the kraal to the village centre and reported the incident to Yona Elikana. Page. 3 Hon. ATHUMANI MATUMA PW2 explained clearly that he did not see exactly who assaulted his deceased grandfather but at the time he went inside he left the deceased with Yohana PW3 and the two accused persons. PW3 was the eye witness to the blow. He testified that it was the first accused Magereja who inflicted the blow against the deceased and as he saw his grandfather striked, he stood up and ran to the neighbour but he did not find him and thus ran to the center. Having observed the two witnesses and examined their demeanor, I have no doubts that they testified nothing but the truth. They gave oral direct evidence as well which is admissible under section 62(1)(a) of the Evidence Act supra. There is no whatsoever reason for not believing them. The only question to determine is whether they sufficiently and properly identified the accused persons at the crime scene as perpetrators of the same because the propriety of their respective evidence 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 instant case the two witnesses explained the conditions in which they identified the two accused persons. Each explained that at the material time they were eating dinner outside the house just at the house wall. On the wall there was a sola taa which was illuminating that area. That when the accused came they knocked (walipiga hodi), they welcomed them and greaated each other at a distance of a shaking hand, they gave them chairs and the accused asked the deceased how many Rundians he had. That the deceased replied he had none. It is thereafter the first accused striked the deceased with a club. The two witnesses explained that the two accused were dressing long jackets/coat which had caps. That the caps had covered their heads and not faces. They thus saw the accused and identified them because they were not strangers. 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; Page. 4 Hon. ATHUMANI MATUMA “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. PW2 and PW3 knew the accused persons prior to the crime. They explained even the place where the accused lived (mtaa wa shule). There was solar light. The first accused confirmed that he lived mtaa wa shule though he denied to have known the two witnesses. The second accused also denied familiarity with the two witnesses. The first accused and his witness in their respective evidence stated that they attended at the crime scene that night in response to the alarm (yowe/mwano) but did not in their respective evidence dispute that there is solar light at the crime scene illuminating in the manner the witnesses have testified. PW2 and PW3 described the clothes the accused persons wore at the time of the crime. They all stated in evidence that the accused persons had put on makoti marefu yenye kofia but had not covered their faces. They all explained the color of such coats that they were white and black. The two witnesses however contradicted on who had put on a white coat and who had dressed a black coat. PW2 testified that it was Shija who was in a white coat and Magereja in a black coat while PW3 testified that Magereja who was in a white coat and Shija in a black coat. A part from this contradiction the witnesses were consistent and coherent in all other factors for their identification. Those factors as held in the case of Anuary Nangu supra are favourable for correct identification. The witnesses identified the accused persons in coal circumstances because the accused persons did not appear in threats, they appeared as normal guests because they knocked, they werer welcomed, they were given chairs and greated each other in Sukuma language. All these were circumstances favoring the witnesses to identify the accused persons. PW2 identified the accused persons prior to the attack and left them with the deceased after the greetings. I therefore find that PW2 and PW3 clearly identified the accused persons as the attackers to the crime in question. Their contradictions as to who exactly wore a white coat and who wore a black coat in my considered view is minor. This is because they were consistent that the accused were in long coats which were one white and the other black and that the coats had caps. Since they consistently explained the dresses, their contradiction supra did not vitiate the identification made supra. Minor contradictions like the one at hand are forgiven as it was held in the case ofDickson Elia Nsamba Shapwata and another v. Republic, criminal appeal no. 92 of 2007 that; “Normal contradictions and discrepancies are bound to occur in the testimonies of the witnesses due to normal errors or observation, or errors in memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurence” 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. In the instant case the circumstances within which the accused persons were identified were favourable and they were not stranger to the identifying witnesses. I have heard the defence of the accused persons as reflected supra but I reject it. The alleged grudges were not sufficiently proved but even if they could have been proved they are too remote to the crime at hand. PW1 whom Page. 5 Hon. ATHUMANI MATUMA the accused alleged to have conflict with them did not testify that he saw them committing the crime. Had he intended to fabricate them into this case he could go straight giving fabricated direct evidence. But he gave evidence which by itself without collaboration could not lead to conviction. His evidence thus acted as a collaboration to the evidence of an eye witnesses. The first accused also tried to establish that he attended the alarm at the crime scene that night and brought a witness DW3 to support him on that. He then raised a question as to how could he commit the crime and yet attend the alarm. On this I have the firm finding that at the crime scene there were a lot of people just a crowd as evidenced by the evidence of both parties. Whether or not the first accused attended there is not a great deal. It depends to the courage of each one. Some people who commit crimes runs away and others shift from the locality altogether but others would commit crimes and remain in the society without running away. Some others would in fact purport to give a help to the victim and or report the crime to the authorities. What is most important is whether the accused was positively identified. In the case of Edgar s/o Kayumba versus DPP, Criminal Appeal no. 498 of 2017 (CAT) Mbeya, the accused gave evidence of alibi to the effect that at the time of the alleged crime he was not present at that area but the court held that in presence of strong evidence of identification against him at the crime scene the evidence of alibi cannot stand. It held; “the defence of alibi that was raised by the appellant does not introduce a reasonable doubt in the prosecution case in view of the strong evidence of eye witnesses”. The Court of Appeal repeated in the case of Abdallah Hamis Salim @ Simba vesrus Republic, Criminal Appeal no. 68 of 2008 (CAT) that in the presence of strong evidence of identification against the accused, his defence of alibi dies a natural death. In the like manner in the instant case, in the presence of strong evidence of identification given by PW2 and PW3 and got collaborated by the fact that the accused had approached PW1 for a company to the commission of the crime at hand, the accused person’s defence trying to exonerate him in the commission of the crime cannot stand. On the reasons I have demonstrated herein above, I am satisfied that the prosecution case is proved beyond any reasonable doubts against the accused persons and thus find the Magereja Shinje and Shija Mleka guilty of murder contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2019 as they stand charged and convict them accordingly of the offence. Since there is only one sentence against the person convicted of murder under section 197 of the Penal code supra, the mitigations made by the defence advocate for both accused persons cannot help because the sentence is not discretional. I therefore sentence each of the accused persons Magereja Shija and Shija Mleka to a death penalty and in accordance to section 322 (1) and (2) of the Criminal Procedure Act, Cap. 20 R.E. 2022 I direct that each shall suffer death by hanging. I further under section 323 of the CPA supra inform the convicts that they have the right of appeal to the Court of Appeal of Tanzania against this judgment and that the period available for them to appeal is sixty days from the date of this Judgment. It is so ordered. A. MATUMA Page. 6 Hon. ATHUMANI MATUMA JUDGE 22/10/20 Dated at MWANZA ZONE this 23rd of October 2024. A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 7 Hon. ATHUMANI MATUMA