Omary Mihambo Dohoi

IN THE COURT OF APPEAL OF TANZANIA AT TABORA fCO RAM: LILA, 3.A., KITUSI. 3,A. And MGEYEKWA. 3.A.1 CRIMINAL APPEAL NO. 659 OF 2020 OMARY MIHAMBO @ DOHOI .... .......APPELLANT VERSUS THE REPUBLIC...... ....... .... ......... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) fAmour, 3.^ dated the 6thday of November, 2020 in Criminal Session Case No. 59 of 2019 JUDGMENT OF THE COURT 22ndSeptember & 3rdOctober, 2023 KITUSI, 3A.: This is an appeal against a conviction for murder in terms of section 196 of the Penal Code followed by the mandatory death sentence under section 197 of the same Code. An elderly woman known as Pili Makenzi met an unnatural death on 28 March, 2016 at Senge village in Nzega District within Tabora region, and the appellant was held a suspect. What made the appellant the prime suspect and then indicted, convicted and sentenced to death, was told by eight witnesses for the prosecution. However, the appellant maintained at the trial as well as here before us that he did not have anything to do with the deceased's death. It is useful to tell the family relationship among the people featuring prominently in this case. One Juma Kashinde and Omary Mihambo, the appellant were cousin brothers and Ndaro Bundala Kabula (PW7) was married to Juma Kashinde. The deceased was the grandmother of Juma Kashinde and lived in one of the houses within Juma Kashinde's homestead. The appellant who was also married with his own family lived in his house separate from Juma Kashinde's homestead but close by. Kashinde Dohoi Mihambo (PW8) was the appellant's uncle and a nephew to the deceased. Going by the sketch map that was tendered as an exhibit, he also lived within the same vicinity. According to PW7 and PW8, the appellant had a grudge towards the deceased, accusing her of having bewitched his son and ultimately causing his death. When the said son was still ailing, the appellant raised with PW8 the fact that the deceased was the architect of the son's illness and it looked like he was about to confront her. PW8 calmed the appellant down and promised to discuss the matter with the deceased so that she could mend her ways and release the son from the spell. However, the son eventually died which allegedly made the appellant hold the grudge towards the deceased. Apart from the foregoing background which would make the appellant the most probable suspect, something else allegedly happened on the night before the deceased was found dead. It was a rainy night. PW7 was in her house and fearing that the firewood she had left outside would get wet from that rain and make her cooking the following day difficulty, she went out of her house while holding a torch in order to bring them in. But there outside she saw a person leaning and peeping in the window. When she flashed the torch on him, he cleared off the place. She stated under oath that she identified the man as the appellant because of his black clothing which he had been wearing since the day and of course that he was a very familiar person to her. She said this, although seconds later she said that she had initially suspected the man in black clothes as one of the naughty people who go about peeping through windows of other people's bedrooms when they are in bed, A little while later when Juma Kashinde who had not returned home was approaching his residence, he spotted a man running away from it He too identified the man as the appellant but first he went to his wife where he expressed his suspicion on the two having an affair, then went after him towards the latter's house where however/he was not found. Appellant's wife known as Regina told Juma Kashinde that her husband had not returned home yet. Later in his defence we will hear the appellant say he was in the toilet and heard Juma Kashinde but his running stomach would not allow him to get out. Juma Kashinde did not testify but according to PW7, he suspected that the appellant and her were in an inappropriate relationship which accusation PW7 denied when her husband raised to her. Up to that moment there was no cause for alarm, concerning the deceased. However, in the morning that followed, it was discovered that the deceased had gone missing. PW7 was the first to know when she went to the old woman's house to invite her to join her for breakfast. Still, this was no cause to raise eyebrows because according to PW7 it was not unusual for the deceased to leave her house to go to unknown places without informing the family members around her, PW7 said, she would always return to her house eventually. On this day however, the old woman never returned home. So, it was one Kashinde Maila, also a family member who joined PW7 for breakfast, in the course of which, she inquired about the deceased's whereabouts but PW7 told her that she had no idea. 4 When by noon, there was no sign of the deceased, Kashinde Maila took a closer look into the old woman's room and noticed blood-stained clothes belonging to the deceased hidden by stuffing them underneath the bed cover. Fear set in and more people were called beginning with PW8 who in turn informed PW3. When PW3 the Village Executive Officer went to the scene, he took charge and directed that a bell be rang, a formal notification to members of the village that there was something unusual and urgent A search for the deceased was mounted. The search that was executed by a team that spread in all directions soon paid dividends. About 200 metres away, one of the groups detected a sign of something having been pulled or dragged, and they traced it to a place where they found the deceased buried. Immediately the team wanted to know from the appellant where he had been the previous night when Juma Kashinde had visited him. He gave the story of having been in the loo. Then the team saw foot prints of a bare-footed person at the spot where the body had been recovered. The foot prints allegedly matched those of the appellant so the team took this as another reason for suspecting him. More so because according to PW8 the foot prints led to the appellant's house. The appellant was consequently placed under arrest. Meanwhile, the police had been informed about the death of the woman at Senge village. SP Azizi Musa Kalokola [PW1] and others including DC Daniel (PW2) set out for Senge village where they found the appellant already under arrest. PW1 testified on the pieces of evidence he gathered through the interview he carried with relevant witnesses. The evidential value of his testimony will be considered later. Appellant's wife, Regina, told PW1 of their son's death in suspicious circumstances and that prior to that, a witchdoctor they had consulted had revealed to them that the deceased was the one who was bewitching him. She informed him that on the night of the alleged killing, her husband was unsettled as he kept moving in and out of their house. PW1 arrested other members of the family to join the appellant. These included Duma Kashinde, Kashinde Dohoi (PW8) and Makani Kashinde. It is important to note that Makani Kashinde was the one who was sharing the house with the deceased, and according to PW7, the 15 years old was out in his frolics on that fateful night. Subsequently, all arrested suspects were set free except the appellant who allegedly confessed before PW1. PW1 took the appellant back to the village where he was heard repeating the confession in the presence of the villagers including PW3 and PW8. He even offered to lead the search team to a place where he had hidden the murder weapon, and he allegedly did. There are two versions as to who led the way to where the lethal club was found and who picked it. PW1, PW2 and PW5 testified that it was the appellant who led the way. The appellant maintained that he is not the one who led the search team to the place where the club was found and that was the version given by PW3 too. Later the appellant allegedly made a confession which was recorded by PW6. Admission of this statement was, however, refused by the trial court for contravening relevant provisions of the Criminal Procedure Act (CPA). In defence, the appellant denied having suspected the deceased as the one who bewitched his son because, he said, he was aware that his son died of sickle cell, a known decease. As intimated earlier, he explained why he did not show up when Juma Kashinde called at his home. He pointed out that Juma Kashinde did not come forth to testify. He also reminded the court that he was among those who participated in the search for the missing old woman. He described how smaller groups went in search of the deceased before one group came up with a clue that led to the discovery of the body. He further stated that Juma Kashinde named him as a suspect just because during the previous night he had seen somebody at the window of his house and he suspected that man to be him. According to the appellant, that was a mistake because he was not the one. He admitted being interrogated by PW1 and PW6 to whom, he said, he denied any involvement in the commission of the crime. According to the appellant, despite that denial he was beaten up by policemen and forced to sign a statement. Thereafter he was taken to the village in handcuffs where leaders of the search team told the police they wanted to show them something and asked the said police to follow them. The leaders led the way to where a big stick was found. A policeman picked the club which had blood stains on it and the police carried it with them to the police station. He insisted that the reason for being implicated was Juma Kashinde's mistaken identity of the man he saw near the window to his house. The learned trial judge was satisfied that the appellant's guilt was proved by the following pieces of evidence; First, the confession to PW1 and PW6 which was repeated by the appellant in the presence of PW3, PW5 and PW8. Two, the appellant's confession leading to discovery of the murder weapon. The learned trial judge rejected the appellant's contention that he was not the one who led to the discovery of the said weapon. Three, the evidence of recognition that was given by PW7 who was familiar with the appellant. Four, appellant's conduct during the night when Juma Kashinde visited his residence. The learned trial judge rejected the appellant's contention that he was attending a call of nature. In the learned judge's view this contention needed corroboration but there was none. Thereafter the learned judge was satisfied that malice aforethought had been established by the vulnerability of the parts of the victim the murderer attacked, and the hiding of the body as well as clearing the mess at the scene. Hence the conviction for murder. The appellant has raised four grounds to challenge that decision: - 1. That, the case for the prosecutions was not proved against the appeliant beyond reasonable doubt 2. That, the circumstantial evidence relied upon by the trial Judge to convict and sentence the appellant is incomplete and capable o f the hypothesis o f another person's guilt other than the appellant 3. That, there is no coherence in the case for the prosecution as the testimonies o f the prosecution witness was marred with inconsistencies and material discrepancies going to the root of the case. 4. That, the learned trial Judge erred in fact and law for failure to consider the conduct o f the appellant namely taking part in the search for the missing old iady (the deceased) which is not consonant with the conduct of a guilty person. At the hearing of the appeal, Ms. Stella Thomas Nyakyi learned advocate represented the appellant. Ms. Veronica Moshi, learned State Attorney argued in opposition of the appeal on behalf of the respondent Republic. She was being assisted by Ms. Alice Thomas, also learned State Attorney. Ms. Nyakyi addressed the second ground of appeal first. This is on circumstantial evidence. By arguing this ground closely with the third ground of appeal on alleged inconsistencies, the thrust of the learned counsel's submission was that the inconsistencies rendered the circumstantial evidence weak. She picked some areas in the record of appeal to demonstrate that the pieces of evidence tending to prove murder against the appellant were not consistent. She said for instance, that PW8's testimony did no better than establish existence of a misunderstanding between the appellant and the deceased. She discredited PW7 who purported to have identified the appellant on a rainy night which must have made the circumstances very unfavourable for a positive identification and that in the morning when she went to invite the deceased for breakfast, she did not see blood stains in her room. She 10 criticized the judge's reference to the fact that the murderer cleaned the room. Also, that Juma Kashinde who also purported to have identified the appellant did not testify. The learned counsel suggested that the circumstantial evidence was capable of more than one hypothesis because the disappearance of Kashinde Makani who was living in the deceased's house was not rationalized. In addition, this witness did not testify. In her conclusion, Ms. Nyakyi submitted that there could have been strong suspicion against the appellant but suspicion however strong cannot be a ground for conviction, she argued. In support of her argument the learned counsel cited our decisions in Leonard Bundala Malunya @ Rena Ngasa v. Republic, Criminal Appeal No. 313 of 2022 (unreported) on suspicion and Hassan Juma Kenenyera and Others v. Republic [1992] TLR i'0'0, on visual identification. In addressing the second ground of appeal Ms. Moshi conceded that there was no direct evidence in the case but insisted that there is sufficient circumstantial evidence to link the appellant with the murder. She submitted that the appellant's identification by PW7 was unmistaken as per the case of Waziri Amani v. Republic [1980] TLR 250. Further that although Juma Kashinde did not testify, the appellant's own evidence 11 confirmed the visit he made to his house during that night. However, she conceded to the fact that the foot marks that were linked with the appellant were on a road or path used by other members of the village and that there was no explanation why the appellant was not immediately arrested. She also offered no explanation for not featuring in Kashinde Makani as a witness. Ms. Moshi submitted however, that despite those shortcomings, there was evidence of confession by the appellant leading to discovery of the weapon according to PW3 and PW5. She referred us to the case of Kirenge @ Chamuriho Julius v. Republic, Criminal Appeal No. 597 of 2017 (unreported), in support of her submissions. The learned State Attorney submitted that the appellant confessed at the scene in the presence of villagers and later led the way to the murder weapon. She prayed that this piece of evidence be considered in finding that the appellant was correctly convicted. In response to this argument on the confession, the learned advocate for the appellant submitted that the evidence of PW1 on this fact was not corroborated. She raised a question why did the appellant not confess before the villagers when he had not been taken to police? She pointed to inconsistencies on who led the team to the murder 12 weapon, and who picked it. PW3 contradicted PW1, PW2 and PW5 by saying that it was not the appellant who pointed to the place where the club was, but PW2 did it. She submitted further that there was no scientific proof such as DNA test to prove that the blood on the club was of a human being and whether it was the deceased's. On the appellant's conduct which forms the fourth ground of appeal, Ms. Nyakyi submitted that the appellant was right there in the village and took part in the search. She submitted that the appellant's conduct was not consistent with his alleged guilt. As we earlier alluded to, the learned trial judge concluded that the appellant's identification by PW7 left no possibility of mistake. However, in our re-evaluation of the evidence we think this conclusion was not well considered in view of the obtaining circumstances and PW7's other threads of testimony. The learned judge did not explain how possibilities of mistaken identity were eliminated in the circumstances of this case. We wish to quote at length what the Court said in Philimon Jumanne Agala @ 34 v. Republic, Criminal Appeal No. 187 of 2015 (unreported) on the value of eye witnesses: - "Based on decades o f research in which more than 2000 scientific studies have been made in the 13 aftermath o f the Turnbull guidelines given by Lord Widgery, State v. Classen Csupra) and our seminal decision in Waziri Amani (supra), a voluminous body o f scientific knowledge on eyewitness identification has developed. Furthermore, a number o f factors has been recognized as affecting the accuracy o f an identifying witness. These fall into three major categories. The first category pertains to the eyewitness and includes factors such as uncorrected visual defects, fatigue, injury, intoxication, presence of a bias, an exceptional mental condition such as an intellectual disability or extremely low intelligence, age (if the eyewitness is either a young child or elderly)." If applied to this case, the above cautions make us doubt if PW7 was really worth the belief she got from the learned judge. Let alone the fact that she had initially thought of the man she saw as one of those nosy people who want to eavesdrop at people in their bedrooms, but the grudge the appellant held towards the deceased could have biased her faculties. It is common for people to suspect that a person would most probably cause harm to his enemy. When this fact Is considered with the appellant's defence in which he insisted that the essence of all this was 14 the mistaken identity, it waters down the version given by the prosecution. In addressing the specific grounds of appeal, there are areas that we intend to keep our eyes on. The first is circumstantial evidence falling under the second ground of appeal. We shall resolve first whether the appellant's alleged nocturnal visit at PW7's house considered together with his reluctance to meet Juma Kashinde may be linked to the murder. Then there is the issue of the footmarks leading from the grave to the appellant's house. Secondly, there is the alleged confession which is also in two parts. The first is that the appellant confessed to PW1, then before the villagers including PW3, PW5 and PW8. The second part is that the appellant made a confession leading to discovery of the murder weapon. As shown above, the third ground of appeal attacks the judge's finding on this because according to Ms. Nyakyi, the prosecution witnesses were inconsistent. Lastly, we shall interrogate the appellant's conduct whether it is consistent with his guilt as alleged by the prosecution or consistent with his innocence, as suggested by the appellant in the fourth ground of appeal. 15 We shall begin with the appellant's conduct. This is because upon discovery of the deceased's body, the first question the appellant was asked by the village leaders was why he did not show up to meet Juma Kashinde when he visited at his house in the previous night. The learned trial judge rejected the appellant's defence that he failed to meet Juma Kashinde because was in the toilet. He took this as supporting the prosecution's evidence that indeed Juma Kashinde went to his residence, and the appellant was too guilty to meet Juma Kashinde. Let us for a moment go along with the prosecution that the appellant told a lie and that the lie corroborated the fact that he was guilty. But is it not possible that the appellant had another reason for hiding? It must be recalled that Juma Kashinde had shown that he suspected him for having an affair with his wife. Considering this fact, wouldn't the appellant have lied in order to avoid something disgraceful which would not necessarily be criminal in nature? It is a truth of life that sometimes people lie to avoid scandals that are not necessarily criminal in nature. In the case of Amitabachan Machaga @ Gorongondo v. Republic, Criminal Appeal No. 271 of 2017 (unreported), we said the following citing an earlier case of Hassn Fadhili v. Republic [1994] T.LR 89 16 "...People sometimes He fora just cause or out of shame orjust to conceal a disgraceful behaviour. For a lie to be corroborative o f the prosecution case, it must be material to the issue. " Besides, we do not go along with the learned judge that the appellant's assertion that he was in the toilet ought to have been corroborated. In our view that is an incorrect application of the law regarding burden of proof because the appellant had no duty to prove his innocence. See, D.P.P v. Ngusa Kaleja @ Mtangi & Another, Criminal Appeal No. 276 of 2017 (unreported). From the above exposition, we do not agree with the learned judge that the appellant's conduct was suggestive of his guilt in this case. To the contrary, we hold the view that his behaviour during the search for the deceased did not single him out as a suspect. For that reason, we find merit in the fourth ground of appeal. Next in our consideration is the circumstantial evidence. It is settled law that for a conviction to found on circumstantial evidence it must lead to no hypothesis other than that of the accused's guilt. See Mohamed Mustafa @ Rajabu & 2 Others v. Republic, Criminal Appeal No. 25 of 2017 and Jimmy Runangaza v. Republic, Criminal Appeal No. 159 ”B" of 2017 (both unreported). In this case, leave aside the submissions of Ms. Nyakyi showing some inconsistencies, we are disturbed by some other 17 facts too. If the police had believed the story given byJuma Kashinde and his wife PW7 about the appellant's involvement in the crime, why did they arrest five other members of the family including Juma Kashinde, PW8 and Makani Kashinde? When a question was put to PWl, the lead investigator, why Juma Kashinde was not charged, he responded: - "It was the State Attorney who decided to drop Juma Kashinde from the case, not me". The above goes to show that in his investigation, PWl still believed that Juma Kashinde deserved a day in court. Another disturbing feature is in a form of a question too; doesn't the fact that PW8 was initially arrested make him a witness with an interest to serve and that we should take his evidence with a pinch of salt? Then why were Juma Kashinde and Makani Kashinde not called to testify? In our view, Juma Kashinde's testimony was so crucial that we make an adverse inference against the prosecution for not calling him. Similarly with Makani Kashinde. His absence from the scene of crime at the time of the murder of the woman with whom he shared the house, was not rationalized. In our conclusion, there are several aspects that tend to suggest that the appellant's guilt is not the only possibility in the circumstances of this case because even in PWl's own words, Juma Kashinde, for instance, should have been charged too. The next piece of evidence to consider is the alleged confession. Ms. Nyakyi has submitted in two fronts of the same point. The first, is in a form of a question, that is, why did the appellant not confess in the presence of the villagers before being taken to police? In our view this question is relevant considering the appellant's contention that he was tortured in the hands of the police. Secondly, she submitted that the alleged confession was not supported by any evidence. Let us take a look at this alleged confession. PW5 for instance stated at page 89 of the record: - "SP Kalokola then told the gathering that after questioning Omar he confessed to the kiiiing and offered to show weapons used in the kiiiing. SP Kaiokola asked Omar in public whether the statement was correct. Omar replied yes it was correct". Considering the allegation of torture which the appellant said he suffered in the hands of the police, we doubt whether this alleged confession before the villagers, was made by him freely when all he was asked to do was to confirm what had been said by PWl, a police officer. 19 Although most of PWl's testimony is no better than hearsay therefore of no evidential value, the fact that he put his words into the appellant's mouth and referred to it as confession is relevant in showing that it is doubtful if the appellant confessed, and works against the prosecution case. The rhetoric raised by Ms. Nyakyi that why didn't the appellant confess early before being taken to police, introduces another doubt in the veracity of the alleged confession. Consequently, it is our holding that the evidence of confession was too weak to be relied on in convicting the appellant. We will now conclude with the first ground of appeal which raises the issue whether the prosecution proved its case beyond reasonable doubt. Having found merit in the second, third and fourth grounds of appeal, this ground of appeal is inevitably meritorious. We have found the circumstantial evidence weak for being capable of more than one interpretation. We have also found merit in the third ground of appeal on inconsistencies among prosecution witnesses on some key facts. As for the appellant's conduct raised in the fourth ground of appeal, we have agreed with the appellant that it supports his innocence rather than his guilt. In the end we find the first ground of appeal meritorious. Our conclusion is that the appeal has merits and we allow it. We quash the judgment of the High Court and set aside the sentence. We order the appellant's release from prison if his continued incarceration is not for another lawful cause. DATED at TABORA this 3rd day of October, 2023. S. A. LILA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 3rdday of October, 2023 in the presence of the Appellant in person and Mr. Steven Mnzava, learned State Attorney for the Respondent, is hereby certified as a true copy of the original. G. H. HERBERT DEPUTY REGISTRAR COURT OF APPEAL 21