JULIUS MABIZI MWASI JDGMNT

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALI. J.A., MAIGE, J.A. And RUMANYIKA. J J U CRIMINAL APPEAL NO. 186 OF 2021 JULIUS MABIZI M ASW I....................................................... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kahvoza, J) Dated the 23rd day of March, 2021 in Criminal Sessions Case No. 24 of 2020 JUDGMENT OF THE COURT 25th November & 11th December, 2024 WAMBALI, J.A.: The High Court of Tanzania sitting at Musoma (the trial court) convicted the appellant Julius Mabizi Maswi of the offence of murder and sentenced him to suffer death by hanging, in terms of sections 196 and 197 of the Penal Code Cap. 16, respectively. The conviction of the appellant followed the satisfaction of the trial judge that the evidence on the record left no reasonable doubt that on 27th June, 2019 at Iramba - Songora village within Butiama District in Mara Region, he murdered Meko John @ Mega. The basic evidence of the prosecution is gathered from two witnesses, namely G. 7536 DC Denis (PW1) and Joyce Zablon (PW2), the wife of the deceased, together with the dying declaration and Post Mortem Report (exhibits PEI and PE2 respectively). It is noteworthy that both exhibits were tendered and admitted during the preliminary hearing. According to the record of appeal, PW2 testified that on 27th June, 2019 at 05: 00 pm, while in the company of other persons, she witnessed the appellant cutting the deceased on the neck and forehead with a panga (bush knife). PW2 revealed that the appellant told the deceased that he attacked him because he had stolen his kitchen utensils and had affair with his wife. PW2 testified further that as the deceased was seriously injured, the appellant and his colleague thought that he had passed on, and thus the appellant attempted to set fire on the deceased but was restricted to do so by others. That, the appellant then entered into the deceased's house, collected the kitchen utensils and left. The deceased was taken to hospital by police officers who visited the scene of the crime shortly after the incident. Nonetheless, on 1st July, 2019, the deceased passed on. PW1, who was among police officers who visited the scene of the crime on the date of the incident, told the trial court that they were told by the deceased before he passed away that he managed to identify Julius Mabizi, the appellant, and that with the help of the villagers, they managed to arrest the appellant who was hiding in his farm. PW1 also testified that, after the arrest, the appellant told them that he injured the deceased because he was a thief who stole his household items. When the appellant was called upon to defend himself, he raised a defence of alibi to the effect that from 14th to 28th June, 2019, he was at Bunda for treatment of his dislocated leg. He tendered x-ray picture which was admitted as exhibit DEI. He testified further that when he returned home, he was informed that his kitchen utensils were stolen and when he went to report the incident at the police station on 28th June, 2019, he was put in custody for three days on suspicion of killing a person he did not know. The appellant also summoned Tabu Mabizi (DW2), his sister, who supported his story that he was in Bunda on the respective dates, and therefore, he could not have been present at the scene of the crime on 27th June, 2019 as alleged by the prosecution. At the height of the trial, the trial court unreservedly concluded that the prosecution proved the case against the appellant beyond reasonable doubt. Consequently, it convicted and sentenced the appellant as intimated earlier on. It is the findings and conviction of the appellant by the trial court which has prompted the instant appeal. In support of the appeal, the appellant initially lodged a memorandum of appeal premised on ten grounds. However, before the hearing of the appeal, a counsel who was assigned to represent the appellant lodged a supplementary memorandum of appeal containing three grounds in substitution of the memorandum of appeal lodged earlier on. Nonetheless, at the hearing of the appeal, the grounds of appeal were compressed and paraphrased into two as hereunder: 1. That the trial court grossly erred to admit and rely on the dying declaration (exhibit PEI) to ground the conviction o f the appellant. 2. That the trial court wrongly held that the prosecution case was proved beyond reasonable doubt. At the hearing of the appeal, the appellant was represented by Mr. Leonard Elias Magwayega, learned advocate, whereas Ms. Mwajabu Tengeneza and Ms. Sabina Choghoghe, learned Principal State Attorney and Senior State Attorney respectively, represented the respondent Republic. In support of the first ground of appeal, essentially, Mr. Magwayega submitted that the trial judge made a wrong finding that a dying declaration which could not be solely relied on to ground the conviction of the appellant was corroborated sufficiently by the evidence of PW2 who was the eye witness to the incident. In his view, the evidence of PW2 could not be relied on to corroborate the dying declaration because her credibility was questionable. He elaborated that, the evidence of PW2 was greatly shaken during cross - examination. He thus urged us to find that the dying declaration could not be acted upon solely to ground the conviction of the appellant and that it was not corroborated by the other evidence on the record. For her part, Ms. Choghoghe strongly supported the trial judge finding that the dying declaration of the deceased which was admissible under section 34B (1) (a) and (2) of the Evidence Act, Cap 6 (the Evidence Act) was amply corroborated by the evidence of PW2, who was the eye witness to the incident. She added that the evidence of PW1 also corroborated the said dying declaration. Besides, she emphasized that even without the dying declaration, the evidence of PW1, who was told by the deceased that the appellant assaulted him suffices to ground conviction. We note that, in the judgment, the trial judge discussed the contending submissions of the counsel for the parties on the reliability of the dying declaration. In the end, he concluded that though the dying declaration required corroboration, such evidence emanated from PW2. Particularly, he reasoned and concluded as follows: 7 concur with the defence advocate that a dying declaration must be corroborated before a court can act on it and that the circumstances under which it was made must be considered. The declaration in the current case was made in a critical state. It was not witnessed by any person not even the nurses who attended the deceased. I attach very little probative value to exh. P.l. It must be corroborated. I find Pw2 Joyce's to have corroborative value." We agree with the trial judge's reasoning that the dying declaration required corroboration. However, with respect, we do not affirm his finding that PW2 corroborated the dying declaration in view of the circumstances of this case. We hold the view because; Firstly, though exhibit PEI was admitted during the preliminary hearing and its contents read over, the person who recorded the dying declaration, H. 2922 D/C Ezborn was not summoned to testify at the trial. Besides, the condition of the deceased while at the hospital is not known. The evidence on record is silent on the matter, though the trial judge noted that he was on critical condition. There is also no evidence from medical personnels who were attending the deceased at the hospital on his health condition to lead the Court to conclude that the dying declaration was made by the deceased while conscious. The available evidence is that the deceased sustained multiple cut wounds on the scalp, neck, chest, back and upper limb. Indeed, according to exhibit PEI, the cause of death was due to severe traumatic brain injury. In Emmanuel Eliabi @ Sunga v. The Republic (Criminal Appeal No. 327 of 2021) [2024] TZCA 3 (2 January 2024, TANZLII), the Court emphasized that for a dying declaration to be used in evidence, it has to be made freely out of consciousness of the maker. Secondly, the evidence of PW2 could not corroborate the dying declaration because according to her testimony, she did not visit the hospital where the deceased was admitted as she was sick until the deceased passed away. PW2 did not therefore, know the condition of the deceased at the hospital or the circumstances under which the dying declaration was made before the police officer who recorded it. Moreover, the testimony of PW2 does not indicate that she heard the deceased telling anyone, including PW1 that, it was the appellant who injured and ultimately caused his death though she testified that she was present when PW1 and other police officers visited the scene of the crime. However, in her testimony, PW2 did not support the assertion of PW1 that the deceased told them that it was the appellant who attacked and injured the deceased. We are alive to the contention of Ms. Choghoghe that as an eye witness, PW2 identified the appellant at the scene of the crime. We will revert to this argument shortly, when we consider the second ground of appeal on whether the case for the prosecution was proved to the hilt. In the same view, we do not endorse the argument of the learned Senior State Attorney that the evidence of PW1 can be taken to substantiate the contention that the deceased mentioned the appellant as the assailant at the scene of the crime. It is on the record that, while PW1 stated that the deceased told them that he was assaulted by the appellant, he did not even mention the police officers who accompanied him or the persons they found at the scene. According to PW1, after he sent the appellant to Butiama Police Station allegedly on 28th June, 2019, he did not deal with the case anymore. It is evident therefore that PW1 did not go to the hospital where the deceased was admitted and thus, he did not either know his condition or witness when the dying declaration was recorded by a fellow police officer at the hospital. In the circumstances, the evidence of PW1 cannot be the basis of corroborating the dying declaration (exhibit PEI) or stand alone as evidence that the deceased made an oral dying declaration to him as strongly contended by Ms. Choghoghe in her submissions opposing the appeal. On the other hand, relying on the settled position of the law that a dying declaration must be thoroughly examined and that for it to be acted upon corroboration is highly desirable (see Sadick Ally v. The Republic, (Criminal Appeal No. 81 of 2015 [2015] TZCA 468 (19 August 2015, TANZLII), we entirely agree with the appellant's counsel that its content on who attacked the deceased differ with the evidence of PW1 and PW2. It is apparent in exhibit PEI that the deceased stated that on the fateful date, that is, 27th June, 2019 at 17:00 hours, while on the way to his home at Iramba from Nyamika village, he met four persons, namely Nyanya Magemagema, Magangira Masala, Deus Mkinga and Julius Mabizi (the appellant), who were holding bush knives. That the said person interrogated him concerning the presence of stolen household items in his home which he denied. According to the statement, after that reply, the deceased was attacked using the bush knives, on the hand, forehead, back and various parts of the body. The deceased also stated that the attack was made in the presence of Masua Mganga, Blezi Sonzo and Mwama Maswi. Unfortunately, the said persons were not summoned to testify at the trial to substantiate the statement. It is also apparent in the statement that the deceased did not mention the presence of his wife (PW2) when he was attacked on the said date. In the circumstances, we hold that exhibit PEI cannot be solely relied on to ground conviction of the appellant and that the evidence of PW1 and PW2 cannot be a source of corroboration. Consequently, we allow the first ground of appeal. Regarding the second ground of appeal, the epicentre of the submission of the appellant's counsel is that the prosecution case was not proved beyond reasonable doubt because the evidence of PW2 with regard to the identification of the appellant at the scene of the crime was not watertight. He submitted that gauging from the evidence of PW2 on the record, particularly the fact that she did not know the name of the appellant before the incident though he was her neighbour, indicated that she did not identify him. He added that, during cross examination, PW2 agreed that the name of the appellant was disclosed to her by her cousin who was not called to testify to support her assertation. In his submission, the evidence of PW2 is not reliable as her credibility is questionable. On the other hand, the learned advocate submitted that considering the gaps and weakness in the evidence of PW2 concerning the identification of the appellant, the prosecution was bound to summon other material witnesses to remedy the situation. He thus urged us to find that the said failure by the prosecution, entitled the trial court to draw adverse inference to its case. In response, Ms. Choghoghe strongly contended that, PW2 is a credible witness as she positively identified the appellant at the scene of the crime as the incident occurred before the sunset. She emphasized that PW2 properly identified the appellant who was her neighbour though she did not know his name. She added that the appellant and other suspect took considerable time to execute the offence when attacking the deceased and later entered in the house where the appellant took the household items. Relying on the decision of the Court in Goodluck Kyando v. The Republic [2006] T.L.R. 363, Ms. Choghoghe submitted that, PW2 is entitled to credence and be believed as it has not been shown otherwise that she cannot be reliable on the issue of identification. She argued further that PW2 demonstrated without doubt that the appellant attacked the deceased and caused his death due to the wounds he sustained. She explained that the nature of the wounds inflicted on the deceased left no doubt that the appellant intended to cause the death citing the decisions of the Court in Charles Bode v. The Republic (Criminal Appeal No. 46 of 2016) [2019] TZCA 578 (6 March 2019, TANZLII) and Enock Kipela v. The Republic, Criminal Appeal No. 150 of 1994 (unreported). Regarding non summoning of material witnesses, the learned Senior State Attorney quickly sought refuge on the provisions of section 143 of the Evidence Act, to stress that the prosecution is not bound to parade before the trial court a specific number of witnesses to prove a fact in a case as evidence is not counted but weighed to arrive to a conclusion on the guilty of the accused. For our part, considering the finding we have made with regard to the apparent disconnection between the evidence of PW2 and exhibit PEI on the assailants who allegedly attacked the deceased at the scene of the crime on the fateful date, we have no hesitation to hold that, the evidence of PW2 concerning identification of the appellant is not watertight. We hasten to add that, the evidence of PW2 on the issue of the number of assailants at the scene of the crime is shaky. In this regard, while during examination in chief PW2 consistently stated that the appellant was accompanied by thirty persons, when she was asked a question for clarification by the assessor, she stated that they were nine. Apart from shaking her credibility, the respective piece of evidence is in sharp contrast with the contents of exhibit PEI which shows that the assailants were four. It is also not doubted that, according to the evidence on the record, PW2 did not know the name of the appellant as she agreed that she was told by her cousin. Unfortunately, the said cousin was not called to testify. Moreover, we wonder if PW2 properly identified the appellant despite the alleged considerable time taken by the assailants at the scene of the crime. To this end, we note that though PW2 testified that the appellant entered the house and took kitchen utensils, she did not state the number and description of the said properties as she had earlier on testified that they belonged to her. This cast doubt on her credibility having in mind that she alleged that the incident occurred before sunset and thus there was light from the sun. Moreso, PW2 testified that the appellant had attacked her before he later inflicted injuries on the deceased. More importantly, while PW2 testified that the assailants held pangas (bush knives), arrows, bows and sticks, exhibit PI, shows that the assailants had bush knives only. It is thus doubtful if PW2 really identified the appellant and other assailants though she testified that she stood two or three paces from where the deceased was being attacked and that on that date, the visibility of the assailants could not be obstructed by anything. However, PW2 did not describe the appearance of the appellant on the fateful date. This was an important aspect in identification of a suspect. In Ayubu Zahoro v. The Republic, Criminal Appeal No. 177 of 2004 (unreported), the Court observed that: 7/7 considering whether conditions are favourable for correct identification, the court has consistently held that in identifying an accused person, where a witness saw the accused for the first time there is need for the witness to describe the identity in detail". It is also settled position that, the credibility of the identifying witness should also be considered by the Court before reaching a conclusion that the identification of the accused is watertight. While we take note of the observation of the Court in Goodluck Kyando v. The Republic (supra) that every witnessed is entitled to credence and be believed unless otherwise, the Court in Patrick Sanga v. The Republic, Criminal Appeal No. 213 of 2008 (unreported) laid down some factors to be considered in deciding whether to believe or disbelieve a witness. It stated: "To us there are many and varied good reasons for not believing a witness. These may include the fact that the witness has given improbable evidence; he/she has demonstrated a manifest intention or desire to He; the evidence has been materially contradicted by another witness or witnesses; the evidence is laden with embellishments than facts; the witness has exhibited a dear partiality in order to deceive or achieve certain ends etc." In addition, in her evidence in chief, PW2 did not show that she told the police officers, including PW1, who arrived at the scene of the crime the name of the suspects. It is also noted that, during cross - examination, PW2 testified that she did not remember the date in 2019 when she went to the police station to record the statement. Moreover, PW1 who was accompanied by other police officers did not also state that at the scene of the crime they met PW2 or that she disclosed to them the involvement of the appellant and other assailants in attacking the deceased. On the contrary, the evidence of PW1 was fairly brief and to the effect that, it was the deceased who told them concerning the involvement of the appellant in the commission of the offence. PW1 did not also state that the deceased told them that there were more persons who attacked him other than the appellant. In the circumstances, we are satisfied that the evidence of PW2 on the issue of identification was not watertight contrary to the assertion of the learned Senior State Attorney. In Nhembo v. The Republic, Criminal Appeal No. 33 of 2005 (unreported), the Court stated as follows regarding what constitutes watertight evidence: "In law ... for evidence to be watertight\ it must be relevant to the fact or facts in issue, admissible, credible, plausible, cogent and convincing as to leave no room for a reasonable doubt" In the case at hand, we are satisfied that the evidence of PW2 regarding the identification of the appellant left doubts to the extent of denting the prosecution case. In this regard, considering the nature of the case and the evidence on the record, we find that the prosecution was duty bound to summon some material witnesses we have alluded to above to fill the gaps left by the evidence of PW1 and PW2 and the dying declaration (exhibit PEI) to prove its case. In Kisinza Richard v. The Republic [1989] T.L.R. 143, the Court remarked that: "The prosecution is under prima facie duty to call material witnesses who from their connection with the prosecution in question are able to testify on material facts. I f such witnesses are not called without sufficient reasons, the court may draw an adverse inference to the prosecution'' In Gabriel Simon Mnyele v. The Republic (Criminal Appeal No. 437 of 2007) [2010] TZCA 97 (22 December 2010, TANZLII), the Court stated that: "... Under section 143 o f the Evidence Act (Cap. 6 R.E. 2002) no amount o f witness is required to prove a fact - See Yohanis Msigwa v. The Republic (1990) T.L.R. 148. But it is also the iaw, (section 122 o f the Evidence Act) that the Court may draw adverse inference in certain circumstances against the prosecution for not calling certain witnesses without showing any sufficient reasons, see Aziz Abdaiia v. The Republic (1991) T.L.R. 71". Reverting to the case under consideration, considering our deliberation above, we hold that the trial court was enjoined to draw an adverse inference to the prosecution case for failure to summon some material witnesses to fill the gaps in evidence on the record. As the inference was not drawn, we accordingly draw it. In the circumstances, we are of the view that, the prosecution was not only required to prove that Meko John @ Mega died but also that it was the appellant who caused the death with malice aforethought. To this end, we find that the involvement of the appellant was not substantiated to the required standard. In Mohamed Said Matura v. The Republic [1995] T.L.R. 3, the Court stated that: "Upon a charge o f murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is 18 casted on the appellant to establish his innocence . From the foregoing, we hold that, the prosecution case was not proved beyond reasonable doubts. In the result, we allow the second ground of appeal. Consequently, we allow the appeal, quash the conviction and set aside the sentence of death by hanging imposed on the appellant. Finally, we order that the appellant be released from prison custody if he is not held for other lawful causes. DATED at MUSOMA this 10thday of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 11th day of December, 2024 in the presence of appellant in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.