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-. .._. ---•:----- -,--.----- --- --- )'. :· ', ":•,_,," _i,-_ .... ft;.".~ '·· .. ··.~ f4'~!-·; t1-.~Y.-~'~)~:-:--~-~~-~~-~iew;.._.,·; ·::@ ,"'F,~ . ... .. l·. . , , ,., . _ . ., ~.. •' '• _;,..;;.,_,;;"'4,v~~,£,..:.....:iii'1~~:·~:.,.;~;t~..;~;i~:i.1.£;~.~;,.,~ NATHANIELALPI--IONCE MAPUNDAAND_. BENJAMINIALPIIONCJE MAPUNDA v. REPUBLIC C COURT OF APPEAL OF TANZANIA_... ATIVIBEYA (Mroso, Nsekela and Msoffe, JJA). 'CRlMINALAPPEALNo. 251 OF 2005 (Frorri the judgment of the High Court of Tanzania at Songea, Manento~ t, dated E 28 October 2003, in Criminal Sessions Case number 40 of2001) Criminal Practice and Procedure - Burden of Proof - Appellants convicted of murder and manslaughter:... No prosecution witness ·testified to• have seen ·the .appe~l{l~t.s kf ll the df!.ceased - Witnesses o~ly saw. appellants lilith the · F deceased b(?dy - Whether prosecution case was proved beyond reasqnable doubt. , .. Criminal Practice and Procedure - Circumstantial evidence - Appellants seen with the dead body - Whether this was enough evidence ;to g,~ound. d ' G · conviction. --. Criminal Practice and Procedure - Appellants present at the scene of the killing .--:- Appellants_ were the last persons to be seen with the deceased.-:• Whether . sustainable grounds to link appellants 1vith the -killing of the deceased., H ., ... Criminal Practice and Procedure - Senterising -Appellants had a common. intention of assaulting . the deceased but sentenced differently _; Whether ' sentencing was proper. I .(· 3'96 TANZANIALAWREPORTS A The appellants, who were brothers, were charged with murder contrary to secti(1t1%\ 196 of the Penal Code. After a full trial the judge convicted the first appellant o:f;~ murder and the second appellant of manslaughter. At the trial no prosecution witnes~'.;fi: testified to have seen the appellants kill the deceased. They only stated that on arrivnfI/ t . ·:,·{( B at the scene they saw the appellants with the deceased 's body. On appeal to this:),; 11 Court ' ' Held: (i) As is well known, in a criminal trial the burden of proof always lies on the - . / - ·j ~ ·prosecution. Indeed, in the case of Mohdmed Said Matula v. R (2) this Court ( C reiterated the principle by stating that in a murder charge the burden of proof is alw:ays on the prosecution. And the proof has to be beyond reasonable doubt; (iiJ Where circumstantial evidence-is i;elied on the principle has always been that facts from which an inference of guilt is drawn must be proved beyond reasonable . o. doubt; . (iii) Much as we are aware that this is a sound and cherished principle of law (that the appellants were the last persons to be seen with the deceased) _our view is that the principle presupposes that an accused person was last seen with a deceased E pergm while still,alive. . __ . _ _ . _. , _" . __ ~- (iv) In a criminal charge suspicion alone, however grave it may be, is not enough to sustain a conviction, all the more so, in a serious charge of murder; F (v) The-ptlndiple has always been that where a person is killed 111 the course of prosecuting i common unlawful purpose each party to th~ k:illing is g~ilty pf murder. \ Appeal / allowed '' ~ G Cases referred to: ! I (I) Efraim Lutambi v. Republic (CAT) Criminal Appeal number 30 of 1996 (unreported). (2) - Mohamed Sadi Matula v. R [1995] T.L.R. 3 H -(3) Ally Bakari and another v. R [1992] T.L.R. -10 (4) Jackson Mwakatoka and twoothers v. R [1990] T.L.R. 17 (5) Juma Zuberi v. R [1984] T.L.R. 249 l -m;;;i;;;ww&&&;Jg; & bf Katabe Kachochoba v. R [1986] T.L.R. 170 A Haruna Mohamed and Mathew Lwali v. R (CAT). Criminal Appe~l · number 30 of 2001 (unreported) 1 Tabulayenka s/o Kirya and others v. Republic (1943) 10 E.A.C.A; B I 51 tatutory provisions referred to: / ~ Penal-Code, Chapter 16 sec,tions 196. and 195 . C Criminal Procedure Act 1985, section 192(3) . r. Mbise for the appellants . . . essrs. Manyanda and Boniface for the Republic D JUDGMENTOFTHECOURT (Dated 31 August 2006) E Msoffe, JA: The appellants, who are brothers, were.charged\vith murder contrary to section 196 of the ·Penal Code. It was alleged that on 16 ·october 2000, atabout 00:30 hours at Liwili village within · Mbinga-District they murdered one Egreta Ndimbo. After a full trial F the High Court (Manento, J.) sitting at Mbinga convicted the first appellant of murder and the second appellant was convicted of mansl~u.g11ter C,OI?-trary to _section 195 ofth~ Penal Code~ Co:t;18ieque11tly, the fir-s't appellant 'was sentenced to death and. the s~cond}pp~lla11t. G wa~ sentenced to a term of imprisonment for twenty one1years~ In grounding th~ convictions the learned trial judge observed and reasoned partly as follows: . . . . . O~_ iny observatien to the demeanour of the second accused person, the H way·he was giving his evidence, answering questions put"to hiin~ I am of •• I • -._-.• the opinion that he was persuing (sic) a just and lawful c_ause; that of· I gr arresting a suspect~ But he was negligent in not rescuing the deceased. I ·f-,, · · have a feeling that he was telling the truth when he said that he urgued 1 .; . his brother, the first accused not to assault the decease_d after her. arrest ,1 ... I, "4 l I · 398 ', TANZANIALAWREPORTS [2006]'I_'f,....l':,/'-: l···"},;".' .'.,l •· r;;?:?~, --------------------------=-------=----~i~~f'--•• A but the firstaccused, persisted in the assaulting of the deceased; causing 1'.~{ Ar the rapture of the forehead of the deceased. The whole proceedings showc<l K:{·J how the first accused, was in command of the situation. Senditig other 'f'( ~, . . . I ~ people to go and report to the authority first the order given to PW2 ;./ i :,._, -· ·if B /' Geofrey Kayombo who refused and later on to _the second accused. All ·}f :j I . '.o,:/ i those circumstances leads me to conclude that there was no mens rea by j 't~i the second accused. That was only by the first accused, who had alleged :ttJ:. l -'f' ' - that the deceased was stealing his maiz,¢. What the second accused did 't!t : C was to assault the deceased. But his being in action leads to a commission l{f .~:~:~:ga~~i:;:~::::::c:~::;=1::ep:::~:~~:: ~:a~:~::::~::::e::::~ I of lesser offence. As to malice aforethought, I would say that it has been ::;,: D the death of th~ deceased. That the deceased, was a weakly health woman :~ was fatally beaten on her head which at the end, caused her death. The :ff'. first accused's malice aforethought could also be inferred from his belief -11 that the deceased was a reputed thief, a habitborn, on her mother's family. ';••: ' :"~·~- E The appellants are dissatisfied, hence this appeal against the respective ::J convictions and sentences .., _ ... . --~ ?' . ~-_. . : . .• . ,, ~ •• . t Atthe hearing of the appeal Mr. Mbise learned counsel advocated for the appellants. Mr. Manyanda learned state attorney assisted by F Mr.. Boniface:Je.arned senior state. attorney appeared on behalf of - the respondenLRepublic.-,We - - - wish to state from-the outsetthatthe I learned state attorneys did not support the convictions and sentences. - ' ~ . : . . ' ' . ML'Mhise fileda Memorandum of Appeal with four g·rounds of G complaint. The grounds read as follows: - - -- , ; -- , .... · ... -' : . . . 1. _ The)eapied honourable trialjudge erred on concluding that the deceased did not meet her death at the hands of members of a Mob. H 2. . The l~arped ho:qourable trial judge err,ed,in riot ta]:dng into account the Caµtioned and Extra- JudiciaLStatements, adm,itted -and marked - _ Exhibits P.2 (a) and (b) and P.3 (a) and (b) in his Judg1:11ent. - 3.: The learned honourable trial judge took a w:rong approach to the I testimony of the second appellant as against the_ first appellant.· NATHANIELALPHONCE MAPUNDAAND BENJAMIN! . ALPHONCE MAPUNDA v. REPUBLIC 399 4. The sentence of twenty one (21) years imprisonment imposed on the second appellant is manifestly excessive in the circumstances of this case. n arguing the appeal Mr. Mbise submitted generally on he above rounds. In the process, he contended that it was wrong for the trial B High Court not to believe the deferice evidence that the death of the .. eceased was caused by a mob of people. No prosecution witness testified and stated that he/she saw the appellants assaulting the deceased .to death. In this regard, the prosecution case either succ·eeded or C . failed on the basis of the defence case. The appellants' version of . the circumstances surroundjhg the cJ.eceased's death was nofcontradicted by the prosecut_ion side. If the judge had appreciated the above facts he woutd not have convicted the appellants, Mr.-Mbise concluded D on th~ point. As for the different convictions and sentences, Mr. Mbise faulted the j-q,gge for tr~~ti~g the appellant~ differently. On~:e the judge h~d _ . _fouricfthat th~ app~ella.nts h~d a.co~mon inte.ntion of as.f>a~lti1ig t_h~. E deceased he ought riot to have convicted and sentenced them diff~rently.. At any rate, Mr~ :Mbisy-went on to say, th_e sen~~n~e .of 2 J! years imprisonment meted out to the second appellant_ wa~ to~ seyere.for an offence of manslaughter. F . In: -~~pp'ort~~_g' th~ appeal Mr.- Manyanda essentially_ repe_ateµ :the 1 -submission made above by Mr. Mbise. He too was conviiicelthat the judge'w~ in error for the reasons stated by Mr. Mb1_s~.-He yrnphasizeq that.anythin.g th~t wa_~ nu1terial t~ th~ ·cas~ came frc,m\he,; appellants G . i-· themsefves. It wa~;therefore wrong toground the conviction on the ·; ·i basis-ofthedefence case, he urged. In conclusion 9nthe above point, :1: Mr. M~_nyan.da.wa~_oftp.e view that the_~ppellants' convic.tions were base4_ . 011 suspic~on only._.Like. Mr. Mbi~e, Mr. Map:yanda ~I.so ,felt B. ·1: tha,t on9e the jud~e ha~ foun9 that the appel~ants had a ~9nunon ip.tention )'. ofassa~lting the deceased it was wrong to convict and sentence.them -J ·. differently. I •· 400 TANZANIALAWREPORTS [2006]TLR ...._ A In his brief submission Mr. Boniface was of the view that there were a lot of doubts in the prosecution case. The doubts ought to have been resolved in favour of the appellants, he submitte·d. Like Messrs. Mbise and Manyanda, Mr. Bonifance was also of the view B 'that the judge ought not to have treated the appellants differently in Handing down the convictions and sentences. Mr. Boniface added another point which was not canvassed by Messrs. Mbise and Manyanda in theit respective submissions. The C point relates to the cautioned and extra judicial statements which were produced and admitted in evidence at the preliminary hearing. · The complaint here is that the statements were not read-over to tue appellants. _With respect, weagree~with Mr. Boniface in the following sense. A look at the record of the-preliminary hearing conducted on 26 August 2002 will show that cautioned statements as well as extra judicial statements were produced and admitted in evidence as Exhibits. P2 and P3 respectively. Thereafter, a Memorandum_ofMatters that E . were n~t i;i dispute was drawn up and signetlbythe parties .. However, thetec·orcLof the ;case does· 11ot show-thatthe co11te11ts of the Memotandum were read over,'a.nd explaip.ed to 'the ~ppellants as required b,y sub- .· sectio11 (3) of section 192 of the Criminal Procedure Act, 1985. F The sub~section reads': . . . (3) At the conclusion of a ,preliminary hearing held, under this section, , , ·, , , , ·, ,: ·: , , '·. ,, I. ' the, Court shall prepare a .memorandum ,•' ·. ,. of the matters agreed and .· . . ,. , .''.the memorandum shall be read, ·;:, over and• explainedto the accused' ,, ::-· . .. ' ., ·,. . : · ·. . , · ·, 1 G in a language that he understands, signed by the accu$ed and his ,advoc~te and by the public prosecutdr 'and then-filed [emph~dis' supplied]. , :. • '· .! . ·, ,. ,'.! ; •• In the case o{Bfraim Lutambi v. Republic (1) this Court stated: . _ .. ~ .. Any exhibits, including-cautioned and extra judicial statements, which H are not in dispute should have them r~ferredto and given·exhibit numbers . .in the ·memoi-anpum ofundisputea rr1attet~: Th~ cont~~ts of th-e mem:orandum including the exhibited statements, if any, should be read_over .and explained to the accused (in a language he understands), and the.fact that that has l. been done should be reflected on the record. NATHANIELALPHONCE MAPUNDAAND BENJAMINl ALPHONCE MAPUNDA v. REPUBLIC 401 For purposes of our decision in this matter we note that the judge did A not attach any weight to the above statements in his judgment. He dec_ided the .case on the basis of other evidence. In the light of this fact, we do not I have to go further . and discuss the evidential value of the statements in .relation to the case and what orders could be made in the circumstances. f B It will suffice to say briefly that we hope in future the provisions of section · 192{3) of the above Act, as emphasized in Lutambi, will be complied with fully by judges·and Magistrates when c01;rducting preliminary hearings. After all, the provision is couched in mandatory terms. At this juncture c -we think it is pertinent and instructive to state the case that was before I . • . • .the trial High Court. · / • . ~- "As earlier stated, the appellants are brothers. At the material time ·they lived at Liwili village i~ Mbinga District, Ruvuma Region. The.first D appellant owned a shamba where he had p_lanted maize. At the time of the incident the maize was ripe and ready for harvesting. On 16 October -2000 at about 1230 hours ·the fist appellant was going back honie4 As he p'assed through his shamba he saw a person harvesting his maize~ He E •quietly went to the home of the second appellant which was ne~rby and informed him -of the person he had seen at his shamba. The twd went.to the shamba where they saw the person who happened to be the dec·eased · in this case. They raised an alarm, popularly known in'the area as-·t'mle{e." .F __ · Those who answered the alarm wer'e PWl Charles Mwingira, PW2 Geofrey , Kayombo a~d PW3 Odo Kayombo. These witnesses stated that on 4rtival at th~ ~-c~ne_J4~y .saVv. the appelhmts with the deceased's bo_dy. Upon iriquirly the, ~ppell~nts tol,d them that tpe deceased was assa-qlt~d to cleath by ~_w9b ~r~~o.pie, who;h~~ ~lr~a9y disp~rsed atthetime.·Intheir_,-~espective G defences . ' the_·.' !appellants .. ·· .. : , ' ,. . repeated .·. ,.. . the.same ... , . story,. .that . the .... . . .. . _cle~eased '• \ •.: .., •.. was _killed by a ~ob of people. . . . . .. . . There· was no :dispute at the trial that Egreta Ndimbo was dead and H that she died on 16 October 2000 at about 0030 hours. Accordfo.g to the • .... post mortem examination report the death was due to fracture. of the fro~tal pone with brain . . : damage. . It wa_s . . _due . .. to fracture . . of the ..... fi;orital . ,. bone . . · with brain damage. It was also undisputed that no_ prosecution witness 1 _testified to have seen the appellants kill the deceaseq_. The crucial issue · / 402 TANZANIA LAW REPORTS [2006] TLR;. was whether the appellants were responsible for the death of the deceased. The judge considered the issue and answered it in the affirmat~ve. He held that the appellants assaulted the deceased to death. He also ·opined and held that the reasonable inference was that the appellants raised the B "mlete'1 as a camouflage "so that it could be believed that they did riot kill the deceased." . As is well known, in a criminal trial the burden of proof always lies on ~/ the prosecution. Indeed, in the case of Mohamed Said Matula v. R. (2) · C this Court reiterated the principle by stating that in a murder charge the ,burden of proof is always ~ . on the prosecution. And the proof.- has to be beyond reasonable doubt. In the ins.rant case, the appellants•did not admit the killjng .. So, itwasthe duty of the.prosecution to prove the case against D them beyond -reasonable doubt if a conviction was to lie in the matter. · Without hesitation, we are in agreement with learned counsel from both sides that this burden was not discharged. As is evident from the evidence, . apart fr:qm. the ,4ead body being-,seen,.orfoundcinthe .first.appellanf s sham ba, E- and. the fact: that the appellants were .also. seen. there, there was no other evidence-to implic.ate them-.with.the killing. We agree with leam,ed counsel · that the above evidence was not enough to sus.tain a conviction. There ought to have b~en 1,nor_~ credible evidence linking the appellants with the -F k1ll,ing,A,ppar('.?.ntly,.JJ() such positiye.yvidence.w~.s forthcoming. In fact, in the a,b~~nqe _.qf~yyi4enceJo: the contrary,th,e: appellants\·version. of the incidyn.t m.igpt,as ,WEilth.~ve .been true. . .. \ I . . . . . . . . . . ., We! 1also\vi'sfrto ::idd:here· that-although the judge did not s~y sO- in so . G many words -he app~;~red to: have -b~en ·workfr1g oh the idea/ that there · was·citcumsfantial evidence linking the appellari.ts.withthekillirig on.account ofthe\iiidisputed fact. that they , were seen withthe.de~d body. ' With respect, . .' . this fact alone was not enough to ground a convt'ctio11. The 'pdncipfo has II- always been that fa-cts .from which an infere_nce of guilt i~ drawn roust- be -.prov.~4 '.b~yon,d.rea:so.n~ble ·doubt;--; Ally-Bakari -cznd,Anofher.v. R .. (3) .. .In the i~stant cas·e no such proof was forthcoming, as alre~dy stated above. We· ·ar·e aware that it could perhaps be suggeste4 th;at the appellants I. were responsible· for the death. because they. wer~ present at the scene NATHANIELALPHONCE MAPUNDAAND BENJAMIN! ALPHONCE MAPUNDA v. REPUBLIC 403 of the killing. As far as this point is concerned we wish to associate ourselves A with this Court's decision in the case of Jackson Meakatoka and 2 Others v. R. ( 4) where at page 21 the Court quoted a statement from a }~.-.s:'- 11 '] ~ ... :, / -.,;:- decision of the Eastern Africa Court of Appeal in the case of R. v. Ko men ., I }'-"tf ili~: B "7-.i, t.,~~""/,., ,. Mere presence of the accused at a killing, he not having raised any :~, objection thereto is not enough to justify his conviction for murder. / ~ Again we are also aware that it could perhaps be argued that the appellants . C w.ere responsible for' the death because they were the last persons to be seen with the deceased. Much as we are aware that this is a sound and ~herised principle of law our vii'w is that the principle presupposes that an ·a~cused perso~ was last seen with a deceaseq per_son while still alive. D Indeed, in, the cases of Juma Zuberi v. R. (5) .and Katabe Kachochqba . . , . . v...R. ( 6) the respective accused pesons were said to have been seen with the deceased pesons while still alive. In the instant case the situation is different.- The prosecut~on w~tnesses saw the appellants with the deceased after she had died. S~, the principle would not apply. ; E . . As observed by Mr. Many~nda, the case against the appellants may well be highly suspicious. However, in a criminalcharge suspicion alone, however grave it may be, is not enough to sustain a conviction, all the mor~ s·~-,. i~ a ~-~~ious ~barge of murder - S;e Haruna' Mohd:;,,;~d and F Mathew Lwali v. R. (7). , ' ..\ '.'' A~ f9r _the ~iff~rep.t convic~ions and sentences we also agree with learned counsel that the judge was in error in treating the appellat;'lts differently G once. he had fo~nd that they had a common inte~tion of a1~s-aultI~g .the deceased. While we are on this point we wish to point out that the principle ~as always been that where a person is killed in the course of piose~titing . a common unlawful .purpose each party to. the k;Illing ·is guilty of mu·rder. H . . In .Tabulayenka s/o, K,irya and Otners· v. -Republic (8}the Court· of A_ppeat · for Eastern Africa stated at page 52 a~ follows: · .... To constitute. such common intention it is not necessary . ~ that . . there . should . '·. have been any concerted agreement between the accused prior to the 1 ~ • . . I • R.ee+s ;wz:wnft?i$ffi1,;;g;;;$Mtt·-=AW££#Wi,1m:w:@44ftit&tmMWiii#i•&:Z&-i%lft@W h¥9#+❖:Wt&W99i i 404 TANZANJA J,.A W lU!,POJtrs [2006) TL({ - - - - ~ - . _ _j I IL. - 4id ~ , - -- - - - - - - - - - - - - - - ' ' - - - - - ' - - - attack on the HO cal1cd thief. Their coinmon intention may be -inferred from their presence, their actions and the omission of any of them to dissociate himself from the attack ... [emphasis supplied). · furthe1more, 'Vl'C also think that the s(tntence of21 years i1nprisonment 1neted out to the second appellant ,vas too severe particularly in the light of the 1nitigating factors that were presented to the Court..· In the event, we allow the appeaJ, quash the convictions and set • . </ . .... I.., aside the sentence. The appellants~ are to be relased from prison unless they are lawfully held therein. \