ALPHONCE JUDGEMENT

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANPAMBO. 3.A.. KIHWELO, J.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 622 OF 2022 ALPHONCE MICHAEL® R A S I............................................................... APPELLANT VERSUS THE REPUBLIC.................................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Kilimanjaro, at M oshi) (S.A. Mshasha, PRM- Extended Jurisdiction) dated the 24th day of August 2022 in Extended Jurisdiction Criminal Sessions Case No. 32 of 2019 JUDGMENT OF THE COURT 12th & 26th March, 2025 MWANPAMBO, J.A:. The appellant and Humphrey Sifuni Manongi not a party to this appeal were charged on the information of murder contrary to section 196 of the Penal Code. The duo was alleged to have caused the unlawful death of one Steven Kimario @ Matata on 13 December 2016 at an area called Savena Majengo in Moshi District, Kilimanjaro Region to which they pleaded not guilty. The case was tried by the Resident Magistrate's Court of Moshi with extended jurisdiction presided over by S. A. Mshasha, Principal Resident Magistrate vested with extended jurisdiction. After the trial, the learned trial Principal Resident Magistrate (ext. jurisdiction) found the case against Humphrey Manongi hence forth, the first accused not proved and so she acquitted him. The appellant was found guilty and convicted upon being satisfied that the evidence against him had proved the case beyond reasonable doubt followed by the mandatory death sentence now challenged in this appeal. As far as they are material to the determination of the appeal, the case for the prosecution grounding the appellant's conviction ran as follows. The appellant and one Necta Kimario O'Necta) were intimate friends. Necta stayed with her daughter Jamila Mzamdu Ahmed (PW7)and a house maid known as Jonisia D/o Aloyce Kautei @ Masilayo (henceforth, Masilayo) in a rented two-bed room house at Majengo area. On 13 December 2016, Necta was visited by an uncle who happened to be Stephan Kimario @ Matata (the deceased) in the evening and was to spend the night in that house. The deceased was left to sleep in a sitting room while PW7 and Masilayo slept in one of the bed rooms. After sometime during the night, the deceased allegedly sneaked into the bed room occupied by Masilayo and PW7 looking for water but was turned down. PW7's account had it that the deceased returned later determined to have sexual intercourse with Masilayo who yelled for help. At that time, Necta was away but her friend who was around alerted her to return immediately in response to the cry for help. It was the respondent's case that, Necta and her friend (the appellant) attacked the deceased at the sitting room by beating him in different parts of his body. While Necta is said to have used a TV wire, the appellant used a knife stabbing the deceased with a knife. It was the further case for the prosecution that the beating continued irrespective of pleas from the neighbours to stop the beating. Moments later, the deceased was allegedly tied with a rope in a tree and subsequently released and left at the sitting room till morning when Necta is said to have said that Matata had asked to go to the toilet but never returned. Further evidence through PW7 was that, the following day, she saw her mother and her friend together with another person she was unfamiliar with alighting from a white taxi and entered the house. Shortly thereafter, the trio came out with a white polyethene bag which they put in the car boot and left to an unknown place. It turned out that, Elihudi James (PW8) was the owner and driver of the white taxi hired by the first accused with instructions to drive his customers to a place called Rau where the parcel in the polyethene bag in the boot of his car was abandoned and set on fire. According to Honory Gervas Moshi (PW4), a shop keeper along the road leading to Rau River, he sold hard drinks and cigarettes from his shop to a young man who was in dread hair accompanied by another person. PW4's account was that, the duo alighted from a white taxi parked 10 - 15 metres away from the shop and left after 10 minutes. Subsequently, PW4 got information about a dead body stuffed in a polythene bag burning beside the river at a place called Bondeni and later on he recorded a statement at the police at Mosh. On 5 January 2017 PW4 attended an identification parade where he identified a person who he remembered to have been one of the persons who visited his shop on 15 December 2016 along with the appellant. That person turned out to be the first accused. About one and half years later, PW4 was summoned again at the Police Station at an identification parade but he could not identify the appellant as one of the persons to whom he had sold hard drinks and cigarette on 15 December 2016 due to lapse of time. In connection with what PW4 saw at the river, the trial court relied on the evidence from PW8 whose evidence was to the effect that, on 15 December 2016, he was approached by a male customer who hired him to carry a parcel from a house in Majengo area where he found two other people one of them he described to be tall, light- skinned man with dreadlocked hair (Rasta man) and a fat, light skinned woman. After some back and forth movements, the passengers instructed him to drive back to the same house he had been instructed earlier for picking a parcel to be taken to a place called Rau to which he obliged. Upon arrival, the trio alighted and opened the car boot in which they put a parcel stuffed in a polythene bag and immediately directed him to drive them to Rau. After some stoppage for refueling and at a shop along the way, eventually, PW8 was directed to stop at an area near a river whereupon, the Rasta man and his colleague retrieved the parcel from the car boot and left with it towards the river before returning in the car and instructing him to drive back. On their way back, PW8 was allegedly warned by the Rasta man that, the parcel they had left behind was of human body so he should not reveal that to anybody lest he risk death. Afraid of death, PW8 kept the secret to his chest until the moment he was arrested by the police subsequently where he narrated the story in a statement. At an identification parade conducted in 2018, PW8 is recorded to have identified the appellant as one of the persons who hired him to drive to Rau on 15 December 2016. He too identified the appellant in the dock. The story on the discovery of the burning body at Bondeni along Rau River was narrated by Ernest Mambo (PW1) who stayed near the river. PW1 was one of the persons who came to know about the burning body at the river in the afternoon on 15 December 2016. It is PW1 who contacted the village chairman of Uru Ongoma. The latter called the police who arrived moments later. Subsequently, E8231 Seargeant Vitalis (PW10) and his team arrived at the scene and retrieved the burnt body of a human being stuffed in a polythene bag and took it to KCMC hospital where it was identified later by Godlizen Steven Kimario (PW11) who confirmed that it was of his father Steven Kimario @ Matata. After the identification of the body, Dr. Alex Richard Mrema (PW5) conducted an autopsy on 23 December 2016. After the examination, PW5 posted his findings in a postmortem report he tendered in evidence and admitted by the trial court as exhibit P3. From his examination, PW5 concluded that the cause of death was "poly trauma" as a result of several injuries all over the body due to burning. Upon investigation of the case led by PW10, various people were interviewed and interrogated by the police resulting into the arrest of the first accused and Masilayo. It is common ground that, although Necta features prominently in the case, particularly through the evidence by PW7 and PW8, she has remained at large. Similarly, although Masilayo was initially arraigned in court as one of the accused persons, the prosecution withdrew the case against her remaining with the first accused and the appellant. While the first accused was arrested on 27 December 2016, the appellant was arrested on 15 June 2018 by XE5924 CPL. Emmanuel (PW6) in Kahama Shinyanga upon a tip from an informer. Not surprisingly, the appellant and the co- accused distanced themselves from the accusations. In particular, the appellant denied having been in Moshi and involved in the killing of the deceased in the manner alleged in the information. That notwithstanding, the trial court found established that the evidence by the prosecution proved beyond reasonable doubt that the appellant was involved in the killing of the deceased. Whilst acknowledging that, none of the witnesses saw the appellant killing the deceased, the trial court relied on circumstantial evidence implicating PW7's mother who, together with the appellant were allegedly seen beating the deceased in different parts of his body using a TV wire and knife and later on put his body in a white polythene bag even though PW8 referred to a brown polythene bag. It (the trial court) found the chain linking the appellant with the murder of the deceased connected through the evidence of PW8. That court took into account PW8's evidence that he was hired to pick a parcel in a polyethene bag from a house at Majengo area where the appellant and a fat woman and another short and black skinned person picked and put in the car boot before taking it to a place called Bondeni along Rau River where it was abandoned. There was also evidence on the discovery of the body found to be burnt by PW1 before being retrieved by the police on 15 December 2016. While noting some contradictions in the evidence by the prosecution witnesses, the trial court found such discrepancies immaterial not going to the root of the case guided by the Court's decision in Dickson Elia Nsamba Shapwata and Another [2008] TZCA 17 (30 May 2008), TANZLII. Based on the description by PW8 and his narration on the appellant's warning concerning the dead body they had abandoned near the river which was not controverted during cross-examination, the trial court took the view that the appellant was positively identified along with his co-accused. In the end, whilst it found evidence linking the first accused with the murder doubtful, it found the appellant guilty having been involved in the killing of the deceased in collaboration with Necta who as hinted earlier, was still at large. It thus convicted him as charged followed by death sentence. The appellant appeared in person represented by Mr. David Shilatu, learned advocate during the hearing of the appeal. Initially, the appellant had lodged two versions of memoranda of appeal. The first was lodged on 20 February 2023 comprising seven grounds of appeal followed by a supplementary memorandum lodged on 5 June 2024 with four grounds. All the same, Mr. Shilatu informed the Court at the commencement of hearing that he had agreed with the appellant to argue three grounds only for which he prayed leave under rule 81 of the Tanzania Court of Appeal Rules, 2009 (the Rules) practically abandoning the grounds in the appellant's two memoranda he had lodged earlier on. For easy reference, the grounds addressed by Mr. Shilatu after paraphrasing them run thus: 1. That the tria l court erred in law and fact in grounding conviction retying on circum stantial evidence. 2. That the tria l court erred in law and fact in convicting the appellant without drawing adverse inference against the prosecution. 3. That the appellants conviction was grounded on weak evidence which did not prove the case on the required standard. Upon our close examination of the grounds and the submissions for and against the appeal, we are firm that grounds one and two are, by and large, offshoots of the 3rd ground faulting the trial court for convicting the appellant on weak evidence which fell short of proving the case against him beyond reasonable doubt. It cannot be doubted that, such evidence included circumstantial evidence claimed to be too weak to link the appellant with the deceased's death. In our view, that complaint cannot be addressed in isolation from the general complaint that the case against the appellant was too weak to prove the offence he stood charged. Similarly, the criticism against the trial court for its alleged failure to draw adverse inference against the prosecution cannot be taken separately considering what the Court said in Abdallah Aziz v. Republic [1991] T.L.R. 71, that is, even when the adverse inference is properly drawn, that does not ruin the prosecution case. Naturally, whether or not there was any occasion for drawing an adverse inference is a matter that can be determined from the overall evidence led by the prosecution which the trial court was satisfied that it proved the case against the appellant on the required standard. That said, we shall now turn our attention to the 3rd ground of appeal raising the issue whether the evidence on which the trial court grounded conviction proved the case beyond reasonable doubt. Essentially, Mr. Shilatu premised his submission on three areas. The first was that the conditions underlying the reliance on circumstantial evidence to ground conviction were not met in the instant appeal. Counsel placed reliance on Everina Ngatala v. Republic, Criminal Appeal No. 11 of 2008 (unreported) to argue that, in this case, the conditions for grounding conviction circumstantial evidence were not met. He pointed out that the li evidence of PW7 who claimed to have been familiar with the appellant as her mother's friend fell short of connecting him as the person responsible for the murder of the deceased. This is so, he argued, despite her familiarity with him, PW7 failed to identify the appellant in the dock while giving evidence which undermined the probative value of her evidence. Submitting further, counsel contended that as PW7 did not identify the appellant who she claimed was very familiar to her, there was no evidence to connect him with the offence. It was further argued that, whereas PW7 claimed that it was Masilayo who screamed for help when the deceased allegedly entered the room they occupied in order to rape her, the prosecution did not produce Masilayo to give evidence to support WP7's account. According to Mr. Shilatu, Masilayo was a material witness who was not produced for no apparent reason presenting an occasion for drawing an adverse inference denting its case. The Court's decision in Azizi Abdallah v. Republic (supra) was cited to fortify that submission. Advancing his submission, the learned advocate pointed out that the evidence by the prosecution left several dots unconnected to link the appellant with the deceased's murder. Counsel argued that, in the circumstances, the respondent did not discharge its burden of proof cast on it by section 3 (2) of the Evidence Act which should have resulted in a finding of not guilty entitling the appellant to an acquittal. The learned advocate urged us to find merit in the appeal and allow it. The respondent Republic was represented by Messrs. Isack Mangunu, Peter Utafu, Kambarage Samson and Ms. Edith Msenga, all State Attorneys. Mr. Utafu addressed the Court urging us to dismiss the appeal for lacking in merit. With deep conviction, Mr. Utafu urged that the trial court correctly relied on circumstantial evidence to ground conviction upon being satisfied that the relevant pieces of evidence pointed at no other than the appellant as responsible for the deceased's murder. He placed reliance on the Court's decisions in Mathias Bundala v. Republic [2007] TZCA 16 (16 March 2007) and Hilda Innocent v. Republic [2018] TZCA 185 (6 September 2018) to argue that, circumstantial evidence can safely ground conviction when it is clear, logical and compelling. Subjecting the principle in context, Mr. Utafu argued that, PW7's evidence who eye witnessed the appellant stabbing the deceased with a knife inside her mother's sitting room before taking him outside was one of such pieces of evidence linking the appellant with the deceased's death. The learned State Attorney stressed that there was a link in PW7's testimony with that of PW8 who was hired to pick the fateful parcel stuffed in a white polyethene bag from the house occupied by Necta in Majengo area. Mr. Utafu drew our attention to PW8's evidence showing that, after picking the parcel from Majengo area, he was instructed to drive to Rau River where that parcel was abandoned and set on fire. Further, the fact that PW8 identified the appellant at an identification parade and in the dock was sufficient to arrive at a positive finding that the appellant was responsible for the deceased's killing. In addition, the learned State Attorney drew our attention to Issa Hasan Uki v. Republic [2018] TZCA 361 (10 May 2018), TANZLII reiterating what the Court said in Nyerere Nyague v. Republic [2012] TZCA 103 (21 May 2012) TANZLII, for the proposition that, failure to cross- examine a witness on crucial incriminating evidence is tantamount to the accused admitting the truth of such evidence. According to Mr. Utafu, the appellant's counsel did not cross-examine PW8 on the evidence he adduced linking the appellant with the deceased's murder and thus he must be taken to have admitted it as true. Addressing the Court on the 2nd ground, Mr. Utafu argued that, in so far as PW7 testified on what she witnessed on the material date, the absence of Masilayo was inconsequential more so when, according to PW9 and PW10 her name featured in connection with a search conducted at Necta's rented house. In the premises, the learned State Attorney argued that PW7's evidence was sufficient in itself without any corroboration from Masilayo. Before winding up on this ground, Mr. Utafu argued that, even though there were some contradictions in PW7's evidence, such contradictions or inconsistencies were immaterial to ruin the case for the prosecution. Finally, Mr. Utafu addressed the Court on the 3rd ground and submitted that on the strength of the testimonies of the prosecution witnesses, in particular PW5, PW7, PW8, PW11 and exhibit P3, the case was proved beyond reasonable doubt. The learned State Attorney was emphatic in his address that, one, through the evidence from PW5 as well as exhibit P3, there is no dispute as to the unnatural death of a person; two, that the body of the deceased person was identified by PW11 to be that of his father Stephen Kimario @ Matata who, according to PW7, was the same person who visited her mother's house on the material date and suffered beatings and injuries in the hands of the appellant and Necta; three, the cause of the death per PW5's examination whose findings were posted in exhibit P3 was 3rd degree burn injuries with complete carbonisation of the skin, four, the killing was with malice aforethought judged from the evidence from PW7 in relation to the weapon used and the parts of the body stabbed coupled with the conduct of the appellant. On the whole, the Court was invited to concur with the finding of the trial court and sustain conviction resulting into the dismissal of the appeal for lack of merit. In his final address, Mr. Shilatu brought about discrepancies in the name of the person of the deceased that is, Steven Kimario. However, we do not think such an argument should detain us in view of PW5's testimony at page 100 of the record of appeal after the admission of exhibit P3. On the other hand, whilst accepting the principle behind section 143 of the Evidence Act; on the qualitative as opposed to quantitative evidence, Mr. Shilatu was steadfast that, Masilayo was a material witness to give credence to PW7's account. Before concluding, Mr. Shilatu contended that there was, in this case, lack of clear connection between the appellant's actions and the cause of death coupled with the expungement of the evidence of PW2 and PW3 as well as the parade identification registers they respectively tendered and admitted as exhibits PI and P2 involving identification parade. He pointed out that the case was dented thereby warranting a finding of not guilty and an order for acquittal. For a start, we wish to put the record straight on a few aspects featuring in this appeal. The first relates to the evidence of PW2 and PW3 who conducted identification parades during which, the first accused Humphrey Manongi and the appellant were allegedly identified by PW8. Mr. Utafu conceded that the two witnesses were not listed as prosecution witnesses during committal proceedings. Since the prosecution did not avail itself of the window provided by section 289 (1) of the Criminal Procedure Act (the CPA), the evidence of the two witnesses as well as the identification parade registers tendered and admitted as exhibits PI and P2 are hereby expunged from the record. That means, as there was no identification of the appellant by PW8 at the identification parade, his dock identification had no evidential value to the prosecution case. That means, the argument advanced by Mr. Utafu on failure to cross-examine PW8 falls in the face of it. The second aspect relates to the issue whether or not the body of the deceased examined by PW5 was that of Stephen Kimario @ Matata, subject of the information. As stated earlier on, the identity of the deceased has never been in dispute during the trial neither in this appeal except for the tangential insinuation by Mr. Shilatu in the course of his submission. Be it as it may, the incorrect reference to Florence Kimario by PW5 was corrected by the same witness at page 100 of the record. That said we shall now turn our attention to the issue for our consideration and determination; whether the conviction of the appellant was upon weak evidence. It is common cause that apart from PW7, no other prosecution witness gave direct evidence hence, the resort to circumstantial evidence. Both counsel placed before the Court decisions of the Court underscoring the quality of circumstantial evidence capable of grounding conviction; the circumstances must be so connected that they point to the guilt of the accused in the dock. Were the circumstances in this case connected as maintained by the prosecution? To answer that question, it behooves us to examine the evidence on record afresh which we are legally entitled to in a first appeal as it were. We shall begin with PW7 branded by the trial court as a star witness. PW7's evidence is largely one of identification which, if believed to be truthful will be relevant to link with other pieces of evidence from other witnesses, in particular, PW4 and PW8. It is remarkable that, at the time she claimed to have witnessed the appellant and her mother beating the deceased, PW7 was 9 years later at the age of 15 years. PW7 told the trial court that the appellant was a regular visitor at her mother's home as her friend. However, she could not tell for how long had she known the appellant apart from her reference to him as Ras; a man with dreads in his head. Neither did she make any description of his physique as well as clothes he wore on the material date to any person immediately after the incident or to the police. Worse still, PW7 who claimed to have been familiar with the appellant did not identify him in the dock allegedly by reason of lapse of time and the fact that he no longer had dreads in his head. In such circumstances, we are inclined to agree with Mr. Shilatu that the presence of Masilayo as a witness was necessary to give credence to PW7's evidence. That Masilayo was a material witness is confirmed by PW10 evidence who is recorded to have testified that, during a search in the rooms rented by Necta in the presence of a street chairman (PW9), they saw blood stains in the floor and wall. He continued: "....we then questioned the house m aid on the blood stains found there. She told us that there was a dispute that took place on 13/12/2016 - 14/12/2016 a t m idnight hours and that the deceased was attacked by two people who are Necta Kim ario and his lover known as "Ras" on allegation that the deceased wanted to rape the daughter o f Necta; and that it was Necta who ordered her to dean the said place... "[atp ag e 122]. Earlier on, PW9 who witnessed the search as village chairman stated: "...we entered inside the house and found a woman cleaning the house. She introduced herself as the house m aid in that house... They then took the house m aid and le ft with h e r.... "[atp ag e 118 and 119]. It will be recalled that, initially, Masilayo was one of the accused persons but her case was withdrawn at the early stages. We are not oblivious of the fact that the decision who to prosecute lies entirely in the prosecution but the withdrawal of the charge against Masilayo and the absence of explanation why such a person who, from the evidence on record was the source of the saga, leaves doubts in the prosecution case as submitted by Mr. Shilatu. Unlike Mr.Utafu, it is glaring from the excerpted evidence of PW10 reproduced above that his argument that Masilayo was not a material witness cannot hold water in the circumstances of this case. On the contrary, we agree with Mr. Shilatu that, the failure to produce Masilayo as a witness attracted drawing adverse inference against the prosecution and indeed it ruined its case. Besides, PW4 who claimed to have seen three people at his shop in a white taxi and sold hard drinks and cigarette and left towards Rau River before he learnt of a body of a dead person put on fire beside the river, did not identify the appellant during the identification parade assuming it was a valid one. To cap it all, after expunging the evidence of Inspector Getrude Kavishe (PW3) together with the Parade Identification Register (exhibit P2) involving the appellant, PW8's evidence remains hanging in the balance. What emerges from the foregoing reveals nothing less than incomplete investigation of the case which extended to its prosecution leaving behind such a material witness as Masilayo. There is still more to it worth mentioning here. According to PW9 and PW10, upon search in the rooms where the deceased was claimed to have been beaten to death, the police found blood stains in the floor and took blood samples. One would have expected that the police could have conducted DNA test on the blood samples taken from Necta's room but nothing closer to that was done which raises more questions than answers but what appears to be clear to us is that the police investigation was below expectations. The overall effect is that, although Mr. Utafu was adamant that the case was proved to the hilt, the reality on record reveals the opposite of it. As Mr. Utafu might be aware of what the Court said in Mohamed Said Matula v. Republic [1995] T.L.R. 3, suspicion alone however strong is not enough to convict an accused person. The prosecution must remove all manner of doubt to sustain conviction. In the same vein, we think it will not be out of place to refer to the old statement made by an English jurist, William Blackstone who said in 1765 that, it is better that ten guilty persons escape than one innocent man convicted. That statement is as relevant today particularly in this appeal as it was when it was made. It will now be clear to everyone, in particular the respondent that, the evidence upon which the trial court grounded conviction fell below the threshold with the effect that the prosecution did not discharge its burden proving beyond reasonable doubt that the appellant was responsible for the murder of the deceased. In the event, the appeal is allowed with the net effect that the finding of guilt against the appellant is reversed and substituted with one of not guilty resulting in quashing his conviction and sentence set aside. The appellant shall be released forthwith from custody if not lawfully held therein. DATED at MOSHI this 25th March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2025 in the presence of the Appellant in person and Mr. Innocent Ng'assi, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.