19840508 TZCA Dar es Salaam5

(L •i. -~~- .. , () ·, ~i . IN THE COURT OF APPEAL OF 'T'ANZANIA r "' ~ AT MWANZA I ' / (CORAM: N+ALALI,, iG,~iJp, MAK.AM~i;,JoAo J.i'J~ KI,p~GA, Jo,Ao ) ! CR!MINAL APPEAL NO. 16 or,': 1983 'BETWEEN MAKUNGIRE MTANI o • e a Q O O 0 b O 1 0 Cl 0 o APPELLANT AND THE REPUBLIC 0 0 0 0 oi O O a RESPONDENT (Appeal from the conviction of the High Court of Tanz~nia at Mwanza) (Mfalila, Jo) dated the 30th day of March, 1983, 1, in Criminal Sessions Case Noo . 128 of 1980 JJJDGMEN'.I\. .0.! THE ,COURT The appellant and one other person (Mzungu Bi turo) were jointly charged with the murder of the de~eased in this case., Mzungu, however, died in:remand before the hearing started; and so the trial proceeded in respect of the app'ellant alone. The appellant was convicted· as charged and sentenced to death, but he is now appealing. ··The appellant and his co-accused together with the deceased worked in a slaughter house where tfiey skinned the carcasses and I took the meat to the butchery. They also lived in one house, the deceased being the one who secured the premi:ses and then invited his colleagues to live with him there. ' ~he evenings they used In to go out together for drinks, leaving home ,arou~d 6 p.m 0 and -: returning at about 8 p .. mo They drank the illicit liquor popularly . ~ known as "Mos hi O 0 Some time during their staying and work~ng ~ together some misunderstanding arose whereby the deceased threatened to expel the appe 11 ant and Mzung':1 from the house, V oooo/2 2 followed by a refusal by these two to leave the premises with a counter threat to 11 teach the deceased a lesson"o Howe rer, Sadiki Iddi (PoWo2) who also lived in the same house intervened by asking the deceased to take it easy, so to speak, and allow the appellant and Mzungu to continue to live thereo This appears to have settled the matter 9 and life appeared to be normal. againo However, only about three days later the appellant and Mzungu together with the deceased left home together at about 6 porno, as usual, but returned at 8 porno without the deceasedo When PoWo2 inquired as to the whereabouts of the deceased, the appellant and Mzungu were rude and evasi vea . They retorted by asking the witness in what capacity he was asking them that questiono And when the witness told them that he asked that question because the deceased was their host, they simply kept quiet, went into their ~oom, closed the door and went to sleepo When the deceased's absence at work was noticed, the appellant and Mzungu were asked about his whereabouts, but they said nothing, in fact PoWo3 thought that the appel "!_ant an'd Mzungu were unusually quiet that dayo The deceased was found dead. some three days following the evening when he went out in company of the appellant and Mzungu. His body was found lying in a· potato field with injuries on the head and legso The appellant did not come to the scene but Mzungu did, and when he was ask.ed why he hc.d not reported the absence of the deceased, his fellow tenant, he took to his heelso When later on the appellant was arrested at the market place he was so desperate, and when he was asked Jr.re replied that he was so desperate because he had expected to be arrested at any timeo On the day the appellant and Mzungu went out last with the deceased these two wore clothes which were later found to have stains of human blood belonging to the same group as that of the deceased (AB), but differ2nt from that of their own oooo/3 3 which is 11 0 11 for the appel 1 ant and "A" for Mzunguo At the trial the appellant chose to keep quiet in his defence, ar.J the learned trial judge, after due review of :the evidence t-..!fore him_, · found the case proved and accordingly convicted himo Before us the appellant was represented by Mro Ro W0G 0 Rugara- bamu who had also conducted the defence in tpe High Courto The 1 earned counsel filed and argued fbur gr~unds o.f appealo The first ground states that "The prosecution_ e"idence was highly circumstqntial to support a conviction' 1,!o Enlarging upon this, counsel submitted in effect that the evidence adduced before the court was such as did cast considerable suspicion only, but not sufficient to support a convictiono ,In support of this view he cited the case of Kimweri v 0 Ro (1968) EoAo 252 .. We have given due consideration to the submission by the learned counsel but we are not persuaded by it., We think that in the present case there was more than considerable suspicion against the appellant. The deceased was last seen alive in the C:ompany of_ the apoell ant and his co-accused, now deceasedo The a~peliL"ant refused to give /,' any explanation of ho.w the deceased mysteriously disappeared from his companyo If the appellant had nothing to do with the death of the deceased, one would certainly ! expect him to say:::,.? I. at what point he parted company with the deceased that night 1 after having set out f.P.◊m home together., But to keep quiet in those circumstances was most strangeo Mr•o Rugarabamu suggested that the appellant's silence that night might be eiplained on the basis that the appellant was drunk when he returned home ~l~J ,, ::--,f: : . -~, that nighto We cannot accept such viewo There was no evidence i· ~- of drunkenness., The only evidence on this issue was t:o the effe~}• ~' that the trio used to go out together to drfhk_ qnd that they ' drank "Moshi 11 o But this al•one is not sufficient from Which toiJ'. . . '.; ' . .~- ~ conclude that on this particular night the appellant,' in fa,ct:-, 4 drank ''Moshi" and that in fact he returned home drunko He may have had no drink at all or, if he had some, he may not have been drunko Assuming that the appellant had had a drink that night, if he had enough senses to be able to find his .way back home, it is inconceivable that he would not be in enough senses to say how he parted company with the deceased. We think that there is nothing on the evidence to support the view that the appellant was drunk that nighto Mro Rugarabamu further contended that the appellant's silence, when he was asked at his work place about the deceased's disappearance could be explained on the basis that the appellant was perplexed. With due respect to the learned counsel, this is incomprehensible 9 If he was perplexed but innocent, this was all the more reason for him to disclose how he parted company with the deceased so that appropri2te·· steps could be taken to trace the deceased and thus solve the mystery surrounding hisdisappearance which was ' . the source of the perplexity. We think that on both these occasior:s one would certainly expect the appellant t9 give an explanation how he parted company with the deceased after he had set out from home with him that evening; it is most odd, however, that he did not. Then there is the evidence thc.,t at the time of his arrest the appel:J_ant was so desperate and that when asked, he replied that he was so desperate because he had expected to be arrestedo According to Mr. Rugarabamu, the apoellant expected to be arrested because his colleague,. Mzungu, had been arrested. If the I ~ appellant was innocent, why should he think that Mzungu's arrest would automatically lead to his own arrest'? One would expect him to be ready to explain his innocence to tpe police and thus clear ' . . himself, but it is most strange that in those circumstances Mzungu 's arrest should make· him desperate and cause him to anticipate arrest .. Such conduct cannot be said to be consistent with his :1.nnoc:enceo 0 0 0 0 /5 5 Then there was the ~vidence that the cl6thJs, worn by the \ ' '\,ppellant on the material night had stains of blood be 1 onging _ to the same group as that of the deceased but different from that lj ii' of his owno Dealing with this aspect of the evidence, the learned ~ 11 I! II 11 I I trial judge in the course of his judgment stat~d: "The conclusion thus reached was tha't: the T-shirt worn by the accused at the relevant time_'· not only had -t. blood stains,_but they were hum~h ~load of grou~ AB io.eo the deceased Is groupo The accused was thus effectively linked to the killirtg of the deceased until he o,ffered an explanation 1ias'ito how he came to be stained with the deceased's blood". ·:1 This was the subject of a vii.~r<?'s attack by,·:Mr'o Rugarabamu who ,1 ,',I ',I contended that it amounted to,rht-l-ting the burden of proof to the 1 i ,, ,, ' I ; 1,I i defenceo Counsel's argument was that the eviqence merely showed H I ,lj that the st.sins found on the appell ant: 1 s clothes ,, were of the same I,• ,I , blood group as that of the deceased, but thi~ was not concllusive 'I , ' ,1 that those blood stains, in fact, came ,from the, deceasedo Such blood stains, counsel Went on, may havJ come/ f;om some person I 1 ' 1 !1 I other than the deceased but of the same blood group as the deceased. 1' ' iI We can find no merit in this argument. We think that the evidence :1 ' ,1 I of the appellant's ciothes bearing blood stains of the same blood group as the deceased but different from l1~; own was an incrimi- 1. 1i' I I ' \ 11 nating circurnstc:ince which the trial judge properly took into ,r ' ' /1 account in considering tre appellant's .gu11 t. 1 The reasoning ,1 'I . . '/ . ' of the 1·earned trial judge was that consider:i,ng the other ·,'/' '1I ,, II circumstances, such as, the mysterious disappearance of the I • II 'I 'I : deceased from the appellant's company, the;, appellant's 11 ' ~omplete silence when asked about it: on di'fferent occasions and ,'I his being desperate and anticipating' arres!t over it, led to the I - . !i :, . conclusion that the blood stains in question were those of the :> deceased. In other words, in these circumstances that was the only reasonable conclusion to arrive at unless the appellant 'I gave some explahation to the contraryo .~e cannot say that the ;1 ; learned judge was wrongo We think that ,,he properly directed himself on the matter. . ' ,. 6 In his second gr.ound of appeal Mro Rugarabamh criticised trial judge for finding that the deceased·I sustained 11 extensive ,: I J 1/ f injuries from which he must have bledo Couns'el toiDk the view that I ' ,,Ii 1 . · there was no evidence that the deceased sustained any lacera t e d . i ;f wounds from which he could have bledo This was iri an attempt to I I/ ,' fortify his earlier submission that the blood sta±ns found on the I :iJ appellant's clothes came not from the deceased but from some one ' ii ! /I else of the same blood group as the deceasedo W~f' think that this . I submission is equally devoid of merito There wi:s. evidence that i j{ the deceased sustained head· injuries, includ.ing fractures of the skull I if leading to blood oozing· frotn inside the crJmial ~avityo He als_o ; fl sustained injuries on the legso We think/ that ii'the learned trial judge was I?erfectly entitled to find that i such {{injuries as I 1! sustained by the deceased must have led to blee~ing externally i ii ' thus making it possible for the appellant I to ge 1t stained by ! (/ such bloodo I' ii In the third ground counsel complaihed ' tHat 11 the trial judge I II erred in shifting the burden of proof on lthe aipel1ant when he I '/ remarked in his judgment that the appell;nt di,~ not attempt to ! 'i/ ' expl a.in the incriminating blood stains on his ('T-shirto We have I 'I 1 already said something about the burden :Lf pr? of when dealing I I1 with the first ground of appeal, and noJ ther~ remains very little . I I' . I 1/ to be saido When evidence has been adduced which, as in this case, I l/ . ·t es th e appel 1 ant wit i mplica I c h r·ged, • h .the o ff·ence ,I/ then if the appellant is innocent, one would • • certaihly I e*pect \f ' him to give some explanation, for the obvious reason th~t it jould be in his best I/ 1 intterest to do so,. It is most unusual i for a h innocent person to } 11 ' 11 . t · wh en a 11 ega t·ions are being k eep quie . .,or hav:e II b een made against · I ; JI I ,II ,· him sh~)Wing. or seeking to show that he' is tli e offendero So that i I1 I jf ·1n such circumstances where the appellant )ould be expected to I !, give some explanation but he does not* we think that the court • may properly comment on such silence ~s it //did in this case. I '1 oooo/7 ; . 7 . -ut this, in our view does not amount to shifting ,the burden of ·, l \j :: proof to the defenceo All that the court said wad' tha+- it was 1 ' s\:rJnge that the appellant should have kept quietJiin,ii sur.h cir- : 11 'I Ii i'.1 cumstances. We therefore think that the complaint against the • I ; ,.' trial judge on this point is not well found~do / ii \ 9 . I i'I I The last ground of appeal is a general oneialleging that the I 'I ' I! I: convid:ion was against the weight of evidenceo Having regard to what I 11 '1' we h ave:! sai. d J.n . connec t.ion wit . h th e ear 1 ie~ . ! grou'r!Id s?:1 our reaction . I \ II to this ground should be apparento Al though the ca se was based 1 1 ' I !1 I ,I 11 entirely on circumstantial evidence, we are satii,sfied that the ; I I/ ,Ii'I • appellant 1.s guilt was proved to the requisite standard-., The . I ( 1.1 incriminating pieces of circumstantial ev:i:denceJ such as we have I ii r I i/ 'I briefly referred to in the preceding paragraphs'~ l'ead to the only " I '!1' :i . ·;_:. . -. .-~ ('< 1 reasonable conclusion· t-ha·t·· th'e, appellant / took :'p· a~ t in committing I ·:r :i the offence c~~.5ged.,_0'-:ri ._':'.:9.:1. e. r~,eu). t we uphold the i'iconviction I 0 />: •,.,, . 3 ···1 \--fl\ II il _:1' and according.1,y; di~ti!:i·~_-.}.~~-::;f PPT;::i\o .• l 1 \ \Y\ ~-·. .·.~:-·1 - I I {, :1 DATED a't~MwAN'zA...thi~ · 01:iy,l'ay of May' 19840 :1 \~ ~ . <.·_,;'.:::~,,: / .i_\, '/ /1 i'i ""~-~"'----.- ..\~ ;I I): I' ,I '~2: -.-~.--· . ,: \ --/ / II I F];o ~o NYALALI G.HIE:F JUSTICE , ·1 ! i j ii 1 Lo M. MAKAME .I .JUSTICE OF APPEAL I '1' ! .If i 1 /.--. . Ir ;I, .. !\ r P 1:-.....:-...:. I Ro ,Ho KISANGA ~-· .. -- - ~ / <~,I 4 IITTJSTICE OF APPEAL . ,f~\ 0 ! /1 11 • ,::~:tf'i_::/'.-l\ ~ . -ti \ 1/ .'I I certify t,. ~ th .__.-··:1;S:✓ •a •tlrue Si° y· of t_he--original., 1 :i 1 t.} 1 z. ,.. ,.)r.-r!;,. .-:,·::1·.i·..-;::.,tJ,.:: . ... . ~· I \ 1; I ( .· . . \ ~- ~-·,:-~:.sr- . - .: . . ~~. : I 4-r .✓~- t-S.~'.',,( .....,. · --Y:~f~·;·--~-,f~-r-~~- ~~-- - ---- -~ • ~,/ 1 ( B .... p... !·10SH:H. ) -...: - . . ~ · : SENI:OR:/DEPUTY REGIS'fRARo I :1 1- ; •---,-,... I -T II -- ........ . '1 !, I 'I • I' f 'i 'I I I~ I.