19840508 TZCA Mwanza1

IN THE COURT. OF APPEAL OF TANZANIA AT MWANZA * (CORAM: NyALALI.,CJ0, MAKAME JoA0ANDISANGA, J0.A0 ) CRIMINAL APPEAL N06 16 OF 1983 B E T W E E N MAKUNGIRE MTANI . , APPELLANT A N D THEREPUBLIC 00000 000O0d0000 00 0RESPONDENT (Appeal from he conviction of the High Court of Tanzania at Mwarza) Mfaljla, J) dated. the 30th day of March, 1983, in • Criminal Sesions Case No 0 .128 of 1980 JUDGMENT QF THE COURT KISANGA, J0A.: . . The appellant and one other person (Mzürigu Bituro) were jointly óharged with the murder of the deceased in this case0 Mzungu, however, died in remand before the hearinq started; and so the trial proceeded in respect of the appellant alone The appellant was convicted as charged and sentenced to death, but he is now appealing 0 The appellant and his co—accused together with the deceased worked in a slaughter house where they skinned the carcasses and took-the meat to the butchery0 They also lived in one house, the deceased being the one who secured the premises and then invited his colleagues to live with him there 0 In the evenings they used to go out together for drinks, leaving home around 6 p0m0 and returning at about 8 pm 0 They drank the illicit liquor popularly known as 'Moshi"0 Some time during their staying and working together some misunderstanding arose whereby the deceased threatened to expel the appellant and Mzuncju from the house, - 2 - followed bya refusal by these two to leave the premises with a counter threat to "teach the deceased a lesson" How icr, Sadjkj Iddi (P0L,2) who also lived in the same house intervened by asking the deceased to take it easy, •so to speak, and allow the appellant and Nzurigu to continue to live there0 This appears to have settled the matter, and life appeared to be normal again 0 However, only about three days later the appellant and Mzüngu together with the deceased left home together at about 6.p0m 0 ,as usual, but returned at8 p0m0 without the deceased0 When P0VJ2 inquired as to the whereabouts of the deceased, the appellant and Mzungu were rude and evasive0 They retorted by asking the witness in what capacity he wa asking them that question0 And when the witness told them that he asked that question because the deceased was their host, they simply kept quiet, went into their room, closed the door and wPt to sleep0 When the deceased's absence at work was noticed, the appellant and Mzungü were asked about his whereabouts but they said nothing, in fact P0W03 thought that the appeliant and Mzungu were unusually quiet that day0 The deceased was found dead 'some three days following the eveniig when he weniz out in company of the appellant and Mzungu. His body was found lying in a potato field with injuries on the head and legs0 . The appellant did not come to the scene but M'zungu did, and when he was asked why he had not reported the absence of the deceased, his fellow tenant, he took to hi heels 0 When later on the appellant was arrested at the market place he was so desperate, and when he was asked kre replied that he was so desperate because he had expected to be arrested at any time0 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 different from that of their own - - - -. - 3 which is "O" for the appellant and flA.: .for Mzungu.. At the trial the appellant chose to keep quiet in his defence, .ard the learned trial, judge, after due review of the evidence before hi, found the case proved and accordingly convicted him0 • Before us the appellant was reprsented by Mr. R.W.G. Rugara bamu who had also öonducted the defence in the High Court0 The learned counsel filed and argued four grounds of appeal 0 The first ground states that "The prosecution evidence was highly * • circumstntial to support a conviction"0 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 conviction0 In support of this view he cited the case of Kimweri v. R. (1968)'E.A. 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 appellart. The deceased was last seen alive in the company of the apoellant and his co—accused now deceased. The appellant refused to give any explanation of how the deceased mysteriously disappeared from his company0 If the apellant had nothing to do with. the death of the deceased, one would certainly expect him to say • at what point he parted cbmpany with the deceased that night after 'having set out from home together. But to keep quiet in those circumstances was most strange. Mr. Rugarabamu suggested that the appellant's silence that night might be explained on the basis that the appeflant was drunk when he returned home that night0 We cannot accept such view. There was no evidence of drunkenness0 The only evidence on this issue was to the effect that' the trio used to go out together to drink and that they 'drank "Mosht". But this alone is not sufficient from which to • conclude that on this particular night the appellant, in. fact, ' . -4- - drank "Moshj" and that in fact he returned home drunk0 He may have had no drink at all or, if he had some, he may not have been - drunk. Assuming that the appellant had had •a drink that niht, 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 deceased0 We think that there is nothing on the evidence to-support the view that the appellant was.drunk that night0 Mr0 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, 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 appropriate steps could be taken to trace the deceased and -thus solve the mystery surrounding his disappearance which was the source of the perplexity. We think that on both these occasions one would certainly expect the appellant to 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 that at the time of his arrest the appellant was so desperate and that when asked, he replied that he was so desperate because he had expected to be arrested. Accordirg to Mr0 Rugarabarnu, the apoellant expected to be arrested because his colleague, Mzungu, had been arrested 0 If the appellant was innocent, Why should he think that Mzungu's arrest woul.d automatically lead to his own arrest? One would expect him to. be ready to explain his innccence to the 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 innocence, - 5 - p Then there was the evidence that the clothes 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 differer.t from that of.hjs own. Dealing with this aspect of the evidence, the learned trial judge in the course of his judgment stated: "The conclusion thus reached was that the T-shirt worn by the accused at the relevant time not only had blood stains, but they were human blood of grouAB i.e. the deceased's group. The accused was thus effectively linked to the killing of the deceased until he offered an explanation as to how he came to be stained with the deceas e dts blood". This was the subject of a voros attack by Mr. Rugarabamu who contended that it amounted tofting the burden of proof to the defence. Counsel's argument ws that the evidence merely showed that the st.ins found on the appellant's clothes were of the same blood, group as that of the deceased, but this was not concUusive that those blood stains, in fact, came from the deceased. Such blood stains, counsel went on, may have come from some person other than the deceased but of the same blood group as the deceased, We can find no merit in this argument. We think that the evidence of the appellant's clothes bearirg blood stains of the same blood group as the deceased but different from his own was an incrimj- nating circumstance which the trial judge properly took into account inconsidering tI'e appellant's guilt. The reasoning of the learned trial judge was that considering, the other circumstances, such as, the mysterious disappearance of the deceased from the appellant's company, the appellant's complete silence when asked about it on different occasions and his being desperate and anticipating arrest over it led to the 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 gave some explahetion to the contrary, We cannot say that the learned judge was'wrong. We think that he properly directed himself on the matter. - 6- p In his second ground of appeal Mr0 Rugarabamu criticised the trial judge for finding that the deceased sustained extensive injuries from which he must.have bled0 Counsel took the view that there was no evidence that the deceased sustained any lacerated wounds from which he could have bled. This was in an attempt to fortify his earlier submission that the blood stains found on the appèllant's clothes came not from the deceased but from some one else of the same blood group as the deceased. We think that this submission is equally devoid of merit, There was evidence that the deceased sustained head injuries including fractures of the skull leading to blood oozing from inside the cramial cavity. He also sustained injuries on the legs. We think that the learned trial judge was perfectly entitled to find that such injuries as sustained by the deceased must have led, to bleeding externally thus making it possible for the appellant to gt.stained by such blood0 In the third ground counsel complained that the trial judge erred in shifting the burden of proof on the appellant when he remarked in his judgment that the appellant did not attempt to explain the incriminating blood stains on his T—shirt. We have already said something about the burden of proof when dealing with the first ground of appeal, and now there remains very little to be said. When evidence has been adduced which, as in this case, implicates the appellant with the offence charged, then if the appellant is innocent, one would certainly expect him to give some explanation, for the obvious reason that it would be in his best inkerest to do so. It is most unusual for an innocent person to keep quiet when allegations are being or have been made against 4- him showing or seeking to show that he is the offender. So that in such circumstances where the appellant would be expected to give some explanation but he does not, we think that the court • may properly comment on such silence as it did in this case. / r -7- ut this, in our view does not arnount'to shifting the burden of proof to the defence. All that the court said was thaf it was strange that the appellant should have kept quiet in such cir- cumstances. We therefore think that the complaint against the trial judge on this point is not well founded 0 The last ground of appeal is a general one alleging that the conviction was against the weight of evidence. Having regard to what we have- said in connection with the earlier grounds, our reaction to this ground should be apparent. Although the case was based entirely on circumstantial evidence we are satisfied that the appellant's guilt was proved to the requisite standard0 The incriminating pieces of circumstantial evidence, such as we have briefly referred to in the preceding paragraphs, lead to the only reasonable conclusion that the appellant took part in committing the offericed the result we uphold the conviction and ,,dismi appeal. . p// . TEDat MWANZ6 th18th day of May, 1984. t vo' I F. L. NYALALI CHIEF JUSTICE L. M. MAKANE JUSTICE OF APPEAL R • H • KI SANGA JUSTICE OF APPEAL : true copy of the--original 0 '' _-- - - - - -a. --- - - -- -- - - (B-P; SENIOR DEPUTY REGISTRAR, ___-