dauson so boas vs republic 1986 tzca 72 27 june 1986

in the c o u r t of a p p e a l of Ta n z a n i a AT MWANZA CORAM: .MUSTnFA, J./u ; MAKA^JE, J.A. And KlSANGA, J.A. CRIMINAL APPEAL NO. 22 OF 1986. , DAUSON S/O BOAS. . . „ . .. . . . . . APPELLANT VERSUS THE REPUBLIC. . . . ........ .■ . . . RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Bahati, J.) dated the 3rd day of March, 1986 in Criminal Sessions Case No. 189 of 1984 JUDGMENT OF THE COURT MUSTAFA, J.A.: The appellant was convicted of murder on purely circumstantial evidence in the High Court. He now appeals. The appellant was at the house of ^omitian in Kahangaza Village, where people had gathered- to drlnfc pombe one night on or about 17th April, 1983. T^e deceased Angelina and her daughter Victoria, were also there.The appellant and the deceased left the hoyse of £>omi*i»» »t 1 ? J.1 - t- t -> The appellant was seen talking to the d^«eased a d£sta n«e away. The following morning the body of the de«eased^ wtio^ according .to medical evidence, had died of asphyxia dye t° strangulation, was found some 120 paces distant thd spot where the deceased was talking with the appellant* A number of witnesses testified. P.W.l, who was serving pombe at ^omitian, stated that the dece^ftsd was drinking that evening from 5 p.m. to 7.45 a.m. and left with VictOJfia. ^nd the • ...................... - .. n \ r; - v. appellant. He stated that he saw the appellant talking to the deceased and heard the appellant say to deceased "X am calling you and you do not want. You will see” . Then he saw the appellant and the deceased going in the direction of Sabini, r - J •%* -W " f . apparently also living in that vxllage. The following morning he saw the dead body of the deceased, with her neck broken. He said he also saw nearby an orange squash plastic bottle and a ring on the ground which P.W.i said belonged to the appellant* The appellant turned up at the scene, presumably with others. P.W.l stated that the appellant lived very far from that spot, tlte suggestion being that the appellant had returned to the scene of his crime. P.W.i said the appellant was trembling and restless and wanted to run away. The offer by the appellant to report to the Police was refused by the assembled villagers, who suspected the Appellant and arrested him and tied him up. P.W.i said that th<* appellant was wearing clothes that morning which were different from those he had worn the previous night. It was apparent tha-fc P.W.i was suggesting that the appellant had changed his c l o n e s deliberately to avoi,d detection. P.W.2 Victoria confirmed that the appellant and the deceased left Domitian's house together. P.W.2 stated that the deceased had told her that . the deceased was going to Sabini for a drink. The ftext day she found the dead body of the deceased some where short distance from the spotZ_she had left the deceased with the appellant. She also stated that she found, on the spot, the plastic bottle and riftg belonging to the appellant* P.W.2 also stated that the appellant was wearing clothes different from those he had been wearing the previous night. P.W.2 alleged that she saw that the appellant had some bruises from a thorn tree which was near where the dead body was, and that the deceased also had such bruises on her body. P.W.2 also stated that the appellant was restless and was arrested as a suspect by the villagers. P.W.2 stated that she and the deceased drank up to 7.30 p.m. at D omitian, having arrived there at 6.00 p.m. P.W.3 Aiphonce stated that on the material night he was at Domitian. He saw the deceased and P.W.2 arriving there, followed by the appellant. These three persons stayed only about 5 minutes and then left. He saw the deceased with a blackish bottle and the appellant with a plastic bottle. He saw no quarrel between the appellant and the deceased. P.W.3 saw the dead body of the deceased the following morning. By that time the appellant had beep arrested, and P.W.3 also stated that the appellant had clothes on which were different from those he had worn the previous night. He also stated that the deceased was very drunk that nighto He said that plastic bottles were available for sale in the village and he was of the opinion that when the appellant and the deceased left, he thought that they had had an understanding between them. P.W.4 a police officer, on 20.4.83, received a murder report and went to investigate. He went to the scene and saw the a dead body of the deceased, which was iq/bad state. He collected from the scene a plastic bottle and a ring, allegedly belonging to the appellant. He formally arrest'd the appellant. It appeared that nothing was disturbed on the scene for two days or so before P.W.4 arrived there. P.W.4 stated that he- observed the appellant's body, and there were bruises all over, made by thorns. The appellant, on being questioned, stated that the bruises were caused by wood splinters when he was chopping up firewood. It is not known whether by bruises P.W.4 meant scratches. AnyWay it is difficult to envisage thorns causing bruises. P.Vi. 4 had recorded the statements made to the Police by P.W.i and P.W.2. He admitted that in those statements, there was no mention of the ring. P.W.4 did not produce the ring and the plastic bottle he had allegedly picked up at the site of the dead body of the deceased. P.W.4 also stated that he was handed the clothes of the appellant by the village Chairman. P.W.4 did not produce the said clothes. The Republic applied to the trial court for permission to produce the exhibits and to call further additional evidence. It seems that the said application was granted. But no exhibits, i.e. the ring, the plastic bottle or the clothes, were produced, and no additional evidence was called. The appellant testified. He stated that he did go to Domitian on the material night, and stayed there only about 5 minutes. He left with P.W.2 and the deceased. He stated that the de«eased told him to go with her to Sabini for pombe, and he said he had no m o n e y to buy pombe at Sabini and suggested that they go to one free John's home where there was apparently I pombe. The deceased refused and he .Left the deceased on her way to Sabini, and he went on to Johr.= From John's hoiase he left for home later on. The following morning he heard some noise, that of a drum at Buhangaza village. He went there and found a number of-people gathered. He saw the dead body of the deceased. He offered to report to the Folice Station, but he was suspected of the killing and was arrested. He denied that there was any ring or plastic bottle of his found near the body. In anyevent he had no ring. He denied he had any bruises. He said hishome was about a 15 minutes walk from the spot where the dead body wasfound. The appellant was questioned on the statement he had made to the Police. He denied that he had said in the statement that his plastic bottle fell into the river because he was drunk. He said he had taken his plastic bottle home. He stated that he did si«n the statement but it was never read back to him. He said that he did walk same distance with the deceased. He claimed that he did not tell the police that he did not walk with the deceased, although it was so recorded in the statement. The trial judge, in exercising his powers under section 195 of the Criminal Procedure Act, ordered the recall of a Police witness P.W„4 to produce the appellant’s statement to the Police and summoned John Kalira, to whose house the appellant alleged he had gone to drink after he had left Domitian, to testify. The Police Statement of the appellant was then produced and one Johanna Malira testified. Johanna Malira stated that he never had any local beer in his house the year the deceased died and that he never saw the appellant in his house the day the deceased died. He said he was Johanna Malira, not John Malira. The trial judge relied on the following circumstances: 1. The appellant was last seen with the deceased whan the deceased was alive. 2. The appellant's plastic bottle and ring were discovered at the site of the dead body of the deceased. 3. The appellant had threatened the deceased on the material night. There was P.W. l's evidence "I am calling you and you do not want. You will see" * 4. Appellant was seen by both P.W.2 and P.W. 4 to have bruises from thorns, and similar bruises were seen on the deceased. He also relied on the following contradictory or untrue statements of the appellant: 1. The appellant had stated that he went to John Malira. John Malira denied this. John Malira was the same man as Johanna Malira, the judge held. 2. The different versions given by the appellant concerning the plastic bottle; that he took it home and that he had dropped it in the river. 3. Appellant's statement to Police that he went straight home from Domitian and his evidence in Court that he had accompanied the deceased before deceased proceeded to Sabini. The trial judge was of the view th^t a substratum of evidence against the appellant had been laid so as to constitute a prima facie case against him of murder. He relied on the 4 circumstances enumerated above as sufficient for that purpose. And he thought that those circumstances were orced by the contradictory statements given by the appellant, that those false statements would serve as corroboration of the circumstantial evidence. We will examine the circumstances relied on by the trial judge. It is true that the appellant was last seen with the deceased when the deceased was alive. That is an important circumstance. As regards the plastic bottle and the ring, the Republic has given no reason why they were not produced at the trial. The evidence to the effect that they were the property of the appellant and that they were recovered at the place where the dead body was found cannot be accepted with any confidence in the circumstances. None of the prosecution witnesses mentioned these articles in their statements to the Police. The denial by the appellant that they were so found or that if found, they were his property carries more conviction than the prosecution version, in the absence of these exhibits. This circumstance is of no probative value at all. We will consider the threat.mentioned by P.W.l. P.W,i was the only witness who testified to the threat. P«W. 1 had stated that the appellant and the deceased had spent over 2 hours at ^omitian that material evening. P.W.3 Alfonce stated that they were there for only 5 minutes. The appellant also stated that he was there for about 5 minutes. It is possible that P.W.l had greatly exaggerated in giving his evidence. Even so, P.W.l did not say that the appellant was greatly incensed when he allegedly uttered the threat. In any event it was a mild sort of threat, not necessarily implying a threat to kill or to cause serious injuries. And the appellant was seen going some way wi^h the deceased on the deceased's journey to Sabini. This circumstance does not particularly implicate the appellant, assuming that P.W.l was truthful. We refer to the presence of similar bruises made by thorns on the dead body and on the appellant; we presume by bruises scratches were meant. P.W.4 saw the body of the deceased on 20,4.83 and he stated that the body was swollen, and was in a bad state. He did not mention any bruises, whether caused by thorns or otherwise, on the dead body. He said that he examined the appellant's body, and that there were bruises all over, bruises made by thorns. It was P.W.2 who said that the appellant had some bruises from a thorn tree which had also bruised the deceased. The appellant also allegedly had marks of nail on his bcdy. There is nothing to indicate whether P.W.2 Cl08«ly examined the so-called bruises on the appellant or the deceased or that she had merely looked at them from a distance. This was scanty evidence of the similarity of the bruises tfaused to the deceased (body and the appellant by the same thorn tree. The appellant was examined by a doctor, admittedly a month later, and no signs of any scratches or bruises were found. Ihe .... /». prosecution was responsible for the delay in sending the appellant for medical examination. Apart from P.W.2, admittedly a lay person, there is no satisfactory evidence to establish that the bruises or scratches found on the dead body and the appellant, assuming they were so found, were caused by the same thorn ■ ‘-.hr' . tree. There is a possibility that could be so, but the possibility is slight. It will be seen that these factors or circumstances relied on by the trial judge cannot form a sufficient substratum of evidence so as to constitute a prima facie case against the appellant. At the highest they amount to suspicion against the appellente There were no important facts proved which required some explanation from the appellant. The trial judge also apparently considered that the early arrival of the appellant at the scene from a far away village was indicative of a guilty conscience. There was no conclusive evidence of the distance of the appellant's home from the scene of the crime. P.W.i stated it was very far away; the appellant stated it was a 15 minutes walk distance. Nobody else testified on this aspect. In these circumstances no inference of a guilty conscience could be made of the appellant's early presence at the scene of the crime. Concerning the appellant's evidence in court about his accompanying the deceased for a short distance; this was supported by the prosecution witnesses. If he had made a statement to the Police inconsistent with this testimony, it only indicated that he had either told the Police an untruth, or possibly the police had misinterpreted what he stated or had wrongly recorded his statement- The same would apply to what he did to the plastic bottle. The appellant had testified that the statement was not read back to him, although the police officer who took it stated that it was read back to the appellant. The inconsistences and untruths of the appellant, if any, are of no material relevance to the charge laid against him. They are all of peripheral significance and can be ignored in deciding whether a prima facie case had been made out against the appellanti These inconsistences only could indicate that the appellant was not a reliable witness. It is well known that the circumstantial evidence, to ground a conviction, must be such that the inevitable inference from those circumstances would be that only the appellant, and nobody else, could have committed the offence charged. Here the appellant was last seen with the deceased at about 8.00 p.m. The body of the deceased was discovered the following morning, about 12 hours later. There is no evidence when the deceased was killed, during the night or early in the morning. That is the only material circumstance a.Stisfactorily proved against the appellant. The other circumstances relied on by the judge, we have attempted to show, were not of much probative value, nor did they implicate the appellant, to the exclusion of others, as the killer of the deceased In the result, we are not satisfied that the Republic had proved that the appellant was guilty of the offence charged* /ll. We allow the appealj quash the conviction of murder and the sentence imposed, and order that the appellant be released forthwith unless otherwise lawfully detained. dated at MW a NZA this 27th day of June, 1986. A. MUSTAFA JUSTICE OF APPEAL L. M. M m KAME JUSTICE OF APPEAL R. H. k ISANGA JUSTICE OF APPEAL I certify that this is a true copy %f the s/W i/f (J. H. MSOFFE) DEPUTY REGISTRAR.