19861202 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF. TANZANIA l'.T MWANZA ' (CORAM: CRIMINAL APPEAL NO. 67 OF 1986 BETWEEN t' ~AMADI KAMFITIYE@ KISA~E KAMFITIYE • • • • • APPELLANT A N D THE REPUBLIC . . . . . . . . . . . . . . -RESPOND~NT ~ (Appeal from the conviction of the High . Court of Tanzania· at Tabora) (Chipeta,· J.) dated the 4th ·jay of September, 1.9.84 in Criminal Ses$icihs, {:ase. No. 36 of 1980 JUDGMENT OF THE COURT KISANGA, 'J .;s.. i This appeal arises from the decision of the High Court . •. convicting the appellant for murder contrary to section ·1.96 of the Penal Code, and sent:endl.ng him to death. The evidence against the appellant, was entirely circumstantia1,·anc1 i t wa:3 to•the:following effect:- ·, The deceased was one of the three wives of the appellant. The marriage between these two· was not a happy one. The deceased once complained to her brother (P.W._2) that .. the appellant ., was assaulting ·. her from. time- to time for· r:io rea·s~n. Then on the.. day of the. incident the deceased went to her brot}ier's home,· arriving .there at about 8 a.m. and followed shortly aftell'Wards by the appellant. On.being· asked by p.W.2 they both told hi,m that they had c qne tllere for a ·visit, ... but the .. J ···- ./2 ..,. -- .f .... .... .,,,, - , __ ,,.., ... 2 deceased also told P.W.2 1 s wife (P.W.3) t.hat she had quarrelled with the appellant, and this is sUppacU¢dl by the appell~~t himself who, in a caut19ned statement to the police, said tha_t he had quarrelled with the dee-eased the previous day because the deceased was denying him sex. fl After P.W.2 was ·thus informed by the couple that they had come for a visit, he asked his wife (P.W.3) to make food for the guests while he left for hunting. Then at about 12 a.m. the deceased tOOk a pot and went to the river to fetch water. MenntiJne, the appellant who had been lying down on a be:i asked where the _deceased had gone and on being told that she had gone to the river he fOllowed her there. At about 1 p.m. the deceased was found d~ad along the path leading to the river. Pieces of a broken pot an1 a small blood- stained knife were recovered from the scene. The appellant disappeared both from P.W.2's village and from that of his own. He was arrested about 2 months later in a distant town. ·After his arrest the appellant made a cautioned statement to a police constable in which he gave a detailed account of the incidento He stated that in the morning of the day in question the deceased disappeared from hfllle as a result of a quarrel with her the previous night arising from her refusal to have sex with him, He followed her and traced her on the same day at the home of her brother (P.Wv2). He asked her to return to him but1she refused.saying that she was fed up witlt his ••• /3 ~ehaviour. He asked P.W.2 to try a reconciliation but P.W.2 refused and told him to go away and come back with his father to take back the dowry. However P.W.2 asked him to wait for food before going away. Meanwhile P.W.2 left on a hunting trip while the appellant remain~d at home. Later on he also left the house for a while and when he came bael:I at 12 a.m. he caught the dec~ased committing adultery with a certain man who escaped and , whom he did not know. He picked up a small knife about four inches long and without a handle and chased that man but in vain. On his return h'3 saw th·e··-deceased taking a pot and the cloth which she , had used as "bedding gear" during the adultery; she was going to '.I ".-"l the river. He was very ~ngry seeing the deceased sleeping with tl.- / other man and refusing to sleep with him. He decided to follow her at the river at a time when she had already started ~o come back carrying a po~ of water. He met her and told her to return home -~ :- with him if she wanted to be on the safe side. Whereupon she l· ,...· :", retorted bbA~·Uere were other men as well. This made him angry. As a result he felled her down after which he proceeded to stab her in the neck and on the chest. He threw away the knife and ran away to Burundi where·he stayed for some time and then went to Kallua WQere he was eventually arrested about 2- months after the.incident. The medical report shows that the deceased sustained. a punctured upwards penetrating the pleura and damaging·the aorta. o·eath was due to the said punctured wound with interthoracic haemorrhage due to severed aorta. Zn his evidence on oath the appellant testified ·that in the· eveni.ng prior to the 1ay of the incident he informed his mother who has since died, and the ~eceased that he was going to Kaliua to sell his maize produce from his sham•a there. He said that he would be back after the sale. Whereupor the deceased asked him. to escort her to P.W.2•~ home in Mkabuye village whic~ was about six•ailes away ~"· . . ' . and he agreed to do so. Thus on tl\e following morning the appellant .•••• /4 i. .... ~: ________ . . . __ ' -~ - ..... -.:.- - ~ ;....::":,-1} 4 took leave of his mother staUng that he was leaving for Mkabuye • and then from there to Kaliua. He and the· decea.sed ,set out at about 6 a.m. and arrived at Mkabuye village •etween G and s.30 a.m. The deceased arrived first because he h1mse1f had to make a short stop over at someone 1 s· .. house on the way. On his arrival there he duJ.y informed P.w.2 an:! P.W.3 that he had escorted the deceased there and that he was J:?roc~eding to Kaliua.. Then P.W.2 l.eft for hunting an:1 'the appellant also left at about 9.31 a.m. He WftS asked to wait for food but he said he would not because P.W.2 was leqving. On leavip.g P.W.2•s house, the deceased escorted him for about fifteen paces. He then travelled to Kigoma and on the following day to Kaliua. After staying at Kaliua for fifty four days he heard that the deceased had died, after which he was arrested on allegations that he had killed her. He retracted the c~nfession in his cautioned police statement on the ground that he made the admission under severe .torture by· the police. All in· all he denied in court to have. killed the deceased. As stated, earlier, the case rests entirely on circumstancial ·· evidence, and Mr. Kata•alwa, the.learned counsel for the appellant ~ \trenuously contend-ldr _in effect, that .. such circumstances as there were, did not justif¥ the appellant's conviction.. :rn assissing the :.evidenc:~ be.fore him 7 the learned tria] judge believed, in the m<lin, -_.the ~ pr(?secution evidence including the appellant's own cautioned .statement to the police and discounted the appellant's defence in ,court as being hollow and a ridiculous afterthought. The Which the learned trial judge relied upon to'convict were thats- The appellant was the last person to be deceased alive when he followed her.to the river sometime and she was found dead only at about 1 p.m .. ; that ·· ·-~ the death 'of the dec~~~ed the appellant disappeared the village of the scene of crime and from his own village; ,;,,. ~ •,.•1 ... r s. - that the appellant admitted to have thrown away a small knife at the scene of crime and indeP.d a· small knife.with blood-stains on it was duly recovered from the scene while the deceased was foum with a stab wound; that there had been constant.quarrels between ~e .. 4 appellant and deceased~ ·one more circuinstance may be added, nam~ly, ,. t . t~e. app~llant' s :frustration when the deceased completely -refused _to - . - ;.....: make any arrangements for a reconciliation.; Such frustration and-:" ·. dje -ipair must have driven· him; .to eiiminate th·e deceased.; Mr. Katabalwa_!-- raised various criticisms directed.~gainst the findings of these. .., ' circumstances by the learned judge_, but_ on re-visiting -the; evidence . . ourselves we are quite satisfied that the cri~iCif~S ai:;e not j~-:,t.:;.f~ed. : . . : ·- ~' . . ~ The circumstances 'ls found w~re · amply support_ed by the evidence and, like the learned trial judge, we'find'that they pcint irresistibly to ~ the appeliant's guilt. The a~pel1~nt•s·defertce does-not cast any < , t'easonable doubt on the prosecution case and it was rightly •. ~ t disconnected. There are two matters which require•·commenting upon here. ,First, I I ' the learn~ trial judge properly directed himself and held that the· admission, amounting to killing th~---~~-ceased; which the appe~lant made in his cautioned statement to the 'police~ was inadmissible in as much as it was made to a police constable. However, we think "that he misdirected himself on two aspects of that stntement. TO start with, . ... the appellant in his defence in court clearly·,repudiated his. eautioned statement to the police, and asserted that he was·made merely to sign 1t under severe torture by the police. The proper thing to do in.· . .. those circumstances, therefore, was·f~r the.court to direct itself . . . on sucn a repudiation-and to find whether'the.statement was true -0r whether it was corroborated by other 6vidence. This, however, the -~ .' learned b;!~l Judge did n~t do; with i;-espect to the itearned judge that- . was-an omission. However, the sti;l~ement 7ontained details such that · · ~ave givef _themj arx! 1-n some o_ther f•.~ .. ,·.. t ·.1 · •;; . . ,. . .• · -:-, .respects the statement tallies with the evidence of witnesses • .·).· ,. ... .· · l . think that had the lea.med trial judte dUly directed hims,el.f <311 . . , . ~ the matter he would have fcund the appellant's cautioned statement t~ be true. J:n the event we are ;;atisfied that the error was·: ~armless and it occasioned no failure of justice• . Next there was evidence that after his aprest,the appellant was brought to the scene of crime by the sa~e police constable who . ; : had r~o.rded the-cautioned statement-, a~d that in the presence of ~Uch police constable and the villagers, he showed the·place where . he had stabk-ed the deceased with a' knifia. The learned .. trial judge relied on that as a circWl!stance tending to connect the appellant wi~:~: . -: .- :·:·:"~ . ·-t~ the offence. -♦ .. We think, however, that t)lat·~.--of evidence was ·nc;it;:.;,"'{,; ~ . s~verable from: the confession •. '.It was not something, for instance, . ~1:1i.ch was discovere:l in' consequ~ce of the confessi.o_n·r it was, in '· ~ac_tt part. and pa~cel. of the confession.· ~As, such· we think. that it was ~xactly on the saffie footing as the ~onfession 1t~elf. ·Zt was as ,~\.ich !nadfuitsibie as t~e confessiott itself for exactly-the same ~eason, and it should- not·have ~een;..fe1ied.upon:as indeed it was. Aga~h t~e~e was a Sket•h plan· put in· evidence, (Ex. P.. l). pu.rport.1.ng _:·= to shaw various points ·at the scett~, st.tch·as·the place where· the . ~ d~easei w.as .dt-awing· water t the pl.ati"e-·where the' appellant pushed the • : deceased· causing the Water pot• to·•. brJak, into pieces ahd the piece . ~- _where'the appeiiaht st<'!bbe:1 her wltih the,k,nife. P.w.i who d_re.W. the Sketch piah _tesHfi~~that the .appe11ant: t:iointed out· to him the ::, '\._va_rious pia.ces oti' it ~hiy i,y way of cofidrrncitioli .becaus~ those ·places- ;~ ,.had_ been pointed out ·to him· by witnesses when· he was: drawitig · it•· l'.n '. ;other.words: 1>.w.1 c1alm.ed -that•he:dreW·the sk-':!tch plan on the, :,t-,i. .... ' - i . l~f~rmation sUppi~ed. by: witttefldes tifid.-he· got· the appeiiattt to verify ~ cor~_ririn ,the same. · The leat'ne:1 · trlai- judge· aiso· relied- on ith1s ev:idence · -and fount~ -tit.at the. _appellant pointed·. otit .the· same piaces on *11 \ jt• 4 , .. . -- 7 '\ the Sketch plan as were pointed out hy witnesses.,, • On th~ evidence, . • however, there were no witnesses who testified to '1ave seen, for • I . • • . . • I . . . \ instance,. the deceased drawing water, the appellant pushing the. . ' '' deceased or-. the. appell..ant sub~eque~Uy_lit.a:Qbing her. Thus in. our ,. view the Sketch plan was of no value and could not prop~ly have been . -. . rei.i.ed ~on as a ci.i:-cums~ance. teitding to ·incrimina.te the'• appellant. ·- ,, These misdire~~ons, how~ver, do not effect the position becau_se, as we have made: it_ very clear:; the other pieces of circumstanclli.'. evidence outlined · earlier were ~uffici~l'lt fr~m which to draw· th'e only reasonable inference that i t is the appellant who killed the deceased. Mr. Katabalwa further submitted thai; in thet·event the ,aj;,pellant . . ( . 1s found to have ?ccia:ssioned the death of th_e. deceased, then t}le defence of prosocation_ is open to him O?) the 'ground th.:i.t when,· after catching the 1eceased in adultery, he asked hl!i.z;- to go back -home.with him, she answered ·rudely.saying that there were other men as ~ell. But the learnec1 trial judge·addressed himself tD'i this ques.tion a.nd .. .came to toe conc.l.Y..f~ion tha,t; there was 'no adultery committedo There was evidence before him which he was· entitled. to believe and which justifies· that finding. The submission therefore has no merit. Upon a careful consideration of all the -circumstances of th~ case and up~n hearing cou~sel for the-appellant, we are . satisfied\ that there was suffici~nt ·material to· warrant' the appellant's conviction; no sufficient groundahhave been . ' advanced for faulting ·that decision. In the result the app~al fails and is dismissed accordingly• . • I ~-- , > :. . ' ,_ ' :::......._.,......_·.....:,i......;_~';,....,.-· ' ., ' ' _.,. .• ' • . . -~_ ;*"·.,' -~ : .. <~.;-~. ,_;.· 8 DATED at MWANZA this -2nd day of December, 1986. 7. . F. L. NYALALI CHIEF JUSTICE L. M. MAKAME JUSTICE OF APPEAL Ro H. ,KISANGA JUSTICE OF APPEAL :r certify that this is a true copy of the original ,:;:--~ p.? p ~~_c.'' lt\.r.. ,r~. f I. ,: . •• # .. .. ~ . ··'-c:"t:.L' J. H. MSOFFE DEPUTY REGISTRAR • • 1 \ • . '❖,~:<t-~ .•. -.~~-: ~~- ,'J