hamadi kamfitiye kasage kamfitiye vs republic 1986 tzca 91 2 december 1986

I N THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: N valall. Malcame. J.A. and K l s a n q a t J « A . ) CRIMINAL APPEAL NO. 67 OF 1986 B E T W E E N HAMAOI KAMFITIYE ® KlSAPE kAMFITIYE . . . . APPELLANT A N D THE REPUBLIC ....................................................... RESPONDENT (Appeal from the c o n v ictio n o f the High Court o f Tanzania a t Tabora) (C h ip eta, J . ) dated the 4th la y o f September, 19.84 in C rim in al Sesslo h s,C ase No. 36 o f 1980 JUDGMENT OF THE COURT KISANGA, J . A . : This appeal a r i s e s from the d e c is io n o f the High Court c o n v ic tin g the a p p e lla n t f o r murder c on trary to se c tio n 196 o f the Penal Code, and sentencing him to death . The evidence a g a in s t the a p p e lla n t, was e n t ir e ly c ir c u m s ta n tia l, and i t was to--the fo llo w in g e f f e c t : - The deceased was one o f the th ree wives o f the a p p e lla n t. The m arriage between these two was not a happy one. The deceased once complained to her b ro th e r (P .W .2) th a t the a p p e lla n t was a s s a u ltin g her from time to time f o r no reason . Then on the day o f the in c id e n t the deceased went to h er b r o t h e r 's home, a r r iv in g there a t about 8 a.m. and fo llow ed s h o r tly a fte rw a rd s by the a p p e lla n t. On being asked by P .W .2 they both to ld him th at they had ccme there f o r a v i s i t , but the deceased a ls o to ld P .W .2 's w ife (P .W .3 ) th at she had q u a rr e lle d with the a p p e lla n t, and t h is i s suppurttecfi by the a p p e lla n t h im se lf who, in a cautioned statem ent to the p o lic e , sa id th at he had q u a rre lle d w ith the deceased the p reviou s day because th e deceased S' was denying him sex. A f t e r P.W.2 was thus informed by the couple th at they had come f o r a v i s i t , he asked h is w ife (P .W .3 ) to make food f o r the gu ests w h ile he l e f t fo r h unting. Then a t about 12 a.m. the deceased took a pot and went to the r i v e r to fe tc h w ater. Meantime, the a p p e lla n t who had been ly in g down on a bed asked where the deceased had gone and on being told th at she had gone to the r i v e r he fo llo w e d her th e re . At about 1 p.m. the deceased was found d»ad a lo n g the path le a d in g to the riv e r. P ieces o f a broken pot and a sm all blood­ sta in e d k n ife were recovered from the scene. The a p p e lla n t d isap p eared both frotn P.W .2*s v i l l a g e and from t h a t o f h is own. He was a rre ste d about 2 months l a t e r i n a d is t a n t town. A f t e r h is a r r e s t the a p p e lla n t made a cautioned statem ent to a p o lic e c o n sta b le in which he gave a d e t a ile d account o f the in c id e n t . He stated that in the morning o f the day in qu estion the deceased disappeared from h «ae as a r e s u l t o f a q u a r r e l w ith h er the p revious n igh t a r i s i n g from h er r e f u s a l to have sex with him. He fo llo w e d h er and traced her on the same day a t the home o f h e r b ro th e r (P .W „ 2 ). He asked h er to re tu rn to him b u t ?she refu sed saying th a t she was fed up w it r f h is ^ ^ e h a v io u r. He asked P.W.2 to t r y a r e c o n c ilia t io n but P.W.2 g £ :' ' ^ r e fu s e d and to ld him to go away and come back with h is fa th e r to take back the dowry. However P.W.2 asked him to w a it f o r food b e fo r e going away. Meanwhile P.W.2 l e f t on a hunting t r i p w h ile the a p p e lla n t remained a t home. L a te r on he a ls o l e f t the house f o r a w h ile and when he came bacjo a t 12 a.m. he caught the' deceased committing a d u lte ry w ith a c e r t a in man who escaped and whom he d id not know. He picked up a sm all k n ife about fo u r inches lon g and w ithout a handle and chased th at man but in v a in . On h is re tu rn he saw the deceased takin g a pot and the c lo th which she , had used as "bed d in g g e a r" d urin g the a d u lt e r y ; she was going to the r i v e r . He was very angry seeing the deceased sle e p in g w ith ’ o th e r man and re fu s in g to sle e p with him. He decided to fo llo w her a t the r i v e r a t a time when she had a lre a d y sta rte d to come back c a r r y in g a pot o f w a ter. He met h er and to ld her to re tu rn home w ith him i f she wanted to be on the s a fe s id e . Whereupon she re t o r t e d tbjfct tfcere were other men as w e ll . This made him angry. As a r e s u l t he f e l l e d h er down a f t e r which he proceeded to stab her i n the neck and on the c h e s t. He threw away the k n ife and ran t-. •- away to Burundi where he stayed fo r some time and then went to K aliua where he was e v e n tu a lly a rre ste d about 2 months a f t e r the in c id e n t. \ The m edical re p o rt shows th at the deceased su stain ed a punctured wound through the 6 th in t e r c o s t a l space which wound went o b liq u ie ly upwards p en e tra tin g the p leu ra and damaging the a o r t a . Death was due i to the sa id punctured wound w ith in t e r t h o r a c ic haemorrhage due to severed a o r t a . In h is evidence on oath the a p p e lla n t t e s t i f i e d th a t in the pi k even in g p r i o r to the day o f the in c id e n t he informed h is mother who . has sin c e d ie d , and the deceased th at he was going to K aliua to s e l l ha '/h is maize produce from h is sham^a th e re . He said th at he would be f-t>§c)c a f t e r the s a l e . Whereupon the deceased asked him to e sc o rt h er f to P .W .2 ’ s home in Mkabuye v i l l a g e which was about s i x » * i l e s away |\and he agreed to do so . Thus on tl^e fo llo w in g morning the a p p e lla n t *- • o . . took le a v e o f h is mother s t a t in g th a t he was le a v in g f o r Mfcabuye - and then from th ere to K a liu a . He and the deceased .set out a f a b o u t 6 a.m . and a r r iv e d a t Mkabuye v i l l a g e between 0 and 8.30 a.m . The deceased a rriv e d f i r s t because he h im s e lf had to make a sh o rt stop o v e r a t someone’ s house on the way. On h is a r r i v a l th ere he d u ly Inform ed P.W.2 and P.W.3 th a t he had escorted the deceased there and t h a t he was proceeding to K a liu a . Then P.W.2 l e f t f o r hunting and the a p p e lla n t a ls o l e f t a t about 9 .3 * a.m. He w^s asked to w a it f o r food b u t he sa id he would not because P.W.2 was le a v in g . On le a v in g P .W .2 *s house, the deceased escorted him f o r about f i f t e e n paces. He then t r a v e lle d to Kigoma and on the fo llo w in g day to K a liu a , A f t e r sta y in g a t K a liu a f o r f i f t y fo u r days he heard th a t the deceased had d ie d , a f t e r which he was a rre s te d on a lle g a t io n s th at he had k i l l e d h e r. He r e tra c t e d the c o n fe ssio n in h is cautioned p o lic e ♦ statem ent on the ground th at he made the adm ission under severe t o rtu re by the p o lic e . A l l in a l l he denied in c o u rt to have k i l l e d the deceased. As s t a te d , e a r l i e r , the c ase r e s t s e n t i r e l y on c irc u m sta n c ia l e v id e n c e , and Mr. K atakalwa, the learned counsel f o r the a p p e lla n t \ s tre n u o u sly contended, in e f f e c t , th at such circum stances as th ere w ere, d id n ot j u s t i f y the a p p e lla n t 's c o n v ic tio n . In a s s is s in g the * evid en ce b e fo re him, the learn ed t r i a l Judge b e lie v e d , in the main, ;th£ p ro se c u tio n evidence in c lu d in g the a p p e lla n t ’ s own cautioned statem ent to the p o lic e and discounted the a p p e lla n t 's defence in c o u rt as being h o llo w and a r id ic u lo u s a fte rth o u g h t. The circum stan ces which the learn ed t r i a l ju d ge r e l i e d upon to c o n v ict th e a p p e lla n t were th a t*— The a p p e lla n t was the l a s t person to be seen w ith the deceased a l i v e when lie fo llo w e d her to the r i v e r someti: a f t e r 12 a.m . and she was found dead on ly a t about 1 p .m .; th at ijnm ediately a f t e r the death o f the deceased the a p p e lla n t disappeared £<• • - - ------ « * .. __ both from the v i l l a g e o f the scene o f crim e and from h is own v i l l a g e ; t h a t the a p p e lla n t admitted to have thrown away a s m a ll'k n ife a t the scene o f crime and indeed a sm all k n ife with blood s ta in s on i t was d u ly recovered from the scene w h ile the deceased was found with a stab wound; th at th ere had been constant q u a rr e ls between th e ^ a p p e lla n t and deceased^ One m ore'circum stance may be added, namely* th e a p p e l la n t 's f r u s t r a t io n when the deceased com pletely refu sed to goi-becieywitbshiai^eKad Bar b ro th e r (P .W .2 ) turned down h is request,; to make any arrangements f o r a re c o n c ilia tio n ., Such f r u s t r a t io n and dls *ipair must have d riv e n him* to e lim in a te the deceased. Mr. Katabalwa, r a is e d v a rio u s c r it ic is m s d ire c te d a g a in s t the fin d in g s o f these circum stances by the learn ed ju d g e , but on re —v i s i t i n g the evidence o u rs e lv e s we are q u ite s a t i s f i e d th at the c r it ic is m s a re not ju s ^ t ifie d . The circum stances 5s found were amply supported by the evidence and, l i k e the learn ed t r i a l ju d ge , we fin d that they p c in t i r r e s i s t i b l y to the a p p e lla n t 's g u i l t . The a p p e lla n t 's d efen ce does not c a s t any re a s o n a b le doubt on the p rosecu tion case and i t was r ig h t l y d isc o n n ec te d . There are two m atters which re q u ire commenting upon h e re . .F i r s t , th e learn ed t r i a l judge p ro p e rly d ire c te d h im se lf and held th at the adm ission , amounting to k i l l i n g the d eceased , which the a p p e lla n t made i n h is caution ed statement to the p o lic e , was in a d m is s ib le in as much as i t was made to a p o lic e c o n s ta b le . However, we think th at he ^m isdirected h im s e lf on two asp ects o f that statem ent. To s t a r t w ith , th e a p p e lla n t in h is defence in c o u rt c l e a r l y repudiated h is cautioned statem ent to the p o lic e , and a sse rte d th at he was made m erely to s ig n I t under severe t o r t u r e by the p o lic e . The p roper th in g to do in th ose circum stan ces, th e r e fo r e , was f o r the c o u rt to d i r e c t I t s e l f I •_ »' on such a re p u d ia tio n and to fin d whether the statement was tru e -or whether i t was c o rro bo ra te d by other w id e n c e . T h is, however, the ^ le a rn e d t ijia l ju d ge d id npt do; w ith re sp e c t to the learn ed ju d ge th at H was an om ission ; However, the statement contained d e t a i l s such th at » ,-pnly the a p p e lla n t h im se lf can have g iv en them, and in some other ■ , j re s p e c ts the statem ent t a l l i e s w ith the evidence o f w itn e sse s. We think th a t had the learn ed t r i a l Jud#e d u ly d ire c te d h im se lf oji the m atter he would have fcund the a p p e lla n t ’ s cautioned statement to be t r u e . In the event we a re s a t i s f i e d th at the e r r o r was harm less and i t occasioned no f a i l u r e o f j u s t i c e . Next th ere was evidence th at a f t e r h is a & rest, the a p p e lla n t was brought to the scene o f crim e by the sasie p o lic e c o n sta b le who had recorded the cautioned statem ent, and th at in the presence o f such p o lld e c o n s ta b le and the v i l l a g e r s , he showed the p la c e wfeere he had stabbed the deceased with a' k n if e . The learn ed t r i a l judge re lie d on th at as a circum stance tending to connect the a p p e lla n t w ith th e o ffe n c e . We th in k , however, th at t*«tIjAjrfee o f evidence was not * , s e v e ra b le from the c o n fe ssio n * I t was not something, f o r in s ta n c e , which was d isc o v e re d in consequence o f the c o n fe s s io n } i t was, in f a c t * p a r t and p a r c e l o f the c o n fe s s io n . As such We think th at i t Was e x a c t ly ofi the saine fb b t ih g a s the c o n fe ss io n i t s e l f * I t was as , raUdh in a d m is s ib le as thfe d on fessioh I t s e l f f o r e x a c tly the same .. re a s o n , and i t should not have keen J e lle d upon as indeed I t Was. •— - Acjaitt th ere was a sketch p lan put in evidence. (E x . P . l ) purporting to show VairidUs p bifits a t the sden6| such as the p la c e where the deceased Was draw ing W atet, the p lad e Where the a p p e lla n t pushed the deceased caiisihg the Water pot to bteak» in to p ie c e s and the p la c e where the a p p e lla h t stabbed h er w ith the k n ife * P .W .l who dreW thd sketch p la n t e s t i f i e d -•th at the a p p e lla n t pointed out to him the v a r io u s p la c e s on i t oftiy by Way o f doh firm atioh bedaUse those p lad es had been pointed ou t to him by w itn esses when he was draWitig i t « In ^pother..words P.W* 1 claim ed th a t he dreW the sketch p lan on the in fo rm a tio n su p p lie d by witneaates arid he g o t the a p p e lla h t to V e r if y . a # dorifirm the same* The leatn ed t t i a l ju d ge a ls o r e l i e d on t h is _ evid en ce and fount* t'tat the a p p e lla n t pointed out the same p la c e s on th e sketch plan as were pointed out >y w itn e sse s* On the eviden ce, I h owever, th ere were no w itn esses who t e s t i f i e d to £ave seen, f o r i in s ta n c e , the deceased drawing w a ter, the a p p e lla n t pushing the deceased o r the a p p e lla n t subsequentlyjsfeabbing h e r. Thus in our view the sketch plan was o f no v a lu e and could not p ro p e rly have been re lie d on as a circum stance tending to in c rim in a te the a p p e lla n t. Thes<4 m is d ire c tio n s , however, do not e f f e c t the p o s itio n because, as we have made i t very c le a r * i' the oth er p ie c e s o f circu m stan ci1- eviden ce o u tlin e d e a r l i e r were s u f f i c i e n t from which to draw the only re a s o n a b le in fe re n c e that i t i s the a p p e lla n t who k i l l e d the deceased. Mr# Katabalwa fu r t h e r submitted that in the event the a p p e lla n t is found to have occassioned the death o f the deceased, then the d efen ce o f proarocation i s open to him on the ground th at when, a f t e r c atc h in g the deceased in a d u lt e ry , h4 asked hhr to go back home.with him, she answered ru d e ly saying th at th ere were o th e r men as w e l l . But the learned t r i a l ju d ge addressed h im se lf tib th is q u estion and came to the con clu sion th at th ere was no a d u lt e r y committed. There w is evidence b e fo r e him which he was e n t i t le d to b e lie v e and which j u s t i f i e s th at fin d in g . The V subm ission t h e r e fo re has no m e rit. Upon a c a r e f u l c o n sid e ra tio n o f a l l the circum stances o f the c ase and upon h earin g counsel f o r the a p p e lla n t , we are sa tis fie d th at th ere was s u f f i c i e n t m a te ria l to w arrant the a p p e l la n t 's c o n v ic t io n ; no s u f f i c i e n t ground*hhave been advanced f o r f a u l t i n g th at d e c is io n . In the r e s u lt the appeal f a i l s and i s dism issed a c c o rd in g ly . DATED a t MWANZA th is 2nd day o f December, 1986 F . L . NYALALI CHIEF JUSTICE L . M. MAKAME JUSTICE OF APPEAL R p H. KISANGA JUSTICE OF APPEAL X c e r t i f y th a t t h is I s a tru e copy o f the o r ig i n a l J . H. MSOFFE DEPUTY REGISTRAR