sai kuhenga another vs republic 1987 tzca 44 28 may 1987

IN THE COURT OF APPEAL OF TAHZAKilA AT D M S3 3ALAAM CORAM;. MKAME. J.A.5 KISANGA. J.A. And. O M R , J.A. CRIMINAL APPEAL 110. ?6 OF 1986 SAI KUHENGA & AM)THIS. . . . . . . APPELLANTS VERolio THE REPUBLIC. . . . . . . . . . . .RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Singida) (Bahati, J.) dated the 20th day of September, 1986 in Criminal Sessions Case No. 80 of 1982 JUDGMENT OF THE COURT KISANGA. J.A.8 This appeal arises from the decision of the High Court (Bahati, J.) sitting at Singida in which he convicted, the two a-ppellants, Sai Kuhenga and Kulwa W§,tui on a joint charge of murder, and. sentenced them each to death. The appeal is against both conviction and sentence. Sai Kuhenga was the wife of the deceased., and Kulwa Watui is her daughter. For the sake of convenience Sai Kuhenga will be referred to in this judgment simply as Appellant 1 and. Kulwa, Watui as Appellant 2. The prc_. cution case rests essentially on the evidence of P.W.2 and P.W.3 who were relatives of, and staying with, the deceased and the appellants. Both witnesses testified that one day at about midnight while they were sleeping in one room they heard both appellants quarreling with someone outside. In the course of that quarrel Appellant 1 was heard saying, !iyou will see11. The person to whom these words were addressed was never identified. The witnesses tried to go outside to see what it was all about but Appellant 1 stopped them and .. ^ "threatenad to harm than if they did so. Then the witnesses .. /2 , - 2 heard noises of tsckles on the cattle as if the cattle were pulling away some load tied tc following morning P.W.2 asked Appellant 1 what was happening the previous night but Appellant 1 told her not to ask her such question. From that day the deceased waa never seen alive. Some 10 days or so later his dead body was discovered in a pond, some distance away from his home. Also seen were drag marks leading from his hone to the edge of the pond where his body was recovered. Accordli^-’t^ift^^ost mortem examina^itaa- report death was due to head injury. In their defences both appellants denied the charge.. Appellant 1 added that the deceased who used to drink a lot went away to drink pom.be during the Saba Saba celebrations and he never returned. Such disappearance did not surprise her because the deceased, was in the habit of going away on a drinkii^ spree and not coning back for days. She said further that shs ordinarily used some kind, of a d.cvice made of logs and drav/n by cattle for the purposes of drawing water from the nearby ponds although she had. never used the device to draw water from the pond where the d.i_ y. body was di covered. The learned trial judge based the conviction on the following pieces of circumstancial evidences- (1) The noises and quarrel on the material night in the courseof which Appellant 1 uttered the threat irIou will see". (2) Thethreat by Appellant 1 to P.W.2 and P.W.3 that she would, harm them if they went out of the room (3j The noises made by the shackles as if the cattle wer© pulling away some load, (4 ) The trail or drag narks leading from the deceased's home to the pond, and (5) Appellant "Ms silencing P.W.2 w'.en making enquiries about the commotion on the night in question,-. - 3 - The memorandum of appeal ao filed set out five grounds altogether, but I-ic. T. L. Mkude who appeared before us argued the appeal essentially on the ground that the pieces of circumstancial evidence as listed above and relied on by the trial judge did not lead irresistibly to the guilt of the appellants* On the night of the quarrel involving both appellants, it is not known whom they were quarreling with because P.W,2 and P.W.3 who heard, the quarrel conceded that they did. not identify the person with whom the appellants were quarreling. Both witnesses went further and stated in effect that they did not hear the voice of the deceased during the quarrel, In other words it is possible that the decea-sed was never at his home at all at the material time, More so especially bearing in mind the defence evidence, which was not contradicted., that the deceased had gone out to drink during the Saba. Saba celebrations and that he was in the habit of disappearing for days on a drinking spree. In the circumstances there is nothing to really connect the appellants with the death of the deceased. The evidence that Appellant t forbade P,W^2 and P.W.3 to come out to witness the quarrel on the night in question does not advance the case any further. For, the two appellants- might have been engaged in some activity, such as a quarrel with a lover, which they did not want P.W.2 and. P.W.3 to see. The same applies to the argument that on the following morning Appellant 1 silenced P.W.2 who made enquiries about the commotion on the previous night. She might have been engaged in some activity which she did not want the witness to know about, .. /4. - 4 - Nor is there much force in the argument relating to the •frrajl or drag marks which were said to lead from the deceased's house to the pond where the dead body was recovered* In the first place, there is no evidence as to how close to the deceased's houae “those drag narks were traced. In this respect it is pertinent to bear in mind that Appellant 1 used to draw water from the ponds using the kind of device made of logs and pulled by cattle. Now, the question is, if there were any drag marks left behind on the night of the incident, would they not be wiped out or obliterated by subsequent drag marks- and hoof marks when Appellant 1 was drawing water from the ponds? In other words in the light of such subsequent drag marks and hoof marks, would the drag matks of the night of the incident still persist so as to be seen some ten days or so later when the witnesses claimed to have seen 'them? Furthermore, in the absence of any evidence to the contrary, it is possible that other villagers used similai devices made of logs and pulled by cattle to draw water from the ponds. In the light of such possibility, how far can one be certain that the alleged drag marks were, in fact, those left behind by the cattle allegedly being used by the appellants on the night of the incident? But even assuming that the appellants did drag away something that night, the question still remains 2 What was that something? The question is pertinent particularly because there is no evidence or even a sU£3 e.®tion that the deceased was at the scene at the material tine. What facts are there then from which to infer that the thing dragged away was the deceased or his dead body? fyh^ trial judge took the view thaL the appellants had the onus of proving what tjaey dragged away, in the absence of which an inference should, be drawn that they a:r/. J.ragged away the dead body of the deceased after they had killed him# The learned judge relied, for this view, on the provisions of section 114 (1) of the Evidence Act^ The relevant part oi1 the sub-section reads s*- "114 -(1 ) When a, person is accused of any offence, ........ „:.the burden of proving any fact especially within the knowledge of such person is upon him"'. The rest of the sub-section is not relevant t.o the facts of the case at hand. We think that the burden cast upon the accused person by this sub-section arises only where there is some material from which to conclude or fora the opinion that the alleged fact exists. In the context of the present case the onus would have arisen if, for instance, it was shown ^iiat the deceased was present during the quarrel involving the appellants that night and that the appellants dragged away something which, upon tracing the drag nxrl.:; the following morning, led to the pond where the dead, body of the deceased was recovered. Such facts would constitute a sufficient basis for the view that the d^oestged died or was seriously injured during the quarrel that night after which the appellants dragged him or his dead body avr". And the sub-seotion would then operate squarely to require the appellants to prove that what they dragged away yras something other than the deceased or his dead body. But since, as stated earlier, there was no evidence that the deceased was at the scene during the alleged quarrel, then the fact of killing or injuring the deceased on the material night is not constituted., and so there would be nothing to connect the appellants with any killing or injuring the deceased. Ia those circumstances there can be no - 6 - basis ox justification for requiring the appellants under the subjection to prove what they allegedly dragged away that night. For this reason, therefore, we are satisfied that the learned trial judge invoked the provisions of the sub-section prematurely, and to that extent he erred* For the Republic there was some attempt also to argue that- motive existed for Appellant 1 to kill the deceased* This arose from the only evidence of P.W.3 who had claimedthat on the morning of the clay of the incident Appellant 1 had told her and others that she (Appellant 1) had quarreled with the deceased over a- debt owing to Appellant 1 and. arising from the sale of cattle by the deceased. In her defence, however, Appellant 1 denied the existence of any such debt or quarrel between herself and the deceased. Indeed there was overwhelming evidence that Appellant 1 and the deceased, were in good terms. There was therefore no cogent evidence to prove the alleged debt and quarrel, and consequently •fche existence of motive could not be established. We might mention in passing that eve^ if notive were established, this would not make any difference in the light of the fact that the deceased was not shown to be present during the quarrel involving the appellants on the material night, which we consider -to be a serious lacuna in the prosecution case. In the final analysis we ore satisfied that there were serious gaps in the ;t.rojccutiun case such thr t the evidence as adduced could not be soid t point irresistibly to the guilt of the appellants. Viewing the evidence as a whole we think that it does, not exclude the possibility of the deceased having met his ............./ 7. - ? - death otherwise than at the hands of the appellants on the material night as alleged* In the circumstances the conviction cannot be _ f.. supported. We therefore allow tho appeal, quash the conviction and set aside the sentence with an order that the appellants 1b released forthwith unless they are otherwise lawfully held, in custody. DATED a& DAE S3 S d L M M this 28th day of May, 1987* L . M, M&KAMB JUSTICE OP APPEAL H. H, KISANGA JUSTICE OP APPEAL A, M. A, OMAR JUSTICE OF APPEAL I certify that this is a true .copy of the originalf (J. H. MSOFFE) DEPUTY REGISTRAR.