20030409 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAN: LUB TVAJ.AMOS9J4 And MU1IUO 1 J.A.) CRIMINAL APPEAL NO. 16 OF 2002 EETWEEN I • VENANT MAPUNDA 2 NESTORY MAPUNDA • •... APPJLANTS •1 TRE REPUBLIC ..... SPONDENT (Appeal from the Judgment of the High Court of Tanzania at Songea) (K.-ane nto dated 15th day of June, 2001 • in Criminal Sessions Case No. 26 of 2000 • J U D G M E N T LUBUVAA: The appellants, Venant Mapunda, Nestory Mapunda and Aflanus Mapunda who was aoquitted at the trial were charged with and convicted of the murder of Fulko s/c Kapinga. At the trial they were referred to as the first, third and second accused respectively. Aggrieved by the decision, this appeal has been preferred. The facts as established at the trial are that the appellants and the deceased were neighbours living at the village of Mapera, Mbinga District in Ruvuma Region. The first appellant is the father of the second appellant and Allanus Mapunda. On the fateful day, 19.12.1998 2 at about 8.00 a.m 0 the deceased went to the house of the first appellant and borrowed a wheelbarrow. For most of the day, the deceased used the wheelbarrow carrying sand for the construction of his house. Apparently, Kiesensia Kaping (PW2)., the mothe: of the deceased lived in a house near the house of the - 2 - deceã.sed, In the evening before sunset, the deceased returned the wheelbarrow to the house ot the first appellant. Shortly, iClesensia Kapiriga (PW2) heaJ the voice of the deceased raising alarm. She rushed to the house of the :Pirst appellant who she saw holding a panga, the second appellant and others holding sticks. The deceased was held on the ground. The first appellant cut the deceased with a panga while the second appellant together with the others beat him (deceased) with sticks. The first appellant was shouting that the deceased had stolen his (1st appellant) wheelbarrow. P2 who Un- successfully p}eaded with the first appellant to spare the life of the deceased was threatened to be killed if she did not leave the scene of the incident. The deceased sustained multiple cut wounds, he died short]yin the presence of his mother (PW2). According to the Post Mortem exanination report, the cause of death was severe anaemia resulting from multiple cut wounds. The appellants were arrested and charged with the murder of the deceased. At the trial, the derence of alibi was raised. In his defence, the first appellant stated that on 19.12,1998, in the morning, at about 8 a.rn., he, together with his sons, the second appellant,. Allanus Mapunda and Lanhelta, his wife (DW 1+)., left their village Idapera for Maguu by car, a landrover. For the rest of the day, the app2llants remained at Maguu until 9 p.m. when they drove back home. Lambelta (b), had left Maguu for home earlier at about 7.30 p.m. leaving behind the appellants at Eaguu. On arrival at Mapera village, the first appellant did not go to the house of D4 his senior wife, instead, he spent the night at the house of his other junior wife. The first appellant further claimed that the following morning at 10 a,m when he heard of the death of the deceased, he went to the - 3 - scene of the incident. He stayed for the rest of the day and spent the night there. The following morning, he went to Maguu to notify his masons of the death of the deceased 0 When he returned to the village Mapera, the deceased had already been buried and his wives • were arrested He denied owning any wheelbarrow but admitted that at times he borrowed a wheelbarrow, red in colour from one Alexander Mapunda @ Swale. He also denied killing the deoeaséd, Similarly,the second appellant in defenóe denied any involve- ment in the killing of the deoeased. He said that on the day of the incident,., he as in Maguu village together with his father, the first appellant and his mother (DW4).. He also èláimed that he heard of the death of the deceased the following day,20 0 12.1998. Regarding the wheelbarrow, he firmly maintained that his father, the first appellant did not ,wn any wheelbarrow and that at times, his father, the first appellant, used to borrow from other people a wheelbarrow for use. - Allanus Mapunda, the other accused person, also gave a similar defence. In support of the defence case, .Lambelta Hekela (DW1+) gave similar evidence to that of the appellants. She added that on 19..12.1998at about 730 p.m. she walked back home for half an hour leaving behind the appellants at Maguu. As both of her sons, the second appellant and Allanus Mapunda lived in their own houses, she did not meet them again that day after returning from Maguu. The learned trial judge was satisfied that the appellants' identification at the time of the commission of the offence was satisfactorily proved by the eVidence of Kiesensia Iapinga (Pw2) and Emmanuel Kapinga (P 1W3) .. The judge believed in the truthfulness of these witnesses, he rejected the defence of alibi raised by the appellants and convicted them of the charge of murder. The Other I accused Allanus. Ka.pinga was as stated before, aequitted. Lf Mr. Mkurnbe, learned advocate, appeared for the appellants in this appeal. In the memorandum of appeal, two grounds were raised. First, that the learned trial judge erred in rejecting the appellants! defence of alibis Second, that it was erroneous on the part of the learned judge to base the conviction on the evidence of PW2 and PW3 which was not water—tight, With regard to ground two, Mr Mkumbe vehemently criticized the learned judge in relying on the evidence of Iaesensia Kapinga (PW2) because there were discrepancies in her evidence. First, he said according to PW2 the deceased had borrowed a wheelbarrow from • . the first appellant. This, Mr. IUcumbe charged., was not true -because- • the first appellant supported by.the second appellant, denied owning- any wheelbarrow. Second, he discredited the evidence Of PW2 because acdording to him, it was not true that she (PW2) was at the scene of crime when the deceased was killed. He said if in fact she was at the scene of the crime seeing the appellants kill the deceased, why did she not report the matter to the village authorities . immediately. Instead, he further charged, P1,12 mentioned the appellants after two days w13ih shows that she was not truthful. Third, Mr. Mkumbe sought to discredit PW2 because the body of the deceased was not found at the same dpot that PW2 had mentioned. Fourth, N. Mkumbe also submitted that P12 was uai'eliable because the rest of the villagers did not respond to the alarm raised. Furthermo±'e, he submitted that as there was a uix up in the name of the: second. appellant, PV3 was unreliable witness, .. . As Mr. Manyanda, learned Stata Attorney sUbmitted, we find no • . . material discrepancies in the evidence of PW2 and PW3. In the first place, the appellants, the deceaaed, PW2 and PW3 live together in the same village. For long, they knew each and the incident took place . 5 when there was broad day light before sun set. There was therefore no difficulty regarding light or visibility to impede PW2 and PW3 from identifying the appellants. In their evidence they (PW2 and PW3) stated that they sawthe appellants viciously assaulting the deceased with a panga and sticks. The trial judge, who saw the witnesses testify in court, believed them as truthful0 As regards the wheelbarrow, we think it was immaterial whether • the first appellant owned the wheelbarrow or had borrowed it from some other person. According to PW2 and PW3, the deceased borrowed a ieelbarrow, red in colour from the.first appellant which he returned to the house of the first appellant, where he was killed.. We do not accept Mr. Mkumbe"s complaint that. PW2 Was not at the scene of crime because she did not immediately report the incident to the village authorities. In Our view, the.reality of the matter is that as PW2, the mother of the deceased, had undergone frightening trauma at seeing the deceased being killed so brutal1y, it is no wonder that PW2 went back to her house after the death of the deceased in utter confusion, depression and deep grief not knowing what to do next. Nonetheless, the matter was reported the next morning which, in'the circumstances, we do not think was sufficient grOund for not believing that PW2 was at the scene of crime... 'urthermore, we agree with the learned State Attorney that the mix Up in the nane Of the second appellant and the fact that the other villagers apart from 'PW2 and PW3 did not respdnd to thel ' alarm raised when the deceased was attacked does.not vitiate the credicility of the evidence of P42 and PW3. The explanation for this aspect.i's.not far to seek. It is understandable that within . . .16 -6- the vicinity of the scene of crime, PW2 and PW3 were the nearest. Therefore, they were able to hear the voice of the deceased when he was struck by iI:e appellants, P2 and PW3 rushed to the scene immediately where they found the appellants striking the deceased. Later on the other villagers later came to the scene after word had gone around. It is also not surprising that the body of the deceased was found at a different point from where PW2 had mentioned. This is because it is possible that the appellants may well have moved the body after PW2 had left for her house. For these reasons, we find no merit in ground two. On the rejection of the defence of alibi raised by the appellants, Mr. Iicumbe vigorously attacked the learned judge on the following grounds: First, the judge was influenced by his earlier ruling at the close of the prosecution case when the court ruled on whether to allow the accused to call witnesses whose names and addresses as well as the particulars of the alibi were not supplied at the preliminary hearing.. Second, because in his ruling the judge had allowed the defence to call witness subject to the provisions of section 194 (6) of the Criminal Procedure Act, which was not applicable in this case, the evidence in support of the alibi was erroneously not accorded any weight. Sub—section (6) of section 194 of the Criminal Procedure Act, 1985 did not come to play in this case because as the judge observed in the ruling of 24.5,2001, notice of the intention to raise the defence of alibi had been given verbally by Mr. Waryuba, learned counsel. Third, that if the judge was not influenced and biased by his previous ruling, he would have admitted the appellants defence of alibi. At any rate, Mr. Mkumbe concluded, the appellants . . .17 7- had no duty of proving their alibi as a matter of law, it was enough if the alibi raise reasonable doubt on the prosecution. In this case, he urged, with the unreliable evidence of PW2 and PW3, had the alibi been accepted it would have raised doubts on the prosecution case. Mr. Manyanda, learned State Attorney responded to these submissions. He said that it was not true that the learned judge had already made up his mind to reject the defence of alibi. In dealing with the defence of alibi, Mr. Manyanda submitted that the judge did not confine himself to the restrictions of the provisions of sub—section (6) of section 194 of the Criminal Procedure Act, 1985. He also said that the judge considered the defence of alibi as a whole including the defence evidence of DWLF whose evidence he did not believe. So, State Attorney maintained, the defence of alibi was properly rejected by the learned judge because he did not accept it without any influence from the previous rulings We have given due consideration to the rival submissions ±'egarding the defence of alibis With respect Mr Mkuthbe correctly stated the legal position regarding the defence of alibi, nmaely that an accused person in a criminal charge does not assume the duty of provig his elibi whal is iequired of him is to raise doubt that possibly at the time of the offence, he was not at the scene of crime4 It is enough if it raises reasonable doubt. See for instance, ashid_AJy v. P (1979) TLR 98. In this case, although we are in agreement with the conclusion of the learned judge in rejecting the defence of alibi, we do not, with respect, agree with the reasoning. From the judgment and ruling, we are satisfied that as submitted by Mr. Manyanda, learned State Attorney, the learned judge considered the defence of alibi as •a whole and rejected it. However, the ../8 - -8- rejection of the defence of alibi, we think was based on wrong reasoning and misapplication of the provisions of section 194 of the Criminal Procedure Act, 1985. Rejecting the defence of alibi, the judge inter a.lia, stated that the accused persons did not call any of the masons they alleged that they were building the house of the 1st accused at Maguu. This, with respect, was a misdirection on the part of the learned judge because as indicated earlier, the accused has no burden of proving the alibi. Similarly, and for the same reason it was also a misdirection when the judge stated that there had not been reasonable explanation raised in the defence of alibi. As regards the application of the provisions of section 194 of the Criminal Procedure Act, 1985, we agree with Mr. Mkumbe that there was a misapplication of the law.. This is gleaned from the ruling of 2+,5.2001 where it was stated that the application to lead evidence on the defence of alibi was granted subject to the provisions of section 194 (6) of the Criminal Procedure Act, 1985. Under the provisions of sub-section (6) of section 194, the Court may, in its discretion accord no weight of any kind to the defence.- However, in this case, it is shown from the ruling that verbal notice had already been given of the appellant's intention to raise the defence of alibi. In that case, sub-section (6) of section 194 does not apply because notice had been given., Section 194 (5) and (6) provides: (5) Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case, he shall furnish the prosecution with the particulars of the alibi at any time before the case of.the prosetion is closed. . -9 - (6) If the accused raises a defence of alibi: without having first furnished the par- ticular of the alibi to the court or to the prosecution pursuant to this section, the court may in its di3oretion, accord no weight of any kind to the defence. It was therefore a misapplication of the law on the part of the judge to subject the evidence on the defence of alibi to the provisions of section 191+ (6) which was not applicable. In the circumstances, the question arises as to the effect of the misdirection and misapplication of the law in this case Considering the evidence of P'i2 and P which as shown earlier was found truthful and credible, we are satisfied that had the learned judge correctly directed himself on the defence of alibi, still he would have rejected it. This is because on the evidence of PW2 and PW3 the appellants were identified conclusively at the scene of the offence. It is trite that the identification of the accused at the scene of crime and the defence of alibi are mutually exclusive. The appellants could not be at the scene of crime and at Maguu at the same time as alleged in the defence of alibi. With the identity of the appellants established beyond doubt, the defence of alibi could not stand, it was properly rejected. There is no merit in this ground. For the foregoing reasons, we are satisfied that the conviction of the appellants was justified. The appeal is dismissed in its entir2ty. .1./10 I