20040610 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA {CORAM: MROSO, J.A., NSEKELA, J.A., And MSOFFE, l.A.) CRIMINAL APPEAL NO. 55 OF 2003 BETWEEN JANUARY KIZITOGAMA NDUNGURU ................... APPELLANT AND THE REPUBLIC ................................................ RESPONDENT {Ap_peal fr.om the lud.gment of the High ·Court:of-Tanzania"atSongea) {Manento, J.) dated the 5 th day of September, 2002 in Criminal Sessions Case No. 17 of 2001 l U D GM E N.T MROSO, J.A.: On 29 th October, 1999 one Valeriana Yasinti Ndunguru (PW2) -of Kigadi village,. Mb1nga District, hosted a party at her home_to_ celebrate the occasion of the first holy communion of her son Yasinti Ndunguru. Among the people she invited were Januari Kizitogama Ndunguru, who is the appellant, and Nyasikonda d/o Chuma Cha Mato Mbunga, now deceased, who was with her son Majaliwa Kapinga. Majaliwa (PW1) was then about 11 years old. The· appellant and the deceased were not husband and wife but had 2 intimate relationship and PWl was not a biological child of the appellant. According . to PW2, the appellant, the deceased and PWl .arrived together at her home at about 14.00 hours and remained there ·u"ntil night time when the three guests left for their home. The deceased did not see the light of the following day. She died on the same njght -on the way home. The. circumstances in which she met -her death were disputed both at the trial court and before this Court at the hearing of the appeal by the appellant who the trial court convicted for the murder of the deceased. The only person who claimed to have witnessed the circumstances which led to the death of the deceased was PWl. He testified-at the trial after .a voire dire:examination (het was 1-4- years old at the time he gave evidence). He explained that as they went home the deceased led the way followed by the appellant and he brought up the rear. There was moonlight. Somewhere along the way PWl saw the appellant pick up a stone and a piece of bamboo wood. The boy saw the appellant 3 assault the deceased on. the head first with the bamboo stick and then with the stone, causing her to drop down. It was then PWl ran home with a view to seeking assistance from his brothers. None was at home. Later, the appellant appeared and told him he had killed his mother; he would not see her again and that he would hear more about it on the following morning. He then fled from home. On the following day PWl went to his· cousin~ Gabriel, and~ together, they visited the area where he had left his mother being assaulted by the appellant. He saw the dead body of his mother lying in a stream nearby. She was naked, her clothes having been pulled up to the position of the chest. A 200 shilling note had been placed between her buttocks. A report was made to the police. PW3 - No. E.5140 P.C. Alexander, from ·litembo Police Post,_ together with two other policemen visited the scene at the stream on 31 st October, 1999 and collected the dead body. Indeed, the body was naked, was lying in water and there was a 200 shilling note tucked in between the buttocks and there was a wound on the head. A bamboo stick and a blood stained stone were picked from the scene. It was apparent the body had been dragged to the stream 4 from a path above the stream. Drag marks were visible. A post- mortem examination report (Exh. Pl) showed that there was a fracture of the parietal bone and two lacerated wounds on both the parietai and frontal bones. Death was a result of the head injury. In his defence evidence the appellant said the deceased was his concubine. They lived together for two months but by the time the deceased- met her -death -they had not lived toget11er: for a whole year. On the fateful day he did not visit the home .of PW2 in the company of the deceased and her son, PW1. He was away in a village called Langiro where, for two weeks, he was harvesting cassava. Therefore, he denied causing the death of the deceased. The trial High Court, Manento, J., believed PW1 and PW2 were truthful and reliable witnesses. It believed that the deceased died in the circumstances as testified by PWl and rejected the appellant's alibi. It found no difficulty in convicting the appellant for the murder of the deceased. Two grounds of appeal were filed and Mr. Mushokorwa, learned advocate, argued those grounds at the hearing of the appeal. · Mr. 5 Kaduri, learned Principal State Attorney, appeared for the respondent Republic. The grounds of appeal are first, that there were vital contradictions in the evidence of PW1, PW2 and PW3 which rendered the evidence of the eye witness, PW1, unreliable. Second, that the trial court erred in not finding that the appellant was possibly guilty of manslaughter only. Mr. ·Mushokorwa chose. to argue the two grounds together. He pointed out that although PW1 said that the appellant, deceased and himself arrived at the home of PW2 at 9.00 hours, PW2 said they arrived at 14.00 hours. Also PW1 said his mother never drunk "pombe" and that she danced; PW2 said the deceased · did take "pombe" but -never danced. Other-·pieces of contradictions in the evidence, according to Mr. Mushokorwa, were that whereas PW1 said at one time that he found his mother lying in water with her face downwards, he later said he found the dead body of his mother lying on its side in the water. PW3 on the other hand said he found the dead body lying face downwards. Furthermore, PW3 said PW1 had told him that the appellant and the deceased had a 6 misunderstanding while they were at the party but PW2 said she did not see the appellant and the deceased quarrel with each other. Another piece of contradiction in the evidence was that PW1 said that at the scene of crime there were a lot of bamboo trees but PW3 said he did not see any bamboo trees near the scene of crime. PW1 also said in his evidence that while the appellant and the deceased lived together the appellant used to make threats to the deceased that one day he would kill her. Yet the same witness said he never told the police about the threats by the appellant because he forgot to do so. Mr. Mushokorwa argued that all those pieces of contradictions show that PWl, the only eye witness, was not a dependable witness. If there was doubt·aboutthe.credibility of PWl, the prosecution case. had to collapse. But, according to Mr. Mushokorwa, the trial court glossed over those contradictions and, consequently, came to a wrong decision in the case. There were indeed some contradictions between the evidence of PWl and that of PW2 and PW3. But we would say that first, the •,) 7 fact that PW2 and PW3 said certain things differently from what PWl said does not necessarily mean that those other witnesses were correct and truthful. It may well be that PW2 and PW3 were not correct in what they said. PW2 was hosting the party and had people other than the appellant, deceased and PWl to attend to. Busy as she might have been, she may have missed to notice, , for example, a misunderstanding·_ between the-. appellant and the deceased. Secondly, differences among simple villagers in the reckoning of time must not be given undue significance. Neither PW2 nor the young boy, PWl, said they looked at a watch to ascertain the time the appellant, deceased and PWl arrived at the party. Thirdly, three years had elapsed between the fateful day and the time of testifying in court. It was quite possible for any of the witnesses to get confused on certain details. We have given due consideration to .the cited contradictions and we are satisfied that they dld not detract from the main facts of the case, that the appellant, the deceased· and PWl went to the home of PW2 on 29/10/1999, that they left together again in the night and that on their way home PWl witnessed the appellant 8 assaulting the deceased .. Once the trial court believed in those basic facts it was bound to reject the appellant's alibi. We, on our part, consider that the trial court did not err in ignoring the innocuous contradictions and in finding PWl, though a child of tender years at the time the killing was done, as a basically credible witness. Mr. Mushokorwa finally argued that although motive is not a necessary _ingredient in the offence of ·murder, the circumstances of the cc;1se demand that the court asks itself why the appellant would ever want to kill the deceased who used to be his concubine. We see no reason in this case to spend time looking for motive. In the first place, to look for a motive for murder can sometimes lead to unnecessary wild speculations. People may kill for a whole range of reasons, _some of which are indiscernible~ It is said that not even the devi_l knows what goes on in the mind of man. This is not to say that sometimes motive cannot be obvious. There are instances in which motive is clear and provides certitude as to who committed a murder which is being investigated. What we are saying is that it can be futile and misleading to look for motive, and, in this case it is unnecessary to search for motive because we do not even know all 7 ... 9 the details of the relationship between the appellant and the deceased. Finally, Mr. Mushokorwa urged that if this Court agrees with the trial court that it was the appellant who caused the death of the deceased, we should find that the killing was manslaughter, not murder. He said that the appellant apparently had been drinking during much of-the-day and may have been so intoxicated as not to have been able to form the intention to kill the deceased or to cause her grievous harm. The appellant may have drunk "pombe" for much of the day but there was no evidence he became intoxicated, let alone evidence that he. became so intoxicated as to be unable to form the specific intention to -kill. The appellant himself never raised_ such-a-·defence. and the trial court was not to speculate and to impose that defence on him. The appellant used a stone with force to hit the deceased on a vulnerable part of her body, the head, causing a fracture of the parietal bone. He dragged the body to the stream, left it naked in . 10 the water and, very strangely, even sadistically, put a 200 shilling note in her anus. In those circumstances we are unable to say. that the trial court erred in finding the appellant guilty of murder. There was no room to reduce the charge of murder to a verdict of manslaughter. We dismiss the appeal in its entirety. I ' ' DATED at DAR ES SALAAM this 10th day of June, 2004. J.A. MROSO JUSTICE OF APPEAL H. R. NS EKE LA JUSTICE OF APPEAL J. H.--MSOFFF JUSTICE OF APPEAt I certify that this is a true copy of the original. ( S.~RA ) SENIOR DEPUTY REGISTRAR