20040521 TZCA Mbeya

r ~ ~u. ·, . •' • ~-- . ~T-· .!F-."~c' ~ (r,j IN THE COURT OF APPEAL OF TANZANIA ATMBEYA {CORAM: MROSO, J. A., NSEKELA, J. A. AND MSOFFE, J. A.) CRIMINAL APPEAL NO. 62 OF 1998 BETWEEN ROMANUS KABOGO ........................................ APPELLANT AND THE REPUBLIC ••••••.•••••••.•••••.••••...•.••••.•••••.••• RESPONDENT {Appeal from a Judgment of the High Court of Tanzania at Iringa) {Kileo, PRM, Ext. Jurisdiction) dated the 21st day of April, 1997 in Criminal Sessions Case No. 14 of 1997 JUDGMENT OF THE COURT ------------------------ NSEKELA, l. A.: The High Court (Kileo, Principal Resident Magistrate - (Extended Jurisdiction) - as she then was) sitting at Iringa, convicted 2 the appellant, one Romanus Kabogo, of the murder of the deceased Fausta Bitia Uguh..1mu, and sentenced him to death. From that decision, the appellant has lodged this appeal. In convicting the appellant, the learned trial magistrate relied on the evidence of PW 1, Rosemary Ugulumo and the dying declaration of the deceased which he made at Mafinga Hospital before PW 3, WP 3691 PC Mary. At the hearing of the appeal, the appellant was represented by Mr. Mika T. Mbise, learned advocate, while the respondent Republic was represented by Mr. Boniface, learned State Attorney. Mr. Mbise filed four grounds of appeal as under: 1. The trial court did not adequately consider material contradictions in the prosecution case, otherwise the appellant could not have been found guilty as charged. I ' 3 2. The trial court did put undue weight to the testimony of PW 1 Rosemary Ugulumo when she was unreliable witness. 3. The trial court did not scrutinise the quality of the alleged dying declaration before using the same as a ground of conviction. 4. The defence case was not properly and adequately considered by the trial court in its judgment. Starting with the first ground of appeal Mr. Mbise submitted that the trial court did not carefully examine the contradictions in the evidence of PW 1, Rosemary Ugulumo. The learned advocate singled out for special mention two such instances. First, PW 1 stated that the appellant was the first to arrive at her residence followed by the deceased, her sister. The appellant is reported to have said that the deceased would not see the sun rise again and left soon thereafter. 4 After the appellant had left, the deceased also left and that was the last time she was seen alive. However, when PW 1 was examined by the court, she stated - "hardly two minutes passed after Kabogo had left rny house when Fausta came". Fausta is the deceased. According to this scenario, the appellant and the deceased did not meet at PW l's residence. The second area where there was contradictory evidence related to the time when the appellant had an adulterous affair with the deceased. PW 1 testified that this was about a month before the deceased was murdered. Then this must have been in March 1993. However, in a statement PW 1 made to the Police, she stated that in 1991, as a ten - cell leader, the deceased's husband, Castory s/o Lubava lodged a complaint before her that the appellant was caught having an adulterous affair with the deceased. The third complaint on the prosecution case related to the evidence of PW 3 who had 5 occasion to talk to the deceased at the hospital. PW 3 testified that the deceased told her that the appellant had attacked her while en route to fetch some ulanzi (bamboo juice). However, PW 2 Enesia d/o Kabogo in her statement to the police, exhibit P 2, stated that she found the deceased at her farm with head injuries. Mr. Mbise, learned advocate, contended that the prosecution case was riddled with material contradictions and consequently such evidence was insufficient to found a conviction of the appellant. As regards the second ground of appeal, Mr. Mbise faulted the learned trial magistrate for undue reliance upon the testimony of PW 1 whom he labeled as an "unreliable witness". The thrust of this complaint was that the testimony of PW 1 was circumstantial in nature and if this evidence was discredited, then there was no other evidence, direct or circumstantial, to pin down the appellant as the culprit who murdered the deceased. The third ground of appeal took issue with the quality of the dying declaration of the deceased. Mr. Mbise contended that the 6 deceased had suffered extensive brain damage and was therefore in a very poor condition. Consequently, the dying declaration was not reliable evidence, hence the need for other independent evidence to corroborate the dying declaration. There was no such evidence, he added. Lastly, Mr. Mbise complained that the learned trial magistrate did not seriously take into account the appellant's alibi to the effect that on the material day, he was at his place of work at Sao Hill. On his part, Mr. Boniface, learned State Attorney, to a great extent agreed with the submissions of Mr. Mbise, learned advocate for the appellant. He conceded that the testimony of PW 1 was wanting as submitted by Mr. Mbise. He was of the view that it was not easy for PW 1 to forget who visited her residence on the day in question. Likewise, he admitted that there was a discrepancy in connection with the year when the appellant was caught in an adulterous affair with the deceased. As regards the dying declaration, the learned State Attorney also submitted that it was made under difficult conditions, but the court found corroboration in the evidence of PW 1. If however, the evidence of PW 1 was 7 discounted, then there would be no corroborative evidence. Lastly, the learned State Attorney submitted that the prosecution should have followed up the explanation given by the appellant to the Justice of Peace as to his whereabouts on the 10.4. 93. For the sake of convenience, we shall consider and determine the first two grounds of appeal together since they are closely related. The conviction of the appellant was essentially founded on the evidence of PW 1, Rosemary Ugulumo and the dying declaration of the deceased. As regards the testimony of PW 1, Mr. Mbise submitted that the learned trial magistrate glossed over the contradictions in her evidence. The first discrepancy was the alleged presence of both the appellant and the deceased at PW 1's residence on the 10.7.93. The presence of the appellant and his departure from PW l's residence had a bearing with the death of the deceased when considered together with the departure of the deceased soon thereafter. There was certainly a material discrepancy in the testimony of PW 1 when she stated that the appellant and the deceased were together at her residence but later on in her evidence 8 she stated that the appellant had left and soon thereafter the deceased arrived. The sequence of events in this respect was important. The discrepancy in PW l's evidence relating to period when the appellant had an adulterous affair with the deceased also casts doubts on the reliability of her memory .. It will be recalled that PW 1 testified that the appellant and the deceased had an adulterous affair a month before the latter was murdered. However, in PW l's statement, this adulterous affair was reported to her as a ten - cell leader in April, 1991, as admitted by the appellant in his evidence as well. The learned trial magistrate described PW 1 as a "simple rural woman with nothing to hide" and that she gave a plausible explanation on the discrepancies in the evidence since she was not used. to giving evidence in court and that a long time had elapsed since this incident occurred. The learned trial magistrate added - "The discrepancy between the statement she made to the Police and the testimony she 9 gave in court was not so material as to render her evidence unworthy". With all due respect to the learned trial Magistrate, we do not agree with her conclusion. In April 1991 she took part in mediating the adultery affair involving the appellant and the deceased, her sister. it is true that memories do fade away but this was a serious matter of adultery involving her sister! In similar vein, we also do not agree that the discrepancy in PW l's evidence as to whether or not both the appellant and the deceased were present at her residence at the same time was not a material discrepancy. It is evident that the last journey of the deceased on this planet · commenced from PW l's residence. She cannot give different versions as to who was present or not at her residence on the 10.4.1993. Her testimony leaves much to be desired. In view of these discrepancies in the evidence of PW 1, we find it unsafe to rely on such discredited evidence to found a conviction of the appellant. 10 We now come to the dying declaration. It was testified to by PW 3 WP 3691 PC Mary. She stated that she talked to the deceased on the 23.4.1993 and their conversation lasted about six minutes. In that conversation, the deceased named the appellant as the person who had attacked her. Apparently the deceased talked with considerable difficulty. Apart from PW 3, there is no other evidence that the deceased talked to any other person from the date she was attacked on the 10.4.93. PW 2, Enesia Kabogo, a co-wife, was one of the first people to arrive at the scene of crime found the deceased lying on the ground and had a wound on the head. She could not · talk. Both Mr. Mbise and Mr. Boniface submitted that the quality of the dying declaration was not considered by the learned trial magistrate. They were of the view that the deceased was in a very poor condition - her brain had been damaged. In the course of her considered judgment, the learned trial magistrate had this to say - " ... the case for the prosecution depended on the testimonies of two witnesses, Rosemary Ugulumo who was the sister of the deceased 11 and PC Mary, the policewoman who heard the deceased's last words. PC Mary's .testimony was not in much controversy as the dying declaration had ·been one of the indisputed facts at the preliminary hearing" {emphasis added). It is true that on the 25.11.1995 when a preliminary hearing .was conducted, one of the matters not in dispute was that: "3. Bitia made a declaration that the accused was her assailant" The fact that this declaration was made and it was made to PW 3 is not . contested by the learned advocates. .The complaint, . if we understand it correctly, is to the effect that the circumstances under which it was made was not considered. We think there is considerable merit in this complaint. The learned trial magistrate did not consider the circumstances attending to the making of the dying .... I.- 12 declaration. The fact that the deceased made a dying declaration to PW 3 on the 23.4.1993 is not disputed. It was one of the matters agreed upon during the preliminary hearing. This Court in the case of (i) Hemsi Nzuunda (ii) Andison Tuyaine and (iii) Nemson Tuyaine v. R., Criminal Appeal No. 34 of 1995 {unreported} stated that as a general rule a court can act upon a dying declaration if it is satisfied that the declaration was made~ if the circumstances in which it was made give assurance to its accuracy and if it is in fact true. 1t is common knowledge that the deceased was attacked on 10.4.1993. There is however no scintilla of evidence that the deceased, from that date talked to any person other than PW 3 on the 23.4.1993. This was about two weeks later and there has been no explanation to account for this delay. PW 1, who was the deceased's sister, on the 10.4.1993 found the deceased at the scene of crime with a cut wound on the head lying on the ground. She could not talk. PW 3's conversation with the deceased lasted about six minutes and apparently talked with great difficulty. We are left with the only conclusion that the prevailing circumstances from 10.4.1993 to 23.4.1993 were difficult for the deceased to make a '/ l 13 true declaration. In view of these uncertainties surrounding the making of the declaration, we consider that it was unsafe to rely upon it. This brings us to the last ground of appeal. The essence of the complaint here is that the appellant's defence of alibi was not considered by the learned trial magistrate. In his defence, the appellant had testified that on the material day he was at his place of work. The appellant had a made a statement before the Justice of Peace to the same effect on the 18.6.1993. The case for the prosecution commenced on the 14.4.1997, about four years after the appellant had made this statement. The prosecution was therefore well aware that the appellant would raise the defence of alibi and had ample time to contradict this evidence. As a matter of law, the appellant was not required to prove his alibi (see: Ali Salehe Msutu v. R. (1980) TLR 1). The burden to prove the case against the appellant beyond all reasonable doubt was on the prosecution. It is our considered view . ;,. • .. i....... . ,• ~ . "p .. ' 14 that this burden was not discharged. In the event, and for the reasons set out hereinabove, we allow the appeal, quash the conviction and set aside the death sentence. The appellant should · be released forthwith from custody unless otherwise lawfoUlly detained for other cause. DATED at MBEYA this 21 st day of May, 2004. J. A. MROSO JUSTICE OF APPEAL I certify that this is a true copy of the original. ------------;~~~ - Ag. DEPUITREGISTRAR