20050908 TZCA Dar es Salaam 1

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A., NSEKELA, J.A., And MSOFFE, J.A.) CRIMINAL APPEAL NO. 229 OF 2004 MAULIDI FAKIHI MOHAMED @ MASHAURI ......... APPELLANT VERSUS ·THE REPUBLIC .................................................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mtwara) (Lukelelwa, J.) dated the 21 st day of March; 2003 in Criminal-Sessions Case No. 2 of 2001 JUDGMENT OF THE COURT NSEKELA, J.A._;_ The appellant Maulidi Fakihi Mohamedi @ Mashauri was charged with the offence of murder under section 196 of the Penal Code in the High Court sitting at Mtwara. Upon conviction, the mandatory death sentence was imposed. Aggrieved· by this decision, he has now appealed to this Court. On the 12.12:99,· the deceased Marina Ajali @ Sophia Ajali @ Sophia Lipoyogo, a young girl; was at home during the evening together with PWl, Subila Halifa; PW2, Selemani Maulidi; Dismasi Hamisi and Thawabu Bushiri. PW2 was the son of the appellant. At / about 9.00 pm, the appellant paid a visit to the residence of PWl and r I I ( I . ·' t' 2 summoned Thawabu Bushiri to join hi'rh. She declined the invitation. Then the appellant, despite protestations from the deceased, took her away, ostensibly to go and purchase chewing gum for her. She was not to be seen alive again. At about 10.00 pm the deceased had not returned home and the household became uneasy .. PWl then requested PW2 and other children to search for the deceased. The deceased was.· found at a nearby house lying on a verandah, apparently she had been raped and dead. Mr.· Ndolezi, learned advocate for the appellant, preferred one ground of appeal namely - "That the circumstantial· evidence on which the conviction was founded did not irresistibly lead to the guilt of the appellant." The case for the prosecution was to the effect that by 10.00 pm on that fateful night, the deceased had not returned home after her departure with the appellant. PWl was understandably anxious as regards her whereabouts. PWl then requested PW2, a son of the . appellant, together with other children to go and look for the deceased. PW2 testified in part as follows - • ,·. 3 "We went to report the ine1dent to the village chairman. Then we returned home, and found the deceased at the one (sic) of our house. Her dress was pulled up near her chest. .I observed blood oozing out from her private parts. We had passed that place before, but the girl was not there." Mr. Ndolezi, learned advocate for the appellant submitted to the effect that the circumstantial evidence against the appellant was insufficient to ground the conviction of the appellant. However, the learned advocate readily conceded that the appellant and the deceased had left together in order that the appellant could purchase chewing gum for her. He added that there was no evidence that the appellant had raped the deceased. Mr. Ntwina, learned State _Attorney firmly supported Mr. Ndolezi that there w~s no basis for the learned judge to hol~ that the circumstantial evidence irresistibly led to the inference that the appellant and no other person killed the deceased. In convicting the appellant, the learned trial judge believed that the following circumstances had been established beyond reasonable doubt-· • I 4 (i) That· the '/ deceased had accompanied the appellant at the latter's instigation to purchase chewing gum from a shop; (ii) That the appellant had returned to PWl's residence and assured her that the deceased would return on the following day; (iii) That the deceased was found at the verandah of a neighbour's house. The appellant did not dispute the fact that he had left with the deceased to go and purchase for her chewing gum. However he declined that he raped the deceased or that he had returned to PWl's residence. Then the appellant stated - "I asked her whether she will reach home she replied that she would reach home, there was no hurry, I can just go." We are in respectful agreement with both the learned advocate for the appellant and the learned State Attorney, that this case is wholly dependent on circumstantial evidence. In order to sustain a conviction against the appellant on the basis of circumstantial evidence, such evidence should be such as to lead to the irresistible " ., ·.. 5 inference or conclusion that the app.ellant and no other person is guilty qf_ the offence ( see: Criminal Appeal No. 30 of 2001 (i) Haruna Mohamed (ii) Mathew Lwali v. Republic (unreported).\, In the instant case, we pause to ask whether or not the circumstantial evidence adduced at the trial was such as to lead to the irresistible inference that the appellant killed the deceased. The fact that the deceased was in the custody and possession of the appellant at least from 9.00 pm onwards has not been controverted. The appellant himself fully admitted this fact. The point of divergence is when did the deceased part company with the appellant. The appellant's explanation is that the deceased volunteered to return home on her own. The learned trial judge believed the evidence of PWl and PW2. The appellant does not explain at what time the two parted company. It is true that there is no evidence as to how the deceased met her death. The irrefutable fact however remains that the deceased was in the custody and possession of the appellant. . There is another piece of evidence that links the appellant with the death of the deceased. When cross-examined by Mr. Nkuhi, learned advocate for the appellant PWl stated - t. '.- .. 6 "The accused did not partftipate in the search of the deceased. The accused appeared later and told us who. . you are looking for. He said that he had brought her back. It was then we found the deceased at the verandah." PW1 was also examined by the first assessor and stated - "When the accused came on the second time, I asked him to return the child as I wanted to sleep". Thus on the evidence of PW1, the appellant had returned to her residence a second time and said that he had brought the deceased back. It was soon thereafter that the deceased was found in a neighbour's house on the verandah. We are satisfied that this fact has also been established on the evidence. Section 203 ( e) of the Penal Code provides - "203. A person is deemed to have caused· the death of another person although his act is not the immediate or sole cause of th~ death in any of the following cases - (e) If his act or omission would not have caused the death unless it had been 7 accompanied by a:n act or omission of 11 the person killed or of other person. We are satisfied that the circumstances irresistibly indicate that the appellant was the person who caused the death of the deceased in terms of section 203 (e) of the Penal Code (see: Juma Zuberi v. R (1984) TLR 249). His conviction for murder was justified. We therefore dismiss the appeal in its entirety. DATED at DAR ES SALAAM this 08 th day of September, 2005. E.N. MUNUO f ~P.P 0 JUSTICE OF APPEAL A i H.R. NSEKELA JUSTICE OF APPEAL '\, ··~-- ~-- J.H. MSOFFE JUSTICE OF APPEAL I certify that this__js a true copy of the original. ( S.A,N. ~ R A ) SENIOR DEPUTY REGISTRAR