20060307 TZCA Mwanza

IN THE COURt OF APPEAL OF TANZANIA ATMWANZA {CORAM: MUNUO, . J~A., . ·:MSOFFE, J.A., And KAJI, J.A.) I : ' :' CRIMINAL ; APPEAL NO. 12 of 2003 i . . ; 1. BARUANI ALLY@ i<AB;UMA KANYAMA 2. AHMAD KILULA@ :HA~DWA ........................ APPELLANTS \ VERSUS ' ' THE REPUBLIC •.••••• ~ ••••• '.••••••..•.••••.•••••••••••••••••• RESPONDENT {Appeal f~om the convi:ction of the High Court of Tanzania ; ,i at Tabora) : {Lukelelwa, J) ' ' ~ated thet 23 rd day of September, 2002 in Criminal Sessions Case No. 60 of 1996 : ----------- JUDGMIENT OF THE COURT MSOFFE, J.A.: The appellants w~re condemned to death by the High Court, Lukelelwa J,i after belng /found guilty of murdering Ramadhani Mayeye at S~nuka Village, ~igoma, on 23/8/1995. Mr. Muna, learned . advocate, appeared on: the;ir behalf while Mr. Mwampoma, learned · i ; ; Senior State Attorney, a'ppeared ' . . for the respondent. ; i, 2 At the :hearing of. the appeal the court was reliably informed that the second appellant Ahmad Kilula @ Handwa died on 19/3/2004. ~is appeal was :accordingly marked abated under Rule 71 (1) of the Tanzania Court of: Appeal Rules, 1979. In brief, the cas~ against the 1st appellant, hereinafter to be referred to as the appellant, went as follows:- PW2 Asia Hanzuruni and PW3 Salima Ndemeye were married to the deceased, Ramadhani · Mayeye. They knew the appellant quite well because he used to visit their home. Apparently the appellant frequently came to their home to train andi participate with their deceased husband in sort of. i "business" involving local medicine. Iii the midnight of 23/8/1995 the appellant and the deceased left together for purposes of digging .. out herbs in a nearby fores~. The deceased carried a "jembe". On . the following i day both the appellant and. the deceased did not return ' home. PW2 and PW3 qegan to get worried when on the second day they saw the: appellant :wit~out the deceased, and thereby began to ask him about the latter's whereabouts. At first, the appellant told them that he. knew nothingiabout the deceased. Later, however, he changed story and told: the;m that the deceased had been taken by 3- "spirits" and yvas alive at MGsimba village. He further told them that i ; l I 1 • he could bring him ba~k hpme if they paid him money, c!garettes, I : : , : l ! . ' and a goat.: In despera~ion, PW2 and PW3 obliged and paid · ~ accordingly. In spite ;of ; doing f so,- the deceased never, returned ! t . home. On 25/9/95 '.the 1deceased's body was discovered and retrieved from a shallow grave in the outskirts of the village where it _ i • ! I was already ir,. the process of advanced decomposition. ' . ·: i : I • • In his ! defence, 'the': ' . : appellant denied killing the deceased. : ; i ' . . Indeed, he testified and: stated that he did not know the deceased. Mr. Muha argued· one ground on ·behalf of the appellant. He contended that the ava'.ilabi~ circumstantial evidence was capable of ! ~ more than 6ne interpr:etation. In particular,. he urged that the . ! : . ' N "jembe" the !deceased ieft with on the fateful day was seen in the ! : : l shamba of qne Idrisa kisu'la who was not charged or called as a t I • i witness. In :his view, there was a possibility that Idrisa killed the deceased an~' not necessarily . the appellant. . i ! In answer to the! above submission, Mr. Mwampoma ' i I : ; maintained that the "jert,be"( was not a strong point in the case, more . f : 4 so because :the said ''jembe" was discovered about eight or so I i '. '. . months later; In the circumstances, it was pointless charging Idrisa or calling him as a witness; he urged. Furthermore, he went on to· say, the "jembe" was not aU that important in the case and that was why the trial judge did not qonsider it in the judgment. We agree with Mr; Mwampoma. We may add that the fact that the "jembe" was seen in Idrisa's shamba did not mean that he knew about it or he had anything to do with it. At any rate, according to ; PW1 Assistant Inspector Charles Mkocho, Idrisa explained that the. "jembe" belonged to his father Ahmad Xilula. We may add further that the app~llant himself did not canvass the "jembe" affair in his defence as a· possibility that the death could have been caused by . another person. Hence, the point does not have to detain us because it is rot import~nt. • ; There was no dispute1 at the trial, and indeed up to this stage, • that the deceased is dead; and that the dead body was found buried in a grave. : The crucial question was, and still is, who killed the deceased. 5 The prdsecution case was, and still is, built on the premise that I : i the appellant! was the last person to be seen with the deceased; and i ; ! : i l therefore thatj he was responsible : ! for his death. I : '1 I { ; : l In the ~ase of Juma ~uberi v. R (1984) TLR 249 the appellant . . l was identified as one of the1 robbers who had waylaid and attacked a '' .. party in a motor vehicle on'. the road at night. In the course of the· robbery a five year old child . : was abducted by the appellant and could not be found; A month later remains were found in a bush· one mile from the incident and established to be those of the abducted child. · l . . Following the appellant's cohviction at the High Court he appealed to this Court. the appell~nt ~as held responsible for the death of the child becaus~: the said child'. was in his custody and possession, : . and . - : ' had abandon~d her in a bu'sh, and this for whatever cause, brought 1 • • • • about her death. The case of Juma Z~beri may not necessarily be in: all fours . with this one. Howe~er, _: it could be. applied for purposes of a I i I : : ' decision in t~e instant case in the following respect. The :appellant left with the! deceased iat rhidnight. ' ' ' While it might be cudous ·why j. 6 their mission lhad to be' accomplished at that rather odd time of the I ; ' . ' ' night, it defeats reasoni that the appellant could not explain to PW2 . j and PW3 or :anyone else fpr that matter, the circumstanc'es under i i : i which he parted company with the deceased. A prudent and ' . I ' ; ; ; I innocent per~on in the drcu;mstances would have bothered to explain ; : ~ . I to PW2 and: PW3 or anyqne else, where, how, and the general· i • circumstances under which . ,he : left the deceased. In the absence of I , such explanation, the pnlyi reasonable inference was that he was responsible for the deceas~d's death. Indeed, our view is further_, fortified by ~he followir'.lg passages in the authorities of this Court : ; ; ' . cited by the :trial judge; in t,is judgment. In August Mah_iyo v. R . ' .. I , (1993) TLR 1;17 it was held:;_ :. ~ t - I "the force : of ; suspicious "circumstances is a~gmented ! wh<=never the person accused attempts no explanation of facts. which he ; ~. : rriay reason~blv'; be expected to be able or ' : I • • interested ~o ¢xplain; fals.e; incredible or contradictory s(atements given by way of e~planation if\ disapproved, become of swbstantive nculpatory effect". 7 i I • : • ! : And in Maku:ngire Mta'.ni v R (1983) TLR 179 it was held:-. ' , : l I "~n the cir~um$tances of the present case there was more than considerable suspicion ' : against the iapp~llant, for he refused to give ) : ; an explan$tion of how the deceased : ' mysteriously ! . ; disappeared from his ' . compound".' j ; ' . i ! As earlier stated, the appellant denied killing the deceased and I : he stated further that h'.e did not know him. Like the trial judge, we. are satisfied ·that this was a calculated lie aimed at deceiving the Court. We :say so be~au~e on the available evidence there was absolutely nd reason fdr PW2 and PW3 to lie against the appellant. . Needless to say, PW2 and PW3 knew the appellant as the deceased's ' ' - friend with ~horn they constantly worked together in the act of local medicine. ' ' !In the drcumstances, it was highly unlikely and improbable t~at PW2 a~d PW3 could have lied against the appellant· in their conc~rrent and; consistent evidence that the appe~lant was i ' the last persqn to be se¢n with the deceased. 8 i ! ' For the'. above re~so~s, we find no merit in the appeal. We ( ; I ! ' dismiss it in lits entirety arid accordingly uphold the conviction and : ; sentence. j DATEDJat MWANZA ; : this ih day of March, 2006. : . ;E. N. MUNUO .JUSTICE OF APPEAL .J. H. MSOFFE JUSTICE OF APPEAL , S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. ' . . : (S.:M. DEP.