20060314 TZCA Mwanza

t IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MUNUO, J.A, MSOFFE, J.A., And KAM, J.A.) CRIMINAL APPEAL NO. 139 of 2002 LUCAS S/O KIlIITO .......................... .......................... ..... APPELI..ANT VERSUS THE REPUBLIC ......... ................ .....I............ .................. RESPONDENT (Appeal from the conviction of the Resident Magistrate's Court with Extended Jurisdiction at Tarime) (Mtotela, PRM - Extended Jurisdiction) dated the 30th day of September, 2003 In RM Criminal Sessions Case No. 104 of 2002 Transferred from Criminal Sessions Case No. 9 of 2002 JUDGMENT OF THE COURT MSOFFE, J.A.: The appellant was sentenced to suffer death by hanging consequent upon his conviction for the murder of Wegesa Kimito on or about the 11th day of August 1995 at Tagota village within Tarime District in Mara Region. From the evidence on record, it was common ground that the appellant and the deceased were a husband and a wife respecUvely. Before the incident leading to the death in this case both lived 2 together at Tagota village in Tarime District. The appellant had a licence authorizing him to sell local brew. At the same time the deceased engaged herself in the sale of illicit liquor commonly known as "gongo". On the night of 11/8/1995 the local brew was sold as usual at the appellant's homestead. As to what happened thereafter the judgment of the trial Principal Resident Magistrate with Extended Jurisdiction is very clear and we quote it hereunder even if it is at the expense of making our judgment very long:- ....... During the n,'ht there was a fight between the accused and the deceased. At the morning on 121811995, some people, wanted to know what had happened during the n,'ht, as they didn't see the deceased. As daytime advanced among the dose relatives of the accused it became news that there was a fight, and the deceased was no where to be seen. At 11.00 a. m, as a matter of respect PW2 went to the accused's home to greet him. The accused is PW2's father. He didn't know a thing that there was a fight between his father, i.e. accused, and the deceased, i.e. his step mother. PW2 stood outside and the accused was inside his house. The accused told PW2 that the deceased was away. She had left. 3 On the same day by 4.00 p.m. PW2 had gathered information that the accused had beaten up the deceased during the n,'ht. The deceased was no where to be seen, from sun rise. The PW2 went to see his father for the second time. He wanted to know about the fight and the whereabout of the deceased. The accused denied to have beaten up his wife. But he conceded to have traded on nasty words to the deceased. That he told PW2 that the deceased had gone to see her parents and collect some illicity alcohol commonly known as "gongo ' Accused was expecting his wife to return by evening time. At the mid-n,ht the accused went to PW2's home. The accused asked PW2 to help him in removing a "luggage' Then PW2 asked the accused to go home, at the same time, promising him that he would have t help him, to remove the 'Yuggage' He didn't go anyway. Then PW2 reported the inddence to PW3, village chairman, and PW4, cell leader, that he feared the deceased is dead. The three, i'. e. PW2, PW3 and PW4 went to report at the Police Station, Tarime Townsh,, Both PW3 and PW4 heard PW2 tell the Police that his step mother, the deceased, had been killed by the accused. That report reached the Police in the small hours of the morning of 121811995. That at 6.00 a. m. PW3 left the Police Station Tarime for ri the village. As he was going to the village he meet the accused. He was riding a bicycle. He was riding towards Tarime Townshi'. They greeted each other. An alarm was raised on reaching at the accused's home by PW3, and neíghbours came to answer it. He told them that according to the information he got from PW2, the accused had killed his wife, and hidden her body. He asked them to disperse, search the body in the ne,hbourhood. They saw blood clots at the gate of the accused's compound. Then a few steps at the bush, there was some blood clots. From that spot there was blood dots for three steps. Then those who were on the look of the dead body, followed a bicycle tyre print. They reached at a bush spot and found the deceased's body. The body had started to swell. It had bruises at the elbows and knees." In defence the appellant denied killing the deceased. He said that on the night of 11/8/1995 there was an exchange of nasty words between him and the deceased which did not, however, lead into a fight. At some stage he also said that the deceased committed suicide. At the preliminary hearing the following matters were agreed to be not in dispute. That the deceased died a violent death. That prior to the death the appellant and the deceased lived together as husband and wife. That the deceased's body was found in the bush. And finally the post mortem examination report. On 6/2/2006 Mr. Byabusha, learned advocate for the appellant, filed a memorandum of appeal with three grounds. At the hearing of the appeal he abandoned the first two grounds and argued the third ground only. The complaint in thë third ground of appeal is that since the cause of death was not established the trial Principal Resident Magistrate (Extended Jurisdiction) erred in convicting the appellant of murder. In elaboration, Mr. Byabusha argued that at the preliminary hearing the post mortem examination report was produced and admitted in evidence without objection. The report showed that the cause of death was not established. Furthermore, the report did not show that the deceased's body had bruises. Therefore, according to Mr. Byabusha, it was wrong for the prosecution to lead evidence on the bruises and the possible cause(s) of the death since the contents of the post mortem examination report were admitted at the on preliminary hearing. In doing so, Mr. Byabusha urged, the prosecution led evidence relating to a fact or a document which was admitted or agreed at the preliminary hearing contrary to the express provisions of S. 192 (4) of the Criminal Procedure Act, 1985. In order to appreciate Mr. Byabusha's point it is instructive to quote sub-section 4 as follows:- "(4) Any fact or document admitted or agreed (whether such fact or document is mentioned in the summaty of evidence or not) in a memorandum filed under this section shall be deemed to have been duly proved; save that if during the course of the trial, the court is of the opinion that the interests of justice so demand, the court may direct that any fact or document admitted or agreed in a memorandum fl/ed under this section shall be formally pro ved' It occurs to us that in view of the above provision once a fact or a document is agreed at the preliminary hearing as a matter which is not in dispute then it shall be deemed to have been duly proved, but in the course of trial if the, court is of the opinion that the interests of * 7 justice so demand it may direct that the fact or document be formally proved. If so, it will be clear that once the contents of the post mortem examination report were agreed at the preliminary hearing it was not open to the prosecution to lead evidence on the bruises and the possible cause(s) of death - matters which did not feature. in the post mortem examination report. That could have only been done if the court was of the opinion that in the interests of justice the matters needed to be formally proved. Apparently, the record is silent as to whether the court formed such opinion before accepting evidence on the bruises and the possible causes of death. On the other hand Mr. Mrina, learned State Attorney, readily conceded to the point raised above by Mr. Byabusha. However, he was quick to point out that the case should be decided on the totality of the evidence on record and not on the contents of the post mortem examination report. In this regard, he carried us through some of the pieces of the evidence showing that the appellant was responsible for the murder in question. We need not repeat, at this stage, some of those pieces of evidence because some of them will be reflected hereunder in this judgment. 8 Once it is accepted that it was not within the spirit of S. 192 (4) to lead evidence touching on a fact or a document which had been admitted or agreed, the question is whether the irregularity was curable. In our considered opinion, in the circumstances of this case, the irregularity was curable. In saying so, we wish, first of all, to revert to the first point in the memorandum of matters which were not in dispute. It was agreed thereat that the deceased died a violent death. If it was so agreed, then it was expected that the prosecution would lead evidence on the nature of the violent death. In doing so, it was highly unlikely that the prosecution could, have avoided leading evidence on the bruises and the possible cause(s) of death. We are of the view that in doing so the appellant was not prejudiced because evidence on the nature of the violent death had to be led anyway. Having said so, the next question is whether there was enough evidence to ground a conviction for murder. Admittedly, no witness saw the appellant killing the deceased. The evidence against him was purely circumstantial. Mr. Mrina pointed to us some of those pieces of circumstantial evidence notably, that the deceased's body was seen near the appellant's house hidden in grass, that the appellant never reported to anyone about the deceased's disappearance, that the appellant went to his son PW2 Madaraka Kimito and asked him to assist him in carrying the "luggage" (meaning the deceased) and that if the appellant's version that the deceased committed suicide was to be believed it defeats reason that he did not report the incident to anyone. On our part, on the facts of the case, we are satisfied that the appellant killed the deceased. We are settled in our minds that the evidence taken as a whole showed that the appellant killed the deceased. We say so partly for some of the reasons stated by Mr. Mrina, and partly because of the evidence of PW2 relating to the "fight" between the appellant and, the deceased on the fateful night. The crucial question then is whether the appellant killed with malice aforethought. On the available evidence, we are not prepared to say that the appellant killed intentionally. As stated above, there was evidence of a fight on the material night. Indeed, although the appellant himself denied, the existence of a 'fight on the night in issue, 10 he almost admitted that there was one when he said "it was a verbal fight' In view of this element in the evidence, we think, the death might have been caused by the fight in issue. In the circumstances, it would not be safe to say with certainty that the appellant killed the deceased intentionally. It was true that the witnesses saw the deceased's body having bruises to suggest that he might have been fatally wounded. However, in the circumstances of the case, it was still possible that the bruises were inflicted when the appellant was carrying/dragging the deceased's body after killing her. For above reason, we are of the settled view that the appellant ought to have been convicted of manslaughter c/s 195 of the Penal Code. We accordingly acquit the appellant of the conviction for murder and in substitution thereof we convict hirn of the lesser offence of manslaughter c/s 195 of the Penal Code. As for sentence, we take into account the following factors. The appellant has been in custody since 1995. When he testified on 19/9/2002 he said he was 81 years old. This means that he is now around 86 years of age. Taking these factors into consideration we 11 sentence the appellant to such term of imprisonment as will amount to his immediate release from prison unless he is lawfully held therein. DATED at MWANZA this 14th day of March, 2006. .-- E. N. MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL vt - - S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original.