20061012 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM . (CORAM: RAMADHANI, l.A., MUNUO, l.A., And NSEKELA, l.A.} CRIMINAL APPEAL NO. 66 OF 2004 HASSAN! MOHAMED MTEPEKA ............................... APPELLANT VERSUS THE REPUBLIC .................................................... RESPONDENT {Appeal from the conviction of the High Court of Tanzania at Lindi) {Kaganda, J.) dated the 11 th day of February, 2004 in Criminal Sessions Case No. 24 of 2002 JUDGMENT OF THE COURT 11 September & 12 October 2006 MUNUO, J.A.: In Criminal Sessions Case No. 24 of 2002 in the High Court of Tanzania at Lindi, the appellant, Hassan Mohamed Mtepeka, was convicted of murder upon being found guilty of killing his step daughter, Salima Hamisi Ngaima on the 16th day of April, 2001. On conviction, Kaganda, J. sentenced the appellant to death by hanging. Aggrieved, the appellant lodged this appeal to challenge conviction. 'I 2 No eye witness saw the late Salima Hamisi Ngaima being killed. On the fateful day, PW1 Asia Abdallah, the mother of the deceased, went to the well to fetch water. Her spouse, the present appellant, had gone out. PW1 left the deceased, then aged ten years with her young sister, Bahati, then aged three, guarding birds in the paddy farm behind their hut. Around 6 p.m. Pwl was carrying her pail of water home when the appellant called her from behind and ordered her to put the bucket of water on the ground. PW1 obeyed. The appellant reached and kicked the pail of water causing the water to pour out. A quarrel! broke out as PW1 wanted to know why the appellant poured the water. It was the evidence of PWl that the appellant assaulted and threatened her so she ran away whereupon the appellant chased her but he stumbled over a piece of dry wood so he could not catch her. PWl stated on oath:- --- The accused fell down as he had stepped on a dry wood and that gave me more chance to run and escape. 3 As to where her children were at that time, PW1 stated:- ---- Our children were at the farm guarding birds. I did not know whether they saw us or not but it was not far from the scene. I ran towards my sister in law's (house) and on the way I met Mr. Mshamu and Bakari my husband's relatives. I asked them to collect my two children and send them to my mother in law and they agreed. Mr. Mshamu testified as PWS. He confirmed that he encountered PWl on the material evening and that she asked him to collect her children and take them to her mother in law. When PWS went to collect the said children, he found the appellant sitting at his house. The appellant produced one child and said that the deceased could have left with her mother. PWS took the child he found at the appellant's home, to the appellant's mother as requested by PWl. Later on PWS learnt from the police that the missing child was found dead. 4 The deceased, Salima Hassan Ngaima, died unnaturally on the 16th day of April, 2001 at Kililima Mingumbi Village within Kilwa District in Lindi Region. Her postmortem examination report, Exhibit Pl, shows that a blunt object blew out the anterior part of her face. She also had injuries and bruises in her private parts. The body was found lying on its back under a tree in the grass. The naked body was covered with grass roots. The upper face bone was depressed and skin peeled off. The vulva was bruised. With the skull fragmented and depressed, and the small girl's private parts injured, it is clear that the victim died violently from a brutal physical and sexual assault. The issue is who murdered the deceased. The prosecution adduced circumstantial evidence implicating the appellant. The appellant categorically denied killing his step daughter. The learned trial judge observed in her judgement at Pages 67 and 68 of the record of appeal: 5 ---within a short period the accused was found only with one child, that of his own blood. The accused did not show much concern on the disappearance of the deceased when asked by PW V nor did he give a reasonable explanation --- The learned trial judge further observed: ---The prosecution witnesses were stable and confident. --- I see no possibility of them cooking up the story against the accused--- ! am therefore fully satisfied that the circumstantial evidence against the accused is enough to lead to the irresistible conclusion that the killer of the deceased child, one Salima Hamisi Ngaima. --- Mr. Luguwa learned -advocate represented the appellant. The Respondent Republic was represented by Mr. Ntwina, learned State Attorney. Counsel for the appellant filed five grounds of appeal contending that the prosecution evidence does not irresistibly point to the guilt of the appellant so the learned trial judge ought not to 6 have convicted him. He pointed out that the appellant had been out and only returned on the fateful evening in the company of the deceased's mother with whom he had picked a quarrel on the way home. After a scuffle the deceased's mother escaped and by the then the children were supposed to be guarding birds so the deceased could have been killed by another suspect altogether. He further contended that since PWl did not hand over the children to the appellant, the latter assumed PWl left with the deceased, counsel maintained. These doubts, counsel for appellant contended, should have been resolved in favour of the appellant. Hence, the Court should allow the appeal. Mr. Ntwina, learned State Attorney, supported the conviction and urged us to do the same. He conceded to ground three of the appeal for the reason that there is no evidence establishing motive in this case so the learned judge erroneously held that motive had been proved. On circumstantial evidence, the learned State Attorney insisted that the evidence on record conclusively proved that the appellant murdered the deceased so the decision of the trial court is correct. 7 We have already noted that there were no eye witnesses to the killing so the case revolves on circumstantial evidence. The case of Simon Musoke versus R 1958 E.A. 715 expounded the concept of circumstantial evidence by stating at Page 718: in a case depending conclusively upon circumstantial evidence, the Court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty. In the said case, the Eastern Africa Court of Appeal referred to the decision in the case of Teper versus R (2) (1952) A.C. 480 at Page 489 wherein the Privy Council stated that in circumstantial evidence cases - It is also necessary before drawing the inreference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. 8 It is clear from the record that when PW1 went to collect water from the well, she left the deceased and her young sister guarding birds in the paddy farm. Furthermore, the appellant was away at that time. He returned home fighting with PW1 causing the latter to escape before checking on the deceased and her kid sister at the farm. PW1 stated that she would not know if the children saw the appellant assaulting her before she escaped. The chances are, if the children had seen PW1 being assaulted and then run away, they too, would have run away to follow their mother because they would have sensed danger. As it is, it is doubtful whether the deceased was still alive at that time. If she was, did her step father follow her in the farm, ravish and kill her or was she the victim of some other killer before her parents returned home fighting? We are unable to answer these questions with certainity because the deceased's mother assumed that the children were still guarding birds, she did not check on them to ascertain their safety because her preoccupation was to flee from the appellant1s assault. Under such circumstances the contention by the defence counsel that a suspect other than the appellant could have killed the deceased cannot be ruled out. We think he implicated himself when he sneaked away from the Ward Secretary's Office when PW1 was reporting that the 9 deceased was missing. The appellant further incriminated himself when he attempted to run away to avoid being arrested. PW VII Mohamed Yasin stated that the appellant threatened the villagers with a knife but they overpowered and arrested him. Sneaking away from the Ward Secretary's Office and attempting to escape, however, do not conclusively point to the guilt of the appellant because there is no evidence to prove that the appellant was in custody of the deceased, or that the deceased was last seen alive in his company on the fateful evening. This discrepancy was reflected in the testimony of PWl in which she stated that when she escaped from her home on the material evening, the deceased and her younger sister were guarding birds in the paddy farm. This contradicted her police statement, Exhibit P6, in which she recorded that the deceased and her younger sister remained in the custody of the appellant when PWl escaped the latter's heavy assault. Having stated in her testimony that she did not have a chance to check on the children before she escaped, it meant that the deceased and her younger sister were not left in the custody of the appellant. Nor is it certain, whether the deceased was still alive then. The learned trial judge did not address her mind, and, or resolve the inconsistent evidence of PWl vis a vis her police statement, Exhibit P6. Had the learned judge considered all these factors, she would have arrived at a different conclusion. Under the circumstances, we are satisfied that the circumstantial evidence adduced against the appellant does not lrresistibly point to his guilt. We, therefore, al!ow the appeal. We accordingly quash the conviction and set aside the sentence imposed on the appellant. We order that the appellant be set at liberty forthwith if he is not detained for other lawful cause. DATED at DAR ES SALAAM this lih day of October, 2006. A.S. L. RAMADHANI JUSTICE OF APPEAL E.N. MUNUO JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL . 11 I certify that this is a true copy of the original. -.------.,,,-,