20060223 TZCA Mwanza

'1 IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MUNUO, J.A., MSOFFE, l.A.. And KAJI, l.A. CRIMINAL APPEAL NO. 8 of 2004 IDRISA LAURENT ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Bukoba) (Mrema, l) dated the 28th day of March, 2001 in Criminal Sessions Case No. 42 of 1994 JUDGMENT OF THE COURT MUNUO, l.A.: The appellant, Idrisa Laurent, was charged with the offence of murdering one Sesilia Nyamirego c/s 196 of the Penal Code. Mrema, J., tried and convicted the appellant, and sentenced him to death by hanging. Aggrieved, the appellant lodged this appeal. Mr. Nasimire, learned advocate, represented the appellant. Mr. Vitalis, learned State Attorney, represented the Republic. Nobody eye witnessed the killing of the late Sesilia Nyamirego. 2 A step son of the deceased, one Petro Ntoyi, testified as PW3. He stated that he knows the appellant, his nephew, the son of his brother, Laurent. On the 8.10.1990 PW3 went to the home of the deceased at about 7.00 a.m. to request an instrument for weeding unwanted bananas. The door of the deceased's house was open. PW3 entered the house and found the body of the deceased lying on the floor; she was dead. He then raised an alarm. The appellant, who, according to PW3 used to live in the same house with the deceased was not around although the day before he was spotted around. Because the appellant lived with the deceased, he was traced and charged with the present offence. In his sworn defence, the appellant stated that he had travelled to Kagoma and learnt of the murder of his deceased grandmother on the 8.10.1990 from one Buruhani Kyakaraba, PW1. The postmortem examination report, Exhibit Pl, states that the cause of death was severe bleeding. The trial judge convicted the appellant on circumstantial evidence giving rise to this appeal. 3 Arguing the sole ground of appeal, Mr. Nasimire contended that the circumstantial evidence adduced at the trial did not conclusively point to the guilt of the appellant who was charged merely because the prosecution witnesses said he used to live in the same house with the deceased which the appellant denied. Besides, counsel further contended, the appellant's assertion that he had travelled to Kagoma is plausible because there was no prosecution evidence to contradict the said alibi of the appellant. Refuting PWl's, PW2's and PW3's claim that the appellant admitted· killing the deceased and even surrendered the machette he used, counsel for the appellant stated that if it were true that the appellant 'confessed' the killing to the police, they would have recorded and tendered a caution statement to substantiate the admission, otherwise the said admission was false or extracted under torture. Counsel for the appellant further contended that when asked to show where his machette was, the appellant did so but he never admitted killing the deceased and in any event the said machette was neither blood stained nor tested for human or the deceased's blood. For want of conclusive evidence against the appellant, counsel urged us to allow the appeal because 4 the conviction was pegged on suspicion and the scanty circumstantial evidence adduced at the trial did not irresistibly point to the guilt of the appellant. Mr. Vitalis, learned State Attorney, did not support the conviction for the reasons advanced by the appellant's counsel. He maintained that there was no chain of facts linking the appellant with the murder of the deceased. That is indeed the position. PWl stated that the appellant was the suspected killer because he had quarreled with the deceased over a shamba in the past. PWS Furudentina Antony, the daughter of the deceased, stated that the appellant was the suspected killer because after the death of the deceased's husband, the appellant harassed the deceased and threatened to kill her if she did not quit. PWl and PW3 on the other hand stated that the appellant admitted killing the deceased when he was questioned by the police and yet no caution statement was produced by the investigating officer, PW2 Dt/Constable Mwinamilla before whom the admission was allegedly made. Furthermore, if the appellant admitted killing the deceased, 5 the police could also have taken him to a Justice of the Peace to record an extra-judicial statement to that effect. No extra judicial statement and, or, caution statement, were recorded or produced to substantiate the allegation that the appellant admitted the offence at the time of arrest/investigations. On the admission of the killing, PW4 Jeremia Petro deposed that the police tortured the appellant '~ little bit until he showed the panga he used for killing the deceased. " The appellant denied admitting killing the deceased, in any event. He gave a defence of alibi saying that he had travelled to Kagoma and he was arrested on his way home when he encountered the village secretary, PW1 Buruhani Kyakaraba, who took him to the police. The latter told him to show them where his machette was and he surrendered the same to the police. He insisted that he never killed the deceased. We are clear in our minds that the appellant was arrested on suspicion. The scanty evidence of the appellant who allegedly lived in the same compound with the deceased, killing the deceased because of past quarrels over a shamba or showing the police where t 6 his machette was cannot conclusively point to his guilt because the said machette had no blood stains and in any event it was not proved that he used the said machette to kill the deceased. Had the learned trial judge considered these discrepancies, he would not have grounded a conviction. In view of the above, we find merit in this appeal. We accordingly quash the conviction, set aside the death sentence and allow the appeal. The appellant should be set at liberty forthwith if he is not detained for other lawful cause. DATED at MWANZA this 23 rd day of February, 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. ) R