20091027 TZCA Dodoma

IN THE COURT OF !\PPEAL OF TANZANIA AT DODOMA (CORAM: I MSOFFE, J.A. RUTAKANGWA, J. A. And BWANA, J.A.) i l CRIMINAL APPEAL NO. 271 OF 2006 : I EMMANUEL MREFU @ BILINJE .......................................... APPELLANT l I VERSUS THE RE.PUBLIC ............................' 1 ••••••••••••••••••••••••••••••••••• . RESPONDENT ' (Appeal from the judgment of the High Court of Tanzania at Dodoma) ; I 1 . (Masa nche, J.) dated the 10th day of July, 2007 in Criminal Sessions, Case No. 59 of 2003 ----- I________ _ I JUDGMENT OF THE COURT 23 & 27 October, 2009 B·WANA, J.A. Marcelina Stephano (PWl) and John Madimo, the deceased, were lovers for about three months before the latter met his death ) I which is the subject matter of this appeal. It was alleged before the ·' trial court - the High Court of Tahzania at Dodom'a - that on 13 April I : 2002 around 11.00 p.m., at Hombolo area of Dodoma, John Madimo . . was murdered. I The present appellant was alleged to be the killer. He was said to have killed the dJceased by stabbing him in the right side of the chest. The appellJnt denied to have committed the • alleged offence. He was, however, found guilty of murder, convicted - I and sentenced to suffer death by hanging. I Aggrieved by that decision of the trial court, the appellant preferred this appeal. . He was rep~esented during his trial and before I us, by Mr. Z. E. Njulumi, learned Advocate. The respondent Republic I , was represented by Mr. F. Nchimbi, learned State Attorney. i This being a first appeal, we have the duty to re-evaluate the I evidence and if necessary, come to our own conclusions on relevant aspects of the case. To do so~ we find it apposite to start by I appraising ourselves on the issues,involved in this case. I It is on record that on the material day, the deceased, in the j company of PWl and two other people were at a local pombe// shop 11 I at an area called Ng'ambo. Later; on the appellant came to the said porn be shop. I Although it is on record that the, appellant and the deceased were close friends, yet on this particular day, the appellant I did not join PWl's group. He sta~yed at a distant table, enjoying his ' drink in the company of other pedple. I 2 Around 11.00 p.m. PW1's group left the pombe shop. The l other two people, however, did not go all the way with PW1 and the deceased. The two were left to Igo their way presumably as they I were lovers. Before reaching a shop belonging to one John Kisani, ' suddenly they met the appellant. How he had managed to be there at that time was not the issue butI it was alleged during trial that he may have waylaid the two .. ! At the scene, there was sufficient light, from electric bulbs - I ' there was electric light from John Kisani's shop, so much that PW1 could identify the appellant. Upon meeting PW1 and the_ deceased, the appellant is said to I have greeted the two in Kigogo and then asked the deceased to ' come with him a distance away from PW1. The appellant and the I deceased stepped about 10 pac~s away from where PW1 was and ' had a talk "in low voice" that Jhe could not hear what they were I conversing. She did however notice that after a while the appellant and the deceased kicked each dther. Then John "lucked" Bilinje i although no one fell down. It is jWl's evidence that in the course of ., _) that encounter, she heard jJohn shouting that ''jamani I I nimekwishapigwa kisLI'. At that ioment, the appellant is said to J I have run away - to be arrested on the 15th of April 2002, as he himself stated in his defence. I I Following that unexpected !development, t\7e deceased ran towards the house of one Stanley Masima @ Madege but fell on the I I way. PWl woke up the said I Madege who came out with a j I I lamp/torch. It is then alleged that during that moment, the deceased I l told Madege that "nimepigwa kisu na Bilinje'~ Madege rushed to I I report the incidence to a nearby Ten Cell Leader. John was then taken to hospital but he died on thl way. What followed again in the s'ubsequent few days was the usual I I procedures - investigation by the police and the arrest of the I appellant. If it may be noted j here, that during that period of I investigation, PWl was also detained by the police in order 1to l I assist them with the investigation'~ She was later released but I . i only alter her statement had been recorded. I 4 . In his summing up to the assessors and indeed in his judgment. ' as well, the trial judge did address his mind to the credibility of PWl; the dying declaration and the fact ,that there was sufficient light at I the scene of the murder, hence PWl could identify the appellant without problems. I , We have addressed our minds to the above issues as well. We I I have paid particular attention to the fact that during that time, there I I was electric light which provided fatertight identification. Further, the three people - the deceased, the appellant and PWl - knew one 1 i ' another. They lived in the same village and it was not disputed that I , the appellant and the deceased were very close friends. II I I Equally important is the 'clying declaration". We do agree ! ' I with the trial judge's analysis of the law governing dying declarations. I His cited authorities which are relevant to this case. Our concern I , here however, is, whether PWl I and Madege (PW3) heard John ' I Madimo make that declaration. We are of the considered view that ' I I I they heard him make such a declaration before he died. ' s From the evidence on record, it is apparent that PWl is the only witness who saw what trans-pired at that time of the night. In I proving a case of murder, the prosecution must prove (beyond ' reasonable doubt) that the person I mentioned is truly dead. That he j died of an unnatural cause. And, that the accused is the one who I killed the deceased. He did so with malice aforethought. I I l It is not in dispute that· John Madi mo died on 13 April 2002. I I The cause of his death was st_ab wound apparently leading to excessive bleeding. If PWl's evidence is to be believed, it is the 1 appellant who inflicted that fatal :wound I by stabbing the deceased I ' with a knife, something that was seen by her (PWl) who was about ' 10 paces away from the scene bf the stabbing. The trial judge • believed her evidence to be credible. We have no reason to fault I that in the absence of any plausible evidence establishing that the I deceased may have been stabbed by another person other than the appellant Indeed it is trite law'. that every witness is entitled to credence and must be believed and his/her testimony accepted unless there are good and cogent reasons for not believing (see ; Goodluck Kyando vs Republic,~ Criminal Appeal No. 118 of 2003 - • 6 . I I I I ; unreported). In the instant case, we do not have ?uch good and I , cogent reason to make us disbelieve iwhat PW1 stat~d in respect of I I I what transpired at the material time and place . .1 I j ' The above considered, there a~ises now a nag9ing question of law - was malice aforethought established for the appellant's action I ' I against the deceased? Our considered view (after :having carefully I perused through the record), is not in the affirmatiye. All what the : 1 I evidence of PW1 tends to establish is the followi'ng sequence of I events - / I I That all the three - PWl, the appellant and the de,ceased had been j I taking alcohol - immediately prior t¢ this incident. ' I i That before the appellant stabbed ,the deceased, the two were seen j I I ' by PW1 "kicking each other, Jo~n 'lucking' Bilinje but no one I fell down". It is apparent then that there was a s~uffle between the 1 I I I two. The fact that PWl states th~t "no one fell down", we are of I . the considered view that it was not a minor/light scuffle. If this is so, I . I then that leads us to the irresistible conclusion that although John j j I I 7 j I I I . I Madimo met his death at the hand~I of the appellant, there is no j evidence to establish malice aforethought. j I I In the absence of malice aforethought, a conviction for murder ! I cannot stand. We therefore quash that conviction and substitute it I I with one of manslaughter. We set aside the se·ntence of death by I hanging and impose one of imprisonment. · The period . the I appellant has been in custody taken :into consideration, we are of the j view that a term of imprisonment of five years from the date 1 I hereof, will suffice. We so order. / j I j 8 I I I I