20091102 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: KIMARO, J.A., MBAROUK. J.A., And MASSATI, J.A.) CRIMINAL APPEAL NO. 281 OF 2006 JUMA KAULULE ...........................•................................ APPELLANT VERSUS THE REPUBLIC ..................................................... ~ ... RESPONDENT (Appeal from the conviction of the Resident Magistrate's Court of Tabora at Tabora) (Luguru, PRM-Extended Jurisdiction) dated the 1 st day of December, 2005 in Criminal Sessions Case No. 2 of 2003 JUDGMENT OF THE COURT 29 October & 3 November 2009 MASSATI, J.A.: The Appellant was convicted of the offence of murder contrary to section 196 of the Penal Code (Cap 16 - RE 2002) and sentenced to death by hanging by the Resident Magistrate~s Court of Tabora (Luguru, PRM-Extended Jurisdiction) on 1/12/2005. He is now appealing against both conviction and sentence. 2 The facts of the case are not complicated. The Appellant and I the deceased were prisoners at Nsenda Prison at Urambo. On the 24th day of August 1999, they woke up to start their routine prison chores. At about midday, the deceased retired ,to cell No. 9, a special cell for the sick. That was .because he had a toothache. A few minutes later an alarm was raised. When the prison guards and other prisoners gathered in cell No. 9, they found the deceased lying prostate in a pool of blood, while the accused stood beside him, I holding a 2½ foot piece of wood in his hand. The deceased was ' rushed to the prison dispensary but died a few hours later on the I same day at Urambo district hospital. The post mortem report which ' I was admitted as Exh. Pl showed that the cause of death was due to ' head injury. At the preliminary hearing and the sub~equent trial, the accused admitted that he assaulted the deceased to death. In his I defence, the appellant said that on the material day he and the deceased (who was his friend) were involved in a heated argument in the cell. This angered the deceased, who rose to attack him. He 3 (the appellant) held his leg. He tripped and fell and hit his head on the floor. He did not use the piece of wood to attack the deceased. The deceased was later taken to Urambo District hospital where he later died. In its judgment, the trial court disbelieved the appellant's story, and believed the evidence of PW1 and PW2 and together with Exh. Pl and the appellant's cautioned statement (Exh. P3). It found that the case against the appellant was proved beyond reasonable doubt and proceeded to convict him as charged. Mr. Mussa Kwikima, learned advocate who appeared for the Appellant in this Court and the lower court filed a three point memorandum of appeal. In a nutshell, Mr. Kwikima's grounds can be summed up in one sentence. The trial court wrongly convicted the appellant without establishing whether or not the killing. was with malice aforethought, which was not proved. He elaborated that although the appellant was found with a piece of wood, there was no evidence that he used it on the deceased, because according to the post mortem report the deceased sustained injury at the back of the skull, while according to the Appellant the deceased had fallen and e " 4 was found lying face up. The learned counsel also criticised the trial court's failure to consider the appellant's defence, and to specifically find that there was malice aforethought. With these, he urged the Court to allow the appeal and quash the conviction and set aside the sentence. When asked about the appellant's caut'ioned statement I (Exh. P3) Mr. Kwikima reacted by saying that the Appellant had I recanted it during the trial by implication. I Mr. Jackson Bulashi, the learned Senior Sta.te Attorney who appeared for the Respondent/Republic said that he' was not satisfied with the way the cautioned statement (Exh. P3) was admitted, as there was no record that the Appellant was given 9 chance to object to it. If that exhibit is excluded, the remaining prosecution evidence was not strong enough to support the conviction ~or murder. If, on the other hand, this Court finds that Exh. P3 was properly admitted, it was his view that that exhibit proved the existence of malice I aforethought, and therefore the conviction of murder could be I sustained. So, he left it to the Court to reevaluate the evidence and ' determine whether Exhibit P3 was properly admitted. i I I 11 I I . I 5 We think that the issue before us is whethl· er or not the 1 1 I appellant caused the deceased's death with malice aforethought; .1: i' I oneiw1o assaulted the I . because there is no dispute that he,was the deceased to death. In searching for/,an answer to: that issue we shall· I ~ I i I have to reevaluate the evidence on record as we are entitled to do in I, i a first appeal. I I I But before we come to that, l'let us reviewi the law relating to malice aforethought. ~alice aforet~~ught is gov~rnJd by section 200 I , : i I of the Penal Code which sets out the law as follows: 1 i I I I I i "Malice aforethought stlall be deemed Ito be I I established by evidence proving any Jne or 1 more of the following cikumstances I 11 1 I I (a) an intentio~ to cause the d~ath of 11 or to do grievous harm to any ! I l I person w Hether th at pelison J; .1s I: . 1: . actually kill~d or not" (b) . (c) (d) 6 The position of th~ law was beautifully summarised by this Court in ENOCK KIPELA vR Criminal Appeal No. 150 of 1994 (Mbeya) (Unreported) in the following words:- " Usually an attacker will not declare his intention to cause death or grievous bodily harm, whether or not he had that intention must be ascertained from various factors; including the following (1) the type and size of the weapon, (2) the amount of force applied, (3) the part or parts of the body the blow or blows were directed at or inflicted on, ( 4) the number of blows, although one blow may be sufficient for this purpose, (5) the kind of injuries inflicted, (6) the attacker's utterances, if any, made before, during or after killing and (7) the conduct of the attacker before and after the killing" Guided by the above principles of the law, we now turn to the evidence on record and reevaluate it. 7 Before the trial court, 2 witnesses and 4 exhibits were tendered for the prosecution. Exh. Pl is the post mortem report, which was tendered during the preliminary hearing as indisputable evidence. According to this exhibit, the cause of death was head injury. The head of the deceased was found to have a lacerated wound of the size of 6 centimetres; a scalp haematoma at the occipital area, and a liner skull fracture of the base. According to PWl, the deceased and others who were sick were in cell No. 9. When he entered the cell, in response to an alarm, he found the deceased lying on the floor bleeding, while the appellant who was not sick, was found standing there with a piece of wood in his h·and (Exh P2) while the deceased was not armed. There was no other item inside the cell other than the piece of wood. Later, the appellant told PWl that the deceased had refused to return his pieces of soap. PW2 was the police officer who drew up a sketch map of the crime scene (Exh. P4) and took the appellant's cautioned statement (Exh. PW3). At this juncture, let us examine the circumstances in which the cautioned statement was admitted as an exhibit by the trial court. 8 I The procedure for admitting a cautioned statement is the same as for admitting any other piece of documentary evidence. But if the accused intends to object to its admissibility, then he or his advocate has to object before it is admitted as an exhibit. Befo're deciding one I way or the other, the trial court, if sitting with assessors as in the ' ' present case, has to hold a trial within a trial, or an inquiry if no assessors are around (See L. MAZAMBI vR (1991,) TLR 200) and I then an interlocutory ruling given on whether an accused has given a statement he is repudiating, or whether he did so: voluntarily in a statement he is retracting. Admittedly, this procedure of admitting Exh. P3 was not meticulously followed by the trial court. All that is recorded is reflected on page 10 of the record, It was a record ! of the evidence of PW2: "At Nsenda Prison I was taken to cell No. 9 where it is said the accused had attacked and killed the deceased .......... I then recorded the accused statement. (Being shown a 9 statement). This is the statement. I produce the accused statement as Exhibit P3 the same has not (see) (sic) objected to). One would have expected that before admitting the exhibit, the trial court would have asked the accused or his advocate whether they had any objection to it being received as evidence. But if the trial court inadvertently overlooked it, the accused or particularly, if represented, his advocate has a duty in law to his client and to the court to draw the attention of the court to this discrepancy. We say so because any advocate worth his salt, would not allow an involuntary cautioned statement to be admitted without a trial within a trial, in the absence of assessors. In the present case, both the trial court and the advocate for the appellant did not see to it that the procedure was followed. However in the circumstances, we do not think that Exh. P3 was wrongfully admitted. We are reinforced in our view, first by the record of the court, which we presume was correct; that there was no objection; if the appellant had intended to object to its 10 admissibility he would have done so at the admission stage, and not raise it in cross examination or during the defence. · In SHIHORE SENI AND ANOTHER vR (1992) TLR 330, the Court was confronted with a similar situation. It was also held there that, any objection should have been raised at the admission stage, and not at the defence stage. However, it was held that this dic;I not lessen the need for the trial court to ascertain on the voluntariness of the statement. In this case the trial court did not bother.'to ascertain the voluntariness or the truth of the contents of the statement. But as this is a first appellate court we shall do so. Second, Mr. Kwikima, learned advocate for the Appellant who represented him at the trial, did not raise it as one of his grounds of appeal; from which it may be inferred that his client was not prejudiced by the way the statement was admitted. After looking at Exh. P3, we are satisfied that the Appellant gave a graphic explanation of how, he and the deceased had quarreled over pieces of soap, how he was 'provoked by the deceased's reaction and how he entered into the cell with the piece 11 of wood wrapped in his sheet, and prepared to hit the deceased when he lay prostate and helpless and hit him at the back of the head with the wood. We think this was the truth, because PWl supports that he found the appellant holding the piece of wood, while the post mortem report confirms that the deceased had head injuries at the back. Furthermore PWl also told how the appellant had disclosed to him the soap story, just as the appellant said in his statement. We are convinced that the confession could not be anything but true. On the authority of TUWAMOI v UGANDA (1967) EA 84 if the confession is nothing but true the confession can found a conviction even if retracted. We have also considered his defence. His version was that he pulled the deceased's leg and made him fall down and hit his head; but denied to have been in possession of the piece of wood, and did not know where it was. But in cross examination he said he was not beaten by the policeman who recorded his statement, he also admitted that he had nothing against PWl. ,, 12 After saying so, we find that Exh. P3 was prop~rly admitted, and contains nothing but the truth. We now turn to find if, on the evidence on record, malice aforethought was established. In doing so, we have considered, the fact that the appellant had a grudge against the deceased, for his missing soap; that he entered in cell No. 9, reserved for sick inmates (when he was not sick) with the piece of wood hidden in his sheet; he hit the deceased at the back of his head, which is afragile part of a human body and inflicting head injuries, which were fatal. All those factors taken together, prove beyond reasonable doubt, that the appellant hit the deceased on a fragile part of his body with intent to cause grievous harm, and therefore with malice aforethought. We do not therefore agree with Mr. Bulashi, that there was any reasonable doubt as to the existence of malice aforethought. In conclusion, we find that this appeal is devoid of merit. We hereby dismiss it in its entirety. , 13 I DATED at TABORA this 2"d day of Nbvember, 200~. i • • N.P. KIMARO 1 JUSTICE OF APP:EAL i I I M. s. MBAROUK JUST.ICE OF APPEAL S.A. MASSAT! JUSTICE OFAPPEAL ,. I' I', I certify that this is a true copy of tpe original. I • I I jl' ,-- <:::::: _);:_ .. I\ ( J.S. MGETTIA) DEPUTY REGISTRAR !,