20090914 TZCA Iringa

IN THE COURT OF APPEAL OF TANZANIA ' ' I AT IRINGA ' 'f CORAM: KIMARO, J,A,. LUANDA J.A., And ORIYO,J,A. :, ' CRIMINAL APPEAL NO. 94 OF 2006 ' I IMAMU S/O KAUDU NGONYANI. ................................ :, .............APPELLANT ' ' ·vERSUS THE REPUBLIC. ................................ .'........................ ~ ......... RESPONDENT I I ' (Appeal from the decision of the High Court of Tanzania I at Songea) ' (Kaganda,J.) dated ih March, 2006 ., I I I Criminal Session No. 22 of 2004 : ' I I ' ................• I 'I I JUDGMENT OF THE COURT ' sth & 15 th September, 2009 KIMARO,J,A. < I The High Court of Tanzania sitting at Songea convicted the appellant I ' . of the offence of murder c/s 196 of the Penal Code [CAP :16 R.E2002]. He was alleged to have intentionally killed Juma Nurdin, on 1:qth April; 2003 at ' I I I I ; I : I : I : ' I I I Mkongo Village within Namtumbo District. Abel s/o Kaudu Ngonyani, a I I I blood brother of the appellant was jointly charged with him but he was acquitted. I I The prosecution case was that both the deceased ( Juma Nurdin ) ' ' I and the appellant (Imamu Kaudo Ng6nyani ) were re~idents of Mkongo I : ' I area. On 10th April, 2003 the deceased visited the pr~mises of the appellant at night. With the assistant,e of Abel Ngonyani, the appellant ' arrested the deceased on allegations ~hat he stole clott,es belonging to I l I ' Ashura Ngonyani (PWl) and Hanifa Tii:ldwa . In term$ of the testimony of ' ! ' PWl who was at the material time hoJsed at the resid~nce of the I : ' ' appellant, the appellant called his wife 'and PW1 and in~ormed them that ' I ' the deceased was a thief as he stole their clothes, information refuted by I ' I I I ' PWl who said the deceased was her boy friend. Furthe;r evidence of PWl I ' was that the appellant tied both hands 'of the deceased ::at his back and I I ' said he was taking him to Nawakale wh~re the village offices were located. 1 I I ' On his way, the appellant passed at the residence of Yasln Ngonyani( PW2) I : ; ' of Mwangaza village, his neighbour, and informed him of the arrest of the I ' deceased and the reasons thereto. He further informed him that he was I : I ' on his way to the village offices to the surrender the deceased. According ' ' I ' ' I ' I I ; I I 2 'I ' \ to PW2, the appellant disclosed to him that Abel Ngonyani, and the two women said to be victims of the theft were in his company. PW2 neither saw the deceased who was also his neighbour, nor the persons who accompanied the appellant to the village offices because they were left at the road when the appellant passed at his residence. , PW2 offered to join the appellant on his journey to the village offices, but the offer was rejected. Ramadhani Ngonyani, (PW3) also a resident_ of the same village informed the trial court that the appellant went to him early in the morning of the following day and reported that on the previous 'day he arrested a ' ' suspected thief and took him to the village offices. But, a week later the body of the deceased was found drowned in river Likon·de badly decomposed. At the time of the recovery of the body, the hands of the deceased were still tied at his back. Also tied to the hands of the deceased was an empty bag commonly known as "rambb." No. E 4084 D/S Tirbet PW4 was a witness who went to the scene of'crime on 19th April 2003, the date the body of the deceaseq was evacuated from the river. Regarding the condition of the body, the witness corroborated the evidence of PWl that it was badly decomposed. A post-mortem examination 3 I I I i I I : 11 ', report admitted in evidence as exh(bit Pl showed ttt the cause of death Ii ': I was drowning and inhalation of wate;r. \. On the basis of such evidence the appellant and his brother were charged with the offence of murder. hs earlier on stated, his brother was ' I ], ' I acquitted. In his defence the appellartt admitted arresting the deceased 1 11 and tied his hands at his back becaus~, t he decease:d w~s a t h"1e f as he ' ' " ': \ found him with clothes belonging to P+l. Also admittJd by the appellant \ ' \1 was the fact that he escorted the decefsed to the vil,lag \e offices and he r . had a bill- hook for protection. In cross i;examination ~he\ appellant said the 1 deceased dropped into the river as he d\rossed the ri~er ~fter escaping from , ': I him. He was convinced that the deceas.ed swam as he ~eard him blow the 11 ' water by his mouth. Explaining why he \failed to report the incident immediately to his neighbours and the rilatives of the. dJceased, the ,, -1. I ' I \ appellant said he feared the safety of his;, life. Instead,·,, he\ reported that the deceased escaped from him and ran awa~ crossing the riier. I I 4 I In convicting the appellant the ;learned trial judge was satisfied that < I ' I ' there was no direct evidence to implicate the appellan,t with the ' commission of the offence. The evidence on record, said the learned trial ' judge was circumstantial; but it sufficiently connected :the appellant with ' the commission of the offence. Citing the case of Moses alias Tall V R [1994] TLR195 said: 'II ! ' "In the case at hand, the first accused was offered ' : ' assistance by PWII his neighbour to escort the I I ' I ' suspected thief, but the first accused turned down I ' ' ;' I I the offer. He saw the deceased fall into the' river, again ' '' instead of assisting him or call for help he decided to ' ' ' ' neglect and conceal the matter knowing that·, his hands I I I were tied up at his back and 'the deceased would definitely I drown. (sic) That means the first accused intended for that 5 I death. All these observation make me belleve the first I I accused's conduct and the facts adduced by the prosecution I ; ' I ' witnesses are incompatible with the innocence of the first I accused and are incapable of explanation upon any reasonable hypothesis other than that of guilty. In the:: event I find that the prosecution has proved their _case beyond all reasonable doubts and later (sic) a conviction for murder under section 196 of the Penal Code." Being aggrieved by the conviction and the sentence, the appellant I filed this appeal. Before us Mr. Afred Kingwe learned advocate appeared I for the appellant and the respondent Republic was represented by Michael Luwena, assisted by Mr. Ismail Mwanjoti and Ms Mariam Mvano, learned State Attorneys. Mr. Kingwe filed four grounds of appeal.: In the first I ground of appeal the complaint is that the case against the appellant was ; ' not proved beyond reasonable doubt. The second ground: faults the I learned trial judge for holding that the prosecution evidence was water tight for the offence of murder while malice aforethought vyas not ; ' 6 established. Instead, it was the offence of manslaughter that was I established. Regarding the third ground the learned trial judge is faulted ' for failure to notice the weakness of the investigation df the prosecution I I ; case the consequences of which resulted in inconsistent evidence. As for the last ground the complaint is that the learned trial jupge misdirected I i herself when she relied on the conduct of the appellant :while "actus reus" I was not established. Supporting the first ground of appeal, the learned :,advocate for the appellant said the prosecution did not prove the offence beyond reasonable doubt. It is not exactly known what took place at the riv,er. What took I ' place, the learned advocate contended, could be explained by three scenarios. Either the appellant fell into the river as he was running, or he was pushed into the river by the appellant or he accident~lly fell into the I river. Under such circumstances, argued the learned adv~cate, it was ' unsafe for the appellant to be convicted of murder. Following the evidence of PW4 who testified that at the time the evacuation of th~ body took place the river did not have much water, said Mr. Kingwe, the possibility that the deceased crossed the river on foot cannot be ruled out. 7 On the second ground the learned advocate for the appellant said ' ' I while there was no dispute that the appellant caused the death of the I I I ' deceased, but the evidence of the prosecution proved t;he offence of ' manslaughter and not murder. That W:as so because it :was common for I suspects to be tied up with a rope. If the appellant had really planned to ' intentionally cause the death of the deceased, he would: not have informed ' ' . I PW2 prior to escorting the deceased. Moreover, argued the learned advocate, when the appellant escorted the deceased, he was armed with a I : I I bill hook. He could as well kill the deceased with that bill hook. The ' ' ' I learned advocate said all those circumstances created ddubt. Explaining 'I ' I the conduct of the appellant after the deceased had dropped into the river, ' I I I the learned advocate said it was a natural consequence bf panic and no ' ' I ' matter how bad, unreasonable or stupid that conduct was, it could not ' been linked with an intentional killing of ½he deceased. ' Regarding ground three, the learned advocate blamed the I I I , prosecution for insufficient investigation which left a lot of: doubt in the '; I prosecution case. One example is failure· by the prosecutjon to produce in evidence the clothes which were alleged t9 have been stol~n and to 8 summon as a witness those who escorted the deceased and the acquittal ' of the brother of the appellant who was charged jointly with him. On the last ground of appeal the'submission in support of same was ' ' that the crucial question which emerges in this appeal i~ who killed the deceased? Was it the appellant, or the' deceased killed ,himself or it was the water that killed him? These questions, contended the learned counsel for the appellant need a definite answer. The learned aqvocate argued that I I failure to have a definite answer entitles the appellant t~ an acquittal. He prayed that the appeal be allowed. I In response to the submission made by the learneq advocate for the I appellant, Mr. Mwanjoti, learned State Attorney supported the conviction and sentence. He combined all grounds of appeal and ar9ued them together. The learned State Attorney said the evidence a:dduced to ' I ' support the prosecution case established a bad motive. Referring to what I caused the death of the deceased, the learned State Attorney said death was caused by drowning into the water after the appellant had suspected the deceased to be a thief and tied his hands with a rope at his back, thus incapacitating him to take any action which could have rescued his life. Mr. Mwanjoti also wondered why the appellant decided to walk the 9 ' deceased to the village which was five·I miles away during , the night at 11.00 p.m. while such a need was not there as there w,as no evidence to ' I prove that the appellant was really a thief. Even if the appellant was a I thief, argued the learned State Attorney, there was no evidence to prove ' I ' I ' that he was a troublesome person who, required immedl,ate steps being I I taken at those late hours. It was the opinion of the lea~ned State Attorney I that the conditions in which they were QOing to walk in ~ere dangerous I I and that is why the appellant took the bill hook for protection. I ; ) I Expounding on the conditions in w,hich they had to:: travel to the village offices, the learned State Attorney said the appellant knew it was a I I rainy season and there was a dangerous bridge to be crdssed, yet he tied the appellant's hands at the back and he did not even bdther to untie him. Instead, he alleged that he left him walk along the dangerous bridge in ' I I that incapacitated position. According to the learned State Attorney the I ' I evidence suggested that the appellant took advantage of the absence of I his brother who had accompanied him when he went to r~spond to the call I . I I of nature and pushed the deceased into the river. That was particularly ' I I I I I so because much as the appellant knew that the deceased: dropped into the river he returned to his home and reported that the deceased ran away ; 10 I I I instead of seeking for assistance froni his neighbours to rescue the I I deceased. Citing the case of Moses Michael @ Tall (supra) to augment I : I , his submission, the learned State Attotney said the totality of the evidence I , shows that the appellant was rightly convicted of murder. I I A brief rejoinder by the learned bdvocate for the: appellant was that 1 I I . the facts of this case are different from the case cited by the learned State I : I : Attorney and can be distinguished from'I this case. I I From the evidence which was adduced by the prosecution during the ' trial and the submissions made by the l~arned advocate 'for the appellant I I , and the learned State Attorney for the respondent Republic it is not in I I I I 1 dispute that the body of the deceased w as found drowned in river Likonde. I : ' i ' In terms of the post mortem examination report the dec~ased died I I because of water inhalation. Equally notidisputed is the fact that the I I appellant was the last person who was with the deceased before his death. I ' I I ' The appellant admitted in his defence thatI he arrested the' deceased after '' he had stolen the clothes of PWl and one Hadija Tindwa. ': However, PWl ' I I refuted that the deceased was a thief andl even the clothes which the I I deceased was said to have stolen were notI tendered in evidence. I Moreover, Hadija Tindwa was not summo~_ed as a witness to substantiate I I I I 11 ' I the allegations that her clothes were stolen. What PWl informed the Court I was that the deceased was his boy friend. I It was whi'le under the control ' of the appellant who said he was taking the deceased to the village offices I ' I to surrender him for being a thief that the deceased en.ded being drowned I I ' into the river and was later found dead and the body badly decomposed. I : i 1 ' The only issue is how did the deceased found himself into the river? I ' I I ' In this respect we will deal with all the grounds·of appeal together instead I ' I of dealing with each of them individually. We do agree that there was no I ' I direct evidence to show that it was the appellant who pushed the deceased I ' ' ' into the river. The learned trial judge based the conviction of the appellant I on his conduct saying that it was inconsi'stent with his in~ocence. The ' ' I 1 ' learned advocate for the appellant on the other hand said that it was not I I I conclusive that he caused the death of the I deceased as h'is , conduct is capable of other explanation. ' 'I In the case of Moses Michael (supra), the Court said that "the ' i' ' - conduct of the accused may be indicative 'of malice aforethought as it was in this case where the appellant was persistent in beating the deceased for I a long time and prevented intervention by·persons who wa'nted to help the J ' I' I I 'I I I I I I I I 12 I I ; ' ' I I I I \ I deceased." The question which we ask is whether the tonduct of the appellant is indicative of malice aforethought on his part What is the sequence of events? The appellant arrested the deceased on allegation that he was a thief. As indicate~ earlier, he alleged I that he stole clothes belonging to PWl and one Hadija Tindwa. However, ' none of the victims of the purported theft gave evidence to that effect. I PWl refuted the allegations. Even the clothes were not ,tendered in Court. The deceased was arrested at night. The appellant purported to take him ' to the village offices, about a distance of five miles. He :tied both his I hands at the back with a rope. As he was on his way, h~ informed PW2 ' I about the arrest of the deceased and the reason for the arrest, but he turned down the offer by PW2 to join him in escorting the deceased to the village offices. He carried a bill hook for protective purposes. It was a ' rainy season. On the way they had to cross a river which :was about nine I meters wide, and had a bridge which was not very safe a~ it was built up by bamboo poles with a support only on one side. Further evidence was I that a person could not walk over the bridge without supporting himself. As ; to what happened when they reached at the bridge there is only the I version of the appellant that the deceased dropped into th~ river as he I 13 escaped from him. Knowing exactly what had happened to the deceased, the appellant concealed this information even to his brother who had I accompanied him and at that time had ,gone to the bush to respond to the call of nature. When his brother met the appellant returning without the deceased he informed him that the deceased escaped from him and ran away. According to PW2 the river had a lot of water at that time. I If the appellant had not intended the death of,the deceased whose body was I recovered with its hands still tied at the back, an indication that he was incapacitated to rescue himself, why did ·he conceal the truth. According to him his intention was to walk the deceased to the village ',offices but he dropped into the river. In our considered opinion if that is what the appellant had intended, he would not have concealed the: truth. It is most I probable that the appellant had intended the death of the', deceased and that is why he told lies to deny the deceased any assistan~e which could ' have saved his life. Under the circumstances we entirely agree with the learned State Attorney that the totality of the evidence is inconsistent with I I his innocence. We disagree with the learned advocate for the appellant that any other inference could be drawn from the conduct of the appellant. The facts of this case are not very different from the case of Moses 14 • . 'I Michael (supra) relied upon by the lea~ned trial judge to convict the I I appellant. The only difference is that in the case of Michael, the appellant I I 1 I took an active role to cause the death of the appellant while in this case I I I I the appellant by his omission to take an1active role in as$isting to save his I I life, he caused his death. All matters cohsidered I it cann6t be said that the I I I appellant never intended the consequences of his action.'. We thus find I I I I that the appeal has no merit and we dismiss it in its entir¢ty. It is ordered. I I I I DATED AT IRINGA THIS 14TH DAY OF SEPTEMBER, :2009. ! : I N. P. KIM.ARO. JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL I I K. K. ORIYO JUSTICE OF APPEAL I I I certify that this is a true copy of the original. I I 'I I I I I -- - I (P.A. YIMO) DEPUTY ,EGISTRAR 15