20090819 TZCA Dar es salaam

, ... J. .... , I ,. IN THE COURT OF APPEAL OF TANZANIA AT DAR· ES SALAAM {CORAM: MUNUO, l.A., NSEKELA, l.A., And LUANDA, l.A.} CRIMINAL APPEAL NO. 273 OF 2005 MARTINE LIHEPA .............................................................. APPELLANT VERSUS THE REPUBLIC ................................................................ RESPONDENT {Appeal from the decision of the High Court of Tanzania at Morogoro} {Shangwa, l.} dated the 2 nd day of July, 2004 in Criminal Sessions Case No. 20 of 2002 JUDGMENT OF THE COURT 13 July, & 28 August 2009 MUNUO,J.A.: In Criminal Sessions Case No. 20 of 2002 in the High Court of Tanzania ·at Morogoro, the present appellant, Martine Lihepa, wa~\ convicted of murder c/s 196 of the-•-Pena1-Gode,Cap-16-R~E. 2002. · • The prosecution alleged that on the 9th day of February, 2001, at Vigoi Juu area within Ulanga District in Morogoro Region, the accused murdered one Sister Lihepa which offence the appellant denied. 2 .. - On the fateful 9th February, 2001, the appellant visited his enstranged woman friend, PWl Sarah Mponguliana, the mother of the deceased Sister Lihepa. P.W.1 and the appellant had cohabited .for sometime during which period, they were blessed with a daughter, Sister Lihepa, the deceased. As he had done on other occasions, lhe appellant went to collect the deceased, who at that · time was nine months old, so that he would stay with her and later return her to PWl who had custody of the said daughter. The appellant took the deceased to his house. Some neighbours, to wit, P.W.2 Emerensiana Kazingoma and PW2 Marietha Mpongoliana, saw the appellant with his daughter on the fateful day. By noon he had not returned the child to PWl. PWl then went in the house of the appellant but found it padlocked so she started searching for him in the village. By sunset, neither the appellant nor · the deceased· could •"be traced. Thence P·:VV. 1-reported-the· matter to ······-·- · her village chairman, PW4 Thiberio Lubinda who subsequently reported the matter to the police for further action. The next day, ·v··., -·. 1 3 PWl reported the matter to the police who then started investigations. · On the next day, i.e. 10.2.2001, in the evening the appellant who had allegedly gone to Ifakara to visit his aunt P.W.5 Mary Mpulamamulungu, was arrested on his way home and turned 0ver to the police. On being asked where his daughter was, he claimed that his aunt, PWS had taken her to Ifakara. The appellant took the police, PWl, PW2 and PW3 to Ifakara where they found PWS who told them he had not seen the appellant for a long time, and that she had not taken the child in question either. The appellant then changed his story and said the child was at his house in Mahenge. The party traveled back to Mahenge. The appellant took them to his house. They found his door locked. When the police told him to open the door, he claimed that he had lost his keys so he could not open the house:- The poliee.· broke the -door.- - Upon entering the·" ,_._,.,..--.~=-----..,.=c·-- house, they found the deceased's body on the bed of the appellant as per the 8 photographs, Exhibit PS. Subsequently, the appellant gave a cautioned statement, Exhibit P6 admitting throttling the 4 deceased to death because P.W.l, the mother of the deceased, had told him he did not sire the deceased. Thereafter the appellant was arrested and charged with the murder of his 9 month old daughter, Sister Lihepa. The appellant gave a sworn defence denying the offence. He nar'rated how he had gone to PWl 's house on the fateful morning and later on traveled to Ifakara to buy fish. On the 10th February, 2001, the appellant stated, he was arrested and charged where after he appeared in court to answer the present charge of murder which he denied. He called one witness, DW2 Ignasia Misama. Like PWl, PW2, PW3, DW2 confirmed that the police broke the door of the appellant's house whereupon the appellant took the body which had been lying on his bed and carried it outside for PWl, PW2, PW3, DW2 and the other villagers to see . . In this appeal, Mr. Matunda learned advocate, represented the appellant. The respondent was represented by Mr. Manyanda, learned Senior State Attorney. 5 Mr. Matunda, learned advocate adopted the memorandum of appeal he filed on the ih May, 2009, comprising two grounds of appeal, namely that - 1. The learned Judge erroneously admitted the appellant's caution statement, Exh P6. 2. The circumstantial evidence was weak and did not irresistibly point to the guilt of the appellant so he ought to have been found not guilty because - '~-- there was no proper medical certificate pertaining to the state of mind of the appellant at the time of the commission of the offence was allegedly committed Exhibit P7 was not sufficiently proved to have been authored by the appellant, and the prosecution failed to prove that there was no other possibility of placing the body of the- -deceased- in--the- appellant's house during his absence. " ' '. 6 With regard to the cautioned statement, Exhibit P6 counsel for the appellant submitted that initially the appellant incriminated his aunt but he later exculpated her and accepted responsibility for killing his nine months old daughter. That being the position, counsel for the appellant argued, the learned trial judge should have disregarded the contradictory cautioned statement. He referred us to the case of Tuwamoi versus R (1967) E.A. 84 at pg 87 in which the then Court of Appeal for East Africa allowed an appeal in which the accused first gave a statement confessing the murder and later retracted the confession by denying the offence. Only the confession was tendered in evidence. The statement retracting the confession was not tendered in evidence. In that case the Court held that: "(1) A trial court should accept with caution a confession which has been retracted or repudiated or both retracted and .,. · repudiated and must be··~fvtly~ satisfied · that in all the circumstances of the case the confession is true. (2) If the accused makes more than one statement to the police the prosecution '-- 7 should tender all the statements made by the accused. " On ground 2 of the appeal, Mr. Matunda contended that the circumstantial evidence adduced at the trial does not conclusively point to the guilt of the appellant. Thence, the learned trial judge should not have convicted the appellant, counsel for the appellant argued. Furthermore, he faulted the postmortem examination report, Exhibit Pl, allegedly because the doctor who conducted the postmortem was a mere Medical Assistant and not a fully qualified medical officer as prescribed under the Inquest Act, Cap 24 R.E. 2002. Counsel for appellant, nonetheless, conceded that it was the appellant who led the discovery of the body of his late daughter, Sister Lihepa, in his own house. Mr. Manyanda, learned Senior State Attorney, supported the .. -- --- ·- .., - - - .. -- conviction and sentence. He maintained that as reflected in the trial within a trial on pages 29 to 30 of the record of appeal, the learned judge was satisfied that the caution statement was voluntarily given by the appellant and that the same was properly admitted, therefore. 8 As for the postmortem examination report, the learned Senior State ·Attorney observed that it was admitted at the preliminary hearing without objection so it can not be impugned at this late hour. Under the provisions of Section 192(4) of the Criminal Procedure Act, Cap. 20 R.E. 2002, counsel further observed, matters not in dispute require no further proof by evidence. The doctor who conducted postmortem examination, the learned Senior State Attorney observed, was conducted by a qualified doctor. The cause of death was asphyxia and the appellant admitted in his caution statement that he throatled the deceased, thereby killing her which corroborates the cause of death on the postmortem report: ':........ the cause of death was respiratory failure due to a fracture of the cervical spine due to compression. /, Moreover, the learned Senior State Attorney pointed out, the •·. appellant-·led·-to the "'discovery of the body-rn hTsown ··hou·sEf'\rvhidi-·-·--~- showed that per his confession in the caution statement, Exhibit P6, he authored the death of his nine month old daughter. 9 The issue before us is whether the appellant killed his infant daughter, Sister Lihepa, with malice aforethought. We note that the postmortem examination report, Exhibit Pl, was tendered at the preliminary hearing without objection from Dr. Kagirwa, the then learned advocate for the appellant, on the lih day of November, 2003. In that regard, it is too late in the day, for the learned counsel of the appellant to contest the cause of death on appeal. Hence Section 192(4) of the Criminal Procedure Act, 1985, Cap. 20 R.E. 2002 states, inter-alia: 192(4) Any fact or document admitted or agreed (whether such fact or document is mentioned in the summary of evidence or not) in a memorandum filed under this section shall be deemed to have been duly proved; save that if, during the course of the trial, the court is of the opinion that the interests of Justice so demand the court may directthat--any-fact or document admitted or agreed ,~- ' ... .,- ·. ' . ' 10 t in a memorandum filed under this section be formally proved. The learned judge made the observations at pages 72-73 of the record of appeal thus - "The fact that the accused visited Sarah Mponguliana at her parent's house and took the deceased child on !f'1 Februaf'½ 2001 in the morning was not only proved by her mother who testified as P.W.1 but also by P. W.2 Sarah Mpongoliana and P. W.3 Emerensiana Kazingoma who happened to be present at the time when he was taking this child away with him. The fact that the accused took the deceased child with him on that day was also testified to by D. W.2 Ignasia Misama who saw him with her on the same day at about midday when he passed at her house with her. . .,., The fact that..... the accused informed the police that he had taken the deceased child to his maternal aunt..... at Ifakara was proved by P.W.7 no D7696 DC Hussein. The fact that on the way to Ifakara, the • ·,1 . I.I~ . . l '~ • ·. 'tj:-: 11 <:: accused wanted. to throw himself into Kilombero river was proved by P. W.1, P. W. 7 and confirmed by D. W.2...............·.............................. The fact that ......... the accused told the police that the deceased child was in his house where --- ~-----~ -·---~------it was-found-dead;--and-the--faGt- that--he-- confessed to have killed it by strangulation was proved by P. W. 7 ...... and P. W. 6.... .'... . respectively. .................................................. . The evidence adduced by them to prove those facts is strong and reliable. As for the cautioned statement, the learned judge stated, and we quote: ..... .I find that this exhibit {P6} contains the accused's own confession that he killed the deceased child by strangulation. supported by the evidence on record. 12 , t A_ word about the cautioned statement, Exhibit P6. Counsel for the appellant argued that Exhibit P6 was inadmissible because he contradicted himself when he implicated his aunt, P.W.5 Mary Mpulayamulungu but changed the story and confessed strangling his late daughter, Sister Lihepa. We respectfully distinguish the case of Tuwamoi cited supra from this case. In that case, the accused made two different statements. In the first statement, the accused admitted killing the deceased. In the second statement, he totally denied killing the victim. The prosecution tendered the first statement but omitted to tender the second one. The East Africa Court of Appeal held that both statements should have been tendered. In this case, the appellant recorded one cautioned statement in which he initially incriminated his aunt but later confessed strangling his infant daughter by stating, verbatim: ·-·-·.--·· ....... ·- . " Hapana hawezi kufanya hivyo, isipokuwa mimi nilifanya hicho kitendo kwa bahati mbaya cha kumuua mtoto wangu kwa sababu mama yake anadai kuwa siyo ,.)' 13 wangu , mtoto............................................... . mimi nilimkaba shingoni na ndipo nilipomfungia ndani ya chumba changu kwa kutumia kufuli langu na ndipo nilipoondoka kwenda lfakara 10.02.2001 na_ siku hiyo hiyo kurudi. The appellant took responsibility for strangling his infant daughter because P.W.1 had told him she was not his child. That the appellant was the killer was reinforced by his leading the search party to his house where the body was recovered and sent to the mortuary. Unlike in Tuwamoi's case where the accused had made two separate different statements, one confessing killing the victim ~ and the other denying the· offence, here the appellant falsely implicated his aunt but then changed his mind and ·confessed the killing. He was the killer because he also led the search party to his. house where the body was found lying on his bed as evidenced by the 8 photographs Exhibit PS. He did the killing in full possession of his mental faculties for he stated at Page SO of the record of appeal: ' 14 :f ., , ,) ..... .I have never suffered any disease of the mind None of my relatives has ever suffered. from such disease. Under the circumstances the appeal is devoid of merit. The sentence is mandatory under the provisions of section 26(1) of the Penal Code, Cap. 16 R.E. 2002. We accordingly dismiss the appeal. DATED at DAR ES SALAAM this 19th day of August, 2009. E.N. MUNUO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL B. LUANDA JUSTICE OF APPEAL .... I certify that this is a true copy of the original. /4····~~ c:::::::: i --=~'I=.,====--- .../ i/ ;,-'i. o~'- J.S. MGETTA 11tt: \ fi::, (. , . I -!\ i. DEPUTY REGISTRAR I ~ \ \ I ~N \~. ~~-iiiifi!IJ~ I •