20090604 TZCA Dar es Salaam

IN THE CO~;~~: ~:~r~: :, . TANZANIAj· . I . (CORAM: RUTAKANGWA,.J~A., KIMARO~ J,A .. And~ MAND A, J'.A.) . . . !~ . 1· · CRIMINAL APPEAL N_0 .. .146 OF _200.7, . · KAROLY KREJY ................................. . ~ J . i.....................·. . . . . APPELLANT VERSUS . THE REPUBLIC .................................... . .I .........................lI ...RESPONDENT (Appear from the: decision'otthe· HighCouJof Tanzania at Kilosa) · 1 (Nyerere;I J.) . . :t. dated 14th March 2007' . . I Sess1ons C nmma .. i"Cn·ase Nm 2 ot·.· 20··07 ·• · i .. ·-· .. .-.....·.... lI.. . ,I JtJDGMENTOFT-HECO.tJRT · 22nd May, & 4 th June. 2009: KIMARO,J~A-.:: . . I . . , ·· The · High Court of Tanzania sitting at Kilosa, convicted the: appellant of the offence of murder clntrary to sectidn 196 of the . . ·- ·\i . I . l . I . . I. Penal- Code, Cap.16 R.E.2002 and sentenced him· to sJffer death by hanging. He was alleged .to ·ha~e. intentionally killJd' one Peter : I . l . Kinamba on 29 th July, 2003 at Iwemba Village within ~ilosa District, I M'orogoro Region. 2 t The facts upon which the prosecution case was founded are that Alice Samamba (PW7) and the appellant were lovers. PW7 was the mother of the deceased, Peter Kinamba, but fathered by a husband, who unfortunately, died. The deceased was the step son of the appellant. Prior to the death of the deceased:, PW7 who was officially engaged to the appellant broke that relationship because of i ·.\ what she described as unsatisfactory behaviour of her lover. He used to come home late at night and at times spent nights out of the · house. After a thorough investigation of the appellant1s unsatisfactory behaviour by PW7, the appellant revealed to her that he was a thief. This fact finding made PW7 .sever her love relationshfp with the appellant. It was also resolved by the elders that the dowry of T.shs.45,000/- which the appellant had paid be refunded to him .. Apparently the appellant was not happy with the decision taken by PW7, and on two occasions, on 2ih and 30 th July, 2003 she had an encounter with the appellant. On 27th July 2003 the appellant chased her when he found her at a pombe club talking to Kastrol Lui Mjavare (PW4) and: forcefully took from her a blouse and 3 th a piece of 'kitenge'. The other ordeal occurred on 30 July, 2003 I when the appellant followed PW7 at her house and stabbed her with a knife. I Why was the appellant ~harged with the death of the appellant? We find this from the testimonies of both PW7 and I Melania Yacob (PW2). The deceased was living with PW7. The testimony of the mother of the deceased (PW7) was that her son I went missing from 29 th July 2003. On that day he never returned home for either tea or lunch. PW2, a resident of the same village, I peasant and seller of vegetables, said she saw the appellant with the deceased on 29 th July, 2003 at aro~nd 9.00. She was the last person to see the deceased alive. PW7 reported the absence of his son at I home to the village authorities. Efforts were made by Janeth Lazaro PW6, a sister of PW7 to trace the deceased from their relatives at Mikumi and Morogoro where the beceased used to visit but he was not found there. The body of the deceased was found in sugar I plantations after farmers reported a foul smell. It was then that a search was mounted by the villagers and the body discovered. The I 4 witnesses who participated in the search, were Omary Rajabu Kinolo(PW1), the Village Chairman of Iwema, PW2, No. C 3838 D/CPL Mohamed (PWS) the Investigation Officer, and PW6 the sister of the mother of the deceased. PW2 whowas the last perso~ to see the deceased alive said she identified him by the pair of shorts he wore on the day of his disappearance. An autopsy was conducted on the body of the deceased after its discovery. The post-mortem >-1 ~··' \ \ _) examination report was admitted unopposed during the preliminary hearing and it showed that the cause of death was severe bleeding resulting from a deep cut wound on the neck involving blood vessels. Further evidence from the prosecution was that ever since the appellant rnjured PW7 on 30th July 2003 he disappeared from- the village without disclosing to anyone his whereabouts. PW6's ', , __ j ) evidence was that the last time- the deceased left on 29th July 2003 he had on a pair of shorts and a t-shirt with buttons commonly known as: "form six t-shirt." PW? added that on top of the t- shirt he had put on a jacket. In the absence of the appellant, Helena Keity (PW3), the sister of the appellant led PWl and PWS to the house of 5 the appellant. As the keys were not available, the door was broken and therein they found a "sulphate" bag, a towel with blood stains and a jacket. According to PW? the appellant bought the jacket for the deceased. Another piece of evidence linking the appellant with the commission of the offence is the towel which allegedly was found with blood stains, the jacket and the fact that the deceased was last seen alive with the appellant. In his defence the appellant admitted ,the broken love relationship with PW7 and the refund of the dowry. He also admitted being seriously affected by that situation. Also admitted by the appellant, was the encounter he had with PW? as shown above but said. that occurred because of jealousy as he still loved PW? and he was always angry whenever he saw her with another man. The appellant did not dispute being with the deceased on 29th July 2003 but he denied killing him. He said the deceased requested from him shillings one hundred for buying "maandazi" and he gave him. Accounting for the jacket, the appellant said he bought it for the 6 deceased but after his relationship with his mother broke down, he took it and gave it to his other child born by another woman. In convicting the appellant. the learned trial judge relied on . circumstantial evidence that the appellant was the last person seen with the deceased and the jacket that was found in his house. The learned trial judge discounted the explanation given by the appellant ,~\) that he took away the jacket and gave it to his child, remarking that if that was the case, the jacket could not have been found in his house at that time because it was taken from the deceased some days before the killing occurred. The quarrel that the appellant had with PW7 on 2ih and 30th July 2003 was evidence considered relevant under the circumstances of the case. The learned trial judge inferred malice aforethought from the kind of injuries inflicted on the deceased as per the post-mortem examination report. She said those injuries showed that they were inflicted with an intent to kill or cause grievous harm·. Citing. the case of Amiri Mohamed Vs R 1 [1994] T.LR. 138 the learned trial judge also associated the appellant's conduct of disappearing_ from the village without 7 disclosing his destination as being nconsistent wit~ innocence. The . I I appellant was then convicted and sentenced as aforbsaid. . I . Being. aggrieved: by the conviction and tre sentence, the appellant has filed this appeal.· ~, r. Egid Mkoba, / learned advocate . I appearing for the appellant filetl one ground - 1 bt appeal. The . ;I I ' . complaint in the ground of appeal .:is that the learn~d trial judge- erred '. in law and fact in relying. upon )cumstantial evid~nce that was not water tight to base the conviction: of the· appellantl. The respondent . · . :- · . -I Republic was represented. by· M. Biswalo Mganga.; learned State Attorney. i I 1 I . In support of the ·appeal, t~ · learned counsfl for the appellant . said that there was no dispute th atthe appellantJwas seen with the 1 th deceased~ his step: son on 29 JJly 2003, the jadket, the "sulphate"· 1 bag and the towel were found ij his house, he had a quarrel with PW7 on 2ih and: 30 th and that he- moved aw~y from the village without inditating whe~e he· was : _oving to. Howfver; contended the learned advocate, that ·evidence, was not sufficient to· convict the I I I 8 appellant. Referring to the evidence of PW2 and PW6, Mr.Mkoba noted that both said it was normal for the appellant to be seen with the deceased. Moreover~ added the learned counsel, the appellant and the deceased: were moving toward a different direction from where the body of the deceased was recovered. Citing the case of Katabe, Kachochoba Vs, R [1994] T.L.R. 90 the learned advocate said that the mere fact that the appellant was seen with the ·) deceased did not necessarily mean that he committed the murder. As regards the "sulphate" bag and: the towel allegedly containing blood: stains, Mr. Mkoba said the search was conducted in the absence of the appellant and he was never asl<ed if the items belonged to him and even the blood was not tested to ascertain whether it was that of the appellant. On the jacket, the learned advocate said it was not disputed: that the appellant took it away after his, relationship with the deceased's mother broke. down. Although PW7 said in her evidence that when the deceased disappeared he had on the Ja~cket, the learned counsel asked the Court to take this piece of evidence with caution and to consider it in 9 totality with all the prosecution evrn:lence. because rw7 was not the last person to have seen the decelsed alive. Motjeover, added the learned couRsel, PW7 already had.i quarrel with thb appellant and it was reported· to the police. In terJs of the evidende of PW3, argued Mr. Mkciba-, the disappearance o the appellant from the village without disclosing. his. destination i as: a. normal hadit of the appellant and it was wrong for the learned tlial judge to consider it as evidence supporting the prosecuti.on case. • t said much as the app~llant was 1 accused: of leaving. the-village w1th©utsayrng a: farewell to his mother, - -'I - - I - that remained a mere allegi3tiqr··· because the mother was notI . I summoned as a: witness- to- -prove it, and: even -]oseph Njovu, the person who was said to be wit~ the appellant lhen he assaulted PW7 was- not summoned to testify. I Remarking: on the cause of €:leath, Mr. Mkoba said the failure' to - , ,'I I summon- the doctor· who examined the body to testify on the extent. of the injuries suffered by the. de~eased was fatal because the· cause of death was not ca_matter .that wt I agreed upon. He prayed that the appeal beallowed'. On his part, the learned State Attorney supported the appeal. He too, was of the view that the totality of evidence led by the prosecution did not prove the offence against the appellant beyond all reasonable doubt He agreed that the evidence relied upon by the learned trial judge to convict the appellant was purely circumstantial, the crucial part of it being that the appellant was the last person to be seen with the deceased. However, he noted that the body of the deceased was found at a place different from where the appellant and the deceased were seen by PW2. While the appellant and the deceased were seen near the house of the appellant, contended the learned State Attorney, the body of the deceased was found about one kilometer away and in the opposite direction.. Under such circumstances it was difficult to say with certainty that the appellant was the one who killed the deceased. Apart from the above evidence, argued the learned State Attorney, the rest of the evidence dfd not prove commission of the offence. Firstly, there was no evidence to prove that the towel that . i 11 I I was found in the house of the appeUant purportedly /with blood stains ,, ! was really blood and that it was tfhat of the appellant because the , I towel was not_ta.ken for testing of ithe blood. Secfndly, the q~arrel that ensured between the appella~t and PW7 had)to be taken with II I caution before relying on it to convict the appell~nt. Thirdly, the learned State Attorney faulted the tamed trial Jud~e for considering. ;. I , 1 I matters which were not part of the· lprosecution evidence, for·instance- .· : . I I her comments that the appellant left without ~·. farewell to his mother.. Finally, the totality of t,t evidence wal not sufficient to convict the appellant. He, equally· irayed that the ab peal be allowed. i i I From the arguments· made ~Y both the lear~ed counsel for the . !' . I appellant and the learned State Attorney in sup~ort Of the appeal, :, I I . we share the same view that one! cannot, with certainty, say that the evidence on record does not leaJe: any doubt as to whether it was the appellant who killed the decJased ,, or it was- Jomeone I else. We fully agree- that the evidence relie~- upon by the tri~I judge was purely circumstantial as there was. no e~!e- Witness to . ' I thJ! commission of the I • 1 offence. In various decisions: of thi5 Court it: has biways been stated I I I I ·. i I 1 " 12 that circumstantial evidence must irresistibly point to the guilt of the appellant. The learned counsel appearing in this appeal stated correctly, in our view, that .the- major piece of evidence which the learned trial judge thought linked the appellant with the commission of the offence was that he was last seen with the deceased and the jacket that was found: in the house of the appellant. However, the prosecution evidence on how the deceased was dressed at the time ) of his di"sappearance is contradictory. PW2, the last person to see the appellant with the deceased said she identified him by the pair of shorts he had put on 29 th July 2003, the day he disappeared. PW6 on the other hand added that the deceased also had on a "form six t- shirt"'. . Both PW6 and PW? who are sisters testified· that the appellant had put on the jacket when he disappeared. At the same time the appellant said: in his defence that, following the quarrel that led to the breakdown of their love relationship with PW?, he took away the t-shirt. and left it in his house. This evidence was not disputed by the prosecution. In such a conflicting situation who is to be believed? pw· 6 and PW7 -are sisters. PW? is. the mother of the deceased. Already there was a quarrel between the appellant and the deceased 13 ' I and it was reported to the policeJ We indeed ag'.ree that this is · .11 i evidence which should be taken with caution. This :is particularly so 1: I because the deceased's mother anr her sister co~ld be acting· on mere suspicion given the bad relationship that developed after the breakdown of her relationship wit~ the deceased.; The Court has repeatedly said that the conviction 9fI the appellant must be based on I, I watertight evidence. In Ally' Bakah and· Pili Bak,ri Vs R [19921 ' i . ; T.t.R 10, the Court held that wherelthe evidence against the accused '1 , i is wholly circumstantial, the facts fr?m which an inf~rence adverse to l the accused is sought to be qrawn must be:: proved beyond I , reasonable doubt and must be cle~rly connected· w(th the facts from which the inference is to be inferred. . I .r. : Another important factor whirh weakens the; prosecution case (' is the missing link between the items which were found in the house • I , • ,1 . I ' of the appellant and the commission of the offence. We have 1l I I spoken about the jacket. The n~xt item is the itowel which was ' ' I i alleged. to have blood stains. No eyidence was led to show that what I' : l ' was purported to be blood was hwman blood and.!that it was either ! that of the deceased or the appellant and the cir~umstances under '' 14 • which it would link the appellant with the murder. Moreover, the evidence on record shows that the death occurred at a location different from where the appellant was found with the deceased. Given the weaknesses in the prosecution case as demonstrated above, there was no sufficient evidence to sustain the conviction of the appellant.. Under the circumstances we allow the appeal, quash the conviction and set aside the sentence and order immediate release of the appellant unless he is held for any other lawful reason. It is accordingly ordered. DATED at DAR ES SALAAM this 4th day of June, 2009. EM.K" RUTAKANGWA JUSTICE OF APPEAl N.P. KIMARO JUSTICE OF APPEAL w·.s. MANDIA. JUSTICE OF APPEAL