20111011 TZCA Mwanza

, J, i J IN THE COURT OF APPEAL OF TANZANIA J, ~ ... ATMWANZA (CORAM: ,RUTAKANGWA, . J.A., KIMARO, I , J.A., And ORIYO, J.A.) CR1MINAL APPEAL INO. 180 OF 2009 TRYPHONE KABITINA ....••....•......•••..••... ., ' 1 APPELLANT •••••••••••••••••••••••••••••••••••••• I VERSUS THE REPUBLIC ............................................................•........... RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Bukoba) · {Lyimo, J.) Dated the 10th day of June, 2009 I . In Criminal Sessions Case No. 116 of 2004 I JUDGMENT OF THE COURT 10 & 12 October, 2011 RUTAKANGWA, J.A: The appellant was arraigned in the High Court sitting at Bukoba, on a charge of murdering one Sima w/o Tcyphone, on the evening of 11th July, I 2002. The murder was said to have taken place at Kangarawe ' Chanyangabwa Village in Karagwe Dis~rict. The appellant had denied· the accusation. 1 After a full trial, before Lyimo, J. (as he then was) in which the death of Sima Tryphone was not disputed, he was found guilty as charged and convicted. He was sentenced to suffer death by hanging, that being the only and mandatory sentence under the law. Aggrieved by the conviction and sentence, he has preferred this appeal. In this appeal the appellant is being represented by Mr. Sylivery Byabusha, learned advocate. Mr. Byabusha has come before us with two (2) grounds of appeal challenging the conviction of the appellant. They run as follows:- !. That the Honourable trial court erred in not considering the presence of a fight which would have reduced the offence of murder to that of manslaughter. 2. That the Honourable trial Judge misdirected himself on the availability of the statutory defence of provocation to the appellant. The respondent Republic which was represented before us by Mr. Pius Hilla, learned State Attorney, did support the conviction of the appellant and the sentence meted out on him. 2 It will be illuminating, we believe, if we first look at the evidence on " which the prosecution rested its case, and the appellant's defence, before we decide on the merits or otherwise of these grounds of appeal. Three witnesses testified on behalf of the prosecution. These were PW1 Geofrey Mutengule, PW2 Mangilda Geofrey and PW3 Emiliana Mtengule. The appellant gave sworn evidence and had no witness to call. The prosecution case was briefly as follows: The deceased was the wife of the appellant. At the time of her untimely death, she was seven months pregnant. The three prosecution witnesses, the deceased and the appellant were neighbours living at Cha'nyangabwa Village. The appellant is a step grandson of PW3 Emiliana, who is the mother of PW1 Geofrey, while the latter and PW2 Mangilda are husband and wife. On the fateful day at around 18.30 hours, PW3 Emiliana saw the deceased, who was carrying a baby on her back, running past her house while being pursued by the appellant. She was crying for help and managed to reach safely the house of PW1 Geofrey. The latter and his wife (PW2) were at home. The deceased, who was in high tempers, told PW1 Geofrey that her husband wanted to beat her. The appellant neither 3 denied nor admitted this accusation when interrogated by PW1 Geofrey. ;.. After about fifteen minutes had passed,, the appellant requested to go back to his home with the deceased. By that time PW3 Emiliana had already joined them. The deceased refused. As the deceased persisted with her refusal, PW1 Geofrey advised the appellant to leave the deceased behind and their differences be discussed the following day. The appellant agreed and left being escorted by PW1 Geofrey. Before the appellant left, one Jovias Bikombo had also joined them. After covering a short distance, PW1 Geofrey returned to his home to join Jovias. PW3 Emiliana also left for her home. Once back home, PW1 Geofrey and Jovias engaged in a talk outside their house. They were later joined by the appellant's brother, one Clepin. PW2 Mangilda and the deceased were inside the house in the sitting room. There came a time when PW1 Mangillda left the deceased alone in the sitting room. She went to prepare beds for the children, themselves, and the deceased. She lit a wick lamp and left it burning in the sitting room. While in the bedroom, PW2 Mangilda heard the deceased cry out in anguish. She hastened back to the sitting room. She found the deceased lying on the floor with the baby on her back. The appellant was standing 4 close by holding an axe. She instantly raised an alarm. PWl Geofrey and his colleagues entered the house. The appellant who was still holding the axe, told them, "nimemuua", meaning ~'I have killed her". The appellant was arrested immediately. As the deceased's relatives were living close by, to ensure the appellant's safety, he was quietly sent to the street chairperson and from there to the Ward Executive Officer (W.E.O) as the Village Executive Officer was away. The police were informed about the killing, and visited the scene with a doctor. On 1ith July, 2002, a post-mortem examination of the body of the deceased was performed. The cause of death as per the Report on Post- Mortem Examination (Exh. Pl) was established to be severe heamorrhage due to head injury (severe cut through the scalp and skull bone to the brain tissue). The appellant was subsequently charged accordingly. The appellant vehemently denied. being responsible for the death of his wife. His version was that on the material day he returned home from Migina Market at around 19.00 hours. At his home he met Clepin and a small child. Clepin told him that he too :had just arrived there and had not 5 found the deceased. He then took a shower, before one Jesse called at his home to inform him that PWl Geofrey wanted to talk to him. When he went to PWl Geoffrey's home, he found him in the company of three Rwandees, namely, Rl!.lsangara, Bishanga and Bizimuingu. They were outside the house drinking a local brew popularly known as "rubisi". Bishanga and Bizimungu left jqst as he arrived there. Then PWl Geofrey invited him inside the house. Inside the house, he found PW2 Mangilda. He then heard PW2 Mangilda say, "Baba Edina tayari". Thereupon PWl Geofrey and Rusangara pounced on him and took him to the women sitting room. The appellant went on to tell the trial High Court that as he was entering the main sitting room, he had seen a person lying on the floor. PWl Geofrey asked ·him if he had seen that person, but he "got sort of confused." He asked PWl Geofrey what had happened but before he got an answer, Clepin arrived. Almost immediately, PW2 Mangilda told Clepin that he (appellant) had killed the deceased. Then Jovias arrived and when told the same story, "fled from the area". He was then tied with ropes by PWl Geofrey and Clepin and taken to the street chairman, 6 without raising any alarm for his own safety. The street chairman directed the "drum man" to sound an alarm at midnight exactly. He was then taken to the Ward Chairman and locked up. The following morning he was sent to Kagenyi Police Post. He refuted the evidence of the three prosecution witnesses. He claimed they were attempting to pass the buck on him as the murder took place at their home. While under cross-examination he admitted that PWl Geofrey was not only a step-brother but a close friend. He also said that when he saw his "wife lying down dead", he got confused and as such he could not raise any alarm. The three gentlemen assessors who aided the learned trial judge in the trial of the appellant, were unanimous in their verdict. Having accepted the prosecution evidence, they returned a verdict of guilty of murder. There being no dispute on the death of Sima w/o Tryphone and the cause of her violent death, the learned trial judge faced only one crucial question: who murdered Sima w/o Tryphone? As there was no eyewitness to the murder he, rightly in our considered opinion, thought that the 7 answer to th.is question lay in circumstancial evidence which again depended on the credibility of the witnesses in the case. The learned trial judge was impressed by the demeanour of the three prosecution witnesses. He found them to have been "coherent, consistent and showed no conflict of interest." He found not even the slighest suggestion as to why these witnesses would have been tempted to tell lies against the appellant, a close relative. On the contrary, he found the appellant to have been evasive and had not been prepared to tell the trial court the truth. He accordingly, accepted the prosecution evidence and convicted the appellant as charged. It is against this background that Mr. Byabusha came before this Court with the two grounds of appeal reproduced earlier. It behoves us now to canvass them, in the light of the entire evidence on record. Admittedly, the case against the appellant depended on, and was indeed decided on the basis, of the credibility of the three witnesses, which is esse_ntially a question of fact. Alive to this fact, Mr. Byabusha, found no good cause to fault the learned trial judge on his finding that the three 8 prosecution witnesses were witnesses of truth on what they witnessed at their home on the evening of 11th July, 2002. With that, he conceded that going by their accepted evidence, it was no longer disputed that it was the appellant who killed Sima w/o Tryphone. Mr. Byabusha, all the same, was emphatic that the learned trial judge erred in law and on the facts in not holding that the appellant killed his wife Sima in the course of a fight and out of provocation. Had the learned judge not so erred, he argued, the appellant would have been found guilty of manslaughter. Inviting us to uphold him on the two grounds of appeal, he urged us to take the evidence of the three prosecution witnesses that the appellant had chased the deceased from their home to that of PWl Geofrey, as proof that there was a fight between them. Relying on the case of Moses Mungasiani Laizer @ Chichi V. Republic [1994] TLR 222, as authority, he submitted that when a killing occurs during the course of a fight, the homicide becomes manslaughter. On the issue of provocation, the learned advocate argued, that in deciding on whether or not the accused killed out of provocation, what ought to be looked at are the surrounding circumstances that led to the killing and the fact that the accused denied the killing is immaterial. To 9 him, the circumstances of this case reasonably lead to the irresistible conclusion that the appellant had been provoked by the deceased. Asked by Court to elaborate on the conduct, by word, deed or omission, of the deceased immediately before she was killed, spoken by or done to appellant or in his presence, fro.m which such an inference could to be drawn, he failed to do so. On his part, Mr. Pius Hilla, strongly urged us to dismiss the appeal in its entirety. He first of all conceded that it is settled law that where death occurs as a result of a fight, an accused person should be found guilty of manslaughter (Moses Laizer @Chichi (supra)). However, he was quick to point out that there was no iota of evidence on record to establish a fight between the deceased and the appellant. He invited us to hold so and dismiss the first ground of appeal. Regarding the defence of provocation, Mr. Hilla argued that on the undisputed evidence on record, this could not be availed to the appellant. He relied on the case of Shabani Rashid V. Republic [1995] T.L.R. 259 to strengthen this argument because the appellant at his trial had unequivocally denied being responsible for the death of the deceased. For this reason, he said, the learned trial judge could not be faulted for not availing the appellant this defence, which he did not plead after all. He therefore, prayed- for the dismissal of the second ground of appeal as well and the appeal in its entirety. In his short rejoinder, Mr. Byabusha urged us to infer the existence of a fight from the undisputed fact that the appellant had chased the deceased up to PW1 Geofrey's home. In disposing of this appeal we shalll begin by re-stating what we take to be common knowledge. This is that upon an indictment of murder being preferred against an accused, the onus remains on the prosecution to prove beyond reasonable doubt not only the death but also the link between that· death and the accused charged with the murder-see, Mohamed Said Matula V. Republic [1995] T. L. R. 3 and Diamon s/o Malekela @ Maunganya, Criminal Appeal No. 205 of 2005 (unreported)). Murder, under our laws, is committed when a person, with malice aforethought, causes the death of another person by an unlawful act or omission (s. 196 of the Penal Code). What amounts to malice 11 aforethought is spelt out in s. 200 of the Penal Code and there is no dispute here on the fact that whoever caused the death of Sima w/o Tryphone, in the absence of statutory defences negating the same, had malice aforethought. This Court in the case of Ally Zayumba Shenyau V. Republic, Criminal Appeal No. 27 of 1993 (unreported) held:- '!Lls it was held in the case of Tomasi Enjaju s/o Oguruto & Another V. Republic {1945) 12 EACA 42- 'Every person who inflicts on a living person an inevitably fatal injury with intent to kill or cause grievous harm is guilty of murder' ': It goes without saying, therefore, that the appellant here cannot escape the murder conviction unless it is demonstrated that he killed out of provocation or as a result of a fight, as he now alleges, or another statutory defence is made available to him from the evidence on record. We should hasten to point out further that the defence of provocation is not negatived by the presence of excessive force. The consideration always, is whether or not an ordinary person in the accused's community would have reacted in a similar manner to the provocation 12 (section 202 (1) and (6) of the Penal Code and Jesinala Malamula V. , Republic, CAT Criminal Appeal No. 4 of 1993 (unreported). But what is provocation? The statutory definition is found in section 202 (1) of the Penal Code, Cap 16. This section provides thus:- " The term ''provocation" m~ans, except as herein after state(l any wrongful act or insult of such a nature as to be likely, when done to any ordinary person, or in the presence ofany ordinary person to ' I another person who is under his immediate care, or to who he stands in a conjugal, parental, filial or fraternal relation, or in ·the relation of master and i servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the I I person by whom the act or insult is done or offered." (Emphasis is ours); From the above definition it is crystal clear that the defence of provocation does not exist in a vacuum. It is a result of any explicit 13 wrongful act or insult. Before it can be successfully invoked or relied on, 0 there must be clear evidence going to show what the deceased did or said to the accused or in his immediate presence as prescribed, which wrongful act or insult deprived the accused of his power of self-control and he killed as a result. The test is always whether any ordinary person in the accused community would have so reacted at the insult or wrongful act. Furthermore, the killing be done on the heat of passion and before there was ti me for the passion to cool down. , In the case of Bura AE V. Republic (1994) T.R.L. 13 the appellant had contended that he had killed the deceased because the latter had threatened to set his house on fire and had struck a match so as to set the house on fire. The Court found that on the evidence available it was clear that the deceased had actually not uttered nor carried out the said threat. This Court then unequivocally held that provocation was not available to the appellant. Provocation, therefore, is not available in the absence of evidence of the insult uttered or wrongful act committed by the deceased and to the accused. 14 . In this case, the prosecution evidence is clear that apart from what • the deceased told them that the appellant wanted to beat her, she uttered no other word nor did any wrongful which would have provoked the appellant. On his part, .the appellant did not offer any clue on this, either to the trial High Court or before us. It goes without saying, therefore, that the defence of provocation could not be available to the appellant, as the deceased said or did no wrongful act, going by the definition of "wrongful act" given by this Court in the case of Isidori Stanislaus V. Republic, (1994) T. L. R. 24, which could have legally provoked the appellant. We accordingly dismiss the second ground of appeal. Once we accept the evidence of the three prosecution witnesses, as we do, the first ground of appeal should be found arid of merit. The word "fight" should not be given a strained meaning but its ordinary plain meaning. It means to "struggle physically with somebody" (Oxford Advanced Learner's Dictionary, 6 ed. P. 493). That being the case, we find ourselves in agreement with Mr. Hilla, that the deceased was not killed in the course of a fight. There was no fight between the appellant and the deceased at the home of PW1 Geofrey where the killing took place. It was a cold blooded murder pure and simple. In our considered opinion, the 15 • appellant returned to the house of PW1 Geofrey to kill his wife who was 7 • months· pregnant. It is fortunate that by Divine intervention the child on the back of the deceased was spared even a slight injury. In the case of Bura AE. (supra), the appellant had equally given a chase to the deceased before stabbing him to death. The Court never took the homicide to be a killing in the course of a fight. It confirmed the conviction for murder. We are equally convinced here that going by the evidence of PW1 Geofrey, PW2 Mangilda, PW3 Emiliana and the appellant having owned up to the killing, the appellant killed Sima w/o Tryphone with malice aforethought. After all, answering the second assessor's question he said that on that day he never quarrelled with the deceased at all. For these reasons, we uphold the appellant's conviction for murder and the death sentence. All said and done, we dismiss this appeal in its entirety. DATED at Mwanza this 11th Day of October, 2011. E. M. K. RUTAKANGWA JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL 16 .J i I certify that this is a true copy of the original. 17