20111117 TZCA Arusha2

• ,1"' ;,~.-:~, -- ·-. - ,,:,,~ IN THE COURT OF APPEAL OF TANZANIA ATARUSHA i; (CORAM: RUTAKANGWA, J.A., LUANDA1 J.A., And ORIYO, J.A. CRIMINAL APPEAL NO. I, • 13 OF 2009 I .. . ~ 11 YUSUPH HASSAN LUGENDO....................!~ ........•••••••••••••••••.,......... APPELLANT VERSUS THE REPUBLIC ....................................... ~ .................................. RESPONDENT ' ji ' i (Appeal from the Judgment/Conviction of the High Court of Tanzania at Moshi) i' i (Mchome, J.) (Dated the 16th day o( December, 2008) in i Criminal Sessions Case No. 21 of 2008 ------------- i I - - r . JUDGMENT OF tfHE COURT 15TH & 18TH NOVEMBER, 2011 RUTAKANGWA, J.A.: The High Court sitting at Moshi, found the appellant "guilty" of the j murder of his father, one Hassan -~/o ~o'ta Mcharo Munguatosha. We have ,I • I I used the words "found guilty" not without good cause. This is because, 1 contrary to the mandatory provisions : of section 298 (3) of the Criminal Procedure Act, Cap. 20 (the Act), the!1 learned trial judge never recorded !! . 11 I, any conviction against the appellant. All the same he proceeded. to . ( i, 11 sentence him to suffer death by hanging. Aggrieved, the appellant preferred this appeal. In this appeal, the appellant was advocated for by Mr. John Materu, learned advocate. For the respondent Republic, Mr. Zakaria Elisaria, learned State Attorney, appeared. The appellant relied on two grounds of appeal in his attempt to impugn the judgment of the High Court. They read thus:- " 1. That the learned trial Judge erred in law and in fact for the adm1ssibility of the prosecution exhibits tendered in court. 2. That, the Honourable Judge erred in law and \ in fact in finding that the prosecution evidence leads to no other reasonable interpretation, inference or hypotheses than that the appellant is the one who killed his father. " 2 I ' The first ground of appeal, we have to point out, was in the initial memorandum of appeal lodged by the appellant himself. The case against the appellant was substantially based on circumstantial evidence. This evidence came from PW1 Yahya Hassani, ., PW2 Saidna Ally Hassani, PW3 Ramadhani Hassani, PW4 Mwanaidi Nuru and PW 5 Diwani Hassani. It is not insignificant to mention at the outset that PWl, PW2, PW3 and PWS were the children of the deceased, while PW4 was the wife of the appellant. The evidence of PW4 Mwanaidi was received after the learned trial judge had complied with the provisions of section 130 (3) of the Evidence Act, Cap 6. Briefly this evidence was as follows:- The appellant and his wife (PW4) as of 17th June, 1994 when the alleged murder took place, used to live at the deceased's homestead at Ngulu Village in Mwanga District. So did PWl Yahya and PW2 Saidna. On 16th June, 1994, PW1 Yahya and the deceased left their home at 7:00 p.m. for their maize farm and spent the entire night there. On the 3 morning of lih June, 1994, PW1 Yahya, who was 14 years old then, returned home leaving the deceased behind. PW1 Yahya said he had to return home "to look for a lost of goat", although PW2 Saidna who testified to have met PW1 along the way while going to the shamba to collect some maize, said that PW1 Yahya had gone home to open the cattle kraal. It was the evidence of PW2 Saidna that while at the shamba with the deceased, the appellant joined them there. The deceased left for home immediately thereafter. Before the deceased reached home, as PW2 Saidna testified, the appellant also left as he claimed he had something to tell their father. However, when PW1 Yahya was on his way back to the shamba, he heard his father crying. He hastened to the place from where the cries had emanated. There he found the appellant "cutting the deceased with a panga." He returned home quickly and related what he had seen to Edward Kanugha, his brother in law, Mwamini Hassan, and Mwanaisha Salehe. They all left for the scene of the crime. Neither the deceased nor the appellant was to be seen there, but blood was "all over." They returned 4 I, home. Unfortunately, these three people who allegedly received the first report and visited the scene of the crim,e, for undisclosed reasons, never testified at the trial of the appellant. According to the evidence of PW1 Yahya, the appellant returned home at 8:00 p.m. and in fact slept in one room with him, although PW4 Mwanaidi testified that the appellant returned home at 3:00 p.m. and told her that he had killed his father. It was PW1 Yahya's evidence also that during the night, the appellant told him that he would be leaving for Kenya the next morning. PW1 Yahya further told the trial High Court that as their father never returned home, he reported the matter to the "Kitongoji" chairman, one Hamis Kilongo. The latter called the neighbours and a search for the deceased began. The deceased body. was found in the bushes on 19th June, 1994. The body had multiple cut-wounds and the genital organs were missing. A post-mortem examination of the body done on 20th June, !,' 1994, established the cause of death as "severe shock (hypovalaemic) secondary to severe haemorhage following multiple cut wounds." This 5 .i post-mortem examination was witnessed by PWl Yahya, Edward Kavugha and No. C 483, Cpl. Henry. The deceased was buried thereafter. This police officer, as well as the "Kitongoji" chairman ,, never testified at the appellant's trial. The appellant, it was claimed by PWl, PW2, PW3, PW4 and PWS, disappeared thereafter. He lived in Kenya with his wife (PW4) until 2002 or 2003 when he returned to Tanzania and was arrested and charged accordingly. The appellant had a different story to tell. He unequivocally denied murdering his father. He called the entire accusation absurd. To him, it was concocted by the five prosecution witnesses (excluding PW6), because of \· personal family differences, which began during the life time of their father, as he was a favourite of their father and intelligent. The appellant further told the trial High Court that in 1993, after returning from Kenya he found PW4 Mwanaidi and PWS Diwani, sleeping ' together in a compromising situation and his wife was totally naked. Following the advice of his mother, he claimed, he decided to forgive them. Then on 10th June, 1994 he returned to ~enya only to return home on 2ih 6 I I June, 1994 when he received news of his father's death. He was told by his I',, 1' mother that those suspected of murdering their father were Gerald I• I Origires, Mahuna Shabani, Njana and Yasini. These, he said, were actually . I arrested but were subsequently released.1, Thereafter, he returned to Kenya 1 ·! taking his wife with him. They liyed at~ village known as Lutima. They •• , .. I' , '-' stayed there up to 2003 when he returried to Tanzania and was arrested I and charged. I 1: Before finding the appellant gui:lty the learned trial judge first I i considered in isolation the appellant's alibi and rejected it. It was rejected ,,I 1, because, firstly, the appellant "did not call the witness he alleges he was 1 j'. l with in Kenya, that is Francis." This was Ian error of law, because as he had I " himself earlier on said, "the accysed ~oes not have to prove his alibi." :. - . 1: ;.; Secondly, the learned trial judge. b.e'lieved the evidence of "a'II the 1 i: prosecution witnesses" who said that· ';he was in Ngulu village when this I offence was committed." I I 1 After so rejecting the defence ! of alibi, the learned trial judge I . " proceeded to look for evidence 'going to incriminate the appellant. He, I . l I 7 correctly in our view, found that no single witness alleged to have seen the deceased dying. As such, he found the case against the appellant resting entirely on circumstantial evidence. He properly directed himself on the law to the effect that to "ground a conviction of circumstancial evidence the incriminating facts must be incapable of more than one interpretation (ALI BAKARI & PILI BAKARI v. R [1992] T.L.R. 10). The learned trial judge found the iincriminating facts to be:- a. The claim by PW4 Mwanaidi that she saw the appellant leaving their home with a panga; b. PW4 Mwanaidi's claim that the appellant told him that he was going to kill his father; c. PW1 Yahya's claim that he saw the appellant cutting the deceased and "went to call his elders", who went to the scene and saw "a lot of spilled blood"; d. Appellant returned to PW2 Saidna at the shamba worried with stains of blood on his shoe sole; e. Appellant returned to his wife with blood dots on his shirt and told her that he had killed his father; 8 f. Deceased was found dead in the bush 2 days later; g. Appellant was found with deceased weapons; and h. Appellant threatened PW1 Yahya that he would kill him if testified against him. To the learned trial judge, these pieces of evidence led "to no other reasonable interpretation, inference or hypothesis than that the accused is the one who killed his father." This being a first appeal, which was supported by the respondent Republic, we have had to re-visit th'e entire evidence as urged by counsel for both sides, to find out whether it justifies or sustains the above conclusion, and the guilty verdict. We are now convinced that it does not. We have found these so called "incriminating facts" to be not conclusive inculpatory facts but mere unsubstantiated allegations. These are our reasons. One, the fact that the deceased body was found two days after he had disappeared from his home was not disputed. But to us, this fact 9 carries little significance. No evidence was led by the prosecution to show the distance between the point where the body was found and the place where PWl Yahya allegedly witnessed the appellant cut the deceased. Nor was evidence given to show that there were traces of blood in between these two points. Furthermore no . iota of evidence was given to show that the "spilled blood" allegedly seen by PWl Yahya and the "elders", who never testified, was human blood and if it was whether it was blood from the deceased. Two, even if it were accepted that the appellant was found in possession of the deceased's weapons, that is a bow, sword and cow skin strings (exh. P4) as alleged by PW3 Ramadhan, about a week after the death of the deceased, we have found this evidence to have no probative value. This is because no single witness testified to the effect that the deceased had left his home on 16~h June, 1994 or his shamba on lih June, 1994, with those weapons. But we harbour strong suspicions on this claim by PW3 Ramadhani. Going by his account, these weapons were abandoned by the appellant on an unnamed night after they had been ambushed by the police who were looking for him, in the bush. The police seized those IO I weapons and took them to Mwanga police station. Here we have two unanswered nagging questions. If that was the case, why didn't any one of those police officers testify at the trial of the appellant? Also, how did PW3 Ramadhani repossess them so as to tender them in evidence as exhibits on 27/11/2008? All this to us smacks of a fabrication and go to lend credence to the appellant's claim that his half-brothers and sister were all out to victimize him. Three, PW4 Mwanaidi's claims that the appellant left their home with a panga and told him that he was going to kill the deceased and returned subsequently boasting having executed his mission ought to have been received with very great circumspection. The fact that she never reported the alleged declaration of intent and the confession to murder for over 10 years, should have put the learned trial judge on an inquiry about her veracity. Indeed we learnt during the course of hearing the appeal that PW4 Mwanaidi gave her statement to the police in 2007, i.e, thirteen years later. This is unbelievable. Furthermore, her evidence is rendered implausible by the evidence of PW2 Saidna. It is clear from Saidna's 11 evidence that when the appellant arrived at the shamba he was not armed at all and so was the case when he left. Four, PW4 Mwanaidi claimed in her evidence that the appellant returned home that day with a blood stained shirt at 3:00 p.m. However, this piece of evidence is in crying contradiction with that of PW1 Yahya who said that the appellant returned home at 8:00 p.m. The evidence of PW1 Yahya, who as already shown allegedly saw the appellant wounding their father, is silent on whether or not the appellant's clothes had blood. Five, going by the evidence of PW4 Mwanaidi, it is evident that the appellant never left after his arrival nor did he change his clothes. However, PW2 Saidna testified that the appellant returned to the shamba that day at 5:00 p.m. To her, the appellant was restless and had blood stains on his shoe sole. To us it is, patently inconceivable that the appellant would have killed his father in the manner described by PW1 Yahya then went home with the blood stained shirt and shoe and thereafter leave for the shamba with the same clothes and shoes. But all in all, why didn't PW4 Mwanaidi see the blood on the shoes and why didn't PW2 Saidna see blood 12 on the shirt? Incidentally, none of the two witnesses saw any traces of blood on the appellant's pair of trousers. ' Six, coming to the evidence of PWl Yahya, we should quickly say that we have found it totally lacking in cogency. This is because, one, it does not show how far he was from the spot where the appellant and the deceased were. This would have cleared any reasonable doubts on whether or not he unmistakably i~entified the appellant as the fatal assault allegedly took place in a bush. Two, while under cross-examination, he admitted that he gave three statements, the last one being in 2007 while the second one was in 2003. He also claimed that whereas his first statement was taken in 1994, it was never read out to him. If really he had told the village authorities and the police, what he told the trial High Court would it have taken any serious investigator about 10 years to record the statement of such a key witness? We believe not. Three, and most important in our considered opinion, if his evidence was not a fabrication as alleged by the appellant, when the appellant returned home at 8:00 p.m. and told him that he would be leaving for Kenya and the deceased was still missing, what prevented him from informing those "elders" and 13 have him apprehended immediately? )"hat . ' he never did so, is indicative that he saw nothing of the sort. Four, if he reported the incident to the "elders" and they actually visited the alleged scene of the crime, why didn't these people or at least one of them, ,testify to confirm his story? This unexplained failure by the prosecution to call such essential witnesses, forced Mr. Zakaria to invite us to draw an adverse inference against it. He was perfectly justified in the circumstances of this case. We are aware that the pros:ecution does not have "the obligation to produce witnesses irrespective of the consideration of number and reliability" as "the evidence has to be weighed and not counted" (SPERATUS TH EON EST @ ALEX v. R~, Criminal Appeal No. 135 of 2003 (unreported)). All the same, this discretion is limited by the principle "that it must be exercised to promote a fair trial" (ADEL MUHAMMED EL DABBAH v. A.G. FOR PALESTINE [1944] A.C. 156. For this reason this Court in AZIZ ABDALLA v. R. [1991] T.L.R. 71 held:- " (iii) the general and well known rule is that the prosecution is under a prima facie duty to call 14 those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an adverse inference to the prosecution." See also, LUBELEJE MAVINA & ANOTHER v. R., Criminal Appeal No. 172 of 2006 (unreported). 'i There is no dispute here that the named Edward Kanugha, Mwamini Hassan, Mwanaisha Salehe, were not only competent and compellable witnesses. They were also very: material witnesses for reasons already shown. So were the police officers who allegedly seized exhibit P4. Because they were not called to testify for undisclosed reasons, we are compelled to draw an adverse inference against the prosecution and conclude that had they been called they would have belied PW1 Yahya and PW3 Ramadhani. 15 We shall refrain from saying anything on the evidence of PWS Diwani. This is because the same was received contrary to the mandatory provisions of s. 289 (2) of the A,ct. We accordingly expunge it from the record of proceedings: see, HAMISI MEURE v. R. [1993] T.L.R. 213. In view of the above, we are of the settled mind that had the learned trial judge directed himself and the assessors to all these clear critica! shortcomings in the prosecution case, he would not have rejected the appellant's defence of alibi out of hand. It is these fundamental discrepancies and implausibilities which· forced Mr. Zakaria to join hands with Mr. Materu in urging us to allow this appeal in its entirety. All things considered, we are of the respectful finding that the circumstancial evidence relied on by ·the.::Iearned judge was of the weakest character. It was premised on evidence which was wholly highly suspect. We are enjoined to hold, then, that the guilt of the appellant was not proved beyond reasonable doubt. 16 In fine, we allow this appeal. The finding of guilty of murder is accordingly quashed and set aside as well as the de~th sentence. We order that the appellant be released forthwith from prison unless he is otherwise lawfully held. DATED at ARUSHA this lih day of November, 2011. E. M. K. RUTAKANGWA JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A. • DEPUTY REGISTRAR 17