20110630 TZCA Iringa

. . - !'~ .., ,{'\ .-1'.;,··,....~~' - . IN THE COURT OF APPEAL OF TANZANIA ATIRINGA (CORAM: MUNUO, J.A., LUANDA, J.A., And MJASIRI, J.A.} CRIMINAL APPEAL NO. 72 OF 2011 JULIO MAKOMBE ........ ...................................................... APPELLANT VERSUS · /' ; •. . THE REPUBLIC ............................. ,.: .. , ~.................. ,;-~ ......... RESPONDENT ·-l~ .. . " . . ~·· -·· (Appeal from the decision of the High Court of Tanzania at Iringa) (JUNDU, J.) dated the 15th day of August, 2008 in Criminal Session Case No. 54 of 2006 JUDGMENT OF THE COURT 28 & 30 June, 2011 MJASIRI, l .A. In the High Court of Tanzania at Iringa, the appellant Julio Makombe was charged and convicted of murder contrary to section 196 of the Penal Code, Cap 16 R.E. 2002. He was sentenced to death. Being aggrieved by the decision of the High Court, he appealed to this Court against both conviction and sentence. · • We must say at the outset that the facts of this case are quite bizarre. The deceased, a two weeks old baby suffered a harrowing death. It was strangled then slaughtered like an animal with a kitchen knife. It is the prosecution case that the person responsible for its death is the appellant. The prosecution relied on the evidence of the deceased's mother (PWl). She testified that she was married to the appellant and they. had four children. They lived in Mgama Village in Iringa District. There was a time the appellant moved to Kilolo where he was doing timber business. The appellant used to come home from time to time to visit his family. PWl also joined her husband at Kilolo for a period of one year. She then returned to Mgama village. However as the appellant's house had collapsed she went to live with her father. She was then separated from her husband for a period of about 12 months and during this separation she was involved in a relationship with another man. She became pregnant. During her early pregnancy the appellant returned home. He was not happy with the baby as she was born outside wed lock (and was not his child). 2 , On the fateful day the appellant came to her and asked her to accompany him to Kilolo in order to see his son who was sick. She agreed to do so. He enquired as to where she would leave her baby. She responded that she would take the baby along. He became angry and he asked her to strangle the baby. She could not do it. He grabbed the baby and began to strangle it. He then took the baby to the kitchen, put his foot over her body and slayed her neck with a kitchen knife. He then put the dead body in a plastic bag ( commonly known as 'Rambo') and asked PW1 to throw the dead body in the· school toilet which was near their house. She carried the baby and went out of the house. However she did not go to the school. She hid instead at the back of the house. The appellant thought she had gone to the school and he went after her .. As soon as he was out of the way, she raised an alarm, and her neighbours responded to the alarm. She narrated her story and the appellant was subsequently arrested and charged with the offence of murder. The appellant denied any involvement in this heinous crime. According to his defence, when he left home the child was still alive. 3 ,. At the hearing of the appeal, the appellant was represented by Mr. Justinian Mushokorwa, learned Advocate and the respondent Republic was represented by Mr. Ponziano Lukosi, learned State Attorney. The appellant filed three (3) grounds of appeal which are reproduced as under:- 1. The trial Court erred to heavily rely and convict on the basis of the testimony of a single witness, the wife of the appellant, PWJ, who herself was not free of grave suspicion to commit the murder and without the Court warning itself of the possibility of this witness to be a liar. 2. The defence case was not adequately considered. 3. On the circumstances of this case, the trial Court ought to have considered whether at the material time the appellant was insane. Mr. Mushokorwa abandoned grounds 2 and 3 of his memorandum of appeal and addressed the Court on ground No. 1 only. He argued with great force that the trial Judge erred in relying on the testimony of a single witness. The trial Judge should have cautioned himself of the danger of 4 relying on the evidence of PWl. According to him the credibility of PW1 was questionable. There was a possibility that PW1 was the one who committed the offence in order to put an end to the stigma of having a child outside marriage. The appellant knew about his wife's pregnancy and the fact that the child was not his but did not punish or chase away PWl. He looked after her until she delivered the baby. He therefore had no reason to harm the child. Mr. Lukosi on his part, did not support the conviction. He submitted that the prosecution evidence was not sufficient to ground the conviction. PW1 was found with the plastic bag containing the dead body in her hands. None of the witnesses Who responded to the alarm raised by PW1 were called as witnesses. The Village authorities were also not called to testify. The knife used to kill the deceased was also not examined for finger prints. He did not rule out the possibility of PW1 having killed the deceased. He was of the view that this was a difficult case and urged the .court to review the evidence with great care. He concluded that the case against the appellant was not proved beyond reasonable doubt. 5 witness there is a need for testing with greatest care the evidence of a single witness. See Abdullah Bin Wendo v R (1953)20 EACA 166; Roria Republic (1967) EACA 583; R v Turnbull 1977 QB 224; See Mburu and another v R (2008) 1 KLR 1229 and Vhengani v The State [2007] SCA 76 (RSA). In Anil Phukan v State of Assam 1993 AIR 1462 it was held as follows: '~ conviction can be based on the testimony of a single - eye witness and there is no rule of law or evidence which says to the contrary. provided the sole eye witness passed the test of reliability in basing conviction on his testimony alone'~ The law is also clear that there is no particular number of witnesses required for proof of any fact (Section 143 of the Evidence Act, Cap 6 R.E.2002) and that subject to well known exceptions, a fact may be proved by the testimony of a single witness. On the other hand, the burden weighs heavily on any Court considering the solitary evidence of a witness. The caution in the Abdullah bin Wendo case's is that such evidence must be tested with greater care. 7 The pivotal question to be determined in this appeal is whether or not there is sufficient evidence to justify the appellant's conviction for murder. After reviewing the evidence and the submissions made by Counsel, we are inclined to agree with them that the evidence on record was not sufficient to establish the offence of murder. The conviction of the appellant was based solely on the evidence of PWl. The trial Judge found her to be a credible witness and proceeded to convict the appellant based on her evidence. It is clear from what is set out above that there were serious shortcomings and gaps in the evidence of PWl which diminished her credibility as a witness. There are a lot of questions which have remained unanswered. For example why the people who responded to the alarm raised were not called as witnesses. Why the prosecution preferred to summon the brother of PWl alone (PW2) who was residing some kilometers away from PWl. We must admit that this factor has caused us great anxiety. The trial Court made a finding that she was a credible witness without taking into account all these shortcomings. We are (?f the view that even though a fact may be proved by the testimony of a single 6