20110324 TZCA Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KILEO, J.A., BWANA J. A. And ORIYO, J. A.) CRIMINAL APPEAL NO 12 OF 2011 BETWEEN CHILONGOZl MGAZI ................... APPELLANT AND THE REPUBLIC .................................... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dodoma} [Mjasiri, J.] dated 2th February 2006 in Criminal Sessions Case No. 131 of 2001 JUDGMENT OF THE COURT 21/03 & 28/03/2011 KILEO, J. A: The appellant, Chilongozi Mgazi was convicted of murder contrary to section 196 of the Penal code and was sentenced to the mandatory penalty of death by hanging. At the hearing of the appeal he was represented by Mr. Kuwayawaya S. Kuwayawaya learned advocate while the Respondent Republic was represented by Mr. Peter Mauggo, learned State Attorney. ' The appellant has preferred three grounds of appeal but really the main question . in this appeal is whether the killing of the deceased Mseyi 1 Simbaya was with malice aforethought. The following facts are not in dispute: The appellant and the deceased had been lovers at one time. At the time of her death she was married to one Meda Mnyatu (PW3). The body of the deceased was found at the compound of Ndahani Nagoro (PW2). The postmortem examination report shows that the cause of death was profuse hemorrhage. The report further shows that the body had a cut wound on the neck about 3 inches in depth. The appellant admitted to the killing but denied to have done so with malice aforethought. Submitting before us,. Mr. Kuwayawaya urged us to accept as plausible, the appellant's explanation of the circumstances .pertaining to the killing considering: first the fact that there was no eye witness to the incident and secondly the fact that the deceased's body was found just a short distance from PW2's house. The appellant maintained both in his confession to the police and the justice of the peace as well as in his defence during trial that he had found PW2 and his paramour in bed something which angered him. The appellant claimed further that PW2 and the deceased tried to attack him and he had to use the bill hook he had been carrying to defend himself. After he had wounded the deceased he went to report the matter to the police. 2 ,, !·: Mr. Kuwayawaya argued that there were many contradictions not only as between the prosecution witnesses but also that the evidence of PW2 was self contradictory. The learned advocate submitted further that if the trial court had properly addressed itself to the whole circumstances of the case it would have resolved the contradictions apparent in the testimonies of the prosecution witnesses in favour of the appellant. Resisting the appeal, Mr. Mauggo argued that there was malice aforethought on account of a number of factors. Firstly, that the appellant had attempted to kill the deceased before, secondly, that the weapon used was lethal and a lot of force was used in inflicting the fatal blow. Mr. Mauggo submitted further that the defence of provocation cannot be available to the appellant as the relationship between the appellant and the deceased had ceased and moreover, the deceased was someone else's wife making the alleged existence of the relationship an illegal transaction. As earlier indicated, the main issue in this appeal is whether the appellant killed Miseyi Sambaya with malice aforethought. The appellant's defence is based mainly on the defence of self defence though he has also touched on provocation. In his testimony he claimed 3 i.,::.,. that on the material date he found the deceased and PW2 in bed. The duo tried to attack him and in the process of defending himself he accidentally wounded the deceased. The appellant narrated how on the previous day the deceased had visited him and requested him to give her a thousand shillings. The deceased also promised to see the appellant the -following day which she did not do. Having carefully considered the matter before us we are of the settled view that the case for the prosecution fell short of proof beyond reasonable doubt on the question of malice aforethought. We agree with Mr. Kuwayawaya that the evidence connecting the appellant with the crime is the appellant's own confession. It transpires from the evidence that no one saw the appellant kill the deceased. The appellant claimed that he found the deceased who was his lover in bed with PW2. The deceased's body was found just a few paces from PW2's house according to the testimonies of other witnesses. PW1 said it was found outside PW2's kraal. PW3 claimed that the body was found near Ndahani's house, about 15-18 paces. This witness also informed the trial court that Ndahani (PW2) informed him that he had seen the deceased and the appellant chasing one another. Ndahani never mentioned this fact in 4 his evidence. He stated that on the material date he had gone to clear the bush and on his way home he met some young children who told him that there were some people who had hurt themselves at his house. Moreover, when everyone else stated that the deceased's body was found just a few paces from PW2's house, PW2 himself said that the body was found some 200 meters from his house. We think that there was something that he was trying to hide. There is also the evidence of PW4, the deceased's mother which we think should have been found unreliable. She said for example in the course of responding to questions put forward by one of the assessors that she saw the appellant running away with a bill hook and she shouted at him saying "you Chilongozi have killed my daughter". It is to be noted that this · statement was given in the course of answering questions to an assessor- i.e. after cross examination by the defence counsel. We think this was an afterthought and the trial court ought to have treated her evidence with caution in the circumstances. Another aspect that the trial court ought to have considered was the failure by the prosecution to call a witness from either the court or the police side to establish the allegation that the appellant had previously been taken to court being accused of attempting 5 • to kill the deceased. Since the allegation was so serious and it would in fact have added weight to the case for the prosecution it would have been expected that a witness would have been brought forth from either of the two institutions in support of the allegation. There is no doubt that the appellant and the deceased were lovers. There was no evidence to contradict the appellant's statement that the appellant and the deceased had met the day before the incident and had agreed to meet the following day. The deceased's body was found in the compound of PW2 whom the appellant claimed to have found in bed with his lover. The appellant claimed that when he found the deceased and PW2 in bed they tried to attack him and it was in the course of defending himself that he accidently killed the deceased. We are of the considered view that if the learned trial judge had properly addressed her mind to the whole circumstances of the case she would have found that the appellant's explanation raised reasonable doubt ·on the ( case for the prosecution with relation to the element of malice aforethought. 6 In view of the above considerations we find merit in this appeal by Chilongozi Mgazi and in the event we allow it. The conviction for murder is quashed and we substitute thereby a conviction for manslaughter. The sentence of death by hanging is set aside and in its place we impose a sentence of fifteen years imprisonment. As the appellant has been in prison now for five years he is liable to serve the remaining ten years. It is accordingly ordered. Dated at Dodoma this 24th Day of March 2011 E. A. KILEO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL I certify this t UTYRE 7