20120627 TZCA Mtwara

IN THE COURT OF APPE~L OF TANZANIA 1 ATMTWARA CRIMINAL APPEAL N0.I238 OF 2009 I I (CORAM: OTHMAN, C.J., MBAROUl<l, J.A., And BWANA, J.A.) II . GREGORY DAVID MAOKOLA@ MBUGA .. J••••••••••••••••••••••••• ~ •• APPELLANT , VERsusl I THE REPUBLIC ......................................•........................ RESPONDENT ·?·~ i i (Appeal from the decision of the High Court of Tal'.lzania at Mtwara) · (Mipawa, lh I II dated the 26th day of lune, 20091 1 I II I in I i Criminal Sessions Case No. 19 of 2007 ------------- I! ,, 11 JUDGMENT OF THE COURT '! 25th & 29th June, 2012 BWANA, J.A.: I: I The appellant, Gregory David rv,aokola @Mbuga lived in the I: same house with his grandfather, Ehock Andrea@ Mpinga, the 1 II deceased. The deceased died of an unhatural death. He was found II i i one morning laying dead in a pool of blbod with head wound and cut I Ii wounds on his hands most likely caused by a lethal weapon. 1: I i . Eventually the appellant was arrested ~nd charged before the High ' i I Court, with and convicted of the off~nce of Murder contrary to 1 section 196 of the Penal Code. He was sentenced to the mandatory sentence of death by hanging. He has now appealed against both conviction and sentence. Before us, the appellant was represented by Mr. Michael Ngalo, learned advocate, while the respondent Republic was represented by Mr. Paul Kimweri, learned State Attorney. The facts of the case that led the trial High Court to enter the th verdict above, are as follows:- In the morning hours of 16 November, 2005, at Mkumba Village of Nachingwea District, a young boy, known as Alisi, had passed word to Josephat Mbunda, PW1, that he saw the appellant assault Enock Andrew, the deceased. In the company of Johnson Mselem, PW6, PW1 went to the material house. The deceased was PW1's grandfather. And so was he to the appellant. Upon arriving at the house, PW1 and PW6 found both the front and rear doors to the house closed. PW1 called "babu" "babu" (the deceased) but there was no response. He then called the appellant but equally there was no response. PW1 is said then to have forced the rear door open. Before he had entered the house, his eyes fell 2 on the body of his grandfather, the deceased. He noticed that he had a head wound and cut wounds on his hands, caused by a lethal weapon. He then called Gregory, the appellant whom, PW1 noticed, had locked himself in his room inside the house. At first toe appellant I was not responding to his call. He did so only after several calls but was locked up in his room. PW1 then went to seek help from more people. He left behind PW6 to guard the premises lest the appellant or other people, if any, inside the house, would attempt to escape. It was PW1's further evidence that at the scene where the dead body of Andrew Enock lay, there was a stone and a knife stained with blood. The stone and knife were on the table, next to where the deceased lay. Leonard Ally Mbunda, PW3, another grandchild of the deceased and a militia man, testified on how eventually the appellant was arrested. When the door to the appellant's room was forced open, the appellant was found hiding on the ceiling area of the house (dari), attempting to escape. He had a bush knife (panga) which he used to threaten people who had, by then, gathered at the premises. I I 3 Eventually PW3 managed to have the appellant arrested. It was his evidence that had the deceased been killed by other :people, the I appellant, who lived in the house with the deceased, would have been not only the first person to raise an alarm upon finding his grandfather brutally murdered but also he would have not behaved the way he did by locking up the house and himself in his room and preventing people from entering the said house. Such a conduct, it was his (as well as that of PWl and PW6) view exposed the appellant to suspicion of killing his grandfather. Jaffary Maulid, PW4, a Medical Officer, examined the body of the deceased and found that there was a wound on the head and cut I I I wounds on the hands. A post mortem report prepared c1nd tendered in court by him showed that the cause of death of Enock Andrea @ Mpinga was due to excessive loss of blood (haemorrage) as a result of the inflicted wounds. WP 2484 Detective Corporal Kuruthum, PWS, who searched the material house and the appellant's room in the course of investigations, managed to recover a knife which was in the appellant's bag and was stained blood. The same was recovered from the room where the appellant had locked himself. 4 In his unsworn defence, the appellant told the court that he had no grudges against the deceased. On the fateful day, he had left the house early in the morning for his farm. When he returned home, around 9:00 am, he found his grandfather dead, blood oozing from his nose. Then people started to gather around and suspecting him to have killed his grandfather. He locked himself in for fear of his life. ' It should be noted here that Alisi, the boy who first reported to have seen the appellant assault the deceased, never testified in court. We think this was a serious omission. As a first appellate court in this case, we are entitled to draw our own inferences to the evidence presented before the trial court. This is so particularly where we see, as 1in this case, that there were glaring errors of law, non directions and misdirections on the part of the trial court. (see Deemay Daati and 2 Others V. Republic (2005) TLR 132; Twaha Elias Mwanandungu V. Republic (2002) TLR 277; Patric Jeremiah V. Republic, Criminal Appeal No. 314 of 2006 (unreported)). 5 Having examined the evidence before the trial court, w,e are of the firm view that this appeal may be determined by considering the following matters:- • Conflicting material, factual issues. • The cautioned statement. • Circumstantial evidence - whether it irresistibly implicates the appellant. We start by examining the cautioned statement. According to the record, the appellant, through his learned counsel, Mr. G. Martin, had objected to the tendering in evidence of the said statement. The trial court, however, proceeded to admit it in evidence. Having carefully examined the record, we are satisfied that there are vivid irregularities that the trial judge should have addressed his mind to and come up with clear findings in so far as ' the law governing the recording and tendering of a cautioned statement is concerned. One such clear irregularity is that according to the record, the said statement (Exh. P3) was recorded on 21 November, 2005 starting at 13:15 hours. The appellant, again going by the evidence on record, was arrested by the police on 16 November, 2005. There 6 is no evidence suggesting that he was released in between the said arrest and recording of the cautioned statement. This, in our view, i contravened the provisions of sections 50 and 51 of the Criminal Procedure Act (the CPA) which in essence provide a time framework of when and how such a document should be recorded. Initially the recording must take place within four hours from the time of arrest (section 50 (1) (a) or extended to a period notI exceeding 8 hours (section 51 (1) (a) .. Further than that, the period has to be extended by magistrate I (section 51 (2). The cautioned statement herein was recorded some days (5) after his arrest. There is no proof that the provisions of sections 50 and 51 of the CPA were complied with by seeking and obtaining such extension of time from a magistrate. This irregularity in itself makes the said statement inadmissible. AnothJr such clear irregularity is that after the appellant had repudiated the statement, the trial judge ought to have conducted a trial within a trial to establish its voluntariness and correctness. This could be done in the absence of Assessors. Going by the record in this case, if is apparent that if at all such a trial within a trial was conducted, then it was in the presence of Assessors. The said Assessors are on record as I 7 having even asked questions to the appellant. This is, to say the I least, a procedure unknown and unheard of under our laws and II 1 ! I ,1 practice. The two irregularities, together lwith others th~t we have noticed in this respect, cannot be a11:pwed to stand. The said 'I statement should therefore, as we noi do, be expung!=!d from the record. ' II The other issue for our consideration is the contraaictions, and their effects, regard being on the allegld lethal weapons that may have been used in committing the offelce. The items are listed as stone(s) and knife or knives. As was corctly argued by the defence in the course of trial, there was no proofi that the said stone found on I the table next to where the deceased laiY was the one used to cause injury on the head of the deceased. . Likewise the knife allegedly stained with blood. The said blood on ihe knife was not established I that it was that of the deceased. Nor w1s the knife proved to be the I one used to wound the deceased. No lDNA or other forensic science proof was established and which couldl link the appellc!nt with the I , killing. What appears to have influencetl the trial court's decision on this point were mere conjectures and suspicions, linking them to the I ! 8 appellant. However, it is settled law that mere conjectures and suspicions, however strong they may be, cannot conclusively lead to a conviction of an accused person. That is not all. While PWl testified to the effect that on the table next to where the deceased's body lay were a stone and a knife "stained with blood", in her evidence PWS equally states that she recovered a "knife stained with blood" from the appellant's bag in his room. If this version is to be believed, then there should have been two knives used in committing the offence. That piece of evidence was not conclusively established in the course of trial. Therefore the evidence of PWl and PWS should have been taken with circumspect and any contradictions interpreted in favour of the accused/appellant. Yet another issue that we have considered is whether the chain in the circumstantial evidence that the trial court relied upon in arriving at its conclusion, was unbroken. A settled position of the law on this point is that when circumstantial evidence is relied upon, there should be no other co-existing circumstances which would weaken or destroy the inference. Further, the evidence must establish that the inculpatory facts were capable of no other interpretation than that of the appellant's guilty of the offence 9 charged (see Shabani Abdallah V. Republic, Criminal. Appeal No. I I 127 of 2003 (unreported)). Ii i ' The sequence of events in this case, las narrated earlier, seem to point out a chain of events:- 1 • That the appellant and the beceased were the only people were lived in thJt house. • That on the fateful day, the body of the I , I deceased was found laying jin a pool of blood, dead. Ii • Next to the body there were,ia knife and a stone 11 !I , that may have been used in killing the I! 11 I deceased. if 11 I • That the appellant was foun~ in the same house l I 1 - which was locked from insi de and that he •did ., 'I not want to open it upon being called from 11 I 1 outside by PW1, his relative. • That breaking the rear door ~nd people entering !I I i ' the said house, the appellant threatened the 'I ;I entrants with a panga. I 10 • That upon searching his ro0m where he had 1 I been hiding, another knife, $tained with blood, was retrieved from the appellant's bag. I I • That the deceased was foun~ with a wound Ion Ii his head and cut wounds dn his hands. !! The I said wounds were described in the postmortem I report as being the causes bf his death due to 1: haemorrage. I Eventually, the appellant faulted t,e trial court's decision based on the above. ! We have, hereinabove, expungedli the cautioned ~tatement of Ii the appellant for reasons shown. We have, as well, raised serious II I I I doubts as to whether there were one or !two knives used in the brutal I I murder of the deceased, if at all they w~re. We have also noted the lack of evidence proving that the sto~e or stones found near the I body of the deceased were used to ca~se the head injury. Equally I 1: notable we have restated the law that mere suspicion, however II I grave, cannot be conclusive evidence td ground a conviction against I II I an accused person particularly in cas~s where direct evidence is lacking. 11 i The foregoing observations take~ in their totality, leave 1, I . I qf the appellant in the death 11 reasonable doubts as to the involvement 1, ,i : of Enock Adrew. Therefore the chain of circumstantial evidence is !I I I: broken, hence making it unsafe to relX upon it in convicting the 11 i I appellant of this serious offence. We arie of the firm view that the 11 Ii trial court ought to have arrived at simila~ conclusions. 11 I: i I . Therefore all the above considered) we allow the appeal, quash 1[ I Ii the conviction and set aside the sentenq,e imposed on the appellant. I I We further order that unless the said appellant is lawfully detained, I I !' he should be set free forthwith. 1i 11 DATED at MTWARA this day of 2Vth June, 2012. I ,I/ M.C.OTHM~N CHIEF JUSTICE I M.S.MBAROUK JUSTICE OF ARPEAL MBUYA R. ~- DEPUTY REGISTRAR 11 12