20120626 TZCA Mtwara

IN THE COURT OF APPEAL OF TANZANIA ATMTWARA CRIMINAL APPEAL NO. 206 OF 2010 (CORAM: OTHMAN, C.J., MBAROUK, J.A., And BWANA, J.A.) , , SWALEHE WADI SALUM .....................................................APPELLA.NT VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara) {Mipawa. J.) dated the 29 th day of June, 2010 in Criminal Sessions Case No. 16 of 2006 JUDGMENT OF THE COURT 21 st & 29th June, 2012 BWANA, J.A: The appellant was arraigned before the High Court of Tanzania at Mtwara for the offence of Murder contrary to section 196 of the Penal Code. He was convicted of the offence and sentenced to suffer a mandatory sentence of death by hanging. Aggrieved by the conviction and sentence he preferred this appeal, a constitutional right. 1 r The trial court relied heavily on the evidence of Hidaya Rajabu, PWl, a sister of the deceased, who claimed to be present at the scene of the murder of her elder brother. She said she was in the company of her husband and a mob of people. The said husband, however, was not called to testify. Of course, we are aware of the provisions of Section 143 of the Tanzania Evidence Act, which gives the prosecution discretion in so far as what kind of prosecution witnesses or their number, to call. The other· prosecution witness called was E. 1126 D/C Dangson, PW2 a police investigation officer. He carried out investigations and drew up a sketch map of the scene of crime. The appellant gave his defence evidence on oath and called two defence witnesses in support of his case. All assessors to the trial opined that the appellant was not guilty of the offence and further, that the deceased, Twalib Rajabu, may have been killed by the mob, following allegations of being caught red handed stealing a head of a sewing machine from the appellant's house, that fateful night. 2 Briefly stated, the facts of the case as discerned from the record are as follows: On the fateful night, that is, the 5th day of November, 2004 around midnight, the appellant in the company of his wife, Mwanahawa Makwinya, DW2, came back home from a video show only to find the door to their house ajar. They had locked it when they left for the show. Before they could realize what happened, someone came from inside the house running. That person was holding something which the appellant and his wife later came to realise that it was a head of their sewing machine. That "someone" had burgled their house. The appellant raised an alarm of "thief, thief". That alarm received a positive response from the people who were coming from the video show and who rushed to the scene. But particularly worth nothing is that PWl, together with her husband who were in their house sleeping, heard about it and went to the scene as well. They were neighbours of the appellant. Both PWl and her husband reached the scene of crime within a short time and it was PWl's evidence that upon arriving at the scene of the crime, she saw her brother, the deceased, apprehended by the appellant. The deceased 3 was arguing with the appellant as to why he called him thief when he had not stolen anything. After a while, so it was stated, a young man called Matamba, came forward and cut Twalib Rajabu, the deceased, with a "panga" from the back of his head, wounding him. Twalib fell down and · Matamba ran away, disappearing in the thick darkness of the night time. There is no evidence that Twalib stood up again after that hit. What followed then is tantalizing. It was PWl's evidence that after Twalib had fallen down, she saw the appellant stab him in the stomach region using a knife, twisting it. There was no response, in the form of movements or complaints from Twalib, an indication that he may have died already. Then the appellant is said to have set Twalib's body on fire, using dry grass that was collected from his (the appellant's) latrine, and that from a neighbour's house, some distance away. While carrying out his investigations, PW2 recovered certain items from the scene of crime. In addition to the remains of the deceased, he recovered also the head of the sewing machine which was allegedly stolen from the appellant's house, a knife, allegedly 4 used to stab the deceased, a hat, a match box allegedly used to light up the deceased's body, and one sandle. The deceased's body was burnt down. The appellant denied to have committed the offence. His wife. DW2, was supportive of the appellant's averment. Before us, the appellant was represented by Mr. Michael Ngalo, learned counsel, while the respondent Republic was represented by Mr. Peter Ndjike, learned Senior State Attorney. The prosecution case as rightly observed by both Mr Ngalo and Mr. Ndjike, hinges on the evidence of PWl, a witness said to have witnessed the whole episode from the time the deceased was being apprehended by the appellant, well to the time of being cut by Matamba causing the deceased to fall down. She is also said to have witnessed the deceased being stabbed by the appellant and setting him on fire. All this time the said PWl was watching, leaning at the house of the appellant, about five meters away from where the deceased, her elder brother, was being torchered and eventually succumbed to death, yes, a terrible ending. When asked as to why she took no action she simply stated that although she was terribly 5 hurt "inside", she took no action because she was afraid the appellant had weapons, apparently the alleged knife and a "panga". All three assessors at the trial took her evidence with circumspect questioning such things as if she were at all present within such a short distance why did she fail to take action expected of a human being that sees her brother being brutally killed. Again, given all the time that the appellant took, allegedly getting the head of the sewing machine from inside his house, twice collecting grass from houses to come and set up fire on the body of the deceased and the like, bearing in mind again, that the deceased was her elder brother, why did she not take steps to rescue him. However, the trial judge believed PWl to be a direct, reliable and firm witness. Her credibility and demeanour were positive. It should be noted further that the trial judge believed PWl because it was said that she was related to the appellant as well. Whether or not we should look afresh at the credibility of PWl, the law on this point was well considered by this Court in the case of Patric Jeremiah V. The Republic, Criminal Appeal No. 34 of 2006 (unreported) wherein it was held:- 6 '~n appellate court on appeal ... should not lightly differ from a finding of the trial Judge on a question of fad. But distinction in this respect must be drawn between the perception of facts and the evaluation of facts. Where there is no question of credibility of a witness, but the sole question is the proper inference to be drawn from specific facts, an appellate court is in good a position to evaluate the evidence as the trial . ,A ,, 1u<.1ge .... Likewise, in Deemay Daati and Two Others V. The Republic (2005) TLR 132, where the issue was whether a first appellate court can make fresh evaluation of evidence and come to its own conclusion at the same time varying the trial court's findings, it was held:- 11/t is common knowledge that where there is a misdirection or non direction on the evidence of the lower court has misapprehended the substance, the nature 7 and the quality of the evidence, an appellate court is entitled to look at the evidence and make its own finding of fact'~ (See also Mdizu Nuasa V. Masisa Magasha (1999) TLR 202; Mwasuma Mbegu V. Kitwana Amani, (2004) TLR 410; Makuru lumanned and Another V. Republic, Criminal Appeal No. 117 of 2005; Patric Jeremiah V. Republic, Criminal Appeal No. 34 of 2006 (both unreported)). Given the special circumstances surrounding this matter and being a first appellate court, we are of the considered view that we are entitled to look at the evidence, particularly that of PWl, and make our own finding of fact. There are several reasons that have led us to hold so. They include the following:- • PWl, a sister of the deceased, may have not revealed the whole truth. We are in agreement with the learned assessors on this issue. A look at some of her statements may help to show what we mean. 8 • PWl stated in her evidence that there was "bright moonlight" that night. However, Mohamedi Zuberi, DW3, a Ten Cell Leader, stated that it was totally dark as there was no moonlight, there were clouds and it had rained that night. The issue of whether there was sufficient light to enable PWl see all these sequence of events, is, in our opinion, very material. Not only that. It could as well help to establish whether the conditions were favourable or not for purposes of identification. That important issue was not considered by the trial court. • Again, according to .PWl, she was standing about five meters away from where the deceased's body had fallen. But according to the sketch map of the scene of crime, as prepared by PW2, the distance between the two places is given as 15 meters. If the latter version is to be considered more accurate, a 9 glaring question then is: could have PW1 seen Matamba hitting the deceased and or the appellant stabbing and twisting the knife inside the deceased's body? This is particularly important to establish if we are to consider her other version of evidence that the said hitting and stabbing took place before the deceased's body was set on fire, so as to provide the only likely light at the scene that night . • The other issue and a pertinent one, is whether other people (the mob) may have participated in the killing and setting on fire the deceased. This seems to be the defence version of the sequence of events. But according to PW1 there were no other people who inflicted the fatal blows to the deceased. However, all the three defence witnesses claim that the incident occurred when people were coming from a video show; and that upon an alarm being raised, some of them rushed to the scene. These are the people heard by DW3, the Ten Cell Leader, shouting 10 "thief, thief, some saying no, no, no it is a lie, a lie". And many more ,. likely contradictions may be said to exist between what was uttered by PWl and that of the defence witnesses. In situations of this kind corroboration of PWl's evidence was required. There is none. So, the trial judge ought to have taken her evidence, as the assessors did, with great caution. Had he done so, no doubt, he would have realized these pertinent contradictions in the evidence of PWl and either sought corroboration or adopted what was stated in the case of Abdalla leje @ Mchima Mahula V. Republic, Criminal Appeal No. 195 of 2007 (unreported) thus:- ".. .in law, where there are two possible views on the evidence/ one pointing to the guilty of the accused person and the other to his innocence, a court of law must adopt the one favourable to the accused person. .. " We subscribe to the foregoing views and proceed to adopt them in this appeal. Our assessment of the evidence as presented before the trial court needed, as we have shown above, 11 ... , corroboration, if the appellant were to be convicted basing on PW1's evidence alone. In the absence of that corroboration, then it was unsafe to convict the appellant. We do therefore allow this appeal, quash the conviction and set aside the sentence imposed by the trial court. We order that unless the appellant is otherwise lawfully held, he be set free forthwith. DATED at MTWARA this day of 26th June, 2012. M.C.OTHMAN CHIEF JUSTICE M.S.MBAROUK JUSTICE OF APPEAL MBUYA R. M. DEPUTY REGISTRAR 12 J