20120709 TZCA Tanga

. I IN THE COURT. OF APPEAL OF TANZANIA . I ATTANGA (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And- MANDIA, l.A.) CRIMINAL .APPEAL NO. 329 OF 2009 JU-MANNE HAMIS @ UP.EPO ...........-. ....................................·..... ~ ........ APPELLANT VERSUS THE REPUBLIC .............................. ~ ................................... ~···· ....... RESPOND_ENT (Appeal from the judgment of the High Court 1f Tanzania at Tanga) · (Mussa, J.) dated 28th September, 2009 in Criminal Sessions Case No.12 of 2008 .......•••.•••••••... JUDGMENT OF THE COURT 5th & 9th July, 2012 KIMARO, J.A.: The appellant was charged and convicted of murder contrary to section 196 of the Penal Code, [CAP 16 R.E.2002]. He was alleged to have intentionally killed Zaina d/o Athuman @ Sangaiya on the 2nd day of March, 2006. The facts that led to the charge against the appellant are fairly simple. On the fateful day the appellant and the deceased returned home together from a drinking ''pombe" pub. The deceased carried with her a bottle of beer and the • I appellant a bottle of ''gongo." They returned at about 8.09 p.m. The deceased and the appellant were lovers and they wer~ living together in a house belonging 1 to the sister of the deceased. The house was a three roomed house with the entrance door at the living room. The deceased ·and the appellant lived in one room and the other room was occupied by Mhina Mtembene (PW1). ' ,._., Recounting to the trial· court the events that preceded the death of the deceased,_ PW1 said as soon as the appellant and the deceased returned home, they went straight to their room. Soon thereafter, they received a visitor known 1 by the name of Masomo Mtui ·@ fagilia. It was the appellant who opened the door for him and in that very moment a fight ensued between the two for reasons unknown to PWl. The appellant took a stool and hit Fagilia with it. Luckily, PW1 succeeded to separate the appellant and. Fagilia, and led Fag ilia out of the room and eventually out of the premises. The appellant and the deceased continued to drink while PWl retired to bed. He said he did not hear any quarrel between the' appellant and the deceased apart from normal conversation and laughter. The next time PWl saw the appellant was in the night at about 2.00 am as he returned from answering the call of nature. He met the appellant , going to the same place for the same purp~~e. The evidence on how the death of the deceased was discovered came from Hadija Omari (PW3). She was the mother of the deceased. She said on the morning of that day, apart from performing. a normal morning routine work of knowing the health condition of her daughter before indulging on ·her ''shamba'' duties, she also wanted to ferry ·from her room kitchen utensils she used to serve the deceased and the appellant food on the previous day. Moved QY this intention, PWl went to the house at 6.00 am and found the front door still locked. She tried to call the deceased from the window of the room, she got no response.· 2 ,.I I . . I 1 .· :' Thinking that it c;ould be too early, PW3 decided to g'o .and engage ·in other f work before she returned again at 7.00 am for t;he same. purpose. This time she found the front door ajar .. · When she knocked at the room of the deceased, the appellant opened the door. As PW';, enquired a~out the deceased, the appellant replied that she was not around. PW3 requ_ired the appellant to give her the kitchen utensils· and quite unexpected, the appellant just· threw the utensils at the door and left the premises. It was then PW3 gained access into the room and found out that her daughter was dead. The infor(nation rE;:!lating to the death of the deceased was circulated to relatives and the police. Among the · relatives who gathered at the scene of crime was Hamisi Waziri Sanyo (PW2), the brother of the deceased. This witness also led evidence that the appellant and ,the deceased were always on quarrels. H~ recalled that the appellant was in the year 2004/2005 charged with the offence of attempting to strangle the deceased. He was later released because the deceased decided to withdraw the charges. · Doctor Ambonea Yonaza (PW4) performe~ the' autopsy on the body of the deceased. He said he noted a thread of blackish bruise caused by a rope running all round. the deceased's neck, and the neck was freely rotating. The deceased's hyoid and cervical bones were fractured. As to what caused the fracture, the doctor said the hyoid and cervical bones were fractured in the I [. course of strangulation and the death resulted from asphyxia which was ,, j secondary to strangulation. The post mortem examination report was admitted '· I :I in evidence as exhibit P2. ' In his defence the appellant did not dispute that the deceased was his lover and on the date she met her death they drunk together and slept together in the same room. Also admitted by the appellant was the fact that he had a fight with Fagilia. He also admitted having knowledge of the death of the . 3 I deceased when he told PW 3 lies that the deceased had left while she was in the J? .,,.' mom dead. He also admitted running away and being arrested eight days later / in another village. However, he denied having caused the death of the deceased. Although he said he noted that the deceased was dead during the night when he called her but received no response from the deceased, he suspected Fagilia to be the murd~rer. He said because they were very drunk during that ·night, they did not lock the door of the!r room. He said the swrroundings of the premise? were such that they would allow any. person to gain access into the room through the back· door that led to the pit latrine which was located outside the house, and the house had a grass fence which allowed easy access to the house. With that evidence the learned trial judge found that the appellant was responsible for the death of the appellant and the killing was intentional. He took five factors into consideration. First, the deceased died a violent death. Second, on the fateful day, the deceased was throughout in the company of the appell_ant. Third, much as the appellant k~~w of the death of t~e deceased he chose not to tell anybody. ·Four, the appellant deliberately told PW3 that _the deceased had gone out, while he knew that,she was lying in the room dead. Five, was the rude manner in which he delivered the utensils to PW3 and at the same time ran away from the scene of crime. The learned trial judge said the totality of those factors amounted to pointing an accusing finger to the appellant that it was him and not anybody else who strangled the deceased to death. Regarding the defence of the appellant, the learned judge was of a strong view that the appellant did not manage to cast doubt on the prosecution evidence that it was somebody else and not him who committed the murder. The appellant was then convicted and sentenced to suffer death by hanging. 4 · _; Aggrieved by the conviction and the· sentence, the appellant, through · · services· of Mr. Alfred Josephat Akaro, learned advocate, filed two grounds of · • I , appeal challenging the decision of the High Court._ His grounds are as follows:- 1. "That the learned trial Judge erred in fact by cap(talizing ::, on the conduct of the appellant after the death , of the deceased as a major factor that the deceased was killed by . I the appellant, without at all or sufficiently considering the conduct of the appellant prior to daybreak of the fateful night. 2. That the learned trial Judge erred in law and fact, for not considering. that there was opportunity for and the possibility of another person besides the appellant 'to have I killed the deceased " ' During the hearing of the appeal, the appellant was represented by Mr. Akaro, learned Advocate. For the respondent /Republic, they enjoyed services of Mr. ·Joseph Sebastian Pande, _learned Senior State Attorney. · In arguing the • i appeal, the learned advocate for the appellant combined the two grounds and argued them together. The main grievance of the appellant wa 9 that the learned trial Judge addressed only the conduct of the appellant after the death of the deceased. In his opinion there were matters which needed to be considered but I they were ignored by the learned trial judge. Taking for instance the evidence of PWl, said the learned advocate, his evid~nce was that fr,om the time ~he appellant and the deceased returned home, until when they retired to bed, there was no quarrel between them. According to the learned advocate, this was a 1' I: matter which needed consideration by the learned trial Judge. , However, he did not do that. The learned advocate submitted further that it is in evidence that 5 I; . appellant knew of the death of the deceased at 4.00, am. If the appellant was· the one who killed the deceased, he could have run··away. Instead, the appellant decided to stay behind. Looking at the surroundrngs of the house, the learned · advocate said, they did not eliminate the pos5-ibility of somebody else gaining . access to the house and committing the offence. He said the room had no lock. The fence was a gr9ss fence hence making access to· the house easy. The · learned advocate also referred to the defence of the appellant that he was . suspicious that Fagilia could have committed th~ r:nurder because they fought with the appellant as the appellant had suspected that the deceased had love affairs with Fagilia. The learned advocate said the appellant should not be held responsible solely because of his conduct. It is a known fact that people react to similar situations differently and that is human behaviour. He prayed that the appeal be allowed. On h!s part the learned Senior State Attorney contested the appeal. He ,,. supported the conviction of the appellant. He said from the circumstantial evidence that was made available by the. prosecution, the cond~ct of the appellant led irresistibly to him as the only killer and not anybody else. He supported his submission by the cases of Kobello Mwaha v. R. Criminal Appeal No. 173 of 2008 (unreported) and Chandrakant loshubhai Patel v. R. Criminal Appeal No. 13 of 1998 (unreported). The learned Senior State Attorney for the respondent agreed with the learned .trial judge that the five reasons he gave to convict the appellant are supported by the evidence and they point an accusing finger only to the appellant, ruling out the possibility of any other person being the killer. Regarding the conduct of the appellant before, the learned Seni9r State Attorney said there was . no evidence to show that the appellant and the deceased were very drunk. Moreover, there was evidence that they used to drink. Given the manner in which the death was committed, 6 contended the learned Senior State Attorney, it was not necessary to have fracas. He prayed that the appeal be dismissed. As stated before, the facts of the case ai-e not compHcated.- The appellant did not dispute that the deceased died while they were sleepi'ng together in the r6om.. The report of the doctor, exhibit P2 showed that the deceased died of asphyxia secondary to strangulation. From the evidence th~t was led by the prosecution, it is apparent that the deceased died a violent death. She died from asphyxia. Her hyoid and cervical bones· were fractured. At page 14 of the record of appeal, when answering a question from the third assessor, the ·doctor said the deceased was strangulated by using a rope. Howeve~, there was no eye . . witness when the deceased suffered the injuries that led to her death. Therefore, the evidence linking the appellant with the death· of the deceased is purely circumstantial. In the case of Kibelo Mwana v. R. '(supra) the Court I reiterated the principle of law applicable in cases· depending .on circumstantial • I evidence as propounded in the case of Simon Musoke v. Rr (1958) EA 715 at page 718, that: "...In a. case depending conclusively upon circumstantial I evidence, the court must before deciding , upon a conviction, find that the exculpatory facts are incompatible with the innocence of the accused and incapable of I explanation upon any other reasonable hypothesis than I that of guilty. r/ I Similar views were also expressed by the Court in the case of I Chandrakant Joshubhai Patel v. R. (supra) where the C,ourt held that:- 7 11 What has to be emphasizect however, is that the alternative possibility must not be fanciful. It must be plausible. Doubt about tfle guilt of an accused can count only if such doubt is reasonable. The circumstances must also be looked at, and considered, in their totality. "(Emphasis added). Before us the learned advocate for the appellant agreed that the evidence on record supported all the reasons which the learned trial judge relied upon to convict the appellant. His complaint was that the learned trial judge did not consider the conduct of the appellant prior to the commission of the offence. The conduct he had reference to is. that the appellant and the deceased had no quarrel until they retired to bed and PWl saic! he did not hear any fracas taking place between the two at any time. He also wondered why the trial court brushed aside the possibility that the. deceased was killed by Fagilia, because the surroundings of the house did not eliminate the possibility of him gaining access to the house and committing the murder. · With respect to the learned advocate for the appellant, we do not think that the prosecution evidence supports him. It is true that PWl said he did not hear any fracas taking place in the room. But that does not eliminate the possibility of the appellant being the murderer.·. In the case Hamidu Mussa Thimoteo and another V R [1993] T.L.R. 125 the Court sustained a conviction for murder on the reason that: "The chain of circumstantial evidence linking the appellants to the death of their father is unbroken and therefore leads to no other conclusion but 8 1 • that the appellants were responsible to th~ . I death of their father;" PW3 said when she went to the house in the morning at 6.00 am the door to the main house was not opened. It was when she went to the house later at 7.00 am that she found the door ajar. As she knocked c;)t the door of the deceased's room which she shared with the appellant, it was . I the appellant who opened it. The appellant while knowing that Zaina, was ·no longer alive, he • I reported to PW3 that she left while he knew that she was lying in the room, '' dead. The question we ask is what prompted the appellant to tell ·1ies to such a i serious matter? To make matters worse,. when PW3 requested for her kitchen I utensils which she had used to serve food, the appellant rudely threw the utensils at the door and ran away. PW3 was the mother in law of the appellant. She was the mother of the deceased. Surely, such behaviour is inconsistent vyith a person who acted with no ill motive under the circumstances. The appellant was the only person who slept in the room with the deceased during that night. . The deceased did not die a natural death. She was strangulated. The appellant knew dur.ing that same night that the deceased was dead. He said during the night he called her and she did not respond.: Upon touching her he knew that she was dead. Instead of the appellant report;ing that information to the 1deceased's mother, he lied to her that that the decepsed left the house. We do not think that death is· something a reasonable person I can take lightly and hide it. In the case of Magendo Paul and Another; v. R. [1993] T.LR. 219, the appellants were ordered by the village secretary to guard the deceased i who was in the lock up for allegations of committing an offence. He was later found hanging by the neck from a piece of cloth. The report of the doctor I showed that the cause of death was ''peripherc1I circulatory failure caused by I bleeding and severe pain after perforation of the eye by a sharp weapon. " The 9 doctor rejected that the deceased _died of any other cause. In sustaining the ' • ... conviction of murder the Court held that:- "The circumstantial· evidence irresistibly pointed to the appellants as the people who perforated· the deceased's eyes, in doing so they clearly · intended at the very least, to cause him grievous I harm. If the evidence is so strong against an accused as to leave only a remote possibility in · his favour, which can ·be easily dismissed, the case is proved beyond reasonable doubt " In this appeal the circumstances as they have been demonstrated . ·• hereinabove, do not show that there was any other person, other that the appellant who could have caused the death of the deceased. We find the appeal has no merit and we dismiss it fn its entirety. DATED at TANGA this 9th day of July, 20~2. E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OFAPPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the origip~I. ~ . Ci:_~ ·~~ - DEPUTY REGISTRA COURT OF APPEAL 10 ;i ... ,· --~j