20131120 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA. AT ARUSHA CORAM: KIMARO,J.A., LUANDA, J.A., And MMILLA, J.A. CRIMINAL APPEAL NO. 242 OF 2010 ARMAND GUEHI .....................................................APPELLANT VERSUS THE REPUBLIC ...................................................... RES PON DENT (Appeal from the judgment of the High Court of Tanzania at Moshi.) (M. G. Mzuna, J.) Dated 30th March, 2010 in Criminal Sessions Case No. 40 of 2007 . .................. JUDGMENT OF THE COURT 20th November, 2013 & ..... .•. 2014 MMILLA, J.A.: The appellant, Armand Guehi is contesting the judgment of the High Court of Tanzania in Moshi Criminal Sessions Case No. 40 of 2007. Before that court, he was charged with and convicted of murder c/s 196 of the Penal Code Cap. 16 of the Revised Edition, 2002 on allegation that he murdered his wife, Angele d/o Kassia Sama. He was condemned to suffer death by hanging. The appeal is against both conviction and sentence. The brief background facts of the case were that, the appellant and deceased, both of whom were Ivorian nationals, were husband and wife. They first met in Abidjan in Ivory Coast in 2003. With time, they cultivated 1 j ,i r.: ' -- f JJ ( I 1. a1sguaintance which warmed up into a love relationship. Later on, the . , -""-', deceased relocated to Arusha here in Tanzania upon securing a job with International Criminal Tribunal for Rwanda (I.C.T.R.) which is under United Nations, at which she was a bilingual secretary in the Witnesses and Support Section. The appellant remained in Abidjan where he then worked with Ogilvy Abidjan Co. Ltd, but their friendship continued. At a certain point, the two discussed about getting married and be established in Arusha for which the appellant was to forego his employment and stay with the deceased. Following that discussion, the appellant came to Tanzania for the first time in January, 2004 and spent his holiday with his fiancee. He stayed with her for three weeks after which he returned to Abidjan in Ivory Coast. A couple of months later, the deceased followed the appellant in Abidjan, and on 22 .4. 2004 the two married. The appellant resigned from his employment with Ogilvy Abidjan Co. Ltd. On 01.05.2004 he came back to Arusha and joined the deceased who was then living with her six (6) year old son known as Yan. That marked the beginning of their life together as husband and wife. The couple succeeded to secure a vacancy at I.C.T.R. at which the appellant was attached as an intern. Save for the first few months after the marriage, the couple's relationship was said to have been unstable; having it been marred with constant quarrels, and that the appellant used to beat the deceased. The last such beating happened one and a half months before the occurrence of the charged offence. The deceased reported that incident to the police vide police case file Arusha/AB/10370/2005 (Exh.P1) after which she went to AAR Healthy Centre for treatment. Following that incident, the deceased left the appellant and stayed with her friend one Felicia Madigane for some days before they 2 / .; \;---r t ..... 'were 'reconciled and returned home. The appellant was not charged as the ' '-..._ matter was resolved amicably. Onl.10.2005, which was only 3 or 4 days before Angele Kassia Sama met her ultimate death, the appellant was alleged to have burnt deceased's mobile phone in a micro wave, an incident which was witnessed and testified to by PW2 Dora Simon Tarimo who was their house maid. On the facts; one of the reasons for their constant quarrels was that the appellant had an extra marital affair with a woman known as Rosalie who was living in Ivory Coast. Some messages were extracted from the farmer's e-mail address concerning his promise to Rosalie that he was hers and Angele knew of that, also that nothing was going to prevent him from going back to her. On 4.10.2005, the deceased and the appellant left for work at around 8:00 a.m. leaving PW2 at home. They left with their Toyota RAV 4 Reg. No. T 258 CD 596 being driven by the appellant. It was alleged that the deceased had earlier on been directed by her in-charge one Sylvie Lihon Becky (PW10) to send$ 600 to one Erick Becky who was in South Africa by wire transfer, but that she was surprised at about 10.00 hours to find that the deceased had not yet reported at the office which was unusual. PW10 phoned the deceased but her phone was received by a person speaking Kiswahili. Upon that, she asked one Chiku Tamambele (PW8) whether the deceased had reported at the office. Chiku tried to call the deceased but was told by Dorah Tarimo that the deceased had not returned home since she left for work early in the morning with her husband. At 13.30 hours PW8 called again, but this time the deceased's phone was answered by the appellant who told her that he did not know the 3 ... whereabouts of his wife, and that could be she was at the office. It was ' alleged however, that then he had seized the deceased's identity card which also served as access key to her office without which she could not gain entry. The appellant was alleged to have returned home with a taxi at about 13.00 hours and stayed for a while before he left with the same taxi. He returned home at around 16.00 hours and left again within a short while. He allegedly returned home after a short moment and remained home until the next morning. Meanwhile, on finding after her return from lunch that Angele was still missing, PWl0 informed her workmates and instructed Charles Dickens Karumo (PW9) to report the matter to the Security and Safety Section for follow-up. On 05.10.2005 at 8.00 hours, the appellant exchanged his mobile phone with that of their house maid. He left and returned home at 14.00 hours. Thereafter, he was alleged to have remained home throughout, but the deceased was still missing. On that same day, while crying, the appellant phoned Sylvie and told her that he was worried because he did not know what was going to happen to him after his wife's disappearance. He however, asked her to take care of Yan, in case of anything. Yet again, on that same day, that is 5.10.2005, three watchmen namely Togolai Herman Mshihiri (PWl), Songalaeli John Mlimi and Hamisi Ramadhani Mlangi discovered the deceased's body with only an underwear lying face down in a flower farm at Mkufi Estate at Bomang'ombe area in Hai District. They reported the incident to the police and the OC CID, ASP Mkuchu (PWll) and a couple of other police officers went to the scene and found the said body. It was also alleged that PWll and his team found skid tyre marks of a 4 . motor vehicle at that area, and that the motor vehicle seemed to have ' knocked a plunk. Also found at the scene were one pair of ladies shoes purple ·in colour, a ripped skirt, a wrist watch, two rings, spectacles and a broken indicator of a motor vehicle. The police took the deceased's body to Mawenzi Regional Hospital at Moshi. On the other hand, the deceased's motor vehicle, Toyota RAV 4 Reg. No.T258 CD 596 was on 4. 10. 2005 found by the Airport guards parked at Kilimanjaro International Airport (KIA). On 05.10.2005, the I.C.T.R Operation Officer, Charles Dickens Karumo went to KIA and found the said car with one of its indicators broken. On 09.10.2005, a team of I.C.T.R workers went to K.C.M.C hospital to which the body was taken for preservation and medical examination. They identified the body to be that of their fellow employee. Since the prosecution held the view that the appellant was the last person seen with the deceased alive, he was formally arrested for questioning. In his defence, the appellant denied the allegation that he committed the alleged crime. While he admitted that he and his wife left together for work in their motor vehicle on the morning of 4.10.2005, he nevertheless said they parted ways at Impala Hotel area after an argument before they reached their office. Apart from rebutting the prosecution allegation that he was the last person seen with the deceased alive, the appellant contended that there was no cogent evidence to establish that Angele Kessia Sama was dead. However, upon their belief that he did not give plausible explanation on how he parted with her, the police arrested and charged him with the offence of murder as it were. As aforesaid, the trial court found that the prosecution had proved the case against him beyond reasonable doubt and convicted him, hence the present appeal. 5 . 'Before this Court the appellant, who was also present in Court, was ' represented by Mr. Nelson Merinyo and Mr. Elvaison Maro, learned advocates. On the other hand, the respondent/Republic was represented by Mr. Abdalla Chavula, learned Senior State Attorney. His standpoint was clear that he was supporting the appeal. At the commencement of the hearing, Mr. Merinyo prayed the Court to adopt and allow them to expound on the memorandum of appeal filed by the appellant on 6.3.2012. They singled out grounds 19 and 20 on procedural defects; and grounds 13 and 14 on matters of evidence. While Mr. Merinyo tackled grounds 19 and 20, Mr. Maro conversed grounds 13 and 14. To begin with, Mr. Merinyo submitted that the targeted procedural defects hinge on admissibility and reliability of the Post Mortem Report (PMR) which was purportedly marked exhibit P3. In their view, there are three such procedural defects which make that medical document bad evidence in the case. The first procedural defect cited is that it was the State Attorney who said the PMR was tendered as exhibit P3, and that after the appellant's advocate's response that he had no objection; the trial court did not proceed to admit it as such. Mr. Merinyo submitted therefore, that that was irregular because the practice is that no document is supposed to go into the court record without court's order. The second defect is that after the purport that it was admitted as evidence, the said document was not read over and explained to the appellant as envisaged under section 192 (3) of the Criminal Procedure Act Cap 20 of the Revised Edition, 2002 (the CPA). The essence of their complaint in this 6 regard was that, as reflected on page 7 of the appeal record, the trial court merely said "the undisputed facts are read over and explained to the accused who is asked to sign herein below if he does not object to them," but it did not go a step further to explain what exhibit P3 implied so as to afford the appellant opportunity to know its contents. He referred the Court to the case of Amani Juma v. Republic, Criminal Appeal No. 303 of 2008, CAT, Arusha Registry (unreported). In elaboration, Mr. Merinyo stressed that in the just cited case, the Court expunged from the record the said exhibit for the reason that its contents were not read to the appellant. He urged this Court in this case to do the same. The third defect cited by Mr. Merinyo is that in accepting that exhibit, the trial court did not comply with the provisions of section 291 (3) of the CPA which directs that the court has a duty to inform the accused against whom a medical document is sought to be tendered as evidence, the right to elect on whether or not he/she may wish the doctor connected to the making of that document to be called to testify. Mr. Merinyo referred the Court to the same case of Amani Juma v. Republic (supra) in which at page 13 of that judgment the Court said that the consequences of non-compliance with section 291 (3) of the CPA are similar to those for non-compliance with section 240 (3) of the same Act applicable in the subordinate courts. He concluded that in that case the exhibit was expunged from the record. To wrap up his submission on the point, Mr. Merinyo argued that in their view, if that document will be expunged from the record for reasons advanced, then the cause of death and identity of the deceased in this case will not have been proved. That will entail that, he added, the appellant before 7 this Court did not commit the charged crime. He pressed the Court to allow grounds 19 and 20 of the appeal. In response to the submission of Mr. Merinyo on those two grounds, Mr. Abda'lla Chavula was prompt that he shared the views of the other side that the said document did not constitute valid evidence because of the irregularities they cited. Apart from his observation that it was the State Attorney who said on page 6 of the record that he was tendering the PMR as exhibit P3, Mr. Chavula contended that nowhere in the court record was it shown that the said document was ever admitted as an exhibit. He supported Mr. Merinyo's point that as a matter of practice, in order to constitute valid evidence in the case, every document must be tendered and admitted by the court as exhibit, which he said, was not the situation in the present case. He rationalised that since it was admitted during preliminary hearing that would, in terms of section 192 (4) of the CPA, mean that its contents would be deemed to be proven, and that no further proof would be required to prove the point to which the exhibit relates. He submitted further that because the said exhibit was never admitted as evidence in court, it could not be said that the cause of death and identity of the deceased's body was proven or made. While aware that cause of death or identity of a dead body may be done by other evidence other than exhibit P3, Mr. Chavula was quick to add that going through the court record in the instant case, he shared the view of Mr. Merinyo that given the contradictions of the prosecution witnesses, it cannot be said that there was other such evidence. He urged the Court to allow grounds 19 and 20 of appeal. We have carefully gone through the proceedings of the trial court and considered the able submissions of counsel for both sides before us. It is 8 incontrovertible that exhibit P3 was not recorded as having been admitted by the trial court. Ipso facto, that was an error. We share the views of counsel for both the appellant and the respondent/Republic, and indeed it is the principle, that no document is supposed to go into the court record without an order to that effect. In other words, after establishing the evidentiary foundation for its adm_ission as evidence, the trial court record must reflect that the particular exhibit has been admitted, a thing which was actually not done in the present case. We also noted that though the trial court read over the facts of the case to the appellant as contemplated by section 192(3) of the CPA, it did not go a step further to explain what exhibit P3 implied so as to afford him the opportunity to know its contents, hence that it was contrary to this Court's expression in the case of Amani Juma v. Republic (supra). In that case reliance was made on the previous case of MT. Sgt. Benjamin Holela v. Republic [1992] T.L.R. 121 in which it was stated that where the appellant's attention was not drawn to the contents of a document tendered as an exhibit in court under section 192 (3) of the CPA, such failure misapplies the force of section 192 (4) of that same Act where such document would otherwise be deemed to have been proved. The Court went on to hold in Amani Juma v. Republic (supra), relying on the case of Juma Salum Singano v. Republic, Criminal Appeal No. 172 of 2008 (unreported), that the consequence of such breach was to expunge the exhibit from the record. Of similar vein is the contention by the appellant's advocates that the trial court did not comply with the provisions of section 291 (3) of the CPA. Like in the former query, we appreciate the fact that according to that provision, the trial court has duty to inform the accused against whom the 9 particular medical document is sought to be tendered as evidence, the.right to elect on whether he/she wishes the doctor to be called to testify in connection with the intended exhibit. We similarly acknowledge that the record did not show that the trial court informed the appellant of such right. All those considered however, for reasons we are about to assign, we are of the considered view that the three cited irregularities constituted minor defects which did not affect the merits of the case. To begin with, we find that it was a mere oversight by the trial court to have not made an endorsement admitting the said document as an exhibit. This is on the basis of the trend of the proceedings of that court during • preliminary hearing as a whole. Looking at those proceedings, we note that first to be tendered was the Police File Report containing Statements of Angele Kassia Sama and Armand Guehi. Upon the reply by the defence counsel that he had no objection, the trial court endorsed its admission and marked it exhibit Pl (See page 3 of the court record). Next to be tendered were the photographs of the dead body of the deceased snapped at the scene of crime. Again, upon the reply by the defence counsel as reflected on page 5 of the appeal record that they had no objection, the court endorsed their admission and was marked exhibit P2. It is on the basis of this trend, we think, that the learned State Attorney told the Court that the next exhibit which happened to be the PMR was exhibit P3, also that the defence counsel said they had no objection. It is at that moment that the court overlooked to endorse that it was admitting it though it received and labelled it as exhibit P3. In view of the above, we are firm that the omission to make such an endorsement was not a fatal error as it occasioned no injustice to the 10 appe11ant who was represented by an advocate whom we have said responded that he had no objection to its being tendered as evidence. The other complaints in the present case are firstly that the court omitted to read the contents of that document to the appellant as projected by section 192 (3) of the CPA, and secondly that he was not informed of his right under section 291 (3) of the CPA. We are of the strong view that these defects too were not fatal. We will explain. We begin by taking note that at the time the document under consideration was purportedly tendered as evidence, the defence advocate were asked if they had any objection. The record reveals that their response was in the negative (see page 6 of the appeal record). We also note that admissibility of that document was not made one of the matters in dispute. The record shows that the signed memorandum of undisputed facts revealed that the defence did not dispute that Angele Kassia Sama was dead, and that the cause of death was as per the PMR. Given such a situation we pose to ask a question; why would one call a doctor, and for what purpose? It is obvious that circumstances did not dictate the calling of the said doctor. Of similar effect is noncompliance with section 291 (3) of the CPA. On this again, we note that apart from the fact that appellant's advocates told the court that they had no objection for that document to be admitted as evidence, during trial Mr. Ng'imaryo demanded to be given the PMR so that they could cross examine PW11 on that document. That is reflected on page 94 of the appeal record, 3rd paragraph from the top where the proceedings were as follows:- 11 "Mr. Ng'imaryo Advocate: I would like for this witness to be given the post mortem report Court: Exhibit P2 (sic: PJ) is given/shown to PWl 1. " The advocate then continued:- "Mr. Ng'imaryo Advocate: Do you think the body was in the same state during the post mortem as you saw it at Mkufi Estate? PW11: Yes. ... " In our stable view, this shows that the defence side had known the contents of that document, therefore that the risks of that document_working injustice in that respect were to a large extent vouched. We are saying so because ari advocate, being an officer of the Court, has duty to see to it that justice is done to in the case generally and to his client in particular. He was therefore expected to have raised an eyebrow, had he believed that injustice was encroaching, thus giving the court opportunity to provide more protection. We believe that he did not do so because he was not seized of such fear. On account of what we have said in this connection, the case of Amani Juma v. Republic (supra) being relied upon by the defence side is distinguishable to the circumstances of the present case in both; what it said in respect of compliance with section 192 (3) and 291 (3) of the CPA. We therefore conclude on the point that that document was properly relied upon by the trial court. Even where we were to expunge exhibit P3, our conclusion would still be that there was other conceivable evidence to show that Angele Kassia Sama died, and that she died because of the injuries which were inflicted on her by 12 her assailant. Our view is fortified by what this Court said in the case of Joseph Hamisi and another v. Republic, Criminal Appeal No. 13 of 1990, CAT, Mwanza Registry (unreported). In that case the Court said that:- "... We are firmly of the view that where cause of death is not medically established, that is not necessarily fatal to the charge. This is so if there is other cogent evidence, direct or circumstantial, from which to arrive at a conclusion as to the cause of death. " See also the cases of Seif Selemani v. Republic, Criminal Appeal No. 130 of 2005, CAT, Tanga Registry and Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004, CAT (both unreported). In demonstrating that there was other cogent evidence in the circumstances of the present case to show that Angele Kassia Sama was dead, we begin with the evidence of PW4 Aliphonce s/o Van. This witness said on page 35 of the appeal record, 3rd and 4th paragraphs from the top that:- ''/ learnt that the body of Angele was found in Kilimanjaro Region. Silivie Back (sic: Sylvie Becky) called me and wanted to give me further information. I joined the security officers and I came to Moshi. We went at Mortuary at Mawenzi Hospital. I identified the body of Angele. I took the photographs of Angele who had started to expand It was a 6 or so days' body. It was on ~h October, 2005 when I went to Mawenzi. I identified her by face. She was black and beautiful. Even then she was beautiful Her tongue was out. I was together with Mr. Charle Kamimbo who was working in the same section as 13 Angele and other Security Officers whom I know by face. The chief of security was also present. " To follow is the evidence of PW9 who was recorded on page 58, 3rd paragraph from the top to have said that:- ''! went to Mawenzi Hospital. I met a nurse (one) Sia Muro. She took us to the mortuary. She took the body out and we identified her to be that of Angele Sama. I had been a security (officer) for six years. I found nothing new. Her body was decomposing. The tongue was out Her neck was mobile. I identified her by a scar on her lip as one day she came beaten. I noted her hands and legs. She had a kind of a blouse at the bottom. She was covered by kitenge cloth given to her (sic) by Good Samaritan who found her naked, only with an under wear. I took the photographs which I have even now. " The evidence of these two witnesses was positive that they identified the dead body they had chance to view at Mawenzi Hospital at Moshi as having been that of their colleague, Angele Kassia Sama, who had gone missing. While PW4 said he identified her by face, PW9 said he identified her by a scar on her lip as one day she went to her office beaten. He also noted her hands and legs. On the other hand, the identity that the dead body found at Mkufi Estate at Bomang'ombe was that of Angele Kassia Sama came from PW11 who on page 81 of the appeal record said that the articles recovered at the scene of crime included a wrist watch, two rings, spectacles, a broken piece of an 14 indicator of a motor vehicle and a torn skirt. This witness was specific that one of the two rings was written Armand. On the other hand, at page 58 last paragraph over to page 59 first paragraph of the appeal record, PW9 recounted that the materials found at the scene of crime were brought by the Police from where the body was found. They included two rings one of which had the name of Mr. Guehi inside. It follows therefore that because the two rings indubitably bore the names of the couple, there was no doubt that such evidence indicated their relatedness to the body which was found at the scene. In our view, that was sufficient reason to believe that the dead body was that of Angele Kessia Sama. Apart from the evidence of PW9 and PWll on the point, the appellant signed a document allowing repatriation of the dead body found at Mkufi Estate at Bomang'ombe to Ivory Coast for burial. The signing of that document is admitted by him on page 134 of the appeal record, 4th paragraph from the top. This again was evidence that the dead body recovered at Mkufi Estate was none other than that of Angele Kassia Sama. As to the cause of death, we have the evidence of PW9 who testified that the deceased's neck was mobile. So also was the evidence of PWll who on page 95 of the appeal record, second paragraph from the bottom, was recorded to have said that:- "The deceased's neck was mobile suggesting she was strangulated and then her neck broken. The deceased had some bruises on her lips and on the fore head ''paji la uso" .... " 15 .,_ 'On the basis of the evidence of those two witnesses, it can reasonably be inferred that death was caused by damage that was inflicted on her neck, among other reasons. This is the reason why we said that there was other evidence to establish deceased's death and identity. In view thereof, we find and hold that grounds 19 and 20 lack merits and we dismiss them. We now come to grounds 13 and 14 which, as afore-pointed out, have generally addressed gaps in the evidence on which conviction was grounded as discussed by Mr. Maro. While _ground 13 addresses contradictions, ground 14 refers to circumstantial evidence on which conviction was founded. Relying on the principle expounded in the case of Simon Musoke v. R. [1958] E.A. 715 which provides guidance on reliability of circumstantial evidence, Mr. Maro asserted that the chain of circumstantial evidence in the present case did not meet the standard of such evidence as expressed in that case. Besides, he submitted, the said evidence was tainted with serious contradictions making it unsafe to anchor conviction on such evidence. In the premises, the defence invited this Court to fault the judgment of the trial court. We have found it convenient to begin with the aspect of circumstantial evidence as Maro himself did. There is no dispute that the prosecution case against the appellant was exclusively based on circumstantial evidence which, simply stated, means evidence that relies on the inference to connect it to a conclusion of fact rather than direct evidence. In other words, it is proof of the existence or nonexistence of an alleged or disputed fact, based on reasoning and not on personal knowledge or observation. We are aware that there are people who consider circumstantial evidence as weak and unreliable. In our view, that is a misconception. As was 16 restated in the cases of Samson Daniel v. R. (1934) 1 E.A.C.A. 154 and R. v. Sabudin Merali and Umedali Merali, Uganda High, Criminal Appeal No. 220 of 1963 (unreported), the mere fact that evidence is circumstantial is far . from saying that the prosecution case is weak because circumstantial evidence is sometimes the best evidence. In the latter case of R. v. Sabudin Merali and Umedali Merali , Sir Udo Udoma, C.J. said that:- " ... it is no derogation to say that it was so; it has been said that circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics." Given that fact, we stress that where the court may have considered the appropriate principles of law governing reliability on such evidence, conviction cannot be casually or lightly faulted. Some of the basic principles governing reliability or otherwise of such evidence in a criminal case are as follows:- (i) That the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, and that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, and that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. See Julius Justine & Others v. Republic, Criminal Appeal No. 155 of 2005, CAT, Mwanza Registry (unreported). 17 '(ii) That the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt; and that before drawing the inference of guilt from circumstantial evidence, it is necessary to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. See Simoni Msoke v. R. (supra) and John Magula Ndongo v. Republic, Criminal Appeal No. 18 of 2004 CAT, Dar es Salaam (unreported). (iii) That the evidence must irresistibly point to the guilt of the accused to the exclusion of any other person. See Shaban Mpunzu@ Elisha Mpunzu v. Republic, Criminal Appeal No. 12 of 2002 CAT, Mwanza Registry (unreported). (iv) That each link in the chain must be carefully tested and, if in the end, it does not lead to the irresistible conclusion of the accused's guilt, the whole chain must be rejected. See Samson Daniel v. R. (supra). (v) That the circumstantial evidence under consideration must be that of the surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. See Julius Justine & Others v. Republic, Criminal Appeal No. 155 of 2005 CAT, Mwanza Registry (unreported). (vi) That the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt 18 and must be connected with the facts which the inference is to be inferred. See Ally Bakari v. Republic [1992] T.L.R. 10, Anetha Kapazya v. Republic, Criminal Appeal No. 69 of 2012, CAT, Mbeya Registry (unreported). (vii) That the alternative possibility must not be fanciful; it must be plausible. Doubt about the guilt of an accused can count only if such doubt is reasonable. The circumstances must also be looked at, and considered, in their totality. See lumanne Hamis @ Upepo v. Republic, Criminal Appeal No. 329 of 2009, CAT, Tanga Registry and Sadiki Ally Mkindi v. D.P.P., Criminal Appeal No. 207 of 2009, CAT, Arusha Registry (both unreported). We think that some of these principles will guide us in the ensuing discussion on reliability or not of this kind of evidence. Mr. Maro tackled first the inference that the appellant was the last person to be seen with the deceased alive which the trial court found to have been proven. The learned advocate contended that the allegation was not established because the evidence that the appellant parted with the deceased at Impala Hotel area was not discounted. He also submitted that if one looks at the charge which says murder was committed between 4.10.2005 and 5.10,2005, and takes into consideration the fact that the appellant parted with the deceased on 4.10.2005 at 10.00 am, then the doctrine of person last seen with the deceased was improperly invoked as it ought to have been shown that death occurred soon after they were seen together. He relied on the case of Richard Matangule v. Republic [1992] T.L.R. 5. Besides he said, that 19 alone· was not conclusive. He urged the Court to hold that there was no ground upon which, on that doctrine, it could be said the appellant committed the alleged murder. As earlier on pointed out, Mr. Chavula said he was supporting the appeal. He was express that he was entirely in agreement with the reasons advanced by the appellant's advocates. Before we embark on discussing the above referred doctrine however, we once again wish to reaffirm our stand that we are desirous to be guided, where circumstances may so demand, by the principle that this being a first appellate court, it has a duty to reconsider and evaluate the evidence on record and come to its own conclusion bearing in mind that it never saw the witnesses as they testified. See the cases of Audiface Kibala v. Adili Elipenda & others, Civil Appeal No. 107 of 2012, CAT, Tabora Registry and Maramo Slaa Hofu & others v. Republic, Criminal Appeal No. 246 of 2011, CAT, Arusha Registry (both unreported). We will not hesitate to do so in the present case should need to do so arise as we contemplate. In upholding the prosecution assertion that the appellant was the last person to be seen alive with the deceased, the trial court said that the appellant did not give plausible explanation on how they parted ways at Impala Hotel area, particularly so when there was no evidence to show that any other person boarded their motor vehicle apart from the two of them (appellant and the deceased). We hasten to say that we agree with that conclusion. The strength or otherwise of the doctrine of the person last seen with the deceased alive depends solely on the explanation which may be given by 20 such person to displace the presumption that he/she may be the culprit behind the death of such person. This was best expressed by the Court in the case of Mathayo Mwalimu and Another v. Republic, Criminal Appeal No. 147 of 2008, CAT, Dodoma Registry (unreported). According to that case, where a person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to the death, he/she will be presumed to be the killer. See also the cases of Richard Matangule v. Republic (supra). In the present case, the appellant's account on how he parted ways with the deceased at Impala Hotel area after their quarrel over the min skirt is the focal point of the discussion. As will be recalled, the appellant said after the argument, he alighted from their motor vehicle and took a taxi intending to go home. However, on seeing her heading in the.opposite direction towards Total Petrol Station along Namanga Moshi road upon taking charge of the motor vehicle, a fact which intimated that she was not heading home, he changed the idea and proceeded to their office intending to find out if she went to the office. Also, during cross examination by the prosecution on page 132 of the appeal record, the appellant said that he told Chiku that the deceased was supposed to be in her office. He insisted that he was not lying. Apart from the fact that there was no evidence to establish that anyone joined the deceased in the motor vehicle after the appellant_ allegedly alighted from that motor vehicle, there was on the other hand evidence that he seized deceased's identity card which was also her office access key, and told her that he had taken it because he did not want her to go to the office with that skirt. We may pose a question; having seized her access identity card, how 21 come did he maintain that the deceased was supposed to be in her office? How could she have gained entry without it? Similarly, the appellant said on page 132 of the appeal record that there was a possibility of the deceased to get in _the office without her identity card, an idea which was rejected -by the trial court which reasoned that:- ''If at all he says he did expect her to be allowed in her office without keys/ why not him as he also forgot his keys but had to go back home notwithstanding that he was to attend English classes. " We agree with that reasoning of the trial court, hence that these are among the aspects which showed that his explanation was not credible. Secondly, the appellant stated that their quarrel on the morning of 4.10.2005 centred on the deceased's skirt which he said was too short. The big question is; was it a coincidence that besides the deceased's body was her torn skirt? Since there was no evidence to suggest that Angle was raped before she was killed as was found by the trial court, why would any other killer tear her skirt? In our settled view, the deceased's torn skirt besides her naked dead body implies a link with the couple's quarrel in that connection. In other words, it implies that he did not part ways with her at the named place as he purported in his defence. Thirdly that, the appellant never bothered to report to the police the deceased's disappearance as any reasonable person would have done. His explanation was that he thought she could have gone to the office or proceeded to KIA as he was suspicious that she could have travelled with her lover. In rejecting this explanation, the trial court said on page 246 over to page 247 that:- 22 "There are other interconnected pieces of evidence linking the accused with the killing of Angele. For example/ why did the accused not say to Angele's co-workers that he suspected her to have travelled with a lover? Or that he saw her heading to the Petrol Station as he alleged? Instead, the accused pretended to inquire from Mr. Van PW4 where Angele hid ... the other day. " Linked to this are four other aspects; firstly the fact that the appellant bought hydrochloric acid on 5.10.2005 with which he intended to take away his life; secondly the fact that he looked for advocates for the purpose of securing legal services; thirdly that while crying, he told Sylvie over the phone that he was not sure of what was going to happen to him after his wife's disappearance and asked her to take care of Yan in case anything happened; and lastly that there were recovered e-mails which uncovered that he had communication with Rosalie in Abidjan whom he assured that he was going to join her because he was hers, and that Angele knew of that, also that nothing was going to prevent him from going back to her. As regards the first two aspects, relying on the case of R. v. Georgina Venance, Criminal Session Case No. 135 of 1990, HC, Mwanza Registry (unreported), the trial court judge believed that the appellant did all that because he knew that what he had done was contrary to law. So was his statement to Sylvie over the phone that he was not sure what was going to happen to him after his wife's disappearance and asked the former to take care of Yan in case anything happened to him. We share the same view for reasons we endeavour to give. In the first place, the appellant said in his defence that he hired a taxi and proceeded to the shop intending to buy hydrochloric acid because he was 23 worried after being told by I.C.T.R. officials to report to Police Central Arusha on the basis of which he sensed that Mr. Kunja, who was the Security officer of that institution, had a motion that he was the suspect. On the way to the shop, he went on to say, he saw a sign board showing the "advertisement of lawyers" and thought of consulting them. He went to their office but missed them. Upon that he said, he proceeded to the High Court of Tanzania at Arusha at which he allegedly obtained the phone numbers of the law firm whose advertisement he had seen and contacted them. He talked to the lawyer who advised him to go to police after which he was to give him a feedback. He also said that because the lawyer he contacted hinted a higher fee, he decided to look for other lawyers in order to secure a cheaper one. He was not clear if he succeeded. Interrelated to this is the fact that after deceased's disappearance, the appellant purported to have thought of two things; firstly as already pointed out, that the deceased could have been in her office; and secondly that he suspected her to have travel led with a lover. Also, while at KIA he checked at the departure and arrival lounge but he did not see her .. We note however, that he did not go a step further to request the Airport officials on whether Angele was among the passengers who travelled through that port on that day before taking a taxi to send him back home. That meant that he was still not sure that Angele travelled with a lover as he thought. Given the above scenarios the question becomes; if that was the case why in the first place was he worried after being interrogated with the I.C.T.R officials if he was innocent? Also, one wonders,. if that is the case, why did he proceed to buy hydrochloric acid intending to terminate his life before 24 exhausting the search? Why didn't he tell those officials that she might have travelled with a lover as he thought, instead of rushing to buy hydrochloric acid and searching for lawyer? Why did he not abiding to the lawyer's advice? So also, why did he, while crying, tell Sylvie Becky over the phone that he was not sure what was going to happen to him after his wife's disappearance and asked the former to take care of Yan? In our firm view, he did all that because of a pang of guilt. After all, he believed that Angele was not dead, therefore that he was not expected to have done that. On the other hand, the retrieved e-mails which disclosed that he had communication with Rosalie in Abidjan that he was at any rate going to join her in the near future add up to the fact that something was cooking, hence that they were material to deceased's ultimate death. Having said that he did not give plausible explanation on how he parted with the deceased so as to rebut the presumption that he was the last person to be seen alive with the deceased; also because we have said that he did not promptly report the incident of his wife's disappearance to the appropriate authorities; and since we have said he had no cause to think of terminating his life also of rushing to consult lawyers without having exhausted his wife search; we are of the settled view, this chain link was not broken as is being alleged. The other chain link refers to appellant's act of having gone to KIA on 4.10.2005 where Angele's car with which they left on the morning of that day before her disappearance was found parked by an identified person. The court inferred that his having gone to KIA on that day suggested that the said motor vehicle was driven there by him. 25 · Mr. Maro submitted in that regard that there was no evidence to establish that the appellant was the person who drove that motor vehicle to KIA. He added that according to the evidence of PW2, the deceased did not go home for lunch on that day, but that the appellant went back for lunch at around 7.00 pm and did not go out again. In his view, such circumstances convince him that there was no possibility for the appellant to have been the one who could have driven that motor vehicle to KIA. As already pointed out above, circumstantial evidence is all about indirect evidence or rather evidence based on inference and not on personal knowledge or observation. In other words, it is the necessity for inference, and not the obviousness of the conclusion that determines whether or not evidence is circumstantial. Thus, the question of there being or not of evidence does not arise. As such, the issue is whether such an inference irresistibly leads one to believe that the appellant could have been the person who drove that motor vehicle to KIA. In rejecting the defence argument delinking the appellant from the possibility of having had driven that motor vehicle to KIA, the trial court said that there were irresistible inferences that he was the one who drove it to that place in an endeavour to fool the people that Angele had travelled leaving the car there. While we note that the trial court did not give details of the inference in this connection as it ought to have done, we hasten to say that such inference existed. To start with, the trial court was informed that at the time Angele's motor vehicle was found at KIA, one of its indicators was broken. Connected 26 . to that, PW11 testified that there were skid marks of a motor vehicle at the scene of crime; and that he picked a piece of indicator at the scene which he fitted to Angele's motor vehicle and it fitted. That meant that the said motor vehicle was first driven to the scene of crime before it was driven to KIA, something which strongly suggests that the motor vehicle could not have been driven to KIA by Angele. We are aware of the contradiction in respect of this portion of evidence between the evidence of PW1, PW9 and PW11, and that it was not resolved by the trial court. In our strong view, since PW11 said that the fitting of that piece of indicator to Angele's motor vehicle was done in the presence of the . appellant and that the latter did not contradict that assertion either by cross examining that witness or by bringing it forth in his defence; it is clear that it represented the truth. In fact, he admitted on page 123 of the appeal record that he also fitted the said indicator and it fitted well. That explains why he did contradict that piece of evidence. In the premises, the question of the indicator connects the fact that the motor vehicle skid marks were that of Angele's motor vehicle, and it was driven to KIA after coming from the scene of crime. Another material point is that, as already pointed out the appellant quarrelled with the deceased over a short skirt she had won on the morning of 4.10.2005, and that the deceased's torn skirt was found besides her dead body. Since ther~ was no evidence that she was raped before she was killed; and because there was no reason why any other person could have decided to tear Angele's skirt in the course of killing her, it means that there was positive inference that the motor vehicle in issue was driven to KIA by the very person 27 who killed Angele and tore her skirt, a fact which imply that it is connected to the couple's arguments on the morning of 4.10.2005. Since as aforesaid the appellant's account on why he went to KIA is not appealing, the presumption that he was the one who drove that motor vehicle to that place remains unrebutted as we accordingly find and hold. Thus, we do not agree with the appellant's side that this aspect was a broken link. The last chain link was that the appellant never mentioned the taxi number which took him to KIA or at least produced a receipt showing that he boarded a taxi. In the trial court's view, such evidence could have cleared a doubt that he went there with another motor vehicle not by a diplomatic car or government vehicle which according to PW7 are exempted from paying Airport charges, hence its conclusion that it constituted an inference that he went there with Angele's vehicle, adding that the issue that he suspected that Angele had travelled came here in court and not before. In this regard, Mr. Maro submitted that the appellant said he hired a taxi which took him to KIA in order to satisfy himself on whether Angele could have travelled, and that to demand that the appellant ought to have submitted receipts was a misdirection as it amounted to shifting the burden of proof on the appellant contrary to law. We take it as an undisputed fact that the appellant's allegation that he hired three taxis; one that took him to the office, the second one took him to KIA and the third one took him back to town but that he was not issued with receipts to back up that narration. We also share the view that under normal circumstances production of receipts could have resolved the doubt as to the means of transport he used in the circumstances. However, we share the 28 views of the defence advocates that to demand that the appellant ought to have submitted receipts was a misdirection as it amounted to shifting the burden of proof on the appellant contrary to law. The case of Mohamed Said Matula v. Republic [1995] T.L.R. 3 (CA) is one of those in which the Court pressed that the burden of proof in a criminal case resides on the prosecution and it never shifts. In addition to that, according to, among others, the case of Aburaham Daniel v. Republic, Criminal Appeal No. 6 of 2007, CAT, Arusha Registry (unreported), the appellant had no duty of establishing his innocence. However, since we have ruled out above that Angele was not the one who drove the motor vehicle to KIA for reasons already assigned, and having said that the appellant did not offer plausible explanation firstly, on how he parted ways with the deceased which means he did not rebut the presumption that he was. the last person seen with her alive, and secondly that he did not give credible reasons on why he went to KIA, suffice to say, as foretasted, that his having gone there presupposes, as already held, that he was the one who drove the motor vehicle to that place in order to fool people that Angele had travelled. In view of what we have said above, we are moved to dismiss ground No. 14 for lack of merits. We now come to ground 13 touching on contradictions. As previously pointed out, the main complaint in this connection is that the prosecution case was loaded with contradictions on material facts. Mr. Maro cited seven contradictions which he said were serious in nature, therefore ought to have adversely affected the results of the case as a whole, a view which enjoys the support of Mr. Chavula. 29 · First to be addressed was the contradiction between the evidence of . PW1 and PW11 concerning existence or not of the indicator of a motor vehicle constituted in exhibit P9. Mr. Maro submitted that while PW11 said a broken indicator of a motor vehicle was found at the scene of crime,· PW1 denied to have seen any motor vehicle remains at that place, stressing that the police never took anything of that kind at the scene of crime. The second contradiction centred on the existence or not of a tree plunk at the scene of crime. While PW1 said he did not see any plunk at that place, PW11 said he saw it, and that it was knocked by a motor vehicle as there was left a mark on it suggesting that the said motor vehicle had a rubber bumper, and that the said plunk was about 2 ½ feet high. The third contradiction concerned the difference between the evidence of PW1 and PW11 regarding the torn min skirt. While PW1 said he did not see it at the scene of crime, PW11 said that there was a torn min skirt thereat. The fourth contradiction was in respect of the colour of the lady's shoes which were found besides the deceased's body. While PW11 said the shoes were brown in colour, PW9 testified that the shoes were pink in colour. On the other hand, PW2 said the deceased had black shoes when he left for work on the morning of 4.10.2005. The fifth contradiction was on the aspect of the rings which were found at the scene. Mr. Maro submitted that while PW9 said one of the rings had the name "Mr. Guehi", PW11 who also said that there were two rings said one of the rings had the name "Armand." However, when PW9 was recalled to testify, he identified the ring with the names "Angele and Armand." 30 . ·The sixth contradiction was based on the colour of the deceased's underwear. While PWl said it was white, PWll said it was black. Finally is the contradiction based on the date on which the deceased's body was found. While PWl said he found the said dead body at 10.00 am on 5.10.2005 and the police officers went there on the same day, PWll said he went to the scene of crime on 6.10.2005. In his conclusion on the point, Mr. Maro submitted that since those contradictions were not resolved by the trial court; and because they were serious in nature such that they went to the root of the case; justice militates for this Court to resolve them for the benefit of the appellant. He fortified his position with the case of Mussa Hassan Barie and Another v. Republic, Criminal Appeal No. 292 of 2011, CAT, Arusha Registry (unreported). With great respect, on our part we find that there is no controversy that there were such contradictions in the evidence of the witnesses covered above, and that those contradictions were not resolved by the trial court as it ought to have done. However, as we have already pointed out in this judgment, this being a first appeal, we could have, in a proper case, embarked on reconsidering and evaluating the evidence ourselves with a view to resolving the said contradictions for which we could come to our own conclusion bearing in mind, of course, that we never saw the witnesses as they testified. However, we do not intend to do so in the circumstances of the present case for reasons we are about to assign. We would like to begin by expressing the general view that contradictions by any particular witness or among witnesses cannot be escaped or avoided in any particular case. The justification for this was given 31 • by this Court in Dikson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007, Court of Appeal (T) Mbeya Registry ( unreported) where it was stated that in all trials, normal contradiction and discrepancies are bound to occur in the testimonies of the witnesses due to normal errors of observation, or errors in memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. The Court went on to say that:- ''ln evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the discrepancies and contradictions are only. minor or whether they go to the root of the matter'~ It was stressed in the above cited case that material contradictions are those which are not normal and not expected of a normal person, adding that courts have to label the category to which a contradiction, discrepancy or inconsistency may be categorized. Minor contradictions, inconsistencies, or discrepancies which do not affect the case of the prosecution, it said, should not be made a ground on which the evidence can be rejected in its entirety. While minor contradictions and discrepancies do not corrode the credibility of a party's case, material contradictions and discrepancies _do. We have no hesitation to state here that the contradictions cited in the present case were not material as they could not deflect the fact that Angele Kassia Sama was dead. We are saying so because, whether or not Angele Kassia Sama wore a black or red underwear or even a yellow one, is immaterial. So was the aspect of the torn min skirt or colour of the shoes; also the presence or not of the plunk, the broken piece of indicator, whether accepted as having been found there or not, or that PW11 and his team went there on 5.10.2005 or 32 ~- 6.10:2005. Those aspects could not change the fact that Angele died and was found there at Mkufi Estate. What was important was existence of evidence tending to show that the appellant was the one who killed the deceased to which we agree with the trial court that there was strong and reliable evidence as already demonstrated. In the premises, we find and hold that this ground too lacks merit. ) For reasons we have assigned, we are satisfied that the trial court properly held that prosecution case was proved beyond reasonable doubt and we have no reasons to interfere with that finding. We thus dismiss the appeal in its entirety. DATED at ........... this ...... day of ............... 2014. JUSTICE OF APPEAL JUSTICE OF APPEAL JUSTICE OF APPEAL 33