20151106 TZCA Mtwara

,;,-- ' ,. 1'J• " ·. _:_,.·-· a:. •• .· IN THE.COURT OF APPEAL OF TANZANIA ATMlWARA (CORAM: · OTHMAN, C.J., MJASIRI, ).A. And MMILA, J.A.} CRIMINAL APPEAL NO. 238 OF 2014 BETWEEN. JUMA KONOLIO ABDALLAH @ STEPHANO ................ I • • • • • • • • • • • •.• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • APPELLANT VERSUS THE REPUBLIC••••••.0•••••••••••••••••••••••••••••••11•••~••• ■■ a•••••••·••••••••••••••••••••RESPQNDENT (Appeal from the decision of the High Court of Tanzania at Mtwara} .·(Mzuna, J.) . dated 6 th day ~f June,-2014 in Criminal Cas.e Na. 19 of. 2013 JUDGMENT OF THE COURT 01• 1 October, 2015 & OTHMAN, C.J.: The appellant, Jurn3 Konolio Abdallah @ Stephano was charged with .. t;h~ murder of h·is uncle, Dastan s/6 Seleman Mm_e.b~_.f/~. 196 of the Penal •. -~r-5·;-~J~t>~: ·· - · ~ .•- _:,code, cap 16, R.E. 2002. The· High Court (Mzuna~ J.) sitti0g at Mtwara 1 •a•• • .. •~ • •• •• ---. . . convicted and sentenced him to the mandatory death sootence. Aggrieved, ~ he-·pteferrecf this appeal. ~ . . - At the hea(iDg of the appeal on 1/10/2015;: . th~-a.ppellant was . . ....,i~-,-- ·_· represented by_Mr. Hussein Mtembwa, learned Advocar~~t.h~ .respondent . . ~--.· .:::.=.~,_, - Republic, which__ r~?isted the appeal was. represented. by~:~ Paul Kimweri, --· --·- . . learned Senior State Attorney. •-~- .-~ .. • _In _a n_ut~hell,- th~ material facts at the _trial -~e~at between lO • • • 0,.. •--••• -~L ;••·•;,.•·-----· . . · . . .· --~:,'-~·>>'·'""<· ....... ·:----7-.·..•- . · · · · · · ~ ~ : ~ - ~ - · " · : · - · . · ~ ~ --: .. .· p.m·. - 11 p:m. oo·Th~ ~ight of 29/08/2012,- in Manya~fna·ge; _Newala _ ..... . . . . .· ._-_ .. --::· .·. " . . .. ·. . -· ---Y~';-:•· ._: .·- .. . . ~> · · Dist'~ict, Mtw~ri•~Q[l, the appel-lant hit_,the d~ceased•~~a:·pahga· that .. ~ ,-~-- - -f2t~1iy ~ou;~:~~~~ ~ucCU~bed: to death_tha~ ve\~~;The ppst- -- •• • ,; • • ... • • r • ••• • • • , _ : ,.. : • • • •• • • --:-- ~ • • • • • :. : - • • • • • • ~ -.. : : -..: :. ·. mortem· -medi6al~mination report (Exh_ibit R.3) :conduct~:;~rJ ~9/?/1912 .. · '>~--~~-·_:_. ·--_._,__ ·- . - ___ ---~-- - . ~--------~~-•~··-:.- .- ... .. : -;t":=7~~~ . ·;:•-~. •·.· .·. < .- . by .PW4. (Dr .. John Charles Kamtande) 'revealed the cause .. of death as . ;> ·• . · . . .. . ' ·. ' · _: ::;-_.-: a·. • ~~~\ • c:·-:;. :. ::· - -- .. . _;. · .;__~:)~f~\ ·_. ... ·. :·_ . . severe hemorrha'9e dUe to an extens:ve and deep SCTilJ)~, .· . . :_. --l~r.pediately foliowing the incident, the ·a-ppellanr 2¥~r-Yfng. the· .blood · ?oaked panga_iD his h~lld went to the house 0f PW6--~-l-lm1.anuef"Mtumika) ahdadinitted that ~ hit his u.~c;e, with;£: PW6 Wno ~a-□~twith badi · - S~l.emani-apprehended the appellant and-l;anded _hirp~-=to the· police· . . .· . . . . . - - . ~-,-..,,... .. . . .. . • . that night. ,. 2. / .,.. .. I• \ The High Court found out that th_e deceased's dying declaration (Exh. P.1) made to PW1 (B. 8952 Cpl Yuradi) on 29/8/2012 and which the- ' '· ~ prosecutjon · h?d pre.ssed into .service against the appellant could 'not be . . relied upori ·as ·the ·deceased ·was in a state confusion and it did not meet · the· test in Hamisi Said Mchana v.R. (1984) T.L.R. 319. The I.earned Judge ·also h~ld that the appellant's extra judicial statement (Exh. P.2) recorded by PW3 · (Mwinyimanga Miwadi), a justice of the peace on . . 5/09/2012 was not true and ruled it out.· . _Essentially relying on the evidence of PV:J6, the High Court was of the settled view· that t}:1~ deceased was hit with the panga insi~e his· t9ouse. The trial court. also held .that malice aforethought as defined ' . . under ·section . - 200 of the Penal Code had been established as the appellant had at least intended to cause grievous harm and at most death; had harbored a grudge. for having been told on several occasions by the deceased to shift from his parcel of land; had used .a. lethal weapon. on . the head, a ... vulnerable part· of the deceased's _body; .and instead- of :administering first .. . . aid or rescuing the deceased after t~e fatal injury, he went to report the incident! to .PW:6, Agre·eing with the opinion of the three Assessors, the . '\-•. . . learned Judge co_~cluded that the a_ppellant was guilty of murder. ...... 3 . . ... : _ .. . -.. : .. . The two grounds of appear In the appellant's memorandum of appeal are that: . 1. The Honorable trial Court erred In '!aw and fad by belie_ving and.- - . · acting upon the testimony of PW6 in disregard to 'the testimonies of PWl; PW? PWS and DWl as regard to the place the de.ceased_ ·was slashed with. a panga. 2. The Honorable·, trial Court erred in law and ·fact· by · failu.re to :-. ...... ..:. . _. ' . understand that having r_uled out or disregarded'Exhibit Pi (Qy(ng :. . . . . . .. ~-i-•.:.;.~---.-~... . - . - ..... - . .· . . . DedarationJ- . . -{xhibit- . •. ~ . -. F'?. (Extra, Judie/al: Staten1ent) anrf. the .. _ . testin1ony olPW~ th_e only available.story as tcrthe cfrcumsta/ices 'leading to deceaseds dealn·was that ~f DvVL . . ··. · .Given· the facts anEI circumsta.nces of the case a.hd the interwoven - nature of the two grounds· of appeal, it is appropriate that we deal with them together. Mr.. Mtembwa . forcefully submitted. .that- the prosecution - .. had_ failid. to _ ~ . . · establish where the incident had take·~- place: The learned Judg_e shou_ld_·not . . . . . have believed PW6 that the appellant w·ent to the ho-us·e of the deceased ... and slashed him with a panga, in view of the concurring. testimoni~s pf . : ·. -~- prosecution witnes~es, PWl, PW2 (WP 6074 DCT Angelina) and PWS (G ·- - - - 4 ---- ----·-· . .·-:..:..-: . . liii -'/'.:.'.,,,' •• • • • . . -/ ' I " . 3165 DCT Alawe),. which supported the appellant's·. (DW1) testimony that It took place inside his house. The learned Advocate submitted that PW6's evidence was an afterthought as it was contrary to. the prosecution's own version at the preliminary hearing that the incident took plac~ insi~e the appellant's house. The doubt that resulted, whether the incident took place inside the deceased's or the appellant's house was the prosecution's. own creation, whose witnesses gave two differing stories. He faulted the High . - : . Court for not assigning any reasons in disbelieving _ the_ ~viderice of PW1, PW2, PWS and DW1. Mr. Mtembwa went on to add that- thete -was no. independent. evidence of any blood stains from the appellant's house leading to the deceased's house. That once the deceased~~ dying d_ecJaration (Exh. P...1)._ is · excluded, as the learned Judge had correctly done, .. Dv\11 had to be believed, because he was the only witness who was present during the incideflt. Opposed, Mr. Kimweri submitted that there· ·is AO dispute that the appellant attacked the deceased with a. panga! The fundamental ·issue for resolution was Whether or not he did so with- malice . aforethought. He · relied on Juma Kaulule v.R., Criminal Appeal No. ·2s1 ·of 2006 (CAT, 5 1.'-' /l ;: ( I · unrepo~ed). The place wh_ere the incident took place was thus decisive In this case. That as PW6 was the-first person to speak to the appellant and had a good opportunity to· obtain the truth, he was· correctly given· more . . . . weight by the High Court than PWl, PW2 and PWS who did not hear the appellant directly. Mr. Kimweri strenuous·ly contended that PW6's evidence was supported by the totality of the circumst_antial evidence. Blood stains were · • found -at the ,door leading_ into the deceas~d;s house·. Thfs suggested that .the. incident took place outside his-house. The deceased had been struck · on the ·he_ad by two bl:ows ',of the panga. PWS who drew the sketch map . . (Exh. P. 4) had been direct~d byHawa 'Rashid,·the-appellants wife, who had. . been drun_k and had :slept_ in another. room during the incident As ._ .· . - . . , . . . such, PWS's evigence could not be relied upon. The sketch map '(Exh. P.4) did. riot indicate any- traces of· brood. That parts of the extra judicial statement (Exh. P. 2) were true and were· corroborated with other -. · evidence, but portions were not. The le~rn.ed _Senior State Attorney -· submitted that the appellant's evidence had not raised- any doubt on the · . prosecution's case that the deceased was· slashed with the panga at his house, and not at the appellant's home . . - ·- ...... ··--·--········· .. : .. -.....:.._...... --·. ·• - ~-··· --·--·-· .... -·-··· ---- .. . )' . We advert next to the merits. No doubt a first appellate Court has to give respect to a trial court's · findings and conclusions gi~en its live conduct of a trial and having· seen and heard the witnesses. However, an appellate court is still entitle·d to re- examine afresh the whole evidence on record and come - to its own conclusion, particularly where the trial court adopted a wrong approath in evaluating the evidence or omitted to evaluate some of the evidence of the - 'A'.itnesses or failed to consider some Vital piece_ or :pieces of evidence (See, . .. -·Martha Michael Wejja V. Hon. The Attorney General, (1982) T.L_.R. 35, (CAT). There is r~o gainsaying that one of the decisive qu~sti?ns arising out of thi_s appeal is whether or not the deceased wa_s hit wjth t_he- pan£a by - . .. . - . . . . the appellant at his house or at the deceased's house. The High Court had found out that the incident occurred inside the deceased's house. --·. _The law is well_ established that in a criminal case, the burd_en _of proof is always on the prosecution to prove the guilt of the ~J:cused person beyond reasonable doubt. The appellant and the_ deceased's houses were_ ten meters apart (Exh. P.4). Having closely examined the_ whole evidence, we would agree with Mr. Mtembwa that the prosecution~_s version· of events --- 7 -···--·-. :··. - --··-'····· _______ ----····-··- ----- ----- - -- - ··-. ~- .. ,. . . .. .... ·· ..: .•... -:.. ..... . that the deceased was hit with the pa·nga at his house was laden with doubt and incoherency created .by Its own witnesses. The record bears out that at the preliminary hearing ~eld under section 192(if of the Criminal Procedure Act, Cap 20 R.E. 2002 the prosecution's narration of facts was that on 29/8/2012 "the deceased arrived at the accused house". With the deceased's dying declaration (Exh. P.1) having been correctly discounted by the High Court, as- he was breathless; ·spoke with difficu_lty, was at his . . "last stages of survival" (PW1) and eventually passed a"'!ay the night of the - incident, the evidence of PWl, the _first police officer to arrive at the . . deceased's house,· could not have added ·any·~great we-ight .on that pivotal · issue. While on one. side, ,PW2 and PWS, both police officers who also formed. part of the investigation team, testified that the deceased was attacked inside the accused's house, on the other hand, PW6 was adamant that he was attacked inside the deceased's house near the door. . .. . Furthermore, we are of the respectful view that reliance could also not be placed on the blood stains at the door of the deceased's house . . . discovered by PW6 on the night of. the incident, as the High Court had mistakenly depended on, as constituting sufficient circumstantial evidence .of the fact that the deceased was attacked at his house. The blood stains 8 that were spotted at the door of the deceased's house, In themselves· could ,not completely eliminate the possibility that he could" have been fatally - . injured els~where other-than at his house. In no_way could that evidence be the silver bullet. Going by the sketch map (Exh. P.4) drawn by PWS, it is plainly indicated therein that the deceased did not die where he was hit with the panga. -It noted that the deceased had been hit at the apellant's house, Point A and had died at Point_B, his house. Two essential witnesses -were not called by the prosecution to augment it's version of the event. While we fully understand the prosecution for not calling Hawa Rashid, the appellant's wife who was around during the incident, because she had been drunk and _had slept in another room in the house; Dadi Se!e.mani who was with PW6 and who was the- first person to go to the deceased's house immediately after the incident, and who even spoken to him before he died_ was not called to testify on- _the ·p!ao~·-the-de'Ceased was hit with the p~ga by the appellant. Had this piece of crucial evidence been available, it could have pointedly . - -. supported the prosecution's case. · ---: _ Considered in its totaUty, the evidenc:e is not. ~ufficiently reassuring -that the -deceased was hit with the panga at no other place than at his .... --------~------ .. ---·- -···· ··- ... .. --···-·· ... -·-······ ······ , house. The discovery of blood stains at the door of the deceased's house that was relied upon by Mr. Kimw~ri as an incriminating circurnstan~e on . .i the place he was hit with the panga, was open to the possibility that the attack on the deceased could have occurred elsewhere, including at the appellant's house as PW2, PWS and the appellant had testified. The blood stains could not unerringly point at one direction to the exclusion of any other reasonable hypothesis. As such, the circumstance was not of a . . conclusive nature. In our respectful view, with the above· as evidence, reasonable doubt was raised by the appellant's version, which was• also partly vouched for by the prosecution's own witnesses (PW2 and PWS) that the appellant hit the deceased 1v:1ith a panga at his house. · The next question that falls for consideration is malice aforethought. Mr. Mtembwa submitted that the incident took place at night, around 11 p.m. at the appellant's house. He had closed his door. He did not know whether or not it was a human being who had entered into the hou?e. As . · he had-goats, he had slept with a panga and· had no evil intention in hitting the intruder who had touched him while asleep and who happened to be his deceased uncle. Resisting, Mr. Kimweri submitted that elements constituting premeditation can be -found in th~- b.is.tor:y___of.the --event.---'=fhe-------~~-- · . --- . ·- - --·· ----· . . - --······ ---~---···~ .. --.- .. , --:······· -- .. --- _.. , . ······ .... -- . . .. -·-·•--·-·---·-:··.·---:··-···:· ' .. 10 .- - - - -· - -- -----------: --- -------- -- . -- ----· f~: . ~·· 1: .....-,,#. appellant was told by the deceased to shift from his plot of land. Moreover, he struck the deceased on the head with two-blows of the pang~, a lethal weapon. He relied on Juma Kaulule's case. On factors to be considered by a court in determining the existence of malice aforethought. For our part, having accepted on the reasons afforded earlier, the reasonable probability that the deceased was hit with- a panga at the appellant's house, the additional question that falls for consideration is whether the prosecution proved that the appellant acted· with malice afterthought as defined under section 200 of the Penal Code. While the High Court c~rrectly reasoned that no premeditation coutd arise if it was the deceased that had gone .to the appellant's house,· wlth respect, its · appreciation of the evidence and some of its findings were erroneous. The High Court found out that the appellant had gone to the . deceased's house. First, the prosecution did not- sufficiently dfscharge its burden on. this and the claim was not condusively proved. Second, it also --· found out that trie traces of blood seen at the deceased's house was one of · the- factor which proved the existence of malice ~fterthought. As stated earlier, the evidence of traces of blood at the door of the deceased's house as. an incriminatiQg ·_gt~urn~t.ances~tbat-..unmist-akenly]~Dirtt~:O-=Jo·~e-pJ.a~e . ·-------·--· .• -· , .. · . . ~--······· ·;··--:·---·--:--··-·-· ~,_. . .., . ..- _ _ _ .:___·-·---··-··--·-··-··-.---·--··-··::·-···-.--····---·--·.-.- · .•.. -•·,. . . ----------- '• . ·.'•r: : ' ' .,.... ,· ·• ' ' where· the appellant- hit the deceased with the panga to the exclusion of . I, . any other.place Is neither here nor there. It simply could not be relied upon as sufficient circumstantial evidence of that issue. Third, the High Court had also found out. th.at the conduct of the appellant In not administering first aid to his deceased uncle and Instead, of reporting the Incident to PW6 was proof of malice aforethought and inconsistent with his innocent. In our respectful view, this finding did .not take sufficient account as it should have, of a piece of PW6's evidence that the appellant who immediately went to his house, plainly admitted to him what he had done, and was "remorseful". That apart, we agree with both Mr. Mtembwa and Mr. Kimweri that a finding on where the deceased was hit with the panga is also greatly determinant of the appellant's malice aforethought. On our part, having closely re-examined the totality of the evidence, it is plain that the incident had occurred at about 11 p.m. at night and when it was dark. The appellant had made an·~ unannounced .and uninvited entry into the appellant's house. He slept with a panga as he kept goats at home. The evidence also suggests a high probability that the incident- may have occurred at the s·par of the moment. The appellant immec;Hately reported 12 .; .: •. .. . ~ . . . 1 , • the incident and was according to ·PW6, remorseful. Considering all the above and the erroneous findings of the High Court discussed earlier, we · . would agree with Mr. Mtembwa that malice afterthought was· not affirmatively proved. Moreover, there was no eviden<;:e that the deceased . was hit with two blows of the panga as vainly argued by Mr. Kimweri. The post-mortem medical examination report (Exh. 3) is explicit · that the deceased had received an extensive scalp wound. No doubt there is credible evidence that the· deceased had told the appellant to vacate from his plot of land. However, at its best this is a true account of the history of the relations between the appellant and the dece_ased. We are not·. persuaded. that this by itself could crististalize or mature into malice aforethought. Accordingly, in our considered view, malice aforethought was not proved by the prosecution to the standard required by law. Accordingly, we find merit in the two grounds of appeal. . In conclusion and all the above reasons, we hereby invoke ouF revisional jurisdiction under section 4(3) of the Appellant. Jurisdiction Act, - Cap 131, R.E. 2002, proceed to quash and set aside the _appellant's conviction and sentence for murder and substitute it for that of . . manslaughter under section 195 of the Penal Code. 13 .. , . -~·.. .. . .. . •.· ~,~;::,.~~:·/,. . ,~·.:. ~..'.i ,L....;.;-d,~.-.:;..c·.,oc/:,..:·.,;..;_'.,,..: _,,c:~.;:..-.... -""""''·::. :,,.·~.::: -"·--'~,. :,-~ ..:~·:.::. ·..~. . . . . We asked Mt. Mtambwe and Mr. Klmwerl what would an appropriate · sentence be, if we were to find the appeUant guilty of manslaughter and not murder, the offence he_ was originally charged with, convicted and sentenced. Mr. Mtwarnbwe submitted that taking Into account the time he was arrested and the period of imprisonment he had served, either a two years sentence of imprisonment or a non-custodial sentence would be suitable. Opposed, ·Mr. Kimweri submitted that a sentence of 15 years imprisonment, less the time he had spent in prison would be. most appropriate. In our view and .having considered the record, and the attending circumstances and factors, including the period of pre-trial custody, we .proceed to impose on th_e appellant,_ a five -·(5) years · sentence of . imprisonment to ru_n from the date of his ·conviction by the High Court, on 06/06/2014. In our considered view, this would meet the justice of the . } case. i. i r Il : \ ......... -~-. -- .·14 . :.- ..-"-~\....-- .....-..~~ - -~-- ...- --- ':"... •.:; . .. ,: .. ;•- ..h'': •.• We hereby partly allow the appeal. Ordered accordingly. DATED at MTWARA this 6th day ot'November, 2015. . . M.C. OTHMAN · CHIEF JUSTICE S. MJASIRI JUSTICE OF APPEAL . B.M.K MMILLA JUSTICE OF APPEAL . -~ ';'.' .... ,·-'·::<· '. -~ ;_:__::-,:,·. :· 'i ,;, ~ '··)