CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: SEHEL. J.A.. FIKIRINI. J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 682 OF 2020 CHACHA GHATI @ GIBITA.........................................................APPELLANT VERSUS THE REPUBLIC....................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahvoza, J/) dated the 22nd day of October, 2020 in Criminal Sessions Case No. 59 of 2020 JUDGMENT OF THE COURT 29th April, & 3rd May, 2024 SEHEL J.A.: The deceased, Mwita s/o Chacha @ Mirumbe who was the chairperson of Mbilikili village within Serengeti District in Mara Region died on 15th March, 2016 after he was hit by an arrow on his left thigh. Before he met his death, he telephoned John Manyinyi Nyaminyombe (PW2), a militiaman of Boruhugu ward and requested him to arrest Chacha s/o Ghati @ Gibita, the appellant who was said to have jumped bail in an economic case. Responding to the call, PW2 went to the office of Mbilikili village where he found the deceased with another villager called Mseti Motera. i The chairman informed him the whereabouts of the appellant that he was drinking at a local pub in the house of Loise Chacha Meng'anyi. The trio went up to the local pub and saw the appellant standing outside, talking. When the appellant saw them, he took to his heels through the back door. They tried to chase him but in vain. Therefore, they decided to go back to the office. On their way, they saw the appellant's donkeys. The chairperson told PW2 to drive them to the office so that if the appellant makes a follow-up, they will arrest him. When they started to drove the donkeys, the appellant appeared. He was holding a bow and arrows. According to PW2, the appellant shouted to them "today, I will kill one monkey". He, then, shot three arrows. The first one was a miss, the second one tore the chairperson's shirt and the third one hit the chairperson on his left thigh. PW2 said that the event happened at around 06:00pm near the house of Loise Chacha. It was Loise Chacha who raised an alarm for help. In an effort to save the life of the chairperson, PW2 removed the arrow and tried to transport him to the hospital. However, the chairperson died on his way. PW2 reported the matter to the Village Executive Officer of Mbilikili village, one, Thomas John Kulula (PW3) who informed the police. The police officers arrived to the scene of the crime 2 together with a medical doctor from Serengeti District Hospital, Dr. Willy Elias Mchomvu (PW1). PW1 performed an autopsy on the deceased's body and observed that the femoral artery was injured causing profound bleeding. He concluded that the cause of death was due to anaemia (loss of blood due to excessive bleeding). He recorded his findings in the Post Mortem Examination Report which was tendered and admitted in evidence as exhibit PI. The appellant was arrested on 7th October, 2016. Subsequently, he was charged with the offence of murder contrary to sections 196 and 197 of the Penal Code before the High Court of Tanzania at Musoma (the trial court). In his evidence, the appellant raised a defence of property that when he returned home, at around 10:00pm his donkeys were missing. As it was night hours and fearing for wild animals, he picked his bow and arrows and went to search for his donkeys. He followed donkey's prints and saw three people escorting the donkeys. When he tried to converse with them, they remained quiet but one of them surrounded him. The appellant took a step back and threw an arrow. He heard them saying go around and arrest him. So, he threw another arrow which hit the deceased. He ran to his neighbour seeking for help. When they returned at the scene, no one was there. So, the appellant went back home. Sometime in March, 2016, he went to his uncle's place at Mbilikili village for farming and returned on 10th September, 2016. He was arrested on 7th October, 2016 at his neighbour's place, Mwita Wanchama's house. At the conclusion of the trial, the learned trial Judge was not convinced with the appellant's story. He concurred with the assessors that the appellant shot the deceased with an arrow as evidenced by PW2 and corroborated with the evidence of PW1, PW3 and exhibit PI. He was also convinced that the appellant had malice to kill as he believed the following factors established the appellant's intention to kill: the appellant used lethal weapon as he shot the deceased with an arrow which is a deadly weapon; the appellant used excessive force; the upper thigh where the arrow hit was sensitive part of the body with a main artery; the words uttered by the appellant before killing and the appellant's conduct of absconding immediately after committing the crime. In that respect, the learned trial Judge found the appellant guilty as charged. Accordingly, he was convicted and sentenced to the mandatory sentence of death by hanging. Aggrieved, the appellant initially lodged a four-point memorandum of appeal and later on he filed a supplementary memorandum of appeal 4 comprised of two additional grounds. In his written arguments which was filed to this Court on 24th May, 2023, the appellant condensed his grounds of appeal to the following grounds: "1. That, the learned trial Judge erred in law and fact in convicting the appellant o f the offence o f murder while the prosecution failed to call material witness to prove the source o f the fracas. 2. That, the prosecution evidence did not prove the case against the appellant beyond reasonable doubt as law requires. 3. That, the learned trial Judge failed to consider the appellant's defence and/ or wrongly rejected it". At the hearing of the appeal, Mr. Onyango Otieno, learned advocate, appeared for the appellant. On the other side, Mr. Abel Mwandalama, learned Principal State Attorney, appeared for the respondent/ Republic. Submitting on the first ground of appeal, Mr. Otieno argued that the record of appeal has two different hours on the time the incident took place. He pointed out that while PW2 said it was 06:00pm, the appellant said it was 10:00pm. That, the evidence of PW3 could not corroborate the 5 evidence of PW2 because he was not at the scene where the crime took place. He pointed out that PW3 came later after the deceased was shot and was already dead. It was his submission that, given the two versions on the time, it was incumbent on the prosecution to call Loise Chacha and Mseti Motera. He argued that Loise Chacha who raised an alarm would have assisted in clearing the time and Mseti Motera would have assisted in the estimation of the time as he was among the people who went after the appellant at the local pub. Despite of their importance, the witnesses were not called by the prosecution. Relying on the principle stated in the case of Samwel Japhet Kahaya v. The Repulic (Criminal Appeal No. 40 of 2017) [2020] TZCA 171 (2 April, 2020) the learned counsel for the appellant invited the Court to draw adverse inferences on the failure by the prosecution to produce key witnesses, Loise Chacha and Mseti Motera. In addition, he contended that the evidence of PW2 was not reliable as it contradicts with the evidence of PW1 on the causation of the death. While PW2 said that after the removal of the arrow, there was a blood clotting because of poison, PW1 found that the death of the deceased was due to excessive bleeding. In that respect, he contended that the 6 evidence of DW1 remained to be the only credible and reliable witness on what transpired on that night. On the second ground of appeal that the prosecution failed to prove its case beyond reasonable doubt, Mr. Otieno faulted the trial court's holding that the appellant killed the deceased with a malice aforethought. He pointed out that the crime took place at night and according to the appellant, he was defending his property, namely, the donkeys which were taken by three people he saw that night. It was his submission that the use of an arrow was reasonable force because the appellant saw three people driving his donkeys, hence, he felt imminent danger. Besides, Mr. Otieno argued, the deceased was attacked on the thigh which was not sensitive area, and that, the removal of the arrow by PW2 accelerated the chairperson's death. He reasoned that, according to the evidence of PW1, the cause of death was excessive bleeding which means if the arrow would have been left intact, the chairperson would not have lost much blood and he would not have died. He therefore beseeched us to take into account the "the but for test"that but for the action of PW2 which triggered the loss of blood, the chairperson lost his life. He also argued that, if the Court believed the story of PW2, the words alleged to have been uttered should be taken lightly as they are not conclusive 7 evidence of premeditated killing as it was held in the case of Wilson Nyamhanga v. The Republic [1984] T.L.R 340. On the third ground of appeal that the defence case was not considered or ignored, Mr. Otieno briefly submitted that the appellant's defence that he killed without ill motive was not considered by the trial court. He added that the appellant's defence was corroborated by the evidence of PW1 and exhibit PI that no poisonous substances were detected in the deceased's body. With that submission, Mr. Otieno prayed to the Court to quash the conviction of murder and substitute it with the lesser offence of manslaughter. At the outset, Mr. Mwandalama informed the Court that the respondent supports the conviction and sentence meted to the appellant by the trial court. Thereafter, he replied to the submissions in the manner argued by the learned counsel for the appellant. On the argument that the prosecution failed to call and examine material witnesses, Mr. Mwandalama argued that, generally, the prosecution is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on 8 material facts, and that, if such witnesses are within reach but are not called without sufficient reason being shown, the Court may draw an inference adverse to the prosecution. The learned Principal State Attorney pointed out that one of the duties of the prosecution is to save time by making sure that the trial of any case is shortened, and that, there is no use of calling a large number of witnesses to depose on the same fact. He added that the absence of Loise Chacha and Mseti Motera in the list of prosecution witnesses did not create a doubt on the prosecution case. To cement his submission, he referred us to our earlier holding in the case of Azizi Abdallah v. The Republic [1991] T.L.R. 71. Responding to the issue of time, Mr. Mwandalama argued that the prosecution case was that the incident took place at 06:00pm and this fact was evidenced by PW2 and corroborated by PW3. Further, the time was corroborated by exhibit PI found at pages 88 - 91 of the record of appeal which indicates that the murder took place 15hrs before the post­ mortem examination was conducted at 11:00am on 16th March, 2016. Replying on the second ground of appeal that the case was not proven on the required standard, Mr. Mwandalama referred us to the evidence of PW2 at page 13 of the record of appeal where he said, the offence took place at 06:00pm, and, at that time, there was enough light 9 coming from the sun. He argued that, in terms of section 5 of the Penal Code, the incident took place before night hours; during broad daylight. He questioned the appellant's account that how was he able to see three people while there was no light as it was during the night hours. Responding on whether there was malice aforethought, Mr. Mwandalama mentioned factors which he said if taken into consideration would establish the appellant's intention to kill. First, the words uttered by the appellant expressed that he wanted to kill a monkey on that day while according to the evidence of PW2, there were no monkeys in that area. To buttress his argument that the appellant declared his intention to kill, he cited the case of Abdallah Rashid Namkoka v. The Republic (Criminal Appeal 206 of 2016) [2018] TZCA 363 (8 May 2018) which cited the case of Enock Kipela v. The Republic (Criminal Appeal No. 150 of 1994) [1999] TZCA 9 (10 June, 1999). Second, the conduct of the appellant of absconding immediately after committing the crime. That, at page 13 of the record of appeal, PW2 said that after the appellant committed the crime, he ran away but he was not cross examined on this issue by the appellant. At page 16 of the record of appeal, PW3 said the appellant escaped until October, 2016 when he was arrested. He contended that this evidence of PW3 is 10 corroborated with the appellant's defence when he said he was arrested on 7th October, 2016. Third, the appellant threw three arrows. The first missed the target, the second tore the deceased's shirt but the third hit the deceased on his thighs and fourth, the arrow used was a lethal weapon. On the argument that PW2 accelerated the death of the deceased, Mr. Mwandalama responded that PW2 was trying to save the life of the chairperson. Therefore, the appellant cannot escape his liability as had he not thrown the arrow and hit the chairperson, the chairperson would have been alive. Commenting on the holding in the case of Wilson Nyamhanga v. The Republic (supra), the learned Principal State Attorney argued, in that appeal, the words were uttered during fight while in the present appeal there was no fight. Lastly, Mr. Mwandalama responded to the third ground of appeal that the appellant's defence was not considered. On this, he referred us to page 54 - 59 of the trial court's judgment and argued that the defence was considered but rejected by the trial court. On that basis, Mr. Mwandalama invited us to dismiss the appeal for lack of merit. ii Mr. Otieno briefly rejoined that the post mortem report being an expert opinion cannot corroborate the evidence of PW2. Rejoining on the injured part, he contended that the sensitive parts of the body are head, stomach and heart but not thigh. At the end, he reiterated his earlier submission that PW2 accelerated the death of the deceased by removing the arrow from the deceased's thigh. Having carefully considered the rival arguments for and against the appeal, the grounds of appeal and the record of appeal before us, we find that all grounds of appeal boil down to one issue, that is, whether the prosecution managed to prove the charged offence of murder against the appellant beyond reasonable doubt. But before we embark on determining this issue, we wish first to state that this being a first appeal, we are entitled to re-evaluate and reconsider the entire evidence in the record of appeal, and if appropriate, arrive at our own decision. Having stated so, we now embark on determining the appeal before us. We have earlier on stated that the appellant was convicted of murder and sentenced to death by hanging. In murder cases, the prosecution was required to prove beyond reasonable doubt the following: One, there was death of a human being. Two, the death was unnatural. Three, the 12 accused participated in causing the death of the deceased and four the killing was actuated with malice aforethought. In the present appeal, it is not in dispute that, Mwita Chacha @ Mirumbe is dead, and that, his death was due to unnatural cause as testified by PW1, the doctor who performed the autopsy. Moreover, there is exhibit PI which shows that the cause of deceased's death was due to excessive bleeding from a cut wound on the hind limb along the femoral artery. As to how the deceased got injured, PW2 told the trial court that the appellant threw three arrows towards them and the last arrow hit the deceased on his left thigh and injured him. Further, the defendant admitted to have injured the chairperson with an arrow on the night of 15th March, 2016. In that regard, we are satisfied beyond reasonable that there was a death of human being which occurred on 15th March, 2016; the deceased died from unnatural cause, and that, the appellant was connected to the death of the deceased. Therefore, the three ingredients of murder were sufficiently proven beyond reasonable doubt. Parties locked horns on whether the killing was with malice aforethought. According to section 200 of the Penal Code, malice aforethought is deemed to be established by proving any one or more of the following circumstances: 13 "(a) an intention to cause the death o f or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death o f or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody o f any person who has committed or attempted to commit an offence." From the above provision of the law, there must be intention to cause death or knowledge that the act will likely cause death. Intention and knowledge are man's state of mind and usually an attacker does not declare openly his desire to kill. Nonetheless, there are certain factors which the trial court may take into consideration when ascertaining intention to kill. The factors have been well enumerated in the case of Enock Kipela v. The Republic (supra) that: 14 "(1) the type and size o f the weapon, if any, used in the attack; (2) the amount o f force applied in the assault; (3) the part or parts o f the body the blow or blows were directed at or inflicted on; (4) the number o f blows, although one blow may, depending upon the facts o f the particular case, be sufficient for this purpose; (5) the kind o f injuries inflicted; (6) the attacker's utterances, if any, made before, during or after the killing; and (7) the conduct o f the attacker before and after the killing." In finding conviction of murder on the appellant, the learned trial Judge was convinced that the appellant intended to kill because he used an arrow which is a lethal weapon; he used excessive force as he threw more than one arrow, he hit the deceased on the vulnerably part of the body, that is, on the upper thigh which has a main artery; the words he uttered before the killing and his conduct of absconding after he committed the crime suggested he premeditated the killing. Mr. Otieno impressed upon us to find that the death was not intentional as the appellant was defending his property, the donkeys, and that, the arrow which hit the deceased was not the factual cause of his death as there was an intervening act of PW2 who removed the arrow thus causing excessive bleeding. Having re-appraised the entire evidence, we observed that both the prosecution and defence are at one that the arrow which hit the deceased on his left thigh was thrown by the appellant. Indeed, as rightly held by the learned trial Judge, an arrow is a lethal weapon which can cause injury or death or grievous harm. Further, we agree with the finding of the trial court that the arrow pierced through a sensitive part of the deceased body as it went through the main artery which carries blood from the heart to the brain. Therefore, in the ordinary course, the act of the appellant may be translated that he premeditated the killing. However, according to the medical report, the death of the chairperson was caused by excessive blood loss and not poison from the arrow. Since PW2 told the trial court that he removed the arrow from the deceased's body, we are satisfied that the arrow which stabbed the deceased on his left thigh was not necessarily the sole cause of his death. We think that PW2 might have contributed to the death of the deceased. Here, we find solace to our earlier decision in the case of Zaveri Kanyika & 2 Others v. The Republic (Criminal Appeal 49 of 1979) [1981] TZCA 25 (31 July 16 1981). In that appeal, the deceased was a suspected thief. He was arrested and taken to the village chairman's office. While under arrest, he was beaten to death by several people including the appellants. His cause of death was said to be due to cerebral haemorrhage and brain damage resulting from a fractured skull. His frontal bone was fractured. The trial court held that the first accused person who banged the deceased's head on the ground caused the deceased's death. On appeal, the Court found that malice aforethought was not established. It stated: 'We are however satisfied that the head banging operation was not necessarily the sole cause o f death. We think that the first accused and the third accused, together with at least one other person, attacked the deceased, and as a result the deceased died. The attacks were unlawful. Both are guilty o f manslaughter as we are not satisfied that malice aforethought has been established against them." In the same vein, we are satisfied that the prosecution failed to prove beyond reasonable doubt malice aforethought which is one of the key ingredients in murder cases. In the end, we allow the appeal against conviction for murder and the death sentence which we hereby quash and set aside. We substitute 17 thereof, with a conviction of manslaughter contrary to section 195 of the Penal Code. As the appellant has been in remand custody for over four (4) years, we sentence him to a term of imprisonment of ten (10) years. The sentence to date from the date of his conviction in the trial court, that is, from 22nd October, 2020. DATED at MUSOMA this 2ndday of May, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 3rdday of May, 2024 in the presence of Mr. Onyango Otieno, learned counsel for the Appellant and Mr. Yese Temba, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. 18