CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: NDIKA. 3.A.. GALEBA, J.A., And MGONYA. J.A.> CRIMINAL APPEAL NO. 138 OF 2021 JACKSON S/O HAKIEL MSUYA........................... ................... APPELLANT VERSUS THE REPUBLIC..... ......................... ......... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Moshi) fMazenao, PRM. Ext. Jur.^ dated the 17th day of September, 2020 in Extended Jurisdiction Criminal Sessions Case No. 34 of 2019 JUDGMENT OF THE COURT 3rd & 11th June, 2024 MGONYA. J.A.: This is an appeal from the decision of the Resident Magistrate's Court of Moshi (Mazengo, PRM Ext. Jur.) arising from Criminal Session Case No. 34 of 2019. In that case, the appellant, Jackson Hakiei Msuya, was charged in the High Court of Tanzania at Moshi with the offence of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. He was convicted and subsequently sentenced to suffer death by hanging as provided for under section 197 of the Penal Code. Being aggrieved by that decision; he has appealed to this Court. The particulars of the offence indicated that: The appellant on 8th day of September, 2017 at about 20:00 at Mhezi village within Same District in Kilimanjaro Region, did murder one Perpetua Charles Tumkaza. From the facts of this case, it is undisputed fact that the appellant and the deceased were husband and wife. Because of certain misunderstandings between them, the deceased left their matrimonial home and returned to her parents' home in Mhezi village. While there, on 8th September, 2017 at 20:00 hours the deceased's family constituting the deceased, her parents, Beatrice Japhet (PW3) and Charles Tumkaza (PW4), her younger sister Mary Charles (PW1), grandmother and several grandchildren had gathered for dinner at the dining table in the kitchen. While having dinner, the appellant paid a visit. He was welcomed and joined the family for dinner. After eating, the appellant asked for drinking water. He was served by his father-in-law, PW4; who later left for a neighbouring house leaving behind the family including the appellant. Thereafter, the appellant asked to have a word with the deceased outside. The deceased's mother (PW3) did not approve the request for the reason that the deceased's father had gone out. On his efforts to persuade the deceased to accept his request, the appellant offered the deceased Tshs. 5,000/=. The offer was declined by the deceased due to the appellant's regular harassment towards her. His effort to convince the deceased were futile. Upon refusal, the appellant immediately pulled a knife from his pocket and stabbed the deceased on her shoulder, on her chest and thighs. The deceased raised alarm, rose up and ran towards her mother and hugged her. The accused followed the deceased stabbing both the deceased and her mother. PW3 was stabbed on her ribs, arms, head and shoulder. They both raised alarm. PW4, responded to the alarm from outside and entered the house to rescue the two. He pushed the appellant away whereupon the deceased, PW1 and PW3 managed to escape, Outside, PW1 and PW3 raised alarm while the deceased ran away for a distance of about 15 footsteps and hid herself under a banana tree. After PVV4's intervention, the appellant turned to him, and started stabbing him twice on his ribs and three times on the head, two times on arms and once on his back. Following the alarm, the appellant disappeared to the unknown place. PW4 ran after him in vain. PW2 Nziyangwa Abraham, the hamlet chairman was the first to arrive at the scene where he was informed by PW1, PW3 and PW4 of the incident. PW2 assisted by PW1 went outside to look for the deceased. The two followed the blood trails on the ground which led to the banana tree where the deceased was laying down. The deceased upon being called, responded in a low voice, while profusely bleeding from the injury, where the knife had separated her breast. She named the appellant as her attacker after she refused his request to go outside and further return to their matrimonial home. The deceased and her parents were taken to Same District hospital; after they had passed through Police Station to collect PF3. At the hospital, the deceased herein was confirmed dead. PW3 and PW4 received treatment and were later transferred to KCMC hospital where they were admitted and discharged on different dates. The accused was arrested and handed over to Police Station on the following day by his brother, a militiaman. The deceased's autopsy was conducted on 12/9/2017 by PW6 Hamadi Alfan Mndeme a clinical officer who detected some wounds on the deceased's back, thighs, arms and breasts. He formed an opinion that the cause of the deceased's death was severe bleeding secondary to multiple cut wounds. He prepared the Report on Postmortem Examination which was admitted in court as Exhibit P3. The appellant, in his sworn evidence, denied the charge. Despite of disputing to be involved in the murder of his deceased wife, he did not deny several facts: First, that the deceased was his wife and they were blessed with a child, Hakiel Jackson; second, that on the material date, 8/9/2017 when the tragedy occurred, around 20:00 hours he visited the deceased's family and upon invitation, he had dinner with the family, and that thereafter, he was served drinking water by his father in law (PW4); third, that at his in-law's home he found Beatrice Japhet, his mother in law (PW3), Charles Tumkaza, his father in law (PW4), his child, his uncle's son one Jackson and his deceased wife, Perpetua Charles; and fourth, that at the house that night, there was a fight involving the use of a knife as a weapon. The appellant in his testimony also informed the court that while there, he had a fight with his father in-law (PW4), and that the cause of the fight was after the latter poured some water on him stating that he does not want to see him in his house. Nevertheless, he denied to have gone with a knife to his in-laws7house and instead, he claimed the same to have been brought in the kitchen by his mother in-law from one of the rooms in the house. The trial court was not persuaded by his defence, hence declared that the prosecution managed to prove the charge to the required standard. Accordingly, the appellant was convicted and sentenced as alluded to earlier. In his memorandum of appeal filed to this Court on 12/4/2021, the appellant advanced five grounds of appeal. However, the same were substituted with two grounds duly filed by the appellant's advocate on 28/5/2024. The two grounds are paraphrased as follows: 1. learned Principal Resident Magistrate with extendedjurisdiction erred in law and fact by failing to notice that the prosecution side failed to link the appellant with offence because certain documentary evidence was not tendered before the court. 2. Learned Principal Resident Magistrate with extendedjurisdiction erred in law and fact as the entire evidence o f the prosecution was incredible, contradictory, unreliable and had material inconsistencies which rendered the story highly improbable. When this appeal came up for hearing before us on 3/6/2024, the appellant was represented by Ms. Fay Grace Sadallah, learned counsel, whereas Ms. Verediana Mlenza, learned Senior State Attorney assisted by Ms. Agatha Pima and Ms. Juiieth Komba, both learned State Attorneys, appeared for the respondent, Republic. The first ground above is centred on prosecution's failure to tender before the trial court material documents. In the course of submitting on this ground, Ms. Sadaliah also added another limb regarding the prosecution's failure to call material witnesses to prove the case against the appellant. In ensuring that the appellant is represented fairly, the Court did not have any qualms with the addition. Submitting on the said ground of appeal, the appellant's counsel referred us to page 64 of the record of appeal where PW5, the case investigator confirmed to have interrogated the appellant and had his statement recorded by CPL Mohamed. Further that, the appellant was brought to a Justice of the Peace and his extra judicial statement recorded. In both documents, it was Ms. Sadallah's assertion that, PW5 said that the appellant confessed to have murdered the deceased by stabbing her with a knife and also stabbed his in-laws with a knife. In that regard, it was the appellant's advocate's concern that, if that was the case, then why these two material documents being the appellant's cautioned statement and an extra judicial statement, were not offered for admission at the trial. She questioned why GPL Mohamed who is said to have recorded the appellant's cautioned statement and the Justice of the Peace who also recorded the appellant's confession, were not called to testify. Ms. Sadallah termed the missing cautioned statement and extra judicial statement as material documents and CPL Mohamed and the Justice of the Peace as material witnesses. According to her, those key documents and material witnesses were expected to assist the defence case before the trial by exposing the prosecution's fabrications that the appellant confessed to the alleged murder. Basing on the above point, Ms. Sadallah prayed the Court to draw an adverse inference. To reinforce her assertion, the learned counsel referred us to our decisions in Boniface Kuandakira Tarimo v, Republic, Criminal Appeal No. 351 of 2008, [2011] TZCA 194 [4th October, 2011; TanzLII] and Kasimu Arimu @ Mbawala v. Republic, Criminal Appeal No. 607 of 2021 (unreported). Responding to the first ground, Ms. Mlenza said, at the trial court, the prosecution's case focused to the material witnesses who were at the scene of the crime to assist the court in stating what really transpired at the scene. She said, those witnesses, PW1, PW3 and PW4, were not only material witnesses but also eye witnesses whose value was obvious. Responding on the failure to call CPL Mohamed and the Justice of the Peace, Ms.-. Mlenza submitted that, both were not material witnesses as even the documents which they dealt with, were not brought before the court as evidence. In the event therefore, their presence was redundant. Responding on the prosecution's failure to tender before the trial court the appellant's cautioned statement and an extra judicial statement, as material documents, likewise, it was Ms. Mlenza's submission that the same were not necessary as the prosecution's witnesses did not need them to prove the charge. She said, that the evidence by the prosecution's material witnesses especially those who were at the scene of the crime, was enough to warrant conviction. In determining this ground of appeal, we have seen it pertinent to comprehend the definition of "the material witness" for us to determine whether the above outlined witnesses were material witnesses or otherwise. According to LII Legal Information Institute, a material witness is a witness who possesses information going to some fact that affects the merits of the case. Generally, the information the material witness possesses has to have strong probative value and few, if any, other witnesses possess the same information. 9 In our recent decision in George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) the definition of "material witness" was also well described as: a witness who can testify about matters having some logical connection with the consequential facts especially if few others, if any, know about these matters, (See Black's Law Dictionary 8th Ed. page 1634). Generally, the information the material witness possesses has a strong probative value and, very few, if any witness, possess the same information. It should be needless to say, at thisjuncture that, probative value is the probability of evidence to reach its proofpurpose o f the fact in issue." A material witness was also defined in the case of Wachawaseme John v. Republic, Criminal Appeal No, 468 of 2022, (unreported) where the Court held: "In law, generally a material witness is a witness whose evidence is relevant and consequential to the substantive legal proceeding." Bearing in mind the above definitions on a material witness, the question which is pertinent for us to determine is whether CPL Mohamed and the Justice of the Peace were material witnesses. 10 Examining the two expected witnesses conjointly, it is obvious that the case at hand was solely built by eye witnesses who were PW1, PW3 and PW4 respectively, who were at the crime scene. These witnesses certainly managed to testify on every episode that had occurred and led to the deceased's death, the subject in the trial court. Their testimonies went hand in hand with the facts which were also admitted by the appellant as outlined above. The information they offered through their testimonies was strong with probative value to prove the charge. We have no reason to doubt this finding as they were truthful witnesses. As their evidence showed an expression of the appellant's intention to commit the offence, it went beyond mere motives and successfully connected the appellant with the act of killing. It is our view that, once it has been established that there was some competent evidence to support a finding of fact by an eye witness, it is not necessary for the prosecution to call every other witness who was involved in the case without being cognizant that they are witnesses of no value to the proceedings. CPL Mohamed and the Justice of the Peace if, were to be summoned to testify, their testimonies would have no any added value, neither direct nor corroborative to assist the court. As such, both of them could have testified on hearsay evidence as they were not 11 present when the offence was committed. In a situation such as the one at hand, we cannot hesitate to say that, the appellant's counsel misdirected herself categorizing the above persons as material witnesses. The same applies to the documents wished to be tendered in court to be termed as material documents, as she wrongly perceived, Thus, we are satisfied that CPL Mohamed and the Justice of the Peace were not material witnesses as they would not possess straight and strong information going to the fundamental facts and merits of the case. Likewise, to the material documents as prescribed above of which could have neither any assistance nor value that deserves in the court's proceedings. On this ground, we fully subscribe with Ms. Mlenza's submission that the ground is solely based on misconceptions hence destitute of merit. We accordingly dismiss it. Next is the complaint by the appellant that the trial court erred in basing the appellant's conviction on the evidence of the prosecution's witnesses which was incredible, contradictory and unreliable. Unfortunately, the appellant's counsel in support of this ground, she raised a general accusation that the prosecution's named eye witnesses, being PW1 PW3 and PW4's testimonies had a lot of inconsistences without outlining the said inconsistencies. On our attempt to recall and upon searching of these witnesses, whom were at the scene of the crime, we have failed to trace any material inconsistences that emerged and would have shaken the prosecution's case. In her attempt to convince the Court on the said inconsistencies, Ms. Sadallah referred us to page 47 line 10 of the record of appeal where she insisted that PW3 had a duty of stating where the knife which was used at the incident came from, as she was not able to see the appellant taking out the same from his body. Meanwhile, PW l's testified that she saw the appellant pulling a knife from his pocket and started to stab her sister, the deceased with the same on her body. In fact, we find no substantial inconsistence in this fact particularly on the appellant's advocate's demand that PW3 should have stated where the knife came from. From the alleged contradiction by Ms. Sadallah, we have failed to trace any significant contradictions and inconsistences between PW1 and PW3; even with other prosecution witnesses' testimonies which point to their deliberate untruthfulness. It is trite law that not every contradiction or discrepancy on witnesses' account is fatal in proving the case. However, minor discrepancies on details due to normal errors of observations, lapse of memory on account of passages of time, or due to mental disposition such 13 as shock and horror at the time of occurrence of the event, could be disregarded. Moreover, it has been the position of this Court that contradictions by a witness or between witnesses is something which cannot be avoided in any particular case. See the cases of Twaha Salim v. Republic, Criminal Appeal No, 21 of 2018, and Rasul Hemed v. The Republic, Criminal Appeal No. 202 of 2012 (both unreported). In the light of the above, we find the alleged inconsistencies if any, did not disintegrate the solid evidence of the prosecution's witnesses who were believed by the trial court to be credible, as we also have the same observation. This ground of appeal is equally without merit. In view of what we have endeavoured to discuss, having re­ evaluated the entire trial evidence, we are satisfied that, the conviction of the appellant by the trial court is justified because the charge was proved beyond reasonable doubt; that the deceased was killed by the appellant and none other. His identification at the scene of the crime is a clear case of recognition than identification considering that, the appellant was known to the identifying witnesses prior to the incident. Further, is his agreement to some of the material facts that, he was at the scene of the crime on that associated night, there was a fight involving a knife, undoubtedly to have caused the deceased's death. Consequently, there is no reason why this Court should depart from the findings of the trial court. In the result, this appeal fails and it is dismissed. DATED at MOSHI this 10thday of June, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 11th day of June, 2024 in the presence of Appellant in person and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. Ul£ it lu^ A. S. qbllGULU DEPUTY REGISTRAR COURT OF APPEAL 15