CRIMINAL APPEAL NO 22 OF 2021 DENIS ONDIGO VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: MUGASHA. J.A., MASHAKA, 3.A. And ISSA, JJ U CRIMINAL APPEAL NO. 22 OF 2021 DENIS ONDIGO................................................................. APPELLANT VERSUS REPUBLIC................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (KahvozaJLl dated the 2ndday of November, 2020 in Criminal Session Case No. 30 of 2020 JUDGMENT OF THE COURT 21st 8125th October, 2024 MASHAKA, J.A.: The High Court of Tanzania sitting at Musoma, convicted and condemned the appellant, Denis Ondigo to death for the murder of Mass Denis his step daughter contrary to sections 196 and 197 of the Penal Code (CAP 16 R.E. 2019). Aggrieved with the conviction and sentence, the appellant is before the Court challenging the decision. It was alleged by the prosecution that on 7th March, 2018 at Kabwana village within Rorya District in Mara Region, the appellant murdered Mass his step daughter. To prove the charge, they relied on three witnesses and four documentary exhibits, namely; report on post mortem examination PI, sketch map of scene of crime P2, statement of Denis Samwel Otulo P3 and report on post mortem examination of Denis P4. In his defence, the appellant denied to have killed the deceased and stated that the deceased was his biological daughter suffering from epilepsy and had fallen down. A contextual account to this appeal is that, the appellant and Jackline Okeyo Misiko (PW1) were married and living together as husband and wife. PW1 had a daughter, Mass Denis who was born on 3rd October, 2015 before she got married to the appellant, thus the appellant was the step father. Though they were living under the same roof, life was not that blissful. PW1 stated that the appellant had a habit of beating their daughter with a big stick, also had broken her right leg and whenever asked, he did not reply. PW1 took her daughter to the Mennonite Church hospital. She was treated, though she lied to the doctor that their daughter had fallen and broke her leg so as to protect the appellant who had pleaded with her not to mention that he was responsible. Also, PW1 was not spared the brunt of the beatings and being slapped by the appellant on a number of occasions. At night on 3rd March, 2018, PW1 heard her daughter crying from her room. When she woke up, her husband was not in the room. She went to the room of their daughter and saw the appellant raping her. PW1 shouted for help but the appellant slapped her and threatened to kill her if she shouted again for help. Becoming subservient, PW1 kept silent, took the deceased who was bleeding from her private parts and cleaned her. The next morning, PW1 shouted for help and her neighbors came and advised her to take the deceased to the hospital. Since she could not afford to take her daughter to the hospital because she had no money, thus continued to clean her daughter's private parts so that she does not get any infection. The saga did not end there. Come 7th March, 2018 PW1 went to the maize milling machine and left her daughter who was fine in the care of the appellant at home. When she returned, she found the deceased was very weak, had bruises and her legs and eyes were swollen to the extent that she could not open her eyes as was unconscious. PW1 questioned the appellant as to what had befallen the deceased and he told her that she had climbed and fallen from the window. PW1 did not buy the story because the deceased aged three years could not climb the window which was high for her. They took her to the KMT Shirati hospital, where she was admitted and later transferred to Bugando hospital in Mwanza because of her deteriorating condition. The hamlet chairman, John Harun Rhobi (PW2) received information and made a follow up at the hospital. He found the child admitted in hospital and was unconscious. Both PW1 and the appellant were at the hospital with their daughter. PW2 probed the nurse attending the deceased, and was told that the deceased had a problem in her head, also she had burn scars and there was an old scar showing that her leg had been broken. PW2 arrested the appellant with the assistance of a police and militia man and took him to Shirati Police station. The case was assigned to WP 7523 D/C Regina (PW3 also PW4) to conduct the investigation. She visited the neighbours of PW1, interviewed Christian w/o Otama and Denis Samwel Otulo. She recorded and tendered Denis Samwel Otulo's statement (exhibit P3) under section 34 B (2) of the Tanzania Evidence Act [CAP 6 R.E. 2019] (the TEA) as he passed away before he could testify. In exhibit P3, Denis Samweli Otulo stated that when conducting his daily tasks inspecting toilets in the area, passing near the appellant's house he saw him beating the deceased with a big thick stick and when he inquired, the appellant told him not to interfere with his family business. Then the appellant took the deceased and entered his home. Eventually, the deceased was given a referral to Bugando Hospital but she passed away enroute to the said hospital. PW3 was informed and a post mortem examination was conducted revealing that the cause of death was due to severe traumatic brain injury. The appellant was eventually charged with murder. The trial ensued and the court was satisfied and impressed with the evidence of PW1 as a witness of truth. This account is supported by exhibit PI as the doctor established that there was brain bleeding to subarachnoid affecting the inner parts of the deceased's brain which was caused by being beaten with a blunt instrument, that is the reason she could not open her eyes and was unconscious. Also, the trial court was satisfied with the evidence of Denis Samwel Otulo exhibit P3 that on 07/03/2018 around 11:15 hrs while conducting his official duties saw the appellant beating the deceased with a big thick stick and became concerned with how the appellant was administering the beating using such a stick on a three years old child. Though Denis Samwel Otulo could not appear for cross examination, it was the finding of the trial Judge that the statement was true and reliable as exhibit PI corroborated the evidence of PW1 and exhibit PI that the deceased was assailed by a blunt object causing her death. The trial Judge considered the defence evidence that the deceased was left in the care of the appellant by PW1 who went to the farm to plant maize. It was his evidence that the deceased was his biological daughter who was suffering from epilepsy and had fallen down, though he gave a different account to PW1 that the deceased had climbed a window and fell down. He was unable to explain what had happened to the deceased to be in the condition found by PW1. It was the finding of the learned trial Judge that the evidence did not raise any doubt to the prosecution evidence. The learned trial Judge found the appellant guilty and convicted him as charged based on the circumstantial evidence adduced by PW1, PW2, PW3/PW4, exhibits PI and P3 after being satisfied that the respective account gave a full account on how the appellant was involved in the death of the deceased. Aggrieved, the appellant has come before the Court. The appellant lodged two sets of memoranda of appeal dated 18th June, 2021 and 28th June, 2021 and two sets of supplementary memoranda of 09th January, 2023 and 11/10/2024 seeking to demonstrate his innocence. However, at the hearing, he abandoned all the said memoranda of appeal and was granted leave to substitute with the supplementary memorandum dated 11/10/2024 containing four grounds as hereunder: - 1. That, the trial courtgrossly erred both in law and fact in admitting and relying on exhibit P.3 and P.4 which were not listed to be among the documents which would be produced by the prosecutions during the appellant's trial and the substance o f its contents or evidence were not read out to the Appellant during committal proceedings in accordance with section 246(2) and289(1) of the CriminalProcedure Act[CAP. 20 R.E. 2022]. 2. That, the trial courtgrossly erred both in law and fact in convicting and sentencing the Appellant by relying on exhibit P. 3 which was admitted un-procedura/ty in contravention o f section 34B (2) (a), (d) & (e) o f the Evidence Act [CAP 6. R.E 2022], 3. That, the trial court grossly erred both in law and act in holding that PW1 was a witness of truth while, in fact, the said witness was not credible and trustworthy given the un-reasonability o f her conduct as revealed from her evidence, and her evidence as a whole, both of which were inconsistent with reason, common sense and common course of natural events and human conducts. 4. That, the trial courtgrossly erred both in law and fact in convicting and sentencing the appellant by relying on the weakness o f the defence evidence yet the case was notproved beyond reasonable doubt During hearing of the appeal, the appellant appeared in person represented by Messer. Leonard Elias Magwayega assisted by Paul Binton Obwana, learned advocates while the respondent Republic had the services of Mr. Isihaka Ibrahim, assisted by Ms. Agma Agrey Haule, and Ms. Beatrice Mgumba, all learned State Attorneys. Mr. Magwayega commenced to argue grounds 1 and 2 faulting the trial court relying on exhibits P3 and P4 which were not listed among the documents to be produced by the prosecution during trial and the substance of its contents were not read out to the appellant during committal proceedings contravening sections 246 (2) and 289 (1) of the CPA. He further contended that the trial Judge erred to rely on exhibit P4 which was admitted in evidence in contravention of section 34 B (2) (a), (d) and (e) of the TEA and prayed to the Court to expunge exhibits P3 and P4 from the record. Mr. Obwana also expanded further on ground 2 that the document admitted as exhibit P3 and its notice under section 34 B (2) of the TEA was neither listed nor read out at the committal proceedings. It was his contention that exhibit P3 a typed statement of Denis Samweli Otulo failed to pass the test prescribed under sections 246 and 289 of the CPA. Bolstering his argument with the case of Kashinje Sita and Five Others v. the Republic, (Criminal Appeal No. 49 of 2022) [2024] TZCA 862 (6 September 2024 TANZLII) that the stated provisions obligate the inquiry court to avail the appellant with evidence intended to be relied upon by the prosecution before trial to enhance a fair trial and not take the appellant by surprise because the offence against the appellant was a serious one carrying a capital penalty. It was his contention that where such evidence was not disclosed during the committal proceedings, it can only be acted upon as additional evidence even in terms of section 289 (1) of the CPA. As to the statement of a witness who cannot be found, it cannot be exhibited and relied upon in terms of section 34 B (2) (a) of the TEA which requires notice to be served on the appellant within 10 days. He also challenged exhibit P3 that it contained different names of the maker of the statement as stated by PW4 who tendered it, thus they were two different statements and not from the same person. Subsequently, due to the contravention of the laid down procedures under sections 246 (2) and 289 (1) of the CPA and section 34 B (2) (a), (d) and (e) of the TEA, the learned advocates implored the Court to allow grounds 1 and 2 and expunge exhibits P3 and P4. In reply, Ms. Haule resisted the appeal and submitted on ground 2 that the evidence of exhibit P3 was from the one and only Denis Samwel Otulo and no other person. She contended that if PW4 stated the names of Denis Wiiliam Otulo, it was purely a slip of her tongue. She maintained that exhibit P3 was read out to the appellant during the committal proceedings in compliance with sections 246 (2) and 289 (1) of the CPA. She added that exhibit P3 was hand written and not the typed version. Concerning compliance to section 34 B (2) (a), (d) and (e) of the TEA, she maintained that it was complied with to the letter as a notice was issued to the appellant with the attached statement of Denis Samwe! Otulo on 13/10/2020 and PW4 tendered the said statement on 23/10/2020 together with the post mortem examination report (exhibit P4) of Denis Samwel Otulo who died an unnatural death. She beseeched the Court not to expunge exhibits P3 and P4 and urged us to dismiss the appeal and sustain the conviction and sentence. We propose to deal with the issues raised in grounds 1 and 2 of appeal concerning procedural irregularities followed by grounds 3 and 4 as to whether the prosecution proved the offence of murder to the hilt against the appellant. The complaint raised in ground 1 was on how exhibits P3 and P4 (post mortem report of Denis Samweli Otulo) were admitted in evidence in contravention to sections 246 (2) and 289 (1) of the CPA, and ground 2 whether there was compliance to section 34 B (2) (a), (d) and (e) of the TEA. It is not disputed that committal proceedings were conducted on 21/05/2020 in compliance to section 246 (2) of the CPA and as gleaned from the record of appeal at page 81, Denis Samwel Otulo was listed as a witness for the prosecution and his statement (exhibit P3) was read out to the appellant before the committing court. It was expected by the prosecution to call him to testify before the trial court. At page 82 of the record, the committing magistrate ordered the preliminary information be supplied to the appellant before trial. We are mindful that the proper statement admitted in evidence as shown at page 66 of the record is the hand written statement marked exhibit P3 and the typed statement referred to by the advocates for the appellant did not prejudice the client. Theremaining question to be answered is whether the statement of Denis Samwel Otulo was in compliance with section 34 B (2) (a), (d) and (e) of the TEA which provides that: "(1) In any criminal proceedings where direct oral evidence o f a relevant fact would be admissible, a written or electronic statement by any person who is, or may be, a witness shall subject to the following provisions o f this section, be admissible in evidence as proofofthe relevantfact containedin it in Heu o fdirect oral evidence. (2) A written or electronic statement may only be admissible under this section- (a) where its maker is not called as a witness, if he is dead or unfit by reason o fbodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) NA (c)NA (d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statementis served, by or on behalfo fthe party proposing to tender it, on each o f the other parties to the proceedings; (e) if none o f the other parties, within ten days from the service o f the copy o f the statement, serves a notice on the party proposing or objecting to the statementbeing so tendered in evidence The record shows at pages 19 and 20 of the record, that the prosecution could not call Denis Samwel Otulo to give oral testimony because he was dead. Then, the prosecution on 13/10/2020 filed a notice expressing its intention to rely on the statement which was annexed to the notice. Hearing continued after expiration of prescribed 10 days on 23/10/2020. Within the prescribed 10 days there was no objection raised by the appellant to the tendering of the witness statement by PW4 and the statement was admitted in evidence. Additionally, we find that the question on the propriety of exhibit P4 not of any relevance since exhibit P3 was read at the committal proceedings. Thus, we find no reason to doubt exhibit P3 and it is our finding that there was compliance li to section 34 B (2) (a), (d) and (e) of the TEA. We find grounds 1 and 2 of appeal unmerited. The second issue for contention is whether the charge was proved beyond reasonable doubt based on ground 3 the credibility of PW1 and ground 4 whether the learned trial Judge considered the alibi defence. It is worthy to note that, this case was predominantly grounded on circumstantial evidence. The law is well settled that circumstantial evidence may ground a conviction where it irresistibly points to the guilt of the accused and is inconsistent with any reasonable hypothesis or explanation of innocence. This Court has on several occasions restated that in a criminal case based purely on circumstantial evidence, that evidence must irresistibly point to the accused's guilt and exclude any other person. See for instance, James Msumule @ Jembe and Others v. Republic, Criminal Appeal No. 284 of 2021 [2024] TZCA (13 March 2024 TANZLII) and Mayunga Mwenelwa v. Republic (Criminal Appeal No. 312 of 2020) [2024] TZCA 605 (19 July 2024 TANZLII). We have considered the submissions on circumstantial evidence relied upon by the prosecution, insisting that it irresistibly links the appellant to the deceased's death. We have similarly looked at the submissions made on behalf of the appellant, contending that the prosecution evidence relied on the evidence of PW1 who was incredible, unreliable and not of any evidential value. Learned advocates for the appellant strongly attacked the credibility of PW1 that she was uncredible and not reliable witness because she did not report the previous incidents of beatings by the appellant on the deceased. They argued that she did not witness the beating by the appellant that caused the death of the deceased and even doubted whether PW1 left the deceased in the care of the appellant on the fateful day, asserting that there was inaction on the part of PW1. They contended that the trial Judge wrongly depended on the character of PW1 as she continuously kept on lying and her evidence was full of inconsistencies and not being truthful. They referred us to the case of Riziki Valentine Massawe v. Republic (Criminal Appeal No. 440 of 2021) [2024] TZCA 813 (23 August 2024 TANZLII). Though the trial Judge examined the demeanour of PW1 and was of the finding that she was a credible and truthful witness, learned advocates maintained that she was a liar and had a devious character because when she took their daughter to the hospital with a broken right limb, she lied to the hospital doctor that she had fallen. Also, she never reported the beating incidents of their daughter and herself by the appellant to any person. In reply to this complaint, Ms. Haule argued that PW1 was a credible witness and in her evidence explained all the incidents which took place in her home; the harassments, beatings of the deceased and the appellant breaking the deceased's right leg and gave reasons why she did not report to the appropriate authorities. In addition, she argued that PW1 was fearful of her life as the appellant had threatened to kill her, fearful for their daughter who had told her that it was her father who broke her leg and burnt her forehead. She further cemented her submission that the appellant failed to challenge the evidence through cross examination that she left the deceased with the appellant in good health and when she returned home found her weak with swollen legs and eyes, and could not open her eyes and was not impressed with the reason that she fell down after climbing a window as she could not do so. She referred us to the cases of Goodluck Kyando v. Republic (2006) T.L.R 363 and Gaudence Sangu v Republic (Criminal Appeal No. 88 of 2020) [2022] TZCA 784 and implored us to give credence to PW1, to believe and accept her evidence for the reason that the trial Judge had an opportunity to observe her demeanour finding that she was a credible and reliable witness and there are no cogent reasons not to believe her. In analyzing the circumstantial evidence in this appeal, the learned trial Judge relied on the credible and reliable evidence of PW1 that, she left their daughter in good health with the appellant and went to the maize milling machine. It is our considered view that it is the appellant who was last seen with the deceased alive as per credible account of PW1. As to the injuries sustained by the deceased, this is corroborated by exhibit P3 statement of Denis Samweli Otulo, a passerby on the; day of incident who saw the appellant beating the deceased with a thick stick. Further, exhibit PI, showed that surgical opening of the cranial skull was performed to examine the brain and found that the death of the deceased due to a beating by a blunt instrument causing trauma of the brain bleeding to subarachnoid. This corroborates the evidence of PW1 that the appellant had the habit of beating the deceased and exhibit P3 corroborated the said beatings as Denis Samwel Otulo saw the appellant beating the deceased with a big stick. Thus, there is no reason to fault the findings of the trial court, that PW1 was indeed a witness of truth whose evidence is cemented by exhibits PI and P3 on the nature of injuries inflicted on the deceased. On ground four that the trial Judge convicted and sentenced the appellant without considering the defence of alibi, the learned advocates for the appellant contended that the appellant went to the shamba and left their daughter asleep alone at home. He argued that the appellant was not responsible with what happened to their daughter in his absence and cooperated with PW1 and took her to the hospital. It was their conclusion that the prosecution failed to prove the charge to the hilt and beseeched the Court to allow the appeal and set the appellant free. Ms. Haule submitted in reply that if the defence of alibi was not evaluated by the trial Judge, she implored the Court to steps in the shoes of of the trial court and being the first appellate court to evaluate it. She added that the alibi defence though raised contrary to section 194 (4) of the CPA, it failed to controvert and impeach the prosecution evidence as corroborated by exhibits PI and P3 proving the charge beyond reasonable doubt that the beating exerted on the deceased by the appellant using the big thick stick caused a severe traumatic brain injury which caused her death. Having scrutinised the evidence of the appellant at page 25 of the record, it appears that he raised the defence of alibi that when PW1 went to the maize milling machine, he also left their daughter alone and went to the farm. It is correct this part of defence evidence was not considered by the trial court. However, failure to consider the defence of the appellant is not fatal as this being the first appellate Court, we can step into the shoes of the trial court and evaluate the said evidence. See for instance, Idrisa Omary v. Republic (Criminal Appeal No. 554 of 2020) [2021] TZCA 448 (27 August 2021TANZLII). At page 27 of the record, the appellant when questioned by the 3rd assessor and he replied: - "My wife did notleave me with child (Mass Denis). She left child sleeping in the room. My wife was used to leave the child at home whenever I am there" Furthermore, the excerpt cemented that the appellant was with their child and when PW1 returned home from the maize milling machine, she found the deceased weak, with swollen eyes and legs, and bruises connecting the appellant with the beatings as witnessed by Denis (exhibit P3). However, he did not challenge the evidence of PW1 during cross examination that he left the deceased alone and her fall was due to her epileptic condition. Also, the appellant did not cross examine PW1 on this crucial evidence that the deceased was epileptic and even exhibit PI did not show that condition. The appellant is therefore deemed to have admitted or rather acknowledged all that was stated by PW1. It is trite principle that failure to cross examine a witness on an important matter amount to acceptance of the truth of evidence of that witness. See for instance, Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992, Damian Luhehe v. Republic, Criminal Appeal No. 501 of 2007 and Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 (all unreported). In Nyerere Nyague v. Republic, the Court had this to say: "As a matter o f principle, a party who fail to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. " It is our finding that the defence of alibi raised by the appellant was an afterthought That apart, the evidence contained in exhibit P3 and PW1 placed the appellant at the scene of crime. Ground four, in the circumstances, is devoid of merit. It is our considered view, and as rightly found by the trial court, all these facts provide overwhelming circumstantial evidence of the appellant's participation in the murder of their child Mass Denis. The incriminating circumstances are irresistible inference that the appellant and no one else committed the beating causing the death of the deceased. Consequently, looking at the totality of the evidence, we entertain no doubt that the trial court properly held that the prosecution proved the offence of murder to the hilt against the appellant. In fine, we find no merit in the appeal and the appellant's conviction and sentence by the trial court on the basis of circumstantial evidence stands. We hereby dismiss the appeal in its entirety. DATED at MUSOMA this 28th day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL delivered this 28th day of October, 2024 in the presence of Mr. Daud John Mahemba, learned advocate holding brief for Mr. Leonard Elias Magwayega and Mr. Paul Binton Obwana both learned advocates for the Appellantfand Mr. Zarubabel Ngowi, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL