CRIMINAL APPEAL NO 238 OF 2021 MUNGEI SIMION V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: SEHEL. J.A.. KAIRO. 3.A. And. KHAMIS. J J U CRIMINAL APPEAL NO. 238 OF 2021 MUNGEI SIMION......................................................................... APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Musoma) (Banzi. J,1 dated the 30th day of April, 2021 in Criminal Sessions Case No. 56 of 2020 JUDGMENT OF THE COURT 10th & 20th February, 2025 KAIRO. J.A.: The appellant, Mungei Simion was charged before the High Court of Tanzania at Musoma with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). The particulars of offence were that, on 8th September, 2017 at Luanda village within Rorya District in Mara Region, the appellant murdered one Thomas s/o Dalmas @ Rumba. As it were, when the charge was read over and explained to the appellant, he denied the allegation and thus, the matter went to a full hearing. The prosecution relied on three witnesses namely; Matiko Mwita (PW1); a cousin brother to the deceased, Tina Thomas Dalmas (PW2); the deceased's wife, and No. G.3978,Detective Corporal Mohamed, (PW3); a police officer who investigated the case. It further tendered a Postmortem Examination Report of the deceased which was admitted in evidence as exhibit PI. Briefly, the prosecution's case was that; on 8th September, 2017 around 0800hrs, PW1 was in his farm situated at Luanda Village and heard an alarm. He rushed to where the alarm was coming from. On arrival, he found the appellant and two others, Kyeyo Simion and Membe Kyeyo assaulting the deceased. He saw the appellant and Membe Kyeyo holding bush knives while Kyeyo Simion had a spear. PW1 further testified that, he was about six paces from the place of incidence and saw Membe Kyeyo and the appellant cutting the deceased on the forehead and the left leg respectively. He also saw Kyeyo Simion stabbing the deceased with a spear at the left side of his back. On seeing the assault, PW1 raised an alarm and PW2 was the first to respond followed by the village chairman and other villagers. PW2 stood about 10 paces away from the scene of incident witnessing the appellant and his colleagues cutting the deceased. The trio were well known to her since the year 1995 when she married her late husband and settled at the village with him. After killing him, the 2 three assailants disappeared and the next time she saw the appellant again was in court when she was testifying. PW1 on his part stated that the appellant escaped to Kenya and was later found in Mwanza where he was arrested and brought to justice. It was the testimony of PW1 that, he knew the three assailants since their childhood and that they lived in the same village. When testifying, PW1 described the attire the trio had put on the fateful date to be a white shirt by Membe Kyeyo, black sleeveless T. shirt for the appellant while Kyeyo Simion had put on a shirt with dots. The description of their attires was also echoed by PW2. Later the police officers arrived at the scene after getting a report from the village chairman. One of the policemen was PW3 who took the deceased body to the hospital and also witnessed the autopsy conducted on the body. PW3 on his part testified that, on 9th September, 2017 he received the case file so as to proceed with the investigation. That it was through the writing of witness statements, he realized that the trio were involved in the killing and escaped. The police kept on tracing them and through informers, managed to arrest the appellant in Mwanza on 28th August, 2019 after which he was transferred to Tarime. As alluded to before, the appellant disassociated himself from the 3 offence when arraigned in court to answer the murder charge. In his defence, the appellant stated that, on 8th September, 2017 while in his farm, he heard the alarm and went towards it Upon arrival, he saw a group of people while the deceased's body was lying down. That during the evening hours of the same day, he was arrested and taken to Shirati Police Station where he found two persons including PW1. The appellant stated that, he stayed at the police station for a week before he was released. Later on 28th August, 2019, he was re-arrested at Luanda Village and taken to the police station where he was interviewed about the killing incident. He stayed there for 14 days until 9th September, 2019 when he was taken to court accused of murdering the deceased. The appellant denied having been in Mwanza between years 2017 to 2019 insisting on his innocence. At the end of the trial, the trial Judge found the appellant guilty and consequently, convicted and sentenced him to suffer death by hanging. The appellant was aggrieved, hence, decided to lodge this appeal to challenge the trial court's decision. He was armed with 3 grounds of appeal comprised in the supplementary memorandum of appeal lodged on 29th January, 2025 after abandoning other memoranda previously lodged. The three grounds can conveniently be paraphrased as follows:- 1. That, the trial judge erred in iaw and fact for failing to rule out that PW1 and PW2, were witnesses with their own interest to serve, and thus, their evidence required corroboration from an independent prosecution witness before relying on it. 2. That, PW1 and PW2 were not credible enough to allege to have properly identified the appellant to warrant his conviction and sentence. 3. That, the unexplained delay to arrest the appellant casts doubt on the prosecution case which doubt was to be resolved in favor o f the appellant At the hearing of the appeal, Mr. Cosmas Tuthuru, learned advocate, represented the appellant On the other hand, Msses. Shose Naiman and Janeth Kisibo together with Mr. Charles Kagirwa, all learned Senior State Attorneys, represented the respondent Republic. From the outset, the respondent declared its stance to oppose the appeal. Before his submissions to amplify the grounds of appeal, Mr. Tuthuru informed the Court that he would address all three grounds of appeal collectively whose main grievance hinged on the visual identification of the appellant by PW1 and PW2. The said grievance had two limbs: first; that PW1 and PW2 who are key witnesses had an interest to serve. He submitted that, it was an error for the trial court to believe the evidence of 5 PW1 and PW2 without corroboration from an independent witness. It was his argument that, the two witnesses being related, there could be a possibility of fabricating a story against the appellant to serve their interest. He contended that, an independent witness was necessary to corroborate the evidence of PW1 and PW2 and that the trial court erred for failing to consider those factors. He referred us to the case of Birahi Nyankongo and Another vs Republic, Criminal Appeal No. 182 of 2010 [2012] TZCA 151 and Abrahama Wilson Saiguran and 2 Others vs Republic, [1981] T.L.R. 265 to cement his contention. He concluded that, in the circumstances, the alleged proper identification of the appellant at the crime scene cannot be guaranteed and in the same vein, the case cannot be said to have been proved beyond reasonable doubt. The Second limb was on credibility of the identifying witnesses whereby the learned counsel submitted that, PW1 and PW2 failed to mention the appellant to the people who responded to the alarm raised. He contended that, the omission casts doubt on their credibility and thus, the alleged optimum identification of the assailants at the scene of crime was doubtful. He added that, the delay to mention the assailants resulted to a delay in arresting the appellant who was in the village through-out the time since the occurrence of the incident. In further clarification of the grievance, Mr, Tuthuru submitted that, 6 PW3 got the assailant's names from the witnesses' statements though he also went to the scene of crime and was involved in the post-mortem examination of the deceased body. According to him, the way PW3 got the said names signifies that, he was not told their names before. He submitted further that, even descriptions of the assailants' attire given by PW1 and PW2 related to the appellant alone and not the other alleged assailants. He also submitted that, the witnesses did not give the assailants' physical appearance in terms of height, complexion, body physique and other relevant marks to distinguish them from other persons. The learned counsel concluded that, the pointed-out omissions rendered the alleged identification by PW1 and PW2 questionable. When asked as to whether the description of the assailant's appearance was necessary in identification by recognition, Mr. Tuthuru answered that, even if not necessary, but the witnesses in the case at hand failed to mention even names of the alleged assailants, which also made the alleged recognition of the appellant doubtful. He cited the case of Ibrahim Eston vs Republic, Criminal Appeal No. 75 of 2021 [2024] TZCA 516 to back up his arguments. Refuting PW3's testimony that the appellant escaped after committing the offence, Mr. Tuthuru argued that, the prosecution did not bring any evidence proving that an arrest warrant was issued against the 7 appellant and that, he was listed in the missing and wanted persons register (P.F. 179) as prescribed under Police General Order No. 238 (the PGO). He argued that, in the absence of such evidence, the appellant's testimony that he was arrested by the police in the evening of the fateful date alongside PW1 in connection with the killing and later released to continue with his activities in the village, should be believed. Attacking the trial court's finding faulting the appellant's failure to cross examine on the issue concerning his escape after the incident, the learned counsel argued that, the said omission does not necessarily mean that he agreed to the assertion. He pleaded with the Court to look at the evidence of both the prosecution and the defence on this issue so as to come up with its own finding. As a conclusion, he implored the Court to rule out that the identification was not watertight and, on that basis, the prosecution case was not proved and thus, allow the appeal and release the appellant. When queried as to whether the tendering of the missing and wanted persons register was a legal requirement, Mr. Tuthuru answered in affirmative that such investigative procedures were bound to be followed in order to establish on whether the appellant was registered as a wanted person as alleged by the prosecution witnesses. However, he conceded that, the issue was not brought up during the trial. When further probed as to whether the Court has the mandate at this juncture to look at the PGO which was not part of the record at the trial court, he answered in affirmative insisting that, non adherence of the PGO was a serious omission. Responding to Mr. Tuthuru's submissions, Ms. Naiman who stood to resist the appeal countered that, the circumstance for proper identification of the appellant by PW1 and PW2 were favorable and the prosecution case was proved to the standard required. She started by addressing the second limb of the appellant's grievance which questioned the credibility of PW1 and PW2. The learned Senior State Attorney submitted that, the duo were eye witnesses and narrated what transpired at the scene of crime. She dismissed the learned counsel's argument that identification was not watertight. Illustrating, the learned Senior State Attorney submitted that, the incident occurred around 08.00 hours and that PW1 and PW2 were about 6 to 10 paces away from the crime scene. Besides, the assailants and the identifying witnesses were staying together in the same village for long time, as such, they recognised the persons they knew and not identification of a stranger. It was her argument that the evidence of recognition is more reliable than identification of a stranger and referred us to the case of Chacha Jeremiah Murimi and 3 Others vs Republic, Criminal Appeal No. 551 9 of 2015 [2019] TZCA 52 TANZLII. Insisting on the proper recognition of the appellant by the witnesses, Ms. Naiman submitted that, PW1 and PW2 proceeded to state the attire worn by each of the assailants, the type of weapons held by each, and to which part of the deceased body each one of them had inflicted a blow. She went on to submit that, their narrations were verified by exhibit PI which stated that, the deceased had multiple injuries in his body. She added that, even when cross examined, the appellant conceded that they knew each other well and admitted that, due to their familiarity, PW1 and PW2 could not make a mistake in recognizing him. He thus argued that, the cited case of Ibrahim Eston (supra) was distinguishable from this case as the identification therein was of a stranger unlike in the case at hand where the assailants and the witnesses were familiar to each other. She also refuted the alleged need to describe the assailants' appearances in recognition as the same is not a legal requirement. Regarding the first limb of the appellant's grievance, Ms. Naiman refuted that, the evidence of PW1 and PW2 needed corroboration as the two were related thus, had a common interest to serve. She referred us to the cited case of Birahi Nyankongo and Another (supra) in support of her contention and clarified that, what is considered by the court is the witnesses' credibility and not the relations they have. She added that, in 10 the matter at hand, PW1 and PW2 were credible and trustful witnesses and there was no cogent reason to find otherwise by the trial court. She referred us the case of Goodluck Kyando vs Republic [2006] T.L.R 363 to fortify her argument. The learned Senior State Attorney also disputed a contention that there was a delay in naming the assailants submitting that even PW3 knew their names when collecting the witnesses' statements despite visiting the crime scene on the fateful date. She further refuted the argument by Mr. Tuthuru that, the delay to name the suspects resulted to delay in arresting the appellant which rendered the alleged identification of the assailants doubtful. She explained that, the incident occurred on 8th September, 2017 and PW3 received the case file for investigation on 9th September, 2017 when he started to collect the witnesses' statements. She thus argued that there was no delay in naming the assailants and the assertion was not true. Regarding the appellant's argument that he was in the village through-out the time after the incident and never ran away, Ms. Naiman submitted that, the record does not support that assertion. Elaborating, she submitted that, PW1 testified that after the appellant committed the offence, he escaped to Kenya and was subsequently found in Mwanza where he was arrested. She went on to submit that, PWl's testimony as 11 regards the place of the appellant's arrest was confirmed by PW3 who testified on the intelligence report which enabled the police to arrest the appellant in Mwanza. As for PW2's testimony on that aspect, Ms. Naiman submitted that, PW2 stated to have never seen the appellant since he killed her husband until when he saw him in court when she was called to . testify on the incident. The learned Senior State Attorney referred us to pages 12, 15 and 18 of the record of appeal to verify her submissions. She went on to argue that, the appellant neither cross examined on the testimonies concerning his escape nor on being arrested in Mwanza. She argued that, failure to cross examine is considered the acceptance of the matter at issue and the learned counsel's argument on this aspect is misconceived. She cited the case of Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 (unreported), to cement her arguments. Regarding the failure to tender any evidence to verify that the appellant was a wanted person and an arrest warrant was issued against him as prescribed in the PGO No. 238, Ms. Naiman submitted that, there was no legal requirement to bring to court all what was done during investigation process. But further, tendering it is an issue of fact and not law as argued by Mr. Tuthuru. Thus, she prayed the Court to disregard the argument. Ms. Naiman implored us to find the contention that the appellant was 12 formerly arrested alongside with PW1 in relation to the offence to be an afterthought. She further argued that, the appellant's defence has not shaken the prosecution's case as correctly ruled out by the trial court. She concluded that, the appellant was properly identified as an assailant in the killing of the deceased with malice aforethought. Expounding on the aspect of malice, Ms. Naiman submitted that, the type of weapons used to attack the deceased, the bush knives and a spear, the number of blows inflicted and the amount of force applied which can be explained by the multiple cut wounds found on the deceased body, the parts of the deceased body where the blows were inflicted on, coupled with the conduct of the appellant after the incident confirmed that the killing was done with malice aforethought as found by the trial court. She cited the case of Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994 (unreported) to back up her argument. Ms. Naiman prayed the Court to find that the prosecution proved the case beyond reasonable doubt and dismiss the appeal. In his rejoinder, Mr. Tuthuru maintained his submission in chief insisting that the appellant was not properly identified and the case was not proved to the required standard. He reiterated his prayer to have this appeal dismissed and the appellant released. 13 Having heard the rival parties' submissions, the issue for our determination is whether the prosecution proved its case beyond reasonable doubt as found out by the trial court. Essentially, in murder offences like the one at hand, the prosecution is required to prove the death of the deceased and that the said death was not natural. Further to that, the prosecution has to prove that it was the appellant who was involved and the killing was with malice aforethought. In the matter at hand, there is no dispute that Thomas s/o Dalmas@ Rumba is no more and died an unnatural death as testified by all witnesses including the appellant and shown in exhibit PI. The issue for our determination is whether it was the appellant who killed the deceased with malice aforethought. In proving that, the prosecution centered its case in the evidence of visual identification by PW1 and PW2 who testified to have seen the appellant killing the deceased in the company of his co-assailants who are still at large and thus, not parties to this appeal. Their identification was faulted by the appellant to be improper. Admittedly, the evidence of identification is among the weakest kind and no court should base its conviction on it unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the 14 evidence before it is absolutely watertight. [See: Waziri Amani vs Republic [1980] TLR 250 and Gozibert Henerico vs Republic, Criminal Appeal No. 114 of 2015 [2016] TZCA 660]. It is on record that, the incident occurred at around 08.00 hrs, thus during daylight. PW1 and PW2 were about 6 to 10 paces away from the scene of incident and they all knew the appellant as a village mate whom they lived together for over 20 years. In the wake of those facts, we agree with Ms. Naiman that the identification was more of recognition of the person they knew as against the identification of a stranger having been familiar to the appellant. It is the stance of the law that, the evidence of recognition is more reliable than identification of a stranger [Issa s/o Ngara @ Shuka vs Republic, Criminal Appeal No. 37 of 2005 and Magwisha Mzee Shija Paulo vs Republic, Criminal Appeal No 465 and 467 of 2007 (both unreported) and Chacha Jeremiah Murimi & 3 Others (supra)] This familiarity was also conceded by the appellant himself at page 25 of the record of appeal where he stated that, PW1 and PW2 were well acquainted with him such that they could not make a mistake in recognizing him. On that account, Mr. Tuthuru's attack to the appellant's recognition has no base. 15 In another twist of argument, the appellant opposed the finding that the recognition was proper arguing that PW1 and PW2 were related as such, the trial court should have not relied on their testimony in the absence of a corroborative evidence from an independent witness. The respondent countered the argument asserting that what the trial court looked at was their credibility and not relations they have. With respect, we wholly agree with the respondent. The witnesses gave eye witness accounts of what they saw. The mere fact that they were related does not make their evidence lose credibility. PW1 and PW2 in this case went ahead and described the attires worn by each of the assailants on the fateful day which adds to the truthfulness and reliance of their tales. As if that was not enough, both witnesses gave similar accounts on parts of the deceasd's body each assailant inflicted the blow. Their stories were corroborated by exhibit PI. In Paul Tayari vs Repulic, Criminal Appeal No. 216 of 1994 (unreported), the Court observed the following regarding the testimony of related witnesses: " We wish to say at the outset that it is o f course, not the faw that whenever reiatives testify to any event they should not be beiieved uniess there is aiso evidence o f a non-relative corroborating their story. Whiie the possibility that relatives may chose to team up and untruthfully promote a certain 16 version o f events, it must be borne in mind that, the evidence o f each must be considered on merit as shouid aiso the totaiity o f the story told by them. The veracity o f their story must be considered and gauged judiciously just like the evidence o f non­ relatives" Flowing from the above decision, it is obvious that the questioned witnesses are entitled to credence and trust just like any other witness unless there is cogent reason to the contrary. [See: Goodluck Kyando (supra)] to which we can say without hesitation that, we did not see anything to doubt their credibility. We understand that Mr. Tuthuru is of the view that the two witnesses could manufacture evidence against the appellant since they are related. However, with respect, we do not agree with him as the evidence in totality do not show or suggest that the said witnesses had a common interest to promote and serve. As such, the need to have an independent witness to corroborate the evidence of PW1 and PW2 does not arise. We find the argument to hold no water. In relation to that, the appellant also questioned the credibility of PW1 and PW2 which according to him, impacted adversely on his identification for what he alleged to be failure to mention the assailants to PW3. His assertion stemmed from PW3's testimony that he knew the 17 names of the assailants when he started to collect the witness statements. However, in our view, the argument is not supported by the record of appeal as correctly argued by Ms. Naiman. According the record, the incident occurred on 8th September, 2017 and PW3 received the case file for investigation on 9th September, 2017 which was just a day after the incident and started to investigate the case and noted the names of the suspected assailants. On this account the assertion that there was delay in naming the assailants is not true. Further to that, an allegation that there was a delay to arrest the appellant is also not correct. PW1 stated that, the appellant escaped to Kenya after the incident until when arrested in Mwanza while PW2 testified to have seen the appellant in court when she appeared to testify on the killing of the deceased. Their testimonies were verified by PW3 who stated that the appellant was arrested in Mwanza in August 2019. This explains why there was a delay in arresting him which we think is satisfactory. In the same veins, the appellant's defence that he was in the village after the incident has no base. Neither his version that he was arrested together with PW1 in connection to this offence. That apart, the appellant has neither cross examined the prosecution witnesses on the aspect of being in the village after the incident, nor on the alleged delay. It is a settled law that such failure tantamounts to 18 accepting the substance of the testimonies as we have observed in our previous cases of Nyerere Nyague vs Republic (supra), Hassan Mohamed Ngoya vs Republic, Criminal Appeal No. 134 of 2012, Raymond Mwinuka vs Republic, Criminal Appeal No. 366 of 2017, (both unreported) to mention but a few. Regarding the failure to tender P.F. 179 to prove that the appellant was registered as a missing and wanted person as prescribed under PGO 238, We hold that the issue was not brought to the attention of the trial court, as such, we find the argument an afterthought and we cannot entertain it. In totality, basing on what we have endeavored to discuss, we find the grievance unfounded and we agree with the trial court that the appellant was properly identified as one of the assailants who killed the deceased. As to whether the killing was with malice aforethought, the case of Enock Kipella (supra) cited by the learned Senior State Attorneys is a guidance in this aspect. The appellant and his co-attackers used bush knives and a spear which are lethal weapons to attack the deceased. The blows were directed on the deceased's head and chest among other parts of the body. Needless to say, both are sensitive and delicate parts of the 19 human body. The inflicted number of blows and the force applied was explained by the multiple cut wounds found in the deceased's body as stated in exhibit PI. On top of that, the appellant's conduct to run away after killing confirms malice aforethought on his part. In fine, we uphold the trial court's findings that, the case was proved beyond reasonable doubt and we therefore dismiss this appeal in its entirety. DATED at MUSOMA this 20th day of February, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 20th day of February, 2025 in the presence of the appellant in person, Messrs. Nico Malekela and Isihaka both learned State Attorneys for the respondent/Republic, is hereby certified as a true copy of the original.