CRIMINAL APPEAL NO 578 OF 2021 MUHERE MWITA GICHAMU V REPUBLIC

THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: SEHEL, J.A.. KAIRO, J.A. And, KHAMIS, J.AJ CRIMINAL APPEAL NO. 578 OF 2021 MUHERE MWITA GICHAMU.......................................................APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Musoma) (Kahvoza, J.) dated the 11th day of October, 2021 in Criminal Sessions Case No. 39 of 2021 JUDGMENT OF THE COURT 21st & 27th February, 2025 KAIRO, J.A.: The appellant and four others who are not parties to this appeal, were charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). It was particularized that, on 14th November, 2019, at Itiryo Village within Tarime District in Mara Region, Muhere s/o Mwita Gichamu, Nchore s/o Richard Mwita @ Gabriel, Makenge s/o Honga Chacha, Kisiri s/o Simon Muhere and Marwa s/o Mwita Mrimi, murdered one, Justine s/o Sospeter. The evidence in support of the charge came from four prosecution witnesses, namely, Priscus Thadeus Areal (PW1), deceased's fellow 1 teacher; No. G 7499 DC Abel (PW2) who drew the sketch map of the scene of crime, No. G. 6168 DC Selesius (PW3) who wrote the appellant's caution statement and Devotha Ernest Katunzi (PW4), the medical doctor who examined the deceased body. The prosecution also relied on three exhibits which were sketch map of the scene of crime (Exhibit PI), caution statement of the appellant (PW2) and postmortem examination report (Exhibit P3). For the defence, the appellant and his fellow accused testified as DW1, DW2, DW3 and DW4 respectively. The appellant also called Rose Mwita Joseph, his mother (DW5) but none of the defence witnesses tendered any exhibit. Marwa s/o Mwita Mrimi who was the 5th accused, was found to have no case to answer after closure of the prosecution case, hence acquitted. Briefly, the prosecution story was to the effect that; in November, 2019, PW1 and his fellow teacher by the name of Nick, were tasked to invigilate national examinations at Bungurere Secondary School. By that time, they were both teaching at Itiryo Secondary School together with the deceased. On 14th November, 2019, PW1 and his fellow teacher sought a lift from the deceased who had a motorbike to take them to Bungurere from Itiryo and the request was agreed. When the three teachers reached at Itiryo Primary School, they met a group of youths dressed in a traditional attire each holding a spear and a sword, standing beside the road. As they approached them, the youths blocked the road such that they could not pass. However, the deceased did not stop and suddenly, one of the youths who happened to be the appellant, took his spear and stabbed the deceased on his neck. The decease lost control of the motorbike and fell down. He was badly injured and was bleeding profusely. He died a few minutes later. The youths escaped and were later arrested at different intervals of time. The matter was reported to the police who came at the scene of crime. PW2 was involved in drawing the sketch map of the scene of crime and PW3 wrote the appellant's cautioned statement. The cautioned statement was objected to but the objection was overruled by the trial court and PW3 was allowed to tender the confession statement despite the objection that his statement was not read out during the committal proceedings. The same was admitted in evidence as Exh. P2. Later on, the police carried the body of the deceased to Tarime District Hospital for examination where PW4 conducted an autopsy on 16th November, 2019. The postmortem examination report revealed that, 3 the deceased was stabbed by a sharp object which pierced his neck from one side to another. The doctor concluded that, the cause of death was severe hemorrhage. Thereafter, she prepared a postmortem examination report which was admitted in evidence as exhibit P3. As earlier on stated, after closure of the prosecution case, the 5th accused was found with no case to answer and thus, acquitted while other accused persons proceeded to give their defence. In his defence, the appellant admitted to have accidentally stabbed the deceased and caused his death. He further testified on how, he surrendered himself to Nyamwaga Police Station where he found other accused persons and wrote a cautioned statement on 15th November, 2019. However, he told the trial court that, the statement read to him in court (exh. P2) had different contents from what he stated at the Police Station, particularly, on his age and the allegation that he demanded money from the people passing on the road. The appellant added that, he was later taken to a Justice of Peace where he confessed to accidentally kill the deceased but the said statement was not tendered in court. When cross-examined, the appellant was categorical that, his co­ accused did not take part in the killing and that he found them at the 4 Police Station when he went to surrender himself. The 2nd, 3rd, and 4th accused persons denied committing the offence, while DW5 testified that the appellant was born on 15th December, 2006. After a full trial, the court found the 2nd, 3rd, and 4th accused persons were not guilty of murder and acquitted them while the appellant was found guilty as charged and accordingly convicted. Consequently, the trial court ordered the appellant be detained during the President's pleasure under section 26 read together with sections 196 and 197 of the Penal Code. The appellant was aggrieved by both the conviction and sentence, hence this appeal armed with five grounds of appeal. At the hearing of the appeal, Mr. Paul Binton Obwana, learned counsel, represented the appellant who was present in person. On the other hand, Ms. Janeth Kisibo and Mr. Charles Kagirwa, both learned Senior State Attorneys, appeared for the respondent Republic. When invited to amplify the grounds of appeal, Mr. Obwana abandoned grounds No. 1, 3 and 4 and addressed grounds No. 2 and 5 conjointly as they both centered on whether the prosecution proved its case beyond reasonable doubt. He argued that the appellant's grievance on this ground is two folds: one; inconsistency between exhibit P2 and the evidence from other prosecution witnesses and two; lack of malice aforethought on the part of the appellant. Illustrating on the first fold, Mr. Obwana argued that, exh. P2 states that the appellant and his co-accused persons were demanding money from the people, but PW1 who was an eye witness denied the allegation saying that he was not demanded any money. He referred us to page 24 of the record of appeal. The learned counsel went on submitting that, when testifying, the appellant raised concerns on the contents of exhibit P2 which differed materially, with what he wrote at the police station and pointed out some specific aspects such as his age and the allegation of demanding money. The learned counsel argued that, the inconsistencies raised doubts on the authenticity of exhibit P2 which ought to have been resolved in favour of the appellant. Illustrating further on the doubtful contents in exh. P2, Mr. Obwana submitted that, the trial court also disclosed its doubts as regards the authenticity of exh. P2 at page 108 of the record of appeal which was caused by the absence of the name of the 5th accused and failure of the prosecution to state as to how the other accused were arrested since the appellant found them at the police station. He contended that, the trial court ought to have disregarded the contents of exh. P2 as well as the oral accounts of PW3 on that observation. Instead, he argued, the trial court erroneously decided to resolve the doubts in favor of other accused and unfairly excluded the appellant. According to him, the doubts ought to have benefited all the accused persons including the appellant. In his further submission, Mr. Obwana referred to the evidence of the appellant that he was taken before a Justice of Peace and confessed but wondered why the said Justice of Peace was not called to testify on the confession statement and tender it in court. In that regard, he invited the Court to draw an adverse inference against the respondent. He cited to us the case of Joseph Charles @ Nkole vs Republic, Criminal Appeal No. 524 of 2020 [2024] TZCA 1113 TANZLII to back up his argument. Apart from that, it was the argument of the learned counsel that, exh. P2 was tendered by PW3 whose statement was not read during the committal proceedings contrary to the requirement in section 246 (2) of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA). He argued that, despite raising an objection on the said irregularity, the trial Judge overruled it and allowed PW3 to tender the same whereby it was admitted in evidence as exh. P2 which he argued to be wrong. He implored the Court to hold that, the infraction was fatal and expunge exh. P2 from the record of appeal. Arguing for the second fold of the grievance, Mr. Obwana submitted that, the prosecution did not prove malice on the part of the appellant. In clarification, he submitted that, the memorandum of agreed facts at page 14 of the record of appeal which was read over during the preliminary hearing shows that, the appellant threw his spear and attacked the deceased, but this fact was not proved by any of the prosecution witnesses. Instead, the prosecution witnesses testified that, the appellant stabbed the deceased. To verify his argument, Mr. Obwana referred us to pages 24, 27 and 43 where the testimonies of PW1, PW2 and PW3 respectively, appears on that aspect. The learned counsel further argued that, the contents of exh. P2 showed that, the appellant and his fellow youths blocked the road by their spears while PW1 stated that, they were standing beside the road, thereby suggesting two contradictory hypotheses as regards to where exactly the youths stood. Regarding the evidence of PW4, Mr. Obwana argued that, exh. P3 and the oral account of PW4's contradicted each other. He went on submitting that, while giving her testimony at page 43 of the record of appeal, the witness stated that, the cut wound pierced the deceased's neck from one side to another. Yet, in the exh. P3 appearing at page 95 of the record of appeal, PW4 did not indicate any damage in the deceased esophagus which means, it was intact. He argued that, basing on the severity the injury, it is unconceivable that the esophagus would remain intact as indicated in exh. P3 He further attacked the trial Judge's finding that, the appellant was malicious when committing the offence. Mr. Obwana faulted the trial Judge for ignoring the unanimous opinion of the gentlemen assessors who knew the culture of the area where the offence was committed. To him, the role of assessors in this case was so important as they knew the culture of the people at the place where the incident occurred, taking into account the youths involved were in the circumcision ceremony at the time of the incident. Apart from that, he submitted that, the appellant's admission of killing the deceased accidentally at the preliminary hearing, coupled with the surrender at the Police Station, signified the absence of malice. As a conclusion, he beseeched the Court to rule out that, the killing was without malice on the part of the appellant thus, reduce the conviction from murder to manslaughter. Upon that conviction, he prayed the Court to invoke section 119 (1) of the Law of the Child Act (Cap 13 R.E. 2019) and release the appellant from the prison considering that he stayed in custody since 15th November, 2019 which is almost five years and three months. When stood up to respond, Mr. Kagirwa informed the Court that the respondent Republic was opposing the appeal and started to submit along that line. However, upon reflection following the probes from the Court, he changed his stance and supported the appeal. In his brief submissions, Mr. Kagirwa conceded that PW3 who tendered exh. P2, was not included in the list of prosecution witnesses and his statement was not read during committal proceedings as provided under section 246 (2) of the CPA. He therefore agreed that the tendering of the exhibit P2 was irregular and the remedy is to expunge it from the record of appeal together with PW3's evidence. On the aspect of malice, he conceded that the prosecution failed to prove it in the case at hand. Cementing his argument, Mr. Kagirwa referred us to the appellant's defence at page 51 of the record of appeal where he admitted to have killed the deceased accidentally. He added that, his position was firm and that explains why he offered to plead for the lesser offence during preliminary hearing. Ultimately, he informed the Court that, the respondent Republic is in agreement with both the 10 substitution of the conviction to that of manslaughter as well as the release of the appellant pursuant to section 119 of the Law of the Child Act. With such a concession from the respondent Republic, Mr. Obwana had nothing to rejoin. Having heard the submissions from the parties' counsel, the only issue for our determination is whether or not the prosecution proved malice aforethought on the part of the appellant which is an essential ingredient in the murder case. Going through the record, there is no doubt that the prosecution case relied on the admission of the appellant which was done at the police station through exh. P2 and orally during trial. On the part of oral admission, the appellant has admitted in two stages, first during the preliminary hearing when he offered to plead to a lesser offence and second, during trial when he insisted that, the killing of the decease was accidental. We are aware of the settled law that, the duty of the first appellate court, such as what we are in this appeal, is to reconsider and re­ evaluate the entire evidence on record and subject it to a critical scrutiny and, if warranted, to arrive at its own conclusions of fact. [See: D.R. Pandya vs Republic [1957] EA 336 and Menroof January Haule vs Republic, Criminal Appeal No 121 of 2022 [2022] TZCA 69.] Guided by the above principle, we are to establish whether or not the evidence on record prove malice on the part of the appellant. The parties to this appeal are ad idem on the grievances pointed out by the appellant's counsel which boils down to the conclusion that there was no malice on the part of the appellant, as such, the case was not proved beyond reasonable doubt. Starting with the complaint in exh. P2 that it was wrongly admitted in evidence as the statement of the witness who tendered it (PW3) was not read during the Committal Proceedings, thus contrary to Sec. 246 (2) of the CPA. Upon revisiting the record of appeal, we observed that the complaint holds water. It is clear that PW3 could not testify unless a notice to add him as an additional witness under section 289 (1) of the CPA was issued. However, the record is silent on the steps taken to comply with the requirement of section 289 of the CPA. On that account, we are in agreement with the counsel that, the remedy is to expunge from the record the evidence of PW3 together with exh. P2 which was wrongly tendered by witness who was not listed during committal proceedings and there was non-compliance with section 289 (1) of the CPA. [See: The Director of Public Prosecutions vs Sharif s/o Mohamed @ Athumani and 6 Others, Criminal Appeal No. 74 of 2016 [2016 TZCA 535] and Sitta James vs The Republic, Criminal Appeal No. 469 of 2020 [2024 TZCA 25, both from TANZLII] Having expunged exh. P2 we do not have the document with us to look into so as to analyse its contents which are faulted by Mr. Obwana to be in variance with other prosecution witnesses' testimonies. For that reason, we cannot discuss them. Apart from the discrepancies which touches exh. P2, Mr. Obwana also attacked the contradiction in the memorandum of facts which states that, the spear was thrown, while PW1 testified that, the deceased was stabbed. Indeed, the observation is valid and it raises doubt on the reliability of the said evidence. Regarding the self-contradictory testimony of PW4, we agree with the learned counsel that, the report on the autopsy she conducted on the deceased as regards the state of the wound which culminated to his death and her oral testimony were at variance. In our view, the spear which was alleged by PW4 to pierce the neck from one side to another, cannot live the esophagus intact as reported in exhibit P3. As rightly argued by the learned counsel, the contradictions raise doubts on the 13 veracity of the prosecution story. Unfortunately, the discrepancies were not resolved by the prosecution side, and thus, dented the witness' credibility. The record further reveals that, the appellant when testifying was categorical that the statement he wrote at the police station differs with the one read over at the trial and pointed out specific areas which included his age and the alleged demand of money from the passerby. Again, the discrepancies raise doubts on the truthfulness of the prosecution evidence which ought to have been resolved in favour of the appellant [See: Martin Jacob Mlila vs Republic, Crimnial Appeal No. 434 of 2021 [2024] TZCA 447 TANZLII]. Besides, the prosecution did not cross examine the appellant on that aspect. It is trite law that, failure to cross examine a witness on an important point is tantamount to accepting its truth. [See: Damian Ruhele vs Republic, Criminal Appeal No. 501 of 2007 and Hassan Mohamed Ngoya vs Republic, Criminal Appeal No. 134 of 2012 (both unreported)] As if that was not enough, the appellant had also stated that, he was taken to a Justice of Peace where he confessed again to have killed the deceased accidentally. Surprisingly, the statement was not tendered and the Justice of Peace was not summoned to testify. The omission, in 14 our view, entitles the Court to draw an adverse inference against the prosecution that, the evidence would have supported the appellant's assertion that the killing was accidental, thus, negating malice on his part. [Joseph Charles @ Nkole vs Republic] (supra), Surprisingly again, the prosecution did not cross examine the appellant to challenge his assertion. To say the least, the omission leaves a lot to be desired, particularly on the presence of an intention to kill by the appellant. After expunging exh. P2 and discrediting other prosecution evidence, we are left with nothing but the evidence of the appellant himself who has admitted to have killed the deceased intentionally. Gauging his consistent admission and the fact that he went to the police to surrender himself, to us, confirm that the appellant had no intention to kill the deceased and infact, was remorse for what he has done. Besides, basing on the principle established in Goodluck Kyando vs Republic [2006] T.L.R. 363 that every witness is entitled to have his his/her evidence believed, unless there are good and cogent reason to hold otherwise. We wish to state in the case at hand, we found nothing to impeach his evidence. We are aware that, the trial Judge found that, the killing was malicious considering the type of weapon and the force used to inflict the 15 blow. But with much respect, we do not subscribe to the said findings. We say so because, the evidence the trial Judge relied upon in his findings were full of contradictions and some have been expunged from the record by the Court. Besides, the evidence raises doubts and these sentiments were also shared by the Hon. trial Judge himself in his judgement, coupled with the adverse inference drawn against the prosecution. All these shortcomings lead to the conclusion that, the prosecution failed to prove malice as correctly submitted by both counsel. Consequently, we set aside the conviction of murder and substitute it with that of manslaughter under section 195 and 198 of the Penal Code. In their submissions, the counsel for the parties implored us to invoke section 119 of the Law of the Child Act and release the appellant from custody. However, we have previously in Abel Orua @ Matiku And 2 Others vs Republic, Criminal Appeal No. 441 of 2020 [2024] TZCA 78 TANZLII interpreted the scope of the applicability of the Law of the Child Act, particularly Section 119 wherein we observed that, the section apply only where the offence, a child is convicted of is punishable with imprisonment. Though the conviction of manslaughter attracts the sentence of imprisonment and the appellant was a child when committing the offence, currently, he is of age. As such, the provision, in our view is inapplicable to him. Nevertheless, relying on the principle that each case is to be decided on its own peculiar facts and circumstances, we are of the view that, justice demands, in the circumstances of this case to release the appellant. Accordingly, we order the release of the appellant from custody forthwith, unless otherwise held for another legal course. Appeal allowed to that extent. DATED at MUSOMA this 26th 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 27th day of February, 2025 in the presence of the appellant in person via virtual court from Musoma Prison, Messrs. Jonas Kivuyo and Michael Kayombo both learned State Attorneys for the respondent/Republic; is hereby certified as a true copy of the n r in in a l 17