CRIMINAL APPEAL NO 360 OF 2021 MACHUMBE CHACHA MICHAEL V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: SEHEL, J.A.. KAIRO. J.A. And KHAMIS. J.A.) CRIMINAL APPEAL NO. 360 OF 2021 MACHUMBE CHACHA @ MICHAEL................................................APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Musoma at Tarime) (Nqaile, SRM-Ext. Jurist dated the 2nd day of June, 2021 in Extended Jurisdiction Criminal Sessions No. 03 of 2020 JUDGMENT OF THE COURT 14th & 27th February, 2025 SEHEL, J.A.: This is an appeal against the whole judgment of the Court of Resident Magistrate of Musoma at Tarime (the trial court) which convicted the appellant, Machumbe s/o Chacha @ Michael, of murder in contravention of sections 196 and 197 of the Penal Code. Subsequent to the conviction, the appellant was sentenced to death by hanging. The present appeal is against both the conviction and sentence. 1 The prosecution case before the trial court was such that: Veronica d/o Justine (PW1), a small business woman who owned a shop in the Majimoto village in Serengeti District recalled that, on 10th May, 2014 at about 19:00 hours, Stella d/o Elias @ Mwita (the deceased) arrived at her shop and bought a locally made bun. Thereafter, the appellant appeared and bought a cigarette. The two left together. On that same night, a seventy-four years old man, Wambura s/o Ikerege (PW2), was at home resting. Suddenly, he heard a scream coming from his neighbour's house, the appellant's house. As it was night hours, he took his torch and went to see what was happening. He was surprised to see the appellant assaulting Stella by his fists and legs. He throttled and was blaspheming her that: "This woman is a prostitute and I am going to end it aii."Stella was pregnant and very frail. PW2 tried to intervene but the appellant chased him away and threatened to kill him. He continued to beat the deceased. Fearing his life, PW2 returned back home. In the following morning, PW2 and the appellant assisted an abandoned child. Later in the evening at about 17:00 hours, PW2 went to his farm to harvest maize. The farm was about fifty meters from his home and thirty meters away from the appellant's home. On his way, he saw houseflies buzzing around. He followed the lead and saw a deceased's body lying on the farm, and therefore, reported the incident to the hamlet chairperson, Sophia Marwa Wambura. The information also reached at Majimoto Police Station. It also happened that, around the same time, the appellant telephoned the deceased's sister, Chausiku Elias Mwita (PW3) and told her that two men had fought over her sister and in the course of the fight she was killed. After relaying such shocking information, the appellant hang up the phone. PW3 called him back and asked for the direction of the deceased's body. He directed her to Majimoto Centre. PW3 made a follow up and found out that her sister was indeed brutally killed. The deceased's body was lying in a farm, half naked and with bruises at her neck and a discharge of fluids from the nose, the mouth and the genitalia. Her clothes were torn including the bras. After viewing the deceased's body, PW3 made another call to the appellant. The appellant answered the call and told her that he heard rumours accusing him of the deceased's murder but such allegation was not true. Later on, at around 19:30 hours, police officers from Majimoto Police Station and Dr. Willy Elias Mchomvu (PW4) from Serengeti District Hospital 3 arrived at the scene of crime. PW4 conducted the autopsy on the deceased's body and observed bruises on the neck, thyroid bone broken and sperms around the vaginal orifice with no signs of life. The doctor concluded that the deceased's death was caused by suffocation due to strangulation. Exactly two years later, on 19th May, 2016, the appellant was arrested at Mutukula and put under custody at Kyaka Police Station in Misenyi District in Kagera Region. A police officer, G. 3633 Detective Corporal Peter facilitated his transfer from Kyaka Police Station to Mugumu Police Station and subsequently charged him with the offence of murder. At the trial court, the appellant denied committing the offence and disassociated himself from the murder. He said that, he was a bus conductor and that, on 10th May, 2014, he was at his work area. Around, 19:00 hours, he was traffic jammed at Mesaga village and returned to Majimoto village at about 21:00 hours. In the morning of 11th May, 2014, he heard an alarm raised by PW2 and one, Wanyenyi, a school teacher in their village. He responded to the alarm. He saw many people including his neighbour (PW2) and a school teacher, Wanyenyi. He was told that Stella abandoned her little boy aged 2 - 2 V2 years. He assisted in taking the child to Majimoto Police Station. While waiting to be attended by the police officers, he was telephoned by his boss and therefore went to office. He admitted to know PW3 as frequent passenger in his bus and PW2 as his neighbour. He also admitted to be arrested in Misenyi District on 19th May, 2016 while working as a driver of a lorry. He said that, on the day of his arrest, he was ferrying sugar cane from the farm to the industry. He denied any love affair with the deceased. He said that he was married to Chora Maitarya and were blessed with two children. In grounding the conviction against the appellant, the trial court relied on the principle of the last person seen to be with the deceased alive. It observed that there were strings of events connecting the appellant with the death of the deceased person. These were: on 10th May, 2014 at about 19:00 hours, PW1 saw the appellant with the deceased and they left together; thirty minutes later, PW2 saw the appellant assaulting the deceased; in the following day at about 17:00 hours, PW2 found the deceased's body near the house of the appellant and the disappearance of the appellant after the incident. It rejected the appellant's defence of alibi for failure to issue a notice as required by the provisions of section 194 (4) of the Criminal Procedure Act (the CPA). In the end, as hinted above, the appellant was convicted and sentenced to death by hanging. Aggrieved, the appellant lodged this appeal which was initially predicated on eight grounds in the memorandum of appeal but later on, Mr. Leonard Elias Magwayega, learned counsel filed a supplementary memorandum of appeal containing three grounds as follows: "1. That, the trial Court erred in iaw and fact in holding that; the prosecution proved its case beyond reasonable doubt while the same did not 2. That, the trial Court erred in iaw and fact to ground conviction against the appellant despite the fact that; the credibility o f prosecution witnesses was highly questionable to be relied upon for conviction. 3. That, the trial court erred in law and fact in holding against the appellant while the prosecution failed to parade m aterial witnesses to testify." At the hearing of the appeal, Mr. Leonard Elias Magwayega, learned advocate, appeared for the appellant. The appellant was also present in Court. On the other hand, Ms. Janeth Kisibo and Mr. Charles Kagirwa, learned Senior State Attorneys, appeared for the respondent/ Republic. On the onset, Mr. Magwayega informed the Court that, he consulted with his client and upon consultation, he would abandon all the grounds in the memorandum of appeal and thus, remaining with the three grounds in the supplementary memorandum of appeal. Further, he informed the Court that the first and third grounds would be consolidated and the second ground argued separately. Starting with the second ground of appeal, Mr. Magwayega argued that the trial court erred in law and fact in relying on an incredible evidence of PW1, PW2, PW3, PW4 and PW5 in grounding the appellant's conviction for murder. He contended that, PW1 was unreliable witness because she claimed that she identified the appellant by the aid of two bulbs but she failed to explain the intensity of the light; voltage of each bulb; positioning of each bulb and which of the twos helped her to see and identify the appellant. She also failed to describe the appellant's attire in terms of colour and the size of the window. He also argued that it was incredible for PW1 to see the appellant and deceased leaving together as she was busy attending other customers at her shop. For PW2, he contended that this witness also failed to explain the intensity of the torch light and the appellant's and deceased's attires put on that night. He added that, as it was for PW1, it is inconceivable for PW2 to be seen with a person who had threatened to kill him last night. The learned counsel further argued that the evidence of the prosecution was full of material contradictions and discrepancies. He pointed out that, PW2 and PW3 contradicted on how the deceased's body was found. He referred us at page 18 of the record of appeal where PW2 said the deceased's body was naked, whereas, PW3's version, at page 22 of the record of appeal, was that "she was alm ost naked because even her brasier was torri'. He further contended that it was not possible for two witnesses who saw the deceased's body at the scene of crime to give conflicting story on a thing which they claimed to have seen it at the same time and same place. Another contradiction pointed was on the time the death occurred. He pointed out that, at page 18 of the record of appeal, PW2 said that upon his arrival at the appellant's place, he saw the deceased was frail and sat down but when asked by the second assessor, he responded that when he left on 10th May, 2014, Stella was already dead. As such, he argued it was not proved at what time the deceased died. He further argued that PW2 belatedly reported the incident to the local authorities and or the 8 police force and no explanation was given for such a delay. He argued that, given the pointed gaps in the evidence of the identifying witnesses, PW1 and PW2, the trial court erred in convicting the appellant. Relying on the authorities in the cases of Waziri Amani v. The Republic [1980] T.L.R. 250 and Raymond Francis v. The Republic [1991] T.L.R. 100, he submitted that visual identification is of the weakest kind and no court should act on it unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. Lastly, on this same ground, Mr. Magwayega argued that, the evidence of PW3 was received in contravention of section 246 (1) (2) and 289 (1) (2) and (3) of the CPA. He argued that, neither the statement of PW3 was read over to the appellant during committal proceedings nor the prosecution issued a notice for calling her as an additional witness. He referred us to page 21 of the record of appeal and argued that, the statement which was read over to the appellant was of Chiku d/o Elias @ Mwita and not of Chausiku d/o Elais @ Mwita. He therefore beseeched the Court to expunge PW3's evidence from the record of appeal. To support his submission, he cited to us the cases of Kanga Nyamanche Gaini & 2 9 Others v. The Republic (Criminal Appeal No. 59 of 2021) [2024] TZCA 1278 (13th December, 2024; TANZLII) and Julius Mabizi Maswi v. The Republic (Criminal Appeal No. 186 of 2021) [2024] TZCA 1246 (11th December, 2024; TANZLII). In respect of the first and third grounds of appeal, Mr. Magwayega contended that given the susceptibility on the credibility of the prosecution evidence coupled with the failure to call material witnesses, the prosecution failed to prove its case beyond reasonable doubt. He mentioned the material witnesses were Rhobi Materu named by PW1 in her evidence and the arresting officer. He contended that these two were material witnesses who would have assisted the trial court to reach at a just decision. Ms. Kisibo resisted to the appeal by supporting the conviction and the sentence meted out to the appellant by the trial court. Replying to the second ground of appeal, she contended that PW1, PW2, PW3, PW4 and PW5 were credible and reliable witnesses. She asserted that the conditions for correct identification of the appellant as explained by PW1 and PW2 were in favour for correct identification, and that, the conditions laid in the cited case of Waziri Amani v. The Republic (supra) were met. She elaborated that, both PW1 and PW2 explained the sources of light. She referred us to page 14 of the record of appeal where PW1 said that there was a bright light illuminated from two solar bulbs positioned in and outside her shop and to page 18 of the record, where PW2 said he held a torch that used two batteries and lit a bright light. She added that the identifying witnesses described the position they stood to observe the appellant, that; the appellant stood at a distance of about one footstep from her shop window and PW2 stood at a distance of four footsteps from where the appellant was assaulting the deceased. Besides, she argued that, the appellant was familiar and well-known person to PW1 and PW2 as they were village mates for a long time and they were neighbours; PW1 went further to mention the occupation of the appellant that he was a bus conductor. She contended this fact was admitted by the appellant in his evidence in chief. It was therefore the submission of Ms. Kisibo that the obtaining circumstances of the identification was recognition and not visual identification. It was her view that, given the circumstance of the case, the minute details which Mr. Magwayega preferred the witnesses to give were superfluous. Replying on the pointed contradictions, Ms. Kisibo argued that the contradictions if any were minor and did not go to the root of the case that 11 Stella d/o Elias @ Mwita was murdered on 11th May, 2014, as testified by PW1, PW2, PW3, PW4 and PW5. In any event, she argued that, given the lapse of time from the date the crime took place in 2014 and witnesses' testimonials in 2021, it is in evitable to find contradictions in witnesses' account. In supporting her submission, she cited to us the case of Chukwudi Denis Okechukwu & 3 Others v. The Republic, (Criminal Appeal No. 507 of 2015) [2018] T7CA 255 (17th September, 2018; TANZLII). On the failure to report the crime, Ms. Kisibo admitted that PW2 did not report on the assault. That notwithstanding, she argued that, on the night of 10th May, 2014, PW2 was unaware of the demise of Stella. Immediately upon becoming aware, PW2 reported the murder to hamlet chairperson, Sophia Marwa Wambura. The learned Senior State Attorney supported the findings of the trial court that, PW2 could not report the assault because of the following reasons; one, the appellant and the deceased used to quarrel on several occasions; two, on that fateful night, the appellant threatened to kill PW2, hence, he feared for his life and three, it was against the customs and culture of that area to interfere in a domestic dispute. 12 In response to the first and third grounds of appeal, Ms. Kisibo argued that the offence of murder which the appellant was charged with and convicted of was proved beyond reasonable doubt on the circumstantial evidence and on the principle that the deceased was last seen alive in the hands of the appellant. She explained there were several pieces of evidence connecting the appellant with the murder of the deceased that; one, on the night of 10th May, 2014, PW1 saw the appellant and the deceased person leaving together; two, few minutes later, PW2 saw the appellant assaulting the deceased person; three, the act of the appellant informing PW3 that the deceased was no more; four, the deceased's body was found few paces away from the appellant's house and five, the conduct of the appellant; he disappeared after the incident. Ms. Kisibo reiterated that these inculpatory facts are incompatible with the innocence of the appellant and the appellant gave no plausible explanation to exculpate from the crime. To cement her submission that an accused person who is last seen with the deceased and in the absence of a plausible explanation to explain away the circumstances leading to the death, s/he is presumed to be a killer, she cited to us the case of Ally Ramadhani v. The Republic (Criminal Appeal No. 57 of 2020) [2024] TZCA 962 (3rd October, 2024; TANZLII). 13 Addressing on whether the appellant gave possible explanation, Ms. Kisibo argued that, the appellant raised a defence of alibi but failed to comply with the requirement of giving prior notice as per the provisions of section 194 of the CPA. Nonetheless, she contended that the trial court considered his alibi and rightly rejected it. Therefore, she urged this Court to find that the appellant failed to justify his defence of alibi. To support her submission, she cited to us the case of Kubezya John v. The Republic (Criminal Appeal No. 488 of 2015) [2019] TZCA 472 (12th December, 2019; TANZLII). Responding on the failure to call material witnesses, Ms. Kisibo argued that the complaint has no merit because the appellant admitted to be arrested on 19th May, 2016 while at Kyaka. Citing section 143 of the Evidence Act, she contended that there is no particular number of witnesses required to prove any fact. It was her submission that the witnesses which the prosecution paraded proved the offence against the appellant beyond reasonable doubt. Mr. Magwayega briefly rejoined by reiterating his earlier submission that the credibility of the prosecution witness was questionable hence the identification was not watertight. 14 From the rival submissions, we find that the issue for our determination is whether or not the prosecution proved the offence of murder against the appellant beyond reasonable doubt. For an offence of murder to be proved, the prosecution must establish four things; one, there was death of a person(s); two, the death was unnatural; three, the accused person was responsible for the killing; and four, the killing was with malice aforethought. We gathered from the parties' submissions that, they are in agreement that, Stella d/o Elias @ Marwa died from an unnatural death on 10th May, 2014. The contentious issues are: whether it was the appellant who killed the deceased person and whether he killed with malice aforethought. Starting with the issue on whether the appellant killed the deceased, as stated earlier on, the trial court relied on the principle of the last person to be seen with the deceased person alive to connect the appellant with the incident of murder. In the case of Ally Ramadhani v. The Republic (supra), we restated the conditions to be satisfied for the principle of circumstantial evidence to be applied that: 15 1) The facts upon which guilty is to be affirm ed m ust be firm ly established beyond reasonable doubt; 2) The evidence should unerringly be pointing towards the guilt o f the accused; 3) A ll the pieces o f evidence should form a chain leading to only one conclusion that the crime was committed by the accused and no one else; 4) The evidence must be incapable o f explanation o f any other hypothesis than that o f the guilt o f the accused and should be inconsistent with his innocence. Yet again, in the case of Mathayo Mwalimu & Another v. The Republic, Criminal Appeal No. 147 of 2008, the Court held that: "... if an accused person is alleged to have been the last person to be seen with the deceased, in the absence o f a plausible explanation to explain away the circumstances leading to the death, he or she w ill be presumed to be the killer." In the present appeal, as rightly submitted by Ms. Kisibo, the appellant was convicted on the basis that PW1 and PW2 saw him with the deceased person alive on the night of 10th May, 2014 before her body was 16 found lying in the farm the next day at around 17:00 hours. Mr. Magwayega challenged credibility of these witnesses arguing that their identification was not water tight. The prosecution relied on the evidence of PW1 and PW2 who told the trial court that they each saw the appellant with the deceased alive on the night of 10th May, 2014. Mr. Magwayega strongly challenged the visual identification of these witnesses. Indeed, visual identification is the weakest evidence and inherently unreliable since even an honest and convincing witness may as well be mistaken. In that respect, it has always been insisted that courts must be cautious on acting on visual identification and must be satisfied that the conditions and factors for positive identification are favourable so as to rule out any possibility of mistaken identity. In this appeal, it is undisputed fact both PW1 and PW2 saw the appellant during the night of 10th May, 2014. PW1 said that, on the fateful day at about 19:00 hours, the appellant visited her shop to buy a cigarette and at the time of his arrival, the deceased was also at the shop buying a locally made bun. PW1 further said that the appellant and the deceased greeted each other and left together. With due respect, we find that Mr. Magwayega's submission is not supported by the evidence on the record of 17 appeal. The record of appeal bears out, PW1 explained the source of light which helped her to see the appellant. She said that, there were two solar bulbs positioned in and outside the shop and such bulbs produced a bright light. As rightly argued by Ms. Kisibo, PW1 was not an electrician, as such, she was not expected to tell the voltages of each bulb. Similarly, we gathered from the record of appeal at page 18, where PW1 described the source of light which helped him to identify the appellant at his place and witnessed the assault. He said that, he had a torch which used two batteries and produced a bright light. Besides, the identifying witnesses were familiar and well known to the appellant as they resided in the same village. This fact was also admitted by the appellant during his defence that, PW1 was his regular customer and PW2 was his close neighbour. We find that this is a case of recognition which is more satisfactory, assuring and reliable than of a complete stranger. We stated this position in the case of Nicholaus James Urio v. The Republic (Criminal Appeal No. 244 of 2010) [2012] TZCA 101 (7 September 2012: TANZLII), where we quoted with approval the decision of the Court of Appeal of Kenya in Kenga Chea Thoya v. Republic, Criminal Appeal No. 375 of 2006 (unreported) that: "On our own evaluation o f the evidence, we find this to be a straightforward case in which the appellant was recognized by witness PW1 who knew him. This was clearly a case o f recognition rather than identification. It has been observed severally by this Court that recognition is more satisfactory, more a ssu rin g an d more reliable than identification o f a stranger. " Accordingly, we are satisfied that the recognition made by PW1 and PW2 was satisfactory, reliable and assuring as the appellant was not a total stranger to the identifying witnesses. In that respect, there was no need for PW1 and PW2 to give any further description of the appellant in terms of his physique, attire or complexion. It is settled law that the requirement to give such detailed description is necessary in situations where the question of identification is in respect of a stranger -see the case of Maulid Juma Bakari @ Damu Mbaya & Another v. The Republic (Criminal Appeal 58 of 2019) [2020] TZCA 351 (13th July, 2020; TANZLII). We do agree with Mr. Magwayega that it is not enough to look at the factors favouring accurate identification, equally important is the credibility of the identifying witness and the ability of a witness to name the offender at the earliest opportunity - see: the case of Jaribu Abdalla v. The Republic [2003] T.L.R. 271. Nonetheless, having re-evaluated the evidence on record, we concur with the trial court that PW1, PW2, PW3, PW4 and PW5 were credible witnesses. Usually, the trial court's finding as to the credibility of witnesses is binding on an appellate Court unless there are circumstances on the record which call for a reassessment of their credibility - see the case of Omari Ahmed v. The Republic (1983) T.L.R. 52. In the instant appeal, we find that there are no such circumstances as the witnesses have been coherent and consistent not only to their testimonies but also when looking the entire evidence as a whole including that of the appellant. The minor contradiction on whether the deceased body was naked or partly naked, we find it to be immaterial as it might be due to lapse of time. We therefore entirely agree with Ms. Kisibo that the contradiction does not go to the root of the fact that Stella d/o Elias @ Mwita was murdered on 11th May, 2014, by the appellant as established by PW1, PW2, PW3, PW4 and PW5. Another complaint by Mr. Magwayega was the failure by the prosecution to parade Rhobi Makuru and the arresting officer. As correctly 20 submitted by Ms. Kisibo, during the conduct of the preliminary hearing, the appellant admitted to be arrested on 19th May, 2016 at Kyaka. Therefore, in terms of section 192 (4) of the CPA, this fact needed no further proof. Besides, we also agree with Ms. Kisibo that pursuant to section 143 of the Evidence Act, there is no particular number of witnesses required to prove a particular fact at issue. In that respect, we find that the failure to call Rhobi Makuru did not dent the prosecution case. Regarding the failure to report the incident at the earliest opportunity, we also find this argument is without merit because PW2 clearly explained that at the time he left, the deceased was still alive. It is also on record that the appellant used to assault his lover. Therefore, we find that, according to PW2's tradition and custom, he had reasonable ground not report the incident of assault. At this juncture, we are compelled to transgress a bit. We are dismayed to see that such customs and traditions still exist in our society. Violence against women by an intimate partner is one of the worst forms of gender-based violence but it is highly prevalent within our societies. We have witnessed in this appeal that Wambura s/o Ikerege (PW2) found it normal not to interfere the so called " domestic disputd' which costed the 21 life of the victim. In his subconscious mind influenced by customs and traditions, he thought and believed that his action was ordinary. With such thinking, we believe there is a need to continue raising awareness on this kind of gender-based violence which costs life of victims. Having stated so, we are back to the appeal before us. It is undisputed fact that PW2 reported the incident of murder, immediately after becoming aware of it. He reported it to the hamlet chairperson, Sophia Marwa Wambura. Accordingly, we failed to find any cogent reason to discredit PW2's evidence. Mr. Magwayega also complained that PW3 was allowed to testify while she was not among the prosecution witnesses listed during committal proceedings simply because in the committal proceedings the person listed therein was Chiku d/o Elias @ Mwita and not Chausiku d/o Elias @ Mwita. With respect, we find the argument by Mr. Magwayega is unfounded because apart from the difference in the first name of PW3 other names were similar and the same. Further, it is a fact that the nickname of " Chausikd' is "Chiku." All in all, assuming that we agree with Mr. Magwayega and expunge the evidence of PW3 from the record of appeal, we are satisfied that the 22 remaining evidence particularly of the PW1, PW2 and PW4 perfectly connects the appellant with the death of the deceased person. The pieces of evidence submitted to us by Ms. Kisibo form a chain leading to only one conclusion that the appellant killed the deceased person and there was no any other possible hypothesis other than the guilt of the appellant. We are aware that the appellant tried to explain away or disassociate himself with the offence as he raised a defence of alibi. We have scrutinized the record of appeal and find that the trial court considered the appellant's defence of alibi and rightly rejected it. This is due to our earlier finding that the circumstantial evidence on the last person to be seen with the deceased person alive was proved beyond reasonable doubt. We now turn to the issue on whether the appellant killed the deceased with malice aforethought. Having considered the evidence on record, we are satisfied that the killing was actuated with malice aforethought. We say so because when the appellant was assaulting the deceased, he had already formed an intent to kill as he wanted to end the bad behaviour of the deceased. This is according to the evidence of PW4 and exhibit PI, the deceased's death was due to suffocation caused by strangulation. In the final analysis and for the foregoing reasons, we are of the settled view that the appeal is without merit and is hereby dismissed. DATED at MUSOMA this 27th 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 and Mr. Michael Kayombo, learned State Attorney for the Republic/respondent; is hereby certified as a true copy of the original.