CRIMINAL APPEAL NO 633 OF 2021 MUSA RANGE SALIMA 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. 633 OF 2021 MUSA RANGE @ SALIMA .................................................. APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahvoza J.) dated the 12th day of July, 2021 in Criminal Sessions No. 88 of 2020 JUDGMENT OF THE COURT 17th Feb., & 28th 2025 SEHEL, J.A.: The appellant, Musa Range @ Salima, was convicted and sentenced to death by hanging for the murder of his vulnerable two- and-a-half-year-old son, Emmanuel s/o Musa @ Range (the deceased). On 16th June, 2017 at Nyamatare village in Serengeti District in Mara Region, Pendo Marwa Ginge (PW1), the biological mother of the deceased and the wife of the appellant embarked on a three-hour walk to her father-in-law's homestead at Mwigaye village for an intervention on his husband's habit of whipping the deceased. On the fateful day, the appellant severely whipped the deceased and PW1 feared for the safety of her son. Upon reaching at her in-laws' house, PW1 complained about her husband and the father in-law instructed her brother in law, one Chacha Range, to accompany PW1 back home and find out the reason of the appellant's cruelty. At home, PW1 found the appellant was busy making bricks and the deceased was not at home. After the appellant saw his wife, with a chill composure, confessed to her that, he had done a bad act of killing their child. Instantly, PW1 raised an alarm and Magoiga Range, the appellant's brother and other villagers responded to it whereupon PW1 informed them about the tragedy. They all started to search for the deceased's body and Samuel Musa, the older brother of the deceased, aged nine years, guided them into the thick bush where the deceased's lifeless body was hidden. On that same night, at about midnight, Magoiga Range telephoned the hamlet chairman of Mirengo, Thomas Nyahanga (PW2) and reported the incident. Since it was late, PW2 visited the scene of crime on the following day and was informed that the appellant whipped his son to death. He examined the deceased's body and found bruises all over the deceased's body as if beaten. He reported the matter to the police force. A police officer, No. G 5805 Detective Corporal Christopher (PW3) arrived at the scene of crime in company of a clinical medical officer from Mugumu Designated District Hospital (Mugumu DDH), Albert 2 r Kasanga (PW4). PW3 drew a sketch map which was tendered and admitted in evidence as exhibit P2. On his part, PW4 conducted the autopsy and observed bruises on the deceased's body and blood-stained clothes. It was his opinion that, the death of the deceased was due to injuries in the internal organs, namely; liver, spleen, bladder and uterus caused by a blunt object applied with force on stomach, thus, causing a cardiac arrest. He documented his findings in the Postmortem Examination Report (PMER) which was tendered during the conduct of preliminary hearing of the case and received in evidence as Exhibit 1. The deceased's body was laid to rest on 17th June, 2017 in absence of the appellant. According to PW1, the appellant disappeared after committing the offence and returned after five days but he was hiding during the day. On 3rd March, 2019, PW3 received information that the appellant was in the village but only seen during night hours. He arranged for the appellant's arrest and subsequently he arrested the appellant on the wee hours of 4th March, 2019, about 03:00 hours at his home. The appellant was then arraigned before the High Court for an offence of murder. 3 In his defence, the appellant denied having committed the offence. However, he admitted that his son died on 16th June, 2016. He said, on the fateful day, he was at home and his two sons were playing outside. Suddenly, he heard Samuel crying. He went outside and found the deceased had seizure attack and frothing at the mouth. He rushed to a nearby pharmacy to buy medicine but upon his return, he found his son was no more. He attributed the deceased's death was due to epilepsy, a condition which he claimed the deceased developed after weaning. He denied to have fled the village. He said that he participated at the burial services of his son, and thereafter, he continued with his activities. He admitted to be arrested at his home for being suspected to possess an illegal firearm, and eventually, charged with both unlawful possession of firearm and murder. The trial court found the prosecution's circumstantial evidence credible and incriminating the appellant as the offender. It also found that the appellant made oral confession to his wife which corroborated the circumstantial evidence. In the end, the appellant was convicted and sentenced as aforesaid. Dissatisfied with the conviction and sentence, the appellant appealed to this Court. On 8th December, 2021, he lodged a memorandum of appeal comprised of five grounds and on 18th January, 4 2022, he filed a supplementary memorandum of appeal consisting of twelve grounds. In terms of rule 73 (2) of the Tanzania Court of Appeal Rules, Mr. Leonard Elias Magwayega, learned counsel from Magwayega Law Chambers (Advoactes) field a supplementary memorandum of appeal raising the following three grounds: "i. That, the tria l Court erred in law and fact in holding that, the prosecution proved its case beyond reasonable doubt while the same did not 2. That, the tria l Court erred in law 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 tria l 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, Mses. Grace Michael Madikenya and Happiness Machage, learned Senior State Attorney and State Attorney respectively, appeared for the respondent/ Republic. On the onset, Mr. Magwayega informed the Court that, he consulted with his client and they agreed to argue the grounds contained in the memorandum of appeal, and that, he would argue the first and third grounds of appeal together while the second ground of appeal would be separately argued. Submitting on the second ground of appeal, Mr. Magwayega contended that the prosecution has a duty to prove the case beyond reasonable doubt but, in the present appeal, it failed to do so as the witnesses failed to connect the appellant with the commission of the offence. Elaborating his submission, he contended that, having gone through the proceedings, he observed that the evidence of PW1 was susceptible and untruthful to rely upon and found a conviction. He referred us to page 10 of the record of appeal where PW1 said that the deceased died on 16th June, 2017 at around 01:00 hours but in her cross-examination, at page 11 of the record of appeal, she said her husband whipped his son at around 04:00pm. It was his submission that, it is implausible for such whipping to take place after the deceased's death. Again, Mr. Magwayega argued that PW1 claimed the appellant confessed to her to have killed their son in the presence of Chacha Range but he was not paraded to corroborate PW l's evidence. In that respect, he contended that the credibility of PW1 was questionable. Mr. Magwayega further argued that, PW1 said her husband used to scold the deceased, and on the fateful day, she witnessed the severe whipping. He contended that, if that was the case, a prudent person would not have embarked to a long journey of about three hours walk instead he would have reported to the nearest Government authorities or, at least, remove the vulnerable child from such danger. Furthermore, he contended that PW1 was not an eye witness and failed to explain to the trial court who killed the deceased's person. He argued that, according to PW1, Samuel Musa was around and he was the one who led the people to the deceased's body but the said Samuel was not paraded to testify. Submitting further on the incredibility of PWl's evidence, he argued, PW1 failed to explain how was the body of the deceased moved from the bush or who guarded it till the following day when PW2, PW3 and PW4 arrived at the scene of crime. He contended all these doubts need to be resolved in favour of the accused person. To fortify his submission, he cited the cases of Ali Bakari & Another v. The Republic [1992] T.L.R. 10 and Zakaria Jackson Magayo v. The Republic (Criminal Appeal No. 411 of 2018) [2021] TZCA 207 (19 May 2021; TANZLII). Addressing the credibility of PW2, Mr. Magwayega contended that, in essence, his evidence was a hearsay as it was derived from information narrated to him by PW1 that the appellant whipped the deceased to death; since the credibility of PW1 was questionable then automatically the evidence of PW2 falls apart. He pointed out that, PW2 claimed to be informed about the murder by Magoiga Range but he was not called by the prosecution to testify. In totality, he argued the evidence of PW1 and PW2 bears no weight to mount a conviction against the appellant. Mr. Magwayega went on to discredit the evidence of PW4 that his evidence was also hearsay as he did not witness the murder. He pointed out that this witness visited the scene of crime and claimed to conduct the autopsy but failed to give detailed explanation in terms of instruments he used to perform it. It was the submission of Mr. Magwayega that PW4 gave general statement that the deceased's internal organs were injured by a blunt object applied with force on the stomach, resulting to injuries to internal organs, liver, the spleen, bladder and uterus without any further expertise clarification on such a finding. He added that, PW4's evidence contradicted the testimony of PW3 who said that the deceased's body had scars inflicted by a stick on the chest, the back and the head but PW4 did not mention the head. Winding up on this ground, Mr. Magwayega argued the circumstantial evidence as testified by the prosecution's witnesses does not connect the appellant with the deceased's death. To support his argument, he cited the cases of Zamir Rahimu v. The Republic (Criminal Appeal 418 of 2018) [2021] TZCA 102 (9th April, 2021; TANZLII) and Mohamed Said Matula v. Republic [1995] T.L.R. 3. Arguing the first and third grounds of appeal, Mr. Magwayega contended that following his submission in the second ground of appeal, it is evident the prosecution failed to prove its case, more so, the prosecution failed to call material witness. He further stressed that Chacha Range and Magoiga Range were material witnesses as they would have filled in the gaps left by the prosecution evidence. To cement his argument, he referred us to the cases of Julius Mabizi Maswi v. The Republic (Criminal Appeal No. 186 of 2021) [2024] TZCA 1246 (11th December, 2024; TANZLII) and Kanga Nyamanche Gaini & 2 Others v. The Republic (Criminal Appeal No. 59 of 2021) [2024] TZCA 1277 (13th December, 2024; TANZLII). Mr. Magwayega prayed that the appeal be allowed and the appellant be released from prison custody. Ms. Machage did not support the appeal. She submitted that the conviction of the appellant was properly founded by the trial court. Elaborating on her stance, she admitted that there was no eye witness 9 but the prosecution case depended on the circumstantial evidence and the oral confessional statement made by the appellant to his wife. She referred us to page 10 of the record of appeal where PW1 said that the appellant told he did a bad thing to their son. To her view, such oral confession is as good as any other form of confession and is admissible. To cement her argument, she cited the case of Daniel Thomas @ Yusuph @ Ngeni & Another v. The Republic (Criminal Appeal No. 120 of 2022) [2024] TZCA 103 (23rd February, 2024; TANZLII). Ms. Machage further argued that the conduct of the appellant before and after the commission of the crime was inconsistent with his innocence. She pointed out that; first, he disappeared after the incident was reported at the police force; secondly, he did not regret on his action as PW1 said that upon her return from her father in-law, the appellant continued with his job of making bricks as if nothing had happened; thirdly, he did not cry, and fourthly, he did not attend the burial services of his son. She referred us to page 11 of the record of appeal where PW1 said that they buried the deceased's body in absence of the appellant. In addition, the learned State Attorney pointed out that, the evidence of PW1 was corroborated by PW2 who told the trial court that upon his arrival at the appellant's place, the appellant was not at home and did not know where he was; he escaped after committing the crime. She further argued that PW3 also corroborated the evidence of PW1 and PW2 when he said that the appellant disappeared after committing the crime and managed to arrest him in 2019. It was her submission that such conduct was inconsistent to the appellant's innocence. She cited the case of Edger Jackson Lulemi @ Edger Jackson Lulemi v. The Republic (Criminal Appeal No. 167 of 2023) [2024] TZCA 847 (2 September 2024; TANZLII). Addressing the Court on whether the deceased died from natural cause due to seizure as alleged by the appellant, Ms. Machage argued that the deceased died from an unnatural cause as testified by PW1, PW2, PW3, PW4 and exhibited by exhibit PI. She argued that, according to PW1, the appellant used to assault the deceased and on the fateful day he severely whipped the deceased; when PW2 arrived at the scene of crime, he examined the deceased's body and found scars all over the body suggesting that he was beaten. Again, an investigative police officer (PW3) said that he saw scars inflicted by a stick on the back, on the head and on the chest and the doctor who performed the autopsy (PW4) found the body had bruises and the clothes stained with blood. PW4 also noticed lacerations on the deceased's body and internal organs were damaged. It was his submission that, PW4 ruled out the possibility of convulsion due to internal bleeding. Ms. Machage further argued that li exhibit P2 also shows the injuries sustained by the deceased's person that bruises and scars all over the body and in internal organs. In the end, she contended that, given the evidence on record, the prosecution proved beyond reasonable doubt that the deceased's death was an unnatural caused by blunt object applied with force by the appellant. Responding to the argument that the material witnesses were not called to testify, Ms. Machage admitted Magoiga Range and Chacha Range were not called by the prosecution to give evidence. However, she argued that they were not material witnesses and that the prosecution is not required to call any particular number of witnesses to prove its case. She cited to us section 143 of the Evidence Act. Responding the failure by PW1 to report to the local authorities or the police force, Ms. Machage argued that PW1 had unsuccessfully reported the appellant's behaviour to her neighbours, thus, on the fateful day, she found prudent to seek her father-in-law's intervention. Citing the case of Goodluck Kyando v. The Republic, Ms. Machage argued that PW1, PW2, PW3 and PW4 were credible witnesses and they ought to be believed. She added that the pointed discrepancies by the learned counsel for the appellant were minor and did not go to the root of the prosecution case. 12 Mr. Magwayega rejoined by reiterating his submission in-chief. He further contended that the appellant did not make any oral confession to PW1 because her evidence was not corroborated. He expounded that had Chacha Range been called to testify he could have supported her claim. On the appellant's action after the death of the deceased, Mr. Magwayega argued that men are more courageous as they do not shed tears easily, hence, the appellant was consoling his wife, PW1, not to cry. He pointed out that the appellant in his defence said he attended the burial services of his son, so, it is irrelevant whether people saw him or not. He added that it is incomprehensible for the same person who killed his son to return after five days while the mother of the child cooks dinner for the killer without reporting to the police force. We have carefully followed the submissions by the counsel for the parties and what stands out for our determination is whether the prosecution witnesses were credible and truthful. We wish to start with the settled principle of law on credence of a witness that, every witness, including an accused person, is entitled to credence and must be believed and his testimony accepted unless there are cogent and good reasons for not believing him/her. Good reasons for not believing a witness include the fact that the witness has given improbable or implausible evidence, or the evidence has been materially contradicted by another witness or witnesses - see the cases of Goodluck Kyando v. The Republic (supra) and Mathias Bundala v. The Republic [2007] T.L.R. 53. In the case of Nyakuboga Boniface v. The Republic (Criminal Appeal No. 434 of 2016) [2019] TZCA 461 (29 November 2019; I TANZLII), the Court stated that: "... it is the fact that observation and assessm ent o f the demeanour o f a witness, is in the exclusive monopoly of the tria l Judge/m agistrate. Moreover, besides observing the appearance o f the witness, in resolving as to whether the witness is trustworthy and telling the truth, the tria l Judge/m agistrate, is enjoined to correlate the demeanour o f the witness, and the statem ents he/she makes during his/her testim ony in court. I f they are not consistent, then the credibility o f the witness, becomes questionable." That apart, in the case of Shaban Daud v. The Republic, Criminal Appeal No. 28 of 2001 (unreported), the Court gave guidance that the credibility of a witness can also be assessed by an appellate court that: 14 "...Credibility o f a witness is the monopoly o f the tria l court but only in so far the demeanour is concerned. The credibility o f a witness can be determ ined in two other ways; one, when assessing the coherence o f the testim ony o f that witness, and two, when the testim ony is considered in relation to the evidence o f other witnesses, including that o f the accused person. In those two occasions, the credibility o f a witness can be determ ined even by a second appellate court when examining the findings o f the first appellate court. " Mr. Magwayega urged us to re-assess the credibility of the evidence of PW1, PW2, PW3 and PW4. For a start we stress that the question of the demeanour of PW1, PW2, PW3 and PW4 was already dealt with by the trial court which had the advantage of observing them while giving their evidence in court. We shall thus confine ourselves on the coherence and relate such coherence with other evidence in the record including the appellant's evidence. Starting with PW1, she explicitly said that, having witnessed her son badly beaten by her husband, she decided to report him to his father. In that regard, PW1 went to her in-laws because she was looking for a solution of her husband's behaviour. With due respect with Mr. Magwayega's submission, we find that her travelling of three hours walk 15 was reasonable and normal as the witness was trying to find the reason for her husband's action against their deceased's son. Besides, at the time she left the deceased was still alive and to her it was a usual habit of her husband to scold the deceased. Therefore, she did not anticipate death to result therefrom. It was only upon her return from her in-laws to be told by the appellant that he had killed their son and he confessed in a calm manner. The witness had been coherent all the way in her examination in-chief, cross-examination and re-examination. We are alive that there was self-contradiction on the time the deceased passed on and the time the deceased's was beaten but we are of the firm view that such contradiction was minor due to normal error of memory caused by lapse of time - see the case of Dickson Elia Nsamba Shapatwa & Another v. The Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008; TANZLII). We wish also to point out here that we hold similar view in respect of minor contradiction between PW3 and PW4 on bruises found on the deceased's body. We now move to the complaint regarding oral confession. In the case of Daniel Thomas @ Yusuph @ Ngeni & Another v. The Republic (supra), we explained in detail what entails oral confession. We stated that: 'W e need to state that\ in law, ora/ confession o f g u ilt is as good as any other form o f confession and is adm issible. It can also be solely acted upon as the basis for conviction provided that it carries sufficient weight\ and courts exercise great care before they rely on it Like other form s o f confession, its reliance m ust be preceded by putting the testim ony under the test of voluntariness, consistent with section 27 (3) o f the Evidence A c t.... It m ust also have the quality o f confession defined in section 3(1) (a), (b), (c) and (d) o f the Evidence Act, in that it m ust contain an admission by the maker o f the culpable role he played in the offence he is accused o f." In the instant appeal, the oral confession of the appellant was made to his wife, PW1 after the wife had returned back from her in­ laws. We are of the firm view, the confession was freely made as we found no scintilla evidence suggesting inducement, intimidation or force. As such, we are satisfied that the appellant made his oral confession as a free agent. Next to consider concerning oral confession is whether it has a quality of confession. The words uttered by the appellant to PW1 are reflected at page 10 of the record of appeal. It reads: "The accused, my husband told me that he had killed our child. Musa Range told me that he had done a bad act o f killing a child Emmanuel M usa." Admittedly, the above quoted excerpts contain an admission by the appellant that he killed their deceased person. We therefore entirely agree with Ms. Magache that the appellant made oral confession which in terms of sections 3 and 27 of the Evidence Act is admissible in evidence. Indeed, PW2, PW3 and PW4 arrived at the scene of crime a day after the murder incident. However, each of these witnesses gave evidence on what they witnessed. PW2, as a hamlet chairperson confirmed to the trial court that the murder incident occurred in his village on 16th June, 2017 and he saw the deceased's body with bruises all over the body. PW3 corroborated the evidence of PW1 and PW3 that a vulnerable child aged two-and-a-half years was killed on 16th June, 2017 at Nyamatare village and to that effect he drew a sketch map, exhibit P2. This witness also told the trial court the reason why the appellant was not arrested in time as he fled from the village. After resurfacing he was hiding in the bush until when PW3 arrested him on 4th March, 2019. 18 PW4 also supported the evidence of PW1, PW2 and PW3 that a child was killed, and established that the cause of death was due to injuries in the internal organs caused by excessive force applied on the stomach. He thus ruled out the appellant's claim that the deceased died from natural death due to his seizures. On the other hand, the appellant partly supported the prosecution case that Emmanuel Musa died on 16th June, 2017 and at the time of his demise PW1 was not at home. He also admitted to be arrested on 4th March, 2019. Given the above coherence and corroborations of each other's evidence, we are satisfied that Chacha Range, Samuel Musa and Magoiga Range were not material witnesses as there is no any particular number of witnesses required to prove any fact at issue -see section 143 of the Evidence Act. From what we have endeavoured to discuss, we are satisfied that the trial court rightly held that PW1, PW2, PW3 and PW4 were credible and reliable witnesses and reached at a correct decision in convicting the appellant basing on the circumstantial evidence and oral confession made to PW1. 19 In the event and for the foregoing, we find the appeal lacks merit and is hereby dismissed. DATED at MUSOMA this 28th 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 28th day of February, 2025 in the presence of the appellant in person via virtual court from Musoma Prison and Mr. Jonas Kivuyo, learned State Attorney for the respondent/Republic; is hereby certified as a true copy of the original.