CRIMINAL APPEAL NO 359 OF 2021 NYAMHANGA JOSEPH CHALICHA CHANGO 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. 359 OF 2021 NYAMHANGA JOSEPH @ CHALICHA @CHANGO...................... APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma, at Tarime) (Nqaile, SRM, Extended Jurisdiction.^ dated the 3rd day of June, 2021 in Criminal Sessions Case No. 11 of 2020 JUDGMENT OF THE COURT 11th & 28th February, 2025 KAIRO, J.A.: The appellant, Nyamhanga Joseph @ Chalicha @ Chango is currently behind bars waiting for execution of a sentence imposed upon him following his conviction on the charge of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). It was alleged that, on 9th June, 2008 at Kiongera Village within Tarime District in Mara Region, the appellant murdered one Rhobi w/o Nyamhanga @ Theresia. 1 He denied the allegation and thus, the matter went to a full hearing. To prove the charge, the prosecution paraded the following four witnesses; Dr Samwel s/o Isaya @ Obyero (PW1), Kasarya s/o Magabe @ Ryoba (PW2), Sylvester s/o Kiganja @ Mrimi (PW3) and No. E. D/CPL Wilson (PW4). It further tendered a Postmortem Examination Report of the deceased ( Exh.Pl) and a sketch map of the scene of crime (Exh. P2). To appreciate the reasons culminated to the conviction, the following background is necessary. It all started on the 9th day of June, 2008 at around 09:00 hrs when PW2, the appellant's neighbour, while working in his cassava farm, heard voice of a quarrel from a nearby walk path. He identified the persons quarreling persons to be the appellant and deceased who were husband and wife. The couple were accompanied with their two minor children. PW2 saw the accused beating the deceased on various parts of the body using a large stick on his right hand, while holding a machete on his left hand. The deceased who was pushing a bicycle was crying for help, saying "Nisaidie, /V/s3/afe''literally meaning ''help me, help me". He approached them with the aim of stopping the appellant from beating the deceased, but the appellant raised a machete and threatened to cut him. Frightened, he left them. At that time, the deceased was pushing a bicycle and continued to walk while the appellant continued to beat her- up. Their voices continued to fed as they moved until he could not hear them anymore. After about 25 minutes later, PW2 decided to follow them and found the deceased lying unconsciously near Kamachage river, and he could also see the appellant with the two children proceeding to their home. He raised an alarm and people gathered, including the mother of the accused, one Meng'anyi Chango and DW2. The gathered persons hired a car so as to rush the deceased to the hospital, but she died on the way. The accused mother went to the office of PW3 who was the chairman of Kiongera village and reported the incident. She told him that, her son had beaten up his wife who was in critical health condition. PW2 went to the scene of crime and found the deceased's body covered by a bedsheet. Upon removing the bedsheet, he noted her body was full of injuries with a large cut wound on her neck. Meanwhile, the appellant was nowhere to be found. The incident was reported at the Police Station and PW4 was assigned to investigate the case. On that assignment, PW4 liaised with PW1, a medical doctor, to conduct at the scene of crime on 10th day of June, 2008. Upon reaching the scene, the policeman and PW1 found the body covered in a white bedsheet and when removed the bedsheet. Upon examination, the of deceased was found with marks and signifying that she was beaten up by a blunt object. Further to that, the deceased had a cut wound on her neck. PW4 took a the statement of PW2, an eye witness and also drew a sketch map of the scene of crime (exh. P2). PW4 testified that, he got an information that the appellant escaped after the incident and it was not, until on 15th February, 2016, that is eight years later, when he was informed that the appellant was arrested in Mwanza and was in the process of being transferred to Tarime Police Station. PW4 wrote the appellant's statement on 17th February,2016. PW1 on his part testified that, he went to the scene of crime in the company of PW3 among others and found the deceased's body in a pool of blood. After conducting a physical examination, he noted that, the deceased had bruises on various parts of the body and a large cut wound behind her neck which made it to hang. He went on to testify that, the coronary, artery and veins of blood that carries blood to and from the head were cut, resulting to excessive loss of blood which 4 caused an acute heart failure, resulting to her death. PW1 concluded that, the deceased's death was caused by excessive loss of blood and accordingly, filled the Postmortem Examination Report (exh. PI) and handed it over to the police. When arraigned to court to answer the murder charge, the appellant (DW1), denied all allegations against him and raised a defence of alibi under section 194 (4) of the CPA. In support of his defence, the appellant stated that, on the 4th day of May, 2008 he was informed on untimely death of his wife (the deceased). That he rightly came back and attended the traditional burial ceremony for his wife on the 6th day of May, 2008. He then went back to Dar es Salaam and proceeded with his usual endeavors. On the 2nd day of February, 2016, he was arrested at Tarime Town and later on arraigned in court accused of murdering his wife. When testifying, he admitted to be married to the deceased, but he lamented that, the case was concocted by the police officers. The appellant also called his brother (DW2) to support his narration who he testified that, the appellant's wife died on the 4th day of May, 2008. He stated that the death of his brother's wife was a natural one and was buried at Kiongera village where the couple lived. When asked if he knew any incident which happened on 9th June, 2008, DW1 answered that, he knew 5 nothing concerning the date. At the conclusion, the court found the appellant guilty and consequently, convicted and sentenced him to suffer death by hanging. He was aggrieved hence this appeal to protest his innocence. Initially, the appellant's memorandum of appeal was comprised of 10 grounds. However, during the hearing, Mr. Daud John Mahemba, learned counsel who represented the appellant, informed the Court that abandoned all grounds of appeal except grounds Nos. 1, 8, 9 and 10. The learned counsel further sought leave to present two additional grounds which were: one; non-inclusion of gentlemen assessors' opinions in the trial court judgement, and two; improper conduct of the committal proceedings. During the hearing, the Court probed on the propriety of the additional grounds and upon reflection, the learned counsel abandoned them. He thus remained with grounds number 1,8,9 and 10 which he clustered into two grievances: one; failure to analyse and consider the defence evidence comprised in ground number 8 and two; failure to prove the case by the prosecution comprised in grounds 1, 9 and 10 conjointly. On the other hand, Ms. Grace Madikenya, learned Senior State Attorney and Mr. Isihaka Ibrahim Mohamed, learned State Attorney, represented the respondent Republic. We wish to put it clear from the 6 beginning that, we shall determine each complaint immediately after the parties' argument. Mr. Mahemba sought to begin with ground No. 8 into which the appellant is faulting the trial court for failing to consider his defence on alibi. Elaborating, he submitted that, the trial court rejected it for the reason that the appellant did not issue a notice in terms of section 194 (4) of the Criminal Procedure Act, Cap 20 (the CPA) while the same was dully complied with. The learned counsel referred us to page 12 of the record of appeal for verification. He contended that, the appellant was not afforded with a fair trial because his alibi defence was wrongly rejected. In reply, Mr. Mohamed conceded that, the appellant had complied with the requirement to issue a notice in terms of section 194 (4) of the CPA and thus the trial court's finding on that aspect was an oversight. He however contended that, despite the said oversight, the trial court was still correct to dismiss the derence after found it wanting for the appellant's failure to call the person he alleged to be with at the time when the offence was committed. In further clarification, Mr. Mohamed argued that, the appellant's basis of his defence of alibi was pegged in his denial at page 40 and 41 of the record of appeal that he has never resided at Kiongera Village 7 where the incident occurred. But his denial was disputed by both PW2 and DW2 who testified that the appellant and the deceased were living in the said village at that material time. He added that even the appellant himself has confirmed under the memorandum of undisputed facts to have been living in the said village at the time the incident occurred which means, his denial was a lie. Relying on the case of Nkanga Daudi Nkanga vs Republic, Criminal Appeal No. 316 of 2013 [2014] TZCA 213, Mr. Mohamedi prayed the Court to rule out that, the appellant's lie supports the prosecution case. He thus implored the Court to find the ground unmerited. There is no dispute that, the trial court rejected the defence of alibi raised by the appellant. According to the record of appeal, the reasons for rejection were two, first being the appellant's non- compliance with the legal requirement to issue a notice under section 194 (4) of the CPA regarding his reliance on the defence of alibi which is being faulted by Mr. Mahemba. The fault was conceded by Mr. Mohamed and rightly so in our view because our thorough scrutiny of the record of appeal, particularly at page 12 we found that, indeed, the appellant had dully complied with section 194 (4) of the CPA by issuing a notice of intention to rely on the defence of alibi. As such, the trial court's finding on this aspect is, with much respect, an oversight as 8 submitted by Mr. Mohamed. We have further observed that, the second reason advanced by the trial court for rejecting the appellant's defence of alibi was attributed to the failure by the appellant to call a person with whom he claims to be with, at the time when the incident occurred so as to support his story. According to the trial court judgment at page 75 of the record of appeal, the failure has rendered his defence futile and unbelievable. We wish to interpose here that, the law is trite that, the appellant was under no legal obligation to prove the alibi though considering allegations made against him, calling the person he claims to be with at the time of the event was expected. [See: Sijali Juma Kocho vs Republic, (1994) T.L.R. 206 and Shabani Haruna @ Dr. Mwagilo vs Republic, Criminal Appeal No. 396B of 2017 [2021] TZCA 708 TANZLII]. On that account we think, with much respect, the reasoning was a misconception by the trial court of the legal stance on that aspect. Nevertheless, being the first appellate Court, we are entitled to re­ evaluate and reconsider the entire evidence and if warranted arrive at our own conclusion. [See: Reuben Mhangwa And Another vs Republic, Criminal Appeal No. 99 Of 2007 [2019] TZCA 341 TANZLII and Maramo s/o Slaa Hofu And 3 Ors vs Republic, Criminal Appeal No. 246 of 2011 (unreported)]. With that principle in mind, we now turn r to determine whether or not the alibi defence by the appellant is plausible and casts reasonable doubts on the prosecution evidence. As rightly submitted by Mr. Mohamed, the appellant in his defence has vehemently denied to have ever lived at Kiongera village where the incident occurred. However, his denial was negated by PW2 and DW2 who was the person he called to support his defence. Further to that, the appellant himself at page 11 of the record of appeal conceded to his physical address to be at Kiongera village and signed to confirm so under the facts not in dispute during Preliminary Hearing (PH) stage. It is our considered view that, the appellant's two versions in this regard show that, the defence was an afterthought and further, he did not tell the truth. As a rule of thumb goes, lies of an accused, in this matter the appellant, may corroborate the prosecution case, and in our view, it has in the appeal at hand. [Nkanga Daudi Nkanga vs Republic (supra) and Felix Lukas Kisinyila vs Republic, Criminal Appeal No. 129 of 2002 (unreported)]. In the end, we are satisfied that, the contradictory defence of the appellant rendered his defence of alibi unbelievable and we reject it. That apart, the record reveals that, the appellant was positively identified by PW2 at the scene of crime. Considering that the incident occurred during day time coupled with the familiarity between the 10 I appellant and PW2 who were neighbors, and the fact that PW2 tried to stop the appellant from beating the deceased but was chased, we have no flicker of doubt that, PW2 positively recognised the appellant at the scene of crime and his alibi defence does not hold water. We reject it. Coming to the complaint in grounds number 1, 9 and 10, centered on non-proof of the prosecution case, Mr. Mahemba listed the following four complaints in support of his argument that the case was not proved beyond reasonable doubt: one; the name of PW1 was not listed in the list of intended prosecution witnesses, thus his tendering of exh. P2 was irregular, two; variance of the name of the deceased in the charge and exh. PI and exh. P2, three; failure to call the police officer who arrested the appellant, and four; none of the prosecution witnesses saw the appellant cutting the neck of the deceased thus, there is no linkage between the appellant and the offence. Clarifying the first complaint, Mr. Mahemba faulted the trial court to allow PW1 to testify and tender exh. PI while his name was neither in the list of the intended prosecution witnesses nor was he added as an additional witness under section 289 of the CPA. He argued that, though the exhibit tendered by PW1 was listed during PH but since PW1 who tendered it was incompetent to testify, then the Court should expunge from the record, both PWl's evidence and exh. PI. 11 r In his reply, the learned State Attorney conceded to the complaint but not the remedy suggested. He argued that, the evidence of PW1 concerned exh. PI which was listed and his contents read over to the appellant specifically for proving the deceased's death and its cause. He referred us to page 94 of the record of appeal for verification. It was his contention that, since the document contains the substance of PWl's evidence, no injustice was occasioned by that omission and prayed the Court to reject the argument for lack of merit. Alternatively, he argued that, even if the Court agree with the suggested way forward and expunge exh.PWl, still the deceased death was confirmed by PW2, PW3 and PW4 to be unnatural. Indeed, PW1 who tendered exh. PI, 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. Further to that, the record is silent on the steps taken to comply with the requirement of section 289 of the CPA on issuing a notice for an additional witness. As such, the tendering of the exhibit PI was irregular and the only remedy is to expunge both the testimony of PW1 and exh. PI as we hereby do [See: Sitta James vs The Republic, Criminal Appeal No. 469 of 2020 [2024 TZCA 25, TANZLII]. But that notwithstanding, we agree with the learned State Attorney that despite 12 expunging exh.Pl, deceased death was also confirmed by PW2, PW3 and PW4 to be unnatural. Attacking the variance between the charge and the evidence, Mr. Mahemba submitted that, the name of the deceased as per charge sheet is in variance with the one written in exh. PI and P2. He clarified that, while the charge sheet named the deceased as Rhobi w/o Nyamhanga @ Theresia, exh. PI stated the deceased to be Rhobi Nyamhanga and in exh.P2 the deceased was referred to as Rhobi w/o Nyamhanga or Teresia d/o Mabucha, which to him, do not tally considering that, the appellant when testifying, he mentioned the name of his wife to be Theresia Nyamhanga Joseph. It was Mr. Mahemba's argument that, the discrepancy goes to the root of the case as it is not known who is the deceased and in the wake of such confusion coupled with the improper admission of exh. P2, the Court remain with nothing to enable it understands the name of the person who died and the cause of the death. Mr. Mohamed also argued that, the complaint on the variance between the charge and exh. PI and P2 is without merit. He submitted that, the first two names are common in all of those documents. He contended that, @Theresia was added in the charge to show the other name of the deceased, and therefore, the alleged variance does not 13 exist. We will not be detained by Mr. Mahemba's argument on the alleged variance of the names of the deceased in the charge and exh. PI and P2 differ, simply because the word "@Theresia" was added in the charge. According to Essential Law Dictionary 1st Edition at page, 27, the sign @ stands for alias which means "alternative identity" or "also known as". Applying to our case, it means Rhobi w/o Nyamhanga was also known as Theresia and vice versa. As such we are in agreement with the learned State Attorney that, the stated variance does not exist. We dismiss the complaint. The appellant further attacked the prosecution's failure to call the police officer who arrested the appellant in Mwanza eight years later after the occurrence of the incidence. He argued that, such witness was important to narrate the tale on how and in what circumstance was the appellant arrested considering the appellant's claim that the case was a cooked one. He invited the Court to draw an adverse inference for the said omission. In his brief response, the learned State Attorney rebuffed the contention arguing that, the prosecution ably proved its case through the four witnesses who were called to testify. On our part, we are in agreement with the learned State Attorney. 14 r Essentially the law has put it clear that, there is no particular number of witnesses who are required to prove a particular fact in terms of section 143 of the Evidence Act Cap 6 R.E. 2022. We so restated the said legal stance in our various decision, see for instance in Yohanis Msigwa vs Republic [1990] T.L.R. 148 and Aziz Abdallah vs Republic [1991] T.L.R. 71 to mention but a few. According to Mr. Mahemba, the arresting officer was a material witness who would have narrated where and how the appellant was arrested, but according to the record, the arrest of the appellant was not contended at any point in time, as such, failure to call him/her is inconsequential in our view. After all, the fact that the appellant was arrested in Mwanza and brought to Tarime was also conceded by the appellant himself at page 40 of the record of appeal. We say so because the appellant did cross examine PW4 to challenge that assertion. [See: Juma Kasema Nhumbu vs Republic (supra) and Raymond Mwinuka vs Republic, Criminal Appeal No. 366 of 2016 (unreported). For that reason, calling the arresting officer would have been a wastage of time and resource in our view, since arresting of the appellant was not a fact in issue. In an akin circumstance, we pronounced ourselves along those lines to which we still maintain [See: Moi Ikwabe Matiko @Moi vs Republic, Criminal Appeal No. 491 of 2020 [2024] TZCA 625 15 TANZLII]. On that account therefore, we find no merit in the complaint, and the invitation to draw an adverse inference is untenable. Sequel to that, the appellant has contended in the fourth complaint that, the trial court erred to convict him while the prosecution evidence failed to link him with the offence as none of the witnesses saw him cutting the neck of the deceased. Concluding, Mr. Mahemba prayed the Court to rule out that, the prosecution evidence was weak to prove that, it was the appellant who killed the deceased. Consequently, he implored the Court to find the appeal meritorious and allow it. The contention was disputed by the respondent Republic arguing that, the prevailed circumstantial conditions coupled with his escape after the incident which portrays guiltiness on his part, squarely connect the appellant with the offence. Whilst it is true that none of the prosecution witnesses eye witnessed the appellant cutting the deceased neck, but we agree with the learned State attorney's argument that, the circumstances link the appellant with the offence. We shall explain. Around 09.00 hrs on the fateful date, PW2 saw the appellant assaulting the deceased by a stick while holding a machete on the other hand. That, PW2 tried to stop the appellant from continuing beating the deceased, but he was threatened to be cut by the machete he was 16 r holding and decided to leave them alone. When assaulting the deceased, the duo were heading to their home which was neighboring PW2's home. Soon thereafter the witness decided to make a follow-up to where the quarrelling couple went and, on the way, he found the deceased lying unconscious with her neck wounded while the appellant was proceeding to his home. Considering the incident occurred during the day, the familiarity existed between the appellant and the PW2 being neighbors and PW2's attempt to intervene to stop the quarrel, we are with firm view that the conditions were favorable for PW2 to positively recognized the appellant. Further to that, exh. PI and the testimonies of PW1, PW3 and PW4 reveal that, the deceased was wounded by a sharp object which corroborates what PW1 testified as regards the wound which caused the death of the deceased. But further, the appellant was the last person to be seen with the deceased while holding the machete, which fact was not controverted through cross examination, which means, he accepted to its truth [See: Moses Norbert Achiula vs Republic, Criminal Appeal No. 63 of 2012 (unreported) and Raymond Mwinuka vs Republic, Criminal Appeal No. 366 of 2017 [2019] TZCA 315 TANZLII]. Yet, there was no plausible explanation advanced by the appellant on the circumstances leading to the wound she was found with which caused her death. The law is long 17 settled that if an accused person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain the circumstances leading to the death, he or she will be presumed to be the killer [Anthony Kayaga @ Mnibhi vs Republic, Criminal Appeal No. 550 of 2019. [2024] TZCA 284 TANZLII]. It is noteworthy that, the appellant did not cross examine PW2 on this aspect. We are alive that, the appellant had pleaded alibi as his defence, but as analysed above, the defence did not cast any doubt on the prosecution case. In that respect, we are satisfied that, it was the appellant who cut the deceased on the neck resulting to his death. As to whether there was malice on the part of the appellant or not, our answer is in affirmative basing on the guidance given in the case of Enock Kipela vs Republic Criminal Appeal No. 150 of 1994 [1999] TZCA 39 TANZLII. In this case, the appellant cut the deceased on the neck which is a sensitive part in the human body, the force exerted inflicting the blow was excessive as the head was left hanging in front of the body as testified by PW2, PW3, and PW4. Besides, the neck bones were fractured. But on top of that, the conduct of the appellant to escape after committing the offence shows his guiltiness. Thus, the stated facts in totality infer malice aforethought on the part of the 18 appellant. This ground lacks merit as well and we disregard it. In the end, we find the appeal without merit and we dismiss it in its entirety. 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. A. U DEPUTY REGISTRAR COURT OF APPEAL