zakaria jackson magayo vs republic 2021 tzca 207 19 may 2021

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. 3.A.. MWANDAMBO. 3.A. AND KEREFLI JA.^ CRIMINAL APPEAL NO. 411 OF 2018 ZAKARIA JACKSON MAGAYO.......................... ........... .......... APPELLANT VERSUS THE REPUBLIC..... ................................. ........ .................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Morogoro) fKente. J.l dated the 13th day of November, 2018 in Criminal Sessions Case No. 164 of 2016 JUDGMENT OF THE COURT 6th&. 19th May, 2021 MWANDAMBO, J.A.: The High Court of Tanzania sitting at Morogoro, tried Zakaria Jackson Magayo, the appellant herein and Lucy Wilson Mwesongo@ Nyamayao on the information of murder in Criminal Sessions Case No. 164 of 2016. The particulars in the information alleged that on 15/02/2015, the duo murdered one Sauli Yustino (deceased) to which they pleaded not guilty. Upon a full trial comprising of three witnesses from the prosecution and two in defence, the trial court found the appellant guilty as charged. It convicted and sentenced him with the mandatory death sentence. Conversely, the trial court found the i evidence against the second accused too insufficient to sustain the charge. It acquitted her. The appellant was aggrieved by the decision of the trial court. He has appealed against both conviction and sentence. The facts from which the appellant and the second accused were arraigned run as follows: The appellant and the second accused (DW2) were husband and wife engaged in farming activities in a village called Manvisi in Gairo District, Morogoro Region. The duo had employed the deceased as a casual labourer in their farms and stayed with him. On 15/02/2015, the appellant and the deceased spent time together at a local brew bar operated by Anastazia Kilongola (PW2) until late in the evening enjoying local brew. According to the prosecution, the appellant and the deceased were in the company of DW2 and one Mariam Wilson Mwesongo @ Nyamayao (PW1) till 11.00 pm when all left back home together. On 16/02/2015, the body of the deceased was found floating in a river called Mkonda. A post mortem of the body of the deceased revealed that the death was not natural it being caused by excessive loss of blood due to deep penetrating chest wounds by a sharp instrument. From the above background facts, the appellant and DW2 were suspected to have been responsible for the death of the deceased by reason of their being the last persons to be seen with the deceased on the night of 15/02/2015. Later, the appellant made a similar story in his sworn testimony in defence. During the preliminary hearing, the appellant admitted having gone with the deceased to a local brew bar operated by Anastazia Kilongola (PW2) and spent time with him until 07.30 pm when he left for home on his own whilst the deceased remained. He denied the existence of any quarrel with the deceased claimed by the prosecution through PW1. Likewise, the appellant disputed the prosecution's claim on the presence of DW2 and PW1 at the local brew bar as well as the claim that they spent time at PW2's bar till 11.00 pm when they departed with the deceased. Although the prosecution indicated to parade eight witnesses, it is only PW1, PW2 and PW3 who testified during the trial. As alluded to earlier, the trial court found their evidence sufficient to convict the appellant but insufficient as against the second accused who was acquitted. The substance of the evidence which influenced the trial court to conclude that it was the appellant who was the last person to be seen with the deceased came from PW1 and PW2. According to PW1, on the evening of 15/02/2015, she was at the local brew bar of Anastazia Kilongola (PW2) in the company of the appellant and DW2; her brother- in-law and step sister respectively at which the deceased was also present enjoying local brew. PW1 claimed that he remained at the bar with DW2, the appellant and the deceased until at about 11.00 pm when they all left. On their way home, the deceased is said to have pretended to take a different path only to join the trio later at a time when the appellant and DW2 were back biting him accusing him of previously killing a person and setting a house on fire scot free. According to PW1, it would appear the deceased overheard of the conversation for when he suddenly joined the trio unnoticed, he grabbed the arm of DW2 who yelled an act which did not amuse the appellant. After an exchange of words, calmness reigned and the journey continued. At some point, the appellant asked PW1 and the deceased to proceed to allow him to attend to a call of nature to which they obliged except DW2 who is recorded to have remained behind waiting for her husband. It was at that point in time PW1 saw the appellant and DW2 communicating by gesture on something which she did not understand. Moments later, they continued with their journey but upon reaching Mkonda river, the deceased remained behind wanting to take bath to which the appellant offered to wait for him and let DW2 and PW1 to proceed. A short while later, DW2 offered TZS 10,000.00 to PW1 with a promise for TZS 5,000.00 more from the appellant in exchange for her not disclosing to anyone any noise she might hear from the river where the appellant was waiting for the deceased allegedly taking bath. Amidst misunderstanding behind the offer and the accompanying terms, the duo parted company a little later and each proceeded on her own direction towards home. The following day, the body of the deceased was found floating in river Mkonda which informed PW1 to suspect the appellant as responsible for the death. On the other hand, the evidence of PW2 had it that the appellant who had a sheathed knife in possession, spent some time at her bar in the company of the deceased, DW2 and PW1 on 15/02/2015 until 11.00 pm when they all left. She learnt the following morrow that the deceased who had left with the appellant the previous night was found dead in Mkonda river. Lastly, according to Ruben Ezekiel Mfugale (PW3), a doctor who conducted the autopsy, the death of the deceased was not 5 natural; it was a result of excessive bleeding due to deep penetrating chest wounds by a sharp object. The trial court found that evidence sufficient to sustain the charge against the appellant. Before arriving at its finding of guilty, the trial court made it clear that the prosecution evidence was wholly circumstantial which needed to be intact to lead to only one irresistible conclusion pointing to the accused's guilt. Whilst acknowledging that the evidence PW1 and PW2 gave differed on the time the appellant and his company departed from PW2's bar, the learned judge found the difference a minor contradiction which did not go to the root of the prosecution's case. Having resolved that contradiction, the learned Judge found PW1 and PW2 as witnesses of truth. This was more so because their evidence was not shaken during cross- examination considering the absence of bad blood between them and the appellant and the second accused. Besides, PW1 and PW2 were related to DW2 and in the absence of a suggestion of bad blood between them and her, they could not have perjured against her and their brother-in-law; the appellant. It is for this reason, the trial court was satisfied that the appellant was the last person to be seen with the deceased and thus, in the absence of any explanation how he met his violent death, he was the person responsible for it. In doing so, the learned trial Judge took into account the evidence of PW1 regarding existence of a quarrel the appellant had with the deceased as well as PW2's evidence that the appellant was in possession of a sheathed knife on the material date. At the end of it all, it convicted and sentenced the appellant as indicated above. Initially, the appellant had lodged a memorandum of appeal comprising five grounds followed by a supplementary memorandum raising 12 grounds. At the hearing of the appeal, Mr. Lusiu Peter, learned advocate who was assigned to represent the appellant prayed to abandon several grounds in both memoranda and prayed to be heard only on the grounds raising the following areas of complaint against the trial court's decision; one, reliance on the discredited evidence of PW1 and PW2 without calling the police investigator; two, shifting the burden of proof to the accused (the appellant); three, failure to consider defence evidence; and four, grounding conviction on evidence which did not prove the case against the appellant to the required standard. Mr. Peter made submissions on the first and second grounds of complaint before addressing ground four urging us to uphold them and allow the appeal resulting into the appellant's acquittal. Mr. Ramadhani Kalinga, learned State Attorney representing the respondent Republic urged the Court to dismiss ground one on the authority of section 143 of the Tanzania Evidence Act [Cap. 6 R. E. 2019]. We are grateful to both counsel for their respective submissions but without any disrespect to them we find it unnecessary to belabour on them. This is more so because we are settled that the determination of the appeal turns on ground four indicated above which, to some extent, encompasses ground two and three. Mr. Peter addressed the Court generally on ground four covering arguments touching on ground four. He took off with the credibility of PW1 who claimed to have seen the appellant and DW2 communicating by signs during the material night as they were returning home from PW2's bar. The learned advocate urged us to accept that it was highly improbable for PW1 to see the appellant and DW2 communicating by sign language in darkness. On the other hand, the learned advocate faulted the trial court and rightly so for relying on the postmortem report (Exhibit PI) which was irregularly admitted it being tendered by a prosecutor rather than PW3. He urged us to expunge exhibit PI on the authority of Kisonga Ahmad Issa and Ramadhani Kassanga v. R, 8 Consolidated Criminal Appeal No. 171 of 2016 (unreported). We accept the invitation and expunge exhibit PI from the record. However, as we have held in our numerous decisions, despite the expungement of the exhibit, the court can still rely on the oral evidence of the maker, in this case, PW3 to prove the cause of death. We shall end here on this because there is no dispute that the deceased died an unnatural death. Next, the learned advocate pointed out variance between the information and the evidence regarding the date of death of the deceased which, according to him, created doubts which should benefit the appellant. We need not be detained on this point because, although PW3 stated in cross examination that the death occurred on 17/02/2015, he made a clarification in re- examination that he examined the body on 17/02/2015 which is not the same as the date of death. We reject the argument on the variance of the information and the evidence for being misconceived. Mr. Kalinga who had initially indicated to resist the appeal changed his stance midway having realized that his resistance could not prevail over the weak circumstantial evidence on which the trial court relied upon in convicting the appellant. He threw in the towel and argued in support of the appeal. The learned State Attorney argued that the 9 evidence adduced by the prosecution was not too strong to prove that case against the appellant on the required standard. Without further ado, he urged the Court to allow the appeal and make an order acquitting the appellant. Having heard arguments from the learned Counsel, it is now our turn to consider their merits. It is common ground that the case for the prosecution was wholly circumstantial and the learned trial judge discussed the elements necessary to base conviction on such evidence that is, the facts must be so connected to lead to no other conclusion than the guilt of the accused person. The law is so settled in this aspect that one need not cite any authority. Needless to say, we shall cite just a few of them. In Hamida Mussa v. R [1993] T.L.R. 123 the Court stated: "circumstantial evidence justifies conviction where inculpatory fact or facts are incompatibie with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt" Over seventy years ago, in R v. Kipkering Arap Koske and Another (1949) 16 E.A CA 135, the Court of Appeal for Eastern Africa, 10 quoted with approval an excerpt from a book by Wills on Circumstantial Evidence, 6th Edition at page 311 thus: "In order to justify the inference of guilt, the inculpatory facts, must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused" Alive to the above tests, the learned trial Judge concluded that through the evidence of PW1 and PW2 whom he found to be truthful, the appellant was the last person to be seen with the deceased on the night of 15/02/2015 and so he was responsible for his violent death as testified by PW3. The nagging issue for our determination is whether that finding was supported by the evidence on record. This calls for investigation on two sub issues, that is to say; one, were the witnesses indeed truthful?, and two, was the evidence of PW1 and PW2 subjected to objective evaluation against the appellant's defence? From our close examination of the evidence on record, the learned trial Judge was satisfied by PW l's evidence that the appellant had a ii quarrel with the deceased which attracted a heated exchange the moment the deceased surfaced grabbing DW2's arm from behind. Later on, PW1 is recorded to have seen the appellant communicating with DW2 by gesture which appears to have been suspicious. It should be noted that at that time the appellant and DW2 were at some distance behind PW1 and the deceased. However, it is not clear at what distance PW1 was which enabled her to see the appellant communicating in gesture with DW2 at that hour of the night. Nevertheless, the learned Judge believed PW1 as a witness of truth because she was not cross examined on this aspect. We are mindful of the settled law that failure to cross examine the prosecution witnesses on material part of evidence adverse to the other party is tantamount to its acceptance. In Emmanuel Saguda @ Sulukuka and Another v. R, Criminal Appeal No. 422 "B" of 2013 (unreported), the Court cited with approval an old English case of Browne v. Dunn [1893] 6 R. 67 which held that: - "A decision not to cross-examine a witness at aii or on a particular point is tantamount to an acceptance of the unchaiienged evidence as accurate, uniess the testimony of the witness is incredible or there has been a dear prior notice of intention to impeach the relevant testimony". 12 It appears to us to be clear that the rule is not absolute. Our understanding of it is that it focuses on the material evidence adverse to the other party excluding incredible evidence. We are inspired by the decision of the High Court in Kwiga Masa v. Samweli Mtubatwa [1989] T.L.R. 103 in which Samatta, J (as he then was) stated: A failure to cross-examine is merely a consideration to be weighed up with all other factors in the case in deciding the issue of truthfulness or otherwise of the unchallenged evidence. The failure does not necessarily prevent the court from accepting the version of the omitting party on the point The witness' story may be so improbable, vague or contradictory that the court wouid be justified to reject it, notwithstanding the opposite party's failure to challenge it during cross-examination. In any case, it may be apparent on the record of the case, as it is in the instant case, that the opposite party, in omitting to cross-examine the witness, was not making a concession that the evidence of the witness was true. We are satisfied that the above reflects a correct position which will guide us in this appeal. 13 It is on record that, DW2 testified that she did not leave her home on the material date because she was sick from three months' pregnancy ailments. She denied having gone to PW2's bar neither did she meet the deceased that day. In cross examination (at page 52 of the record), she maintained that she met the deceased in the morning on 14/02/2015 and did not see him thereafter. DW2 was not cross - examined on her evidence that she did not visit PW2's bar on 15/02/2015 and so, if the rule has to apply across the board, her evidence remained intact as that of PW1. For all practical purposes, it could not have been possible for DW2 to be at her home and at PW2's bar until 11.00 pm when she is said to have been in the company of the deceased, PW1 and the appellant returning home. In the same vein, it could not have been possible for DW2 to engage in backbiting the deceased and later communicate with the appellant by gesture. The learned trial judge did not address his mind to the two versions of the evidence and make an objective evaluation of them before coming to the conclusion that PW1 was a truthful witness simply because he was not cross -examined. With respect, the trial court did not apply the same standard in accepting the evidence of PW1 as against DW2 on the same principle; failure to cross examine a witness 14 on a material aspect. In our view, the principle laid down in Goodluck Kyando v. R [2006] T.L.R 363, holding that each witness is entitled to be believed must apply equally to both the prosecution and the defence. See: The Director of Public Prosecutions v. Mohamed Said& Another, Criminal Appeal No. 432 of 2018(unreported). From our evaluation of evidence PW1, did not meet the test of being a truthful witness because, as seen earlier, her claim that she saw the appellant communicating with DW2 by gesture at that hour speaks volume against her credibility. We have held in the past that a witness who ties in an important point cannot be believed in others- see: Mohamed Said v. R, Criminal Appeal No. 145 of 2017 (unreported). We have no doubt that had the trial court directed its mind to this fact, it would not have believed PW l's evidence and ultimately, it would not have arrived at the conclusion that the appellant was the last person to be seen with the deceased on 15/02/2015. On the other hand, going by the evidence of DW1, he left PW2's bar at 7.30 pm and returned home in his own without the deceased who remained behind as he was still in need of some more beer; Kangara elsewhere. DW l's further evidence was that he arrived home at about 08.30 pm where he found DW2 waiting for him. He also told the trial 15 court that he had no misunderstanding with the deceased whom he regarded as a younger brother. Whilst he admitted that the deceased used to spend some nights at his home, on the material date the deceased did not return at the appellant's home which he found not to be unusual only to learn the following day that he was dead. Unlike PW2, DW1 denied having owned a knife in his life time. In substance, DWl's oral evidence was consistent with the statement he made at the police which he tendered in evidence and the trial court admitted it as exhibit D l. DW l's oral evidence contradicted PW1 who claimed to have been with him, DW2 and the deceased at PW2's bar until 11.00 pm before returning home. In his judgment, the learned trial Judge rejected the appellant's evidence as a blatant denial in preference to PW l's and PW2's version which he found to be truthful. The only reason the learned trial Judge rejected DW l's evidence was that both PW1 and PW2 were related to DW2 and so to the appellant and so, in the absence of a suggestion of bad blood between them, they could not have perjured themselves against the accused persons. Likewise, said the learned Judge, PW1 and PW2 were not shaken in their evidence during cross examination. Be it as it may, it is also true that DW1 was not equally shaken in his oral 16 evidence as welt as his cautioned statement (exhibit D l) which raised doubts in both the evidence of both PW1 and PW2 on several aspects but most notably, the presence of PW1 and DW2 at PW2's bar, the time of departure from PW2's bar as well as the existence of a quarrel between the appellant and the deceased. The fact that prosecution chose not to tender in evidence DWl's cautioned statement cannot be taken lightly. Exhibit D l is full of exonerating statements which the learned trial Judge did not have regard in his evaluation of the evidence. In other words, the learned trial Judge was selective in the treatment of the evidence by the prosecution and the defence as a result of which he arrived at a finding that the appellant was the last person to be seen with the deceased and thus responsible for his violent death. Back to PW2's testimony, it is clear from the record that the appellant admitted having gone to her bar with the deceased twice on the material date. However, he parted company with the deceased at 7.30 pm and left for home with his donkey after the deceased had assisted him loading a bag of maize flour into it. Exhibit D l shows that this was done in the presence of PW2 during which the deceased opted to let DW1 leave since he was still in need of some more brew elsewhere (at page 67 of the record). According to PW2, DW2 and PW1 17 joined the deceased and the appellant at the bar at 7.00 pm and remained there till 11.00 pm when they all left. It is true that PW2 was not cross examined on this aspect in the same way DW1 was not cross - examined on his version. It is also true that DW2's was not cross - examined on her version of evidence that she did not leave home on 15/02/2015. We have already held that PW1 was not a truthful witness whose evidence was doubtful. That means that it was the evidence of PW2 against the appellant on the presence of PW1 and DW2 at the bar and the time of departure of the appellant in the company of the deceased. Since the trial court did not subject PW2's evidence to a proper scrutiny with that of DW1, it is hard to say that PW2 was a witness of truth and accept her version wholesale. On our own evaluation of the evidence as a first appellate court, we are not satisfied that PW2's evidence met the threshold. There was a lingering doubt on appellant's time of departure from the bar and if so, whether he left with the deceased. The two versions are irreconcilable raising a reasonable doubt. It was the prosecution's duty to clear the doubt, more so when it was aware of the appellant's defence through exhibit Dl. In other words, the links connecting the chain for a strong circumstantial evidence was broken to come to a conclusion that the 18 appellant was the last person to be seen with the deceased and hence his killer. Simply stated, neither PW1 nor PW2 proved beyond reasonable doubt that the appellant was responsible for the deceased's death. On the contrary, the appellant's defence accounted for the circumstances raising doubts of the disappearance of the deceased from the moment the duo parted company at PW2's bar at 7.30 pm. Apparently, the trial court paid no regard to this aspect. Furthermore, it is common ground that the appellant was among the people who participated in fishing out the deceased's body from the river on 16/02/2015 before he was arrested on 17/02/2015. This fact features conspicuously in exhibit D l. In our view, the appellant's conduct in remaining at home and participating in retrieving the deceased's body with other villages is inconsistent with guilt. The trial court said nothing on this unsurprisingly so because it formed an opinion that the appellant was a liar who could not stand in the unshaken evidence of PW1 and PW2 labelled as witnesses of truth. In the final analysis, we agree with the learned counsel that the evidence by the prosecution which was purely circumstantial did not prove the case against the appellant on the required standard justifying 19 a finding of guilt and conviction. In the upshot, we find merit in the appeal and allow it. Accordingly, we quash the appellant's conviction and substitute it with an acquittal resulting in setting aside the sentence. The appellant shall be released from prison forthwith unless his continued incarceration is due to any other lawful cause. DATED at DAR ES SALAAM this 17th day of May, 2021. S. A. LILA JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL The Judgement delivered this 19th day of May, 2021 in the presence of the appellant and Mr. Lisiu Peter, learned advocate for the appellant and in presence of Mr. Benson Mwaitenda, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. 20