CRIMINAL APPEAL NO 466 OF 2022 CHIPUKIZI CHONDI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT KIGOMA (CORAM: KWARIKO. 3.A., GALEBA. J.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 466 OF 2022 CHIPUKIZI CH O N D I.......................................................................... APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Kigoma) (Mlacha, J.^ dated the 9th day of July, 2022 in Criminal Sessions Case No. 3 of 2022 JUDGMENT OF THE COURT 30th April & 28th June, 2024 MASOUD. JA.: The appellant, Chipukizi Chondi and one, Nyamsase Masesa, then the second accused who is not a party to this appeal, were both accused persons in the High Court of Tanzania at Kigoma in Criminal Sessions Case No. 3 of 2022, having been arrested on 25th June, 2021 and 24th June, 2021 respectively on allegation of killing one Magezi Kagwesihire (the deceased), on 22nd June, 2021. They were thus charged with the offence of murder of the deceased on 22nd June, 2019 at Kanyonza village within Kakonko District in Kigoma Region contrary to section 196 of the Penal Code [Cap. 16 R.E. 2019 now R.E. 2022] (the Penal Code). The trial court found the appellant guilty of murder as charged, convicted and sentenced him to suffer death by hanging, while it found the second accused, who was the second wife of the deceased, the mother of Yamungu Magezi (PW3) and a co-wife of Jesca Pebuye (PW2) guilty of a lesser offence of manslaughter, convicted and sentenced her to serve an imprisonment term of ten (10) years. The allegation that gave rise to the charge and in respect of which the prosecution brought ten witnesses and tendered tenexhibits toprove it, was as follows: The appellant and the second accused were in a long time love affair and had arranged to meet for a sexuai intercourse in the night of the fateful day at the residence of the deceased and the second accused. Having met as arranged and having had the sexual intercourse at the deceased's bedroom, the deceased who was then not at home, arrived. The appellant collected his clothes and took refuge in the children's room where the children including PW3 were asleep as thesecond accused opened the door of the house for the deceased. 2 After the second accused opened the door for the deceased, they both went to bed, and the second accused thought that the appellant would leave, for she left the door unlocked for that purpose. On the contrary, the appellant entered the room, where the deceased and the second accused were, and as a result, a heated quarrel erupted between the appellant and the deceased. Consequently, the appellant strangled the deceased and cut him with a machete (exhibit P4) belonging to the deceased and the second accused (DW1). Then, the appellant dragged the body of the deceased away from his residence, and dumped it on a banana farm and left. The body was discovered in the banana farm three days later by a search party. Upon following the marks left behind as the body was being dragged from the scene, the search party got into the deceased room where they found blood stains and thereby, they put the second accused under restraint, for they suspected her to be the culprit. They took her to the police where they also reported the incident. The second accused confessed that the appellant was involved in the incident and later on recorded an extra-judicial statement (exhibit P7) and a cautioned statement (exhibit P9) before Sophia Ernest Ritenge of Kibondo Primary Court (PW7) and F. 1618 DSGT Maira (PW9), respectively. In addition to the confession by the second accused that implicated the appellant, there was the evidence of a ten year old son of the deceased (PW3), who was also at home in the fateful night when the appellant came to meet the second accused. He testified to have seen the appellant entering inside with her and never left. While still awake in his bedroom, he heard his father (the deceased) groaning and complaining that the appellant was killing him. As he was being cross-examined, he had it that he overheard the heated dispute between the appellant and the deceased in the deceased and second accused's bedroom which took quite a long time. The evidence confirming the death of the deceased was from Bigilimana Francis Mapigano (PW1) who examined the deceased's body on 25th June, 2021. His examination showed that the deceased's body had two cut injuries, at the lower jaw which was so deep that a bone was visible, and the front part of the neck was cut such that the food and air passage were completely severed. PW1 was of the opinion that the cause of death was excessive bleeding due to the injuries. The defence evidence that sought to raise doubt to the prosecution case was from the second accused (DW1), the appellant (DW2) and two more witnesses, namely, Silvia Paulo (DW3) and Amina Paulo (DW4) who testified for the appellant. Unlike the appellant's evidence, the second accused's testimony agrees with the prosecution case summarised above, including the fact that after the deceased's arrival at the scene, a quarrel ensued in the bedroom between him and the appellant. The quarrel which erupted in the bedroom and which culminated to a fight as the appellant held and strangled the deceased was, according to the second accused, so fierce that she had with her baby to take a refuge in the living room, and when she returned to the bedroom, she found the appellant cutting the deceased with the machete. The only difference between the second accused's evidence and the prosecution case was on how the appellant got the machete that he used to attack the deceased. Unlike in her confession, the second accused during cross-examination denied to have given the appellant the machete. Conversely, DW2 distanced himself from the accusation testifying that in the material night he was at home where he never left. He dented that she had a love affair with the second accused. He complained that the second accused named him as the culprit because she was instructed to testify as such. His two witnesses supported the appellant's story that he was in the fateful night at home. Having evaluated the evidence, the trial court found that it was only the appellant who was guilty of murder. In grounding the conviction, the trial court relied on the evidence of PW3 and the confession by the second accused which in its view it is corroborated by the evidence of PW3 as well as other prosecution witnesses. He doubted that the second accused gave the appellant the machete to attack the deceased. In his view, if she did so, it was due to the state of terror and confusion that she was in. The trial court also found that the circumstantial evidence emerging from the prosecution case irresistibly pointed to the culpability of the appellant. Upon considering the demeanor of the appellant, the trial court was not satisfied with his evidence that in the fateful night he was at his home and never left. At the hearing of the appeal, the appellant appeared but was also represented by Mr. Eliutha Kivyiro, learned advocate. The respondent Republic had the services of Mr. Shabani Juma Masanja, learned Senior 6 State Attorney, who was assisted by Ms. Naomi Joseph Mollel, learned State Attorney. Mr. Kivyiro abandoned two grounds out of five grounds of appeal contained in the memorandum of appeal which had been lodged to this Court earlier. Thus/ he only argued on, first, that, the circumstantial evidence relied on was incomplete, capable of more than one hypothesis and actually compatible with the appellant's innocence; second, that, the trial Judge erred in convicting the appellant based on the confession of a second accused without corroboration; and third, that, the case of the prosecution was not proved beyond reasonable doubt. On the first ground, the argument of the learned advocate for the appellant was that there was no complete chain of circumstantial evidence suggesting only one hypothesis pointing to the culpability of the appellant. In this respect, he pointed out that, the evidence of PW3 and PW7 was disconnected on when and how the appellant allegedly arrived at the scene in the material night and was identified by PW3; and that, the oral evidence of DW1 was inconsistent with what she allegedly confessed for in exhibits P7 and P8 with regard to the machete that was used to cut the deceased. Relying on the case of John Makolobela Kulwa Makolobela 7 and Another v. Republic [2002]T.L.R. 296, he argued that the circumstantial evidence relied on by the trial court was not complete and incapable of more than one conclusion as to the guilty of the appellant. He thus urged us to find merit in the first ground. In respect of the second ground of appeal, the learned advocate's main complaint was that the confession of the second accused was not corroborated by any material witness of the prosecution. He also argued that since the trial Judge believed the oral testimony of the second accused that she did not give the appellant the machete contrary to what she stated in her confession before PW7 and PW9, there was therefore no confession of an accomplice worth of being corroborated. Accordingly, we were invited to allow the second ground. On the third ground, the thrust of the submission was on discrepancies between the evidence of PW3 and DW1 on when the appellant allegedly arrived at the deceased's residence and whether he was indeed seen by PW3. The discrepancies were also in relation to the evidence that the appellant took refuge in the children's room, which evidence is according to the learned advocate, inconsistent with the testimony of PW3 who did not testify that he saw the appellant in the said 8 room notwithstanding that he was in the room awake. With such arguments, we were invited to find that the prosecution case was not proved beyond reasonable doubt. Mr. Masanja's reply to the submission of the learned advocate on the first ground of appeal took the opposite view. In this regard, he argued that the circumstantial evidence irresistibly led to an inference that it was the appellant who murdered the deceased. Citing the case of Jimmy Runangaza v. Republic, Criminal Appeal No. 159B of 2017 (unreported), the learned Senior State Attorney submitted that the facts from which the inference of guilt was drawn were, in the instant case, connected to one another and were proved beyond reasonable doubt. In line with the foregoing submission, Mr. Masanja brought our attention to several pieces of the evidence on the record. Firstly, the evidence of PW2 that the deceased on the material night went to the deceased's residence where he lived with the appellant's second accused and their children; secondly, PW3 saw the appellant as he entered to their house with the second accused; thirdly, while in his bedroom awake, PW3 heard the deceased complaining that the appellant was killing him; fourthly, the deceased's body was found dumped after being dragged from the deceased's bedroom as confirmed also by the second accused and; fifthly, the incident occurred at the deceased's house in the fateful night that the appellant had entered with the second accused. On our part, we have considered the pieces of evidence referred to us in the rival submissions of both learned counsel. It is not in dispute that the deceased in the fateful night was in the house which the deceased lived with the second accused as well as their children who included PW3. The evidence of PW3 that the deceased was in the said house is corroborated by PW2 who told the court that in the fatefu! night the deceased went to sleep with the second accused in the house where he lived with her and their children. It is further supported by the second accused and the confessional statements she made before PW7 and PW9. It is also not in dispute that the incident leading to his death occurred in the bedroom which he shared with the second accused. On the other hand, there was no evidence on the contrary from the appellant. We do not likewise see contradiction in the prosecution evidence in that respect. The issue is whether the appellant was at the scene of the crime in the material night, and if so, whether he was responsible for the death of the deceased. We have considered the evidence of PW3 in relation to the 10 issues at stake. We did not find anything referred to us by the appellant's advocate entitling us to doubt the credibility of PW3 and reliability of his evidence as assessed by the trial court. We are clear that PW3 in his evidence was consistent and very particular that the appellant was at the scene in the material night. The evidence of PW3 is, in our view, corroborated by oral testimony of DW1 and her confessional statements (exhibits P7 and P9) which PW7 and PW9 tendered without objection from the appellant. When cross- examined about the presence of the appellant at the scene, PW3 maintained the evidence he gave in his examination in chief that the appellant was at the scene in the material night and went further to clarify on what happened when the deceased also arrived at the scene. On the other hand, the evidence of the appellant that he was not at the scene in the material night cannot hold water as correctly found by the trial court. The evidence was not reflected in the cross-examination of the prosecution witnesses and the second accused (DW1) conducted on behalf of the appellant. See, the case of Mohamed Katindi v. Republic [1986] T. L. R. 134 which we adopted and elaborated in our subsequent decisions including the cases of John Mdata v. Republic, Criminal Appeal No. 453 ii of 2017 and D.P.P. v. Ngusa Keleja @ Mtangi and Another, Criminal Appeal No. 276 of 2017 (both unreported). The evidence did not on that score controvert the evidence of PW3 and raise reasonable doubt in the prosecution case. We have thus no doubt that the defence was a mere afterthought. The alleged contradiction between exhibits P7 and P9 on one hand and oral testimony of DW1 on the other on the issue whether it was DW1 who gave the appellant the machete with which he used to cut the deceased is in the circumstances not material and does not go to the root of the case. We are of that view because, firstly, the alleged contradiction does not oppose the fact that the appellant was at the scene of crime and was responsible for the death of the deceased. And secondly, the appellant's advocate did not at the trial cross-examine DW1 in relation to the machete which the appellant is alleged to have used to attack the deceased. Thus, the contradiction is, in our view, minor and does not go to the root of the case. In our scrutiny of the above evidence as the first appellate court, we did not find anything on the record before us entitling us to fault the trial court's finding that the appellant was at the scene of the crime and was 12 responsible for the death of the deceased. We are thus satisfied that the prosecution evidence indicated above is corroborated by exhibits P7 and P9 which the second accused recorded before PW7 and PW9 and which was not only consistent with the testimony of PW3 but they were also not disputed by the appellant when they were tendered at the trial. The totality of the foregoing serves to resolve the first and second grounds of appeal against the appellant. It is our position that the complaints raised in the said grounds have no merits. Accordingly, we dismiss them. Since we are satisfied from the foregoing that the appellant was responsible for the death of the deceased, the question which follows and which touches on the last ground of appeal is whether the killing was with malice aforethought so as to constitute murder. This question relates also to the uncontroverted evidence of PW3 and the second accused (DW1) found particularly at pages 48 and 81 of the record of appeal in respect of which we invited the parties to address us on in relation to the prosecution case and the finding of the trial court convicting the appellant of murder as afore said. 13 In a nutshell, the above evidence relates to the undisputed fact that there was a fierce dispute or a quarrel between the appellant and the deceased in the deceased's bedroom that preceded the killing of the deceased. However, the learned counsel for both sides did not see anything from the evidence that relates to the issue whether the killing was with malice aforethought so as to constitute murder. It was only after we prompted them further that Mr. Masanja contended that the evidence reflected a situation of a dispute or a quarrel at the scene between the appellant and the deceased. As was Mr. Kivyiro, the learned advocate for the appellant, Mr. Masanja did not find it important to consider the dispute or quarrel in relation to the above issue. We have carefully considered the evidence that was tendered at the trial in relation to the circumstances under which the deceased was killed and the finding of the trial Judge that the appellant was guilty of murder. It was not hard for us to establish that the evidence of the quarrel between the appellant and the deceased in the deceased's bedroom which occurred after the deceased had entered his bedroom where the appellant and the second accused had just spent time together making love was not at all considered by the trial court in relation to the issue whether the killing of 14 the deceased by the appellant was, in the circumstances, with malice aforethought. This evidence is critical as it leads to a reasonable hypothesis that the deceased was killed by the appellant in the course of a quarrel which took a long time and that culminated to a fight involving the use of machete belonging to the deceased's family to attack the deceased. To us, that was a vital point of law which the trial court was duty bound to address, but which responsibility, the court did not undertake. According to the record before us, the evidence as to the dispute or quarrel which none of the parties challenged or controverted at the trial establishes that the quarrel took quite a long time, it culminated to a fight and it led to the killing of the deceased by the appellant. Neither the respondent Republic nor the appellant that at the trial examined PW3 and DW1 respectively to clear any doubt raised by the evidence as to existence of the quarrel culminating to a fight. While PW3 testified that he was on the bed in his bedroom awake when the deceased came and the dispute erupted, he did not testify to have seen the appellant entering his room holding his clothes as contended by DW1. It was PW3's evidence that as the dispute was going on, he nevertheless managed to see DW1 getting out more than once. This 15 evidence suggested in our view that the appellant never took refuge in PW3's room as averred by the second accused and that the quarrel between the duo erupted when the appellant was found by the deceased in his bedroom with the second accused. It is noteworthy that the machete which was used by the appellant to cut the deceased belonged to the deceased's family as it was not in the evidence of PW3 that the appellant had a machete when he came to their home in the fateful night. He could not, in the circumstances, have a premeditated plan to end the deceased's life. Although the evidence of PW3 and DW1 as to the quarrel which culminated to a fight was not controverted at the trial, the learned counsel for both sides did not, upon being probed by us, think that the evidence led to a lesser offence of manslaughter as opposed to murder. They did not, however, endeavor to impress upon us on how the settled position of law, that where death occurs as a result of a fight or on account of provocation the killing is manslaughter and not murder, could not apply to the circumstances in which the deceased in this case met his death. We think on our part, that had the trial court directed its mind to the evidence on the record as to the quarrel between the deceased and the 16 appellant in the material night in relation to the circumstances pertaining to the incident, it would have arrived at the conclusion that the killing was not with malice aforethought since it was a result of that quarrel which based on the evidence of PW3 and DW1 culminated to a fight. In view of our finding above, we hold that based on the evidence on the record of appeal, it can certainly be concluded that the death of the deceased occurred in the course of fighting with the appellant. We are of the above finding and holding because it is settled law that, death resulting from a fight or on account of provocation is not murder but manslaughter. See Israel Misezero @ Miriani v. Republic, Criminal Appeal No. 117 of 2006; Zuberi Abdallah v. Republic, Criminal Appeal No. 144 of 1991; James Kabole v. Republic, Criminal Appeal No.435 "B" of 2013; Juma Kilimo v Republic, Criminal Appeal No. 70 of 2012; and Amani Justine @ Mpare v. Republic, Criminal Appeal No. 131 of 2018 (all unreported) and Moses Mungasiani Laizer @ Chichi v. Republic [1994] T. L. R. 222. In a situation like the one we are having in the instant appeal, the Court in the case of Emmanuel Mrefu @ Bilinge v. Republic, Criminal Appeal No. 271 of 2006 (unreported), substituted the conviction of murder 17 with manslaughter after it became clear that in view of the evidence in the record, although the deceased's death was caused by the appellant in the cause of fighting, there was no indication that malice aforethought was established. See also Amani Justine @ Mpare v. Republic (supra). Going by the undisputed evidence of PW3 and DW1 who were at the scene in the fateful night, we are settled that the quarrel took a long time and culminated to a physical fight that involved the use by the appellant of the machete belonging to the deceased's family to cut the deceased. See Aloyce Kitosi v. Republic, Criminal Appeal No. 284 of 2009, and Charles Wankumba @ Kasanda v. Republic, Criminal Appeal No. 16 of 2016 (both unreported). The fact that there was a quarrel that evidently culminated to the fight, and hence the killing of the deceased by the appellant as a result, raised reasonable doubt on the question of malice aforethought which ought to have been resolved in the favour of the appellant. We thus find that the appellant is not guilty of the murder but guilty of the lesser offence of manslaughter contrary to the provisions of section 195 of the Penal Code. In the end, we partly allow the appeal, quash the conviction of murder and substitute it with the conviction of manslaughter. Accordingly, 18 we set aside the sentence of death by hanging imposed by the trial court to the appellant. Considering the circumstances pertaining to the killing of the deceased, and the period that the appellant has been in custody, we impose a term of imprisonment of fifteen years from the date of the appellant's conviction, that is, 8th July, 2022. DATED at DAR ES SALAAM this 26th day of June, 2024. M. A. KWARIKO JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 28th day of June, 2024 in the presence of the appellant who appeared in person and Ms. Edna Makala learned State Attorney for Respondent/Republic, is hereby certified as a true copy of the original.