CRIMINAL APPEAL NO 505 OF 2022 BATRAM NKWERA MHESA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MWARI3A. J.A., KEREFU. J.A.. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 505 OF 2022 BATRAM NKWERA @ M HESA....................................................... APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Songea, at Songea) (Lvakinana. RM-Ext.Juris.^ dated the 13th day of October, 2022 in Ext. Juris. Criminal Sessions Case No. 11 of 2019 JUDGMENT OF THE COURT 12th & 14th August, 2024 KEREFU, 3.A.: The appellant, Batram Nkwera @ Mhesa was charged with the offence of murder contrary to section 196 of the Penal Code in the Resident Magistrate's Court of Songea (Lyakinana, RM - Ext. Juris.) in Ext. Juris. Criminal Sessions Case No. 11 of 2019. It was alleged that, on 2nd April, 2018 at about 17:30 hours at Ntunduwalo Village within Mbinga District in Ruvuma Region, the appellant did murder one Bathoromeo Benedict Nkwera (the deceased). i The appellant pleaded not guilty to the charge. However, after a full trial, he was found guilty, convicted and sentenced to suffer death by hanging. To establish its case, the prosecution called a total of six witnesses and tendered one documentary evidence, namely, the postmortem examination report (exhibit PI). The appellant relied on his own evidence as he did not call any witness. In essence, the substance of the prosecution case as obtained from the record of appeal indicates that, the deceased was living at Ntunduwalo Village with her grand-daughter namely, Wema Emmanuel Mapunda (PW1). On 2nd April, 2018 in the afternoon, while PW1 was having lunch and the deceased was sleeping, her uncle, the appellant, appeared and asked her where was the deceased. PW1 informed him that the deceased was inside his bedroom sleeping. The appellant requested PW1 to go and call him, but PW1 declined as she did not want to disturb her grandfather. PW1 stated that, the appellant proceeded to the deceased's bedroom, pushed the door and entered inside the room. Since, the bedroom door was open, PW1 saw the appellant beating the deceased with a bamboo stick and a machete (the panga) on all parts of his body. PW1 heard the deceased asking the appellant' why was he being killed ' 2 and the appellant replied th a t' hujui ulichokifanya'. Literary translated in English to mean, 'don't you know what you did'. PW1 went on to state that, upon seeing what was happening, she went to inform her sister Emmakulata Mahundi (PW2) about the incident and when she came back, she saw the appellant pushing the deceased outside the room while still beating him. PW1 feared to rescue her grandfather because the appellant was armed with panga and a bamboo stick. Thus, she decided to go outside to seek further assistance while leaving PW2 at the scene of crime and when she came back, she was informed that the deceased was taken to the hospital where he later passed away. The evidence of PW1 was supported by PW2, who added that, when she went to the scene of crime, she found the appellant pushing the deceased out of the room and the deceased fell down. PW2 went to the house of her aunt, Digna Bathoromeo Nkwera (PW4), the daughter of the deceased, to inform her on what has befallen her father, but PW4 was not at home, as she went to attend the funeral of Lazarus Nkwera, the brother of the appellant. PW2 returned to the scene but she did not see the deceased. She thus decided to go back to PW4's house where she found her grandfather severely injured. In his testimony, Papias Edmund Nditi (PW3), the husband of PW4, stated that he was informed by one Thadel Mhagama that his father in-law was beaten by the appellant. PW3 went to the scene of crime and found the deceased severely injured. PW3 took the deceased to his house. A moment later, PW4 came back home and found her father in a critical condition. PW3 informed the hamlet chairperson about the incident and requested for a letter authorizing the decease's treatment. Having obtained the said letter, PW3 and PW4 took the deceased to Ruanda Mission Hospital for treatment. However, few minutes later they were informed that he passed away. Thus, PW3 informed the Ward Executive Officer (WEO) and the Councilor about the death of the deceased. The Councilor reported the matter to the police. No. D.8065 D/SSGT Joseph Naligiah Mathayo (PW6), the investigation officer, testified that, on 3rd April, 2018, while at Mbinga Police Station, he was informed about the incident. PW6 together with a team of other police officers went to the scene of crime. PW6 prepared a sketch map of the scene and interrogated witnesses and wrote their statements. PW6 stated further that, during the said interviews, he was informed that it was the appellant who was responsible for the death of the deceased and that he escaped. Thus, the appellant was traced and 4 arrested on 4th April, 2018 at Lituhi Village at Nyasa District and on 5th April, 2018 he was transferred to Mbinga Police Station and interviewed by No. E.8065 D/CPL Ayubu who recorded his cautioned statement. An autopsy on the deceased's body was conducted by Dr. Noel Menas Miinga (PW5), who concluded that the cause of death was severe cerebral bleeding caused by a big cut wound on the deceased's scalp. A postmortem report to that effect was admitted in evidence as exhibit PI. In his defence, apart from admitting that, the deceased was his uncle and on the material date and time he went to his house while armed with panga and a bamboo stick to force him to attend the funeral of Lazarus Nkwera, the appellant (DW1) denied to have committed the offence. He contended that, when the deceased refused to go to that funeral, he pushed and beaten him with a bamboo stick and finally, they managed to go together to the said funeral. He added that, at that time, the deceased was of good health although, prior to his death, he was suffering from high blood pressure and cancer. He thus challenged the evidence of PW1, PW2, PW3 and PW4 that they gave untrue story before the trial court. He also denied to have been arrested at Lituhi Village at Nyasa District as testified by PW6. He contended that, after the incident, he was arrested at the village and restrained in the village lock up and later, was taken to Mbinga Police Station. He stated further that, he did not manage to attend the burial of the deceased because, at that time, he was in that village lock. He added that, at the scene of crime there was confrontation between him and the deceased. At the end of the trial, the trial court was convinced that the case against the appellant was proved to the required standard. Specifically, the trial court places much reliance on the evidence of PW1 and PW2 who stated that they saw the appellant beating the deceased by using a bamboo stick and panga on different parties of his body. That, the evidence of PW1 and PW2 was corroborated by the evidence of PW3 and PW4 together with the appellant himself who also admitted to have beaten the appellant by using a bamboo stick to force him to attend the burial ceremony of Lazarus Nkwera. Thus, the appellant was convicted and sentenced as indicated above. Aggrieved by both, the conviction and sentence, the appellant has come to this Court armed with four grounds of appeal. When the appeal was placed before us for hearing, Mr. Hillary Ndumbaro, learned counsel who entered appearance for the appellant prayed to abandon the third and fourth grounds of appeal and intimated that he would argue the following grounds: 1. That, the tria l court erred in law and fact for failure to draw adverse inference on the prosecution for failure to comply with the requirem ent o f section 122 o f the Evidence A ct and summon m aterial witnesses; and 2. That, the tria l court erred in law and fact to enter conviction against the appellant while the prosecution case was not proved beyond reasonable doubt On the adversary side, the respondent Republic was represented by Ms. Generosa Montano, learned State Attorney who at the outset, declared the respondent's stance of opposing the appeal and intimated that, she would argue the grounds of appeal in the manner proposed by his learned friend. Submitting in support of the first ground, Mr. Ndumbaro faulted the trial court for failure to properly evaluate the evidence on record and find that, the death of the deceased occurred as a result of provocation within the context of the long-standing conflict between the appellant and the deceased. To clarify on his point, he referred us to the evidence of PW1 who testified that she heard the deceased asking the appellant 'w hy was he being killed 1 and the appellant responded that, 'don't you know what you did'. It was the argument of Mr. Ndumbaro that, the said conversation pre-supposes that there was a long-standing conflict and or misunderstanding between the two. Although, he equally admitted that in her testimony, PW1 did not state that there was quarrel and or fighting between the appellant and the deceased, prior to the incident, he insisted that since, at some point, PW1 left the two alone, when she went out to seek for assistance, possibly the two were fighting each other. He thus insisted that, had the trial court considered what transpired at the scene, would have convicted the appellant of a lesser offence of manslaughter instead of murder. On the second ground, Mr. Ndumbaro argued that the prosecution failed to prove the case against the appellant to the required standard because, among the six witnesses summoned, there was no witness who managed to testify that the appellant killed the deceased with malice aforethought. Based on his submissions, and specifically what he argued on the first ground, the learned counsel urged us to allow the appeal and find that, due to the long-standing conflict and or misunderstanding between the appellant and the deceased, the appellant was provoked at the scene of crime thus he deserved a punishment for a lesser offence of manslaughter. In response to the first ground, Ms. Montano started by challenging the submission made by Mr. Ndumbaro on that ground, which she said, initially, the appellant's complaint was mainly on the failure by the prosecution to summon material witness to testify before the trial court. On that point, she quickly cited section 143 of the Evidence Act and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. She thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt through the evidence of PW1 and PW2 who were at the scene of crime and clearly narrated what transpired. She added that, the evidence of those two witnesses was corroborated by PW3, PW4, PW5 and PW6. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. On the other issues raised by Mr. Ndumbaro, the learned State Attorney argued that, from the evidence on the record, there was no doubt that it was the appellant who attacked the deceased with malice aforethought. Expounding on that point, she referred us to the evidence of PW1 and PW2 who witnessed the incident at the scene of crime and argued that, in their evidence there is nowhere they indicated that, prior to the incident, the appellant was provoked by the deceased. She specifically, referred us to page 27 of the record of appeal and argued that, in her 9 testimony, PW1 stated clearly that it was the appellant who entered into the deceased's bedroom and started beating him with a bamboo stick and panga on all parts of his body. It was her strong argument that the circumstances at the scene of crime cannot, at any standard avail the defence of provocation to the appellant. That, is why, even in his defence during the trial, the appellant never raised that defence, she argued. As such, she urged us to find that the first ground of appeal is devoid of merit. On the second ground, the learned State Attorney insisted that, at the trial, the prosecution managed to prove the case against the appellant beyond reasonable doubt as adequately, it was established that he attacked the deceased with malice aforethought due to the nature of weapon he used to attack the deceased, the amount of force he applied to injure him and the part of the body where the harm was inflicted together with his conduct after the incident. She thus argued that the case against the appellant was proved beyond reasonable doubt. To support her proposition, she cited the cases of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 [1999] TZCA 7: [10 June 1999: TanzLII] and Michael Ouma Wiliam v. Republic, Criminal Appeal No. 683 of 2020 [2024] TZCA 309: [7 May 2024: TanzLII]. In conclusion, the learned State 10 Attorney urged us to find the appellant's appeal unmerited and dismiss it in its entirety. In his brief rejoinder, Mr. Ndumbaro reiterated his earlier submission and maintained his stand that malice aforethought was not established as the appellant was provoked at the scene of crime. Having considered the rival arguments by the learned counsel for the parties in the light of the record of appeal and the grounds of appeal, we should now be in a position to consider the grounds of complaints raised by the appellant. However, before doing so, it is crucial to state that, this being the first appeal, it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and Reuben Mhangwa and Another v. Republic, Criminal Appeal No. 99 of 2007 [2019] TZCA 341: [30 September 2019: TanzLII]. Starting with the first ground of appeal on the appellant's complaint that material witnesses were not summoned. We wish to state that, in our numerous decisions, we have stated that, it is immaterial how many witnesses are called to testify but what is relevant is the weight attached li to the evidence. Section 143 of the Evidence Act cited to us by Ms. Montano, provides in clear terms that no particular number of witnesses which is required in proving a certain fact but the weight of evidence and credibility of a witness. Besides it is the prosecution that has the duty to prove its case and the right to choose which witnesses to call so as to give evidence in support of the charge. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Abdallah Kondo v. Republic, Criminal Appeal No. 322 of 2015 [2016] TZCA 836: [28 September 2016: TanzLII]. In the instant appeal, and being guided by the above authorities, we go along with Ms. Montano's submission and thus find the first ground of appeal devoid of merit. As for the second ground and other issues raised by Mr. Ndumbaro while arguing the first ground of appeal, there is no doubt that the same raises one issue as to whether, in the circumstances of this appeal, the defence of provocation was available to the appellant. Provocation as a defence is provided for under section 201 of the Penal Code, which states that: "When a person who unlawfully k ills another under circumstances which, but for the provisions o f this section would constitute murder, does the act which causes death in the heat o f passion caused 12 by sudden provocation as defined in section 202, and before there is time for his passion to cool, he is guilty o f manslaughter only." In addition, section 202 defines the term "provocationf to mean: "...any wrongful act or insult o f such a nature as to be likely, when done to an ordinary person, or in the presence o f an ordinary person to another who is under his immediate care or to whom he stands in a conjugal, parental, filia l or fraternal relation or in the relation o f m aster or servant, to deprive him o f the power o f self-control and to induce him to commit an assault o f the kind which the person charged committed upon the person by whom the act or insult is done or offered." In terms of the above provisions, the defence of provocation can only sail through once the court is satisfied that the words uttered or conduct demonstrated by the deceased were provocative to an ordinary person of the community to which the appellant belonged. In several occasions, this Court, has pronounced itself on the applicability of the above provisions. See for instance, the cases of Moses Mungasiani Laizer Alias Chichi v. Republic [1994] TLR 222, Nyakua Orondo v. Republic, Criminal Appeal No. 141 of 2002 (unreported) and Saidi Kigodi @ Side v. Republic, 13 Criminal Appeal No. 281 of 2009 [2011] TZCA 137: [1 July 2011: TanzLII]. In the latter case, this Court held that: "We are o f the firm view that the defence o f provocation is available to a suspect who k ills a t a spur o f the moment, in the heat o f passion before he has time to cooi down." In the instant appeal, we have carefully considered the evidence on record, together with the circumstances surrounding the case like the events which occurred before the incident, and specifically, on how the appellant went to the scene of crime armed with a panga and a bamboo stick, the force he used to attack/beating the deceased, the kind of injuries he inflicted on the deceased's body together with his conduct after the event. From all these, we fail to detect any act which would raise a reasonable doubt to establish that the appellant was provoked by the deceased at the scene of crime. For clarity we have revisited the evidence of PW1 and PW2, the only prosecution's eye witnesses at the scene of crime to ascertain what exactly transpired. In her testimony found at page 27 of the record of appeal, PW1 testified that: "...on 2/4/2018 in the afternoon, I was a t home. I came from my job. A t home, I did cook food. Then, I went to awaken my grandfather who was asleep. 14 My grandfather told me that 'am eshiba' and he wanted to re st Then, I went to eat m y food...Later on, unde Bathoromeo Nkwera @ Mhesa came and asked me on whereabout o f m y grandfather and I told him that he was in his bedroom sleeping/resting. He requested me to awaken him but I denied. When m y grandfather is sleeping, he did not like disturbance. From there, Batram went and pushed the door o f the bedroom o f m y grandfather. I then saw him taking from back (Mgongoni) bamboo stick and panga. The bamboo stick was thick like my hand. He then started beating m y grandfather in a ll parts o f his body." PWl's evidence was corroborated by PW2, who went to the scene of crime. In her own words, PW2 at page 29 of the same record, testified that: "...Wema told me that our grandfather was being beaten by Batram. I then went to the said house...I saw Mhesa pushing our grandfather outside. Our grandfather fe ll down and Mhesa continued beating him by bamboo stick and a panga. That stick was somehow thick. Mhesa used to beat my grandfather on every part o f his body. " 15 From the above excerpts, we are settled that the defence of provocation and or fighting between the appellant and the deceased suggested by Mr. Ndumbaro cannot stand. This is so, because the evidence is clear that at the scene, it was the appellant who approached the deceased and started beating him with a panga and a bamboo stick on all parts of his body. It was also the appellant who pushed the deceased and caused him to fall down and yet continued to beat him. According, to the evidence of PW1 found at page 28 of the record of appeal, what the deceased said was only to ask the appellant the reason of him being killed and the appellant responded that, 'don't you know what you did'. At any standard, the deceased's question, could not be adjudged provocative by the standard of an ordinary person of the community which the appellant belonged as Mr. Ndumbaro would have us conclude. We equally find the claim by Mr. Ndumbaro that the said provocation might have been caused by a long-standing conflict between the deceased and the appellant inferred in the response by the appellant unfounded. In Jacob Asegelile Kakune v. The Director of Public Prosecutions, Criminal Appeal No. 178 of 2017 [2020] TZCA 75: [24 March 2020: TanzLII] when faced with an akin situation, we stated that: 16 "...for provocation to be a defence it is not enough for one to cite a long existing conflict or provocation as it has been done in this case, because that w ill not suffice if there is no last and sudden act o f provocation. " -see also our decisions in Said Kigodi @ Side (supra), Rutu Qamara @ Qares v. Republic, Criminal Appeal No. 110 of 2018 [2021] TZCA 732: [3 December 2021: TanzLII] and John Daniel Munda v. The Director of Public Prosecutions, Criminal Appeal No. 220 of 2021 [2023] TZCA 17510: [21 August 2023: TanzLII]. With profound respect, and following the Court's reasoning in the above cited cases, we find the submission by Mr. Ndumbaro on this matter, to be nothing, but an afterthought. Worse enough, and as correctly argued by Ms. Montano, throughout the trial, the appellant never raised the defence of provocation and or any indication that, at the scene of crime, there was a fight between him and the deceased. In the circumstances, we find Mr. Ndumbaro's criticism on the finding of the trial court on this aspect is, with respect, without any justification. On that basis, we dismiss the second ground of appeal for lack of merit. 17 In conclusion, and looking at the totality of the evidence, we entertain no doubt that with the available circumstances, the trial court properly held that the case against the appellant was proved beyond reasonable doubt. In the event, and for the foregoing reasons, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at SONGEA this 14th day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 14th day of August, 2024 in the presence of the appellant in person and Ms. Tulibake Juntwa, learned Senior State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.