CRIMINAL APPEAL NO 113 OF 2022 CONSTANTINE STEPHANO VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCO RAM: SEHEL. J.A.. KAIRQ. J.A. And KHAMIS, J.A.^ CRIMINAL APPEAL NO. 113 OF 2022 CONSTANTINE s/o STEPHANO .................. .......APPELLANT VERSUS THE REPUBLIC........................... .......................... ............RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali J.1 ) dated the 6th day of December, 2021 in Criminal Sessions No. 19 of 2021 JUDGMENT OF THE COURT 20th February & 3rd March, 2025 SEHEL. 3.A.: The appellant, Constantine s/o Stephano, and the deceased, Anety d/o Daudi were lovers and used to live together. In the morning of the 29th May, 2020 at around 08:00 hours, one of the appellant's neighbours, Flora Maandazi (PW1) heard the appellant and his lover quarrelling. She made a follow up and witnessed the appellant assaulting the deceased with his fists and legs. She noted a visible injury on the deceased's hand which prompted her to intervene. She successfully stopped the quarrel and the appellant went to his barber shop. Following this initial assault, the deceased went to report the i incident to the Ward Executive Officer (WEO), leading to the appellant's brief arrest. Later on, around midday, after the appellant was released, he chased the deceased but she sought refuge from her boss, Magreth. At around 14:00 hours, the deceased and Anastazia John (PW2) were on their way home from swimming in Lake Victoria. On their way back home, the appellant suddenly appeared and violently attacked the deceased. He pulled the deceased's african wrapping material commonly known as khanga which was draped around the deceased's neck, and used it to strangle her and also proceeded to beat her with fists and kicks. The assault was relentless, and the deceased eventually lost consciousness. PW2 attempted to intervene, pleading with the appellant to stop, but he continued the assault. After the deceased collapsed, the appellant ran away. The sad news reached PW1 who was shocked to learn that the deceased had been subjected to another, even more severe, beating. She rushed to the scene and found the deceased nearly unconscious, and surrounded by many people including PW2. With the help of others, PW1 took the deceased to a nearby pharmacy for first aid. 2 One fisherman, Lyato Petro (PW3) happened to witness the assault when he was returning from fishing camp (Sozya) heading to centre. Along the way, he saw the appellant attacking the deceased by holding her from the back by the neck and striking her with fists and kicks. He immediately went to inform the deceased's boss, Magreth, about the assault. When they returned to the scene, the deceased had already been taken to a nearby dispensary. By that time the appellant had already been arrested. The information reached at the Village Executive Officer of Nafuba, Ibrahim Andeshi Kiyoya (PW4). In response to the information, PW4 rushed to the scene of crime but encountered the deceased being taken to the dispensary. At the dispensary, the medical assistant ordered for the deceased to be placed in a room for medication and ventilation. The deceased received intravenous fluids, and by 18:00 hours, she showed signs of improvement. However, in the next morning, her condition worsened, and the doctor recommended for her transfer to Kibara Mission Hospital. PW4 arranged for a boat to ferry her. PW4, PW1 and Magreth escorted the deceased to Kibara Mission Hospital where she was pronounced dead. 3 PW4 then arranged for the deceased's burial at Kibara, as her relatives could not be located. During cross-examination, PW4 stated that the examining doctor at Kibara informed him that the cause of the deceased's death was a fractured spine. The Post Mortem Examination Report (PMER) was tendered and admitted in evidence during the conduct of the preliminary hearing of the case as exhibit PI. In his evidence before the trial court, the appellant admitted that the deceased was his lover for three years and were blessed with twins. He claimed that on the fateful day, he left the deceased at home and told her to come later at his shop to collect money for the daily needs. Nonetheless, she did not turn up. He also admitted that, later in the afternoon, he met with the deceased who was in company of PW2 and asked her why she had not come for the money but responded with mockery words that: '7 should not ask her stupid question and that I have to take my way." He also admitted to kick the deceased in anger, causing her to fall but denied the witnesses' accounts of beating her with multiple blows, fists, and kicks, or choking her. He alleged that PW2 was influencing the deceased to have other relationships. At the end of the trial, the trial court was convinced that the evidence of PW2 was of highest credence and did not suggest any quarrel between the appellant and the deceased as suggested by the appellant, and that, there was no sign of revenge by the deceased person. In that respect, it dismissed the appellant's defence of provocation. It found the appellant guilty as charged, convicted and sentenced him to a mandatory sentence of death by hanging. Dissatisfied with the conviction and sentence, the appellant appealed to this Court. On 29th July, 2022, he lodged a memorandum of appeal comprised of four grounds. In terms of rule 73 (2) of the Tanzania Court of Appeal Rules, Mr. Juma David Mwita, learned counsel from RexPert Law Associates filed a supplementary memorandum of appeal raising two grounds. However, at the hearing of the appeal, Mr. Mwita, who appeared for the appellant abandoned all the grounds in the memorandum of appeal and conveniently combined the two grounds in the supplementary memorandum of appeal as one. The ground reads: "That, the trial court erred in iaw and fact in holding that the appellant was guilty o f murder while the prosecution failed to prove malice aforethought" 5 On the other hand, Mr. Isihaka Ibrahim Mohamed, learned State Attorney, appeared for the respondent/ Republic. The appellant was also present in Court. When given a chance to submit on the appeal, Mr. Mwita argued that the prosecution failed to prove malice aforethought. He pointed out that out of the four prosecution witnesses only one witness, PW2, was present during the attack. He contended that it is not disputed the deceased died an unnatural death caused by a fight. He referred us to page 40 of the record of appeal where, PW2 in her cross-examination said "We were only two along the way (myself and Aneth) when Constatine was chasing Aneth, then emerged a quarrel." He added that it was also established that the appellant did not intend to kill as the appellant was not uttering any words which could have been inferred as intention to kill. He referred us to page 39 of the record of appeal where PW2 said that the appellant was not uttering anything but just kicking Aneth on various parts of the body. He went to argued that, in his defence, the appellant explained the reason for his action that he was provoked by the deceased's reply that he should not ask her stupid question instead he should proceed with his way. Mr. Mwita insisted that for the offence of murder to stand, the prosecution is under obligation to prove malice aforethought. To cement his argument, he cited a High Court decision in the case of Republic v. Saidi Juma @ Shabani (Criminal Sessions Case No. 21 of 2018) [2023] TZHC 16081 (10th March, 2023; TANZLII), where the High Court cited the case of this Court in Nicodem Daudi v. The Republic (Criminal Appeal No. 528 of 2015) [2016] TZCA 631 (5th August, 2016; TANZLII), where we held that death resulting from a fight, the accused should be guilty to a lesser offence of manslaughter. Mr. Mwita stressed that, given the provocative words and the existence of a quarrel as exhibited by the prosecution evidence, the appellant did not intend to kill. In that respect, he submitted that the trial court ought to have convicted the appellant with a lesser offence of manslaughter and the appellant be set free because he did not run away and did not use any weapon in attacking the deceased. When probed by the Court whether the appellant was acting in the heat of passion, Mr. Mwita insisted that since PW2 said that there was a quarrel, the appellant was provoked thus acted in a heat of passion. Mr. Mohamed objected to the appeal. He admitted that, in criminal cases, the prosecution bears a burden of proof and such proof is beyond reasonable doubt. However, he argued that, in the present appeal, the prosecution proved malice aforethought that the appellant intended to kill the deceased. He referred us to the case of Chacha Ghati @ Gibita v. The Republic (Criminal Appeal No. 682 of 2020) [2024] TZCA 299 (3rd May, 2024; TANZLII), where the Court held that, one of the ingredients of the offence of murder was malice aforethought which the prosecution is required to prove. Responding to the issue of quarrel, Mr. Mohamed admitted that PW2 mentioned that there was a quarrel. Nevertheless, he argued that the quarrel was not about fighting but rather it was the appellant's beating of the deceased's person. He went to argue that since the appellant was beating the deceased there was no fighting. He added that PW1 also explained that the appellant was the one who was assaulting the deceased. Responding to the issue of provocation, Mr. Mohamed submitted that the appellant's defence of provocation should not be entertained because, when the appellant was attacking the deceased, he was not in the heat of passion as the fight they had was resolved by PW1. Besides, he argued, when PW2 was testifying, she was not cross-examined on whether the deceased uttered any provocative words as alleged by the appellant. He referred us to pages 40 to 41 of the record of appeal 8 where PW2 was not questioned on such matter. He therefore submitted that the failure to cross-examine PW2, the appellant is deemed to have accepted the facts depicted by PW2. He based his argument on the authority in the case of Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21st May, 2012; TANZLII). In addition, Mr. Mohamed argued, the appellant admitted in his cross- examination that he heard the provocative words two weeks prior to the murder of the deceased. On whether the appellant acted with malice aforethought, relying on the authority in the case of Enock Kipela v. The Republic (Criminal Appeal No. 150 of 1994) [1999] TZCA 9 (10th June, 1999; TANZLII), Mr. Mohamed contended that the appellant killed the deceased with malice aforethought as he attacked the deceased on a sensitive part of the body, at the neck. He pointed out that exhibit PI shows that the deceased's death was due to fracture of spine on the neck leading to suffocation and brain death. The learned State Attorney went on to argue that, the appellant used excessive force as testified by PW2 that he attacked the deceased on several parts of her body such that by the time she was taken to the dispensary, she was in critical condition. 9 Rejoining the submissions, Mr. Mwita contended that the prosecution failed to assist the trial court by their failure to make re­ examination on the issue of quarrel. He cited the case of Issa Hassan Uki v. The Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10th May, 2018; TANZLII), where it was held that where a party fails to cross-examine a witness on an important matter ordinarily implies the acceptance of its truth. At the end, he reiterated that the appellant acted in the heat of passion as the whole incident took about three minutes as evidenced by PW2. Having considered the submissions for and against the appeal, we noted that the appellant does not dispute killing the deceased. What he disputes is the accusation that he intentionally killed the deceased. He associated the killing with a fight and provocation. Therefore, the issues before us are: whether at the time of the killing, there was a fight and whether the appellant was provoked. We wish to start with the defence of provocation. Section 201 of the Penal Code provides for a defence of provocation. It stipulates: "When a person who unlawfully kills another under circumstances which, but for the provisions o f this section would constitute murder, does the act which causes death in 10 the heat o f passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cooi, he is guilty o f manslaughter only." [Emphasis added]. Further, section 202 of the Penal Code defines the term "provocation" as follows: "202 (1) The term "provocation" means and includes, except as hereinafter stated, any wrongful act or assault 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 person who is under his immediate case, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation o f master 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. (2) When the unlawful act or insult is done or offered by one person to another, or in the presence o f another to a person who is under the immediate care o f that other, or to whom the latter stands in any relationship referred to in ii subsection (1), the former is said to give the latter provocation for an assault. (3) A lawful act is not provocation to any person for an assault. (4) An act which a person does in consequence o f incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault. (5) An arrest which is unlawful is not necessarily provocative for an assault, but it may be evidence o f provocation to a person who known o f the illegality. (6) For the purpose o f this section the expression an "ordinary person" shall mean an ordinary person o f the community to which the accused belongs." It follows then that the defence of provocation is available to an accused person who kills at a spur of the moment, in the heat of passion before he has time to cool down. The community the accused person belongs referred to in section 202 (6) of the Penal Code was considered in the case of Joseph Manua Chacha v. The Republic [1980] T. L. R. 12 272 and it was held that is that of a fellow Tanzanians and not members of the tribe of the accused. In the present appeal, Mr. Mwita claimed that the deceased uttered provocative words when she replied to the appellant's question that 7 should not ask her stupid question and that I have to take my way." We have carefully considered the evidence on the record of appeal and observed that the alleged provocative words were introduced by the appellant when he was defending and it was never suggested or testified by prosecution witnesses that the deceased uttered such words. Had they been uttered by the deceased, PW2 would have heard them because she was with the appellant at the time when the deceased was being attacked. What is on the record of appeal is that when PW2 and the deceased were on their way home, suddenly, the appellant appeared and attacked the deceased from behind and started beating her with fists and kicks and also strangled her neck from behind for three minutes until the deceased lost conscious. Admittedly, an accused person does not have to prove provocation but only to raise doubt as to its existence as held in the case of Kenga v. R (1991) 1 E.A. 145. 13 But, given the scenario in this appeal, we are of the firm view that the alleged provocative words were never uttered by the deceased and never existed at ail. Besides, as rightly submitted by Mr. Mohamed and held by the trial court that had it been true, it would have featured against the testimony of PW2 but she was not cross-examined about it. As it goes, failure to cross-examine a witness on an important matter, it ordinarily implies acceptance of the truth of the witness's evidence - see: Issa Hassan Uki v. The Republic (supra). We therefore dismiss the claim of provocation. We now turn to the issue on whether there was a fight. This issue should not detain us much because it is purely based on evidence. Indeed, when PW2 was cross-examined, she said that a quarrel ensued. But when this statement is considered with other pieces of evidence on record especially the way she narrated on how the whole incident took place coupled with the corroborative testimony of PW3, we are satisfied that there was no fight. We shall exhibit our reasoning. PW2 testified that: "As we were returning home, suddenly, came Constantine to the direction we were heading, held Aneth, pulled up her khanga dress which she had dressed crossing her neck and then 14 started beating her by using his fists and legs. The said fists were directed on the neck white leg kicks were directed to the leg zones/part o f the said Aneth. By that time, Constantine was not uttering anything but just kicking Aneth on various part o f her body. The said incidence lapsed for some time (about three minutes). Seeing this, I intervened by inquiring from Constantine as what was wrong, I asked him to leave her. While still robbing, the said Constantine continued kicking and fisting her, then Aneth lost conscious." PW3 testified thus: "... while coming from fish camp (Sozya) heading to centre, along the way, I saw accused person beating the deceased. He had held the deceased from the back o f the neck on the dress she had tied at the back o f the neck and I also witnessed the accused person fisting the deceased and then beaten her on her legs. Seeing this, I had rush to Magreth (her boss) to report on the incident" From the above sequency of events as narrated by PW2 and PW3 we are satisfied that there was no fight. 15 We also find that the appellant killed the deceased with malice aforethought because he used excessive force that led to the fracture of spine on the neck leading to suffocation. He also attacked the deceased at the vulnerable part of her body, at the neck. AH in all, we find that the appeal lacks merit and is hereby dismissed. DATED at MUSOMA this 28th day of February, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 3rd day of March, 2025 in the presence of the appellant in person and Mr. Isihaka Ibrahim Mohamed, learned State Attorney for the respondent/Republic via virtual court from Musoma; is hereby certified as a true copy of the original. mm a* A. S. CHUGULU DEPUTY REGISTRAR COURT OF APPEAL 16