CRIMINAL APPEAL NO 2 OF 2022 BARUANI MAGOKO CHACHA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f CORAM: SEHEL. J.A.. KAIRO. 3.A. And KHAMIS, J.A.) CRIMINAL APPEAL NO. 2 OF 2022 BARUANI MAGOKO @ CHACHA................................................ APPELLANT VERSUS THE REPUBLIC.................. ..................... ............................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahyoza, J.) dated the 8th day of December, 2021 in Criminal Sessions Case No. 40 of 2021 JUDGMENT OF THE COURT 17th February & 3rd March, 2025 KHAMIS, J.A.: In the High Court of Tanzania, Musoma, the appellant, Baruani Magoko @ Chacha, was arraigned for the offence of murder contrary to section 196 and 197 of the Pena! Code, Cap 16 R.E 2019. The prosecution alleged that, on 18th day of April, 2018 at Genturu village within Tarime District in Mara Region, the appellant murdered Mugosi d/o Nyagana @ Muharaga. The appellant pleaded not guilty and the matter proceeded to trial where the prosecution lined up four witnesses and produced two documentary exhibits. At the conclusion of trial, the appellant was convicted as charged and sentenced to a mandatory death penalty. The appellant was aggrieved by the conviction and sentence hence the present appeal. Before delving into the appeal, we propose to give a brief background which precipitated the institution of this matter. Mugosi Nyagana Muharaga, now deceased, was an elderly woman, a resident of Nyamkoba hamlet, Genkuru village, within Tarime District in Mara Region. On 18th day of April, 2020 around 6.00 hours, the fateful date, she was walking along the village road where she met the appellant, a family member, who ordered her to sit down. Soon after the deceased obeyed the order, the appellant picked a big stone and hit the deceased on her head where she instantly fell down and lost her life. She sustained broken head skull, occipital bone fracture and brain tissue was expelled out. Immediately after the incident, the appellant pulled the dead body to the nearby shrubs. At the time of the incident, Mwikwabe Juma Mwita (PW2) and Wankuru Juma Mwita (PW3), then 16 and 15 years old respectively, were busy grazing cattle about 32 paces away from the scene. The two siblings are the grandchildren of the deceased, and also a nephew and niece of the appellant. They saw their grandmother walk along the road and intercepted by the appellant. They watched the appellant ordering her to sit down. They also saw him pick a stone and hit on the head of the deceased before pulling the body to the shrubs. The sun was still on and bright. PW2 who stood in a different position from PW3, was able to hear the conversations that erupted between the deceased and the appellant before she was hit with a stone. He narrated that, the appellant suspected and openly accused the deceased to be a wizard. He detailed that, the appellant used his left arm to lift and throw a stone on the deceased as his right arm was broken. Immediately after the incident, PW2 and PW3 ran to their home and informed their mother, Thabita Juma. Other relatives were also informed of the incident and converged at the scene. The appellant ran away after the incident and was arrested on 11th December, 2020. Policemen and a medical officer went to the scene on 19th April 2018 around midday. They saw the body of the deceased lying motionless on the ground in a cassava farm with shrubs near her home which was also close to the house of the appellant. In the course of investigations, Detective Corporal Selesius (PW4), drew a sketch map of the scene of crime which was admitted in evidence as exhibit P2. Dr. Emmanuel Damas Kisinda (PW1), a medical officer at Nyamwaga District Hospital conducted an autopsy on the deceased's body and concluded that, she succumbed to the head injury caused by a broken skull, fractured occipital bone and brain tissue expelled out. He filled in a post mortem examination report showing the injury was caused by a blunt object. The report was admitted in evidence as exhibit PI. The appellant was afforded a chance to defend himself and elected to make a sworn testimony. He testified that, on the date and time of the incident he was not at the scene but in a nearby village, Msegi, where he operated a shop. He returned back home at 08:45 PM, took a shower and spent the time with his sister before was invaded by three fellow villagers, namely: Chacha Nyagana, Mugosi Nyagana and Manyare Nyagana. The trio demanded him to vacate and handover vacant possession of his as compensation for the unpaid refund of dowry for his sister, Esther Magoko, who was divorced by the deceased's son, Manyera Nyagana, since the year 2015. When he refused to open the door, the trio locked his house from outside and set it ablaze. The appellant and his sister raised an alarm which attracted other villagers who went to their rescue. The next day, he reported the incident at the police station and while there, villagers reported on the deceased's murder incident and he was arrested there and then. On further examination, the appellant stated that, he was arrested on 11th day of December, 2020. On further examination by his advocate, the appellant prayed for a lenient sentence. The trial Judge was satisfied that the evidence mounted by the prosecution witnesses proved the charge of murder against the appellant beyond reasonable doubt and that, the deceased was indeed killed by the appellant. Upon conviction and sentence, the appellant preferred this appeal. On 14th July 2022 the appellant filed a memorandum of appeal containing five grounds of appeal. Subsequently, his advocate lodged a supplementary memorandum of appeal with three grounds of appeal which faulted the learned trial Judge both in law and facts for convicting and sentencing the appellant to death by hanging without considering: one, that the prosecution failed to prove its case beyond reasonable doubt; two, the weakest and contradictory evidence of the prosecution; and; three, the defence case. At the hearing of this appeal, the appellant was present in person and also represented by Mr. Juma David Mwita, learned advocate, while Ms. Shose Naiman and Mr. Charles Kagirwa, both learned Senior State Attorneys, teamed up to act for the respondent Republic. At the outset, Mr. Mwita successfully sought leave of the Court to consolidate the second and third grounds of appeal and separately argue the first ground of appeal in the supplementary memorandum of appeal. He also informed the Court that, all other grounds in the memorandum of appeal are abandoned. On the consolidated second and third grounds of appeal, Mr. Mwita faulted the trial court for failure to consider what he termed as the weakest and contradictory evidence adduced by the prosecution and for omitting to consider the defence case. To substantiate his view, he contended that PW2 and PW3 were not credible witnesses as they gave contradictory testimonies on the circumstances of the incident. He drew our attention to pages 25 and 28 of the record, and argued that, whereas PW2 said the incident was reported to their parents at home, PW3 informed the trial court that, only their mother was at home during that time. He further contended that, whereas PW2 said the appellant and deceased spoke to each other, PW3 maintained that there was no discussion between them. The learned counsel further drew our attention at page 66 of the record where the trial Judge admitted existence of minor contradictions in the evidence of PW2 and PW3 particularly, as to whom they reported the incident after witnessing the appellant stoning the deceased to death. He submitted that, the learned Judge erred in law and facts for treating the contradiction as minor while, in his view, it was a major contradiction that goes to the root of the charge. He cited the case of Martin Jacob @ Mlila v. Republic, Criminal Appeal No. 434 of 2021 [2024] TZCA 447 (11 June 2024) for the proposition that, coherence is one of the ways for determining credibility of a witness. In addition, the learned advocate asserted that the learned trial Judge omitted to consider the defence evidence hence a miscarriage of justice. He argued that, had the trial Judge considered the defence evidence, he would have found its substance and hence acquit the appellant. On the first ground of appeal, Mr. Mwita submitted that the prosecution did not prove its case to the hilt. He captured our attention at page 28 of the record where PW2 and PW3 testified on the circumstances of the killing and marked that the deceased was killed on 18th April, 2018 and wondered why the proceedings did not show what transpired after PW2 and PW3 reported the incident to their parents. He further drew our attention to pages 23, 24, 30 and 31 of the record where PW1 and Pw4 testified that they went to the scene on 19th April, 2018 and found the body at the scene of crime. He wondered why the deceased's relatives left the body at the scene for the whole night until the afternoon hours of the next day. Further, the learned counsel invited the Court to draw adverse inference against the prosecution for the alleged failure to lead evidence of the parents of PW2 and PW3 to whom the incident was reported first. He contended that, the omission to bring the two witnesses was purposely done by the prosecution to hide the truth. To that end, Mr. Mwita cited Aziz Abdallah v. Republic [1991] T.L.R 97. Finally, Mr. Mwita urged this Court to allow the appeal arguing that the prosecution failed to establish the information of murder against the appellant to the required standard of proof beyond reasonable doubt. On her part, Ms. Naiman opposed the appeal and urged the Court to uphold the conviction and sentence meted out to the appellant by the trial court submitting that all ingredients of the offence of murder were satisfied as the conviction was based on the two eye witnesses and the circumstantial evidence as shown by other witnesses and the exhibits. On the second and third grounds of appeal, Ms. Naiman submitted that the alleged contradictions in the evidence of PW2 and PW3 were minor as found by the trial Judge at page 66 of the record. She contended that the issue was who stoned the deceased to death and not to whom did PW2 and PW3 report the incident. She submitted that the said issue was properly addressed by the trial court. The learned Senior State Attorney sought reliance from the case of Abel Orua Matiku & Others v. Republic, Criminal Appeal No. 441 of 2020 [2024] TZCA 78 (21 February 2024, TanzLII) where we pointed out that, it is only contradictions or inconsistencies which affect the central story which are to be considered to be material and adverse to the party in whose favour the evidence is given. Such contradictions or inconsistencies should not be those that are of an insignificant nature. On the alleged failure to consider the defence evidence, the learned State counsel asserted that, the appellant raised a defence of alibi at the trial which was exhaustively addressed by the trial court at pages 67 and 69 of the record of appeal and found to be an afterthought. To cement her argument, she cited the case of Abel Orua Matiko & Others (supra); Abdallah Kondo v. Republic Criminal Appeal No. 322 of 2015 [2016] TZCA 189 (28 September 2016, TanzLII); and; Moi Ikwabe Matiko v. Republic, Criminal Appeal No. 491 of 2020 [2024] TZCA 625 (19 July 2024 TanzLII). Further, Ms. Naiman cited Goodluck Kyando v. Republic [2006] T.LR 363; Abel Orua Matiku (supra); and Section 143 of the Tanzania Evidence Act, Cap 6 R.E 2022 (the TEA) for the proposition that, all the four prosecution witnesses were credible, the incident was timely reported by PW2 and PW3 to their parents and subsequently to the village authority and the police who took necessary steps to investigate the case as testified by PW4 and that, all material witnesses necessary to prove the case were paraded. On the first ground of appeal, Ms. Naiman submitted that, the prosecution case satisfied the elements of murder enunciated in the cases of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 [1999] TZCA 7 (10 June 1999, TanzLII) and Abel Orua Matiku (supra) where we held that, in proving the offence of murder under section 196 of the Penal Code, it must be established that the death of a human being occurred, that the death was unnatural and was caused by an unlawful act or omission, that it was the accused person who did the unlawful act or omission leading to the death of the deceased and finally that the death was caused with malice aforethought. The learned Senior State Attorney urged us to consider the credible testimonies of PW2 and PW3 who testified on how the appellant stoned the deceased to death and take into account the circumstantial evidence on the conduct of the appellant. She contended that, immediately after the incident the appellant pulled the body and hide it in the shrubs and ran away from the village until he was arrested about two years later. On rejoinder, Mr. Mwita reiterated his earlier submissions and insisted that the discrepancy in the evidence of PW2 and PW3 was grave and adversely affected the merits of the case. He invited us to allow the appeal. We have carefully scanned the record of appeal placed before us and considered the rival submissions made. The issues commending our determination are twofold: whether from the evidence adduced at the trial an inference can be drawn that the appellant was guilty of the murder of the appellant; and; two, whether PW2 and PW3 are credible witnesses. We have considered the learned trial Judge's analysis and evaluation of the evidence. At page 66 of the record, he made these observations: "The remaining issue is who killed the deceased. The prosecution summoned two eye witnesses: Mwikwabe Juma Mwita (PW2) and Wankuru Juma Mwita (PW3). Mwikwabe Juma Mwita (PW2) and Wankuru Juma Mwita (PW3) were 13 years and 12 years old respectively when the incident occurred. They deposed that they knew the deceased who was their grandmother and the accused person who is their paternai unde. The offence was committed at 06.00 hours. It was still daylight. The sun had not set down. The two witnesses were grazing cows. I find them to be credible witnesses. PW2 and PW3 gave similar evidence. There was minor contradiction in PW2 and PW3 testimonies. PW2 deposed that after they witnessed the accused stoning the deceased they rushed home and reported the incident to their parents who were at home. PW3 testified that after they watched the accused person killing the deceased, (they were) threatened and rushed home and reported the incident to their mother. The issue as to whom did they report after they witnessed the incident is not a fundamental issue to this case. A centra! issue is who stoned the deceased to death. On the fundamental issue the evidence ofPW 2 and PW3 was unambiguous that it is the accused person who stoned the deceased on the head causing her death. It is trite law that contradictions in a particular witness or among witnesses are inevitable but only fundamental contradictions affect credibility o f a witness or weaken one's case. Where there are contradictions in any o f the testimonies, it is the duty o f the trial court to determine whether they are material going to the root o f the case or just minor which may be disregarded. The Court o f Appeal emphasised the position that minor contradictions must be disregarded in Marando S/aa Hofu & 3 Others v. Republic, Criminal Appeal No. 246 o f 2011..." Similarly, at page 67 of the record, the learned trial Judge concluded that: "/ strongly hold that the contradiction in the testimonies o f PW2 and PW3 was minor and did not affect the evidence. PW2 and PW3 are credible witnesses. They witnessed the accused person stoning the deceased." Considering the evidence of DW1 (the appellant), the trial court noted that he raised a defence of alibi alleging that he was elsewhere when the offence was committed. Contrary to the submissions by the learned counsel for the appellant, the trial court analysed the appellant's defence at pages 67, 68 and 69 of the record of appeal in this manner: "The accused raised a defence o f alibi during his defence (testimony). He contended that he left his home at 08:30 am and went to the nearby village (where) he had a shop and returned at 08:45 pm. The law on this subject is well settled. First, the law requires a person who intends to reiy on the defence o f alibi to give notice o f that intention before the hearing o f the case. See section 194 94) o f the CPA...It should be noted that if the accused raises a defence o f alibi belatedly it casts doubts on its authenticity...I find his defence o f alibi an afterthought. I accord it no weight" On the totality of the evidence on record, the trial court at page 69 of the record concluded that: "...if one considers the prosecution's recognition evidence o f PW2 and PW3 that they witnessed the accused person killing the deceased. PW2 and PW3 knew very weii the deceased and the accused person they are their parents. Given the evidence o f PW2 and PW3, the accused's defence o f aiibi is weightless. It did not punch holes to the recognition evidence o f PW2 and PW3. I find that the accused person was properly recognised (as) a person who stoned the deceased to death." Considering the impugned judgment of the trial court, we are satisfied that the trial court applied the correct principles of law to the facts of this case. The analysis and conclusions made cannot be reproached. Having regard to the circumstances of this case, we are satisfied that, PW2 and PW3 are credible witnesses as they consistently testified that, the appellant stoned the deceased to death and pulled the dead body to the nearby shrubs. The cause of death according to PW1 and exhibit PI is the head injury as a result of being hit by a blunt object which caused a broken skull, fracture of the occipital bone and thus, the brain tissues were expelled out. The appellant's arrest after two years from the date of the incident as testified by himself at page 35 of the record, cemented Ms. Naiman's assertion that, his conduct after the incident corroborated the prosecution evidence. Considering those circumstances, we are in all fours with the learned Senior State Attorney that, the appellant was the one who fatally stoned the deceased and hence smashed her head to death. We therefore find the appellant's conviction for the offence of murder was sound in law and in fact, and thus uphold it. The appeal is therefore hereby dismissed 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 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.